From f609d950d5a3054f836c6e0df9cbd39872c9010a Mon Sep 17 00:00:00 2001 From: Brandon Dyck Date: Thu, 3 Aug 2023 15:50:47 -0600 Subject: [PATCH] Automated conversion to markdown --- chapters/01.markdown | 607 +++ chapters/02.markdown | 1394 +++++ chapters/03.markdown | 2807 ++++++++++ chapters/04.markdown | 559 ++ chapters/05.markdown | 754 +++ chapters/06.markdown | 689 +++ chapters/07.markdown | 844 +++ chapters/08.markdown | 215 + chapters/09.markdown | 431 ++ chapters/10.markdown | 100 + chapters/11.markdown | 629 +++ chapters/12.markdown | 570 ++ chapters/appendix.markdown | 127 + edit-chapters.go | 93 + edited/01.markdown | 605 ++ edited/02.markdown | 1388 +++++ edited/03.markdown | 2793 ++++++++++ edited/04.markdown | 557 ++ edited/05.markdown | 754 +++ edited/06.markdown | 687 +++ edited/07.markdown | 842 +++ edited/08.markdown | 213 + edited/09.markdown | 429 ++ edited/10.markdown | 98 + edited/11.markdown | 627 +++ edited/12.markdown | 568 ++ edited/appendix.markdown | 127 + original.txt | 10308 +++++++++++++++++++++++++++++++++++ 28 files changed, 29815 insertions(+) create mode 100644 chapters/01.markdown create mode 100644 chapters/02.markdown create mode 100644 chapters/03.markdown create mode 100644 chapters/04.markdown create mode 100644 chapters/05.markdown create mode 100644 chapters/06.markdown create mode 100644 chapters/07.markdown create mode 100644 chapters/08.markdown create mode 100644 chapters/09.markdown create mode 100644 chapters/10.markdown create mode 100644 chapters/11.markdown create mode 100644 chapters/12.markdown create mode 100644 chapters/appendix.markdown create mode 100644 edit-chapters.go create mode 100644 edited/01.markdown create mode 100644 edited/02.markdown create mode 100644 edited/03.markdown create mode 100644 edited/04.markdown create mode 100644 edited/05.markdown create mode 100644 edited/06.markdown create mode 100644 edited/07.markdown create mode 100644 edited/08.markdown create mode 100644 edited/09.markdown create mode 100644 edited/10.markdown create mode 100644 edited/11.markdown create mode 100644 edited/12.markdown create mode 100644 edited/appendix.markdown create mode 100644 original.txt diff --git a/chapters/01.markdown b/chapters/01.markdown new file mode 100644 index 0000000..2b37d1e --- /dev/null +++ b/chapters/01.markdown @@ -0,0 +1,607 @@ +CHAPTER I. + +THE RIGHT OF JURIES TO JUDGE OF THE JUSTICE OF LAWS. + + +SECTION I. + +For more than six hundred years--that is, since Magna Carta, in +1215--there has been no clearer principle of English or American +constitutional law, than that, in criminal cases, it is not only the +right and duty of juries to judge what are the facts, what is the law, +and what was the moral intent of the accused; _but that it is also their +right, and their primary and paramount duty, to judge of the justice of +the law, and to hold all laws invalid, that are, in their opinion, +unjust or oppressive, and all persons guiltless in violating, or +resisting the execution of, such laws_. + +Unless such be the right and duty of jurors, it is plain that, instead +of juries being a "palladium of liberty"--a barrier against the tyranny +and oppression of the government--they are really mere tools in its +hands, for carrying into execution any injustice and oppression it may +desire to have executed. + +But for their right to judge of the law, _and the justice of the law_, +juries would be no protection to an accused person, _even as to matters +of fact_; for, if the government can dictate to a jury any law whatever, +in a criminal case, it can certainly dictate to them the laws of +evidence. That is, it can dictate what evidence is admissible, and what +inadmissible, _and also what force or weight is to be given to the +evidence admitted_. And if the government can thus dictate to a jury the +laws of evidence, it can not only make it necessary for them to convict +on a partial exhibition of the evidence rightfully pertaining to the +case, but it can even require them to convict on any evidence whatever +that it pleases to offer them. + +That the rights and duties of jurors must necessarily be such as are +here claimed for them, will be evident when it is considered what the +trial by jury is, and what is its object. + +_"The trial by jury," then, is a "trial by the country"--that is, by the +people--as distinguished from a trial by the government._ + +It was anciently called "trial _per pais_"--that is, "trial by the +country." And now, in every criminal trial, the jury are told that the +accused "has, for trial, put himself upon the _country_; which _country_ +you (the jury) are." + +_The object of this trial "by the country" or by the people, in +preference to a trial by the government, is to guard against every +species of oppression by the government. In order to effect this end, it +is indispensable that the people, or "the country," judge of and +determine their own liberties against the government; instead of the +government's judging of and determining its own powers over the people. +How is it possible that juries can do anything to protect the liberties +of the people against the government, if they are not allowed to +determine what those liberties are?_ + +Any government, that is its own judge of, and determines authoritatively +for the people, what are its own powers over the people, is an absolute +government of course. It has all the powers that it chooses to exercise. +There is no other--or at least no more accurate--definition of a +despotism than this. + +On the other hand, any people, that judge of, and determine +authoritatively for the government, what are their own liberties against +the government, of course retain all the liberties they wish to enjoy. +_And this is freedom._ At least, it is freedom _to them_; because, +although it may be theoretically imperfect, it, nevertheless, +corresponds to _their_ highest notions of freedom. + +To secure this right of the people to judge of their own liberties +against the government, the jurors are taken, (or must be, to make them +lawful jurors,) from the body of the people, _by lot_, or by some +process that precludes any previous knowledge, choice, or selection of +them, on the part of the government. This is done to prevent the +government's constituting a jury of its own partisans or friends; in +other words, to prevent the government's _packing_ a jury, with a view +to maintain its own laws, and accomplish its own purposes. + +It is supposed that, if twelve men be taken, _by lot_, from the mass of +the people, without the possibility of any previous knowledge, choice, +or selection of them, on the part of the government, the jury will be a +fair epitome of "the country" at large, and not merely of the party or +faction that sustain the measures of the government; that substantially +all classes of opinions, prevailing among the people, will be +represented in the jury; and especially that the opponents of the +government, (if the government have any opponents,) will be represented +there, as well as its friends; that the classes, who are oppressed by +the laws of the government, (if any are thus oppressed,) will have their +representatives in the jury, as well as those classes, who take sides +with the oppressor--that is, with the government. + +It is fairly presumable that such a tribunal will agree to no conviction +except such as _substantially the whole country_ would agree to, if they +were present, taking part in the trial. A trial by such a tribunal is, +therefore, in effect, "a trial by the country." In its results it +probably comes as near to a trial by the _whole_ country, as any trial +that it is practicable to have, without too great inconvenience and +expense. And as unanimity is required for a conviction, it follows that +no one can be convicted, except for the violation of such laws as +substantially the whole country wish to have maintained. The government +can enforce none of its laws, (by punishing offenders, through the +verdicts of juries,) except such as substantially the whole people wish +to have enforced. The government, therefore, consistently with the trial +by jury, can exercise no powers over the people, (or, what is the same +thing, over the accused person, who represents the rights of the +people,) except such as substantially the whole people of the country +consent that it may exercise. In such a trial, therefore, "the country," +or the people, judge of and determine their own liberties against the +government, instead of the government's judging of and determining its +own powers over the people. + +But all this "trial by the country" would be no trial at all "by the +country," but only a trial by the government, if the government could +either declare who may, and who may not, be jurors, or could dictate to +the jury anything whatever, either of law or evidence, that is of the +essence of the trial. + +If the government may decide who may, and who may not, be jurors, it +will of course select only its partisans, and those friendly to its +measures. It may not only prescribe who may, and who may not, be +eligible to be drawn as jurors; but it may also question each person +drawn as a juror, as to his sentiments in regard to the particular law +involved in each trial, before suffering him to be sworn on the panel; +and exclude him if he be found unfavorable to the maintenance of such a +law.[1] + +So, also, if the government may dictate to the jury _what laws they are +to enforce_, it is no longer a "trial by the country," but a trial by +the government; because the jury then try the accused, not by any +standard of their own--not by their own judgments of their rightful +liberties--but by a standard dictated to them by the government. And the +standard, thus dictated by the government, becomes the measure of the +people's liberties. If the government dictate the standard of trial, it +of course dictates the results of the trial. And such a trial is no +trial by the country, but only a trial by the government; and in it the +government determines what are its own powers over the people, instead +of the people's determining what are their own liberties against the +government. In short, if the jury have no right to judge of the justice +of a law of the government, they plainly can do nothing to protect the +people against the oppressions of the government; for there are no +oppressions which the government may not authorize by law. + +The jury are also to judge whether the laws are rightly expounded to +them by the court. Unless they judge on this point, they do nothing to +protect their liberties against the oppressions that are capable of +being practised under cover of a corrupt exposition of the laws. If the +judiciary can authoritatively dictate to a jury any exposition of the +law, they can dictate to them the law itself, and such laws as they +please; because laws are, in practice, one thing or another, according +as they are expounded. + +The jury must also judge whether there really be any such law, (be it +good or bad,) as the accused is charged with having transgressed. Unless +they judge on this point, the people are liable to have their liberties +taken from them by brute force, without any law at all. + +The jury must also judge of the laws of evidence. If the government can +dictate to a jury the laws of evidence, it can not only shut out any +evidence it pleases, tending to vindicate the accused, but it can +require that any evidence whatever, that it pleases to offer, be held as +conclusive proof of any offence whatever which the government chooses to +allege. + +It is manifest, therefore, that the jury must judge of and try the whole +case, and every part and parcel of the case, free of any dictation or +authority on the part of the government. They must judge of the +existence of the law; of the true exposition of the law; _of the justice +of the law_; and of the admissibility and weight of all the evidence +offered; otherwise the government will have everything its own way; the +jury will be mere puppets in the hands of the government; and the trial +will be, in reality, a trial by the government, and not a "trial by the +country." By such trials the government will determine its own powers +over the people, instead of the people's determining their own liberties +against the government; and it will be an entire delusion to talk, as +for centuries we have done, of the trial by jury, as a "palladium of +liberty," or as any protection to the people against the oppression and +tyranny of the government. + +The question, then, between trial by jury, as thus described, and trial +by the government, is simply a question between liberty and despotism. +The authority to judge what are the powers of the government, and what +the liberties of the people, must necessarily be vested in one or the +other of the parties themselves--the government, or the people; because +there is no third party to whom it can be entrusted. If the authority be +vested in the government, the government is absolute, and the people +have no liberties except such as the government sees fit to indulge them +with. If, on the other hand, that authority be vested in the people, +then the people have all liberties, (as against the government,) except +such as substantially the whole people (through a jury) choose to +disclaim; and the government can exercise no power except such as +substantially the whole people (through a jury) consent that it may +exercise. + + +SECTION II. + +The force and justice of the preceding argument cannot be evaded by +saying that the government is chosen by the people; that, in theory, it +represents the people; that it is designed to do the will of the people; +that its members are all sworn to observe the fundamental or +constitutional law instituted by the people; that its acts are therefore +entitled to be considered the acts of the people; and that to allow a +jury, representing the people, to invalidate the acts of the government, +would therefore be arraying the people against themselves. + +There are two answers to such an argument. + +One answer is, that, in a representative government, there is no +absurdity or contradiction, nor any arraying of the people against +themselves, in requiring that the statutes or enactments of the +government shall pass the ordeal of any number of separate tribunals, +before it shall be determined that they are to have the force of laws. +Our American constitutions have provided five of these separate +tribunals, to wit, representatives, senate, executive,[2] jury, and +judges; and have made it necessary that each enactment shall pass the +ordeal of all these separate tribunals, before its authority can be +established by the punishment of those who choose to transgress it. And +there is no more absurdity or inconsistency in making a jury one of +these several tribunals, than there is in making the representatives, or +the senate, or the executive, or the judges, one of them. There is no +more absurdity in giving a jury a veto upon the laws, than there is in +giving a veto to each of these other tribunals. The people are no more +arrayed against themselves, when a jury puts its veto upon a statute, +which the other tribunals have sanctioned, than they are when the same +veto is exercised by the representatives, the senate, the executive, or +the judges. + +But another answer to the argument that the people are arrayed against +themselves, when a jury hold an enactment of the government invalid, is, +that the government, and all the departments of the government, _are +merely the servants and agents of the people_; not invested with +arbitrary or absolute authority to bind the people, but required to +submit all their enactments to the judgment of a tribunal more fairly +representing the whole people, before they carry them into execution, by +punishing any individual for transgressing them. If the government were +not thus required to submit their enactments to the judgment of "the +country," before executing them upon individuals--if, in other words, +the people had reserved to themselves no veto upon the acts of the +government, the government, instead of being a mere servant and agent of +the people, would be an absolute despot over the people. It would have +all power in its own hands; because the power to _punish_ carries all +other powers with it. A power that can, of itself, and by its own +authority, punish disobedience, can compel obedience and submission, and +is above all responsibility for the character of its laws. In short, it +is a despotism. + +And it is of no consequence to inquire how a government came by this +power to punish, whether by prescription, by inheritance, by usurpation, +or by delegation from the people? _If it have now but got it_, the +government is absolute. + +It is plain, therefore, that if the people have invested the government +with power to make laws that absolutely bind the people, and to punish +the people for transgressing those laws, the people have surrendered +their liberties unreservedly into the hands of the government. + +It is of no avail to say, in answer to this view of the case, that in +surrendering their liberties into the hands of the government, the +people took an oath from the government, that it would exercise its +power within certain constitutional limits; for when did oaths ever +restrain a government that was otherwise unrestrained? Or when did a +government fail to determine that all its acts were within the +constitutional and authorized limits of its power, if it were permitted +to determine that question for itself? + +Neither is it of any avail to say, that, if the government abuse its +power, and enact unjust and oppressive laws, the government may be +changed by the influence of discussion, and the exercise of the right of +suffrage. Discussion can do nothing to prevent the enactment, or procure +the repeal, of unjust laws, unless it be understood that the discussion +is to be followed by resistance. Tyrants care nothing for discussions +that are to end only in discussion. Discussions, which do not interfere +with the enforcement of their laws, are but idle wind to them. Suffrage +is equally powerless and unreliable. It can be exercised only +periodically; and the tyranny must at least be borne until the time for +suffrage comes. Besides, when the suffrage is exercised, it gives no +guaranty for the repeal of existing laws that are oppressive, and no +security against the enactment of new ones that are equally so. The +second body of legislators are liable and likely to be just as +tyrannical as the first. If it be said that the second body may be +chosen for their integrity, the answer is, that the first were chosen +for that very reason, and yet proved tyrants. The second will be exposed +to the same temptations as the first, and will be just as likely to +prove tyrannical. Who ever heard that succeeding legislatures were, on +the whole, more honest than those that preceded them? What is there in +the nature of men or things to make them so? If it be said that the first +body were chosen from motives of injustice, that fact proves that there is +a portion of society who desire to establish injustice; and if they were +powerful or artful enough to procure the election of their instruments to +compose the first legislature, they will be likely to be powerful or +artful enough to procure the election of the same or similar instruments +to compose the second. The right of suffrage, therefore, and even a change +of legislators, guarantees no change of legislation--certainly no change +for the better. Even if a change for the better actually comes, it comes +too late, because it comes only after more or less injustice has been +irreparably done. + +But, at best, the right of suffrage can be exercised only periodically; +and between the periods the legislators are wholly irresponsible. No +despot was ever more entirely irresponsible than are republican +legislators during the period for which they are chosen. They can +neither be removed from their office, nor called to account while in +their office, nor punished after they leave their office, be their +tyranny what it may. Moreover, the judicial and executive departments of +the government are equally irresponsible _to the people_, and are only +responsible, (by impeachment, and dependence for their salaries), to +these irresponsible legislators. This dependence of the judiciary and +executive upon the legislature is a guaranty that they will always +sanction and execute its laws, whether just or unjust. Thus the +legislators hold the whole power of the government in their hands, and +are at the same time utterly irresponsible for the manner in which they +use it. + +If, now, this government, (the three branches thus really united in +one), can determine the validity of, and enforce, its own laws, it is, +for the time being, entirely absolute, and wholly irresponsible to the +people. + +But this is not all. These legislators, and this government, so +irresponsible while in power, can perpetuate their power at pleasure, if +they can determine what legislation is authoritative upon the people, +and can enforce obedience to it; for they can not only declare their +power perpetual, but they can enforce submission to all legislation that +is necessary to secure its perpetuity. They can, for example, prohibit +all discussion of the rightfulness of their authority; forbid the use of +the suffrage; prevent the election of any successors; disarm, plunder, +imprison, and even kill all who refuse submission. If, therefore, the +government (all departments united) be absolute for a day--that is, if +it can, for a day, enforce obedience to its own laws--it can, in that +day, secure its power for all time--like the queen, who wished to reign +but for a day, but in that day caused the king, her husband, to be +slain, and usurped his throne. + +Nor will it avail to say that such acts would be unconstitutional, and +that unconstitutional acts may be lawfully resisted; for everything a +government pleases to do will, of course, be determined to be +constitutional, if the government itself be permitted to determine the +question of the constitutionality of its own acts. Those who are capable +of tyranny, are capable of perjury to sustain it. + +The conclusion, therefore, is, that any government, that can, _for a +day_, enforce its own laws, without appealing to the people, (or to a +tribunal fairly representing the people,) for their consent, is, in +theory, an absolute government, irresponsible to the people, and can +perpetuate its power at pleasure. + +The trial by jury is based upon a recognition of this principle, and +therefore forbids the government to execute any of its laws, by +punishing violators, in any case whatever, without first getting the +consent of "the country," or the people, through a jury. In this way, +the people, at all times, hold their liberties in their own hands, and +never surrender them, even for a moment, into the hands of the +government. + +The trial by jury, then, gives to any and every individual the liberty, +at any time, to disregard or resist any law whatever of the government, +if he be willing to submit to the decision of a jury, the questions, +whether the law be intrinsically just and obligatory? and whether his +conduct, in disregarding or resisting it, were right in itself? And any +law, which does not, in such trial, obtain the unanimous sanction of +twelve men, taken at random from the people, and judging according to +the standard of justice in their own minds, free from all dictation and +authority of the government, may be transgressed and resisted with +impunity, by whomsoever pleases to transgress or resist it.[3] + +The trial by jury authorizes all this, or it is a sham and a hoax, +utterly worthless for protecting the people against oppression. If it do +not authorize an individual to resist the first and least act of +injustice or tyranny, on the part of the government, it does not +authorize him to resist the last and the greatest. If it do not +authorize individuals to nip tyranny in the bud, it does not authorize +them to cut it down when its branches are filled with the ripe fruits of +plunder and oppression. + +Those who deny the right of a jury to protect an individual in resisting +an unjust law of the government, deny him all _legal_ defence +whatsoever against oppression. The right of revolution, which tyrants, +in mockery, accord to mankind, is no _legal_ right _under_ a government; +it is only a _natural_ right to overturn a government. The government +itself never acknowledges this right. And the right is practically +established only when and because the government no longer exists to +call it in question. The right, therefore, can be exercised with +impunity, only when it is exercised victoriously. All _unsuccessful_ +attempts at revolution, however justifiable in themselves, are punished +as treason, if the government be permitted to judge of the treason. The +government itself never admits the injustice of its laws, as a legal +defence for those who have attempted a revolution, and failed. The right +of revolution, therefore, is a right of no practical value, except for +those who are stronger than the government. So long, therefore, as the +oppressions of a government are kept within such limits as simply not to +exasperate against it a power greater than its own, the right of +revolution cannot be appealed to, and is therefore inapplicable to the +case. This affords a wide field for tyranny; and if a jury cannot _here_ +intervene, the oppressed are utterly defenceless. + +It is manifest that the only security against the tyranny of the +government lies in forcible resistance to the execution of the +injustice; because the injustice will certainly be executed, _unless it +be forcibly resisted_. And if it be but suffered to be executed, it must +then be borne; for the government never makes compensation for its own +wrongs. + +Since, then, this forcible resistance to the injustice of the government +is the only possible means of preserving liberty, it is indispensable to +all _legal_ liberty that this _resistance_ should be _legalized_. It is +perfectly self-evident that where there is no _legal_ right to resist +the oppression of the government, there can be no _legal_ liberty. And +here it is all-important to notice, that, _practically speaking_, there +can be no _legal_ right to resist the oppressions of the government, +unless there be some _legal_ tribunal, other than the government, and +wholly independent of, and _above_, the government, to judge between the +government and those who resist its oppressions; in other words, to +judge what laws of the government are to be obeyed, and what may be +resisted and held for nought. The only tribunal known to our laws, for +this purpose, is a jury. If a jury have not the right to judge between +the government and those who disobey its laws, and resist its +oppressions, the government is absolute, and the people, _legally +speaking_, are slaves. Like many other slaves they may have sufficient +courage and strength to keep their masters somewhat in check; but they +are nevertheless _known to the law_ only as slaves. + +That this right of resistance was recognized as a common law right, when +the ancient and genuine trial by jury was in force, is not only proved +by the nature of the trial itself, but is acknowledged by history.[4] + +This right of resistance is recognized by the constitution of the United +States, as a strictly legal and constitutional right. It is so +recognized, first by the provision that "the trial of all crimes, except +in cases of impeachment, shall be by jury"--that is, by the country--and +not by the government; secondly, by the provision that "the right of the +people to keep and bear arms shall not be infringed." This +constitutional security for "the right to keep and bear arms," implies +the right to use them--as much as a constitutional security for the +right to buy and keep food would have implied the right to eat it. The +constitution, therefore, takes it for granted that the people will +judge of the conduct of the government, and that, as they have the +right, they will also have the sense, to use arms, whenever the +necessity of the case justifies it. And it is a sufficient and _legal_ +defence for a person accused of using arms against the government, if he +can show, to the satisfaction of a jury, _or even any one of a jury_, +that the law he resisted was an unjust one. + +In the American _State_ constitutions also, this right of resistance to +the oppressions of the government is recognized, in various ways, as a +natural, legal, and constitutional right. In the first place, it is so +recognized by provisions establishing the trial by jury; thus requiring +that accused persons shall be tried by "the country," instead of the +government. In the second place, it is recognized by many of them, as, +for example, those of Massachusetts, Maine, Vermont, Connecticut, +Pennsylvania, Ohio, Indiana, Michigan, Kentucky, Tennessee, Arkansas, +Mississippi, Alabama, and Florida, by provisions expressly declaring +that the people shall have the right to bear arms. In many of them also, +as, for example, those of Maine, New Hampshire, Vermont, Massachusetts, +New Jersey, Pennsylvania, Delaware, Ohio, Indiana, Illinois, Florida, +Iowa, and Arkansas, by provisions, in their bills of rights, declaring +that men have a natural, inherent, and inalienable right of "_defending_ +their lives and liberties." This, of course, means that they have a +right to defend them against any injustice _on the part of the +government_, and not merely on the part of private individuals; because +the object of all bills of rights is to assert the rights of individuals +and the people, _as against the government_, and not as against private +persons. It would be a matter of ridiculous supererogation to assert, in +a constitution of government, the natural right of men to defend their +lives and liberties against private trespassers. + +Many of these bills of rights also assert the natural right of all men +to protect their property--that is, to protect it _against the +government_. It would be unnecessary and silly indeed to assert, in a +constitution of government, the natural right of individuals to protect +their property against thieves and robbers. + +The constitutions of New Hampshire and Tennessee also declare that "The +doctrine of non-resistance against arbitrary power and oppression is +absurd, slavish, and destructive of the good and happiness of mankind." + +The legal effect of these constitutional recognitions of the right of +individuals to defend their property, liberties, and lives, against the +government, is to legalize resistance to all injustice and oppression, +of every name and nature whatsoever, on the part of the government. + +But for this right of resistance, on the part of the people, all +governments would become tyrannical to a degree of which few people are +aware. Constitutions are utterly worthless to restrain the tyranny of +governments, unless it be understood that the people will, by force, +compel the government to keep within the constitutional limits. +Practically speaking, no government knows any limits to its power, +except the endurance of the people. But that the people are stronger +than the government, and will resist in extreme cases, our governments +would be little or nothing else than organized systems of plunder and +oppression. All, or nearly all, the advantage there is in fixing any +constitutional limits to the power of a government, is simply to give +notice to the government of the point at which it will meet with +resistance. If the people are then as good as their word, they may keep +the government within the bounds they have set for it; otherwise it will +disregard them--as is proved by the example of all our American +governments, in which the constitutions have all become obsolete, at the +moment of their adoption, for nearly or quite all purposes except the +appointment of officers, who at once become practically absolute, except +so far as they are restrained by the fear of popular resistance. + +The bounds set to the power of the government, by the trial by jury, as +will hereafter be shown, are these--that the government shall never +touch the property, person, or natural or civil rights of an individual, +against his consent, (except for the purpose of bringing them before a +jury for trial,) unless in pursuance and _execution_ of a judgment, or +decree, rendered by a jury in each individual case, upon such evidence, +and such law, as are satisfactory to their own understandings and +consciences, irrespective of all legislation of the government. + +[Footnote 1: To show that this supposition is not an extravagant one, it +may be mentioned that courts have repeatedly questioned jurors to +ascertain whether they were prejudiced _against the government_--that +is, whether they were in favor of, or opposed to, such laws of the +government as were to be put in issue in the then pending trial. This +was done (in 1851) in the United States District Court for the District +of Massachusetts, by Peleg Sprague, the United States district judge, in +empanelling three several juries for the trials of Scott, Hayden, and +Morris, charged with having aided in the rescue of a fugitive slave from +the custody of the United States deputy marshal. This judge caused the +following question to be propounded to all the jurors separately; and +those who answered unfavorably for the purposes of the government, were +excluded from the panel. + + "Do you hold any opinions upon the subject of the Fugitive Slave Law, + so called, which will induce you to refuse to convict a person + indicted under it, if the facts set forth in the indictment, _and + constituting the offence_, are proved against him, and the court + direct you that the law is constitutional?" + +The reason of this question was, that "the Fugitive Slave Law, so +called," was so obnoxious to a large portion of the people, as to render +a conviction under it hopeless, if the jurors were taken +indiscriminately from among the people. + +A similar question was soon afterwards propounded to the persons drawn +as jurors in the United States _Circuit_ Court for the District of +Massachusetts, by Benjamin R. Curtis one of the Justices of the Supreme +Court of the United States, in empanelling a jury for the trial of the +aforesaid Morris on the charge before mentioned; and those who did not +answer the question favorably for the government were again excluded +from the panel. + +It has also been an habitual practice with the Supreme Court of +Massachusetts, in empanelling juries for the trial of _capital_ +offences, to inquire of the persons drawn as jurors whether they had any +conscientious scruples against finding verdicts of guilty in such cases; +that is, whether they had any conscientious scruples against sustaining +the law prescribing death as the punishment of the crime to be tried; +and to exclude from the panel all who answered in the affirmative. + +The only principle upon which these questions are asked, is this--that +no man shall be allowed to serve as juror, unless he be ready to enforce +any enactment of the government, however cruel or tyrannical it may be. + +What is such a jury good for, as a protection against the tyranny of the +government? A jury like that is palpably nothing but a mere tool of +oppression in the hands of the government. A trial by such a jury is +really a trial by the government itself--and not a trial by the +country--because it is a trial only by men specially selected by the +government for their readiness to enforce its own tyrannical measures. + +If that be the true principle of the trial by jury, the trial is utterly +worthless as a security to liberty. The Czar might, with perfect safety +to his authority, introduce the trial by jury into Russia, if he could +but be permitted to select his jurors from those who were ready to +maintain his laws, without regard to their injustice. + +This example is sufficient to show that the very pith of the trial by +jury, as a safeguard to liberty, consists in the jurors being taken +indiscriminately from the whole people, and in their right to hold +invalid all laws which they think unjust.] + +[Footnote 2: The executive has a qualified veto upon the passage of +laws, in most of our governments, and an absolute veto, in all of them, +upon the execution of any laws which he deems unconstitutional; because +his oath to support the constitution (as he understands it) forbids him +to execute any law that he deems unconstitutional.] + +[Footnote 3: And if there be so much as a reasonable _doubt_ of the +justice of the laws, the benefit of that doubt must be given to the +defendant, and not to the government. So that the government must keep +its laws _clearly_ within the limits of justice, if it would ask a jury +to enforce them.] + +[Footnote 4: _Hallam_ says, "The relation established between a lord and +his vassal by the feudal tenure, far from containing principles of any +servile and implicit obedience, permitted the compact to be dissolved in +case of its violation by either party. This extended as much to the +sovereign as to inferior lords. * * If a vassal was aggrieved, and if +justice was denied him, he sent a defiance, that is, a renunciation of +fealty to the king, and was entitled to enforce redress at the point of +his sword. It then became a contest of strength as between two +independent potentates, and was terminated by treaty, advantageous or +otherwise, according to the fortune of war. * * There remained the +original principle, that allegiance depended conditionally upon good +treatment, and that an appeal might be _lawfully_ made to arms against +an oppressive government. Nor was this, we may be sure, left for extreme +necessity, or thought to require a long-enduring forbearance. In modern +times, a king, compelled by his subjects' swords to abandon any +pretension, would be supposed to have ceased to reign; and the express +recognition of such a right as that of insurrection has been justly +deemed inconsistent with the majesty of law. But ruder ages had ruder +sentiments. Force was necessary to repel force; and men accustomed to +see the king's authority defied by a private riot, were not much shocked +when it was resisted in defence of public freedom."--_3 Middle Ages_, +240-2.] diff --git a/chapters/02.markdown b/chapters/02.markdown new file mode 100644 index 0000000..c1ea0a0 --- /dev/null +++ b/chapters/02.markdown @@ -0,0 +1,1394 @@ +CHAPTER II. + +THE TRIAL BY JURY, AS DEFINED BY MAGNA CARTA. + + +That the trial by jury is all that has been claimed for it in the +preceding chapter, is proved both by the history and the language of the +Great Charter of English Liberties, to which we are to look for a true +definition of the trial by jury, and of which the guaranty for that +trial is the vital, and most memorable, part. + + +SECTION I. + +_The History of Magna Carta._ + +In order to judge of the object and meaning of that chapter of Magna +Carta which secures the trial by jury, it is to be borne in mind that, +at the time of Magna Carta, the king (with exceptions immaterial to this +discussion, but which will appear hereafter) was, constitutionally, the +entire government; the sole _legislative_, _judicial_, and executive +power of the nation. The executive and judicial officers were merely his +servants, appointed by him, and removable at his pleasure. In addition +to this, "the king himself often sat in his court, which always attended +his person. He there heard causes, and pronounced judgment; and though +he was assisted by the advice of other members, it is not to be imagined +that a decision could be obtained contrary to his inclination or +opinion."[5] Judges were in those days, and afterwards, such abject +servants of the king, that "we find that King Edward I. (1272 to 1307) +fined and imprisoned his judges, in the same manner as Alfred the Great, +among the Saxons, had done before him, by the sole exercise of his +authority."[6] + +Parliament, so far as there was a parliament, was a mere _council_ of +the king.[7] It assembled only at the pleasure of the king; sat only +during his pleasure; and when sitting had no power, so far as _general_ +legislation was concerned, beyond that of simply _advising_ the king. +The only legislation to which their assent was constitutionally +necessary, was demands for money and military services for +_extraordinary_ occasions. Even Magna Carta itself makes no provisions +whatever for any parliaments, except when the king should want means to +carry on war, or to meet some other _extraordinary_ necessity.[8] He had +no need of parliaments to raise taxes for the _ordinary_ purposes of +government; for his revenues from the rents of the crown lands and other +sources, were ample for all except extraordinary occasions. Parliaments, +too, when assembled, consisted only of bishops, barons, and other great +men of the kingdom, unless the king chose to invite others.[9] There was +no House of Commons at that time, and the people had no right to be +heard, unless as petitioners.[10] + +Even when laws were made at the time of a parliament, they were made in +the name of the king alone. Sometimes it was inserted in the laws, that +they were made with the _consent_ or _advice_ of the bishops, barons, +and others assembled; but often this was omitted. Their consent or +advice was evidently a matter of no legal importance to the enactment or +validity of the laws, but only inserted, when inserted at all, with a +view of obtaining a more willing submission to them on the part of the +people. The style of enactment generally was, either "_The King wills +and commands_," or some other form significant of the sole legislative +authority of the king. The king could pass laws at any time when it +pleased him. The presence of a parliament was wholly unnecessary. Hume +says, "It is asserted by Sir Harry Spelman, as an undoubted fact, that, +during the reigns of the Norman princes, every order of the king, issued +with the consent of his privy council, had the full force of law."[11] +And other authorities abundantly corroborate this assertion.[12] + +The king was, therefore, constitutionally the government; and the only +legal limitation upon his power seems to have been simply the _Common +Law_, usually called "_the law of the land_," which he was bound by oath +to maintain; (which oath had about the same practical value as similar +oaths have always had.) This "law of the land" seems not to have been +regarded at all by many of the kings, except so far as they found it +convenient to do so, or were constrained to observe it by the fear of +arousing resistance. But as all people are slow in making resistance, +oppression and usurpation often reached a great height; and, in the case +of John, they had become so intolerable as to enlist the nation almost +universally against him; and he was reduced to the necessity of +complying with any terms the barons saw fit to dictate to him. + +It was under these circumstances, that the Great Charter of English +Liberties was granted. The barons of England, sustained by the common +people, having their king in their power, compelled him, as the price of +his throne, to pledge himself that he would punish no freeman for a +violation of any of his laws, unless with the consent of the peers--that +is, the equals--of the accused. + +The question here arises, Whether the barons and people intended that +those peers (the jury) should be mere puppets in the hands of the king, +exercising no opinion of their own as to the intrinsic merits of the +accusations they should try, or the _justice_ of the laws they should be +called on to enforce? Whether those haughty and victorious barons, when +they had their tyrant king at their feet, gave back to him his throne, +with full power to enact any tyrannical laws he might please, reserving +only to a jury ("the country") the contemptible and servile privilege of +ascertaining, (under the dictation of the king, or his judges, as to the +laws of evidence), the simple _fact_ whether those laws had been +transgressed? Was this the only restraint, which, when they had all +power in their hands, they placed upon the tyranny of a king, whose +oppressions they had risen in arms to resist? Was it to obtain such a +charter as that, that the whole nation had united, as it were, like one +man, against their king? Was it on such a charter that they intended to +rely, for all future time, for the security of their liberties? No. They +were engaged in no such senseless work as that. On the contrary, when +they required him to renounce forever the power to punish any freeman, +unless by the consent of his peers, they intended those peers should +judge of, and try, the whole case on its merits, independently of all +arbitrary legislation, or judicial authority, on the part of the king. +In this way they took the liberties of each individual--and thus the +liberties of the whole people--entirely out of the hands of the king, +and out of the power of his laws, and placed them in the keeping of the +people themselves. And this it was that made the trial by jury the +palladium of their liberties. + +The trial by jury, be it observed, was the only real barrier interposed +by them against absolute despotism. Could this trial, then, have been +such an entire farce as it necessarily must have been, if the jury had +had no power to judge of the justice of the laws the people were +required to obey? Did it not rather imply that the jury were to judge +independently and fearlessly as to everything involved in the charge, +and especially as to its intrinsic justice, and thereon give their +decision, (unbiased by any legislation of the king,) whether the accused +might be punished? The reason of the thing, no less than the historical +celebrity of the events, as securing the liberties of the people, and +the veneration with which the trial by jury has continued to be +regarded, notwithstanding its essence and vitality have been almost +entirely extracted from it in practice, would settle the question, if +other evidences had left the matter in doubt. + +Besides, if his laws were to be authoritative with the jury, why should +John indignantly refuse, as at first he did, to grant the charter, (and +finally grant it only when brought to the last extremity,) on the ground +that it deprived him of all power, and left him only the name of a king? +_He_ evidently understood that the juries were to veto his laws, and +paralyze his power, at discretion, by forming their own opinions as to +the true character of the offences they were to try, and the laws they +were to be called on to enforce; and that "_the king wills and +commands_" was to have no weight with them contrary to their own +judgments of what was intrinsically right.[13] + +The barons and people having obtained by the charter all the liberties +they had demanded of the king, it was further provided by the charter +itself that twenty-five barons should be appointed by the barons, out of +their number, to keep special vigilance in the kingdom to see that the +charter was observed, with authority to make war upon the king in case +of its violation. The king also, by the charter, so far absolved all the +people of the kingdom from their allegiance to him, as to authorize and +require them to swear to obey the twenty-five barons, in case they +should make war upon the king for infringement of the charter. It was +then thought by the barons and people, that something substantial had +been done for the security of their liberties. + +This charter, in its most essential features, and without any abatement +as to the trial by jury, has since been confirmed more than thirty +times; and the people of England have always had a traditionary idea +that it was of some value as a guaranty against oppression. Yet that +idea has been an entire delusion, unless the jury have had the right to +judge of the justice of the laws they were called on to enforce. + + +SECTION II. + +_The Language of Magna Carta._ + +The language of the Great Charter establishes the same point that is +established by its history, viz., that it is the right and duty of the +jury to judge of the justice of the laws. + +The chapter guaranteeing the trial by jury is in these words: + + "Nullus liber homo capiatur, vel imprisonetur, aut disseisetur, aut + utlagetur, aut exuletur, aut aliquo modo destruatur; nec super eum + ibimus, nec super eum mittemus, nisi per legale judicium parium + suorum, vel per legem terræ."[14] + +The corresponding chapter in the Great Charter, granted by Henry III., +(1225,) and confirmed by Edward I., (1297,) (which charter is now +considered the basis of the English laws and constitution,) is in nearly +the same words, as follows: + + "Nullus liber homo capiatur, vel imprisonetur, aut disseisetur de + libero tenemento, vel libertatibus, vel liberis consuetudinibus suis, + aut utlagetur, aut exuletur, aut aliquo modo destruatur, nec super + eum ibimus, nec super eum mittemus, nisi per legale judicium parium + suorum, vel per legem terræ." + +The most common translation of these words, at the present day, is as +follows: + + "No freeman shall be arrested, or imprisoned, or deprived of his + freehold, or his liberties, or free customs, or outlawed, or exiled, + or in any manner destroyed, _nor will we (the king) pass upon him, + nor condemn him_, unless by the judgment of his peers, or the law of + the land." + + "_Nec super eum ibimus, nec super eum mittemus._" + +There has been much confusion and doubt as to the true meaning of the +words, "_nec super eum ibimus, nec super eum mittemus_." The more common +rendering has been, "_nor will we pass upon him, nor condemn him_." But +some have translated them to mean, "_nor will we pass upon him, nor +commit him to prison_." Coke gives still a different rendering, to the +effect that "No man shall be condemned at the king's suit, either before +the king in his bench, nor before any other commissioner or judge +whatsoever."[15] + +But all these translations are clearly erroneous. In the first place, +"_nor will we pass upon him_,"--meaning thereby to decide upon his guilt +or innocence _judicially_--is not a correct rendering of the words, +"_nec super eum ibimus_." There is nothing whatever, in these latter +words, that indicates _judicial_ action or opinion at all. The words, in +their common signification, describe _physical_ action alone. And the +true translation of them, as will hereafter be seen, is, _"nor will we +proceed against him," executively_. + +In the second place, the rendering, "_nor will we condemn him_," bears +little or no analogy to any common, or even uncommon, signification of +the words "_nec super eum mittemus_." There is nothing in these latter +words that indicates _judicial_ action or decision. Their common +signification, like that of the words _nec super eum ibimus_, describes +_physical_ action alone. "_Nor will we send upon (or against) him_," +would be the most obvious translation, and, as we shall hereafter see, +such is the true translation. + +But although these words describe _physical_ action, on the part of the +king, as distinguished from judicial, they nevertheless do not mean, as +one of the translations has it, "_nor will we commit him to prison_;" +for that would be a mere repetition of what had been already declared by +the words "_nec imprisonetur_." Besides, there is nothing about prisons +in the words "_nec super eum mittemus_;" nothing about sending _him_ +anywhere; but only about sending (something or somebody) _upon_ him, or +_against_ him--that is, _executively_. + +Coke's rendering is, if possible, the most absurd and gratuitous of all. +What is there in the words, "_nec super eum mittemus_" that can be made +to mean "_nor shall he be condemned before any other commissioner or +judge whatsoever_?" Clearly there is nothing. The whole rendering is a +sheer fabrication. And the whole object of it is to give color for the +exercise of a _judicial_ power, by the king, or his judges, which is +nowhere given them. + +Neither the words, "_nec super eum ibimus, nec super eum mittemus_," nor +any other words in the whole chapter, authorize, provide for, describe, +or suggest, any _judicial_ action whatever, on the part either of the +king, or of his judges, or of anybody, _except the peers, or jury_. +There is nothing about the king's _judges_ at all. And there is nothing +whatever, in the whole chapter, _so far as relates to the action of the +king_, that describes or suggests anything but _executive_ action.[16] + +But that all these translations are certainly erroneous, is proved by a +temporary charter, granted by John a short time previous to the Great +Charter, for the purpose of giving an opportunity for conference, +arbitration, and reconciliation between him and his barons. It was to +have force until the matters in controversy between them could be +submitted to the Pope, and to other persons to be chosen, some by the +king, and some by the barons. The words of the charter are as follows: + +"Sciatis nos concessisse baronibus nostris qui contra nos sunt quod nec +eos nec homines suos capiemus, nec disseisiemus _nec super eos per vim +vel per arma ibimus_ nisi per legem regni nostri vel per judicium parium +suorum in curia nostra donec consideratio facta fuerit," &c., &c. + +That is, "Know that we have granted to our barons who are opposed to us, +that we will neither arrest them nor their men, nor disseize them, _nor +will we proceed against them by force or by arms_, unless by the law of +our kingdom, or by the judgment of their peers in our court, until +consideration shall be had," &c., &c. + +A copy of this charter is given in a note in Blackstone's Introduction +to the Charters.[17] + +Mr. Christian speaks of this charter as settling the true meaning of the +corresponding clause of Magna Carta, on the principle that laws and +charters on the same subject are to be construed with reference to each +other. See _3 Christian's Blackstone_, 41, _note_. + +The true meaning of the words, _nec super eum ibimus, nec super eum +mittemus_, is also proved by the "_Articles of the Great Charter of +Liberties_," demanded of the king by the barons, and agreed to by the +king, under seal, a few days before the date of the Charter, and from +which the Charter was framed.[18] Here the words used are these: + + "Ne corpus liberi hominis capiatur nec imprisonetur nec disseisetur + nec utlagetur nec exuletur nec aliquo modo destruatur _nec rex eat + vel mittat super eum vi_ nisi per judicium parium suorum vel per + legem terræ." + + That is, "The body of a freeman shall not be arrested, nor + imprisoned, nor disseized, nor outlawed, nor exiled, nor in any + manner destroyed, _nor shall the king proceed or send (any one) + against him_ WITH FORCE, unless by the judgment of his peers, or the + law of the land." + +The true translation of the words _nec super eum ibimus, nec super eum +mittemus_, in Magna Carta, is thus made certain, as follows, "_nor will +we (the king) proceed against him, nor send (any one) against him_ WITH +FORCE OR ARMS."[19] + +It is evident that the difference between the true and false +translations of the words, _nec super eum ibimus, nec super eum +mittemus_, is of the highest legal importance, inasmuch as the true +translation, _nor will we (the king) proceed against him, nor send (any +one) against him by force or arms_, represents the king only in an +_executive_ character, _carrying the judgment of the peers and "the law +of the land" into execution_; whereas the false translation, _nor will +we pass upon him, nor condemn him_, gives color for the exercise of a +_judicial_ power, on the part of the king, to which the king had no +right, but which, according to the true translation, belongs wholly to +the jury. + + "_Per legale judicium parium suorum._" + +The foregoing interpretation is corroborated, (if it were not already +too plain to be susceptible of corroboration,) by the true +interpretation of the phrase "_per legale judicium parium suorum_." + +In giving this interpretation, I leave out, for the present, the word +_legale_, which will be defined afterwards. + +The true meaning of the phrase, _per judicium parium suorum_, is, +_according to the sentence of his peers_. The word _judicium, judgment_, +has a technical meaning in the law, signifying the decree rendered in +the decision of a cause. In civil suits this decision is called a +_judgment_; in chancery proceedings it is called a _decree_; in criminal +actions it is called a _sentence_, or _judgment_, indifferently. Thus, +in a criminal suit, "a motion in arrest of _judgment_" means a motion in +arrest of _sentence_.[20] + +In cases of sentence, therefore, in criminal suits, the words _sentence_ +and _judgment_ are synonymous terms. They are, to this day, commonly +used in law books as synonymous terms. And the phrase _per judicium +parium suorum_, therefore, implies that the jury are to fix the +sentence. + +The word _per_ means _according to_. Otherwise there is no sense in the +phrase _per judicium parium suorum_. There would be no sense in saying +that a king might imprison, disseize, outlaw, exile, or otherwise punish +a man, or proceed against him, or send any one against him, _by force or +arms, by_ a judgment of his peers; but there is sense in saying that the +king may imprison, disseize, and punish a man, or proceed against him, +or send any one against him, by force or arms, _according to_ a +judgment, or _sentence_, of his peers; because in that case the king +would be merely carrying the sentence or judgment of the peers into +execution. + +The word _per_, in the phrase "_per_ judicium parium suorum," of course +means precisely what it does in the next phrase, "_per_ legem terræ;" +where it obviously means _according to_, and not _by_, as it is usually +translated. There would be no sense in saying that the king might +proceed against a man by force or arms, _by_ the law of the land; but +there is sense in saying that he may proceed against him, by force or +arms, _according to_ the law of the land; because the king would then be +acting only as an executive officer, carrying the law of the land into +execution. Indeed, the true meaning of the word _by_, as used in similar +cases now, always is _according to_; as, for example, when we say a +thing was done by the government, or by the executive, _by law_, we mean +only that it was done by them _according to law_; that is, that they +merely executed the law. + +Or, if we say that the word _by_ signifies _by authority of_, the result +will still be the same; for nothing can be done _by authority of_ law, +except what the law itself authorizes or directs to be done; that is, +nothing can be done by authority of law, except simply to carry the law +itself into execution. So nothing could be done _by authority of_ the +sentence of the peers, or _by authority of_ "the law of the land," +except what the sentence of the peers, or the law of the land, +themselves authorized or directed to be done; nothing, in short, but to +carry the sentence of the peers, or the law of the land, themselves into +execution. + +Doing a thing _by_ law, or _according to_ law, is only carrying the law +into execution. And punishing a man _by_, or _according to_, the +sentence or judgment of his peers, is only carrying that sentence or +judgment into execution. + +If these reasons could leave any doubt that the word _per_ is to be +translated _according to_, that doubt would be removed by the terms of +an antecedent guaranty for the trial by jury, granted by the Emperor +Conrad, of Germany,[21] two hundred years before Magna Carta. Blackstone +cites it as follows:--(_3 Blackstone_, 350.) + +"Nemo beneficium suum perdat, nisi _secundum_ consuetudinem antecessorum +nostrorum, et judicium parium suorum." That is, No one shall lose his +estate,[22] unless _according to_ ("_secundum_") the custom (or law) of +our ancestors, and (_according to_) the sentence (or judgment) of his +peers. + +The evidence is therefore conclusive that the phrase _per judicium +parium suorum_ means _according to the sentence of his peers_; thus +implying that the jury, and not the government, are to fix the sentence. + +If any additional proof were wanted that juries were to fix the +sentence, it would be found in the following provisions of Magna Carta, +viz.: + + "A freeman shall not be amerced for a small crime, (_delicto_,) but + according to the degree of the crime; and for a great crime in + proportion to the magnitude of it, saving to him his + _contenement_;[23] and after the same manner a merchant, saving to + him his merchandise. And a villein shall be amerced after the same + manner, saving to him his waynage,[24] if he fall under our mercy; + _and none of the aforesaid amercements shall be imposed, (or + assessed, ponatur,) but by the oath of honest men of the + neighborhood. Earls and Barons shall not be amerced but by their + peers_, and according to the degree of their crime."[25] + +Pecuniary punishments were the most common punishments at that day, and +the foregoing provisions of Magna Carta show that the amount of those +punishments was to be fixed by the jury. + +Fines went to the king, and were a source of revenue; and if the amounts +of the fines had been left to be fixed by the king, he would have had a +pecuniary temptation to impose unreasonable and oppressive ones. So, +also, in regard to other punishments than fines. If it were left to the +king to fix the punishment, he might often have motives to inflict cruel +and oppressive ones. As it was the object of the trial by jury to +protect the people against all possible oppression from the king, it was +necessary that the jury, and not the king, should fix the +punishments.[26] + +"_Legale._" + +The word "_legale_," in the phrase "_per legale judicium parium +suorum_," doubtless means two things. 1. That the sentence must be given +in a legal manner; that is, by the legal number of jurors, legally +empanelled and sworn to try the cause; and that they give their judgment +or sentence after a legal trial, both in form and substance, has been +had. 2. That the sentence shall be for a legal cause or offence. If, +therefore, a jury should convict and sentence a man, either without +giving him a legal trial, or for an act that was not really and legally +criminal, the sentence itself would not be legal; and consequently this +clause forbids the king to carry such a sentence into execution; for the +clause guarantees that he will execute no judgment or sentence, except +it be _legale judicium_, a legal sentence. Whether a sentence be a legal +one, would have to be ascertained by the king or his judges, on appeal, +or might be judged of informally by the king himself. + +The word "_legale_" clearly did not mean that the _judicium parium +suorum_ (judgment of his peers) should be a sentence which any law (of +the king) should _require_ the peers to pronounce; for in that case the +sentence would not be the sentence of the peers, but only the sentence +of the law, (that is, of the king); and the peers would be only a +mouthpiece of the law, (that is, of the king,) in uttering it. + + "_Per legem terræ._" + +One other phrase remains to be explained, viz., "_per legem terræ_," +"_by the law of the land_." + +All writers agree that this means the _common law_. Thus, Sir Matthew +Hale says: + + "The common law is sometimes called, by way of eminence, _lex terræ_, + as in the statute of _Magna Carta_, chap. 29, where certainly the + common law is principally intended by those words, _aut per legem + terræ_; as appears by the exposition thereof in several subsequent + statutes; and particularly in the statute of 28 Edward III., chap. 3, + which is but an exposition and explanation of that statute. Sometimes + it is called _lex Angliæ_, as in the statute of Merton, cap. 9, + "_Nolumus leges Angliæ mutari_," &c., (We will that the laws of + England be not changed). Sometimes it is called _lex et consuetudo + regni_ (the law and custom of the kingdom); as in all commissions of + oyer and terminer; and in the statutes of 18 Edward I., cap.--, and + _de quo warranto_, and divers others. But most commonly it is called + the Common Law, or the Common Law of England; as in the statute + _Articuli super Chartas_, cap. 15, in the statute 25 Edward III., + cap. 5, (4,) and infinite more records and statutes."--1 _Hale's + History of the Common Law_, 128. + +This common law, or "law of the land," _the king was sworn to maintain_. +This fact is recognized by a statute made at Westminster, in 1346, by +Edward III., which commences in this manner: + + "Edward, by the Grace of God, &c., &c., to the Sheriff of Stafford, + Greeting: Because that by divers complaints made to us, we have + perceived that _the law of the land, which we by oath are bound to + maintain_," &c.--_St. 20 Edward III._ + +The foregoing authorities are cited to show to the unprofessional +reader, what is well known to the profession, that _legem terræ, the law +of the land_, mentioned in Magna Carta, was the common, ancient, +fundamental law of the land, which the kings were bound by oath to +observe; _and that it did not include any statutes or laws enacted by +the king himself, the legislative power of the nation_. + +If the term _legem terræ_ had included laws enacted by the king himself, +the whole chapter of Magna Carta, now under discussion, would have +amounted to nothing as a protection to liberty; because it would have +imposed no restraint whatever upon the power of the king. The king could +make laws at any time, and such ones as he pleased. He could, therefore, +have done anything he pleased, _by the law of the land_, as well as in +any other way, if his own laws had been "_the law of the land_." If his +own laws had been "the law of the land," within the meaning of that term +as used in Magna Carta, this chapter of Magna Carta would have been +sheer nonsense, inasmuch as the whole purport of it would have been +simply that "no man shall be arrested, imprisoned, or deprived of his +freehold, or his liberties, or free customs, or outlawed, or exiled, or +in any manner destroyed (by the king); nor shall the king proceed +against him, nor send any one against him with force and arms, unless by +the judgment of his peers, _or unless the king shall please to do so_." + +This chapter of Magna Carta would, therefore, have imposed not the +slightest restraint upon the power of the king, or afforded the +slightest protection to the liberties of the people, if the laws of the +king had been embraced in the term _legem terræ_. But if _legem terræ_ +was the common law, which the king was sworn to maintain, then a real +restriction was laid upon his power, and a real guaranty given to the +people for their liberties. + +Such, then, being the meaning of _legem terræ_, the fact is established +that Magna Carta took an accused person entirely out of the hands of the +legislative power, that is, of the king; and placed him in the power and +under the protection of his peers, and the common law alone; that, in +short, Magna Carta suffered no man to be punished for violating any +enactment of the legislative power, unless the peers or equals of the +accused freely consented to it, or the common law authorized it; that +the legislative power, _of itself_, was wholly incompetent to _require_ +the conviction or punishment of a man for any offence whatever. + +_Whether Magna Carta allowed of any other trial than by jury._ + +The question here arises, whether "_legem terræ_" did not allow of some +other mode of trial than that by jury. + +The answer is, that, at the time of Magna Carta, it is not probable, +(for the reasons given in the note,) that _legem terræ_ authorized, in +criminal cases, any other trial than the trial by jury; but, if it did, +it certainly authorized none but the trial by battle, the trial by +ordeal, and the trial by compurgators. These were the only modes of +trial, except by jury, that had been known in England, in criminal +cases, for some centuries previous to Magna Carta. All of them had +become nearly extinct at the time of Magna Carta, and it is not probable +that they were included in "_legem terræ_" as that term is used in that +instrument. But if they were included in it, they have now been long +obsolete, and were such as neither this nor any future age will ever +return to.[27] For all practical purposes of the present day, +therefore, it may be asserted that Magna Carta allows no trial whatever +but trial by jury. + +_Whether Magna Carta allowed sentence to be fixed otherwise than by the +jury._ + +Still another question arises on the words _legem terræ_, viz., whether, +in cases where the question of guilt was determined by the jury, the +amount of _punishment_ may not have been fixed by _legem terræ_, the +Common Law, instead of its being fixed by the jury. + +I think we have no evidence whatever that, at the time of Magna Carta, +or indeed at any other time, _lex terræ_, the common law, fixed the +punishment in cases where the question of guilt was tried by a jury; or, +indeed, that it did in any other case. Doubtless certain punishments +were common and usual for certain offences; but I do not think it can be +shown that the _common law_, the _lex terræ_, which the king was sworn +to maintain, required any one specific punishment, or any precise amount +of punishment, for any one specific offence. If such a thing be claimed, +it must be shown, for it cannot be presumed. In fact, the contrary must +be presumed, because, in the nature of things, the amount of punishment +proper to be inflicted in any particular case, is a matter requiring the +exercise of discretion at the time, in order to adapt it to the moral +quality of the offence, which is different in each case, varying with +the mental and moral constitutions of the offenders, and the +circumstances of temptation or provocation. And Magna Carta recognizes +this principle distinctly, as has before been shown, in providing that +freemen, merchants, and villeins, "shall not be amerced for a small +crime, but according to the degree of the crime; and for a great crime +in proportion to the magnitude of it;" and that "none of the aforesaid +amercements shall be imposed (or assessed) but by the oaths of honest +men of the neighborhood;" and that "earls and barons shall not be +amerced but by their peers, and according to the quality of the +offence." + +All this implies that the moral quality of the offence was to be judged +of at the trial, and that the punishment was to be fixed by the +discretion of the peers, or jury, and not by any such unvarying rule as +a common law rule would be. + +I think, therefore, it must be conceded that, in all cases, tried by a +jury, Magna Carta intended that the punishment should be fixed by the +jury, and not by the common law, for these several reasons. + +1. It is uncertain whether the _common law_ fixed the punishment of any +offence whatever. + +2. The words "_per judicium parium suorum_," _according to the sentence +of his peers_, imply that the jury fixed the sentence in _some_ cases +tried by them; and if they fixed the sentence in some cases, it must be +presumed they did in all, unless the contrary be clearly shown. + +3. The express provisions of Magna Carta, before adverted to, that no +amercements, or fines, should be imposed upon freemen, merchants, or +villeins, "but by the oath of honest men of the neighborhood," and +"according to the degree of the crime," and that "earls and barons +should not be amerced but by their peers, and according to the quality +of the offence," _proves_ that, at least, there was no common law fixing +the amount of _fines_, or, if there were, that it was to be no longer in +force. And if there was no common law fixing the amount of _fines_, or +if it was to be no longer in force, it is reasonable to infer, (in the +absence of all evidence to the contrary,) either that the common law did +not fix the amount of any other punishment, or that it was to be no +longer in force for that purpose.[28] + +Under the Saxon laws, fines, payable to the injured party, seem to have +been the common punishments for all offences. Even murder was punishable +by a fine payable to the relatives of the deceased. The murder of the +king even was punishable by fine. When a criminal was unable to pay his +fine, his relatives often paid it for him. But if it were not paid, he +was put out of the protection of the law, and the injured parties, (or, +in the case of murder, the kindred of the deceased,) were allowed to +inflict such punishment as they pleased. And if the relatives of the +criminal protected him, it was lawful to take vengeance on them also. +Afterwards the custom grew up of exacting fines also to the king as a +punishment for offences.[29] And this latter was, doubtless, the usual +punishment at the time of Magna Carta, as is evidenced by the fact that +for many years immediately following Magna Carta, nearly or quite all +statutes that prescribed any punishment at all, prescribed that the +offender should "be grievously amerced," or "pay a great fine to the +king," or a "grievous ransom,"--with the alternative in some cases +(perhaps _understood_ in all) of imprisonment, banishment, or outlawry, +in case of non-payment.[30] + +Judging, therefore, from the special provisions in Magna Carta, +requiring _fines_, or amercements, to be imposed only by juries, +(without mentioning any other punishments;) judging, also, from the +statutes which immediately followed Magna Carta, it is probable that the +Saxon custom of punishing all, or nearly all, offences by _fines_, (with +the alternative to the criminal of being imprisoned, banished, or +outlawed, and exposed to private vengeance, in case of non-payment,) +continued until the time of Magna Carta; and that in providing expressly +that _fines_ should be fixed by the juries, Magna Carta provided for +nearly or quite all the punishments that were expected to be inflicted; +that if there were to be any others, they were to be fixed by the +juries; and consequently that nothing was left to be fixed by "_legem +terræ_." + +But whether the common law fixed the punishment of any offences, or not, +is a matter of little or no practical importance at this day; because we +have no idea of going back to any common law punishments of six hundred +years ago, if, indeed, there were any such at that time. It is enough +for us to know--_and this is what it is material for us to know_--that +the jury fixed the punishments, in all cases, unless they were fixed by +the _common law_; that Magna Carta allowed no punishments to be +prescribed by statute--that is, by the legislative power--nor in any +other manner by the king, or his judges, in any case whatever; and, +consequently, that all statutes prescribing particular punishments for +particular offences, or giving the king's judges any authority to fix +punishments, were void. + +If the power to fix punishments had been left in the hands of the king, +it would have given him a power of oppression, which was liable to be +greatly abused; which there was no occasion to leave with him; and which +would have been incongruous with the whole object of this chapter of +Magna Carta; which object was to take all discretionary or arbitrary +power over individuals entirely out of the hands of the king, and his +laws, and entrust it only to the common law, and the peers, or +jury--that is, the people. + +_What lex terræ did authorize._ + +But here the question arises, What then did "_legem terræ_" authorize +the king, (that is, the government,) to do in the case of an accused +person, if it neither authorized any other trial than that by jury, nor +any other punishments than those fixed by juries? + +The answer is, that, owing to the darkness of history on the point, it +is probably wholly impossible, at this day, to state, _with any +certainty or precision_, anything whatever that the _legem terræ_ of +Magna Carta did authorize the king, (that is, the government,) to do, +(if, indeed, it authorized him to do anything,) in the case of +criminals, _other than to have them tried and sentenced by their peers, +for common law crimes_; and to carry that sentence into execution. + +The trial by jury was a part of _legem terræ_, and we have the means of +knowing what the trial by jury was. The fact that the jury were to fix +the sentence, implies that they were to _try_ the accused; otherwise +they could not know what sentence, or whether any sentence, ought to be +inflicted upon him. Hence it follows that the jury were to judge of +everything involved in the trial; that is, they were to judge of the +nature of the offence, of the admissibility and weight of testimony, and +of everything else whatsoever that was of the essence of the trial. If +anything whatever could be dictated to them, either of law or evidence, +the sentence would not be theirs, but would be dictated to them by the +power that dictated to them the law or evidence. The trial and sentence, +then, were wholly in the hands of the jury. + +We also have sufficient evidence of the nature of the oath administered +to jurors in criminal cases. It was simply, that _they would neither +convict the innocent, nor acquit the guilty_. This was the oath in the +Saxon times, and probably continued to be until Magna Carta. + +We also know that, in case of _conviction_, the sentence of the jury was +not necessarily final; that the accused had the right of appeal to the +king and his judges, and to demand either a new trial, or an acquittal, +if the trial or conviction had been against law. + +So much, therefore, of the _legem terræ_ of Magna Carta, we know with +reasonable certainty. + +We also know that Magna Carta provides that "No bailiff (_balivus_) +shall hereafter put any man to his law, (put him on trial,) on his +single testimony, without credible witnesses brought to support it." +Coke thinks "that under this word _balivus_, in this act, is +comprehended every justice, minister of the king, steward of the king, +steward and bailiff." (2 Inst. 44.) And in support of this idea he +quotes from a very ancient law book, called the Mirror of Justices, +written in the time of Edward I., within a century after Magna Carta. +But whether this were really a common law principle, or whether the +provision grew out of that jealousy of the government which, at the time +of Magna Carta, had reached its height, cannot perhaps now be +determined. + +We also know that, by Magna Carta, amercements, or fines, could not be +imposed to the ruin of the criminal; that, in the case of a freeman, his +_contenement_, or means of subsisting in the condition of a freeman, +must be saved to him; that, in the case of a merchant, his merchandise +must be spared; and in the case of a villein, his _waynage_, or +plough-tackle and carts. This also is likely to have been a principle of +the common law, inasmuch as, in that rude age, when the means of getting +employment as laborers were not what they are now, the man and his +family would probably have been liable to starvation, if these means of +subsistence had been taken from him. + +We also know, _generally_, that, at the time of Magna Carta, _all acts +intrinsically criminal_, all trespasses against persons and property, +were crimes, according to _lex terræ_, or the common law. + +Beyond the points now given, we hardly know anything, probably nothing +_with certainty_, as to what the "_legem terræ_" of _Magna Carta_ did +authorize, in regard to crimes. There is hardly anything extant that can +give us any real light on the subject. + +It would seem, however, that there were, even at that day, some common +law principles governing arrests; and some common law forms and rules as +to holding a man for trial, (by bail or imprisonment;) putting him on +trial, such as by indictment or complaint; summoning and empanelling +jurors, &c., &c. Whatever these common law principles were, Magna Carta +requires them to be observed; for Magna Carta provides for the whole +proceedings, commencing with the arrest, ("no freeman shall be +_arrested_," &c.,) and ending with the execution of the sentence. And it +provides that nothing shall be done, by the government, from beginning +to end, unless according to the sentence of the peers, or "_legem +terræ_," the common law. The trial by peers was a part of _legem terræ_, +and we have seen that the peers must necessarily have governed the whole +proceedings at the trial. But all the proceedings for arresting the man, +and bringing him to trial, must have been had before the case could come +under the cognizance of the peers, and they must, therefore, have been +governed by other rules than the discretion of the peers. We may +_conjecture_, although we cannot perhaps know with much certainty, that +the _lex terræ_, or common law, governing these other proceedings, was +somewhat similar to the common law principles, on the same points, at +the present day. Such seem to be the opinions of Coke, who says that the +phrase _nisi per legem terræ_ means _unless by due process of law_. + +Thus, he says: + +"_Nisi per legem terræ. But by the law of the land._ For the true sense +and exposition of these words, see the statute of 37 Edw. III., cap. 8, +where the words, _by the law of the land_, are rendered _without due +process of law_; for there it is said, though it be contained in the +Great Charter, that no man be taken, imprisoned, or put out of his +freehold, _without process of the law; that is, by indictment or +presentment of good and lawful men, where such deeds be done in due +manner, or by writ original of the common law_. + +"Without being brought in to answer but by due process of the common +law. + +"No man be put to answer without presentment before justices, or thing +of record, or by due process, or by writ original, _according to the old +law of the land_."--_2 Inst._ 50. + +The foregoing interpretations of the words _nisi per legem terræ_ are +corroborated by the following statutes, enacted in the next century +after Magna Carta. + +"That no man, from henceforth, shall be attached by any accusation, nor +forejudged of life or limb, nor his land, tenements, goods, nor +chattels, seized into the king's hands, against the form of the Great +Charter, _and the law of the land_."--_St. 5 Edward III., Ch._ 9. +(1331.) + +"Whereas it is contained in the Great Charter of the franchises of +England, that none shall be imprisoned, nor put out of his freehold, nor +of his franchises, nor free customs, _unless it be by the law of the +land_; it is accorded, assented, and established, that from henceforth +none shall be taken by petition, or suggestion made to our lord the +king, or to his council, _unless it be by indictment or presentment of +good and lawful people of the same neighborhood where such deeds be done +in due manner, or by process made by writ original at the common law_; +nor that none be put out of his franchises, nor of his freehold, _unless +he be duly brought into answer, and forejudged of the same by the course +of the law_; and if anything be done against the same, it shall be +redressed and holden for none."--_St. 25 Edward III., Ch._ 4. (1350.) + +"That no man, of what estate or condition that he be, shall be put out +of land or tenement, nor taken, nor imprisoned, nor disinherited, nor +put to death, without being brought in answer _by due process of +law_."--_St. 28 Edward III., Ch._ 3. (1354.) + +"That no man be put to answer without presentment before justices, or +matter of record, or by due process and writ original, according to the +_old law of the land_. And if anything from henceforth be done to the +contrary, it shall be void in law, and holden for error."--_St. 42 +Edward III., Ch._ 3. (1368.) + +The foregoing interpretation of the words _nisi per legem terræ_--that +is, _by due process of law_--including indictment, &c., has been adopted +as the true one by modern writers and courts; as, for example, by Kent, +(2 _Comm._ 13,) Story, (3 _Comm._ 661,) and the Supreme Court of New +York, (19 _Wendell_, 676; 4 _Hill_, 146.) + +The fifth amendment to the constitution of the United States seems to +have been framed on the same idea, inasmuch as it provides that "no +person shall be deprived of life, liberty, or property, _without due +process of law_."[31] + +_Whether the word_ VEL _should be rendered by_ OR, _or by_ AND. + +Having thus given the meanings, or rather the applications, which the +words _vel per legem terræ_ will reasonably, and perhaps must +necessarily, bear, it is proper to suggest, that it has been supposed by +some that the word _vel_, instead of being rendered by _or_, as it +usually is, ought to be rendered by _and_, inasmuch as the word _vel_ is +often used for _et_, and the whole phrase _nisi per judicium parium +suorum, vel per legem terræ_, (which would then read, unless by the +sentence of his peers, _and_ the law of the land,) would convey a more +intelligible and harmonious meaning than it otherwise does. + +Blackstone suggests that this may be the true reading. (_Charters_, p. +41.) Also Mr. Hallam, who says: + + "Nisi per legale judicium parium suorum, _vel_ per legem terræ. + Several explanations have been offered of the alternative clause; + which some have referred to judgment by default, or demurrer; others + to the process of attachment for contempt. Certainly there are many + legal procedures besides trial by jury, through which a party's goods + or person may be taken. But one may doubt whether these were in + contemplation of the framers of Magna Carta. In an entry of the + Charter of 1217 by a contemporary hand, preserved in the Town-clerk's + office in London, called Liber Custumarum et Regum antiquarum, a + various reading, _et_ per legem terræ, occurs. _Blackstone's + Charters_, p. 42 (41.) And the word _vel_ is so frequently used for + _et_, that I am not wholly free from a suspicion that it was so + intended in this place. The meaning will be, that no person shall be + disseized, &c., except upon a lawful cause of action, found by the + verdict of a jury. This really seems as good as any of the + disjunctive interpretations; but I do not offer it with much + confidence."--2 _Hallam's Middle Ages, Ch._ 8, _Part_ 2, p. 449, + _note_.[32] + +The idea that the word _vel_ should be rendered by _and_, is +corroborated, if not absolutely confirmed, by the following passage in +Blackstone, which has before been cited. Speaking of the trial by jury, +as established by Magna Carta, he calls it, + + "A privilege which is couched in almost the same words with that of + the Emperor Conrad two hundred years before: 'nemo beneficium suum + perdat, nisi secundum consuetudinem antecessorum nostrorum, _et_ + judicium parium suorum.'" (No one shall lose his estate unless + according to the custom of our ancestors, and the judgment of his + peers.)--_3 Blackstone_, 350. + +If the word _vel_ be rendered by _and_, (as I think it must be, at least +in some cases,) this chapter of Magna Carta will then read that no +freeman shall be arrested or punished, "unless according to the sentence +of his peers, _and_ the law of the land." + +The difference between this reading and the other is important. In the +one case, there would be, at first view, some color of ground for saying +that a man might be punished in either of two ways, viz., according to +the sentence of his peers, _or_ according to the law of the land. In the +other case, it requires both the sentence of his peers _and_ the law of +the land (common law) to authorize his punishment. + +If this latter reading be adopted, the provision would seem to exclude +all trials except trial by jury, and all causes of action except those +of the _common law_. + +But I apprehend the word vel must be rendered both by _and_, and by +_or_; that in cases of a _judgment_, it should be rendered by _and_, so +as to require the concurrence both of "the judgment of the peers _and_ +the law of the land," to authorize the king to make execution upon a +party's goods or person; but that in cases of arrest and imprisonment, +simply for the purpose of bringing a man to trial, _vel_ should be +rendered by or, because there can have been no judgment of a jury in +such a case, and "the law of the land" must therefore necessarily be the +only guide to, and restraint upon, the king. If this guide and restraint +were taken away, the king would be invested with an arbitrary and most +dangerous power in making arrests, and confining in prison, under +pretence of an intention to bring to trial. + +Having thus examined the language of this chapter of Magna Carta, so far +as it relates to criminal cases, its legal import may be stated as +follows, viz.: + +No freeman shall be arrested, or imprisoned, or deprived of his +freehold, or his liberties, or free customs, or be outlawed, or exiled, +or in any manner destroyed, (harmed,) nor will we (the king) proceed +against him, nor send any one against him, by force or arms, unless +according to (that is, in execution of) the sentence of his peers, _and_ +(or _or_, as the case may require) the Common Law of England, (as it was +at the time of Magna Carta, in 1215.) + +[Footnote 5: 1 Hume, Appendix 2.] + +[Footnote 6: Crabbe's History of the English Law, 236.] + +[Footnote 7: Coke says, "The king of England is armed with divers +councils, one whereof is called _commune concilium_, (the common +council,) and that is the court of parliament, and so it is _legally_ +called in writs and judicial proceedings _commune concilium regni +Angliæ_, (the common council of the kingdom of England.) And another is +called _magnum concilium_, (great council;) this is sometimes applied to +the upper house of parliament, and sometimes, out of parliament time, to +the peers of the realm, lords of parliament, who are called _magnum +concilium regis_, (the great council of the king;) * * Thirdly, (as +every man knoweth,) the king hath a privy council for matters of state. +* * The fourth council of the king are his judges for law matters." + +_1 Coke's Institutes, 110 a._] + +[Footnote 8: The Great Charter of Henry III., (1216 and 1225,) confirmed +by Edward I., (1297,) makes no provision whatever for, or mention of, a +parliament, unless the provision, (Ch. 37,) that "Escuage, (a military +contribution,) from henceforth shall be taken like as it was wont to be +in the time of King Henry our grandfather," mean that a parliament shall +be summoned for that purpose.] + +[Footnote 9: The Magna Carta of John, (Ch. 17 and 18,) defines those who +were entitled to be summoned to parliament, to wit, "The Archbishops, +Bishops, Abbots, Earls, and Great Barons of the Realm, * * and all +others who hold of us _in chief_." Those who held land of the king _in +chief_ included none below the rank of knights.] + +[Footnote 10: The parliaments of that time were, doubtless, such as +Carlyle describes them, when he says, "The parliament was at first a +most simple assemblage, quite cognate to the situation; that Red +William, or whoever had taken on him the terrible task of being King of +England, was wont to invite, oftenest about Christmas time, his +subordinate Kinglets, Barons as he called them, to give him the pleasure +of their company for a week or two; there, in earnest conference all +morning, in freer talk over Christmas cheer all evening, in some big +royal hall of Westminster, Winchester, or wherever it might be, with log +fires, huge rounds of roast and boiled, not lacking malmsey and other +generous liquor, they took counsel concerning the arduous matters of the +kingdom."] + +[Footnote 11: Hume, Appendix 2.] + +[Footnote 12: This point will be more fully established hereafter.] + +[Footnote 13: It is plain that the king and all his partisans looked +upon the charter as utterly prostrating the king's legislative supremacy +before the discretion of juries. When the schedule of liberties demanded +by the barons was shown to him, (of which the trial by jury was the most +important, because it was the only one that protected all the rest,) +"the king, falling into a violent passion, asked, _Why the barons did +not with these exactions demand his kingdom?_ * * _and with a solemn +oath protested, that he would never grant such liberties as would make +himself a slave_." * * But afterwards, "seeing himself deserted, and +fearing they would seize his castles, he sent the Earl of Pembroke and +other faithful messengers to them, to let them know _he would grant them +the laws and liberties they desired_." * * But after the charter had +been granted, "the king's mercenary soldiers, desiring war more than +peace, were by their leaders continually whispering in his ears, _that +he was now no longer king, but the scorn of other princes; and that it +was more eligible to be no king, than such a one as he_." * * He applied +"to the Pope, that he might by his apostolic authority make void what +the barons had done. * * At Rome he met with what success he could +desire, where all the transactions with the barons were fully +represented to the Pope, and the Charter of Liberties shown to him, in +writing; which, when he had carefully perused, he, with a furious look, +cried out, _What! Do the barons of England endeavor to dethrone a king, +who has taken upon him the Holy Cross, and is under the protection of +the Apostolic See; and would they force him to transfer the dominions of +the Roman Church to others? By St. Peter, this injury must not pass +unpunished._ Then debating the matter with the cardinals, he, by a +definitive sentence, damned and cassated forever the Charter of +Liberties, and sent the king a bull containing that sentence at +large."--_Echard's History of England_, p. 106-7. + +These things show that the nature and effect of the charter were well +understood by the king and his friends; that they all agreed that he was +effectually stripped of power. _Yet the legislative power had not been +taken from him; but only the power to enforce his laws, unless juries +should freely consent to their enforcement._] + +[Footnote 14: The laws were, at that time, all written in Latin.] + +[Footnote 15: "No man shall be condemned at the king's suit, either +before the king in his bench, where pleas are _coram rege_, (before the +king,) (and so are the words _nec super eum ibimus_, to be understood,) +nor before any other commissioner or judge whatsoever, and so are the +words _nec super eum mittemus_, to be understood, but by the judgment of +his peers, that is, equals, or according to the law of the land."--_2 +Coke's Inst._, 46.] + +[Footnote 16: Perhaps the assertion in the text should be made with this +qualification--that the words "_per legem terræ_," (according to the law +of the land,) and the words "_per legale judicium parium suorum_," +(according to the _legal_ judgment of his peers,) imply that the king, +before proceeding to any _executive_ action, will take notice of "the +law of the land," and of the _legality_ of the judgment of the peers, +and will _execute_ upon the prisoner nothing except what the law of the +land authorizes, and no judgments of the peers, except _legal_ ones. +With this qualification, the assertion in the text is strictly +correct--that there is nothing in the whole chapter that grants to the +king, or his judges, any _judicial_ power at all. The chapter only +describes and _limits_ his _executive_ power.] + +[Footnote 17: See Blackstone's Law Tracts, page 294, Oxford Edition.] + +[Footnote 18: These Articles of the Charter are given in Blackstone's +collection of Charters, and are also printed with the _Statutes of the +Realm_. Also in Wilkins' Laws of the Anglo-Saxons, p. 356.] + +[Footnote 19: Lingard says, "The words, '_We will not destroy him, nor +will we go upon him, nor will we send upon him_,' have been very +differently expounded by different legal authorities. Their real meaning +may be learned from John himself, who the next year promised by his +letters patent ... nec super eos _per vim vel per arma_ ibimus, nisi per +legem regni nostri, vel per judicium parium suorum in curia nostra, (nor +will we go upon them _by force or by arms_, unless by the law of our +kingdom, or the judgment of their peers in our court.) Pat. 16 Johan, +apud Drad. 11, app. no. 124. He had hitherto been in the habit of +_going_ with an armed force, or _sending_ an armed force on the lands, +and against the castles, of all whom he knew or suspected to be his +secret enemies, without observing any form of law."--3 Lingard, 47 +note.] + +[Footnote 20: "_Judgment, judicium._ * * The sentence of the law, +pronounced by the court, upon the matter contained in the record."--3 +_Blackstone_, 395. _Jacob's Law Dictionary. Tomlin's do._ + +"_Judgment_ is the decision or sentence of the law, given by a court of +justice or other competent tribunal, as the result of the proceedings +instituted therein, for the redress of an injury."--_Bouvier's Law +Dict._ + +"_Judgment, judicium._ * * Sentence of a judge against a criminal. * * +Determination, decision in general."--_Bailey's Dict._ + +"_Judgment._ * * In a legal sense, a sentence or decision pronounced by +authority of a king, or other power, either by their own mouth, or by +that of their judges and officers, whom they appoint to administer +justice in their stead."--_Chambers' Dict._ + +"_Judgment._ * * In law, the sentence or doom pronounced in any case, +civil or criminal, by the judge or court by which it is +tried."--_Webster's Dict._ + +Sometimes the punishment itself is called _judicium_, _judgment_; or, +rather, it was at the time of Magna Carta. For example, in a statute +passed fifty-one years after Magna Carta, it was said that a baker, for +default in the weight of his bread, "debeat amerciari vel subire +_judicium_ pillorie;" that is, ought to be amerced, or suffer the +punishment, or judgment, of the pillory. Also that a brewer, for +"selling ale contrary to the assize," "debeat amerciari, vel pati +_judicium_ tumbrelli"; that is, ought to be amerced, or suffer the +punishment, or judgment, of the tumbrel.--51 _Henry_ 3, _St._ 6. (1266.) + +Also the "_Statutes of uncertain date_," (but supposed to be prior to +Edward III., or 1326,) provide, in chapters 6, 7, and 10, for +"_judgment_ of the pillory."--_See 1 Ruffhead's Statutes_, 187, 188. 1 +_Statutes of the Realm_, 203. + +Blackstone, in his chapter "Of _Judgment_, and its Consequences," says, + +"_Judgment_ (unless any matter be offered in arrest thereof) follows +upon conviction; being the pronouncing of that punishment which is +expressly ordained by law."--_Blackstone's Analysis of the Laws of +England, Book 4, Ch. 29, Sec. 1. Blackstone's Law Tracts_, 126. + +Coke says, "_Judicium_ ... the judgment is the guide and direction of +the execution." 3 _Inst._ 210.] + +[Footnote 21: This precedent from Germany is good authority, because the +trial by jury was in use, in the northern nations of Europe generally, +long before Magna Carta, and probably from time immemorial; and the +Saxons and Normans were familiar with it before they settled in +England.] + +[Footnote 22: _Beneficium_ was the legal name of an estate held by a +feudal tenure. See Spelman's Glossary.] + +[Footnote 23: _Contenement_ of a freeman was the means of living in the +condition of a freeman.] + +[Footnote 24: _Waynage_ was a villein's plough-tackle and carts.] + +[Footnote 25: Tomlin says, "The ancient practice was, when any such fine +was imposed, to inquire by a jury _quantum inde regi dare valeat per +annum, salva sustentatione sua et uxoris et liberorum suorum_, (how much +is he able to give to the king per annum, saving his own maintenance, +and that of his wife and children). And since the disuse of such +inquest, it is never usual to assess a larger fine than a man is able to +pay, without touching the implements of his livelihood; but to inflict +corporal punishment, or a limited imprisonment, instead of such a fine +as might amount to imprisonment for life. And this is the reason why +fines in the king's courts are frequently denominated ransoms, because +the penalty must otherwise fall upon a man's person, unless it be +redeemed or ransomed by a pecuniary fine."--_Tomlin's Law Dict., word +Fine._] + +[Footnote 26: Because juries were to fix the sentence, it must not be +supposed that the king was _obliged_ to carry the sentence into +execution; _but only that he could not go beyond the sentence_. He might +pardon, or he might acquit on grounds of law, notwithstanding the +sentence; but he could not punish beyond the extent of the sentence. +Magna Carta does not prescribe that the king _shall punish_ according to +the sentence of the peers; but only that he shall not punish _"unless +according to" that sentence_. He may acquit or pardon, notwithstanding +their sentence or judgment; but he cannot punish, except according to +their judgment.] + +[Footnote 27: _The trial by battle_ was one in which the accused +challenged his accuser to single combat, and staked the question of his +guilt or innocence on the result of the duel. This trial was introduced +into England by the Normans, within one hundred and fifty years before +Magna Carta. It was not very often resorted to even by the Normans +themselves; probably never by the Anglo-Saxons, unless in their +controversies with the Normans. It was strongly discouraged by some of +the Norman princes, particularly by Henry II., by whom the trial by jury +was especially favored. It is probable that the trial by battle, so far +as it prevailed at all in England, was rather tolerated as a matter of +chivalry, than authorized as a matter of law. At any rate, it is not +likely that it was included in the "_legem terræ_" of Magna Carta, +although such duels have occasionally occurred since that time, and +have, by some, been supposed to be lawful. I apprehend that nothing can +be properly said to be a part of _lex terræ_, unless it can be shown +either to have been of Saxon origin, or to have been recognized by Magna +Carta. + +_The trial by ordeal_ was of various kinds. In one ordeal the accused +was required to take hot iron in his hand; in another to walk blindfold +among red-hot ploughshares; in another to thrust his arm into boiling +water; in another to be thrown, with his hands and feet bound, into cold +water; in another to swallow the _morsel of execration_; in the +confidence that his guilt or innocence would be miraculously made known. +This mode of trial was nearly extinct at the time of Magna Carta, and it +is not likely that it was included in "_legem terræ_," as that term is +used in that instrument. This idea is corroborated by the fact that the +trial by ordeal was specially prohibited only four years after Magna +Carta, "by act of Parliament in 3 Henry III., according to Sir Edward +Coke, or rather by an order of the king in council."--_3 Blackstone_ +345, _note_. + +I apprehend that this trial was never forced upon accused persons, but +was only allowed to them, _as an appeal to God_, from the judgment of a +jury.[33] + +_The trial by compurgators_ was one in which, if the accused could bring +twelve of his neighbors, who would make oath that they believed him +innocent, he was held to be so. It is probable that this trial was +really the trial by jury, or was allowed as an appeal from a jury. It is +wholly improbable that two different modes of trial, so nearly +resembling each other as this and the trial by jury do, should prevail +at the same time, and among a rude people, whose judicial proceedings +would naturally be of the simplest kind. But if this trial really were +any other than the trial by jury, it must have been nearly or quite +extinct at the time of Magna Carta; and there is no probability that it +was included in "_legem terræ_."] + +[Footnote 28: Coke attempts to show that there is a distinction between +amercements and fines--admitting that amercements must be fixed by one's +peers, but claiming that fines may be fixed by the government. (_2 +Inst._ 27, _8 Coke's Reports_ 38.) But there seems to have been no +ground whatever for supposing that any such distinction existed at the +time of Magna Carta. If there were any such distinction in the time of +Coke, it had doubtless grown up within the four centuries that had +elapsed since Magna Carta, and is to be set down as one of the +numberless inventions of government for getting rid of the restraints of +Magna Carta, and for taking men out of the protection of their peers, +and subjecting them to such punishments as the government chooses to +inflict. + +The first statute of Westminster, passed sixty years after Magna Carta, +treats the fine and amercement as synonymous, as follows: + +"Forasmuch as _the common fine and amercement_ of the whole county in +Eyre of the justices for false judgments, or for other trespass, is +unjustly assessed by sheriffs and baretors in the shires, * * it is +provided, and the king wills, that from henceforth such sums shall be +assessed before the justices in Eyre, afore their departure, _by the +oath of knights and other honest men_," &c.--_3 Edward I., Ch._ 18. +(1275.) + +And in many other statutes passed after Magna Carta, the terms _fine_ +and _amercement_ seem to be used indifferently, in prescribing the +punishment for offences. As late as 1461, (246 years after Magna Carta,) +the statute _1 Edward IV., Ch._ 2, speaks of "_fines, ransoms, and +amerciaments_" as being levied upon criminals, as if they were the +common punishments of offences. + +_St._ 2 and 3 _Philip and Mary, Ch._ 8, uses the terms, "_fines, +forfeitures, and amerciaments_" five times. (1555.) + +_St. 5 Elizabeth, Ch._ 13, _Sec._ 10, uses the terms "_fines, +forfeitures, and amerciaments_." + +That amercements were fines, or pecuniary punishments, inflicted for +offences, is proved by the following statutes, (all supposed to have +been passed within one hundred and fifteen years after Magna Carta,) +which speak of amercements as a species of "_judgment_," or punishment, +and as being inflicted for the same offences as other "judgments." + +Thus one statute declares that a baker, for default in the weight of his +bread, "ought to be _amerced_, or suffer the _judgment_ of the pillory;" +and that a brewer, for "selling ale contrary to the assize," "ought to +be _amerced_, or suffer the _judgment_ of the tumbrel."--_51 Henry III., +St._ 6. (1266.) + +Among the "_Statutes of Uncertain Date_," but supposed to be prior to +Edward III., (1326,) are the following: + +_Chap._ 6 provides that "if a brewer break the assize, (fixing the price +of ale,) the first, second, and third time, he shall be _amerced_; but +the fourth time he shall suffer _judgment_ of the pillory without +redemption." + +_Chap._ 7 provides that "a butcher that selleth swine's flesh measled, +or flesh dead of the murrain, or that buyeth flesh of Jews, and selleth +the same unto Christians, after he shall be convict thereof, for the +first time he shall be grievously _amerced_; the second time he shall +suffer _judgment_ of the pillory; and the third time he shall be +imprisoned and make _fine_; and the fourth time he shall forswear the +town." + +_Chap. 10_, a statute against _forestalling_, provides that, + +"He that is convict thereof, the first time shall be _amerced_, and +shall lose the thing so bought, and that according to the custom of the +town; he that is convicted the second time shall have _judgment_ of the +pillory; at the third time he shall be imprisoned and make _fine_; the +fourth time he shall abjure the town. And this _judgment_ shall be given +upon all manner of forestallers, and likewise upon them that have given +them counsel, help, or favor."--_1 Ruffhead's Statutes_, 187, 188. _1 +Statutes of the Realm_, 203.] + +[Footnote 29: 1 Hume, Appendix, 1.] + +[Footnote 30: Blackstone says, "Our ancient Saxon laws nominally +punished theft with death, if above the value of twelve pence; but the +criminal was permitted to redeem his life by a pecuniary ransom, as +among their ancestors, the Germans, by a stated number of cattle. But in +the ninth year of Henry the First, (1109,) this power of redemption was +taken away, and all persons guilty of larceny above the value of twelve +pence were directed to be hanged, which law continues in force to this +day."--_4 Blackstone_, 238. + +I give this statement of Blackstone, because the latter clause may seem +to militate with the idea, which the former clause corroborates, viz., +that at the time of Magna Carta, fines were the usual punishments of +offences. But I think there is no probability that a law so unreasonable +in itself, (unreasonable even after making all allowance for the +difference in the value of money,) and so contrary to immemorial custom, +could or did obtain any general or speedy acquiescence among a people +who cared little for the authority of kings. + +Maddox, writing of the period from William the Conqueror to John, says: + +"The amercements in criminal and common pleas, which were wont to be +imposed during this first period and afterwards, were of so many several +sorts, that it is not easy to place them under distinct heads. Let them, +for method's sake, be reduced to the heads following: Amercements for or +by reason of murders and manslaughters, for misdemeanors, for +disseisins, for recreancy, for breach of assize, for defaults, for +non-appearance, for false judgment, and for not making suit, or hue and +cry. To them may be added miscellaneous amercements, for trespasses of +divers kinds."--_1 Maddox' History of the Exchequer_, 542.] + +[Footnote 31: Coke, in his exposition of the words _legem terræ_, gives +quite in detail the principles of the common law governing _arrests_; +and takes it for granted that the words "_nisi per legem terræ_" are +applicable to arrests, as well as to the indictment, &c.--2 _Inst._, +51,52.] + +[Footnote 32: I cite the above extract from Mr. Hallam solely for the +sake of his authority for rendering the word _vel_ by _and_; and not by +any means for the purpose of indorsing the opinion he suggests, that +_legem terræ_ authorized "judgments by default or demurrer," _without +the intervention of a jury_. He seems to imagine that _lex terræ_, the +common law, at the time of Magna Carta, included everything, even to the +practice of courts, that is, _at this day_, called by the name of +_Common Law_; whereas much of what is _now_ called Common Law has grown +up, by usurpation, since the time of Magna Carta, in palpable violation +of the authority of that charter. He says, "Certainly there are many +legal procedures, besides _trial_ by jury, through which a party's goods +or person may be taken." Of course there are _now_ many such ways, in +which a party's goods or person _are_ taken, besides by the judgment of +a jury; but the question is, whether such takings are not in violation +of Magna Carta. + +He seems to think that, in cases of "judgment by default or demurrer," +there is no need of a jury, and thence to infer that _legem terræ_ may +not have required a jury in those cases. But this opinion is founded on +the erroneous idea that juries are required only for determining +contested _facts_, and not for judging of the law. In case of default, +the plaintiff must present a _prima facie_ case before he is entitled to +a judgment; and Magna Carta, (supposing it to require a jury trial in +civil cases, as Mr. Hallam assumes that it does,) as much requires that +this _prima facie_ case, both law and fact, be made out to the +satisfaction of a jury, as it does that a contested case shall be. + +As for a demurrer, the jury must try a demurrer (having the advice and +assistance of the court, of course) as much as any other matter of law +arising in a case. + +Mr. Hallam evidently thinks there is no use for a jury, except where +there is a "_trial_"--meaning thereby a contest on matters of _fact_. +His language is, that "there are many legal procedures, besides _trial_ +by jury, through which a party's goods or person may be taken." Now +Magna Carta says nothing of _trial_ by jury; but only of the _judgment_, +or sentence, of a jury. It is only _by inference_ that we come to the +conclusion that there must be a _trial_ by jury. Since the jury alone +can give the _judgment_, or _sentence_, we _infer_ that they must _try_ +the case; because otherwise they would be incompetent, and would have no +moral right, to give _judgment_. They must, therefore, examine the +grounds, (both of law and fact,) or rather _try_ the grounds, of every +action whatsoever, whether it be decided on "default, demurrer," or +otherwise, and render their judgment, or sentence, thereon, before any +judgment can be a legal one, on which "to take a party's goods or +person." In short, the principle of Magna Carta is, that no judgment can +be valid _against a party's goods or person_, (not even a judgment for +costs,) except a judgment rendered by a jury. Of course a jury must try +every question, both of law and fact, that is involved in the rendering +of that judgment. They are to have the assistance and advice of the +judges, so far as they desire them; but the judgment itself must be +theirs, and not the judgment of the court. + +As to "process of attachment for contempt," it is of course lawful for a +judge, in his character of a peace officer, to issue a warrant for the +arrest of a man guilty of a contempt, as he would for the arrest of any +other offender, and hold him to bail, (or, in default of bail, commit +him to prison,) to answer for his offence before a jury. Or he may order +him into custody without a warrant when the offence is committed in the +judge's presence. But there is no reason why a judge should have the +power of _punishing_ for contempt, any more than for any other offence. +And it is one of the most dangerous powers a judge can have, because it +gives him absolute authority in a court of justice, and enables him to +tyrannize as he pleases over parties, counsel, witnesses, and jurors. If +a judge have power to punish for contempt, and to determine for himself +what is a contempt, the whole administration of justice (or injustice, +if he choose to make it so) is in his hands. And all the rights of +jurors, witnesses, counsel, and parties, are held subject to his +pleasure, and can be exercised only agreeably to his will. He can of +course control the entire proceedings in, and consequently the decision +of, every cause, by restraining and punishing every one, whether party, +counsel, witness, or juror, who presumes to offer anything contrary to +his pleasure. + +This arbitrary power, which has been usurped and exercised by judges to +punish for contempt, has undoubtedly had much to do in subduing counsel +into those servile, obsequious, and cowardly habits, which so +universally prevail among them, and which have not only cost so many +clients their rights, but have also cost the people so many of their +liberties. + +If any _summary_ punishment for contempt be ever necessary, (as it +probably is not,) beyond exclusion for the time being from the +court-room, (which should be done, not as a punishment, but for +self-protection, and the preservation of order,) the judgment for it +should be given by the jury, (where the trial is before a jury,) and not +by the court, for the jury, and not the court, are really the judges. +For the same reason, exclusion from the court-room should be ordered +only by the jury, in cases when the trial is before a jury, because +they, being the real judges and triers of the cause, are entitled, if +anybody, to the control of the court-room. In appeal courts, where no +juries sit, it may be necessary--not as a punishment, but for +self-protection, and the maintenance of order--that the court should +exercise the power of excluding a person, for the time being, from the +court-room; but there is no reason why they should proceed to sentence +him as a criminal, without his being tried by a jury. + +If the people wish to have their rights respected and protected in +courts of justice, it is manifestly of the last importance that they +jealously guard the liberty of parties, counsel, witnesses, and jurors, +against all arbitrary power on the part of the court. + +Certainly Mr. Hallam may very well say that "one may doubt whether these +(the several cases he has mentioned) were in contemplation of the +framers of Magna Carta"--that is, as exceptions to the rule requiring +that all judgments, that are to be enforced "_against a party's goods or +person_," be rendered by a jury. + +Again, Mr. Hallam says, if the word _vel_ be rendered by _and_, "the +meaning will be, that no person shall be disseized, &c., _except upon a +lawful cause of action_." This is true; but it does not follow that any +cause of action, founded on _statute only_, is therefore a "_lawful_ +cause of action," within the meaning of _legem terræ_, or the _Common +Law_. Within the meaning of the _legem terræ_ of Magna Carta, nothing +but a _common law_ cause of action is a "_lawful_" one.] + +[Footnote 33: Hallam says, "It appears as if the ordeal were permitted +to persons already convicted by this verdict of a jury."--_2 Middle +Ages_, 446, _note_.] diff --git a/chapters/03.markdown b/chapters/03.markdown new file mode 100644 index 0000000..544d540 --- /dev/null +++ b/chapters/03.markdown @@ -0,0 +1,2807 @@ +CHAPTER III. + +ADDITIONAL PROOFS OF THE RIGHTS AND DUTIES OF JURORS. + + +If any evidence, extraneous to the history and language of Magna Carta, +were needed to prove that, by that chapter which guaranties the trial by +jury, all was meant that has now been ascribed to it, and _that the +legislation of the king was to be of no authority with the jury beyond +what they chose to allow to it_, and that the juries were to limit the +punishments to be inflicted, we should find that evidence in various +sources, such as the laws, customs, and characters of their ancestors on +the continent, and of the northern Europeans generally; in the +legislation and customs that immediately succeeded Magna Carta; in the +oaths that have at different times been administered to jurors, &c., &c. +This evidence can be exhibited here but partially. To give it all would +require too much space and labor. + + +SECTION I. + +_Weakness of the Regal Authority._ + +Hughes, in his preface to his translation of Horne's "_Mirror of +Justices_," (a book written in the time of Edward I., 1272 to 1307,) +giving a concise view of the laws of England generally, says: + + "Although in the Saxon's time I find the usual words of the acts then + to have been _edictum_, (edict,) _constitutio_, (statute,) little + mention being made of the commons, yet I further find that, _tum + demum leges vim et vigerem habuerunt, cum fuerunt non modo institutæ + sed firmatæ approbatione communitatis_." (The laws had force and + vigor only when they were not only enacted, but confirmed by the + approval of the community.) + +The _Mirror of Justices_ itself also says, (ch. 1, sec. 3,) in speaking +"_Of the first Constitutions of the Ancient Kings_:" + + "Many ordinances were made by many kings, until the time of the king + that now is (Edward I.); the which ordinances were abused, _or not + used by many, nor very current_, because they were not put in + writing, and certainly published."--_Mirror of Justices_, p. 6. + +Hallam says: + + "The Franks, Lombards, and Saxons seem alike to have been jealous of + judicial authority; and averse to surrendering what concerned every + man's private right, out of the hands of his neighbors and + equals."--_1 Middle Ages_, 271. + +The "judicial authority," here spoken of, was the authority of the +kings, (who at that time united the office of both legislators and +judges,) and not of a separate department of government, called the +judiciary, like what has existed in more modern times.[34] + +Hume says: + + "The government of the Germans, and that of all the northern nations, + who established themselves on the ruins of Rome, was always extremely + free; and those fierce people, accustomed to independence and inured + to arms, _were more guided by persuasion than authority, in the + submission which they paid to their princes_. The military despotism, + which had taken place in the Roman empire, and which, previously to + the irruption of those conquerors, had sunk the genius of men, and + destroyed every noble principle of science and virtue, was unable to + resist the vigorous efforts of a free people, and Europe, as from a + new epoch, rekindled her ancient spirit, and shook off the base + servitude to arbitrary will and authority under which she had so long + labored. The free constitutions then established, however impaired by + the encroachments of succeeding princes, still preserve an air of + independence and legal administration, which distinguished the + European nations; and if that part of the globe maintain sentiments + of liberty, honor, equity, and valor, superior to the rest of + mankind, it owes these advantages chiefly to the seeds implanted by + those generous barbarians. + + "_The Saxons, who subdued Britain, as they enjoyed great liberty in + their own country, obstinately retained that invaluable possession in + their new settlement; and they imported into this island the same + principles of independence, which they had inherited from their + ancestors. The chieftains, (for such they were, more than kings or + princes,) who commanded them in those military expeditions, still + possessed a very limited authority_; and as the Saxons exterminated, + rather than subdued the ancient inhabitants, they were, indeed, + transplanted into a new territory, _but preserved unaltered all their + civil and military institutions_. The language was pure Saxon; even + the names of places, which often remain while the tongue entirely + changes, were almost all affixed by the conquerors; the manners and + customs were wholly German; and the same picture of a fierce and bold + liberty, which is drawn by the masterly pen of Tacitus, will suit + those founders of the English government. _The king, so far from + being invested with arbitrary power, was only considered as the first + among the citizens; his authority depended more on his personal + qualities than on his station; he was even so far on a level with the + people, that a stated price was fixed for his head, and a legal fine + was levied upon his murderer, which though proportionate to his + station, and superior to that paid for the life of a subject, was a + sensible mark of his subordination to the community._"--_1 Hume_, + _Appendix_, 1. + +Stuart says: + + "The Saxons brought along with them into Britain their own customs, + language, and civil institutions. Free in Germany, they renounced not + their independence, when they had conquered. Proud from victory, and + with their swords in their hands, would they surrender their + liberties to a private man? Would temporary leaders, limited in their + powers, and unprovided in resources, ever think to usurp an authority + over warriors, who considered themselves as their equals, were + impatient of control, and attached with devoted zeal to their + privileges? Or, would they find leisure to form resolutions, or + opportunities to put them in practice, amidst the tumult and + confusion of those fierce and bloody wars, which their nations first + waged with the Britons, and then engaged in among themselves? + Sufficiently flattered in leading the armies of their countrymen, the + ambition of commanders could as little suggest such designs, as the + liberty of the people could submit to them. The conquerors of Britain + retained their independence; and this island saw itself again in + that free state in which the Roman arms had discovered it. + + "The same firmness of character, and generosity of manners, which, in + general, distinguished the Germans, were possessed in an eminent + degree by the Saxons; and while we endeavor to unfold their political + institutions, we must perpetually turn our observation to that + masterly picture in which the Roman historian has described these + nations. In the woods of Germany shall we find the principles which + directed the state of land, in the different kingdoms of Europe; and + there shall we find the foundation of those ranks of men, and of + those civil arrangements, which the barbarians everywhere + established; and which the English alone have had the good fortune, + or the spirit, to preserve."--_Stuart on the Constitution of + England_, p. 59-61. + + "Kings they (the Germans) respected as the first magistrates of the + state; but the authority possessed by them was narrow and + limited."--_Ditto_, p. 134. + + "Did he, (the king,) at any time, relax his activity and martial + ardor, did he employ his abilities to the prejudice of his nation, or + fancy he was superior to the laws; the same power which raised him to + honor, humbled and degraded him. The customs and councils of his + country pointed out to him his duty; and if he infringed on the + former, or disobeyed the latter, a fierce people set aside his + authority. * * + + "His long hair was the only ornament he affected, and to be foremost + to attack an enemy was his chief distinction. Engaged in every + hazardous expedition, he was a stranger to repose; and, rivalled by + half the heroes of his tribe, he could obtain little power. Anxious + and watchful for the public interest, he felt every moment his + dependence, and gave proofs of his submission. + + "He attended the general assembly of his nation, and was allowed the + privilege to harangue it first; but the arts of persuasion, though + known and respected by a rude people, were unequally opposed to the + prejudices and passions of men."--_Ditto_, p. 135-6. + + "_The authority of a Saxon monarch was not more considerable. The + Saxons submitted not to the arbitrary rule of princes. They + administered an oath to their sovereigns, which bound them to + acknowledge the laws, and to defend the rights of the church and + people; and if they forgot this obligation, they forfeited their + office._ In both countries, a price was affixed on kings, a fine + expiated their murder, as well as that of the meanest citizen; and + the smallest violation of ancient usage, or the least step towards + tyranny, was always dangerous, and often fatal to them."--_Ditto_, p. + 139-40. + + "They were not allowed to impose taxes on the kingdom."--_Ditto_, p. + 146. + + "Like the German monarchs, they deliberated in the general assembly + of the nation; _but their legislative authority was not much + respected_; and their assent was considered in no better light than + as a form. This, however, was their chief prerogative; and they + employed it to acquire an ascendant in the state. To art and + insinuation they turned, as their only resource, and flattered a + people whom they could not awe; but address, and the abilities to + persuade, were a weak compensation for the absence of real power. + + "They declared war, it is said, and made peace. In both cases, + however, they acted as the instruments of the state, and put in + execution the resolutions which its councils had decreed. If, indeed, + an enemy had invaded the kingdom, and its glory and its safety were + concerned, the great lords took the field at the call of their + sovereign. But had a sovereign declared war against a neighboring + state, without requiring their advice, or if he meant to revenge by + arms an insult offered to him by a subject, a haughty and independent + nobility refused their assistance. These they considered as the + quarrels of the king, and not of the nation; and in all such + emergencies he could only be assisted by his retainers and + dependents."--_Ditto_, p. 147-8. + + "Nor must we imagine that the Saxon, any more than the German + monarchs, succeeded each other in a lineal descent,[35] or that they + disposed of the crown at their pleasure. In both countries, the free + election of the people filled the throne; and their choice was the + only rule by which princes reigned. The succession, accordingly, of + their kings was often broken and interrupted, and their depositions + were frequent and groundless. The will of a prince whom they had long + respected, and the favor they naturally transferred to his + descendant, made them often advance him to the royal dignity; but the + crown of his ancestor he considered as the gift of the people, and + neither expected nor claimed it as a right."--_Ditto_, p. 151-3. + +In Germany "It was the business of the great to command in war, and in +peace they distributed justice. * * + + "The _princes_ in Germany were _earls_ in England. The great + contended in both countries in the number of their retainers, and in + that splendor and magnificence which are so alluring to a rude + people; and though they joined to set bounds to regal power, they + were often animated against each other with the fiercest hatred. To a + proud and impatient nobility it seemed little and unsuiting to give + or accept compositions for the injuries they committed or received; + and their vassals adopting their resentment and passions, war and + bloodshed alone could terminate their quarrels. What necessarily + resulted from their situation in society, was continued as a + _privilege_; and the great, in both countries, made war, of their + private authority, on their enemies. The Saxon earls even carried + their arms against their sovereigns; and, surrounded with retainers, + or secure in fortresses and castles, they despised their resentment, + and defied their power. + + "The judges of the people, they presided in both countries in courts + of law.[36] The particular districts over which they exerted their + authority were marked out in Germany by the council of the state; and + in England their jurisdiction extended over the fiefs and other + territories they possessed. All causes, both civil and criminal, were + tried before them; and they judged, except in cases of the utmost + importance, without appeal. They were even allowed to grant pardon to + criminals, and to correct by their clemency the rigors of justice. + Nor did the sovereign exercise any authority in their lands. In these + his officers formed no courts, and his _writ_ was disregarded. * * + + "They had officers, as well as the king, who collected their + revenues, and added to their greatness; and the inhabitants of their + lands they distinguished by the name of _subjects_. + + "But to attend the general assembly of their nation was the chief + prerogative of the German and Saxon princes; and as they consulted + the interest of their country, and deliberated concerning matters of + state, so in the _king's court_, of which also they were members, + they assisted to pronounce judgment in the complaints and appeals + which were lodged in it."--_Ditto_, p. 158 to 165. + +Henry says: + + "Nothing can be more evident than this important truth; that our + Anglo-Saxon kings were not absolute monarchs; but that their powers + and prerogatives were limited by the laws and customs of the country. + Our Saxon ancestors had been governed by limited monarchs in their + native seats on the continent; and there is not the least appearance + or probability that they relinquished their liberties, and submitted + to absolute government in their new settlements in this island. It is + not to be imagined that men, whose reigning passion was the love of + liberty, would willingly resign it; and their new sovereigns, who had + been their fellow-soldiers, had certainly no power to compel them to + such a resignation."--_3 Henry's History of Great Britain_, 358. + + Mackintosh says: "The Saxon chiefs, who were called kings, originally + acquired power by the same natural causes which have gradually, and + everywhere, raised a few men above their fellows. They were, + doubtless, more experienced, more skilful, more brave, or more + beautiful, than those who followed them. * * A king was powerful in + war by the lustre of his arms, and the obvious necessity of + obedience. His influence in peace fluctuated with his personal + character. In the progress of usage his power became more fixed and + more limited. * * It would be very unreasonable to suppose that the + northern Germans who had conquered England, had so far changed their + characteristic habits from the age of Tacitus, that the victors + became slaves, and that their generals were converted into + tyrants."--_Mackintosh's Hist. of England, Ch. 2._ _45 Lardner's Cab. + Cyc._, 73-4. + +Rapin, in his discourse on the "Origin and Nature of the English +Constitution," says: + + "There are but two things the Saxons did not think proper to trust + their kings with; for being of like passions with other men, they + might very possibly abuse them; namely, the power of changing the + laws enacted by consent of king and people; and the power of raising + taxes at pleasure. From these two articles sprung numberless branches + concerning the liberty and property of the subject, which the king + cannot touch, without breaking the constitution, and they are the + distinguishing character of the English monarchy. The prerogatives of + the crown, and the rights and privileges of the people, flowing from + the two fore-mentioned articles, are the ground of all the laws that + from time to time have been made by unanimous consent of king and + people. The English government consists in the strict union of the + king's prerogatives with the people's liberties. * * But when kings + arose, as some there were, that aimed at absolute power, by changing + the old, and making new laws, at pleasure; by imposing illegal taxes + on the people; this excellent government being, in a manner, + dissolved by these destructive measures, confusion and civil wars + ensued, which some very wrongfully ascribe to the fickle and restless + temper of the English."--_Rapin's Preface to his History of England._ + +Hallam says that among the Saxons, "the royal authority was weak."--_2 +Middle Ages_, 403. + +But although the king himself had so little authority, that it cannot be +supposed for a moment that his laws were regarded as imperative by the +people, it has nevertheless been claimed, in modern times, by some who +seem determined to find or make a precedent for the present legislative +authority of parliament, that his laws were authoritative, _when +assented to_ by the _Witena-gemote_, or assembly of wise men--that is, +the bishops and barons. But this assembly evidently had no legislative +power whatever. The king would occasionally invite the bishops and +barons to meet him for consultation on public affairs, _simply as a +council_, and not as a legislative body. Such as saw fit to attend, did +so. If they were agreed upon what ought to be done, the king would pass +a law accordingly, and the barons and bishops would then return and +inform the people orally what laws had been passed, and use their +influence with them to induce them to conform to the law of the king, +and the recommendation of the council. And the people no doubt were much +more likely to accept a law of the king, if it had been approved by this +council, than if it had not. But it was still only a law of the king, +which they obeyed or disregarded according to their own notions of +expediency. The numbers who usually attended this council were too small +to admit of the supposition that they had any legislative authority +whatever, to impose laws upon the people against their will. + +Lingard says: + + "It was necessary that the king should obtain the assent of these + (the members of the Witena-gemotes) to all legislative enactments; + _because, without their acquiescence and support, it was impossible + to carry them into execution_. To many charters (laws) we have the + signatures of the Witan. _They seldom exceed thirty in number; they + never amount to sixty._"--_1 Lingard_, 486. + +It is ridiculous to suppose that the assent of such an assembly gave any +_authority_ to the laws of the king, or had any influence in securing +obedience to them, otherwise than by way of persuasion. If this body had +had any real legislative authority, such as is accorded to legislative +bodies of the present day, they would have made themselves at once the +most conspicuous portion of the government, and would have left behind +them abundant evidence of their power, instead of the evidence simply of +their assent to a few laws passed by the king. + +More than this. If this body had had any real legislative authority, +they would have constituted an aristocracy, having, in conjunction with +the king, absolute power over the people. Assembling voluntarily, merely +on the invitation of the king; deputed by nobody but themselves; +representing nobody but themselves; responsible to nobody but +themselves; their legislative authority, if they had had any, would of +necessity have made the government the government of an aristocracy +merely, _and the people slaves, of course_. And this would necessarily +have been the picture that history would have given us of the +Anglo-Saxon government, _and of Anglo-Saxon liberty_. + +The fact that the people had no representation in this assembly, and the +further fact that, through their juries alone, they nevertheless +maintained that noble freedom, the very tradition of which (after the +substance of the thing itself has ceased to exist) has constituted the +greatest pride and glory of the nation to this day, _prove_ that this +assembly exercised no authority which juries of the people acknowledged, +except at their own discretion.[37] + +There is not a more palpable truth, in the history of the Anglo-Saxon +government, than that stated in the Introduction to Gilbert's History of +the Common Pleas,[38] viz., "_that the County and Hundred Courts_," (to +which should have been added the other courts in which juries sat, the +courts-baron and court-leet,) "_in those times were the real and only +Parliaments of the kingdom_." And why were they the real and only +parliaments of the kingdom? Solely because, as will be hereafter shown, +the juries in those courts tried causes on their intrinsic merits, +according to their own ideas of justice, irrespective of the laws agreed +upon by kings, priests, and barons; and whatever principles they +uniformly, or perhaps generally, enforced, _and none others_, became +practically the law of the land as matter of course.[39] + +Finally, on this point. Conclusive proof that the legislation of the +king was of little or no authority, is found in the fact _that the kings +enacted so few laws_. If their laws had been received as authoritative, +in the manner that legislative enactments are at this day, they would +have been making laws continually. Yet the codes of the most celebrated +kings are very small, and were little more than compilations of +immemorial customs. The code of Alfred would not fill twelve pages of +the statute book of Massachusetts, and was little or nothing else than a +compilation of the laws of Moses, and the Saxon customs, evidently +collected from considerations of convenience, rather than enacted on the +principle of authority. The code of Edward the Confessor would not fill +twenty pages of the statute book of Massachusetts, and, says Blackstone, +"seems to have been no more than a new edition, or fresh promulgation of +Alfred's code, or _dome-book_, with such additions and improvements as +the experience of a century and a half suggested."--_1 Blackstone_, +66.[40] + +The Code of William the Conqueror[41] would fill less than seven pages +of the statute book of Massachusetts; and most of the laws contained in +it are taken from the laws of the preceding kings, and especially of +Edward the Confessor (whose laws William swore to observe); but few of +his own being added. + +The codes of the other Saxon and Norman kings were, as a general rule, +less voluminous even than these that have been named; and probably did +not exceed them in originality.[42] The Norman princes, from William the +Conqueror to John, I think without exception, bound themselves, and, in +order to maintain their thrones, were obliged to bind themselves, to +observe the ancient laws and customs, in other words, the "_lex terræ_," +or "_common law_" of the kingdom. Even Magna Carta contains hardly +anything other than this same "_common law_," with some new securities +for its observance. + +How is this abstinence from legislation, on the part of the ancient +kings, to be accounted for, except on the supposition that the people +would accept, and juries enforce, few or no new laws enacted by their +kings? Plainly it can be accounted for in no other way. In fact, all +history informs us that anciently the attempts of the kings to introduce +or establish new laws, met with determined resistance from the people, +and generally resulted in failure. "_Nolumus Leges Angliæ mutari_," (we +will that the laws of England be not changed,) was a determined +principle with the Anglo-Saxons, from which they seldom departed, up to +the time of Magna Carta, and indeed until long after.[43] + + +SECTION II. + +_The Ancient Common Law Juries were mere Courts of Conscience._ + +But it is in the administration of justice, or of law, that the freedom +or subjection of a people is tested. If this administration be in +accordance with the arbitrary will of the legislator--that is, if his +will, as it appears in his statutes, be the highest rule of decision +known to the judicial tribunals,--the government is a despotism, and the +people are slaves. If, on the other hand, the rule of decision be those +principles of natural equity and justice, which constitute, or at least +are embodied in, the general conscience of mankind, the people are free +in just so far as that conscience is enlightened. + +That the authority of the king was of little weight with the _judicial +tribunals_, must necessarily be inferred from the fact already stated, +that his authority over the _people_ was but weak. If the authority of +his laws had been paramount in the judicial tribunals, it would have +been paramount with the people, of course; because they would have had +no alternative but submission. The fact, then, that his laws were _not_ +authoritative with the people, is proof that they were _not_ +authoritative with the tribunals--in other words, that they were not, as +matter of course, enforced by the tribunals. + +But we have additional evidence that, up to the time of Magna Carta, the +laws of the king were not binding upon the judicial tribunals; and if +they were not binding before that time, they certainly were not +afterwards, as has already been shown from Magna Carta itself. It is +manifest from all the accounts we have of the courts in which juries +sat, prior to Magna Carta, such as the court-baron, the hundred court, +the court-leet, and the county court, _that they were mere courts of +conscience, and that the juries were the judges, deciding causes +according to their own notions of equity, and not according to any laws +of the king, unless they thought them just_. + +These courts, it must be considered, were very numerous, and held very +frequent sessions. There were probably seven, eight, or nine hundred +courts _a month_, in the kingdom; the object being, as Blackstone says, +"_to bring justice home to every man's door_." (_3 Blackstone_, 30.) The +number of the _county_ courts, of course, corresponded to the number of +counties, (36.) The _court-leet_ was the criminal court for a district +less than a county. The _hundred court_ was the court for one of those +districts anciently called a _hundred_, because, at the time of their +first organization for judicial purposes, they comprised (as is +supposed) but a hundred families.[44] The court-baron was the court for +a single manor, and there was a court for every manor in the kingdom. +All these courts were holden as often as once in three or five weeks; +the county court once a month. The king's judges were present at none of +these courts; the only officers in attendance being sheriffs, bailiffs, +and stewards, merely ministerial, and not judicial, officers; doubtless +incompetent, and, if not incompetent, untrustworthy, for giving the +juries any reliable information in matters of law, beyond what was +already known to the jurors themselves. And yet these were the courts, +in which was done all the judicial business, both civil and criminal, of +the nation, except appeals, and some of the more important and difficult +cases.[45] It is plain that the juries, in these courts, must, of +necessity, have been the sole judges of all matters of law whatsoever; +because there was no one present, but sheriffs, bailiffs, and stewards, +to give them any instructions; and surely it will not be pretended that +the jurors were bound to take their law from such sources as these. + +In the second place, it is manifest that the principles of law, by which +the juries determined causes, were, as a general rule, nothing else than +their own ideas of natural equity, _and not any laws of the king_; +because but few laws were enacted, and many of those were not written, +but only agreed upon in council.[46] Of those that were written, few +copies only were made, (printing being then unknown,) and not enough to +supply all, or any considerable number, of these numerous courts. Beside +and beyond all this, few or none of the jurors could have read the laws, +if they had been written; because few or none of the common people +could, at that time, read. Not only were the common people unable to +read their own language, but, at the time of Magna Carta, the laws were +written in Latin, a language that could be read by few persons except +the priests, who were also the lawyers of the nation. Mackintosh says, +"the first act of the House of Commons composed and recorded in the +English tongue," was in 1415, two centuries after Magna Carta.[47] Up to +this time, and for some seventy years later, the laws were generally +written either in Latin or French; both languages incapable of being +read by the common people, as well Normans as Saxons; and one of them, +the Latin, not only incapable of being read by them, but of being even +understood when it was heard by them. + +To suppose that the people were bound to obey, and juries to enforce, +laws, many of which were unwritten, none of which _they_ could read, and +the larger part of which (those written in Latin) they could not +translate, or understand when they heard them read, is equivalent to +supposing the nation sunk in the most degrading slavery, instead of +enjoying a liberty of their own choosing. + +Their knowledge of the laws passed by the king was, of course, derived +only from oral information; and "_the good laws_," as some of them were +called, in contradistinction to others--those which the people at large +esteemed to be good laws--were doubtless enforced by the juries, and the +others, as a general thing, disregarded.[48] + +That such was the nature of judicial proceedings, and of the power of +juries, up to the time of Magna Carta, is further shown by the following +authorities. + + "The sheriffs and bailiffs caused the free tenants of their bailiwics + to meet at their counties and hundreds; _at which justice was so + done, that every one so judged his neighbor by such judgment as a man + could not elsewhere receive in the like cases_, until such times as + the customs of the realm were put in writing, and certainly + published. + + "And although a freeman commonly was not to serve (as a juror or + judge) without his assent, nevertheless it was assented unto that + free tenants should meet together in the counties and hundreds, and + lords courts, if they were not specially exempted to do such suits, + and _there judged their neighbors_."--_Mirror of Justices_, p. 7, 8. + +Gilbert, in his treatise on the Constitution of England, says: + + "In the county courts, if the debt was above forty shillings, there + issued a _justicies_ (a commission) to the sheriff, to enable him to + hold such a plea, _where the suitors_ (_jurors_) _are judges of the + law and fact_."--_Gilbert's Cases in Law and Equity, &c., &c._, 456. + +All the ancient writs, given in Glanville, for summoning jurors, +indicate that the jurors judged of everything, _on their consciences +only_. The writs are in this form: + + "Summon twelve free and legal men (or sometimes twelve knights) to be + in court, _prepared upon their oaths to declare whether A or B have + the greater right to the land_ (_or other thing_) _in question_." See + Writs in Beames' Glanville, p. 54 to 70, and 233-306 to 332. + +Crabbe, speaking of the time of Henry I., (1100 to 1135,) recognizes the +fact that the jurors were the judges. He says: + + "By one law, every one was to be tried by his peers, who were of the + same neighborhood as himself. * * By another law, _the judges, for so + the jury were called_, were to be chosen by the party impleaded, + after the manner of the Danish _nembas_; by which, probably, is to be + understood that the defendant had the liberty of taking exceptions + to, or challenging the jury, as it was afterwards called."--_Crabbe's + History of the English Law_, p. 55. + +Reeve says: + + "The great court for _civil_ business was the _county court_; held + once every four weeks. Here the sheriff presided; _but the suitors of + the court, as they were called, that is, the freemen or landholders + of the county, were the judges_; and the sheriff was to execute the + judgment. * * + + "The _hundred court_ was held before _some bailiff_; the _leet_ + before the lord of the manor's steward.[49] * * + + "Out of the county court was derived an inferior court of _civil_ + jurisdiction, called the _court-baron_. This was held from three + weeks to three weeks, and _was in every respect like the county + court_;" (_that is, the jurors were judges in it_;) "only the lord to + whom this franchise was granted, or _his steward_, _presided instead + of the sheriff_."--_1 Reeve's History of the English Law_, p. 7. + +Chief Baron Gilbert says: + + "Besides the tenants of the king, which held _per baroniam_, (by the + right of a baron,) and did suit and service (served as judges) at his + own court; and the burghers and tenants in ancient demesne, that did + suit and service (served as jurors or judges) in their own court in + person, and in the king's by proxy, there was also a set of + freeholders, that did suit and service (served as jurors) at the + county court. These were such as anciently held of the lord of the + county, and by the escheats of earldoms had fallen to the king; or + such as were granted out by service to hold of the king, but with + particular reservation to do suit and service (serve as jurors) + before the king's bailiff; _because it was necessary the sheriff, or + bailiff of the king, should have suitors_ (_jurors_) _at the county + court, that the business might be despatched. These suitors are the + pares_ (_peers_) _of the county court, and indeed the judges of it; + as the pares_ (_peers_) _were the judges in every court-baron_; and + therefore the king's bailiff having a court before him, there must be + _pares or judges, for the sheriff himself is not a judge_; and though + the style of the court is _Curia prima Comitatus E.C. Milit.' + vicecom' Comitat' præd' Tent' apud B._, &c. (First Court of the + county, E.C. knight, sheriff of the aforesaid county, held at B., &c.); + by which it appears that the court was the sheriff's; _yet, by + the old feudal constitutions, the lord was not judge, but the pares_ + (_peers_) _only_; so that, even in a _justicies_, which was a + commission to the sheriff to hold plea of more than was allowed by + the natural jurisdiction of a county court, _the pares_ (_peers, + jurors_) _only were judges, and not the sheriff_; because it was to + hold plea in the same manner as they used to do in that (the lord's) + court."--_Gilbert on the Court of Exchequer_, ch. 5, p. 61-2. + + "It is a distinguishing feature of the feudal system, to make civil + jurisdiction necessarily, and criminal jurisdiction ordinarily, + coëxtensive with tenure; and accordingly there is inseparably + incident to every manor a court-baron (curia baronum), _being a court + in which the freeholders of the manor are the sole judges_, but in + which the lord, by himself, or more commonly by his steward, + presides."--_Political Dictionary_, word _Manor_. + +The same work, speaking of the county court, says: "_The judges were the +freeholders who did suit to the court._" See word _Courts_. + + "In the case of freeholders attending as suitors, the county court + or court-baron, (as in the case of the ancient tenants _per baroniam_ + attending Parliament,) _the suitors are the judges of the court, both + for law and for fact_, and the sheriff or the under sheriff in the + county court, and the lord or his steward in the court-baron, are + only presiding officers, _with no judicial authority_."--_Political + Dictionary_, word _Suit_. + + "COURT, (curtis, curia aula); the space enclosed by the walls of a + feudal residence, in which the followers of a lord used to assemble + in the middle ages, to administer justice, and decide respecting + affairs of common interest, &c. It was next used for those who stood + in immediate connexion with the lord and master, the _pares curiæ_, + (peers of the court,) the limited portion of the general assembly, to + which was entrusted the pronouncing of judgment," &c.--_Encyclopedia + Americana_, word _Court_. + + "In court-barons or county courts _the steward was not judge, but the + pares_ (_peers_, _jurors_); nor was the speaker in the House of Lords + judge, but the barons only."--_Gilbert on the Court of Exchequer_, + ch. 3, p. 42. + +Crabbe, speaking of the Saxon times, says: + + "The sheriff presided at the _hundred court_, * * and sometimes sat + in the place of the alderman (earl) in the _county + court_."--_Crabbe_, 23. + +The sheriff afterwards became the sole presiding officer of the county +court. + +Sir Thomas Smith, Secretary of State to Queen Elizabeth, writing more +than three hundred years after Magna Carta, in describing the difference +between the Civil Law and the English Law, says: + + "_Judex_ is of us called Judge, but our fashion is so divers, that + they which give the deadly stroke, and either condemn or acquit the + man for guilty or not guilty, _are not called judges, but the twelve + men. And the same order as well in civil matters and pecuniary, as in + matters criminal_."--_Smith's Commonwealth of England_, ch. 9, p. 53, + Edition of 1621. + + _Court-Leet._ "That the _leet_ is the most ancient court in the land + for _criminal_ matters, (the court-baron being of no less antiquity + in _civil_,) has been pronounced by the highest legal authority. * * + Lord Mansfield states that this court was coeval with the + establishment of the Saxons here, and its activity marked very + visibly both among the Saxons and Danes. * * The leet is a court of + record for the cognizance of criminal matters, or pleas of the crown; + and necessarily belongs to the king; though a subject, usually the + lord of the manor, may be, and is, entitled to the profits, + consisting of the essoign pence, fines, and amerciaments. + + "_It is held before the steward, or was, in ancient times, before the + bailiff, of the lord._"--_Tomlin's Law Dict._, word _Court-Leet_. + +Of course the jury were the judges in this court, where only a "steward" +or "bailiff" of a manor presided. + + "No cause of consequence was determined without the king's writ; for + even in the county courts, of the debts, which were above forty + shillings, there issued a _Justicies_ (commission) to the sheriff, to + enable him to hold such plea, _where the suitors are judges of the + law and fact_."--_Gilbert's History of the Common Pleas, + Introduction_, p. 19. + + "This position" (that "the matter of law was decided by the King's + Justices, but the matter of fact by the pares") "_is wholly + incompatible with the common law, for the Jurata (jury) were the sole + judges both of the law and the fact_."--_Gilbert's History of the + Common Pleas_, p. 70, _note_. + + We come now to the challenge; and of old _the suitors in court, who + were judges_, could not be challenged; nor by the feudal law could + the _pares_ be even challenged, _Pares qui ordinariam jurisdictionem + habent recusari non possunt_; (the peers who have ordinary + jurisdiction cannot be rejected;) "_but those suitors who are judges + of the court_, could not be challenged; and the reason is, that there + are several qualifications required by the writ, viz., that they be + _liberos et legales homines de vincineto_ (free and legal men of the + neighborhood) of the place laid in the declaration," &c., + &c.--_Ditto_, p. 93. + + "_Ad questionem juris non respondent Juratores._" (To the question of + law the jurors do not answer.) "The Annotist says, that this is + indeed a maxim in the Civil-Law Jurisprudence, _but it does not bind + an English jury, for by the common law of the land the jury are + judges as well of the matter of law, as of the fact_, with this + difference only, that the (a Saxon word) or judge on the bench is to + give them no assistance in determining the matter of _fact_, but if + they have any doubt among themselves relating to matter of _law_, + they may then request him to explain it to them, which when he hath + done, and they are thus become well informed, they, and they only, + become competent judges of the matter of _law_. And this is the + province of the judge on the bench, namely, to show, or _teach_ the + law, but not to take upon him the trial of the delinquent, either in + matter of fact or in matter of law." (Here various Saxon laws are + quoted.) "In neither of these fundamental laws is there the least + word, hint, or idea, that the earl or alderman (that is to say, the + _Prepositus_ (presiding officer) of the court, which is tantamount to + _the judge on the bench_) is to take upon him to judge the delinquent + in any sense whatever, the sole purport of his office is to _teach_ + the secular or worldly law."--_Ditto_, p. 57, _note_. + + "The administration of justice was carefully provided for; it was not + the caprice of their lord, _but the sentence of their peers, that + they obeyed. Each was the judge of his equals, and each by his equals + was judged._"--_Introd. to Gilbert on Tenures_, p. 12. + + Hallam says: "A respectable class of free socagers, having, in + general, full rights of alienating their lands, and holding them + probably at a small certain rent from the lord of the manor, + frequently occur in Domes-day Book. * * They undoubtedly were suitors + to the court-baron of the lord, to whose soc, or right of justice, + they belonged. _They were consequently judges in civil causes, + determined before the manorial tribunal._"--_2 Middle Ages_, 481. + +Stephens adopts as correct the following quotations from Blackstone: + + "The _Court-Baron_ is a court incident to every manor in the kingdom, + to be holden by the steward within the said manor." * * _It "is a + court of common law, and it is the court before the freeholders who + owe suit and service to the manor_," (are bound to serve as jurors in + the courts of the manor,) "_the steward being rather the registrar + than the judge_. * * The freeholders' court was composed of the + lord's tenants, who were the _pares_ (equals) of each other, and were + bound by their feudal tenure to assist their lord in the dispensation + of domestic justice. This was formerly held every three weeks; _and + its most important business was to determine, by writ of right, all + controversies relating to the right of lands within the manor_."--_3 + Stephens' Commentaries_, 392-3. _3 Blackstone_, 32-3. + + "A _Hundred Court_ is only a larger court-baron, being held for all + the inhabitants of a particular hundred, instead of a manor. _The + free suitors (jurors) are here also the judges, and the steward the + register._"--_3 Stephens_, 394. _3 Blackstone_, 33. + + "The _County Court_ is a court incident to the jurisdiction of the + sheriff. * * _The freeholders of the county are the real judges in + this court, and the sheriff is the ministerial officer._"--_3 + Stephens_, 395-6. _3 Blackstone_, 35-6. + +Blackstone describes these courts, as courts "_wherein injuries were +redressed in an easy and expeditious manner, by the suffrage of +neighbors and friends_."--_3 Blackstone_, 30. + + "When we read of a certain number of _freemen_ chosen by the parties + to decide in a dispute--all bound by oath to vote _in foro + conscientia_--and that _their_ decision, _not the will of the judge + presiding, ended the suit_, we at once perceive that a great + improvement has been made in the old form of compurgation--an + improvement which impartial observation can have no hesitation to + pronounce as identical in its main features with the trial by + jury."--_Dunham's Middle Ages_, Sec. 2, B. 2, Ch. 1. _57 Lardner's + Cab. Cyc._, 60. + + "The bishop and the earl, or, in his absence, the gerefa, (sheriff,) + and sometimes both the earl and the gerefa, presided at the + _schyre-mote_ (county court); the gerefa (sheriff) usually alone + presided at the _mote_ (meeting or court) of the hundred. In the + cities and towns which were not within any peculiar jurisdiction, + there was held, at regular stated intervals, a _burgh mote_, (borough + court,) for the administration of justice, at which a gerefa, or a + magistrate appointed by the king, presided."--_Spence's Origin of the + Laws and Political Institutions of Modern Europe_, p. 444. + + "The right of the plaintiff and defendant, and of the prosecutor and + criminal, _to challenge the judices_, (judges,) _or assessors,[50] + appointed to try the cause in civil matters, and to decide upon the + guilt or innocence of the accused in criminal matters_, is recognized + in the treatise called the Laws of Henry the First; but I cannot + discover, from the Anglo-Saxon laws or histories, that before the + Conquest the parties had any general right of challenge; _indeed, had + such right existed, the injunctions to all persons standing in the + situation of judges (jurors) to do right according to their + conscience_, would scarcely have been so frequently and anxiously + repeated."--_Spence_, 456. + +Hale says: + + "The administration of the common justice of the kingdom seems to be + wholly dispensed in the county courts, hundred courts, and + courts-baron; except some of the greater crimes reformed by the laws + of King Henry I., and that part thereof which was sometimes taken up + by the _Justitiarius Angliæ_." + + This doubtless bred great inconvenience, uncertainty, and variety in + the laws, viz.: + + "_First, by the ignorance of the judges, which were the freeholders + of the county._ * * + + "Thirdly, a third inconvenience was, that all the business of any + moment was carried by parties and factions. _For the freeholders + being generally the judges_, and conversing one among another, _and + being as it were the chief judges, not only of the fact, but of the + law_; every man that had a suit there, sped according as he could + make parties."--_1 Hale's History of the Common Law_, p. 246. + + "In all these tribunals," (county court, hundred court, &c.,) "_the + judges were the free tenants_, owing suit to the court, and + afterwards called its peers."--_1 Lingard's History of England_, 488. + +Henry calls the twelve jurors "assessors," and says: + + "These assessors, _who were in reality judges_, took a solemn oath, + that they would faithfully discharge the duties of their office, and + not suffer an innocent man to be condemned, nor any guilty person to + be acquitted."--_3 Henry's History of Great Britain_, 346. + +Tyrrell says: + + "Alfred cantoned his kingdom, first into _Trihings_ and _Lathes_, as + they are still called in Kent and other places, consisting of three + or four Hundreds; _in which, the freeholders being judges_, such + causes were brought as could not be determined in the Hundred + court."--_Tyrrell's Introduction to the History of England_, p. 80. + +Of the _Hundred Court_ he says: + + "In this court anciently, _one of the principal inhabitants, called + the alderman, together with the barons of the Hundred[51]--id est the + freeholders--was judge_."--_Ditto_, p. 80. + +Also he says: + + "By a law of Edward the Elder, 'Every sheriff shall convene the + people once a month, and do equal right to all, putting an end to + controversies at times appointed.'"--_Ditto_, p. 86. + + "A statute, emphatically termed the 'Grand Assize,' enabled the + defendant, if he thought proper, to abide by the testimony of the + twelve good and lawful knights, chosen by four others of the + vicinage, _and whose oaths gave a final decision to the contested + claim_."--_1 Palgrave's Rise and Progress of the English + Commonwealth_, 261. + + "From the moment when the crown became accustomed to the 'Inquest,' a + restraint was imposed upon every branch of the prerogative. _The king + could never be informed of his rights, but through the medium of the + people._ Every 'extent' by which he claimed the profits and + advantages resulting from the casualties of tenure, every process by + which he repressed the usurpations of the baronage, depended upon the + 'good men and true' who were impanelled to 'pass' between the subject + and the sovereign; and the thunder of the Exchequer at Westminster + might be silenced by the honesty, the firmness, or the obstinacy, of + one sturdy knight or yeoman in the distant shire. + + Taxation was controlled in the same manner by the voice of those who + were most liable to oppression. * * A jury was impanelled to adjudge + the proportion due to the sovereign; and this course was not + essentially varied, even after the right of granting aids to the + crown was fully acknowledged to be vested in the parliament of the + realm. The people taxed themselves; and the collection of the grants + was checked and controlled, and, perhaps, in many instances evaded, + by these virtual representatives of the community. + + The principle of the jury was, therefore, not confined to its mere + application as a mode of trying contested facts, whether in civil or + criminal cases; and, both in its form and in its consequences, it had + a very material influence upon the general constitution of the realm. + * * The main-spring of the machinery of remedial justice existed in + the franchise of the lower and lowest orders of the political + hierarchy. Without the suffrage of the yeoman, the burgess, and the + churl, the sovereign could not exercise the most important and most + essential function of royalty; from them he received the power of + life and death; he could not wield the sword of justice until the + humblest of his subjects placed the weapon in his hand."--_1 + Palgrave's Rise and Progress of the English Constitution_, 274-7. + +Coke says, "The court of the county is no court of record,[52] _and the +suitors are the judges thereof_."--_4 Inst._, 266. + +Also, "The court of the Hundred is no court of record, _and the suitors +be thereof judges_."--_4 Inst._, 267. + +Also, "The court-baron is a court incident to every manor, and is not of +record, _and the suitors be thereof judges_."--_4 Inst._, 268. + +Also, "The court of ancient demesne is in the nature of a court-baron, +_wherein the suitors are judges_, and is no court of record."--_4 +Inst._, 269. + +Millar says, "Some authors have thought that jurymen were originally +_compurgators_, called by a defendant to swear that they believed him +innocent of the facts with which he was charged.... But ... compurgators +were merely witnesses; _jurymen were, in reality, judges_. The former +were called to confirm the oath of the party by swearing, according to +their belief, that he had told the truth, (in his oath of purgation;) +_the latter were appointed to try, by witnesses, and by all other means +of proof, whether he was innocent or guilty_.... Juries were accustomed +to ascertain the truth of facts, by the defendant's oath of purgation, +together with that of his compurgators.... Both of them (jurymen and +compurgators) were obliged to swear that they would _tell the truth_.... +According to the simple idea of our forefathers, guilt or innocence was +regarded as a mere matter of fact; and it was thought that no man, who +knew the real circumstances of a case, could be at a loss to determine +whether the culprit ought to be condemned or acquitted."--_1 Millar's +Hist. View of Eng. Gov._, ch. 12, p. 332-4. + +Also, "The same form of procedure, which took place in the +administration of justice among the vassals of a barony, was gradually +extended to the courts held in the _trading towns_."--_Same_, p. 335. + +Also, "The same regulations, concerning the distribution of justice by +the intervention of juries, ... _were introduced into the baron courts +of the king_, as into those of the nobility, or such of his subjects as +retained their allodial property."--_Same_, p. 337. + +Also. "This tribunal" (the _aula regis_, or king's court, afterwards +divided into the courts of King's Bench, Common Pleas, and Exchequer) +"was properly the ordinary baron-court of the king; and, being in the +same circumstances with the baron-courts of the nobility, it was under +the same necessity of trying causes by the intervention of a +jury."--_Same_, vol. 2, p. 292. + +Speaking of the times of Edward the First, (1272 to 1307,) Millar says: + +"What is called the petty jury was therefore introduced into these +tribunals, (the King's Bench, the Common Pleas, and the _Exchequer_,) as +well as into their auxiliary courts employed to distribute justice in +the circuits; and was thus rendered essentially necessary in determining +causes of every sort, whether civil, criminal, or _fiscal_."--_Same_, +vol. 2, p. 293-4. + +Also, "That this form of trial (by jury) obtained universally in all the +feudal governments, as well as in that of England, there can be no +reason to doubt. In France, in Germany, and in other European countries, +where we have any accounts of the constitution and procedure of the +feudal courts, it appears that lawsuits of every sort concerning the +freemen or vassals of a barony, were determined by the _pares curiæ_ +(peers of the court;) _and that the judge took little more upon him than +to regulate the method of proceeding, or to declare the verdict of the +jury_."--_Same_, vol. 1, ch. 12, p. 329. + +Also, "Among the Gothic nations of modern Europe, the custom of deciding +lawsuits by a jury seems to have prevailed universally; first in the +allodial courts of the county, or of the hundred, and afterwards in the +baron-courts of every feudal superior."--_Same_, vol. 2, p. 296. + +Palgrave says that in Germany "The Graff (gerefa, sheriff) placed +himself in the seat of judgment, and gave the charge to the assembled +free Echevins, warning them to pronounce judgment according to right and +justice."--2 _Palgrave_, 147. + +Also, that, in Germany, "The Echevins were composed of the villanage, +somewhat obscured in their functions by the learning of the grave +civilian who was associated to them, and somewhat limited by the +encroachments of modern feudality; _but they were still substantially +the judges of the court_."--_Same_, 148. + +Palgrave also says, "Scotland, in like manner, had the laws of Burlaw, +or Birlaw, which were made and determined by the neighbors, elected by +common consent, in the Burlaw or Birlaw courts, wherein knowledge was +taken of complaints between neighbor and neighbor, _which men, so +chosen, were judges and arbitrators_, and called Birlaw men."--1 +_Palgrave's Rise_, &c., p. 80. + +But, in order to understand the common law trial by jury, as it existed +prior to Magna Carta, and as it was guaranteed by that instrument, it is +perhaps indispensable to understand more fully the nature of the courts +in which juries sat, and the extent of the powers exercised by juries in +those courts. I therefore give in a note extended extracts, on these +points, from Stuart on the Constitution of England, and from +Blackstone's Commentaries.[53] + +That all these courts were mere _courts of conscience, in which the +juries were sole judges, administering justice according to their own +ideas of it_, is not only shown by the extracts already given, but is +explicitly acknowledged in the following one, in which the _modern +"courts of conscience"_ are compared with the _ancient hundred and +county courts_, and the preference given to the latter, on the ground +that the duties of the jurors in the one case, and of the commissioners +in the other, are the same, and that the consciences of a jury are a +safer and purer tribunal than the consciences of individuals specially +appointed, and holding permanent offices. + + "But there is one species of courts constituted by act of Parliament, + in the city of London, and other trading and populous districts, + which, in their proceedings, so vary from the course of the common + law, that they deserve a more particular consideration. I mean the + court of requests, _or courts of conscience_, for the recovery of + small debts. The first of these was established in London so early as + the reign of Henry VIII., by an act of their common council; which, + however, was certainly insufficient for that purpose, and illegal, + till confirmed by statute 3 Jac. I., ch. 15, which has since been + explained and amended by statute 14 Geo. II., ch. 10. The + constitution is this: two aldermen and four commoners sit twice a + week to hear all causes of debt not exceeding the value of forty + shillings; which they examine in a summary way, by the oath of the + parties or other witnesses, _and make such order therein as is + consonant to equity and good conscience_.* * Divers trading towns and + other districts have obtained acts of Parliament, for establishing + in them _courts of conscience_ upon nearly the same plan as that in + the city of London. + + "The anxious desire that has been shown to obtain these several acts, + proves clearly that the nation, in general, is truly sensible of the + great inconvenience arising from the disuse of the ancient county and + hundred courts, wherein causes of this small value were always + formerly decided with very little trouble and expense to the parties. + But it is to be feared that the general remedy, which of late hath + been principally applied to this inconvenience, (the erecting these + new jurisdictions,) may itself be attended in time with very ill + consequences; as the method of proceeding therein is entirely in + derogation of the common law; and their large discretionary powers + create a petty tyranny in a set of standing commissioners; and as the + disuse of the trial by jury may tend to estrange the minds of the + people from that valuable prerogative of Englishmen, which has + already been more than sufficiently excluded in many instances. _How + much rather is it to be wished that the proceedings in the county and + hundred courts could be again revived_, without burdening the + freeholders with too frequent and tedious attendances; and at the + same time removing the delays that have insensibly crept into their + proceedings, and the power that either party has of transferring at + pleasure their suits to the courts at Westminster! _And we may, with + satisfaction, observe, that this experiment has been actually tried, + and has succeeded in the populous county of Middlesex_, which might + serve as an example for others. For by statute 23 Geo. II., ch. 33, + it is enacted: + + 1. That a special county court shall be held at least once in a + month, in every hundred of the county of Middlesex, _by the county + clerk_. + + 2. _That twelve freeholders of that hundred, qualified to serve on + juries, and struck by the sheriff, shall be summoned to appear at + such court by rotation_; so as none shall be summoned oftener than + once a year. + + 3. That in all causes not exceeding the value of forty shillings, + _the county clerk and twelve suitors (jurors) shall proceed in a + summary way_, examining the parties and witnesses on oath, without + the formal process anciently used; _and shall make such order therein + as they shall judge agreeable to conscience_."--_3 Blackstone_, + 81-83. + +What are these but courts of conscience? And yet Blackstone tells us +they are a _revival of the ancient hundred and county courts_. And what +does this fact prove, but that the ancient common law courts, in which +juries sat, were mere courts of conscience? + +It is perfectly evident that in all these courts the jurors were the +judges, and determined all questions of law for themselves; because the +only alternative to that supposition is, _that the jurors took their law +from sheriffs, bailiffs, and stewards_, of which there is not the least +evidence in history, nor the least probability in reason. It is evident, +also, that they judged independently of the laws of the king, for the +reasons before given, viz., that the authority of the king was held in +very little esteem; and, secondly, that the laws of the king (not being +printed, and the people being unable to read them if they had been +printed) must have been in a great measure unknown to them, and could +have been received by them only on the authority of the sheriff, +bailiff, or steward. If laws were to be received by them on the +authority of these officers, the latter would have imposed such laws +upon the people as they pleased. + +These courts, that have now been described, were continued in full power +long after Magna Carta, no alteration being made in them by that +instrument, _nor in the mode of administering justice in them_. + +There is no evidence whatever, so far as I am aware, that the juries had +any _less_ power in the courts held by the king's justices, than in +those held by sheriffs, bailiffs, and stewards; and there is no +probability whatever that they had. All the difference between the +former courts and the latter undoubtedly was, that, in the former, the +juries had the benefit of the advice and assistance of the justices, +which would, of course, be considered valuable in difficult cases, on +account of the justices being regarded as more learned, not only in the +laws of the king, but also in the common law, or "law of the land." + +The conclusion, therefore, I think, inevitably must be, that neither the +laws of the king, nor the instructions of his justices, had any +authority over jurors beyond what the latter saw fit to accord to them. +And this view is confirmed by this remark of Hallam, the truth of which +all will acknowledge: + + "The rules of legal decision, among a rude people, are always very + simple; not serving much to guide, far less to control the feelings + of natural equity."--_2 Middle Ages_, ch. 8, part 2, p. 465. + +It is evident that it was in this way, _by the free and concurrent +judgments of juries, approving and enforcing certain laws and rules of +conduct, corresponding to their notions of right and justice_, that the +laws and customs, which, for the most part, made up the _common law_, +and were called, at that day, "_the good laws, and good customs_," and +"_the law of the land_," were established. How otherwise could they ever +have become established, as Blackstone says they were, "_by long and +immemorial usage, and by their universal reception throughout the +kingdom_,"[54] when, as the Mirror says, "_justice was so done, that +every one so judged his neighbor, by such judgment as a man could not +elsewhere receive in the like cases, until such times as the customs of +the realm were put in writing and certainly published_?" + +The fact that, in that dark age, so many of the principles of natural +equity, as those then embraced in the _Common Law_, should have been so +uniformly recognized and enforced by juries, as to have become +established by general consent as "_the law of the land_;" and the +further fact that this "law of the land" was held so sacred that even +the king could not lawfully infringe or alter it, but was required to +swear to maintain it, are beautiful and impressive illustrations of the +truth that men's minds, even in the comparative infancy of other +knowledge, have clear and coincident ideas of the elementary principles, +and the paramount obligation, of justice. The same facts also prove that +the common mind, and the general, or, perhaps, rather, the universal +conscience, as developed in the untrammelled judgments of juries, may be +safely relied upon for the preservation of individual rights in civil +society; and that there is no necessity or excuse for that deluge of +arbitrary legislation, with which the present age is overwhelmed, under +the pretext that unless laws be _made_, the law will not be known; a +pretext, by the way, almost universally used for overturning, instead of +establishing, the principles of justice. + + +SECTION III. + +_The Oaths of Jurors._ + +The oaths that have been administered to jurors, in England, and which +are their _legal_ guide to their duty, _all_ (so far as I have +ascertained them) corroborate the idea that the jurors are to try all +cases on their intrinsic merits, independently of any laws that they +deem unjust or oppressive. It is probable that an oath was never +administered to a jury in England, either in a civil or criminal case, +to try it _according to law_. + +The earliest oath that I have found prescribed by law to be administered +to jurors is in the laws of Ethelred, (about the year 1015,) which +require that the jurors "_shall swear, with their hands upon a holy +thing, that they will condemn no man that is innocent, nor acquit any +that is guilty_."--_4 Blackstone_, 302. _2 Turner's History of the +Anglo-Saxons, 155. Wilkins' Laws of the Anglo-Saxons_, 117. _Spelman's +Glossary_, word _Jurata_. + +Blackstone assumes that this was the oath of the _grand_ jury (_4 +Blackstone_, 302); but there was but one jury at the time this oath was +ordained. The institution of two juries, grand and petit, took place +after the Norman Conquest. + +Hume, speaking of the administration of justice in the time of Alfred, +says that, in every hundred, + + "Twelve freeholders were chosen, who, having sworn, together with the + hundreder, or presiding magistrate of that division, _to administer + impartial justice_, proceeded to the examination of that cause which + was submitted to their jurisdiction."--_Hume_, ch. 2. + +By a law of Henry II., in 1164, it was directed that the sheriff +"_faciet jurare duodecim legales homines de vicineto seu de villa, quod +inde veritatem secundum conscientiam suam manifestabunt_," (shall make +twelve legal men from the neighborhood _to swear that they will make +known the truth according to their conscience_.)--_Crabbe's History of +the English Law_, 119. _1 Reeves_, 87. _Wilkins_, 321-323. + +Glanville, who wrote within the half century previous to Magna Carta, +says: + + "Each of the knights summoned for this purpose (as jurors) ought to + swear that he will neither utter that which is false, nor knowingly + conceal the truth."--_Beames' Glanville_, 65. + +Reeve calls the trial by jury "_the trial by twelve men sworn to speak +the truth_."--_1 Reeve's History of the English Law_, 87. + +Henry says that the jurors "took a solemn oath, that they would +faithfully discharge the duties of their office, and not suffer an +innocent man to be condemned, nor any guilty person to be +acquitted."--_3 Henry's Hist. of Great Britain_, 346. + +The _Mirror of Justices_, (written within a century after Magna Carta,) +in the chapter on the abuses of the Common Law, says: + + "It is abuse to use the words, _to their knowledge_, in their oaths, + to make the jurors speak upon thoughts, _since the chief words of + their oaths be that they speak the truth_."--p. 249. + +Smith, writing in the time of Elizabeth, says that, in _civil_ suits, +the jury "be sworn to declare the truth of that issue according to the +evidence, and their conscience."--_Smith's Commonwealth of England_, +edition of 1621, p. 73. + +In _criminal_ trials, he says: + + "The clerk giveth the juror an oath to go uprightly betwixt the + prince and the prisoner."--_Ditto_, p. 90.[55] + +Hale says: + + "Then twelve, and no less, of such as are indifferent and are + returned upon the principal panel, or the _tales_, are sworn to try + the same according to the evidence."--_2 Hale's History of the Common + Law_, 141. + +It appears from Blackstone that, even _at this day, neither in civil nor +criminal cases_, are jurors in England sworn to try causes _according to +law_. He says that in civil suits the jury are + + "Sworn well and truly to _try the issue_ between the parties, and a + true verdict to give according to the evidence."--_3 Blackstone_, + 365. + +"_The issue_" to be tried is whether A owes B anything; and if so, how +much? or whether A has in his possession anything that belongs to B; or +whether A has wronged B, and ought to make compensation; and if so, how +much? + +No statute passed by a legislature, simply as a legislature, can alter +either of these "issues" in hardly any conceivable case, perhaps in +none. No _unjust_ law could ever alter them in any. They are all mere +questions of natural justice, which legislatures have no power to alter, +and with which they have no right to interfere, further than to provide +for having them settled by the most competent and impartial tribunal +that it is practicable to have, and then for having all just decisions +enforced. And any tribunal, whether judge or jury, that attempts to try +these issues, has no more moral right to be swerved from the line of +justice, by the will of a legislature, than by the will of any other +body of men whatever. And this oath does not require or permit a jury to +be so swerved. + +In criminal cases, Blackstone says the oath of the jury in England is: + + "Well and truly to try, and true deliverance make, between our + sovereign lord, the king, and the prisoner whom they have in charge, + and a true verdict to give according to the evidence."--_4 + Blackstone_, 355. + +"The issue" to be tried, in a criminal case, is "_guilty_," or "_not +guilty_." The laws passed by a legislature can rarely, if ever, have +anything to do with this issue. "_Guilt_" is an _intrinsic_ quality of +actions, and can neither be created, destroyed, nor changed by +legislation. And no tribunal that attempts to try this issue can have +any moral right to declare a man _guilty_, for an act that is +intrinsically innocent, at the bidding of a legislature, any more than +at the bidding of anybody else. And this oath does not require or permit +a jury to do so. + +The words, "_according to the evidence_," have doubtless been introduced +into the above oaths in modern times. They are unquestionably in +violation of the Common Law, and of Magna Carta, if by them be meant +such evidence only as the government sees fit to allow to go to the +jury. If the government can dictate the evidence, and require the jury +to decide according to that evidence, it necessarily dictates the +conclusion to which they must arrive. In that case the trial is really a +trial by the government, and not by the jury. _The jury_ cannot _try an +issue_, unless _they_ determine what evidence shall be admitted. The +ancient oaths, it will be observed, say nothing about "_according to the +evidence_." They obviously take it for granted that the jury try the +whole case; and of course that _they_ decide what evidence shall be +admitted. It would be intrinsically an immoral and criminal act for a +jury to declare a man guilty, or to declare that one man owed money to +another, unless all the evidence were admitted, which _they_ thought +ought to be admitted, for ascertaining the truth.[56] + +_Grand Jury._--If jurors are bound to enforce all laws passed by the +legislature, it is a very remarkable fact that the oath of grand juries +does not require them to be governed by the laws in finding indictments. +There have been various forms of oath administered to grand jurors; but +by none of them that I recollect ever to have seen, except those of the +States of Connecticut and Vermont, are they sworn to present men +_according to law_. The English form, as given in the essay on Grand +Juries, written near two hundred years ago, and supposed to have been +written by _Lord Somers_, is as follows: + + "You shall diligently inquire, and true presentment make, of all such + articles, matters, and things, as shall be given you in charge, and + of all other matters and things as shall come to your knowledge + touching this present service. The king's council, your fellows, and + your own, you shall keep secret. You shall present no person for + hatred or malice; neither shall you leave any one unpresented for + favor, or affection, for love or gain, or any hopes thereof; but in + all things you shall present the truth, the whole truth, and nothing + but the truth, to the best of your knowledge. So help you God." + +This form of oath is doubtless quite ancient, for the essay says "our +ancestors appointed" it.--_See Essay_, p. 33-34. + +On the obligations of this oath, the essay says: + + "If it be asked how, or in what manner, the (grand) juries shall + inquire, the answer is ready, _according to the best of their + understandings_. They only, not the judges, are sworn to search + diligently to find out all treasons, &c., within their charge, and + they must and ought to use their own discretion in the way and manner + of their inquiry. _No directions can legally be imposed upon them by + any court or judges_; an honest jury will thankfully accept good + advice from judges, as their assistants; but they are bound by their + oaths to present the truth, the whole truth, and nothing but the + truth, to the best of their own, not the judge's, knowledge. Neither + can they, without breach of that oath, resign their consciences, or + blindly submit to the dictates of others; and therefore ought to + receive or reject such advices, as they judge them good or bad. * * + Nothing can be more plain and express than the words of the oath are + to this purpose. The jurors need not search the law books, nor tumble + over heaps of old records, for the explanation of them. Our greatest + lawyers may from hence learn more certainly our ancient law in this + case, than from all the books in their studies. The language wherein + the oath is penned is known and understood by every man, and the + words in it have the same signification as they have wheresoever else + they are used. The judges, without assuming to themselves a + legislative power, cannot put a new sense upon them, other than + according to their genuine, common meaning. They cannot magisterially + impose their opinions upon the jury, and make them forsake the direct + words of their oath, to pursue their glosses. The grand inquest are + bound to observe alike strictly every part of their oath, and to use + all just and proper ways which may enable them to perform it; + otherwise it were to say, that after men had sworn to inquire + diligently after the truth, according to the best of their knowledge, + they were bound to forsake all the natural and proper means which + their understandings suggest for the discovery of it, if it be + commanded by the judges."--_Lord Somers' Essay on Grand Juries_, p. + 38. + +What is here said so plainly and forcibly of the oath and obligations of +grand juries, is equally applicable to the oath and obligations of petit +juries. In both cases the simple oaths of the jurors, and not the +instructions of the judges, nor the statutes of kings nor legislatures, +are their legal guides to their duties.[57] + + +SECTION IV. + +_The Right of Juries to fix the Sentence._ + +The nature of the common law courts existing prior to Magna Carta, such +as the county courts, the hundred courts, the court-leet, and the +court-baron, all prove, what has already been proved from Magna Carta, +that, in jury trials, the juries fixed the sentence; because, in those +courts, there was no one but the jury who could fix it, unless it were +the sheriff, bailiff, or steward; and no one will pretend that it was +fixed by them. The juries unquestionably gave the "judgment" in both +civil and criminal cases. + +That the juries were to fix the sentence under Magna Carta, is also +shown by statutes subsequent to Magna Carta. + +A statute passed fifty-one years after Magna Carta, says that a baker, +for default in the weight of his bread, "_debeat_ amerciari vel subire +judicium pilloræ,"--that is, "_ought_ to be amerced, or suffer the +sentence of the pillory." And that a brewer, for "selling ale, contrary +to the assize," "_debeat_ amerciari, vel pati judicium tumbrelli;" that +is, "_ought_ to be amerced, or suffer judgment of the tumbrel."--_51 +Henry III._, st. 6. (1266.) + +If the king (the legislative power) had had authority to fix the +punishments of these offences imperatively, he would naturally have said +these offenders _shall_ be amerced, and _shall_ suffer judgment of the +pillory and tumbrel, instead of thus simply expressing the opinion that +they _ought_ to be punished in that manner. + +The statute of Westminster, passed sixty years after Magna Carta, +provides that, + + "No city, borough, nor town, _nor any man_, be amerced, without + reasonable cause, and according to the quantity of the trespass; that + is to say, every freeman saving his freehold, a merchant saving his + merchandise, a villein his waynage, _and that by his or their + peers_."--_3 Edward I._, ch. 6. (1275.) + +The same statute (ch. 18) provides further, that, + + "Forasmuch as the _common fine and amercement_ of the whole county in + Eyre of the justices for false judgments, or for other trespass, is + unjustly assessed by sheriffs and baretors in the shires, so that the + sum is many times increased, and the parcels otherwise assessed than + they ought to be, to the damage of the people, which be many times + paid to the sheriffs and baretors, which do not acquit the payers; it + is provided, and the king wills, that from henceforth such sums shall + be assessed before the justices in Eyre, afore their departure, _by + the oath of knights and other honest men_, upon all such as ought to + pay; and the justices shall cause the parcels to be put into their + estreats, which shall be delivered up unto the exchequer, and not the + whole sum."--_St. 3 Edward I._, ch. 18, (1275.)[58] + +The following statute, passed in 1341, one hundred and twenty-five years +after Magna Carta, providing for the trial of peers of the realm, and +the king's ministers, contains a recognition of the principle of Magna +Carta, that the jury are to fix the sentence. + + "Whereas before this time the peers of the land have been arrested + and imprisoned, and their temporalities, lands, and tenements, goods + and cattels, asseized in the king's hands, and some put to death + without judgment of their peers: It is accorded and assented, that no + peer of the land, officer, nor other, because of his office, nor of + things touching his office, nor by other cause, shall be brought in + judgment to lose his temporalities, lands, tenements, goods and + cattels, nor to be arrested, nor imprisoned, outlawed, exiled, nor + forejudged, nor put to answer, nor be judged, but by _award_ + (_sentence_) of the said peers in Parliament."--_15 Edward III._, st. + 1, sec. 2. + +Section 4, of the same statute provides, + + "That in every Parliament, at the third day of every Parliament, the + king shall take in his hands the offices of all the ministers + aforesaid," (that is, "the chancellor, treasurer, barons, and + chancellor of the exchequer, the justices of the one bench and of the + other, justices assigned in the country, steward and chamberlain of + the king's house, keeper of the privy seal, treasurer of the + wardrobe, controllers, and they that be chief deputed to abide nigh + the king's son, Duke of Cornwall,") "and so they shall abide four or + five days; except the offices of justices of the one place or the + other, justices assigned, barons of exchequer; so always that they + and all other ministers be put to answer to every complaint; and if + default be found in any of the said ministers, by complaint or other + manner, and of that attainted in Parliament, he shall be punished by + judgment of the peers, and put out of his office, and another + convenient put in his place. And upon the same our said sovereign + lord the king shall do (cause) to be pronounced and made execution + without delay, _according to the judgment_ (_sentence_) of the said + peers in the Parliament." + +Here is an admission that the peers were to fix the sentence, or +judgment, and the king promises to make execution "_according to_" that +sentence. + +And this appears to be the law, under which peers of the realm and the +great officers of the crown were tried and sentenced, for four hundred +years after its passage, and, for aught I know, until this day. + +The first case given in Hargrave's collection of English State Trials, +is that of _Alexander Nevil_, Archbishop of York, _Robert Vere_, Duke +of Ireland, _Michael de la Pole_, Earl of Suffolk, and _Robert +Tresilian_, Lord Chief Justice of England, with several others, +convicted of treason, before "the Lords of Parliament," in 1388. The +sentences in these cases were adjudged by the "Lords of Parliament," in +the following terms, as they are reported. + + "Wherefore the said _Lords of Parliament_, there present, as judges + in Parliament, in this case, _by assent of the king, pronounced their + sentence_, and did adjudge the said archbishop, duke, and earl, with + Robert Tresilian, so appealed, as aforesaid, to be guilty, and + convicted of treason, and to be drawn and hanged, as traitors and + enemies to the king and kingdom; and that their heirs should be + disinherited forever, and their lands and tenements, goods and + chattels, forfeited to the king, and that the temporalities of the + Archbishop of York should be taken into the king's hands." + + Also, in the same case, Sir _John Holt_, Sir _William Burgh_, Sir + _John Cary_, Sir _Roger Fulthorpe_, and _John Locton_, "_were by the + lords temporal, by the assent of the king_, adjudged to be drawn and + hanged, as traitors, their heirs disinherited, and their lands and + tenements, goods and chattels, to be forfeited to the king." + + Also, in the same case, _John Blake_, "of council for the king," and + _Thomas Uske_, under sheriff of Middlesex, having been convicted of + treason, + + "_The lords awarded, by assent of the king_, that they should both be + hanged and drawn as traitors, as open enemies to the king and + kingdom, and their heirs disinherited forever, and their lands and + tenements, goods and chattels, forfeited to the king." + + Also, "_Simon Burleigh_, the king's chamberlain," being convicted of + treason, "_by joint consent of the king and the lords_, sentence was + pronounced against the said Simon Burleigh, that he should be drawn + from the town to Tyburn, and there be hanged till he be dead, and + then have his head struck from his body." + + Also, "_John Beauchamp_, steward of the household to the king, _James + Beroverse_, and _John Salisbury_, knights, gentlemen of the privy + chamber, _were in like manner condemned_."--_1 Hargrave's State + Trials_, first case. + +Here the sentences were all fixed by the peers, _with the assent of the +king_. But that the king should be consulted, and his assent obtained to +the sentence pronounced by the peers, does not imply any deficiency of +power on their part to fix the sentence independently of the king. There +are obvious reasons why they might choose to consult the king, and +obtain his approbation of the sentence they were about to impose, +without supposing any legal necessity for their so doing. + +So far as we can gather from the reports of state trials, peers of the +realm were usually sentenced by those who tried them, _with the assent +of the king_. But in some instances no mention is made of the assent of +the king, as in the case of "Lionel, Earl of Middlesex, Lord High +Treasurer of England," in 1624, (four hundred years after Magna Carta,) +where the sentence was as follows: + + "This High Court of Parliament doth adjudge, that Lionel, Earl of + Middlesex, now Lord Treasurer of England, shall lose all his offices + which he holds in this kingdom, and shall, hereafter, be made + incapable of any office, place, or employment in the state and + commonwealth. That he shall be imprisoned in the tower of London, + during the king's pleasure. That he shall pay unto our sovereign lord + the king a fine of 50,000 pounds. That he shall never sit in + Parliament any more, and that he shall never come within the verge of + the court."--_2 Howell's State Trials_, 1250. + +Here was a peer of the realm, and a minister of the king, of the highest +grade; and if it were ever _necessary_ to obtain the assent of the king +to sentences pronounced by the peers, it would unquestionably have been +obtained in this instance, and his assent would have appeared in the +sentence. + +_Lord Bacon_ was sentenced by the House of Lords, (1620,) _no mention +being made of the assent of the king_. The sentence is in these words: + + "And, therefore, this High Court doth adjudge, That the Lord Viscount + St. Albans, Lord Chancellor of England, shall undergo fine and ransom + of 40,000 pounds. That he shall be imprisoned in the tower during the + king's pleasure. That he shall forever be incapable of any office, + place, or employment in the state or commonwealth. That he shall + never sit in Parliament, nor come within the verge of the court." + +And when it was demanded of him, before sentence, whether it were his +hand that was subscribed to his confession, and whether he would stand +to it; he made the following answer, which implies that the lords were +the ones to determine his sentence. + + "My lords, it is my act, my hand, my heart. _I beseech your lordships + to be merciful to a broken reed._"--_1 Hargrave's State Trials_, + 386-7. + +The sentence against Charles the First, (1648,) after reciting the +grounds of his condemnation, concludes in this form: + + "For all which treasons and crimes, _this court doth adjudge_, that + he, the said Charles Stuart, as a tyrant, traitor, murderer, and + public enemy to the good people of this nation, shall be put to death + by the severing his head from his body." + +The report then adds: + + "This sentence being read, the president (of the court) spake as + followeth: 'This sentence now read and published, is the act, + sentence, judgment and resolution of the whole court.'"--_1 + Hargrave's State Trials_, 1037. + +Unless it had been the received "_law of the land_" that those who tried +a man should fix his sentence, it would have required an act of +Parliament to fix the sentence of Charles, and his sentence would have +been declared to be "_the sentence of the law_," instead of "_the act, +sentence, judgment, and resolution of the court_." + +But the report of the proceedings in "the trial of Thomas, Earl of +Macclesfield, Lord High Chancellor of Great Britain, before the House of +Lords, for high crimes and misdemeanors in the execution of his office," +in 1725, is so full on this point, and shows so clearly that it rested +wholly with the lords to fix the sentence, and that the assent of the +king was wholly unnecessary, that I give the report somewhat at length. + +_After being found guilty_, the earl addressed the _lords_, for a +_mitigation of sentence_, as follows: + + "'I am now to expect your lordships' judgment; and I hope that you + will be pleased to consider that I have suffered no small matter + already in the trial, in the expense I have been at, the fatigue, and + what I have suffered otherways. * * I have paid back 10,800 pounds of + the money already; I have lost my office; I have undergone the + censure of both houses of Parliament, which is in itself a severe + punishment,'" &c., &c. + +On being interrupted, he proceeded: + + "'My lords, I submit whether this be not proper in _mitigation of + your lordships' sentence_; but whether it be or not, I leave myself + to your lordships' justice and mercy; I am sure neither of them will + be wanting, and I entirely submit.' * * + + "Then the said earl, as also the managers, were directed to withdraw; + and the House (of Lords) ordered Thomas, Earl of Macclesfield, to be + committed to the custody of the gentleman usher of the black rod; and + then proceeded to the consideration of what _judgment_," (that is, + _sentence_, for he had already been found _guilty_,) "to give upon + the impeachment against the said earl." * * + + "The next day, the Commons, with their speaker, being present at the + bar of the House (of Lords), * * the speaker of the House of Commons + said as follows: + + "'My Lords, the knights, citizens, and burgesses in Parliament + assembled, in the name of themselves, and of all the commons of Great + Britain, did at this bar impeach Thomas, Earl of Macclesfield, of + high crimes and misdemeanors, and did exhibit articles of impeachment + against him, and have made good their charge. I do, therefore, in the + name of the knights, citizens, and burgesses, in Parliament + assembled, and of all the commons of Great Britain, demand _judgment_ + (_sentence_) of your lordships against Thomas, Earl of Macclesfield, + for the said high crimes and misdemeanors.' + + "Then the Lord Chief Justice King, Speaker of the House of Lords, + said: 'Mr. Speaker, the Lords are now ready to proceed to judgment in + the case by you mentioned. + + "'Thomas, Earl of Macclesfield, the Lords have unanimously found you + guilty of high crimes and misdemeanors, charged on you by the + impeachment of the House of Commons, and do now, according to law, + proceed to _judgment_ against you, which I am ordered to pronounce. + Their lordships' _judgment_ is, and this high court doth adjudge, + that you, Thomas, Earl of Macclesfield, be fined in the sum of thirty + thousand pounds unto our sovereign lord the king; and that you shall + be imprisoned in the tower of London, and there kept in safe custody, + until you shall pay the said fine.'"--_6 Hargrave's State Trials_, + 762-3-4. + +This case shows that the principle of Magna Carta, that a man should be +_sentenced only_ by his peers, was in force, and acted upon as law, in +England, so lately as 1725, (five hundred years after Magna Carta,) so +far as it applied to a _peer of the realm_. + +But the same principle, on this point, that applies to a peer of the +realm, applies to every freeman. The only difference between the two is, +that the peers of the realm have had influence enough to preserve their +constitutional rights; while the constitutional rights of the people +have been trampled upon and rendered obsolete by the usurpation and +corruption of the government and the courts. + + +SECTION V. + +_The Oaths of Judges._ + +As further proof that the legislation of the king, whether enacted with +or without the assent and advice of his parliaments, was of no authority +unless it were consistent with the _common law_, and unless juries and +judges saw fit to enforce it, it may be mentioned that it is probable +that no judge in England was ever sworn to observe the laws enacted +either by the king alone, or by the king with the advice and assent of +parliament. + +The judges were sworn to "_do equal law, and execution of right, to all +the king's subjects, rich and poor, without having regard to any +person_;" and that they will "_deny no man common right_;"[59] but they +were _not_ sworn to obey or execute any statutes of the king, or of the +king and parliament. Indeed, they are virtually sworn _not_ to obey any +statutes that are against "_common right_," or contrary to "_the common +law_," or "_law of the land_;" but to "certify the king thereof"--that +is, notify him that his statutes are against the common law;--and then +proceed to execute the _common law_, notwithstanding such legislation to +the contrary. The words of the oath on this point are these: + + "_That ye deny no man common right by (virtue of) the king's letters, + nor none other man's, nor for none other cause; and in case any + letters come to you contrary to the law_, (that is, the common law, + as will be seen on reference to the entire oath given in the note,) + _that ye do nothing by such letters, but certify the king thereof + and proceed to execute the law_, (that is, the common law,) + _notwithstanding the same letters_." + +When it is considered that the king was the sole legislative power, and +that he exercised this power, to a great extent, by orders in council, +and by writs and "letters" addressed often-times to some sheriff, or +other person, and that his commands, when communicated to his justices, +or any other person, "by letters," or writs, _under seal_, had as much +legal authority as laws promulgated in any other form whatever, it will +be seen that this oath of the justices _absolutely required_ that they +disregard any legislation that was contrary to "_common right_," or +"_the common law_," and notify the king that it was contrary to common +right, or the common law, and then proceed to execute the common law, +notwithstanding such legislation.[60] + +If there could be any doubt that such was the meaning of this oath, that +doubt would be removed by a statute passed by the king two years +afterwards, which fully explains this oath, as follows: + + "Edward, by the Grace of God, &c., to the Sheriff of _Stafford_, + greeting: Because that by divers complaints made to us, we have + perceived that _the Law of the Land, which we by our oath are bound + to maintain_, is the less well kept, and the execution of the same + disturbed many times by maintenance and procurement, as well in the + court as in the country; we greatly moved of conscience in this + matter, and for this cause desiring as much for the pleasure of God, + and ease and quietness of our subjects, as to save our conscience, + and for to save and keep our said oath, by the assent of the great + men and other wise men of our council, we have ordained these things + following: + + "First, we have commanded all our justices, that they shall from + henceforth _do equal law and execution of right_ to all our subjects, + rich and poor, without having regard to any person, _and without + omitting to do right for any letters or commandment which may come to + them from us, or from any other, or by any other cause. And if that + any letters, writs, or commandments come to the justices, or to other + deputed to do law and right according to the usage of the realm, in + disturbance of the law, or of the execution of the same, or of right + to the parties, the justices and other aforesaid shall proceed and + hold their courts and processes, where the pleas and matters be + depending before them, as if no such letters, writs, or commandments + were come to them; and they shall certify us and our council of such + commandments which be contrary to the law_, (that is, "the law of the + land," or common law,) _as afore is said_.[61] And to the intent that + our justices shall do even right to all people in the manner + aforesaid, without more favor showing to one than to another, we have + ordained and caused our said justices to be sworn, that they shall + not from henceforth, as long as they shall be in the office of + justice, take fee nor robe of any man, but of ourself, and that they + shall take no gift nor reward by themselves, nor by other, privily + nor apertly, of any man that hath to do before them by any way, + except meat and drink, and that of small value; and that they shall + give no counsel to great men or small, in case where we be party, or + which do or may touch us in any point, upon pain to be at our will, + body, lands, and goods, to do thereof as shall please us, in case + they do contrary. And for this cause we have increased the fees of + the same, our justices, in such manner as it ought reasonably to + suffice them."--_20 Edward III._, ch. 1. (1346.) + +Other statutes of similar tenor have been enacted, as follows: + + "It is accorded and established, that it shall not be commanded by + the great seal, nor the little seal, to disturb or delay _common + right_; and though such commandments do come, the justices shall not + therefore leave (omit) to do right in any point."--_St. 2 Edward + III._, ch. 8. (1328.) + + "That by commandment of the great seal, or privy seal, no point of + this statute shall be put in delay; nor that the justices of + whatsoever place it be shall let (omit) to do the _common law_, by + commandment, which shall come to them under the great seal, or the + privy seal."--_14 Edward III._, st. 1, ch. 14. (1340.) + + "It is ordained and established, that neither letters of the signet, + nor of the king's privy seal, shall be from henceforth sent in damage + or prejudice of the realm, nor in disturbance of the law" (the common + law).--_11 Richard II._, ch. 10. (1387.) + +It is perfectly apparent from these statutes, and from the oath +administered to the justices, that it was a matter freely confessed by +the king himself, that his statutes were of no validity, if contrary to +the common law, or "common right." + +The oath of the justices, before given, is, I presume, the same that has +been administered to judges in England from the day when it was first +prescribed to them, (1344,) until now. I do not find from the English +statutes that the oath has ever been changed. The Essay on Grand Juries, +before referred to, and supposed to have been written by _Lord Somers_, +mentions this oath (page 73) as being still administered to judges, that +is, in the time of Charles II., more than three hundred years after the +oath was first ordained. If the oath has never been changed, it follows +that judges have not only never been sworn to support any statutes +whatever of the king, or of parliament, but that, for five hundred +years past, they actually have been sworn to treat as invalid all +statutes that were contrary to the common law. + + +SECTION VI. + +_The Coronation Oath._ + +That the legislation of the king was of no authority over a jury, is +further proved by the oath taken by the kings at their coronation. This +oath seems to have been substantially the same, from the time of the +_Saxon_ kings, down to the seventeenth century, as will be seen from the +authorities hereafter given. + +The purport of the oath is, that the king swears _to maintain the law of +the land_--that is, _the common law_. In other words, he swears "_to +concede and preserve to the English people the laws and customs conceded +to them by the ancient, just, and pious English kings, * * and +especially the laws, customs, and liberties conceded to the clergy and +people by the illustrious king Edward;" * * and "the just laws and +customs which the common people have chosen, (quas vulgus elegit)_." + +These are the same laws and customs which were called by the general +name of "_the law of the land_," or "_the common law_," and, with some +slight additions, were embodied in _Magna Carta_. + +This oath not only forbids the king to enact any statutes contrary to +the common law, but it proves that his statutes could be of no authority +over the consciences of a jury; since, as has already been sufficiently +shown, it was one part of this very common law itself,--that is, of the +ancient "laws, customs, and liberties," mentioned in the oath,--that +juries should judge of all questions that came before them, according to +their own consciences, independently of the legislation of the king. + +It was impossible that this right of the jury could subsist consistently +with any right, on the part of the king, to impose any authoritative +legislation upon them. His oath, therefore, to maintain the law of the +land, or the ancient "laws, customs, and liberties," was equivalent to +an oath that he would never _assume_ to impose laws upon juries, as +imperative rules of decision, or take from them the right to try all +cases according to their own consciences. It is also an admission that +he had no constitutional power to do so, if he should ever desire it. +This oath, then, is conclusive proof that his legislation was of no +authority with a jury, and that they were under no obligation whatever +to enforce it, unless it coincided with their own ideas of justice. + +The ancient coronation oath is printed with the Statutes of the Realm, +vol. i., p. 168, and is as follows:[62] + +TRANSLATION. + + "_Form of the Oath of the King of England, on his Coronation._ + + (The Archbishop of Canterbury, to whom, of right and custom of the + Church of Canterbury, ancient and approved, it pertains to anoint and + crown the kings of England, on the day of the coronation of the king, + and before the king is crowned, shall propound the underwritten + questions to the king.) + + The laws and customs, conceded to the English people by the ancient, + just, and pious English kings, will you concede and preserve to the + same people, with the confirmation of an oath? and especially the + laws, customs, and liberties conceded to the clergy and people by the + illustrious king Edward? + + (And the king shall answer,) I do concede, and will preserve them, + and confirm them by my oath. + + Will you preserve to the church of God, the clergy, and the people, + entire peace and harmony in God, according to your powers? + + (And the king shall answer,) I will. + + In all your judgments, will you cause equal and right justice and + discretion to be done, in mercy and truth, according to your powers? + + (And the king shall answer,) I will. + + Do you concede that the just laws and customs, _which the common + people have chosen_, shall be preserved; and do you promise that they + shall be protected by you, and strengthened to the honor of God, + according to your powers? + + (And the king shall answer,) I concede and promise." + +The language used in the last of these questions, "Do you concede that +the just laws and customs, _which the common people have chosen_, (_quas +vulgus elegit_,) shall be preserved?" &c., is worthy of especial notice, +as showing that the laws, which were to be preserved, were not +necessarily _all_ the laws which the kings enacted, _but only such of +them as the common people had selected or approved_. + +And how had the common people made known their approbation or selection +of these laws? Plainly, in no other way than this--_that the juries +composed of the common people had voluntarily enforced them_. The common +people had no other legal form of making known their approbation of +particular laws. + +The word "concede," too, is an important word. In the English statutes +it is usually translated _grant_--as if with an intention to indicate +that "the laws, customs, and liberties" of the English people were mere +_privileges, granted_ to them by the king; whereas it should be +translated _concede_, to indicate simply an _acknowledgment_, on the +part of the king, that such were the laws, customs, and liberties, which +had been chosen and established by the people themselves, and of right +belonged to them, and which he was bound to respect. + +I will now give some authorities to show that the foregoing oath has, +_in substance_, been the coronation oath from the times of William the +Conqueror, (1066,) down to the time of James the First, and probably +until 1688. + +It will be noticed, in the quotation from Kelham, that he says this oath +(or the oath of William the Conqueror) is "in sense and substance the +very same with that which the _Saxon_ kings used to take at their +coronations." + +Hale says: + + "Yet the English were very zealous for them," (that is, for the laws + of Edward the Confessor,) "no less or otherwise than they are at this + time for the Great Charter; insomuch that they were never satisfied + till the said laws were reënforced, and mingled, for the most part, + with the coronation oath of king William I., and some of his + successors."--_1 Hale's History of Common Law_, 157. + + Also, "William, on his coronation, had sworn to govern by the laws of + Edward the Confessor, some of which had been reduced into writing, + but the greater part consisted of the immemorial customs of the + realm."--_Ditto_, p. 202, note L. + +Kelham says: + + "Thus stood the laws of England at the entry of William I., and it + seems plain that the laws, commonly called the laws of Edward the + Confessor, were at that time the standing laws of the kingdom, and + considered the great rule of their rights and liberties; and that the + English were so zealous for them, 'that they were never satisfied + till the said laws were reënforced, and mingled, for the most part, + with the coronation oath.' Accordingly, we find that this great + conqueror, at his coronation on the Christmas day succeeding his + victory, took an oath at the altar of St. Peter, Westminster, _in + sense and substance the very same with that which the Saxon kings + used to take at their coronations_. * * And at Barkhamstead, in the + fourth year of his reign, in the presence of Lanfranc, Archbishop of + Canterbury, for the quieting of the people, he swore that he would + inviolably observe the good and approved ancient laws which had been + made by the devout and pious kings of England, his ancestors, and + chiefly by King Edward; and we are told that the people then departed + in good humor."--_Kelham's Preliminary Discourse to the Laws of + William the Conqueror._ See, also, _1 Hale's History of the Common + Law_, 186. + +Crabbe says that William the Conqueror "solemnly swore that he would +observe the good and approved laws of Edward the Confessor."--_Crabbe's +History of the English Law_, p. 43. + +The successors of William, up to the time of Magna Carta, probably all +took the same oath, according to the custom of the kingdom; although +there may be no historical accounts extant of the oath of each separate +king. But history tells us specially that Henry I., Stephen, and Henry +II., confirmed these ancient laws and customs. It appears, also, that +the barons desired of John (what he afterwards granted by Magna Carta) +"_that the laws and liberties of King Edward_, with other privileges +granted to the kingdom and church of England, might be confirmed, as +they were contained in the charters of Henry the First; further +alleging, _that at the time of his absolution, he promised by his oath +to observe these very laws and liberties_."--_Echard's History of +England_, p. 105-6. + +It would appear, from the following authorities, that since Magna Carta +the form of the coronation oath has been "_to maintain the law of the +land_,"--meaning that law as embodied in Magna Carta. Or perhaps it is +more probable that the ancient form has been still observed, but that, +as its substance and purport were "_to maintain the law of the land_," +this latter form of expression has been used, in the instances here +cited, from motives of brevity and convenience. This supposition is the +more probable, from the fact that I find no statute prescribing a change +in the form of the oath until 1688. + +That Magna Carta was considered as embodying "the law of the land," or +"common law," is shown by a statute passed by Edward I., wherein he +"grants," or concedes, + + "That the Charter of Liberties and the Charter of the Forest * * + shall be kept in every point, without breach, * * and that our + justices, sheriffs, mayors, and other ministers, which, under us, + have the _laws of our land_[63] to guide, shall allow the said + charters pleaded before them in judgment, in all their points, that + is, to wit, _the Great Charter as the Common Law_, and the Charter of + the Forest for the wealth of the realm. + + "And we will, that if any judgment be given from henceforth, contrary + to the points of the charters aforesaid, by the justices, or by any + other our ministers that hold plea before them against the points of + the charters, it shall be undone, and holden for naught."--_25 Edward + I._, ch. 1 and 2. (1297.) + +Blackstone also says: + + "It is agreed by all our historians that the Great Charter of King + John was, for the most part, _compiled from the ancient customs of + the realm, or the laws of Edward the Confessor; by which they usually + mean the old common law which was established under our Saxon + princes_."--_Blackstone's Introduction to the Charters._ See + _Blackstone's Law Tracts_, 289. + +Crabbe says: + + "It is admitted, on all hands, that it (Magna Carta) contains nothing + but what was confirmatory of the common law, and the ancient usages + of the realm, and is, properly speaking, only an enlargement of the + charter of Henry I., and his successors."--_Crabbe's History of the + English Law_, p. 127. + +That the coronation oath of the kings subsequent to Magna Carta was, in +substance, if not in form, "_to maintain this law of the land, or common +law_," is shown by a statute of Edward Third, commencing as follows: + + "Edward, by the Grace of God, &c., &c., to the Sheriff of Stafford, + Greeting: Because that by divers complaints made to us, we have + perceived that _the law of the land, which we by oath are bound to + maintain_," &c.--_St. 20 Edward III._ (1346.) + +The following extract from Lord Somers' tract on Grand Juries shows that +the coronation oath continued the same as late as 1616, (four hundred +years after Magna Carta.) He says: + + "King James, in his speech to the judges, in the Star Chamber, Anno + 1616, told them, 'That he had, after many years, resolved to renew + his oath, made at his coronation, concerning justice, and the promise + therein contained for _maintaining the law of the land_.' And, in the + next page save one, says, '_I was sworn to maintain the law of the + land_, and therefore had been perjured if I had broken it. God is my + judge, I never intended it.'"--_Somers on Grand Juries_, p. 82. + +In 1688, the coronation oath was changed by act of Parliament, and the +king was made to swear: + + "To govern the people of this kingdom of England, and the dominions + thereto belonging, _according to the statutes in Parliament agreed + on, and the laws and customs of the same_."--_St. 1 William and + Mary_, ch. 6. (1688.) + +The effect and legality of this oath will hereafter be considered. For +the present it is sufficient to show, as has been already sufficiently +done, that from the Saxon times until at least as lately as 1616, the +coronation oath has been, in substance, _to maintain the law of the +land, or the common law_, meaning thereby the ancient Saxon customs, as +embodied in the laws of Alfred, of Edward the Confessor, and finally in +Magna Carta. + +It may here be repeated that this oath plainly proves that the statutes +of the king were of no authority over juries, if inconsistent with their +ideas of right; because it was one part of the common law that juries +should try all causes according to their own consciences, any +legislation of the king to the contrary notwithstanding.[64] + +[Footnote 34: Hale says: + + "The trial by jury of twelve men was the usual trial among the + Normans, in most suits; especially in assizes, et juris utrum."--_1 + Hale's History of the Common Law_, 219. + +This was in Normandy, before the conquest of England by the Normans. +_See Ditto_, p. 218. + +Crabbe says: + + "It cannot be denied that the practice of submitting causes to the + decision of twelve men was universal among all the northern tribes + (of Europe) from the very remotest antiquity."--_Crabbe's History of + the English Law_, p. 32.] + +[Footnote 35: "The people, who in every general council or assembly +could oppose and dethrone their sovereigns, were in little dread of +their encroachments on their liberties; and kings, who found sufficient +employment in keeping possession of their crowns, would not likely +attack the more important privileges of their subjects."] + +[Footnote 36: This office was afterwards committed to sheriffs. But even +while the court was held by the lord, "_the Lord was not judge, but the +Pares (peers) only_."--_Gilbert on the Court of Exchequer_, 61-2.] + +[Footnote 37: The opinion expressed in the text, that the Witan had no +legislative authority, is corroborated by the following authorities: + +"From the fact that the new laws passed by the king and the Witan were +laid before the shire-mote, (county court,) we should be almost +justified in the inference that a second sanction was necessary before +they could have the effect of law in that particular county."--_Dunham's +Middle Ages, Sec._ 2, _B._ 2, _Ch._ 1. _57 Lardner's Cab. Cyc._, 53. + +The "_second sanction_" required to give the legislation of the king and +Witan the effect of law, was undoubtedly, I think, _as a general thing, +the sanction of a jury_. I know of no evidence whatever that laws were +ever submitted to popular vote in the county courts, as this author +seems to suppose possible. Another mode, sometimes resorted to for +obtaining the sanction of the people to the laws of the Witan, was, it +seems, to persuade the people themselves to swear to observe them. +Mackintosh says: + +"The preambles of the laws (of the Witan) speak of the infinite number +of _liegemen_ who attended, as only applauding the measures of the +assembly. But this applause was neither so unimportant to the success of +the measures, nor so precisely distinguished from a share in +legislation, as those who read history with a modern eye might imagine. +It appears that under Athelstan expedients were resorted to, to obtain a +consent to the law from great bodies of the people in their districts, +which their numbers rendered impossible in a national assembly. That +monarch appears to have sent commissioners to hold _shire-gemotes_ or +county meetings, where they proclaimed the laws made by the king and his +counsellors, which, being acknowledged and sworn to at these +_folk-motes_ (meetings of the people) became, by their assent, +completely binding on the whole nation."--_Mackintosh's Hist. of +England_, _Ch._ 2. _45 Lardner's Cab. Cyc._, 75.] + +[Footnote 38: Page 31.] + +[Footnote 39: Hallam says, "It was, however, to the county court that an +English freeman chiefly looked for the maintenance of his civil +rights."--_2 Middle Ages_, 392. + +Also, "This (the county court) was the great constitutional judicature +in all questions of civil right."--_Ditto_, 395. + +Also, "The liberties of these Anglo-Saxon thanes were chiefly secured, +next to their swords and their free spirits, by the inestimable right of +deciding civil and criminal suits in their own county courts."--_Ditto_, +399.] + +[Footnote 40: "Alfred may, in one sense, be called the founder of these +laws, (the Saxon,) for until his time they were an unwritten code, but +he expressly says, '_that I, Alfred, collected the good laws of our +forefathers into one code, and also I wrote them down_'--which is a +decisive fact in the history of our laws well worth noting."--_Introduction +to Gilbert's History of the Common Pleas_, p. 2, _note_. + +Kelham says, "Let us consult our own lawyers and historians, and they +will tell us * * that Alfred, Edgar, and Edward the Confessor, were the +great _compilers and restorers_ of the English Laws."--_Kelham's +Preliminary Discourse to the Laws of William the Conqueror_, p. 12. +_Appendix to Kelham's Dictionary of the Norman Language._ + +"He (Alfred) also, like another Theodosius, _collected the various +customs_ that he found dispersed in the kingdom, and reduced and +digested them into one uniform system, or code of laws, in his +_som-bec_, or _liber judicialis_ (judicial book). This he _compiled_ for +the use of the court baron, hundred and county court, the court-leet and +sheriff's tourn, tribunals which he established for the trial of all +causes, civil and criminal, in the very districts wherein the complaints +arose."--_4 Blackstone_, 411. + +Alfred himself says, "Hence I, King Alfred, gathered these together, and +commanded many of those to be written down which our forefathers +observed--those which I liked--and those which I did not like, by the +advice of my Witan, I threw aside. For I durst not venture to set down +in writing over many of my own, since I knew not what among them would +please those that should come after us. But those which I met with +either of the days of me, my kinsman, or of Offa, King of Mercia, or of +Æthelbert, who was the first of the English who received baptism--those +which appeared to me the justest--I have here collected, and abandoned +the others. Then I, Alfred, King of the West Saxons, showed these to all +my Witan, and they then said that they were all willing to observe +them."--_Laws of Alfred, translated by R. Price, prefixed to +Mackintosh's History of England_, _vol._ 1. _45 Lardner's Cab. Cyc._ + +"King Edward * * projected and begun what his grandson, King Edward the +Confessor, afterwards completed, viz., one uniform digest or body of +laws to be observed throughout the whole kingdom, _being probably no +more than a revival of King Alfred's code_, with some improvements +suggested by necessity and experience, particularly the incorporating +some of the British, or, rather, Mercian _customs_, and also _such of +the Danish_ (customs) as were reasonable and approved, into the _West +Saxon Lage_, which was still the ground-work of the whole. And this +appears to be the best supported and most plausible conjecture, (for +certainty is not to be expected,) of the rise and original of that +admirable system of maxims and unwritten customs which is now known by +the name of the _common law_, as extending its authority universally +over all the realm, and which is doubtless of Saxon parentage."--_4 +Blackstone_, 412. + +"By the _Lex Terræ_ and _Lex Regni_ is understood the laws of Edward the +Confessor, confirmed and enlarged as they were by William the Conqueror; +and this Constitution or Code of Laws is what even to this day are +called '_The Common Law of the Land_.'"--_Introduction to Gilbert's +History of the Common Pleas_, p. 22, _note_.] + +[Footnote 41: Not the conqueror of the English people, (as the friends +of liberty maintain,) but only of Harold the usurper.--See _Hale's +History of the Common Law_, ch. 5.] + +[Footnote 42: For all these codes see Wilkins' Laws of the Anglo-Saxons. + +"Being regulations adapted to existing institutions, the Anglo-Saxon +statutes are concise and technical, alluding to the law which was then +living and in vigor, rather than defining it. The same clauses and +chapters are often repeated word for word, in the statutes of subsequent +kings, showing that enactments which bear the appearance of novelty are +merely declaratory. Consequently the appearance of a law, seemingly for +the first time, is by no means to be considered as a proof that the +matter which it contains is new; nor can we trace the progress of the +Anglo-Saxon institutions with any degree of certainty, by following the +dates of the statutes in which we find them first noticed. All arguments +founded on the apparent chronology of the subjects included in the laws, +are liable to great fallacies. Furthermore, a considerable portion of +the Anglo-Saxon law was never recorded in writing. There can be no doubt +but that the rules of inheritance were well established and defined; yet +we have not a single law, and hardly a single document from which the +course of the descent of land can be inferred. * * Positive proof cannot +be obtained of the commencement of any institution, because the first +written law relating to it may possibly be merely confirmatory or +declaratory; neither can the non-existence of any institution be +inferred from the absence of direct evidence. Written laws were modified +and controlled by customs of which no trace can be discovered, until +after the lapse of centuries, although those usages must have been in +constant vigor during the long interval of silence."--_1 Palgrave's Rise +and Progress of the English Commonwealth_, 58-9.] + +[Footnote 43: Rapin says, "The customs now practised in England are, for +the most part, the same as the Anglo-Saxons brought with them from +Germany."--_Rapin's Dissertation on the Government of the Anglo-Saxons_, +vol. 2, Oct. Ed., p. 198. See _Kelham's Discourse before named_.] + +[Footnote 44: Hallam says, "The county of Sussex contains sixty-five +('hundreds'); that of Dorset forty-three; while Yorkshire has only +twenty-six; and Lancashire but six."--_2 Middle Ages_, 391.] + +[Footnote 45: Excepting also matters pertaining to the collection of the +revenue, which were determined in the king's court of exchequer. But +even in this court it was the law "_that none be amerced but by his +peers_."--_Mirror of Justices_, 49.] + +[Footnote 46: "For the English laws, _although not written_, may, as it +should seem, and that without any absurdity, be termed laws, (since this +itself is law--that which pleases the prince has the force of law,) I +mean those laws which it is evident were promulgated by the advice of +the nobles and the authority of the prince, concerning doubts to be +settled in their assembly. For if from the mere want of writing only, +they should not be considered laws, then, unquestionably, writing would +seem to confer more authority upon laws themselves, than either the +equity of the persons constituting, or the reason of those framing +them."--_Glanville's Preface_, p. 38. (Glanville was chief justice of +Henry II., 1180.) _2 Turner's History of the Anglo-Saxons_, 280.] + +[Footnote 47: Mackintosh's History of England, ch. 3. Lardner's Cabinet +Cyclopædia, 266.] + +[Footnote 48: If the laws of the king were received as authoritative by +the juries, what occasion was there for his appointing special +commissioners for the trial of offences, without the intervention of a +jury, as he frequently did, in manifest and acknowledged violation of +Magna Carta, and "the law of the land?" These appointments were +undoubtedly made for no other reason than that the juries were not +sufficiently subservient, but judged according to their own notions of +right, instead of the will of the king--whether the latter were +expressed in his statutes, or by his judges.] + +[Footnote 49: Of course, Mr. Reeve means to be understood that, in the +hundred court, and court-leet, _the jurors were the judges_, as he +declares them to have been in the county court; otherwise the "bailiff" +or "steward" must have been judge.] + +[Footnote 50: The jurors were sometimes called "assessors," because they +assessed, or determined the amount of fines and amercements to be +imposed.] + +[Footnote 51: "The barons of the Hundred" were the freeholders. Hallam +says: "The word _baro_, originally meaning only a man, was of very large +significance, and is not unfrequently applied to common freeholders, as +in the phrase _court-baron_."--_3 Middle Ages_, 14-15. + +_Blackstone_ says: "The _court-baron_ * * is a court of common law, and +it is the court of the barons, by which name the freeholders were +sometimes anciently called; for that it is held before the freeholders +who owe suit and service to the manor."--_3 Blackstone_, 33.] + +[Footnote 52: The ancient jury courts kept no records, because those who +composed the courts could neither make nor read records. Their decisions +were preserved by the memories of the jurors and other persons present.] + +[Footnote 53: Stuart says: + +"The courts, or civil arrangements, which were modelled in Germany, +preserved the independence of the people; and having followed the Saxons +into England, and continuing their importance, they supported the envied +liberty we boast of. * * + +"As a chieftain led out his retainers to the field, and governed them +during war; so in peace he summoned them together, and exerted a civil +jurisdiction. He was at once their captain and their judge. They +constituted his court; and having inquired with him into the guilt of +those of their order whom justice had accused, they assisted him to +enforce his decrees. + +"This court (the court-baron) was imported into England; but the +innovation which conquest introduced into the fashion of the times +altered somewhat its appearance. * * + +"The head or lord of the manor called forth his attendants to his hall. +* * He inquired into the breaches of custom, and of justice, which were +committed within the precincts of his territory; and with his followers, +_who sat with him as judges_, he determined in all matters of debt, and +of trespass to a certain amount. He possessed a similar jurisdiction +with the chieftain in Germany, and his tenants enjoyed an equal +authority with the German retainers. + +"But a mode of administration which intrusted so much power to the great +could not long be exercised without blame or injustice. The German, +guided by the candor of his mind, and entering into all his engagements +with the greatest ardor, perceived not, at first, that the chieftain to +whom he submitted his disputes might be swayed, in the judgments he +pronounced, by partiality, prejudice, or interest; and that the +influence he maintained with his followers was too strong to be +restrained by justice. Experience instructed him of his error; he +acknowledged the necessity of appealing from his lord; and the court of +the Hundred was erected. + +"This establishment was formed both in Germany and England, by the +inhabitants of a certain division, who extended their jurisdiction over +the territory they occupied.[65] They bound themselves under a penalty +to assemble at stated times; _and having elected the wisest to preside +over them, they judged, not only all civil and criminal matters_, but of +those also which regarded religion and the priesthood. The judicial +power thus invested in the people was extensive; they were able to +preserve their rights, and attended this court in arms. + +"As the communication, however, and intercourse, of the individuals of a +German community began to be wider, and more general, as their dealings +enlarged, and as disputes arose among the members of different hundreds, +the insufficiency of these courts for the preservation of order was +gradually perceived. The _shyre mote_, therefore, or _county court_, was +instituted; and it formed the chief source of justice both in Germany +and England. + +"The powers, accordingly, which had been enjoyed by the court of the +_hundred_, were considerably impaired. It decided no longer concerning +capital offences; it decided not concerning matters of liberty, and the +property of estates, or of slaves; its judgments, in every case, became +subject to review; and it lost entirely the decision of causes, when it +delayed too long to consider them. + +"Every subject of claim or contention was brought, in the first +instance, or by appeal, to the _county court_; and the _earl_, or +_eorldorman_, who presided there, was active to put the laws in +execution. He repressed the disorders which fell out within the circuit +of his authority; and the least remission in his duty, or the least +fraud he committed, was complained of and punished. He was elected from +among the great, and was above the temptation of a bribe; but, to +encourage his activity, he was presented with a share of the territory +he governed, or was entitled to a proportion of the fines and profits of +justice. Every man, in his district, was bound to inform him concerning +criminals, and to assist him to bring them to trial; and, as in rude and +violent times the poor and helpless were ready to be oppressed by the +strong, he was instructed particularly to defend them. + +"His court was ambulatory, and assembled only twice a year, unless the +distribution of justice required that its meetings should be oftener. +Every freeholder in the county was obliged to attend it; and should he +refuse this service, his possessions were seized, and he was forced to +find surety for his appearance. The neighboring earls held not their +courts on the same day; and, what seems very singular, no judge was +allowed, after meals, to exercise his office. + +"The druids also, or priests, in Germany, as we had formerly occasion to +remark, and the clergy in England, exercised a jurisdiction in the +_hundred_ and _county_ courts. They instructed the people in religious +duties, and in matters regarding the priesthood; and the princes, earls, +or _eorldormen_, related to them the laws and customs of the community. +These judges were mutually a check to each other; but it was expected +that they should agree in their judgments, and should willingly unite +their efforts for the public interest.[66] + +"_But the prince or earl performed not, at all times, in person, the +obligations of his office._ The enjoyment of ease and of pleasure, to +which in Germany he had delivered himself over, when disengaged from +war, and the mean idea he conceived of the drudgery of civil affairs, +_made him often delegate to an inferior person the distribution of +justice in his district_. The same sentiments were experienced by the +Saxon nobility; and the service which they owed by their tenures, and +the high employments they sustained, called them often from the +management of their counties. The progress, too, of commerce, giving an +intricacy to cases, and swelling the civil code, added to the difficulty +of their office, and made them averse to its duties. _Sheriffs, +therefore, or deputies, were frequently appointed to transact their +business; and though these were at first under some subordination to the +earls, they grew at length to be entirely independent of them. The +connection of jurisdiction and territory ceasing to prevail, and the +civil being separated from the ecclesiastical power, they became the +sole and proper officers for the direction of justice in the counties._ + +"The _hundred_, however, and _county_ courts, were not equal of +themselves for the purposes of jurisdiction and order. It was necessary +that a court should be erected, of supreme authority, where the disputes +of the great should be decided, where the disagreeing sentiments of +judges should be reconciled, and where protection should be given to the +people against their fraud and injustice. + +"The princes accordingly, or chief nobility, in the German communities, +assembled together to judge of such matters. The Saxon nobles continued +this prerogative; and the king, or, in his absence, the chief +_justiciary_, watched over their deliberations. But it was not on every +trivial occasion that this court interested itself. In smaller concerns, +justice was refused during three sessions of the _hundred_, and claimed +without effect, at four courts of the county, before there could lie an +appeal to it. + +"So gradually were these arrangements established, and so naturally did +the varying circumstances in the situation of the Germans and +Anglo-Saxons direct those successive improvements which the preservation +of order, and the advantage of society, called them to adopt. The +admission of the people into the courts of justice preserved, among the +former, that equality of ranks for which they were remarkable; and it +helped to overturn, among the latter, those envious distinctions which +the feudal system tended to introduce, and prevented that venality in +judges, and those arbitrary proceedings, which the growing attachment to +interest, and the influence of the crown, might otherwise have +occasioned."--_Stuart on the Constitution of England_, p. 222 to 245. + +"In the Anglo-Saxon period, accordingly, _twelve_ only were elected; and +these, together with the judge, or presiding officer of the district, +being sworn to regard justice, and the voice of reason, or conscience, +all causes were submitted to them."--_Ditto_, p. 260. + +"Before the orders of men were very nicely distinguished, the jurors +were elected from the same rank. When, however, a regular subordination +of orders was established, and when a knowledge of property had inspired +the necessitous with envy, and the rich with contempt, _every man was +tried by his equals_. The same spirit of liberty which gave rise to this +regulation attended its progress. Nor could monarchs assume a more +arbitrary method of proceeding. 'I will not' (said the Earl of Cornwall +to his sovereign) 'render up my castles, nor depart the kingdom, but by +judgment of my peers.' Of this institution, so wisely calculated for the +preservation of liberty, all our historians have pronounced the +eulogium."--_Ditto_, p. 262-3. + +Blackstone says: + +"The policy of our ancient constitution, as regulated and established by +the great Alfred, was to bring justice home to every man's door, by +constituting as many courts of judicature as there are manors and towns +in the kingdom; _wherein injuries were redressed in an easy and +expeditious manner, by the suffrage of neighbors and friends_. These +little courts, however, communicated with others of a larger +jurisdiction, and those with others of a still greater power; ascending +gradually from the lowest to the supreme courts, which were respectively +constituted to correct the errors of the inferior ones, and to determine +such causes as, by reason of their weight and difficulty, demanded a +more solemn discussion. The course of justice flowing in large streams +from the king, as the fountain, to his superior courts of record; and +being then subdivided into smaller channels, till the whole and every +part of the kingdom were plentifully watered and refreshed. An +institution that seems highly agreeable to the dictates of natural +reason, as well as of more enlightened policy. * * + +"These inferior courts, at least the name and form of them, still +continue in our legal constitution; but as the superior courts of record +have, in practice, obtained a concurrent original jurisdiction, and as +there is, besides, a power of removing plaints or actions thither from +all the inferior jurisdictions; upon these accounts (among others) it +has happened that these petty tribunals have fallen into decay, and +almost into oblivion; whether for the better or the worse may be matter +of some speculation, when we consider, on the one hand, the increase of +expense and delay, and, on the other, the more able and impartial +decisions that follow from this change of jurisdiction. + +"The order I shall observe in discoursing on these several courts, +constituted for the redress of _civil_ injuries, (for with those of a +jurisdiction merely _criminal_ I shall not at present concern +myself,[67]) will be by beginning with the lowest, and those whose +jurisdiction, though public and generally dispersed through the kingdom, +is yet (with regard to each particular court) confined to very narrow +limits; and so ascending gradually to those of the most extensive and +transcendent power."--3 _Blackstone_, 30 to 32. + +"The _court-baron_ is a court incident to every manor in the kingdom, +_to be holden by the steward within the said manor_. This court-baron is +of two natures; the one is a customary court, of which we formerly +spoke, appertaining entirely to the copy-holders, in which their estates +are transferred by surrender and admittance, and other matters +transacted relative to their tenures only. The other, of which we now +speak, is a court of common law, and it is a court of the barons, by +which name the freeholders were sometimes anciently called; _for that it +is held by the freeholders who owe suit and service to the manor, the +steward being rather the registrar than the judge_. These courts, though +in their nature distinct, are frequently confounded together. _The court +we are now considering, viz., the freeholders court, was composed of the +lord's tenants, who were the pares_ (equals) _of each other, and were +bound by their feudal tenure to assist their lord in the dispensation of +domestic justice_. This was formerly held every three weeks; and its +most important business is to determine, by writ of right, all +controversies relating to the right of lands within the manor. It may +also hold plea of any personal actions, of debt, trespass in the case, +or the like, where the debt or damages do not amount to forty shillings; +which is the same sum, or three marks, that bounded the jurisdiction of +the ancient Gothic courts in their lowest instance, or _fierding +courts_, so called because four were instituted within every superior +district or hundred."--3 _Blackstone_, 33, 34. + +"A _hundred court_ is only a larger court-baron, being held for all the +inhabitants of a particular hundred, instead of a manor. _The free +suitors are here also the judges, and the steward the registrar, as in +the case of a court-baron._ It is likewise no court of record, +resembling the former at all points, except that in point of territory +it is of greater jurisdiction. This is said by Sir Edward Coke to have +been derived out of the county court for the ease of the people, that +they might have justice done to them at their own doors, without any +charge or loss of time; but its institution was probably coeval with +that of hundreds themselves, which were formerly observed to have been +introduced, though not invented, by Alfred, being derived from the +polity of the ancient Germans. The _centeni_, we may remember, were the +principal inhabitants of a district composed of different villages, +originally in number a _hundred_, but afterward only called by that +name, and who probably gave the same denomination to the district out of +which they were chosen. Cæsar speaks positively of the judicial power +exercised in their hundred courts and courts-baron. '_Princeps regiorum +atque pagorum_' (which we may fairly construe the lords of hundreds and +manors) '_inter suos jus dicunt, controversias que minuunt_.' (The +chiefs of the country and the villages declare the law among them, and +abate controversies.) And Tacitus, who had examined their constitution +still more attentively, informs us not only of the authority of the +lords, but that of the _centeni_, the hundreders, or jury, _who were +taken out of the common freeholders, and had themselves a share in the +determination. 'Eliguntur in conciliis et principes, qui jura per pagos +vicosque reddunt, centeni singulis, ex plebe comites concilium simul et +auctoritas adsunt_.' (The princes are chosen in the assemblies, who +administer the laws throughout the towns and villages, and with each one +are associated an hundred companions, taken from the people, for +purposes both of counsel and authority.) This hundred court was +denominated _hæreda_ in the Gothic constitution. But this court, as +causes are equally liable to removal from hence as from the common +court-baron, and by the same writs, and may also be reviewed by writ of +false judgment, is therefore fallen into equal disuse with regard to the +trial of actions."--_3 Blackstone_, 34, 35. + +"The _county court_ is a court incident to the jurisdiction of the +_sheriff_. It is not a court of record, but may hold pleas of debt, or +damages, under the value of forty shillings; over some of which causes +these inferior courts have, by the express words of the statute of +Gloucester, (6 Edward I., ch. 8,) a jurisdiction totally exclusive of +the king's superior courts. * * The county court may also hold plea of +many real actions, and of all personal actions to any amount, by virtue +of a special writ, called a _justicies_, which is a writ empowering the +sheriff, for the sake of despatch, to do the same justice in his county +court as might otherwise be had at Westminster. _The freeholders of the +county court are the real judges in this court, and the sheriff is the +ministerial officer._ * * In modern times, as proceedings are removable +from hence into the king's superior courts, by writ of pone or +_recordari_, in the same manner as from hundred courts and courts-baron, +and as the same writ of false judgment may be had in nature of a writ of +error, this has occasioned the same disuse of bringing actions +therein."--_3 Blackstone_, 36, 37. + +"Upon the whole, we cannot but admire the wise economy and admirable +provision of our ancestors in settling the distribution of justice in a +method so well calculated for cheapness, expedition, and ease. By the +constitution which they established, all trivial debts, and injuries of +small consequence, were to be recovered or redressed in every man's own +county, hundred, or perhaps parish."--_3 Blackstone_, 59.] + +[Footnote 54: 1 Blackstone, 63-67.] + +[Footnote 55: This quaint and curious book (Smith's Commonwealth of +England) describes the _minutiæ_ of trials, giving in detail the mode of +impanelling the jury, and then the conduct of the lawyers, witnesses, +and court. I give the following extracts, _tending to show that the +judges impose no law upon the juries, in either civil or criminal cases, +but only require them to determine the causes according to their +consciences_. + +In civil causes he says: + + "When it is thought that it is enough pleaded before them, and the + witnesses have said what they can, one of the judges, with a brief + and pithy recapitulation, reciteth to the twelve in sum the arguments + of the sergeants of either side, that which the witnesses have + declared, and the chief points of the evidence showed in writing, and + once again putteth them in mind of the issue, and sometime giveth it + them in writing, delivering to them the evidence which is showed on + either part, if any be, (evidence here is called writings of + contracts, authentical after the manner of England, that is to say, + written, sealed, and delivered,) and biddeth them go together."--p. + 74. + +This is the whole account given of the charge to the jury. + +In criminal cases, after the witnesses have been heard, and the prisoner +has said what he pleases in his defence, the book proceeds: + + "When the judge hath heard them say enough, he asketh if they can say + any more: If they say no, then he turneth his speech to the inquest. + 'Good men, (saith he,) ye of the inquest, ye have heard what these + men say against the prisoner. You have also heard what the prisoner + can say for himself. _Have an eye to your oath, and to your duty, and + do that which God shall put in your minds to the discharge of your + consciences_, and mark well what is said.'"--p. 92. + +This is the whole account given of the charge in a criminal case. + +The following statement goes to confirm the same idea, that jurors in +England have formerly understood it to be their right and duty to judge +only according to their consciences, and not to submit to any dictation +from the court, either as to law or fact. + + "If having pregnant evidence, nevertheless, the twelve do acquit the + malefactor, which they will do sometime, especially if they perceive + either one of the justices or of the judges, or some other man, to + pursue too much and too maliciously the death of the prisoner, * * + the prisoner escapeth; but the twelve (are) not only rebuked by the + judges, but also threatened of punishment; and many times commanded + to appear in the Star-Chamber, or before the Privy Council for the + matter. But this threatening chanceth oftener than the execution + thereof; _and the twelve answer with most gentle words, they did it + according to their consciences_, and pray the judges to be good unto + them, _they did as they thought right, and as they accorded all_, and + so it passeth away for the most part."--p. 100. + +The account given of the trial of a peer of the realm corroborates the +same point: + + "If any duke, marquis, or any other of the degrees of a baron, or + above, lord of the Parliament, be appeached of treason, or any other + capital crime, he is judged by his peers and equals; that is, the + yeomanry doth not go upon him, but an inquest of the Lords of + Parliament, and they give their voice not one for all, but each + severally as they do in Parliament, being (beginning) at the youngest + lord. And for judge one lord sitteth, who is constable of England for + that day. The judgment once given, he breaketh his staff, and + abdicateth his office. In the rest there is no difference from that + above written," (that is, in the case of a freeman.)--p. 98.] + +[Footnote 56: "The present form of the jurors' oath is that they shall +'give a true verdict _according to the evidence_.' At what time this +form was introduced is uncertain; but for several centuries after the +Conquest, the jurors, _both in civil and criminal cases_, were sworn +merely to _speak the truth_. (Glanville, lib. 2, cap. 17; Bracton, lib. +3, cap. 22; lib. 4, p. 287, 291; Britton, p. 135.) Hence their decision +was accurately termed _veredictum_, or verdict, that is, 'a thing truly +said'; whereas the phrase 'true verdict' in the modern oath is not an +accurate expression."--_Political Dictionary_, word _Jury_.] + +[Footnote 57: Of course, there can be no legal trial by jury, in either +civil or criminal cases, where the jury are sworn to try the cases +"_according to law_."] + +[Footnote 58: _Coke_, as late as 1588, admits that amercements must be +fixed by the peers (8 Coke's Rep. 38, 2 Inst. 27); but he attempts, +wholly without success, as it seems to me, to show a difference between +fines and amercements. The statutes are very numerous, running through +the three or four hundred years immediately succeeding Magna Carta, in +which fines, ransoms, and amercements are spoken of as if they were the +common punishments of offences, and as if they all meant the same thing. +If, however, any technical difference could be made out between them, +there is clearly none in principle; and the word amercement, as used in +Magna Carta, must be taken in its most comprehensive sense.] + +[Footnote 59: "_Common right_" was the common law. _1 Coke's Inst._ 142 +a. 2 _do._ 55, 6.] + +[Footnote 60: The oath of the justices is in these words: + +"Ye shall swear, that well and lawfully ye shall serve our lord the king +_and his people_, in the office of justice, and that lawfully ye shall +counsel the king in his business, and that ye shall not counsel nor +assent to anything which may turn him in damage or disherison in any +manner, way, or color. And that ye shall not know the damage or +disherison of him, whereof ye shall not cause him to be warned by +yourself, or by other; _and that ye shall do equal law and execution of +right to all his subjects, rich and poor, without having regard to any +person_. And that ye take not by yourself, or by other, privily nor +apertly, gift nor reward of gold nor silver, nor of any other thing that +may turn to your profit, unless it be meat or drink, and that of small +value, of any man that shall have any plea or process hanging before +you, as long as the same process shall be so hanging, nor after for the +same cause. And that ye take no fee, as long as ye shall be justice, nor +robe of any man great or small, but of the king himself. And that ye +give none advice or counsel to no man great or small, in no case where +the king is party. And in case that any, of what estate or condition +they be, come before you in your sessions with force and arms, or +otherwise against the peace, or against the form of the statute thereof +made, _to disturb execution of the common law_," (mark the term, +"_common law_,") "or to menace the people that they may not pursue the +law, that ye shall cause their bodies to be arrested and put in prison; +and in case they be such that ye cannot arrest them, that ye certify the +king of their names, and of their misprision, hastily, so that he may +thereof ordain a convenable remedy. And that ye by yourself, nor by +other, privily nor apertly, maintain any plea or quarrel hanging in the +king's court, or elsewhere in the country. _And that ye deny no man +common right by the king's letters, nor none other man's, nor for none +other cause; and in case any letters come to you contrary to the law," +(that is, the "common law" before mentioned,) "that ye do nothing by +such letters, but certify the king thereof, and proceed to execute the +law," (the "common law" before mentioned,) "notwithstanding the same +letters._ And that ye shall do and procure the profit of the king and of +his crown, with all things where ye may reasonably do the same. And in +case ye be from henceforth found in default in any of the points +aforesaid, ye shall be at the king's will of body, lands, and goods, +thereof to be done as shall please him, as God you help and all +saints."--_18 Edward III._, st. 4. (1344.)] + +[Footnote 61: That the terms "_Law_" and "_Right_," as used in this +statute, mean the _common law_, is shown by the preamble, which declares +the motive of the statute to be that "_the Law of the Land, (the common +law,) which we (the king) by our oath are bound to maintain_," may be +the better kept, &c.] + +[Footnote 62: The following is a copy of the original: + + "_Forma Juramenti Regis Angliæ in Coronacione sua_: + + (Archiepiscopus Cantuariæ, ad quo de jure et consuetudine Ecclesiæ + Cantuariæ, antiqua et approbata, pertinet Reges Angliæ inungere et + coronare, die coronacionis Regis, anteque Rex coronetur, faciet Regi + Interrogationes subscriptas.) + + Si leges et consuetudines ab antiquis justis et Deo devotis Regibus + plebi Anglicano concessas, cum sacramenti confirmacione eidem plebi + concedere et servare (volueris:) Et præsertim leges et consuetudines + et libertates a glorioso Rege Edwardo clero populoque concessas? + + (Et respondeat Rex,) Concedo et servare volo, et sacramento + confirmare. + + Servabis Ecclesiæ Dei, Cleroque, et Populo, pacem ex integro et + concordiam in Deo secundum vires tuas? + + (Et respondeat Rex,) Servabo. + + Facies fieri in omnibus Judiciis tuis equam et rectam justiciam, et + discrecionem, in misericordia et veritate, secundum vires tuas? + + (Et respondeat Rex,) Faciam. + + Concedis justas, leges et consuetudines esse tenendas, et promittis + per te eas esse protegendas, et ad honorem Dei corroborandas, quas + vulgus elegit, secundum vires tuas? + + (Et respondeat Rex,) Concedo et promitto."] + +[Footnote 63: It would appear, from the text, that the Charter of +Liberties and the Charter of the Forest were sometimes called "_laws of +the land_."] + +[Footnote 64: As the ancient coronation oath, given in the text, has +come down from the Saxon times, the following remarks of Palgrave will +be pertinent, in connection with the oath, as illustrating the fact +that, in those times, no special authority attached to the laws of the +king: + +"The Imperial Witenagemot was not a legislative assembly, in the strict +sense of the term, for the whole Anglo-Saxon empire. Promulgating his +edicts amidst his peers and prelates, the king uses the language of +command; but the theoretical prerogative was modified by usage, and the +practice of the constitution required that the law should be accepted by +the legislatures (courts) of the several kingdoms. * * The 'Basileus' +speaks in the tone of prerogative: Edgar does not merely recommend, he +commands that the law shall be adopted by all the people, whether +English, Danes, or Britons, in every part of his empire. Let this +statute be observed, he continues, by Earl Oslac, and all the host who +dwell under his government, and let it be transmitted by writ to the +ealdormen of the other subordinate states. And yet, in defiance of this +positive injunction, the laws of Edgar were not accepted in Mercia until +the reign of Canute the Dane. It might be said that the course so +adopted may have been an exception to the general rule; but in the +scanty and imperfect annals of Anglo-Saxon legislation, we shall be able +to find so many examples of similar proceedings, _that this mode of +enactment must be considered as dictated by the constitution of the +empire_. Edward was the supreme lord of the Northumbrians, but more than +a century elapsed before they obeyed his decrees. The laws of the +glorious Athelstane had no effect in Kent, (county,) the dependent +appanage of his crown, until sanctioned by the _Witan_ of the _shire_ +(county court). And the power of Canute himself, the 'King of all +England,' does not seem to have compelled the Northumbrians to receive +his code, until the reign of the Confessor, when such acceptance became +a part of the compact upon the accession of a new earl. + +Legislation constituted but a small portion of the ordinary business +transacted by the Imperial Witenagemot. The wisdom of the assembly was +shown in avoiding unnecessary change. _Consisting principally of +traditionary usages and ancestorial customs, the law was upheld by +opinion. The people considered their jurisprudence as a part of their +inheritance._ Their privileges and their duties were closely conjoined; +_most frequently, the statutes themselves were only affirmances of +ancient customs, or declaratory enactments_. In the Anglo-Saxon +commonwealth, therefore, the legislative functions of the Witenagemot +were of far less importance than the other branches of its authority. * +* The members of the Witenagemot were the 'Pares Curiæ' (Peers of Court) +of the kingdom. How far, on these occasions, their opinion or their +equity controlled the power of the crown, cannot be ascertained. But the +form of inserting their names in the _'Testing Clause_' was retained +under the Anglo-Norman reigns; and the sovereign, who submitted his +Charter to the judgment of the _Proceres_, professed to be guided by the +opinion which they gave. As the '_Pares_' of the empire, the Witenagemot +decided the disputes between the great vassals of the crown. * * The +jurisdiction exercised in the Parliament of Edward I., when the barony +of a _Lord-Marcher_ became the subject of litigation, is entirely +analogous to the proceedings thus adopted by the great council of +Edward, the son of Alfred, the Anglo-Saxon king. + +In this assembly, the king, the prelates, the dukes, the ealdormen, and +the optimates passed judgment upon all great offenders. * * + +_The sovereign could not compel the obedience of the different nations +composing the Anglo-Saxon empire._ Hence, it became more necessary for +him to _conciliate their opinions_, if he solicited any service from a +vassal prince or a vassal state beyond the ordinary terms of the +compact; still more so, when he needed the support of a free burgh or +city. And we may view the assembly (the Witenagemot) as partaking of the +character of a political congress, in which the liegemen of the crown, +or the communities protected by the 'Basileus,' (sovereign,) were asked +or persuaded to relieve the exigences of the state, or to consider those +measures which might be required for the common weal. The sovereign was +compelled to parley with his dependents. + +It may be doubted whether any one member of the empire had power to +legislate for any other member. The Regulus of Cumbria was unaffected by +the vote of the Earl of East Angliæ, if he chose to stand out against +it. These dignitaries constituted a congress, in which the sovereign +could treat more conveniently and effectually with his vassals than by +separate negotiations. * * But the determinations of the Witan bound +those only who were present, or who concurred in the proposition; and a +vassal denying his assent to the grant, might assert that the engagement +which he had contracted with his superior did not involve any pecuniary +subsidy, but only rendered him liable to perform service in the +field."--_1 Palgrave's Rise and Progress of the English Commonwealth_, +637 to 642.] + +[Footnote 65: "It was the freemen in Germany, and the possessors of land +in England, who were _suitors_ (jurors) in the hundred court. These +ranks of men were the same. The alteration which had happened in +relation to property had invested the German freemen with land or +territory."] + +[Footnote 66: It would be wholly erroneous, I think, to infer from this +statement of Stuart, that either the "priests, princes, earls, or +_eorldormen_" exercised any authority over the jury in the trial of +causes, in the way of dictating the law to them. Henry's account of this +matter doubtless gives a much more accurate representation of the truth. +He says that _anciently_ + + "The meeting (the county court) was opened with a discourse by the + bishop, explaining, out of the Scriptures and ecclesiastical canons, + their several duties as good Christians and members of the church. + After this, the alderman, or one of his assessors, made a discourse + on the laws of the land, and the duties of good subjects and good + citizens. _When these preliminaries were over, they proceeded to try + and determine, first the causes of the church, next the pleas of the + crown, and last of all the controversies of private parties._"--3 + _Henry's History of Great Britain_, 348. + +This view is corroborated by Tyrrell's _Introduction to the History of +England_, p. 83-84, and by Spence's _Origin of the Laws and Political +Institutions of Modern Europe_, p. 447, and the note on the same page. +Also by a law of Canute to this effect, _In every county let there be +twice a year an assembly, whereat the bishop and the earl shall be +present, the one to instruct the people in divine, the other in human, +laws_.--_Wilkins_, p. 136.] + +[Footnote 67: There was no distinction between the civil and criminal +counts, as to the rights or powers of juries.] diff --git a/chapters/04.markdown b/chapters/04.markdown new file mode 100644 index 0000000..c0971f9 --- /dev/null +++ b/chapters/04.markdown @@ -0,0 +1,559 @@ +CHAPTER IV. + +THE RIGHTS AND DUTIES OF JURIES IN CIVIL SUITS. + + +The evidence already given in the preceding chapters proves that the +rights and duties of jurors, in civil suits, were anciently the same as +in criminal ones; that the laws of the king were of no obligation upon +the consciences of the jurors, any further than the laws were seen by +them to be just; that very few laws were enacted applicable to civil +suits; that when a new law was enacted, the nature of it could have been +known to the jurors only by report, and was very likely not to be known +to them at all; that nearly all the law involved in civil suits was +_unwritten_; that there was _usually_ no one in attendance upon juries +who could possibly enlighten them, unless it were sheriffs, stewards, +and bailiffs, who were unquestionably too ignorant and untrustworthy to +instruct them authoritatively; that the jurors must therefore +necessarily have judged for themselves of the whole case; and that, _as +a general rule_, they could judge of it by no law but the law of nature, +or the principles of justice as they existed in their own minds. + +The ancient oath of jurors in civil suits, viz., that "_they would make +known the truth according to their consciences_," implies that the +jurors were above the authority of all legislation. The modern oath, in +England, viz., that they "_will well and truly try the issue between the +parties, and a true verdict give, according to the evidence_," implies +the same thing. If the laws of the king had been binding upon a jury, +they would have been sworn to try the cases _according to law_, or +according to the laws. + +The ancient writs, in civil suits, as given in Glanville, (within the +half century before Magna Carta,) to wit, "Summon twelve free and legal +men, (or sometimes twelve knights,) to be in court, _prepared upon their +oaths to declare whether A or B have the greater right to the land in +question_," indicate that the jurors judged of the whole matter on their +consciences only. + +The language of Magna Carta, already discussed, establishes the same +point; for, although some of the words, such as "outlawed," and +"exiled," would apply only to criminal cases, nearly the whole chapter +applies as well to civil as to criminal suits. For example, how could +the payment of a debt ever be enforced against an unwilling debtor, if +he could neither be "arrested, imprisoned, nor deprived of his +freehold," and if the king could neither "proceed against him, nor send +any one against him, by force or arms"? Yet Magna Carta as much forbids +that any of these things shall be done against a debtor, as against a +criminal, _except according to, or in execution of_, "_a judgment of his +peers, or the law of the land_,"--a provision which, it has been shown, +gave the jury the free and absolute right to give or withhold "judgment" +according to their consciences, irrespective of all legislation. + +The following provisions, in the Magna Carta of John, illustrate the +custom of referring the most important matters of a civil nature, even +where the king was a party, to the determination of the peers, or of +twelve men, acting by no rules but their own consciences. These examples +at least show that there is nothing improbable or unnatural in the idea +that juries should try all civil suits according to their own judgments, +independently of all laws of the king. + + _Chap. 65._ "If we have disseized or dispossessed the Welsh of any + lands, liberties, or other things, without the legal judgment of + their peers, they shall be immediately restored to them. And if any + dispute arises upon this head, the matter shall be determined in the + Marches,[68] _by the judgment of their peers_," &c. + + _Chap. 68._ "We shall treat with Alexander, king of Scots, concerning + the restoring of his sisters, and hostages, and rights and liberties, + in the same form and manner as we shall do to the rest of our barons + of England; unless by the engagements, which his father William, late + king of Scots, hath entered into with us, it ought to be otherwise; + _and this shall be left to the determination of his peers in our + court_." + + _Chap. 56._ "All evil customs concerning forests, warrens, and + foresters, warreners, sheriffs, and their officers, rivers and their + keepers, shall forthwith be inquired into in each county, _by twelve + knights of the same shire_, chosen by the most creditable persons in + the same county, _and upon oath_; and within forty days after the + said inquest, be utterly abolished, so as never to be restored." + +There is substantially the same reason why a jury _ought_ to judge of +the justice of laws, and hold all unjust laws invalid, in civil suits, +as in criminal ones. That reason is the necessity of guarding against +the tyranny of the government. Nearly the same oppressions can be +practised in civil suits as in criminal ones. For example, individuals +may be deprived of their liberty, and robbed of their property, by +judgments rendered in civil suits, as well as in criminal ones. If the +laws of the king were imperative upon a jury in civil suits, the king +might enact laws giving one man's property to another, or confiscating +it to the king himself, and authorizing civil suits to obtain possession +of it. Thus a man might be robbed of his property at the arbitrary +pleasure of the king. In fact, all the property of the kingdom would be +placed at the arbitrary disposal of the king, through the judgments of +juries in civil suits, if the laws of the king were imperative upon a +jury in such suits.[69] + +Furthermore, it would be absurd and inconsistent to make a jury +paramount to legislation in _criminal_ suits, and subordinate to it in +_civil_ suits; because an individual, by resisting the execution of a +_civil_ judgment, founded upon an unjust law, could give rise to a +_criminal_ suit, in which the jury would be bound to hold the same law +invalid. So that, if an unjust law were binding upon a jury in _civil_ +suits, a defendant, by resisting the execution of the judgment, could, +_in effect_, convert the civil action into a criminal one, in which the +jury would be paramount to the same legislation, to which, in the +_civil_ suit, they were subordinate. In other words, in the _criminal_ +suit, the jury would be obliged to justify the defendant in resisting a +law, which, in the _civil_ suit, they had said he was bound to submit +to. + +To make this point plain to the most common mind--suppose a law be +enacted that the property of A shall be given to B. B brings a civil +action to obtain possession of it. If the jury, in this _civil_ suit, +are bound to hold the law obligatory, they render a judgment in favor of +B, that he be put in possession of the property; _thereby declaring that +A is bound to submit to a law depriving him of his property_. But when +the execution of that judgment comes to be attempted--that is, when the +sheriff comes to take the property for the purpose of delivering it to +B--A acting, as he has a _natural_ right to do, in defence of his +property, resists and kills the sheriff. He is thereupon indicted for +murder. On this trial his plea is, that in killing the sheriff, he was +simply exercising his _natural_ right of defending his property against +an unjust law. The jury, not being bound, in a _criminal_ case, by the +authority of an unjust law, judge the act on its merits, and acquit the +defendant--thus declaring that he was _not_ bound to submit to the same +law which the jury, in the _civil_ suit, had, by their judgment, +declared that he _was_ bound to submit to. Here is a contradiction +between the two judgments. In the _civil_ suit, the law is declared to +be obligatory upon A; in the _criminal_ suit, the same law is declared +to be of no obligation. + +It would be a solecism and absurdity in government to allow such +consequences as these. Besides, it would be practically impossible to +maintain government on such principles; for no government could enforce +its _civil_ judgments, unless it could support them by _criminal_ ones, +in case of resistance. A jury must therefore be paramount to legislation +in both civil and criminal cases, or in neither. If they are paramount +in neither, they are no protection to liberty. If they are paramount in +both, then all legislation goes only for what it may chance to be worth +in the estimation of a jury. + +Another reason why Magna Carta makes the discretion and consciences of +juries paramount to all legislation in _civil_ suits, is, that if +legislation were binding upon a jury, the jurors--(by reason of their +being unable to read, as jurors in those days were, and also by reason +of many of the statutes being unwritten, or at least not so many copies +written as that juries could be supplied with them)--would have been +necessitated--at least in those courts in which the king's justices +sat--to take the word of those justices as to what the laws of the king +really were. In other words, they would have been necessitated _to take +the law from the court_, as jurors do now. + +Now there were two reasons why, as we may rationally suppose, the people +did not wish juries to take their law from the king's judges. One was, +that, at that day, the people probably had sense enough to see, (what +we, at this day, have not sense enough to see, although we have the +evidence of it every day before our eyes,) that those judges, being +dependent upon the legislative power, (the king,) being appointed by it, +paid by it, and removable by it at pleasure, would be mere tools of that +power, and would hold all its legislation obligatory, whether it were +just or unjust. This was one reason, doubtless, why Magna Carta made +juries, in civil suits, paramount to all instructions of the king's +judges. The reason was precisely the same as that for making them +paramount to all instructions of judges in criminal suits, viz., that +the people did not choose to subject their rights of property, and all +other rights involved in civil suits, to the operation of such laws as +the king might please to enact. It was seen that to allow the king's +judges to dictate the law to the jury would be equivalent to making the +legislation of the king imperative upon the jury. + +Another reason why the people did not wish juries, in civil suits, to +take their law from the king's judges, doubtless was, that, knowing the +dependence of the judges upon the king, and knowing that the king would, +of course, tolerate no judges who were not subservient to his will, they +necessarily inferred that the king's judges would be as corrupt, in the +administration of justice, as was the king himself, or as he wished them +to be. And how corrupt that was, may be inferred from the following +historical facts. + +Hume says: + + "It appears that the ancient kings of England put themselves entirely + upon the footing of the barbarous Eastern princes, whom no man must + approach without a present, who sell all their good offices, and who + intrude themselves into every business that they may have a pretence + for extorting money. Even justice was avowedly bought and sold; the + king's court itself, though the supreme judicature of the kingdom, + was open to none that brought not presents to the king; the bribes + given for expedition, delay, suspension, and doubtless for the + perversion of justice, were entered in the public registers of the + royal revenue, and remain as monuments of the perpetual iniquity and + tyranny of the times. The barons of the exchequer, for instance, the + first nobility of the kingdom, were not ashamed to insert, as an + article in their records, that the county of Norfolk paid a sum that + they might be fairly dealt with; the borough of Yarmouth, that the + king's charters, which they have for their liberties, might not be + violated; Richard, son of Gilbert, for the king's helping him to + recover his debt from the Jews; * * Serlo, son of Terlavaston, that + he might be permitted to make his defence, in case he were accused of + a certain homicide; Walter de Burton, for free law, if accused of + wounding another; Robert de Essart, for having an inquest to find + whether Roger, the butcher, and Wace and Humphrey, accused him of + robbery and theft out of envy and ill-will, or not; William Buhurst, + for having an inquest to find whether he were accused of the death of + one Godwin, out of ill-will, or for just cause. I have selected these + few instances from a great number of the like kind, which Madox had + selected from a still greater number, preserved in the ancient rolls + of the exchequer. + + Sometimes a party litigant offered the king a certain portion, a + half, a third, a fourth, payable out of the debts which he, as the + executor of justice, should assist in recovering. Theophania de + Westland agreed to pay the half of two hundred and twelve marks, that + she might recover that sum against James de Fughleston; Solomon, the + Jew, engaged to pay one mark out of every seven that he should + recover against Hugh de la Hose; Nicholas Morrel promised to pay + sixty pounds, that the Earl of Flanders might be distrained to pay + him three hundred and forty-three pounds, which the earl had taken + from him; and these sixty pounds were to be paid out of the first + money that Nicholas should recover from the earl."--_Hume, Appendix + 2._ + + "In the reign of Henry II., the best and most just of these (the + Norman) princes, * * Peter, of Blois, a judicious and even elegant + writer, of that age, gives a pathetic description of the _venality of + justice_, and the oppressions of the poor, * * and he scruples not to + complain to the king himself of these abuses. We may judge what the + case would be under the government of worse princes."--_Hume, + Appendix 2._ + +Carte says: + + "The crown exercised in those days an exorbitant and inconvenient + power, ordering the justices of the king's court, in suits about + lands, to turn out, put, and keep in possession, which of the + litigants they pleased; to send contradictory orders; and take large + sums of money from each; to respite proceedings; to direct sentences; + and the judges, acting by their commission, conceived themselves + bound to observe such orders, to the great delay, interruption, and + preventing of justice; at least, this was John's practice."--_Carte's + History of England_, vol. 1, p. 832. + +Hallam says: + + "But of all the abuses that deformed the Anglo-Saxon government, none + was so flagitious as the sale of judicial redress. The king, we are + often told, is the fountain of justice; but in those ages it was one + which gold alone could unseal. Men fined (paid fines) to have right + done them; to sue in a certain court; to implead a certain person; to + have restitution of land which they had recovered at law. From the + sale of that justice which every citizen has a right to demand, it + was an easy transition to withhold or deny it. Fines were received + for the king's help against the adverse suitor; that is, for + perversion of justice, or for delay. Sometimes they were paid by + opposite parties, and, of course, for opposite ends."--_2 Middle + Ages_, 438. + +In allusion to the provision of Magna Carta on this subject, Hallam +says: + + "A law which enacts that justice shall neither be sold, denied, nor + delayed, stamps with infamy that government under which it had become + necessary."--_2 Middle Ages_, 451. + +Lingard, speaking of the times of Henry II., (say 1184,) says: + + "It was universally understood that money possessed greater influence + than justice in the royal courts, and instances are on record, in + which one party has made the king a present to accelerate, and the + other by a more valuable offer has succeeded in retarding a decision. + * * But besides the fines paid to the sovereigns, _the judges often + exacted presents for themselves_, and loud complaints existed against + their venality and injustice."--_2 Lingard_, 231. + +In the narrative of "The costs and charges which I, Richard de Anesty, +bestowed in recovering the land of William, my uncle," (some fifty years +before Magna Carta,) are the following items: + + "To Ralph, the king's physician, I gave thirty-six marks and one + half; to the king an hundred marks; and to the queen one mark of + gold." The result is thus stated. "At last, thanks to our lord the + king, and by judgment of his court, my uncle's land was adjudged to + me."--_2 Palgrave's Rise and Progress of the English Commonwealth_, + p. 9 and 24. + +Palgrave also says: + + "The precious ore was cast into the scales of justice, even when held + by the most conscientious of our Anglo-Saxon kings. A single case + will exemplify the practices which prevailed. Alfric, the heir of + 'Aylwin, the black,' seeks to set aside the death-bed bequest, by + which his kinsman bestowed four rich and fertile manors upon St. + Benedict. Alfric, the claimant, was supported by extensive and + powerful connexions; and Abbot Alfwine, the defendant, was well aware + that there would be _danger_ in the discussion of the dispute in + public, or before the Folkmoot, (people's meeting, or county court); + or, in other words, that the Thanes of the shire would do their best + to give a judgment in favor of their compeer. The plea being removed + into the Royal Court, the abbot acted with that prudence which so + often calls forth the praises of the monastic scribe. He gladly + emptied twenty marks of gold into the sleeve of the Confessor, + (Edward,) and five marks of gold presented to Edith, the Fair, + encouraged her to aid the bishop, and to exercise her gentle + influence in his favor. Alfric, with equal wisdom, withdrew from + prosecuting the hopeless cause, in which his opponent might possess + an advocate in the royal judge, and a friend in the king's consort. + Both parties, therefore, found it desirable to come to an + agreement."--_1 Palgrave's Rise and Progress, &c._, p. 650. + +But Magna Carta has another provision for the trial of _civil_ suits, +that obviously had its origin in the corruption of the king's judges. +The provision is, that four knights, to be chosen in every county, by +the people of the county, shall sit with the king's judges, in the +Common Pleas, in jury trials, (assizes,) on the trial of three certain +kinds of suits, that were among the most important that were tried at +all. The reason for this provision undoubtedly was, that the corruption +and subserviency of the king's judges were so well known, that the +people would not even trust them to sit alone in a jury trial of any +considerable importance. The provision is this: + + _Chap. 22_, (of John's Charter.) "Common Pleas shall not follow our + court, but shall be holden in some certain place. Trials upon the + writ of _novel disseisin_, and of _Mort d'Ancester_, and of _Darrein + Presentment_, shall be taken but in their proper counties, and after + this manner: We, or, if we should be out of our realm, our chief + justiciary, shall send two justiciaries through every county four + times a year;[70] _who, with four knights chosen out of every shire, + by the people, shall hold the assizes_ (juries) _in the county, on + the day and at the place appointed_." + +It would be very unreasonable to suppose that the king's judges were +allowed to _dictate_ the law to the juries, when the people would not +even suffer them to sit alone in jury trials, but themselves chose four +men to sit with them, to keep them honest.[71] + +This practice of sending the king's judges into the counties to preside +at jury trials, was introduced by the Norman kings. Under the Saxons it +was not so. _No officer of the king was allowed to preside at a jury +trial; but only magistrates chosen by the people._[72] + +But the following chapter of John's charter, which immediately succeeds +the one just quoted, and refers to the same suits, affords very strong, +not to say conclusive, proof, that juries judged of the law in civil +suits--that is, _made the law_, so far as their deciding according to +their own notions of justice could make the law. + + _Chap. 23._ "And if, on the county day, the aforesaid assizes cannot + be taken, _so many knights and freeholders shall remain, of those who + shall have been present on said day, as that the judgments may be + rendered by them_, whether the business be more or less." + +The meaning of this chapter is, that so many of the _civil_ suits, as +could not be tried on the day when the king's justices were present, +should be tried afterwards, _by the four knights before mentioned, and +the freeholders, that is, the jury_. It must be admitted, of course, +that the juries, in these cases, judged the matters of law, as well as +fact, unless it be presumed that the _knights_ dictated the law to the +jury--a thing of which there is no evidence at all. + +As a final proof on this point, there is a statute enacted seventy years +after Magna Carta, which, although it is contrary to the common law, and +therefore void, is nevertheless good evidence, inasmuch as it contains +an acknowledgment, on the part of the king himself, that juries had a +right to judge of the whole matter, law and fact, in civil suits. The +provision is this: + + "It is ordained, that the justices assigned to take the assizes, + shall not compel the jurors to say precisely whether it be disseisin, + or not, so that they do show the truth of the deed, and seek aid of + the justices. But if they will, of their own accord, say that it is + disseisin, or not, their verdict shall be admitted at their own + peril."--_13 Edward I._, st. 1, ch. 3, sec. 2. (1285.) + +The question of "disseisin, or not," was a question of law, as well as +fact. This statute, therefore, admits that the law, as well as the fact, +was in the hands of the jury. The statute is nevertheless void, because +the king had no authority to give jurors a dispensation from the +obligation imposed upon them by their oaths and the "law of the land," +that they should "make known the truth according their (own) +consciences." This they were bound to do, and there was no power in the +king to absolve them from the duty. And the attempt of the king thus to +absolve them, and authorize them to throw the case into the hands of the +judges for decision, was simply an illegal and unconstitutional attempt +to overturn the "law of the land," which he was sworn to maintain, and +gather power into his own hands, through his judges. He had just as much +constitutional power to enact that the jurors should not be compelled to +declare the _facts_, but that they might leave _them_ to be determined +by the king's judges, as he had to enact that they should not be +compelled to declare the _law_, but might leave _it_ to be decided by +the king's judges. It was as much the legal duty of the jury to decide +the law as to decide the fact; and no law of the king could affect their +obligation to do either. And this statute is only one example of the +numberless contrivances and usurpations which have been resorted to, for +the purpose of destroying the original and genuine trial by jury. + +[Footnote 68: _Marches_, the limits, or boundaries, between England and +Wales.] + +[Footnote 69: That the kings would have had no scruples to enact laws +for the special purpose of plundering the people, by means of the +judgments of juries, if they could have got juries to acknowledge the +authority of their laws, is evident from the audacity with which they +plundered them, without any judgments of juries to authorize them. + +It is not necessary to occupy space here to give details as to these +robberies; but only some evidence of the general fact. + + Hallam says, that "For the first three reigns (of the Norman kings) * + * the intolerable exactions of tribute, the rapine of purveyance, the + iniquity of royal courts, are continually in the mouths of the + historians. 'God sees the wretched people,' says the Saxon + Chronicler, 'most unjustly oppressed; first they are despoiled of + their possessions, and then butchered.' This was a grievous year + (1124). Whoever had any property, lost it by heavy taxes and unjust + decrees."--_2 Middle Ages_, 435-6. + + "In the succeeding reign of _John_, all the rapacious exactions usual + to these Norman kings were not only redoubled, but mingled with + outrages of tyranny still more intolerable. * * + + "In 1207 John took a seventh of the movables of lay and spiritual + persons, all murmuring, but none daring to speak against + it."--_Ditto_, 446. + +In Hume's account of the extortions of those times, the following +paragraph occurs: + + "But the most barefaced acts of tyranny and oppression were practised + against the Jews, who were entirely out of the protection of the law, + and were abandoned to the immeasurable rapacity of the king and his + ministers. Besides many other indignities, to which they were + continually exposed, it appears that they were once all thrown into + prison, and the sum of 66,000 marks exacted for their liberty. At + another time, Isaac, the Jew, paid alone 5100 marks; Brun, 3000 + marks; Jurnet, 2000; Bennet, 500. At another, Licorica, widow of + David, the Jew of Oxford, was required to pay 6000 marks."--_Hume's + Hist. Eng., Appendix_ 2. + +Further accounts of the extortions and oppressions of the kings may be +found in Hume's History, Appendix 2, and in Hallam's Middle Ages, vol. +2, p. 435 to 446. + +By Magna Carta John bound himself to make restitution for some of the +spoliations he had committed upon individuals "_without the legal +judgment of their peers_."--_See Magna Carta of John_, ch. 60, 61, 65 +and 66. + +One of the great charges, on account of which the nation rose against +John, was, that he plundered individuals of their property, "_without +legal judgment of their peers_." Now it was evidently very weak and +short-sighted in John to expose himself to such charges, _if his laws +were really obligatory upon the peers_; because, in that case, he could +have enacted any laws that were necessary for his purpose, and then, by +civil suits, have brought the cases before juries for their "judgment," +and thus have accomplished all his robberies in a perfectly legal +manner. + +There would evidently have been no sense in these complaints, that he +deprived men of their property "_without legal judgment of their +peers_," if his laws had been binding upon the peers; because he could +then have made the same spoliations as well with the judgment of the +peers as without it. Taking the judgment of the peers in the matter, +would have been only a ridiculous and useless formality, if they were to +exercise no discretion or conscience of their own, independently of the +laws of the king. + +It may here be mentioned, in passing, that the same would be true in +criminal matters, if the king's laws were obligatory upon juries. + +As an illustration of what tyranny the kings would sometimes practise, +Hume says: + + "It appears from the Great Charter itself, that not only John, a + tyrannical prince, and Richard, a violent one, but their father + Henry, under whose reign the prevalence of gross abuses is the least + to be suspected, were accustomed, from their sole authority, without + process of law, to imprison, banish, and attaint the freemen of their + kingdom."--_Hume, Appendix_ 2. + +The provision, also, in the 64th chapter of Magna Carta, that "all +unjust and illegal fines, and all amercements, _imposed unjustly, and +contrary to the Law of the Land, shall be entirely forgiven_," &c.; and +the provision, in chapter 61, that the king "will cause full justice to +be administered" in regard to "all those things, of which any person +has, without legal judgment of his peers, been dispossessed or deprived, +either by King Henry, our father, or our brother, King Richard," +indicate the tyrannical practices that prevailed. + + We are told also that John himself "had dispossessed several great + men without any judgment of their peers, condemned others to cruel + deaths, * * insomuch that his tyrannical will stood instead of a + law."--_Echard's History of England_, 106. + +Now all these things were very unnecessary and foolish, if his laws were +binding upon juries; because, in that case, he could have procured the +conviction of these men in a legal manner, and thus have saved the +necessity of such usurpation. In short, if the laws of the king had been +binding upon juries, there is no robbery, vengeance, or oppression, +which he could not have accomplished through the judgments of juries. +This consideration is sufficient, of itself, to prove that the laws of +the king were of no authority over a jury, in either civil or criminal +cases, unless the juries regarded the laws as just in themselves.] + +[Footnote 70: By the Magna Carta of Henry III. this is changed to once a +year.] + +[Footnote 71: From the provision of Magna Carta, cited in the text, it +must be inferred that there can be no legal trial by jury, in civil +cases, if only the king's justices preside; that, to make the trial +legal, there must be other persons, chosen by the people, to sit with +them; the object being to prevent the jury's being deceived by the +justices. I think we must also infer that the king's justices could sit +only in the three actions specially mentioned. We cannot go beyond the +letter of Magna Carta, in making innovations upon the common law, which +required all presiding officers in jury trials to be elected by the +people.] + +[Footnote 72: "The earls, sheriffs, and head-boroughs were annually +elected in the full folcmote, (people's meeting)."--_Introduction to +Gilbert's History of the Common Pleas_, p. 2, _note_. + +"It was the especial province of the earldomen or earl to attend the +shyre-meeting, (the county court,) twice a year, and there officiate as +the county judge in expounding the secular laws, as appears by the fifth +of Edgar's laws."--_Same_, p. 2, _note_. + +"Every ward had its proper alderman, who was _chosen_, and not imposed +by the prince."--_Same_, p. 4, _text_. + +"As the aldermen, or earls, were always _chosen_" (by the people) "from +among the greatest thanes, who in those times were generally more +addicted to arms than to letters, they were but ill-qualified for the +administration of justice, and performing the civil duties of their +office."--_3 Henry's History of Great Britain_, 343. + +"But none of these thanes were annually elected in the full folcmote, +(people's meeting,) _as the earls, sheriffs, and head-boroughs were_; +nor did King Alfred (as this author suggests) deprive the people of the +election of those last mentioned magistrates and nobles, much less did +he appoint them himself."--_Introd. to Gilbert's Hist. Com. Pleas_, p. +2, _note_. + +"The sheriff was usually not appointed by the lord, but elected by the +freeholders of the district."--_Political Dictionary_, word _Sheriff_. + +"Among the most remarkable of the Saxon laws we may reckon * * the +election of their magistrates by the people, originally even that of +their kings, till dear-bought experience evinced the convenience and +necessity of establishing an hereditary succession to the crown. But +that (the election) of all subordinate magistrates, their military +officers or heretochs, their sheriffs, their conservators of the peace, +their coroners, their portreeves, (since changed into mayors and +bailiffs,) and even their tithing-men and borsholders at the last, +continued, some, till the Norman conquest, others for two centuries +after, and some remain to this day."--_4 Blackstone_, 413. + +"The election of sheriffs was left to the people, _according to ancient +usage_."--_St. West._ 1, c. 27.--_Crabbe's History of English Law_, +181.] diff --git a/chapters/05.markdown b/chapters/05.markdown new file mode 100644 index 0000000..71d563f --- /dev/null +++ b/chapters/05.markdown @@ -0,0 +1,754 @@ +CHAPTER V. + +OBJECTIONS ANSWERED + + +The following objections will be made to the doctrines and the evidence +presented in the preceding chapters. + +1. That it is a _maxim_ of the law, that the judges respond to the +question of law, and juries only to the question of fact. + +The answer to this objection is, that, since Magna Carta, judges have +had more than six centuries in which to invent and promulgate pretended +maxims to suit themselves; and this is one of them. Instead of +expressing the law, it expresses nothing but the ambitious and lawless +will of the judges themselves, and of those whose instruments they +are.[73] + +2. It will be asked, Of what use are the justices, if the jurors judge +both of law and fact? + +The answer is, that they are of use, 1. To assist and enlighten the +jurors, if they can, by their advice and information; such advice and +information to be received only for what they may chance to be worth in +the estimation of the jurors. 2. To do anything that may be necessary in +regard to granting appeals and new trials. + +3. It is said that it would be absurd that twelve ignorant men should +have power to judge of the law, while justices learned in the law should +be compelled to sit by and see the law decided erroneously. + +One answer to this objection is, that the powers of juries are not +granted to them on the supposition that they know the law better than +the justices; but on the ground that the justices are untrustworthy, +that they are exposed to bribes, are themselves fond of power and +authority, and are also the dependent and subservient creatures of the +legislature; and that to allow them to dictate the law, would not only +expose the rights of parties to be sold for money, but would be +equivalent to surrendering all the property, liberty, and rights of the +people, unreservedly into the hands of arbitrary power, (the +legislature,) to be disposed of at its pleasure. The powers of juries, +therefore, not only place a curb upon the powers of legislators and +judges, but imply also an imputation upon their integrity and +trustworthiness; and _these_ are the reasons why legislators and judges +have formerly entertained the intensest hatred of juries, and, so fast +as they could do it without alarming the people for their liberties, +have, by indirection, denied, undermined, and practically destroyed +their power. And it is only since all the real power of juries has been +destroyed, and they have become mere tools in the hands of legislators +and judges, that they have become favorites with them. + +Legislators and judges are necessarily exposed to all the temptations of +money, fame, and power, to induce them to disregard justice between +parties, and sell the rights, and violate the liberties of the people. +Jurors, on the other hand, are exposed to none of these temptations. +They are not liable to bribery, for they are unknown to the parties +until they come into the jury-box. They can rarely gain either fame, +power, or money, by giving erroneous decisions. Their offices are +temporary, and they know that when they shall have executed them, they +must return to the people, to hold all their own rights in life subject +to the liability of such judgments, by their successors, as they +themselves have given an example for. The laws of human nature do not +permit the supposition that twelve men, taken by lot from the mass of +the people, and acting under such circumstances, will _all_ prove +dishonest. It is a supposable case that they may not be sufficiently +enlightened to know and do their whole duty, in all cases whatsoever; +but that they should _all_ prove _dishonest_, is not within the range +of probability. A jury, therefore, insures to us--what no other court +does--that first and indispensable requisite in a judicial tribunal, +integrity. + +4. It is alleged that if juries are allowed to judge of the law, _they +decide the law absolutely; that their decision must necessarily stand, +be it right or wrong_; and that this power of absolute decision would be +dangerous in their hands, by reason of their ignorance of the law. + +One answer is, that this power, which juries have of _judging_ of the +law, is not a power of _absolute decision in all cases_. For example, it +is a power to declare imperatively that a man's property, liberty, or +life, shall _not_ be taken from him; but it is not a power to declare +imperatively that they _shall_ be taken from him. + +Magna Carta does not provide that the judgments of the peers _shall be +executed_; but only that _no other than their judgments_ shall ever be +executed, _so far as to take a party's goods, rights, or person, +thereon_. + +A judgment of the peers may be reviewed, and invalidated, and a new +trial granted. So that practically a jury has no absolute power to take +a party's goods, rights, or person. They have only an absolute veto upon +their being taken by the government. The government is not bound to do +everything that a jury may adjudge. It is only prohibited from doing +anything--(that is, from taking a party's goods, rights, or +person)--unless a jury have first adjudged it to be done. + +But it will, perhaps, be said, that if an erroneous judgment of one jury +should be reaffirmed by another, on a new trial, it must _then_ be +executed. But Magna Carta does not command even this--although it might, +perhaps, have been reasonably safe for it to have done so--for if two +juries unanimously affirm the same thing, after all the light and aid +that judges and lawyers can afford them, that fact probably furnishes as +strong a presumption in favor of the correctness of their opinion, as +can ordinarily be obtained in favor of a judgment, by any measures of a +practical character for the administration of justice. Still, there is +nothing in Magna Carta that _compels_ the execution of even a second +judgment of a jury. The only injunction of Magna Carta upon the +government, as to what it _shall do_, on this point, is that it shall +"do justice and right," without sale, denial, or delay. But this leaves +the government all power of determining what is justice and right, +except that it shall not consider anything as justice and right--so far +as to carry it into execution against the goods, rights, or person of a +party--unless it be something which a jury have sanctioned. + +If the government had no alternative but to execute all judgments of a +jury indiscriminately, the power of juries would unquestionably be +dangerous; for there is no doubt that they may sometimes give hasty and +erroneous judgments. But when it is considered that their judgments can +be reviewed, and new trials granted, this danger is, for all practical +purposes, obviated. + +If it be said that juries may _successively_ give erroneous judgments, +and that new trials cannot be granted indefinitely, the answer is, that +so far as Magna Carta is concerned, there is nothing to prevent the +granting of new trials indefinitely, if the judgments of juries are +contrary to "justice and right." So that Magna Carta does not _require_ +any judgment whatever to be executed--so far as to take a party's goods, +rights, or person, thereon--unless it be concurred in by both court and +jury. + +Nevertheless, we may, for the sake of the argument, suppose the +existence of a _practical_, if not _legal_, necessity, for executing +_some_ judgment or other, in cases where juries persist in disagreeing +with the courts. In such cases, the principle of Magna Carta +unquestionably is, that the uniform judgments of _successive_ juries +shall prevail over the opinion of the court. And the reason of this +principle is obvious, viz., that it is the will of the country, and not +the will of the court, or the government, that must determine what laws +shall be established and enforced; that the concurrent judgments of +successive juries, given in opposition to all the reasoning which judges +and lawyers can offer to the contrary, must necessarily be presumed to +be a truer exposition of the will of the country, than are the opinions +of the judges. + +But it may be said that, unless jurors submit to the control of the +court, in matters of law, they may disagree among themselves, and +_never_ come to any judgment; and thus justice fail to be done. + +Such a case is perhaps possible; but, if possible, it can occur but +rarely; because, although one jury may disagree, a succession of juries +are not likely to disagree--that is, _on matters of natural law, or +abstract justice_.[74] If such a thing should occur, it would almost +certainly be owing to the attempt of the court to mislead them. It is +hardly possible that any other cause should be adequate to produce such +an effect; because justice comes very near to being a self-evident +principle. The mind perceives it almost intuitively. If, in addition to +this, the court be uniformly on the side of justice, it is not a +reasonable supposition that a succession of juries should disagree about +it. If, therefore, a succession of juries do disagree on the law of any +case, the presumption is, not that justice fails of being done, but that +injustice is prevented--_that_ injustice, which would be done, if the +opinion of the court were suffered to control the jury. + +For the sake of the argument, however, it may be admitted to be possible +that justice should sometimes fail of being done through the +disagreements of jurors, notwithstanding all the light which judges and +lawyers can throw upon the question in issue. If it be asked what +provision the trial by jury makes for such cases, the answer is, _it +makes none; and justice must fail of being done, from the want of its +being made sufficiently intelligible_. + +Under the trial by jury, justice can never be done--that is, by a +judgment that shall take a party's goods, rights, or person--until that +justice can be made intelligible or perceptible to the minds of _all_ +the jurors; or, at least, until it obtain the voluntary assent of +all--an assent, which ought not to be given until the justice itself +shall have become perceptible to all. + +The principles of the trial by jury, then, are these: + +1. That, in criminal cases, the accused is presumed innocent. + +2. That, in civil cases, possession is presumptive proof of property; +or, in other words, every man is presumed to be the rightful proprietor +of whatever he has in his possession. + +3. That these presumptions shall be overcome, in a court of justice, +only by evidence, the sufficiency of which, and by law, the justice of +which, are satisfactory to the understanding and consciences of _all_ +the jurors. + +These are the bases on which the trial by jury places the property, +liberty, and rights of every individual. + +But some one will say, if these are the principles of the trial by jury, +then it is plain that justice must often fail to be done. Admitting, for +the sake of the argument, that this may be true, the compensation for it +is, that positive _injustice_ will also often fail to be done; whereas +otherwise it would be done frequently. The very precautions used to +prevent _injustice_ being done, may often have the effect to prevent +_justice_ being done. But are we, therefore, to take no precautions +against injustice? By no means, all will agree. The question then +arises--Does the trial by jury, _as here explained_, involve such +extreme and unnecessary precautions against injustice, as to interpose +unnecessary obstacles to the doing of justice? Men of different minds +may very likely answer this question differently, according as they have +more or less confidence in the wisdom and justice of legislators, the +integrity and independence of judges, and the intelligence of jurors. +This much, however, may be said in favor of these precautions, viz., +that the history of the past, as well as our constant present +experience, prove how much injustice may, and certainly will, be done, +systematically and continually, _for the want of these precautions_--that +is, while the law is authoritatively made and expounded by legislators and +judges. On the other hand, we have no such evidence of how much justice +may fail to be done, _by reason of these precautions_--that is, by reason +of the law being left to the judgments and consciences of jurors. We can +determine the former point--that is, how much positive injustice is done +under the first of these two systems--because the system is in full +operation; but we cannot determine how much justice would fail to be +done under the latter system, because we have, in modern times, had no +experience of the use of the precautions themselves. In ancient times, +when these precautions were _nominally_ in force, such was the tyranny of +kings, and such the poverty, ignorance, and the inability of concert and +resistance, on the part of the people, that the system had no full or fair +operation. It, nevertheless, under all these disadvantages, impressed +itself upon the understandings, and imbedded itself in the hearts, of the +people, so as no other system of civil liberty has ever done. + +But this view of the two systems compares only the injustice done, and +the justice omitted to be done, in the individual cases adjudged, +without looking beyond them. And some persons might, on first thought, +argue that, if justice failed of being done under the one system, +oftener than positive injustice were done under the other, the balance +was in favor of the latter system. But such a weighing of the two +systems against each other gives no true idea of their comparative +merits or demerits; for, possibly, in this view alone, the balance would +not be very great in favor of either. To compare, or rather to contrast, +the two, we must consider that, under the jury system, the failures to +do justice would be only rare and exceptional cases; and would be owing +either to the intrinsic difficulty of the questions, or to the fact that +the parties had transacted their business in a manner unintelligible to +the jury, and the effects would be confined to the individual or +individuals interested in the particular suits. No permanent law would +be established thereby destructive of the rights of the people in other +like cases. And the people at large would continue to enjoy all their +natural rights as before. But under the other system, whenever an unjust +law is enacted by the legislature, and the judge imposes it upon the +jury as authoritative, and they give a judgment in accordance therewith, +the authority of the law is thereby established, and the whole people +are thus brought under the yoke of that law; because they then +understand that the law will be enforced against them in future, if they +presume to exercise their rights, or refuse to comply with the +exactions of the law. In this manner all unjust laws are established, +and made operative against the rights of the people. + +The difference, then, between the two systems is this: Under the one +system, a jury, at distant intervals, would (not enforce any positive +injustice, but only) fail of enforcing justice, in a dark and difficult +case, or in consequence of the parties not having transacted their +business in a manner intelligible to a jury; and the plaintiff would +thus fail of obtaining what was rightfully due him. And there the matter +would end, _for evil_, though not for good; for thenceforth parties, +warned of the danger of losing their rights, would be careful to +transact their business in a more clear and intelligible manner. Under +the other system--the system of legislative and judicial +authority--positive injustice is not only done in every suit arising +under unjust laws,--that is, men's property, liberty, or lives are not +only unjustly taken on those particular judgments,--but the rights of +the whole people are struck down by the authority of the laws thus +enforced, and a wide-sweeping tyranny at once put in operation. + +But there is another ample and conclusive answer to the argument that +justice would often fail to be done, if jurors were allowed to be +governed by their own consciences, instead of the direction of the +justices, in matters of law. That answer is this: + +Legitimate government can be formed only by the voluntary association of +all who contribute to its support. As a voluntary association, it can +have for its objects only those things in which the members of the +association are _all agreed_. If, therefore, there be any _justice_, in +regard to which all the parties to the government _are not agreed_, the +objects of the association do not extend to it.[75] + +If any of the members wish more than this,--if they claim to have +acquired a more extended knowledge of justice than is common to all, and +wish to have their pretended discoveries carried into effect, in +reference to themselves,--they must either form a separate association +for that purpose, or be content to wait until they can make their views +intelligible to the people at large. They cannot claim or expect that +the whole people shall practise the folly of taking on trust their +pretended superior knowledge, and of committing blindly into their hands +all their own interests, liberties, and rights, to be disposed of on +principles, the justness of which the people themselves cannot +comprehend. + +A government of the whole, therefore, must necessarily confine itself to +the administration of such principles of law as _all_ the people, who +contribute to the support of the government, can comprehend and see the +justice of. And it can be confined within those limits only by allowing +the jurors, who represent all the parties to the compact, to judge of +the law, and the justice of the law, in all cases whatsoever. And if any +justice be left undone, under these circumstances, it is a justice for +which the nature of the association does not provide, which the +association does not undertake to do, and which, as an association, it +is under no obligation to do. + +The people at large, the unlearned and common people, have certainly an +indisputable right to associate for the establishment and maintenance of +such a government as _they themselves_ see the justice of, and feel the +need of, for the promotion of their own interests, and the safety of +their own rights, without at the same time surrendering all their +property, liberty, and rights into the hands of men, who, under the +pretence of a superior and incomprehensible knowledge of justice, may +dispose of such property, liberties, and rights, in a manner to suit +their own selfish and dishonest purposes. + +If a government were to be established and supported _solely_ by that +portion of the people who lay claim to superior knowledge, there would +be some consistency in their saying that the common people should not be +received as jurors, with power to judge of the justice of the laws. But +so long as the whole people (or all the male adults) are presumed to be +voluntary parties to the government, and voluntary contributors to its +support, there is no consistency in refusing to any one of them more +than to another the right to sit as juror, with full power to decide for +himself whether any law that is proposed to be enforced in any +particular case, be within the objects of the association. + +The conclusion, therefore, is, that, in a government formed by voluntary +association, or on the _theory_ of voluntary association, and voluntary +support, (as all the North American governments are,) no law can +rightfully be enforced by the association in its corporate capacity, +against the goods, rights, or person of any individual, except it be +such as _all_ the members of the association agree that it may enforce. +To enforce any other law, to the extent of taking a man's goods, rights, +or person, would be making _some_ of the parties to the association +accomplices in what they regard as acts of injustice. It would also be +making them consent to what they regard as the destruction of their own +rights. These are things which no legitimate system or theory of +government can require of any of the parties to it. + +The mode adopted, by the trial by jury, for ascertaining whether all the +parties to the government do approve of a particular law, is to take +twelve men at random from the whole people, and accept their unanimous +decision as representing the opinions of the whole. Even this mode is +not theoretically accurate; for theoretical accuracy would require that +every man, who was a party to the government, should individually give +his consent to the enforcement of every law in every separate case. But +such a thing would be impossible in practice. The consent of twelve men +is therefore taken instead; with the privilege of appeal, and (in case +of error found by the appeal court) a new trial, to guard against +possible mistakes. This system, it is assumed, will ascertain the sense +of the whole people--"the country"--with sufficient accuracy for all +practical purposes, and with as much accuracy as is practicable without +too great inconvenience and expense. + +5. Another objection that will perhaps be made to allowing jurors to +judge of the law, and the justice of the law, is, that the law would be +uncertain. + +If, by this objection, it be meant that the law would be uncertain to +the minds of the people at large, so that they would not know what the +juries would sanction and what condemn, and would not therefore know +practically what their own rights and liberties were under the law, the +objection is thoroughly baseless and false. No system of law that was +ever devised could be so entirely intelligible and certain to the minds +of the people at large as this. Compared with it, the complicated +systems of law that are compounded of the law of nature, of +constitutional grants, of innumerable and incessantly changing +legislative enactments, and of countless and contradictory judicial +decisions, with no uniform principle of reason or justice running +through them, are among the blindest of all the mazes in which +unsophisticated minds were ever bewildered and lost. The uncertainty of +the law under these systems has become a proverb. So great is this +uncertainty, that nearly all men, learned as well as unlearned, shun the +law as their enemy, instead of resorting to it for protection. They +usually go into courts of justice, so called, only as men go into +battle--when there is no alternative left for them. And even then they +go into them as men go into dark labyrinths and caverns--with no +knowledge of their own, but trusting wholly to their guides. Yet, less +fortunate than other adventurers, they can have little confidence even +in their guides, for the reason that the guides themselves know little +of the mazes they are threading. They know the mode and place of +entrance; but what they will meet with on their way, and what will be +the time, mode, place, or condition of their exit; whether they will +emerge into a prison, or not; whether _wholly_ naked and destitute, or +not; whether with their reputations left to them, or not; and whether in +time or eternity; experienced and honest guides rarely venture to +predict. Was there ever such fatuity as that of a nation of men madly +bent on building up such labyrinths as these, for no other purpose than +that of exposing all their rights of reputation, property, liberty, and +life, to the hazards of being lost in them, instead of being content to +live in the light of the open day of their own understandings? + +What honest, unsophisticated man ever found himself involved in a +lawsuit, that he did not desire, of all things, that his cause might be +judged of on principles of natural justice, as those principles were +understood by plain men like himself? He would then feel that he could +foresee the result. These plain men are the men who pay the taxes, and +support the government. Why should they not have such an administration +of justice as they desire, and can understand? + +If the jurors were to judge of the law, and the justice of the law, +there would be something like certainty in the administration of +justice, and in the popular knowledge of the law, and men would govern +themselves accordingly. There would be something like certainty, because +every man has himself something like definite and clear opinions, and +also knows something of the opinions of his neighbors, on matters of +justice. And he would know that no statute, unless it were so clearly +just as to command the unanimous assent of twelve men, who should be +taken at random from the whole community, could be enforced so as to +take from him his reputation, property, liberty, or life. What greater +certainty can men require or need, as to the laws under which they are +to live? If a statute were enacted by a legislature, a man, in order to +know what was its true interpretation, whether it were constitutional, +and whether it would be enforced, would not be under the necessity of +waiting for years until some suit had arisen and been carried through +all the stages of judicial proceeding, to a final decision. He would +need only to use his own reason as to its meaning and its justice, and +then talk with his neighbors on the same points. Unless he found them +nearly unanimous in their interpretation and approbation of it, he would +conclude that juries would not unite in enforcing it, and that it would +consequently be a dead letter. And he would be safe in coming to this +conclusion. + +There would be something like certainty in the administration of +justice, and in the popular knowledge of the law, for the further reason +that there would be little legislation, and men's rights would be left +to stand almost solely upon the law of nature, or what was once called +in England "the _common law_," (before so much legislation and +usurpation had become incorporated into the common law,)--in other +words, upon the principles of natural justice. + +Of the certainty of this law of nature, or the ancient English common +law, I may be excused for repeating here what I have said on another +occasion. + + "Natural law, so far from being uncertain, when compared with + statutory and constitutional law, is the only thing that gives any + certainty at all to a very large portion of our statutory and + constitutional law. The reason is this. The words in which statutes + and constitutions are written are susceptible of so many different + meanings,--meanings widely different from, often directly opposite + to, each other, in their bearing upon men's rights,--that, unless + there were some rule of interpretation for determining which of these + various and opposite meanings are the true ones, there could be no + certainty at all as to the meaning of the statutes and constitutions + themselves. Judges could make almost anything they should please out + of them. Hence the necessity of a rule of interpretation. _And this + rule is, that the language of statutes and constitutions shall be + construed, as nearly as possible, consistently with natural law._ + + The rule assumes, what is true, that natural law is a thing certain + in itself; also that it is capable of being learned. It assumes, + furthermore, that it actually is understood by the legislators and + judges who make and interpret the written law. Of necessity, + therefore, it assumes further, that they (the legislators and judges) + are _incompetent_ to make and interpret the _written_ law, unless + they previously understand the natural law applicable to the same + subject. It also assumes that the _people_ must understand the + natural law, before they can understand the written law. + + It is a principle perfectly familiar to lawyers, and one that must be + perfectly obvious to every other man that will reflect a moment, + that, as a general rule, _no one can know what the written law is, + until he knows what it ought to be_; that men are liable to be + constantly misled by the various and conflicting senses of the same + words, unless they perceive the true legal sense in which the words + _ought to be taken_. And this true legal sense is the sense that is + most nearly consistent with natural law of any that the words can be + made to bear, consistently with the laws of language, and + appropriately to the subjects to which they are applied. + + Though the words _contain_ the law, the _words_ themselves are not + the law. Were the words themselves the law, each single written law + would be liable to embrace many different laws, to wit, as many + different laws as there were different senses, and different + combinations of senses, in which each and all the words were capable + of being taken. + + Take, for example, the Constitution of the United States. By adopting + one or another sense of the single word "_free_," the whole + instrument is changed. Yet the word _free_ is capable of some ten or + twenty different senses. So that, by changing the sense of that + single word, some ten or twenty different constitutions could be made + out of the same written instrument. But there are, we will suppose, a + thousand other words in the constitution, each of which is capable of + from two to ten different senses. So that, by changing the sense of + only a single word at a time, several thousands of different + constitutions would be made. But this is not all. Variations could + also be made by changing the senses of two or more words at a time, + and these variations could be run through all the changes and + combinations of senses that these thousand words are capable of. We + see, then, that it is no more than a literal truth, that out of that + single instrument, as it now stands, without altering the location of + a single word, might be formed, by construction and interpretation, + more different constitutions than figures can well estimate. + + But each written law, in order to be a law, must be taken only in + some _one_ definite and distinct sense; and that definite and + distinct sense must be selected from the almost infinite variety of + senses which its words are capable of. How is this selection to be + made? It can be only by the aid of that perception of natural law, or + natural justice, which men naturally possess. + + Such, then, is the comparative certainty of the natural and the + written law. Nearly all the certainty there is in the latter, so far + as it relates to principles, is based upon, and derived from, the + still greater certainty of the former. In fact, nearly all the + uncertainty of the laws under which we live,--which are a mixture of + natural and written laws,--arises from the difficulty of construing, + or, rather, from the facility of misconstruing, the _written_ law; + while natural law has nearly or quite the same certainty as + mathematics. On this point, Sir William Jones, one of the most + learned judges that have ever lived, learned in Asiatic as well as + European law, says,--and the fact should be kept forever in mind, as + one of the most important of all truths:--"_It is pleasing to remark + the similarity, or, rather, the identity of those conclusions which + pure, unbiassed reason, in all ages and nations, seldom fails to + draw, in such juridical inquiries as are not fettered and manacled by + positive institutions._"[76] In short, the simple fact that the + written law must be interpreted by the natural, is, of itself, a + sufficient confession of the superior certainty of the latter. + + The written law, then, even where it can be construed consistently + with the natural, introduces labor and obscurity, instead of shutting + them out. And this must always be the case, because words do not + create ideas, but only recall them; and the same word may recall many + different ideas. For this reason, nearly all abstract principles can + be seen by the single mind more clearly than they can be expressed by + words to another. This is owing to the imperfection of language, and + the different senses, meanings, and shades of meaning, which + different individuals attach to the same words, in the same + circumstances.[77] + + Where the written law cannot be construed consistently with the + natural, there is no reason why it should ever be enacted at all. It + may, indeed, be sufficiently plain and certain to be easily + understood; but its certainty and plainness are but a poor + compensation for its injustice. Doubtless a law forbidding men to + drink water, on pain of death, might be made so intelligible as to + cut off all discussion as to its meaning; but would the + intelligibleness of such a law be any equivalent for the right to + drink water? The principle is the same in regard to all unjust laws. + Few persons could reasonably feel compensated for the arbitrary + destruction of their rights, by having the order for their + destruction made known beforehand, in terms so distinct and + unequivocal as to admit of neither mistake nor evasion. Yet this is + all the compensation that such laws offer. + + Whether, therefore, written laws correspond with, or differ from, the + natural, they are to be condemned. In the first case, they are + useless repetitions, introducing labor and obscurity. In the latter + case, they are positive violations of men's rights. + + There would be substantially the same reason in enacting mathematics + by statute, that there is in enacting natural law. Whenever the + natural law is sufficiently certain to all men's minds to justify its + being enacted, it is sufficiently certain to need no enactment. On + the other hand, until it be thus certain, there is danger of doing + injustice by enacting it; it should, therefore, be left open to be + discussed by anybody who may be disposed to question it, and to be + judged of by the proper tribunal, the judiciary.[78] + + It is not necessary that legislators should enact natural law in + order that it may be known to the _people_, because that would be + presuming that the legislators already understand it better than the + people,--a fact of which I am not aware that they have ever + heretofore given any very satisfactory evidence. The same sources of + knowledge on the subject are open to the people that are open to the + legislators, and the people must be presumed to know it as well as + they. + + The objections made to natural law, on the ground of obscurity, are + wholly unfounded. It is true, it must be learned, like any other + science; but it is equally true that it is very easily learned. + Although as illimitable in its applications as the infinite relations + of men to each other, it is, nevertheless, made up of simple + elementary principles, of the truth and justice of which every + ordinary mind has an almost intuitive perception. _It is the science + of justice_,--and almost all men have the same perceptions of what + constitutes justice, or of what justice requires, when they + understand alike the facts from which their inferences are to be + drawn. Men living in contact with each other, and having intercourse + together, _cannot avoid_ learning natural law, to a very great + extent, even if they would. The dealings of men with men, their + separate possessions, and their individual wants, are continually + forcing upon their minds the questions,--Is this act just? or is it + unjust? Is this thing mine? or is it his? And these are questions of + natural law; questions, which, in regard to the great mass of cases, + are answered alike by the human mind everywhere. + + Children learn many principles of natural law at a very early age. + For example: they learn that when one child has picked up an apple or + a flower, it is his, and that his associates must not take it from + him against his will. They also learn that if he voluntarily exchange + his apple or flower with a playmate, for some other article of + desire, he has thereby surrendered his right to it, and must not + reclaim it. These are fundamental principles of natural law, which + govern most of the greatest interests of individuals and society; yet + children learn them earlier than they learn that three and three are + six, or five and five, ten. Talk of enacting natural law by statute, + that it may be known! It would hardly be extravagant to say, that, in + nine cases in ten, men learn it before they have learned the language + by which we describe it. Nevertheless, numerous treatises are written + on it, as on other sciences. The decisions of courts, containing + their opinions upon the almost endless variety of cases that have + come before them, are reported; and these reports are condensed, + codified, and digested, so as to give, in a small compass, the facts, + and the opinions of the courts as to the law resulting from them. And + these treatises, codes, and digests are open to be read of all men. + And a man has the same excuse for being ignorant of arithmetic, or + any other science, that he has for being ignorant of natural law. He + can learn it as well, if he will, without its being enacted, as he + could if it were. + + If our governments would but themselves adhere to natural law, there + would be little occasion to complain of the ignorance of the people + in regard to it. The popular ignorance of law is attributable mainly + to the innovations that have been made upon natural law by + legislation; whereby our system has become an incongruous mixture of + natural and statute law, with no uniform principle pervading it. To + learn such a system,--if system it can be called, and if learned it + can be,--is a matter of very similar difficulty to what it would be + to learn a system of mathematics, which should consist of the + mathematics of nature, interspersed with such other mathematics as + might be created by legislation, in violation of all the natural + principles of numbers and quantities. + + But whether the difficulties of learning natural law be greater or + less than here represented, they exist in the nature of things, and + cannot be removed. Legislation, instead of removing, only increases + them. This it does by innovating upon natural truths and principles, + and introducing jargon and contradiction, in the place of order, + analogy, consistency, and uniformity. + + Further than this; legislation does not even profess to remove the + obscurity of natural law. That is no part of its object. It only + professes to substitute something arbitrary in the place of natural + law. Legislators generally have the sense to see that legislation + will not make natural law any clearer than it is. Neither is it the + object of legislation to establish the authority of natural law. + Legislators have the sense to see that they can add nothing to the + authority of natural law, and that it will stand on its own + authority, unless they overturn it. + + The whole object of legislation, excepting that legislation which + merely makes regulations, and provides instrumentalities for carrying + other laws into effect, is to overturn natural law, and substitute + for it the arbitrary will of power. In other words, the whole object + of it is to destroy men's rights. At least, such is its only effect; + and its designs must be inferred from its effect. Taking all the + statutes in the country, there probably is not one in a + hundred,--except the auxiliary ones just mentioned,--that does not + violate natural law; that does not invade some right or other. + + Yet the advocates of arbitrary legislation are continually practising + the fraud of pretending that unless the legislature _make_ the laws, + the laws will not be known. The whole object of the fraud is to + secure to the government the authority of making laws that never + ought to be known." + +In addition to the authority already cited, of Sir William Jones, as to +the certainty of natural law, and the uniformity of men's opinions in +regard to it, I may add the following: + + "There is that great simplicity and plainness in the Common Law, that + Lord Coke has gone so far as to assert, (and Lord Bacon nearly + seconds him in observing,) that 'he never knew two questions arise + merely upon common law; but that they were mostly owing to statutes + ill-penned and overladen with provisos.'"--_3 Eunomus_, 157-8. + +If it still be said that juries would disagree, as to what was natural +justice, and that one jury would decide one way, and another jury +another; the answer is, that such a thing is hardly credible, as that +twelve men, taken at random from the people at large, should +_unanimously_ decide a question of natural justice one way, and that +twelve other men, selected in the same manner, should _unanimously_ +decide the same question the other way, _unless they were misled by the +justices_. If, however, such things should sometimes happen, from any +cause whatever, the remedy is by appeal, and new trial. + +[Footnote 73: Judges do not even live up to that part of their own +maxim, which requires jurors to try the matter of fact. By dictating to +them the laws of evidence,--that is, by dictating what evidence they may +hear, and what they may not hear, and also by dictating to them rules +for weighing such evidence as they permit them to hear,--they of +necessity dictate the conclusion to which they shall arrive. And thus +the court really tries the question of fact, as well as the question of +law, in every cause. It is clearly impossible, in the nature of things, +for a jury to try a question of fact, without trying every question of +law on which the fact depends.] + +[Footnote 74: Most disagreements of juries are on matters of fact, which +are admitted to be within their province. We have little or no evidence +of their disagreements on matters of natural justice. The disagreements +of _courts_ on matters of law, afford little or no evidence that juries +would also disagree on matters of law--that is, _of justice_; because +the disagreements of courts are generally on matters of _legislation_, +and not on those principles of abstract justice, by which juries would +be governed, and in regard to which the minds of men are nearly +unanimous.] + +[Footnote 75: This is the principle of all voluntary associations +whatsoever. No voluntary association was ever formed, and in the nature +of things there never can be one formed, for the accomplishment of any +objects except those in which all the parties to the association are +agreed. Government, therefore, must be kept within these limits, or it +is no longer a voluntary association of all who contribute to its +support, but a mere tyranny established by a part over the rest. + +All, or nearly all, voluntary associations give to a majority, or to +some other portion of the members less than the whole, the right to use +some _limited_ discretion as to the means to be used to accomplish the +ends in view; but _the ends themselves to be accomplished_ are always +precisely defined, and are such as every member necessarily agrees to, +else he would not voluntarily join the association. + +Justice is the object of government, and those who support the +government, must be agreed as to the justice to be executed by it, or +they cannot rightfully unite in maintaining the government itself.] + +[Footnote 76: Jones on Bailments, 133.] + +[Footnote 77: Kent, describing the difficulty of construing the written +law, says: + +"Such is the imperfection of language, and the want of technical skill +in the makers of the law, that statutes often give occasion to the most +perplexing and distressing doubts and discussions, arising from the +ambiguity that attends them. It requires great experience, as well as +the command of a perspicuous diction, to frame a law in such clear and +precise terms, as to secure it from ambiguous expressions, and from all +doubts and criticisms upon its meaning."--_Kent_, 460. + +The following extract from a speech of Lord Brougham, in the House of +Lords, confesses the same difficulty: + +"There was another subject, well worthy of the consideration of +government during the recess,--the expediency, _or rather the absolute +necessity_, of some arrangement for the preparation of bills, not merely +private, but public bills, _in order that legislation might be +consistent and systematic, and that the courts might not have so large a +portion of their time occupied in endeavoring to construe acts of +Parliament, in many cases unconstruable, and in most cases difficult to +be construed_."--_Law Reporter_, 1848, p. 525.] + +[Footnote 78: This condemnation of written laws must, of course, be +understood as applying only to cases where principles and rights are +involved, and not as condemning any governmental arrangements, or +instrumentalities, that are consistent with natural right, and which +must be agreed upon for the purpose of carrying natural law into effect. +These things may be varied, as expediency may dictate, so only that they +be allowed to infringe no principle of justice. And they must, of +course, be written, because they do not exist as fixed principles, or +laws in nature.] diff --git a/chapters/06.markdown b/chapters/06.markdown new file mode 100644 index 0000000..ba7ed89 --- /dev/null +++ b/chapters/06.markdown @@ -0,0 +1,689 @@ +CHAPTER VI. + +JURIES OF THE PRESENT DAY ILLEGAL. + + +It may probably be safely asserted that there are, at this day, no legal +juries, either in England or America. And if there are no legal juries, +there is, of course, no legal trial, nor "judgment," by jury. + +In saying that there are probably no legal juries, I mean that there are +probably no juries appointed in conformity with the principles of the +_common law_. + +The term _jury_ is a technical one, derived from the common law; and +when the American constitutions provide for the trial by jury, they +provide for the _common law_ trial by jury; and not merely for any trial +by jury that the government itself may chance to invent, and call by +that name. It is the _thing_, and not merely the _name_, that is +guarantied. Any legislation, therefore, that infringes any _essential +principle_ of the _common law_, in the selection of jurors, is +unconstitutional; and the juries selected in accordance with such +legislation are, of course, illegal, and their judgments void. + +It will also be shown, in a subsequent chapter,[79] that since Magna +Carta, the legislative power in England (whether king or parliament) has +never had any constitutional authority to infringe, by legislation, any +essential principle of the common law in the selection of jurors. All +such legislation is as much unconstitutional and void, as though it +abolished the trial by jury altogether. In reality it does abolish it. + +What, then, are the _essential principles_ of the common law, +controlling the selection of jurors? + +They are two. + +1. That _all_ the freemen, or adult male members of the state, shall be +eligible as jurors.[80] + +Any legislation which requires the selection of jurors to be made from a +less number of freemen than the whole, makes the jury selected an +illegal one. + +If a part only of the freemen, or members of the state, are eligible as +jurors, the jury no longer represent "the country," but only a part of +"the country." + +If the selection of jurors can be restricted to any less number of +freemen than the whole, it can be restricted to a very small proportion +of the whole; and thus the government be taken out of the hands of "the +country," or the whole people, and be thrown into the hands of a few. + +That, at common law, the whole body of freemen were eligible as jurors +is sufficiently proved, not only by the reason of the thing, but by the +following evidence: + +1. Everybody must be presumed eligible, until the contrary be shown. We +have no evidence, that I am aware of, of a prior date to Magna Carta, to +_disprove_ that all freemen were eligible as jurors, unless it be the +law of Ethelred, which requires that they be elderly[81] men. Since no +specific age is given, it is probable, I think, that this statute meant +nothing more than that they be more than twenty-one years old. If it +meant anything more, it was probably contrary to the common law, and +therefore void. + +2. Since Magna Carta, we have evidence showing quite conclusively that +all freemen, above the age of twenty-one years, were eligible as jurors. + +The _Mirror of Justices_, (written within a century after Magna Carta,) +in the section "_Of Judges_"--that is, _jurors_--says: + + "All those who are not forbidden by law may be judges (jurors). To + women it is forbidden by law that they be judges; and thence it is, + that feme coverts are exempted to do suit in inferior courts. On the + other part, a villein cannot be a judge, by reason of the two + estates, which are repugnants; persons attainted of false judgments + cannot be judges, nor infants, nor any under the age of twenty-one + years, nor infected persons, nor idiots, nor madmen, nor deaf, nor + dumb, nor parties in the pleas, nor men excommunicated by the bishop, + nor criminal persons. * * And those who are not of the Christian + faith cannot be judges, nor those who are out of the king's + allegiance."--_Mirror of Justices_, 59-60. + +In the section "_Of Inferior Courts_," it is said: + + "From the first assemblies came consistories, which we now call + courts, and that in divers places, and in divers manners; whereof the + sheriffs held one monthly, or every five weeks, according to the + greatness or largeness of the shires. And these courts are called + county courts, _where the judgment is by the suitors_, if there be no + writ, and is by warrant of jurisdiction ordinary. The other inferior + courts are the courts of every lord of the fee, to the likeness of + the hundred courts. * * There are other inferior courts which the + bailiffs hold in every hundred, from three weeks to three weeks, _by + the suitors of the freeholders of the hundred. All the tenants within + the fees are bounden to do their suit there_, and that not for the + service of their persons, but for the service of their fees. But + women, infants within the age of twenty-one years, deaf, dumb, + idiots, those who are indicted or appealed of mortal felony, before + they be acquitted, diseased persons, and excommunicated persons are + exempted from doing suit."--_Mirror of Justices_, 50-51. + +In the section "_Of the Sheriff's Turns_," it is said: + + "The sheriffs by ancient ordinances hold several meetings twice in + the year in every hundred; _where all the freeholders within the + hundred_ are bound to appear for the service of their fees."--_Mirror + of Justices_, 50. + +The following statute was passed by Edward I., seventy years after Magna +Carta: + + "Forasmuch also as sheriffs, hundreders, and bailiffs of liberties, + have used to grieve those which be placed under them, putting in + assizes and juries men diseased and decrepit, and having continual or + sudden disease; and men also that dwelled not in the country at the + time of the summons; and summon also an unreasonable number of + jurors, for to extort money from some of them, for letting them go + in peace, and so the assizes and juries pass many times by poor men, + and the rich abide at home by reason of their bribes; it is ordained + that from henceforth in one assize no more shall be summoned than + four and twenty; and old men above three score and ten years, being + continually sick, or being diseased at the time of the summons, or + not dwelling in that country, shall not be put in juries of petit + assizes."--_St. 13 Edward I._, ch. 38. (1285.) + +Although this command to the sheriffs and other officers, not to summon, +as jurors, those who, from age and disease, were physically incapable of +performing the duties, may not, of itself, afford any absolute or legal +implication, by which we can determine precisely who were, and who were +not, eligible as jurors at common law, yet the exceptions here made +nevertheless carry a seeming confession with them that, at common law, +all male adults were eligible as jurors. + +But the main principle of the feudal system itself shows that _all_ the +full and free adult male members of the state--that is, all who were +free born, and had not lost their civil rights by crime, or +otherwise--_must_, at common law, have been eligible as jurors. What was +that principle? It was, that the state rested for support upon the land, +and not upon taxation levied upon the people personally. The lands of +the country were considered the property of the state, and were made to +support the state _in this way_. A portion of them was set apart to the +king, the rents of which went to pay his personal and official +expenditures, not including the maintenance of armies, or the +administration of justice. War and the administration of justice were +provided for in the following manner. The freemen, or the freeborn adult +male members of the state--who had not forfeited their political +rights--were entitled to land _of right_, (until all the land was taken +up,) on condition of their rendering certain military and civil services +to the state. The military services consisted in serving personally as +soldiers, or contributing an equivalent in horses, provisions, or other +military supplies. The civil services consisted, among other things, in +serving as jurors (and, it would appear, as witnesses) in the courts of +justice. For these services they received no compensation other than +the use of their lands. In this way the state was sustained; and the +king had no power to levy additional burdens or taxes upon the people. +The persons holding lands on these terms were called _freeholders_--in +later times _freemen_--meaning free and full members of the state. + +Now, as the principle of the system was that the freeholders held their +lands of the state, on the condition of rendering these military and +civil services as _rents_ for their lands, the principle implies that +_all_ the freeholders were liable to these rents, and were therefore +eligible as jurors. Indeed, I do not know that it has ever been doubted +that, at common law, _all_ the freeholders were eligible as jurors. If +all had not been eligible, we unquestionably should have had abundant +evidence of the exceptions. And if anybody, at this day, allege any +exceptions, the burden will be on him to prove them. The presumption +clearly is that _all_ were eligible. + +The first invasion, which I find made, by the English statutes, upon +this common law principle, was made in 1285, seventy years after Magna +Carta. It was then enacted as follows: + + "Nor shall any be put in assizes or juries, though they ought to be + taken in their own shire, that hold a tenement of less than the value + of _twenty shillings yearly_. And if such assizes and juries be taken + out of the shire, no one shall be placed in them who holds a tenement + of less value than forty shillings yearly at the least, except such + as be witnesses in deeds or other writings, whose presence is + necessary, so that they be able to travel."--_St. 13 Edward I._, ch. + 38. (1285.) + +The next invasion of the common law, in this particular, was made in +1414, about two hundred years after Magna Carta, when it was enacted: + + "That no person shall be admitted to pass in any inquest upon trial + of the death of a man, nor in any inquest betwixt party and party in + plea real, nor in plea personal, whereof the debt or the damage + declared amount to forty marks, if the same person have not lands or + tenements of the yearly value of _forty shillings above all charges + of the same_."--_2 Henry V._, st. 2, ch. 3. (1414.) + +Other statutes on this subject of the property qualifications of jurors, +are given in the note.[82] + +From these statutes it will be seen that, since 1285, seventy years +after Magna Carta, the common law right of all free British subjects to +eligibility as jurors has been abolished, and the qualifications of +jurors have been made a subject of arbitrary legislation. In other +words, the government has usurped the authority of _selecting_ the +jurors that were to sit in judgment upon its own acts. This is +destroying the vital principle of the trial by jury itself, which is +that the legislation of the government shall be subjected to the +judgment of a tribunal, taken indiscriminately from the whole people, +without any choice by the government, and over which the government can +exercise no control. If the government can select the jurors, it will, +of course, select those whom it supposes will be favorable to its +enactments. And an exclusion of _any_ of the freemen from eligibility is +a _selection_ of those not excluded. + +It will be seen, from the statutes cited, that the most absolute +authority over the jury box--that is, over the right of the people to +sit in juries--has been usurped by the government; that the +qualifications of jurors have been repeatedly changed, and made to vary +from a freehold of _ten shillings yearly_, to one of "_twenty pounds by +the year at least above reprises_." They have also been made different, +in the counties of Southampton, Surrey, and Sussex, from what they were +in the other counties; different in Wales from what they were in +England; and different in the city of London, and in the county of +Middlesex, from what they were in any other part of the kingdom. + +But this is not all. The government has not only assumed arbitrarily to +classify the people, on the basis of property, but it has even assumed +to give to some of its judges entire and absolute personal discretion in +the selection of the jurors to be impanelled in criminal cases, as the +following statutes show. + + "Be it also ordained and enacted by the same authority, that all + panels hereafter to be returned, which be not at the suit of any + party, that shall be made and put in afore any justice of gaol + delivery or justices of peace in their open sessions _to inquire for + the king, shall hereafter be reformed by additions and taking out of + names of persons by discretion of the same justices before whom such + panel shall be returned; and the same justices shall hereafter + command the sheriff, or his ministers in his absence, to put other + persons in the same panel by their discretions; and that panel so + hereafter to be made, to be good and lawful_. This act to endure only + to the next Parliament."--_11 Henry VII._, ch. 24, sec. 6. (1495.) + +This act was continued in force by 1 Henry VIII., ch. 11, (1509,) to the +end of the then next Parliament. + +It was reënacted, and made perpetual, by 3 Henry VIII., ch. 12. (1511.) + +_These acts gave unlimited authority to the king's justices to pack +juries at their discretion; and abolished the last vestige of the common +law right of the people to sit as jurors, and judge of their own +liberties, in the courts to which the acts applied._ + +Yet, as matters of law, these statutes were no more clear violations of +the common law, the fundamental and paramount "law of the land," than +were those statutes which affixed the property qualifications before +named; because, if the king, or the government, can select the jurors on +the ground of property, it can select them on any other ground +whatever. + +Any infringement or restriction of the common law right of the whole +body of the freemen of the kingdom to eligibility as jurors, was legally +an abolition of the trial by jury itself. The juries no longer +represented "the country," but only a part of the country; that part, +too, on whose favor the government chose to rely for the maintenance of +its power, and which it therefore saw fit to select as being the most +reliable instruments for its purposes of oppression towards the rest. +And the selection was made on the same principle, on which tyrannical +governments generally select their supporters, viz., that of +conciliating those who would be most dangerous as enemies, and most +powerful as friends--that is, the wealthy.[83] + +These restrictions, or indeed any one of them, of the right of +eligibility as jurors, was, in principle, a complete abolition of the +English constitution; or, at least, of its most vital and valuable part. +It was, in principle, an assertion of a right, on the part of the +government, to _select_ the individuals who were to determine the +authority of its own laws, and the extent of its own powers. It was, +therefore, _in effect_, the assertion of a right, on the part of the +government itself, to determine its own powers, and the authority of its +own legislation, over the people; and a denial of all right, on the part +of the people, to judge of or determine their own liberties against the +government. It was, therefore, in reality, a declaration of entire +absolutism on the part of the government. It was an act as purely +despotic, _in principle_, as would have been the express abolition of +all juries whatsoever. By "the law of the land," which the kings were +sworn to maintain, every free adult male British subject was eligible to +the jury box, with full power to exercise his own judgment as to the +authority and obligation of every statute of the king, which might come +before him. But the principle of these statutes (fixing the +qualifications of jurors) is, that nobody is to sit in judgment upon the +acts or legislation of the king, or the government, except those whom +the government itself shall select for that purpose. A more complete +subversion of the essential principles of the English constitution could +not be devised. + +The juries of England are illegal for another reason, viz., that the +statutes cited require the jurors (except in London and a few other +places) to be _freeholders_. All the other free British subjects are +excluded; whereas, at common law, all such subjects are eligible to sit +in juries, whether they be freeholders or not. + +It is true, the ancient common law required the jurors to be +freeholders; but the term _freeholder_ no longer expresses the same idea +that it did in the ancient common law; because no land is now holden in +England on the same principle, or by the same tenure, as that on which +all the land was held in the early times of the common law. + +As has heretofore been mentioned, in the early times of the common law +the land was considered the property of the state; and was all holden by +the _tenants_, so called, (that is, _holders_,) on the condition of +their rendering certain military and civil services to the state, (or to +the king as the representative of the state,) under the name of _rents_. +Those who held lands on these terms were called free _tenants_, that is, +_free holders_--meaning free persons, or members of the state, holding +lands--to distinguish them from villeins, or serfs, who were not members +of the state, but held their lands by a more servile tenure, and also to +distinguish them from persons of foreign birth, outlaws, and all other +persons, who were not members of the state. + +Every freeborn adult male Englishman (who had not lost his civil rights +by crime or otherwise) was entitled to land of _right_; that is, by +virtue of his civil freedom, or membership of the body politic. Every +member of the state was therefore a freeholder; and every freeholder was +a member of the state. And the members of the state were therefore +called freeholders. But what is material to be observed, is, that a +man's right to land was an incident to his _civil freedom_; not his +civil freedom an incident to his right to land. He was a freeholder +because he was a _freeborn_ member of the state; and not a freeborn +member of the state because he was a freeholder; for this last would be +an absurdity. + +As the tenures of lands changed, the term _freeholder_ lost its original +significance, and no longer described a man who held land of the state +by virtue of his civil freedom, but only one who held it in +fee-simple--that is, free of any liability to military or civil +services. But the government, in fixing the qualifications of jurors, +has adhered to the term _freeholder_ after that term has ceased to +express the _thing_ originally designated by it. + +The principle, then, of the common law, was, that every freeman, or +freeborn male Englishman, of adult age, &c., was eligible to sit in +juries, by virtue of his civil freedom, or his being a member of the +state, or body politic. But the principle of the present English +statutes is, that a man shall have a right to sit in juries because he +owns lands in fee-simple. At the common law a man was _born_ to the +right to sit in juries. By the present statutes he _buys_ that right +when he buys his land. And thus this, the greatest of all the political +rights of an Englishman, has become a mere article of merchandise; a +thing that is bought and sold in the market for what it will bring. + +Of course, there can be no legality in such juries as these; but only in +juries to which every free or natural born adult male Englishman is +eligible. + +The second essential principle of the common law, controlling the +selection of jurors, is, that when the selection of the actual jurors +comes to be made, (from the whole body of male adults,) that selection +shall be made in some mode that excludes the possibility of choice _on +the part of the government_. + +Of course, this principle forbids the selection to be made _by any +officer of the government_. + +There seem to have been at least three modes of selecting the jurors, at +the common law. 1. By lot.[84] 2. Two knights, or other freeholders, +were appointed, (probably by the sheriff,) to select the jurors. 3. By +the sheriff, bailiff, or other person, who held the court, or rather +acted as its ministerial officer. Probably the latter mode may have been +the most common, although there may be some doubt on this point. + +At the common law the sheriffs, bailiffs, and other officers _were +chosen by the people, instead of being appointed by the king_. (_4 +Blackstone_, 413. _Introduction to Gilbert's History of the Common +Pleas_, p. 2, _note_, and p. 4.) This has been shown in a former +chapter.[85] At common law, therefore, jurors selected by these officers +were legally selected, so far as the principle now under discussion is +concerned; that is, they were not selected by any officer who was +dependent on the government. + +But in the year 1315, one hundred years after Magna Carta, the choice of +sheriffs was taken from the people, and it was enacted: + + "That the sheriffs shall henceforth be assigned by the chancellor, + treasurer, barons of the exchequer, and by the justices. And in the + absence of the chancellor, by the treasurer, barons and + justices."--_9 Edward II._, st. 2. (1315.) + +These officers, who appointed the sheriffs, were themselves appointed by +the king, and held their offices during his pleasure. Their appointment +of sheriffs was, therefore, equivalent to an appointment by the king +himself. And the sheriffs, thus appointed, held their offices only +during the pleasure of the king, and were of course mere tools of the +king; and their selection of jurors was really a selection by the king +himself. In this manner the king usurped the selection of the jurors who +were to sit in judgment upon his own laws. + +Here, then, was another usurpation, by which the common law trial by +jury was destroyed, so far as related to the county courts, in which the +sheriffs presided, and which were the most important courts of the +kingdom. From this cause alone, if there were no other, there has not +been a legal jury in a _county_ court in England, for more than five +hundred years. + +In nearly or quite all the States of the United States the juries are +illegal, for one or the other of the same reasons that make the juries +in England illegal. + +In order that the juries in the United States may be legal--that is, in +accordance with the principles of the common law--it is necessary that +every adult male member of the state should have his name in the jury +box, or be eligible as a juror. Yet this is the case in hardly a single +state. + +In New Jersey, Maryland, North Carolina, Tennessee, and Mississippi, the +jurors are required to be _freeholders_. But this requirement is +illegal, for the reason that the term _freeholder_, in this country, has +no meaning analogous to the meaning it had in the ancient common law. + +In Arkansas, Missouri, Indiana, and Alabama, jurors are required to be +"freeholders or householders." Each of these requirements is illegal. + +In Florida, they are required to be "householders." + +In Connecticut, Maine, Ohio, and Georgia, jurors are required to have +the qualifications of "electors." + +In Virginia, they are required to have a property qualification of one +hundred dollars. + +In Maine, Massachusetts, Vermont, Connecticut, New York, Ohio, Indiana, +Michigan, and Wisconsin, certain civil authorities of the towns, cities, +and counties are authorized to select, once in one, two, or three years, +a certain number of the people--a small number compared with the +whole--from whom jurors are to be taken when wanted; thus disfranchising +all except the few thus selected. + +In Maine and Vermont, the inhabitants, by vote in town meeting, have a +veto upon the jurors selected by the authorities of the town. + +In Massachusetts, the inhabitants, by vote in town meeting, can strike +out any names inserted by the authorities, and insert others; thus +making jurors elective by the people, and, of course, representatives +only of a majority of the people. + +In Illinois, the jurors are selected, for each term of court, by the +county commissioners. + +In North Carolina, "_the courts of pleas and quarter sessions_ * * shall +select the names of such persons only as are freeholders, and as are +well qualified to act as jurors, &c.; thus giving the courts power to +pack the juries."--(_Revised Statutes_, 147.) + +In Arkansas, too, "It shall be the duty of the _county court_ of each +county * * to make out and cause to be delivered to the sheriff a list +of not less than sixteen, nor more than twenty-three persons, qualified +to serve as _grand_ jurors;" and the sheriff is to summon such persons +to serve as _grand_ jurors. + +In Tennessee, also, the jurors are to be selected by the _county +courts_. + +In Georgia, the jurors are to be selected by "the justices of the +inferior courts of each county, together with the sheriff and clerk, or +a majority of them." + +In Alabama, "the sheriff, judge of the county court, and clerks of the +circuit and county courts," or "a majority of" them, select the jurors. + +In Virginia, the jurors are selected by the sheriffs; but the sheriffs +are appointed by the governor of the state, and that is enough to make +the juries illegal. Probably the same objection lies against the +legality of the juries in some other states. + +How jurors are appointed, and what are their qualifications, in New +Hampshire, Rhode Island, Pennsylvania, Delaware, South Carolina, +Kentucky, Iowa, Texas, and California, I know not. There is little doubt +that there is some valid objection to them, of the kinds already +suggested, in all these states. + +In regard to jurors in the courts of the United States, it is enacted, +by act of Congress: + + "That jurors to serve in the courts of the United States, in each + state respectively, shall have the like qualifications, and be + entitled to the like exemptions, as jurors of the highest court of + law of such state now have and are entitled to, and shall hereafter, + from time to time, have and be entitled to, and shall be designated + by ballot, lot, or otherwise, according to the mode of forming such + juries now practised and hereafter to be practised therein, in so far + as such mode may be practicable by the courts of the United States, + or the officers thereof; and for this purpose, the said courts shall + have power to make all necessary rules and regulations for conforming + the designation and empanelling of jurors, in substance, to the laws + and usages now in force in such state; and, further, shall have + power, by rule or order, from time to time, to conform the same to + any change in these respects which may be hereafter adopted by the + legislatures of the respective states for the state courts."--_St._ + 1840, ch. 47, _Statutes at Large_, vol. 5, p. 394. + +In this corrupt and lawless manner, Congress, instead of taking care to +preserve the trial by jury, so far as they might, by providing for the +appointment of legal juries--incomparably the most important of all our +judicial tribunals, and the only ones on which the least reliance can be +placed for the preservation of liberty--have given the selection of them +over entirely to the control of an indefinite number of state +legislatures, and thus authorized each state legislature to adapt the +juries of the United States to the maintenance of any and every system +of tyranny that may prevail in such state. + +Congress have as much constitutional right to give over all the +functions of the United States government into the hands of the state +legislatures, to be exercised within each state in such manner as the +legislature of such state shall please to exercise them, as they have to +thus give up to these legislatures the selection of juries for the +courts of the United States. + +There has, probably, never been a legal jury, nor a legal trial by jury, +in a single court of the United States, since the adoption of the +constitution. + +These facts show how much reliance can be placed in written +constitutions, to control the action of the government, and preserve the +liberties of the people. + +If the real trial by jury had been preserved in the courts of the United +States--that is, if we had had legal juries, and the jurors had known +their rights--it is hardly probable that one tenth of the past +legislation of Congress would ever have been enacted, or, at least, +that, if enacted, it could have been enforced. + +Probably the best mode of appointing jurors would be this: Let the names +of _all_ the adult male members of the state, in each township, be kept +in a jury box, by the officers of the township; and when a court is to +be held for a county or other district, let the officers of a sufficient +number of townships be required (without seeing the names) to draw out a +name from their boxes respectively, to be returned to the court as a +juror. This mode of appointment would guard against collusion and +selection; and juries so appointed would be likely to be a fair epitome +of "the country." + +[Footnote 79: On the English Constitution.] + +[Footnote 80: Although all the freemen are legally eligible as jurors, +any one may nevertheless be challenged and set aside, at the trial, for +any special _personal_ disqualification; such as mental or physical +inability to perform the duties; having been convicted, or being under +charge, of crime; interest, bias, &c. But it is clear that the common +law allows none of these points to be determined by the court, but only +by "_triers_."] + +[Footnote 81: What was the precise meaning of the Saxon word, which I +have here called _elderly_, I do not know. In the Latin translations it +is rendered by _seniores_, which may perhaps mean simply those who have +attained their majority.] + +[Footnote 82: In 1483 it was enacted, by a statute entitled "Of what +credit and estate those jurors must be which shall be impanelled in the +Sheriff's Turn." + + "That no bailiff nor other officer from henceforth return or impanel + any such person in any shire of England, to be taken or put in or + upon any inquiry in any of the said Turns, but such as be of good + name and fame, and having lands and tenements of freehold within the + same shires, to the yearly value of _twenty shillings_ at the least, + or else lands and tenements holden by custom of manor, commonly + called _copy-hold_, within the said shires, to the yearly value of + twenty-six shillings eight pence over all charges at the least."--_1 + Richard III._, ch. 4. (1483.) + + In 1486 it was enacted, "That the justices of the peace of every + shire of this realm for the time being may take, by their discretion, + an inquest, whereof every man shall have lands and tenements to the + yearly value of _forty shillings_ at the least, to inquire of the + concealments of others," &c., &c.--_3 Henry VII._, ch. 1 (1486.) + +A statute passed in 1494, in regard to jurors in the city of London, +enacts: + + "That no person nor persons hereafter be impanelled, summoned, or + sworn in any jury or inquest in courts within the same city, (of + London,) except he be of lands, tenements, or goods and chattels, to + the value of _forty marks_;[86] and that no person or persons + hereafter be impanelled, summoned, nor sworn in any jury or inquest + in any court within the said city, for lands or tenements, or action + personal, wherein the debt or damage amounteth to the sum of forty + marks, or above, except he be in lands, tenements, goods, or + chattels, to the value of _one hundred marks_."--_11 Henry VII._, ch. + 21. (1494.) + +The statute _4 Henry VIII._, ch. 3, sec. 4, (1512) requires jurors in +London to have "_goods_ to the value of one hundred marks." + + In 1494 it was enacted that "It shall be lawful to every sheriff of + the counties of _Southampton_, _Surrey_, _and Sussex_, to impanel and + summons twenty-four lawful men of such, inhabiting within the + precinct of his or their turns, as owe suit to the same turn, whereof + every one hath lands or freehold to the yearly value of _ten_ + shillings, or copy-hold lands to the yearly value of _thirteen + shillings four pence_, above all charges within any of the said + counties, or men of less livelihood, if there be not so many there, + notwithstanding the statute of _1 Richard III._, ch. 4. To endure to + the next parliament."--_11 Henry VII._, ch. 26. (1494.) + +This statute was continued in force by _19 Henry VII._, ch. 16. (1503.) + + In 1531 it was enacted, "That every person or persons, being the + king's natural subject born, which either by the name of citizen, or + of a freeman, or any other name, doth enjoy and use the liberties and + privileges of any city, borough, or town corporate, where he dwelleth + and maketh his abode, being worth in _movable goods and substance_ to + the clear value of _forty pounds_, be henceforth admitted in trials + of murders and felonies in every sessions and gaol delivery, to be + kept and holden in and for the liberty of such cities, boroughs, and + towns corporate, albeit they have no freehold; any act, statute, use, + custom, or ordinance to the contrary hereof notwithstanding."--_23 + Henry VIII._, ch. 13. (1531.) + + In 1585 it was enacted, "That in all cases where any jurors to be + returned for trial of any issue or issues joined in any of the + Queen's majesty's courts of King's Bench, Common Pleas, and the + Exchequer, or before justices of assize, by the laws of this realm + now in force, ought to have estate of freehold in lands, tenements, + or hereditaments, of the clear yearly value of _forty shillings_, + that in every such case the jurors that shall be returned from and + after the end of this present session of parliament, shall every of + them have estate of freehold in lands, tenements, or hereditaments, + to the clear yearly value of _four pounds_ at the least."--_27 + Elizabeth_, ch. 6. (1585.) + + In 1664-5 it was enacted, "That all jurors (other than strangers upon + trials _per medietatem linguæ_) who are to be returned for the trials + of issues joined in any of (his) majesty's courts of king's bench, + common pleas, or the exchequer, or before justices of assize, or nisi + prius, oyer and terminer, gaol delivery, or general or quarter + sessions of the peace, from and after the twentieth day of April, + which shall be in the year of our Lord one thousand six hundred and + sixty-five, in any county of this realm of England, shall every of + them thon have, in their own name, or in trust for them, within the + same county, _twenty pounds by the year_, at least, above reprises, + in their own or their wives' right, of freehold lands, or of ancient + demesne, or of rents in fee, fee-tail, or for life. And that in every + county within the dominion of Wales every such juror shall then have, + within the same, _eight pounds by the year_, at the least, above + reprises, in manner aforesaid. All which persons having such estate + as aforesaid are hereby enabled and made liable to be returned and + serve as jurors for the trial of issues before the justices + aforesaid, any law or statute to the contrary in any wise + notwithstanding."--_16 and 17 Charles II._, ch. 3. (1664-5.) + +By a statute passed in 1692, jurors in England are to have landed +estates of the value of _ten pounds a year_; and jurors in Wales to have +similar estates of the realm of _six pounds a year_.--_4 and 5 William +and Mary_, ch. 24, sec. 14. (1692.) + +By the same statute, (sec. 18,) persons may be returned to serve upon +the _tales_ in any county of England, who shall have, within the same +county, _five pounds by the year_, above reprises, in the manner +aforesaid. + +By _St_. 3 _George II_., ch. 25, sec. 19, 20, no one is to be a juror in +London, who shall not be "an householder within the said city, and have +lands, tenements, or personal estate, to the value of _one hundred +pounds_." + +By another statute, applicable only to the county of _Middlesex_, it is +enacted, + + "That all leaseholders, upon leases where the improved rents or value + shall amount to _fifty pounds or upwards per annum_, over and above + all ground rents or other reservations payable by virtue of the said + leases, shall be liable and obliged to serve upon juries when they + shall be legally summoned for that purpose."--_4 George II._, ch. 7, + sec. 3. (1731.)] + +[Footnote 83: Suppose these statutes, instead of disfranchising all +whose freeholds were of less than the standard value fixed by the +statutes, had disfranchised all whose freeholds were of greater value +than the same standard--would anybody ever have doubted that such +legislation was inconsistent with the English constitution; or that it +amounted to an entire abolition of the trial by jury? Certainly not. Yet +it was as clearly inconsistent with the common law, or the English +constitution, to disfranchise those whose freeholds fell below any +arbitrary standard fixed by the government, as it would have been to +disfranchise all whose freeholds rose above that standard.] + +[Footnote 84: _Lingard_ says: "These compurgators or jurors * * were +sometimes * * _drawn by lot_."--_1 Lingard's History of England_, p. +300.] + +[Footnote 85: Chapter 4, p. 120, note.] + +[Footnote 86: A mark was thirteen shillings and four pence.] diff --git a/chapters/07.markdown b/chapters/07.markdown new file mode 100644 index 0000000..654e18c --- /dev/null +++ b/chapters/07.markdown @@ -0,0 +1,844 @@ +CHAPTER VII. + +ILLEGAL JUDGES. + + +It is a principle of Magna Carta, and therefore of the trial by jury, +(for all parts of Magna Carta must be construed together,) that no judge +or other officer _appointed by the king_, shall preside in jury trials, +_in criminal cases_, or "pleas of the crown." + +This provision is contained in the great charters of both John and +Henry, and is second in importance only to the provision guaranteeing +the trial by jury, of which it is really a part. Consequently, without +the observance of this prohibition, there can be no genuine or +_legal_--that is, _common law_--trial by jury. + +At the common law, all officers who held jury trials, whether in civil +or criminal cases, were chosen by the people.[87] + +But previous to Magna Carta, the kings had adopted the practice of +sending officers of their own appointment, called justices, into the +counties, to hold jury trials in some cases; and Magna Carta authorizes +this practice to be continued so far as it relates to _three_ kinds of +_civil_ actions, to wit: "novel disseisin, mort de ancestor, and darrein +presentment;"[88] but specially forbids its being extended to criminal +cases, or pleas of the crown. + +This prohibition is in these words: + + "Nullus vicecomes, constabularius, coronator, _vel alii balivi + nostri_, teneant placita coronæ nostræ." (No sheriff, constable, + coroner, _or other our bailiffs_, shall hold pleas of our + crown.)--_John's Charter_, ch. 53. _Henry's ditto_, ch. 17. + +Some persons seem to have supposed that this was a prohibition merely +upon officers _bearing the specific names of_ "_sheriffs, constables, +coroners and bailiffs_," to hold criminal trials. But such is not the +meaning. If it were, the _name_ could be changed, and the _thing_ +retained; and thus the prohibition be evaded. The prohibition applies +(as will presently be seen) to all officers of the king whatsoever; and +it sets up a distinction between officers _of the king_, ("_our_ +bailiffs,") and officers chosen by the people. + +The prohibition upon the king's _justices_ sitting in criminal trials, +is included in the words "_vel alii balivi nostri_," (or other our +bailiffs.) The word _bailiff_ was anciently a sort of general name for +_judicial officers_ and persons employed in and about the administration +of justice. In modern times its use, as applied to the higher grades of +judicial officers, has been superseded by other words; and it therefore +now, more generally, if not universally, signifies an executive or +police officer, _a servant of courts_, rather than one whose functions +are purely judicial. + +The word is a French word, brought into England by the Normans. + + Coke says, "_Baylife_ is a French word, and signifies an officer + concerned in the administration of justice of a certain province; and + because a sheriff hath an office concerning the administration of + justice within his county, or bailiwick, therefore he called his + county _baliva sua_, (his bailiwick.) + + "I have heard great question made what the true exposition of this + word _balivus_ is. In the statute of Magna Carta, cap. 28, the letter + of that statute is, _nullus balivus de cætero ponat aliquem ad legem + manifestam nec ad juramentum simplici loquela sua sine testibus + fidelibus ad hoc inductis_." (No bailiff from henceforth shall put + any one to his open law, nor to an oath (of self-exculpation) upon + his own simple accusation, or complaint, without faithful witnesses + brought in for the same.) "And some have said that _balivus_ in this + statute signifieth _any judge_; for the law must be waged and made + before the judge. And this statute (say they) extends to _the courts + of common pleas_, _king's bench_, &c., for they must bring with them + _fideles testes_, (faithful witnesses,) &c., _and so hath been the + usage to this day_."--_1 Coke's Inst._, 168 b. + +Coke makes various references, in his margin to Bracton, Fleta, and +other authorities, which I have not examined, but which, I presume, +support the opinion expressed in this quotation. + +Coke also, in another place, under the head of the chapter just cited +from Magna Carta, that "_no bailiff shall put any man to his open law_," +&c., gives the following commentary upon it, from the _Mirror of +Justices_, from which it appears that in the time of Edward I., (1272 to +1307,) this word _balivus_ was understood to include _all judicial_, as +well as all other, officers of the king. + + The Mirror says: "The point which forbiddeth that no _bailiff_ put a + freeman to his oath without suit, is to be understood in this + manner,--_that no justice, no minister of the king_, nor other + steward, nor bailiff, have power to make a freeman make oath, (of + self-exculpation,) _without the king's command_,[89] nor receive any + plaint, without witnesses present who testify the plaint to be + true."--_Mirror of Justices_, ch. 5, sec. 2, p. 257. + +Coke quotes this commentary, (in the original French,) and then endorses +it in these words: + + "By this it appeareth, that under this word _balivus_, in this act, + is comprehended _every justice, minister of the king_, steward, and + bailiff."--2 _Inst._, 44. + +Coke also, in his commentary upon this very chapter of Magna Carta, that +provides that "_no sheriff, constable, coroner, or other our bailiffs, +shall hold pleas of our crown_," expresses the opinion that it "_is a +general law_," (that is, applicable to all officers of the king,) "by +reason of the words _vel alii balivi nostri_, (or other our bailiffs,) +_under which words are comprehended all judges or justices of any courts +of justice_." And he cites a decision in the king's bench, in the 17th +year of Edward I., (1289,) as authority; which decision he calls "a +notable and leading judgment."--_2 Inst._, 30--1. + +And yet Coke, in flat contradiction of this decision, which he quotes +with such emphasis and approbation, and in flat contradiction also of +the definition he repeatedly gives of the word _balivus_, showing that +it embraced _all ministers of the king whatsoever_, whether high or low, +judicial or executive, fabricates an entirely gratuitous interpretation +of this chapter of Magna Carta, and pretends that after all it only +required that _felonies_ should be tried before the king's _justices, on +account of their superior learning_; and that it permitted all lesser +offences to be tried before inferior officers, (meaning of course the +_king's_ inferior officers.)--_2 Inst._, 30. + +And thus this chapter of Magna Carta, which, according to his own +definition of the word _balivus_, applies to all officers of the king; +and which, according to the common and true definition of the term +"pleas of the crown," applies to all criminal cases without distinction, +and which, therefore, forbids any officer or minister of the king to +preside in a jury trial in any criminal case whatsoever, he coolly and +gratuitously interprets into a mere senseless provision for simply +restricting the discretion of the king in giving _names_ to his own +officers who should preside at the trials of particular offences; as if +the king, who made and unmade all his officers by a word, could not +defeat the whole object of the prohibition, by appointing such +individuals as he pleased, to try such causes as he pleased, and calling +them by such names as he pleased, _if he were but permitted to appoint +and name such officers at all_; and as if it were of the least +importance what _name_ an officer bore, whom the king might appoint to a +particular duty.[90] + +Coke evidently gives this interpretation solely because, as he was +giving a general commentary on Magna Carta, he was bound to give some +interpretation or other to every chapter of it; and for this chapter he +could invent, or fabricate, (for it is a sheer fabrication,) no +interpretation better suited to his purpose than this. It seems never to +have entered his mind, (or if it did, he intended that it should never +enter the mind of anybody else,) that the object of the chapter could be +to deprive the king of the power of putting his creatures into criminal +courts, to pack, cheat, and browbeat juries, and thus maintain his +authority by procuring the conviction of those who should transgress his +laws, or incur his displeasure. + +This example of Coke tends to show how utterly blind, or how utterly +corrupt, English judges, (dependent upon the crown and the legislature), +have been in regard to everything in Magna Carta, that went to secure +the liberties of the people, or limit the power of the government. + +Coke's interpretation of this chapter of Magna Carta is of a piece with +his absurd and gratuitous interpretation of the words "_nec super eum +ibimus, nec super eum mittemus_," which was pointed out in a former +article, and by which he attempted to give a _judicial_ power to the +king and his judges, where Magna Carta had given it only to a jury. It +is also of a piece with his pretence that there was a difference +between _fine_ and _amercement_, and that _fines_ might be imposed by +the king, and that juries were required only for fixing _amercements_. + +These are some of the innumerable frauds by which the English people +have been cheated out of the trial by jury. + +_Ex uno disce omnes._ From one judge learn the characters of all.[91] + +I give in the note additional and abundant authorities for the meaning +ascribed to the word _bailiff_. The importance of the principle involved +will be a sufficient excuse for such an accumulation of authorities as +would otherwise be tedious and perhaps unnecessary.[92] + +The foregoing interpretation of the chapter of Magna Carta now under +discussion, is corroborated by another chapter of Magna Carta, which +specially provides that the king's justices shall "go through every +county" to "take the assizes" (hold jury trials) in three kinds of +_civil_ actions, to wit, "novel disseisin, mort de ancestor, and darrein +presentment;" but makes no mention whatever of their holding jury trials +in _criminal_ cases,--an omission wholly unlikely to be made, if it +were designed they should attend the trial of such causes. Besides, the +chapter here spoken of (in John's charter) does not allow these justices +to sit _alone_ in jury trials, even in _civil_ actions; but provides +that four knights, chosen by the county, shall sit with them to keep +them honest. When the king's justices were known to be so corrupt and +servile that the people would not even trust them to sit alone, in jury +trials, in _civil_ actions, how preposterous is it to suppose that they +would not only suffer them to sit, but to sit alone, in _criminal_ ones. + +It is entirely incredible that Magna Carta, which makes such careful +provision in regard to the king's justices sitting in civil actions, +should make no provision whatever as to their sitting in _criminal_ +trials, if they were to be allowed to sit in them at all. Yet Magna +Carta has no provision whatever on the subject.[93] + +But what would appear to make this matter absolutely certain is, that +unless the prohibition that "no bailiff, &c., _of ours_ shall hold pleas +of our crown," apply to all officers of the king, justices as well as +others, it would be wholly nugatory for any practical or useful purpose, +because the prohibition could be evaded by the king, at any time, by +simply changing the titles of his officers. Instead of calling them +"sheriffs, coroners, constables and bailiffs," he could call them +"_justices_," or anything else he pleased; and this prohibition, so +important to the liberty of the people, would then be entirely defeated. +The king also could make and unmake "justices" at his pleasure; and if +he could appoint any officers whatever to preside over juries in +criminal trials, he could appoint any tool that he might at any time +find adapted to his purpose. It was as easy to make justices of Jeffreys +and Scroggs, as of any other material; and to have prohibited all the +king's officers, _except his justices_, from presiding in criminal +trials, would therefore have been mere fool's play. + +We can all perhaps form some idea, though few of us will be likely to +form any adequate idea, of what a different thing the trial by jury +would have been _in practice_, and of what would have been the +difference to the liberties of England, for five hundred years last +past, had this prohibition of Magna Carta, upon the king's officers +sitting in the trial of criminal cases, been observed. + +The principle of this chapter of Magna Carta, as applicable to the +governments of the United States of America, forbids that any officer +appointed either by the executive or _legislative_ power, or dependent +upon them for their salaries, or responsible to them by impeachment, +should preside over a jury in criminal trials. To have the trial a legal +(that is, a _common law_) and true trial by jury, the presiding officers +must be chosen by the people, and be entirely free from all dependence +upon, and all accountability to, the executive and legislative branches +of the government.[94] + +[Footnote 87: The proofs of this principle of the common law have +already been given on page 120, _note_. + +There is much confusion and contradiction among authors as to the manner +in which sheriffs and other officers were appointed; some maintaining +that they were appointed by the king, others that they were elected by +the people. I imagine that both these opinions are correct, and that +several of the king's officers bore the same official names as those +chosen by the people; and that this is the cause of the confusion that +has arisen on the subject. + +It seems to be a perfectly well established fact that, at common law, +several magistrates, bearing the names of aldermen, sheriffs, stewards, +coroners and bailiffs, were chosen by the people; and yet it appears, +from Magna Carta itself, that some of the _king's_ officers (of whom he +must have had many) were also called "sheriffs, constables, coroners, +and bailiffs." + +But Magna Carta, in various instances, speaks of sheriffs and bailiffs +as "_our_ sheriffs and bailiffs;" thus apparently intending to recognize +the distinction between officers _of the king_, bearing those names, and +other officers, bearing the same official names, but chosen by the +people. Thus it says that "no sheriff or bailiff _of ours_, or any other +(officer), shall take horses or carts of any freeman for carriage, +unless with the consent of the freeman himself."--_John's Charter_, ch. +36. + +In a kingdom subdivided into so many counties, hundreds, tithings, +manors, cities and boroughs, each having a judicial or police +organization of its own, it is evident that many of the officers must +have been chosen by the people, else the government could not have +maintained its popular character. On the other hand, it is evident that +the king, the executive power of the nation, must have had large numbers +of officers of his own in every part of the kingdom. And it is perfectly +natural that these different sets of officers should, in many instances, +bear the same official names; and, consequently that the king, when +speaking of his own officers, as distinguished from those chosen by the +people, should call them "our sheriffs, bailiffs," &c., as he does in +Magna Carta. + +I apprehend that inattention to these considerations has been the cause +of all the confusion of ideas that has arisen on this subject,--a +confusion very evident in the following paragraph from Dunham, which may +be given as an illustration of that which is exhibited by others on the +same points. + + "Subordinate to the ealdormen were the _gerefas_, the sheriffs, or + reeves, _of whom there were several in every shire, or county_. + _There was one in every borough, as a judge._ There was one at every + gate, who witnessed purchases outside the walls; and there was one, + higher than either,--the high sheriff,--who was probably the reeve of + the shire. This last _appears_ to have been appointed by the king. + Their functions were to execute the decrees of the king, or + ealdormen, to arrest prisoners, to require bail for their appearance + at the sessions, to collect fines or penalties levied by the court of + the shire, to preserve the public peace, _and to preside in a + subordinate tribunal of their own_."--_Dunham's Middle Ages_, sec. 2, + B. 2, ch. 1. 57 _Lardner's Cab. Cyc._, p. 41. + +The confusion of _duties_ attributed to these officers indicates clearly +enough that different officers, bearing, the same official names, must +have had different duties, and have derived their authority from +different sources,--to wit, the king, and the people.] + +[Footnote 88: _Darrein presentment_ was an inquest to discover who +presented the last person to a church; _mort de ancestor_, whether the +last possessor was seized of land in demesne of his own fee; and _novel +disseisin_, whether the claimant had been unjustly disseized of his +freehold.] + +[Footnote 89: He has no power to do it, _either with, or without, the +king's command_. The prohibition is absolute, containing no such +qualification as is here interpolated, viz., "_without the king's +command_." If it could be done _with_ the king's command, the king would +be invested with arbitrary power in the matter.] + +[Footnote 90: The absurdity of this doctrine of Coke is made more +apparent by the fact that, at that time, the "justices" and other +persons appointed by the king to hold courts were not only dependent +upon the king for their offices, and removable at his pleasure, _but +that the usual custom was, not to appoint them with any view to +permanency, but only to give them special commissions for trying a +single cause, or for holding a single term of a court, or for making a +single circuit; which, being done, their commissions expired_. The king, +therefore, could, _and undoubtedly did, appoint any individual he +pleased, to try any cause he pleased, with a special view to the +verdicts he desired to obtain in the particular cases_. + +This custom of commissioning particular persons to hold jury trials, in +_criminal_ cases, (and probably also in _civil_ ones,) was of course a +usurpation upon the common law, but had been practised more or less from +the time of William the Conqueror. Palgrave says: + + "The frequent absence of William from his insular dominions + occasioned another mode of administration, _which ultimately produced + still greater changes in the law_. It was the practice of appointing + justiciars to represent the king's person, to hold his court, to + decide his pleas, to dispense justice on his behalf, to command the + military levies, and to act as conservators of the peace in the + king's name.[95] ... The justices who were assigned in the name of + the sovereign, and whose powers were revocable at his pleasure, + derived their authority merely from their grant.... Some of those + judges were usually deputed for the purpose of relieving the king + from the burden of his judicial functions.... The number as well as + the variety of names of the justices appearing in the early + chirographs of 'Concords,' leave reason for doubting whether, + anterior to the reign of Henry III., (1216 to 1272,) _a court, whose + members were changing at almost every session, can be said to have + been permanently constituted. It seems more probable that the + individuals who composed the tribunal were selected as suited the + pleasure of the sovereign, and the convenience of the clerks and + barons_; and the history of our legal administration will be much + simplified, if we consider all those courts which were afterwards + denominated the Exchequer, the King's Bench, the Common Pleas, and + the Chancery, _as being originally committees, selected by the king + when occasion required_, out of a large body, for the despatch of + peculiar branches of business, _and which committees, by degrees, + assumed an independent and permanent existence_.... Justices + itinerant, who, despatched throughout the land, decided the 'Pleas of + the Crown,' may be obscurely traced in the reign of the Conqueror; + _not, perhaps, appointed with much regularity, but despatched upon + peculiar occasions and emergencies_."--_1 Palgrave's Rise and + Progress_, &c., p. 289 to 293. + +The following statute, passed in 1354, (139 years after Magna Carta,) +shows that even after this usurpation of appointing "justices" of his +own, to try criminal cases, had probably become somewhat established in +practice, in defiance of Magna Carta, the king was in the habit of +granting special commissions to still other persons, (especially to +sheriffs,--_his_ sheriffs, no doubt,) to try particular cases: + + "Because that the people of the realm have suffered many evils and + mischiefs, for that sheriffs of divers counties, by virtue of + commissions and general writs granted to them at their own suit, for + their singular profit to gain of the people, have made and taken + divers inquests to cause to indict the people at their will, and have + taken fine and ransom of them to their own use, and have delivered + them; whereas such persons indicted were not brought before the + king's justices to have their deliverance, it is accorded and + established, for to eschew all such evils and mischiefs, that such + commissions and writs before this time made shall be utterly + repealed, and that from henceforth no such commissions shall be + granted."--_St. 28 Edward III._, ch. 9, (1354.) + +How silly to suppose that the illegality of these commissions to try +criminal cases, could have been avoided by simply granting them to +persons under the title of "_justices_," instead of granting them to +"_sheriffs_." The statute was evidently a cheat, or at least designed as +such, inasmuch as it virtually asserts the right of the king to appoint +his tools, under the name of "justices," to try criminal cases, while it +_disavows_ his right to appoint them under the name of "sheriffs." + + Millar says: "When the king's bench came to have its usual residence + at Westminster, the sovereign was induced to _grant special + commissions, for trying particular crimes_, in such parts of the + country as were found most convenient; and this practice was + _gradually_ modelled into a regular appointment of certain + commissioners, empowered, at stated seasons, to perform circuits over + the kingdom, and to hold courts in particular towns, for the trial of + all sorts of crimes. These judges of the circuit, however, _never + obtained an ordinary jurisdiction, but continued, on every occasion, + to derive their authority from two special commissions_: that of + _oyer and terminer_, by which they were appointed to hear and + determine all treasons, felonies and misdemeanors, within certain + districts; and that of _gaol delivery_, by which they were directed + to try every prisoner confined in the gaols of the several towns + falling under their inspection."--_Millar's Hist. View of Eng. Gov._, + vol. 2, ch. 7, p. 282. + +The following extract from Gilbert shows to what lengths of usurpation +the kings would sometimes go, in their attempts to get the judicial +power out of the hands of the people, and entrust it to instruments of +their own choosing: + + "From the time of the _Saxons_," (that is, from the commencement of + the reign of William the Conqueror,) "till the reign of Edward the + first, (1272 to 1307,) the several county courts and sheriffs courts + did decline in their interest and authority. The methods by which + they were broken were two-fold. _First, by granting commissions to + the sheriffs by writ of_ JUSTICIES, _whereby the sheriff had a + particular jurisdiction granted him to be judge of a particular + cause, independent of the suitors of the county court_," (that is, + without a jury;) "_and these commissions were after the Norman form, + by which (according to which) all power of judicature was immediately + derived from the king_."--_Gilbert on the Court of Chancery_, p. 1. + +The several authorities now given show that it was the custom of the +_Norman_ kings, not only to appoint persons to sit as judges in jury +trials, in criminal cases, but that they also commissioned individuals +to sit in singular and particular cases, as occasion required; and that +they therefore readily _could_, and naturally _would_, and therefore +undoubtedly _did_, commission individuals with a special view to their +adaptation or capacity to procure such judgments as the kings desired. + +The extract from Gilbert suggests also the usurpation of the _Norman_ +kings, in their assumption that _they_, (and _not the people_, as by the +_common law_,) were the fountains of justice. It was only by virtue of +this illegal assumption that they could claim to appoint their tools to +hold courts. + +All these things show how perfectly lawless and arbitrary the kings were +both before and after Magna Carta, and how necessary to liberty was the +principle of Magna Carta and the common law, that no person appointed by +the king should hold jury trials in criminal cases.] + +[Footnote 91: The opinions and decisions of judges and courts are +undeserving of the least reliance, (beyond the intrinsic merit of the +arguments offered to sustain them,) and are unworthy even to be quoted +as evidence of the law, _when those opinions or decisions are favorable +to the power of the government, or unfavorable to the liberties of the +people_. The only reasons that their opinions, _when in favor of +liberty_, are entitled to any confidence, are, first, that all +presumptions of law are in favor of liberty; and, second, that the +admissions of all men, the innocent and the criminal alike, _when made +against their own interests_, are entitled to be received as true, +because it is contrary to human nature for a man to confess anything but +truth against himself. + +More solemn farces, or more gross impostures, were never practised upon +mankind, than are all, or very nearly all, those oracular responses by +which courts assume to determine that certain statutes, in restraint of +individual liberty, are within the constitutional power of the +government, and are therefore valid and binding upon the people. + +The reason why these courts are so intensely servile and corrupt, is, +that they are not only parts of, but the veriest creatures of, the very +governments whose oppressions they are thus seeking to uphold. They +receive their offices and salaries from, and are impeachable and +removable by, the very governments upon whose acts they affect to sit in +judgment. Of course, no one with his eyes open ever places himself in a +position so incompatible with the liberty of declaring his honest +opinion, unless he do it with the intention of becoming a mere +instrument in the hands of the government for the execution of all its +oppressions. + +As proof of this, look at the judicial history of England for the last +five hundred years, and of America from its settlement. In all that time +(so far as I know, or presume) no bench of judges, (probably not even +any single judge,) dependent upon the legislature that passed the +statute, has ever declared a single _penal_ statute invalid, on account +of its being in conflict either with the common law, which the judges in +England have been sworn to preserve, or with the written constitutions, +(recognizing men's natural rights,) which the American judges were under +oath to maintain. Every oppression, every atrocity even, that has ever +been enacted in either country, by the legislative power, in the shape +of a criminal law, (or, indeed, in almost any other shape,) has been as +sure of a sanction from the judiciary that was dependent upon, and +impeachable by, the legislature that enacted the law, as if there were a +physical necessity that the legislative enactment and the judicial +sanction should go together. Practically speaking, the sum of their +decisions, all and singular, has been, that there are no limits to the +power of the government, and that the people have no rights except what +the government pleases to allow to them. + +It is extreme folly for a people to allow such dependent, servile, and +perjured creatures to sit either in civil or criminal trials; but to +allow them to sit in criminal trials, and judge of the people's +liberties, is not merely fatuity,--it is suicide.] + +[Footnote 92: Coke, speaking of the word _bailiffs_, as used in the +statute of 1 _Westminster_, ch. 35, (1275,) says: + + "Here _bailiffs_ are taken for the _judges of the court_, as + manifestly appeareth hereby."--2 _Inst._, 229. + +Coke also says, "It is a maxim in law, _aliquis non debet esse judex in +propria causa_, (no one ought to be judge in his own cause;) and +therefore a fine levied before the _baylifes of Salop_ was reversed, +because one of the _baylifes_ was party to the fine, _quia non potest +esse judex et pars_," (because one cannot be _judge_ and party.)--_1 +Inst._, 141 a. + +In the statute of Gloucester, ch. 11 and 12, (1278,) "the mayor and +_bailiffs_ of London (undoubtedly chosen by the people, or at any rate +not appointed by the king) are manifestly spoken of as _judges_, or +magistrates, holding _jury_ trials, as follows: + + _Ch. II._ "It is provided, also, that if any man lease his tenement + in the city of London, for a term of years, and he to whom the + freehold belongeth causeth himself to be impleaded by collusion, and + maketh default after default, or cometh into court and giveth it up, + for to make the termor (lessee) lose his term, (lease,) and the + demandant hath his suit, so that the termor may recover by writ of + covenant; _the mayor and bailiffs may inquire by a good inquest_, + (_jury_,) in the presence of the termor and the demandant, whether + the demandant moved his plea upon good right that he had, or by + collusion, or fraud, to make the termor lose his term; and if it be + found by the inquest (jury) that the demandant moved his plea upon + good right that he had, the judgment shall be given forthwith; and if + it be found by the inquest (jury) that he impleaded him (self) by + fraud, to put the termor from his term, then shall the termor enjoy + his term, and the execution of judgment for the demandant shall be + suspended until the term be expired."--_6 Edward I._, ch. 11, (1278.) + + Coke, in his commentary on this chapter, calls this court of "the + mayor and _bailiffs_" of London, "_the court of the hustings, the + greatest and highest court in London;_" and adds, "other cities have + the like court, and so called, as York, Lincoln, Winchester, &c. Here + the city of London is named; but it appeareth by that which hath been + said out of Fleta, that this act extends to such cities and boroughs + privileged,--that is, such as have such privilege to hold plea as + London hath."--_2 Inst._, 322. + +The 12th chapter of the same statute is in the following words, which +plainly recognize the fact that "the mayor and _bailiffs_ of London" are +judicial officers holding courts in London. + + "It is provided, also, that if a man, impleaded for a tenement in the + same city, (London,) doth vouch a foreigner to warranty, that he + shall come into the chancery, and have a writ to summon his warrantor + at a certain day before the justices of the bench, _and another writ + to the mayor and bailiffs of London, that they shall surcease_ + (suspend proceedings) _in the matter that is before them by writ_, + until the plea of the warrantee be determined before the justices of + the bench; and when the plea at the bench shall be determined, then + shall he that is vouched be commanded to go into the city," (that is, + before "the mayor and _bailiffs'_" court,) "to answer unto the chief + plea; and a writ shall be awarded at the suit of the demandant by the + justices _unto the mayor and bailiffs, that they shall proceed in the + plea_," &c.--_6 Edward I._, ch. 12, (1278.) + +Coke, in his commentary on this chapter, also speaks repeatedly of "the +mayor and _bailiffs_" _as judges holding courts_; and also speaks of +this chapter as applicable not only to "the citie of London, specially +named for the cause aforesaid, but extended by equity to all other +privileged places," (that is, privileged to have a court of "mayor and +_bailiffs_,") "where foreign voucher is made, as to Chester, Durham, +Salop," &c.--_2 Inst._, 325-7. + +BAILIE.--In Scotch law, a municipal magistrate, corresponding with the +English _alderman_.[96]--_Burrill's Law Dictionary_. + +BAILIFFE.--_Baillif._ Fr. A bailiff: a ministerial officer with duties +similar to those of a sheriff.... _The judge of a court._ A municipal +magistrate, &c.--_Burrill's Law Dict._ + +BAILIFF.... The word _bailiff_ is of Norman origin, and was applied in +England, at an early period, (after the example, it is said, of the +French,) to the chief magistrates of counties, or shires, such as the +alderman, the reeve, or sheriff, and also of inferior jurisdictions, +such as hundreds and wapentakes.--_Spelman, voc. Balivus; 1 Bl. Com._, +344. _See Bailli_, _Ballivus_. The Latin _ballivus_ occurs, indeed, in +the laws of Edward the Confessor, but Spelman thinks it was introduced +by a later hand. _Balliva_ (bailiwick) was the word formed from +_ballivus_, to denote the extent of territory comprised within a +bailiff's jurisdiction; and _bailiwick_ is still retained in writs and +other proceedings, as the name of a sheriff's county.--_1 Bl. Com._, +344. _See Balliva._ _The office of bailiff was at first strictly, though +not exclusively, a judicial one._ In France, the word had the sense of +what Spelman calls _justitia tutelaris_. _Ballivus_ occurs frequently in +the _Regiam Majestatem_, in the sense of a _judge_.--_Spelman._ In its +sense of a _deputy_, it was formerly applied, in England, to those +officers who, by virtue of a deputation, either from the sheriff or the +lords of private jurisdictions, exercised within the hundred, or +whatever might be the limits of their bailiwick, certain _judicial_ and +ministerial functions. With the disuse of private and local +jurisdictions, the meaning of the term became commonly restricted to +such persons as were deputed by the sheriff to assist him in the merely +ministerial portion of his duty; such as the summoning of juries, and +the execution of writs.--_Brande._ ... The word _bailiff_ is also +applied in England to the chief magistrates of certain towns and +jurisdictions, to the keepers of castles, forests and other places, and +to the stewards or agents of lords of manors.--_Burrill's Law Dict._ + +"BAILIFF, (from the Lat. _ballivus_; Fr. _baillif_, i.e., _Præfectus +provinciæ_,) signifies an officer appointed for the administration of +justice within a certain district. The office, as well as the name, +appears to have been derived from the French," &c.,--_Brewster's +Encyclopedia._ + +Millar says, "The French monarchs, about this period, were not content +with the power of receiving appeals from the several courts of their +barons. An expedient was devised of sending royal _bailiffs_ into +different parts of the kingdom, with a commission to take cognizance of +all those causes in which the sovereign was interested, and in reality +for the purpose of abridging and limiting the subordinate jurisdiction +of the neighboring feudal superiors. By an edict of Phillip Augustus, in +the year 1190, those _bailiffs_ were appointed in all the principal +towns of the kingdom."--_Millar's Hist. View of the Eng. Gov._, vol. +ii., ch. 3, p. 126. + + "BAILIFF-_office_.--Magistrates who formerly administered justice in + the parliaments or courts of France, answering to the English + sheriffs, as mentioned by Bracton."--_Bouvier's Law Dict._ + + "There be several officers called _bailiffs_, whose offices and + employments seem quite different from each other.... The chief + magistrate, in divers ancient corporations, are called _bailiffs_, as + in Ipswich, Yarmouth, Colchester, &c. There are, likewise, officers + of the forest, who are termed bailiffs."--_1 Bacon's Abridgment_, + 498-9. + + "BAILIFF signifies a keeper or superintendent, and is directly + derived from the French word _bailli_, which appears to come from the + word _balivus_, and that from _bagalus_, a Latin word signifying + generally a governor, tutor, or superintendent.... The French word + _bailli_ is thus explained by Richelet, (_Dictionaire_, &c.:) + _Bailli._--_He who in a province has the superintendence of justice, + who is the ordinary judge of the nobles_, who is their head for the + _ban_ and _arriere ban_,[97] and who maintains the right and property + of others against those who attack them.... All the various officers + who are called by this name, though differing as to the nature of + their employments, seem to have some kind of superintendence + intrusted to them by their superior."--_Political Dictionary._ + +"BAILIFF, _balivus_. From the French word _bayliff_, that is, _præfectus +provinciæ_, and as the name, so the office itself was answerable to that +of France, where there were eight parliaments, which were high courts +from whence there lay no appeal, and within the precincts of the several +parts of that kingdom which belonged to each parliament, _there were +several provinces to which justice was administered by certain officers +called bailiffs_; and in England we have several counties in which +justice hath been, and still is, in small suits, administered to the +inhabitants by the officer whom we now call _sheriff_, or _viscount_; +(one of which names descends from the Saxons, the other from the +Normans.) And, though the sheriff is not called _bailiff_, yet it was +probable that was one of his names also, because the county is often +called _balliva_; as in the return of a writ, where the person is not +arrested, the sheriff saith, _infra-nominatus_, _A.B. non est inventus +in balliva mea_, &c.; (the within named A.B. is not found in my +bailiwick, &c.) And in the statute of Magna Carta, ch. 28, and 14 Ed. 3, +ch. 9, the word _bailiff_ seems to comprise as well sheriffs, as +bailiffs of hundreds. + +"_Bailies_, in Scotland, are magistrates of burghs, possessed of certain +jurisdictions, having the same power within their territory as sheriffs +in the county.... + +"As England is divided into counties, so every county is divided into +hundreds; within which, in ancient times, the people had justice +administered to them by the several officers of every hundred, which +were the _bailiffs_. And it appears by Bracton, (_lib. 3, tract_. 2, ch. +34,) that _bailiffs_ of hundreds might anciently hold plea of appeal and +approvers; but since that time the hundred courts, except certain +franchises, are swallowed in the county courts; and now the _bailiff's_ +name and office is grown into contempt, they being generally officers to +serve writs, &c., within their liberties; though, in other respects, the +name is still in good esteem, for the chief magistrates in divers towns +are called _bailiffs_; and sometimes the persons to whom the king's +castles are committed are termed _bailiffs_, as the _bailiff_ of Dover +Castle, &c. + +"Of the ordinary _bailiffs_ there are several sorts, viz., _bailiffs_ of +liberties; sheriffs' _bailiffs_; _bailiffs_ of lords of manors; +_bailiffs_ of husbandry, &c.... + +"_Bailiffs_ of liberties or franchises are to be sworn to take +distresses, truly impanel jurors, make returns by indenture between them +and sheriffs, &c.... + +"_Bailiffs of courts baron_ summon those courts, and execute the process +thereof.... + +"Besides these, there are also _bailiffs of the forest_ ..."--_Jacob's +Law Dict. Tomlin's do._ + +"BAILIWICK, _balliva_,--is not only taken for the county, but signifies +generally that liberty which is exempted from the sheriff of the county, +over which the lord of the liberty appointeth a _bailiff_, with such +powers within his precinct as an under-sheriff exerciseth under the +sheriff of the county; such as the _bailiff_ of Westminster."--_Jacob's +Law Dict. Tomlin's do._ + +"_A bailiff of a Leet, Court-baron, Manor, Balivus Letæ, Baronis, +Manerii._--He is one that is appointed by the lord, or his steward, +within every manor, to do such offices as appertain thereunto, as to +summon the court, warn the tenants and resiants; also, to summon the +Leet and Homage, levy fines, and make distresses, &c., of which you may +read at large in _Kitchen's Court-leet and Court-baron_."--_A Law +Dictionary, anonymous_, (_in Suffolk Law Library_.) + +"BAILIFF.--In England an officer appointed by the sheriff. Bailiffs are +either special, and appointed, for their adroitness, to arrest persons; +or bailiffs of hundreds, who collect fines, summon juries, attend the +assizes, and execute writs and processes. _The sheriff in England is the +king's bailiff...._ + +"_The office of bailiff formerly was high and honorable in England, and +officers under that title on the continent are still invested with +important functions._"--_Webster._ + +"BAILLI, (Scotland.)--An alderman; a magistrate who is second in rank in +a royal burgh."--_Worcester._ + +"_Baili, or Bailiff._--(Sorte d'officier de justice.) A bailiff; a sort +of magistrate."--_Boyer's French Dict._ + +"By some opinions, a _bailiff_, in Magna Carta, ch. 28, signifies _any +judge_."--_Cunningham's Law Dict._ + +"BAILIFF.--In the court of the Greek emperors there was a grand +_bajulos_, first tutor of the emperor's children. The superintendent of +foreign merchants seems also to have been called _bajulos_; and, as he +was appointed by the Venetians, this title (balio) was transferred to +the Venetian ambassador. From Greece, the official _bajulos_ +(_ballivus_, _bailli_, in France; _bailiff_, in England,) was introduced +into the south of Europe, and denoted a superintendent; hence the eight +_ballivi_ of the knights of St. John, which constitute its supreme +council. In France, the royal bailiffs were commanders of the militia, +administrators or stewards of the domains, _and judges of their +districts_. In the course of time, only the first duty remained to the +bailiff; hence he was _bailli d'épée_, _and laws were administered in +his name by a lawyer, as his deputy, lieutenant de robe_. The +seigniories, with which high courts were connected, employed bailiffs, +who thus constituted, almost everywhere, _the lowest order of judges_. +From the courts of the nobility, the appellation passed to the royal +courts; from thence to the parliaments. In the greater bailiwicks of +cities of importance, Henry II. established a collegial constitution +under the name of _presidial courts_.... _The name of bailiff was +introduced into England with William I._ The counties were also called +_bailiwicks_, (_ballivæ_,) while the subdivisions were called +_hundreds_; but, as the courts of the hundreds have long since ceased, +the English bailiffs are only a kind of subordinate officers of justice, +like the French _huissiers_. These correspond very nearly to the +officers called _constables_ in the United States. Every sheriff has +some of them under him, for whom he is answerable. In some cities the +highest municipal officer yet bears this name, as the high bailiff of +Westminster. In London, the Lord Mayor is at the same time bailiff, +(which title he bore before the present became usual,) _and administers, +in this quality, the criminal jurisdiction of the city, in the court of +old Bailey_, where there are, annually, eight sittings of the court, for +the city of London and the county of Middlesex. _Usually, the recorder +of London supplies his place as judge._ In some instances the term +_bailiff_, in England, is applied to the chief magistrates of towns, or +to the commanders of particular castles, as that of Dover. The term +_baillie_, in Scotland, is applied to a judicial police-officer, having +powers very similar to those of justices of peace in the United +States."--_Encyclopædia Americana._] + +[Footnote 93: Perhaps it may be said (and such, it has already been +seen, is the opinion of Coke and others) that the chapter of Magna +Carta, that "no _bailiff_ from henceforth shall put any man to his open +law, (put him on trial,) nor to an oath (that is, an oath of +self-exculpation) upon his (the bailiff's) own accusation or testimony, +without credible witnesses brought in to prove the charge," _is itself_ +a "provision in regard to the king's justices sitting in criminal +trials," and therefore implies that _they are to sit_ in such trials. + +But, although the word _bailiff_ includes all _judicial_, as well as +other, officers, and would therefore in this case apply to the king's +justices, if they were to sit in criminal trials; yet this particular +chapter of Magna Carta evidently does not contemplate "_bailiffs_" while +acting in their _judicial_ capacity, (for they were not allowed to sit +in criminal trials at all,) but only in the character of _witnesses_; +and that the meaning of the chapter is, that the simple testimony +(simplici loquela) of "no bailiff," (of whatever kind,) unsupported by +other and "credible witnesses," shall be sufficient to put any man on +trial, or to his oath of self-exculpation.[98] + +It will be noticed that the words of this chapter are _not_, "no bailiff +_of ours_,"--that is, _of the king_,--as in some other chapters of Magna +Carta; but simply "no bailiff," &c. The prohibition, therefore, applies +to all "bailiffs,"--to those chosen by the people, as well as those +appointed by the king. And the prohibition is obviously founded upon the +idea (a very sound one in that age certainly, and probably also in this) +that public officers (whether appointed by king or people) have +generally, or at least frequently, too many interests and animosities +against accused persons, to make it safe to convict any man on their +testimony alone. + +The idea of Coke and others, that the object of this chapter was simply +to forbid _magistrates_ to put a man on trial, when there were no +witnesses against him, but only the simple accusation or testimony of +the magistrates themselves, before whom he was to be tried, is +preposterous; for that would be equivalent to supposing that magistrates +acted in the triple character of judge, jury and witnesses, _in the same +trial_; and that, therefore, _in such cases_, they needed to be +prohibited from condemning a man on their own accusation or testimony +alone. But such a provision would have been unnecessary and senseless, +for two reasons; first, because the bailiffs or magistrates had no power +to "hold pleas of the crown," still less to try or condemn a man; that +power resting wholly with the juries; second, because if bailiffs or +magistrates could try and condemn a man, without a jury, the prohibition +upon their doing so upon their own accusation or testimony alone, would +give no additional protection to the accused, so long as these same +bailiffs or magistrates were allowed to decide what weight should be +given, _both to their own testimony and that of other witnesses_; for, +if they wished to convict, they would of course decide that any +testimony, however frivolous or irrelevant, _in addition to their own_, +was sufficient. Certainly a magistrate could always procure witnesses +enough to testify to something or other, which _he himself_ could decide +to be corroborative of his own testimony. And thus the prohibition would +be defeated in fact, though observed in form.] + +[Footnote 94: In this chapter I have called the justices "_presiding_ +officers," solely for the want of a better term. They are not +"_presiding_ officers," in the sense of having any authority over the +jury; but are only assistants to, and teachers and servants of, the +jury. The foreman of the jury is properly the "presiding officer," so +far as there is such an officer at all. The sheriff has no authority +except over other persons than the jury.] + +[Footnote 95: In this extract, Palgrave seems to assume that the king +himself had a right to sit as judge, in _jury_ trials, in the _county_ +courts, in both civil and criminal cases. I apprehend he had no such +power at the _common law_, but only to sit in the trial of appeals, and +in the trial of peers, and of civil suits in which peers were parties, +and possibly in the courts of ancient demesne.] + +[Footnote 96: _Alderman_ was a title anciently given to various +_judicial_ officers, as the Alderman of all England, Alderman of the +King, Alderman of the County, Alderman of the City or Borough, Alderman +of the Hundred or Wapentake. These were all _judicial_ officers. See Law +Dictionaries.] + +[Footnote 97: "_Ban and arriere ban_, a proclamation, whereby all that +hold lands of the crown, (except some privileged officers and citizens,) +are summoned to meet at a certain place in order to serve the king in +his wars, either personally, or by proxy."--_Boyer._] + +[Footnote 98: At the common law, parties, in both civil and criminal +cases, were allowed to swear in their own behalf; and it will be so +again, if the true trial by jury should be reëstablished.] diff --git a/chapters/08.markdown b/chapters/08.markdown new file mode 100644 index 0000000..68daad8 --- /dev/null +++ b/chapters/08.markdown @@ -0,0 +1,215 @@ +CHAPTER VIII. + +THE FREE ADMINISTRATION OF JUSTICE. + + +The free administration of justice was a principle of the common law; +and it must necessarily be a part of every system of government which is +not designed to be an engine in the hands of the rich for the oppression +of the poor. + +In saying that the free administration of justice was a principle of the +common law, I mean only that parties were subjected to no costs for +jurors, witnesses, writs, or other necessaries for the trial, +_preliminary to the trial itself_. Consequently, no one could lose the +benefit of a trial, for the want of means to defray expenses. _But after +the trial_, the plaintiff or defendant was liable to be amerced, (by the +jury, of course,) for having troubled the court with the prosecution or +defence of an unjust suit.[99] But it is not likely that the losing +party was subjected to an amercement as a matter of course, but only in +those cases where the injustice of his cause was so evident as to make +him inexcusable in bringing it before the courts. + +All the freeholders were required to attend the courts, that they might +serve as jurors and witnesses, and do any other service that could +legally be required of them; and their attendance was paid for by the +state. In other words, their attendance and service at the courts were +part of the rents which they paid the state for their lands. + +The freeholders, who were thus required always to attend the courts, +were doubtless the only witnesses who were _usually_ required in _civil_ +causes. This was owing to the fact that, in those days, when the people +at large could neither write nor read, few contracts were put in +writing. The expedient adopted for proving contracts, was that of making +them in the presence of witnesses, who could afterwards testify to the +transactions. Most contracts in regard to lands were made at the courts, +in the presence of the freeholders there assembled.[100] + +In the king's courts it was specially provided by Magna Carta that +"justice and right" should not be "sold;" that is, that the king should +take nothing from the parties for administering justice. + +The oath of a party to the justice of his cause was all that was +necessary to entitle him to the benefit of the courts free of all +expense; (except the risk of being amerced after the trial, in case the +jury should think he deserved it.[101]) + +_This principle of the free administration of justice connects itself +necessarily with the trial by jury, because a jury could not rightfully +give judgment against any man, in either a civil or criminal case, if +they had any reason to suppose he had been unable to procure his +witnesses._ + +The true trial by jury would also compel the free administration of +justice from another necessity, viz., that of preventing private +quarrels; because, unless the government enforced a man's rights and +redressed his wrongs, _free of expense to him_, a jury would be bound to +protect him in taking the law into his own hands. A man has a natural +right to enforce his own rights and redress his own wrongs. If one man +owe another a debt, and refuse to pay it, the creditor has a natural +right to seize sufficient property of the debtor, wherever he can find +it, to satisfy the debt. If one man commit a trespass upon the person, +property or character of another, the injured party has a natural right, +either to chastise the aggressor, or to take compensation for the injury +out of his property. But as the government is an impartial party as +between these individuals, it is more likely to do _exact_ justice +between them than the injured individual himself would do. The +government, also, having more power at its command, is likely to right a +man's wrongs more peacefully than the injured party himself could do it. +If, therefore, the government will do the work of enforcing a man's +rights, and redressing his wrongs, _promptly, and free of expense to +him_, he is under a moral obligation to leave the work in the hands of +the government; but not otherwise. When the government forbids him to +enforce his own rights or redress his own wrongs, and deprives him of +all means of obtaining justice, except on the condition of his employing +the government to obtain it for him, _and of paying the government for +doing it_, the government becomes itself the protector and accomplice of +the wrong-doer. If the government will forbid a man to protect his own +rights, it is bound to do it for him, _free of expense to him_. And so +long as government refuses to do this, juries, if they knew their +duties, would protect a man in defending his own rights. + +Under the prevailing system, probably one half of the community are +virtually deprived of all protection for their rights, except what the +criminal law affords them. Courts of justice, for all civil suits, are +as effectually shut against them, as though it were done by bolts and +bars. Being forbidden to maintain their own rights by force,--as, for +instance, to compel the payment of debts,--and being unable to pay the +expenses of civil suits, they have no alternative but submission to many +acts of injustice, against which the government is bound either to +protect them, _free of expense_, or allow them to protect themselves. + +There would be the same reason in compelling a party to pay the judge +and jury for their services, that there is in compelling him to pay the +witnesses, or any other _necessary_ charges.[102] + +This compelling parties to pay the expenses of civil suits is one of the +many cases in which government is false to the fundamental principles on +which free government is based. What is the object of government, but to +protect men's rights? On what principle does a man pay his taxes to the +government, except on that of contributing his proportion towards the +necessary cost of protecting the rights of all? Yet, when his own rights +are actually invaded, the government, which he contributes to support, +instead of fulfilling its implied contract, becomes his enemy, and not +only refuses to protect his rights, (except at his own cost,) but even +forbids him to do it himself. + +All free government is founded on the theory of voluntary association; +and on the theory that all the parties to it _voluntarily_ pay their +taxes for its support, on the condition of receiving protection in +return. But the idea that any _poor_ man would voluntarily pay taxes to +build up a government, which will neither protect his rights, (except at +a cost which he cannot meet,) nor suffer himself to protect them by such +means as may be in his power, is absurd. + +Under the prevailing system, a large portion of the lawsuits determined +in courts, are mere contests of purses rather than of rights. And a +jury, sworn to decide causes "according to the evidence" produced, are +quite likely, _for aught they themselves can know_, to be deciding +merely the comparative length of the parties' purses, rather than the +intrinsic strength of their respective rights. Jurors ought to refuse to +decide a cause at all, except upon the assurance that all the evidence, +necessary to a full knowledge of the cause, is produced. This assurance +they can seldom have, unless the government itself produces all the +witnesses the parties desire. + +In criminal cases, the atrocity of accusing a man of crime, and then +condemning him unless he prove his innocence at his own charges, is so +evident that a jury could rarely, if ever, be justified in convicting a +man under such circumstances. + +But the free administration of justice is not only indispensable to the +maintenance of right between man and man; it would also promote +simplicity and stability in the laws. The mania for legislation would +be, in an important degree, restrained, if the government were compelled +to pay the expenses of all the suits that grew out of it. + +The free administration of justice would diminish and nearly extinguish +another great evil,--that of malicious _civil_ suits. It is an old +saying, that "_multi litigant in foro, non ut aliquid lucrentur, sed ut +vexant alios_." (Many litigate in court, not that they may gain +anything, but that they may harass others.) Many men, from motives of +revenge and oppression, are willing to spend their own money in +prosecuting a groundless suit, if they can thereby compel their victims, +who are less able than themselves to bear the loss, to spend money in +the defence. Under the prevailing system, in which the parties pay the +expenses of their suits, nothing but money is necessary to enable any +malicious man to commence and prosecute a groundless suit, to the +terror, injury, and perhaps ruin, of another man. In this way, a court +of justice, into which none but a conscientious _plaintiff_ certainly +should ever be allowed to enter, becomes an arena into which any rich +and revengeful oppressor may drag any man poorer than himself, and +harass, terrify, and impoverish him, to almost any extent. It is a +scandal and an outrage, that government should suffer itself to be made +an instrument, in this way, for the gratification of private malice. We +might nearly as well have no courts of justice, as to throw them open, +as we do, for such flagitious uses. Yet the evil probably admits of no +remedy except a free administration of justice. Under a free system, +plaintiffs could rarely be influenced by motives of this kind; because +they could put their victim to little or no expense, _neither pending +the suit_, (which it is the object of the oppressor to do,) nor at its +termination. Besides, if the ancient common law practice should be +adopted, of amercing a party for troubling the courts with groundless +suits, the prosecutor himself would, in the end, be likely to be amerced +by the jury, in such a manner as to make courts of justice a very +unprofitable place for a man to go to seek revenge. + +In estimating the evils of this kind, resulting from the present system, +we are to consider that they are not, by any means, confined to the +actual suits in which this kind of oppression is practised; but we are +to include all those cases in which the fear of such oppression is used +as a weapon to compel men into a surrender of their rights. + +[Footnote 99: _2 Sullivan Lectures_, 234-5. _3 Blackstone_, 274-5, 376. +Sullivan says that both plaintiffs and defendants were liable to +amercement. Blackstone speaks of plaintiffs being liable, without saying +whether defendants were so or not. What the rule really was I do not +know. There would seem to be some reason in allowing defendants to +defend themselves, _at their own charges_, without exposing themselves +to amercement in case of failure.] + +[Footnote 100: When any other witnesses than freeholders were required +in a civil suit, I am not aware of the manner in which their attendance +was procured; but it was doubtless done at the expense either of the +state or of the witnesses themselves. And it was doubtless the same in +criminal cases.] + +[Footnote 101: "All claims were established in the first stage by the +oath of the plaintiff, except when otherwise specially directed by the +law. The oath, by which any claim was supported, was called the +fore-oath, or 'Præjuramentum,' and it was the foundation of his suit. +One of the cases which did not require this initiatory confirmation, was +when cattle could be tracked into another man's land, and then the +foot-mark stood for the fore-oath."--_2 Palgrave's Rise and Progress_, +&c., 114.] + +[Footnote 102: Among the necessary expenses of suits, should be reckoned +reasonable compensation to counsel, for they are nearly or quite as +important to the administration of justice, as are judges, jurors, or +witnesses; and the universal practice of employing them, both on the +part of governments and of private persons, shows that their importance +is generally understood. As a mere matter of economy, too, it would be +wise for the government to pay them, rather than they should not be +employed; because they collect and arrange the testimony and the law +beforehand, so as to be able to present the whole case to the court and +jury intelligibly, and in a short space of time. Whereas, if they were +not employed, the court and jury would be under the necessity either of +spending much more time than now in the investigation of causes, or of +despatching them in haste, and with little regard to justice. They would +be very likely to do the latter, thus defeating the whole object of the +people in establishing courts. + +To prevent the abuse of this right, it should perhaps be left +discretionary with the jury in each case to determine whether the +counsel should receive any pay--and, if any, how much--from the +government.] diff --git a/chapters/09.markdown b/chapters/09.markdown new file mode 100644 index 0000000..65c759b --- /dev/null +++ b/chapters/09.markdown @@ -0,0 +1,431 @@ +CHAPTER IX. + +THE CRIMINAL INTENT. + + +It is a maxim of the common law that there can be no crime without a +criminal intent. And it is a perfectly clear principle, although one +which judges have in a great measure overthrown in practice, that +_jurors_ are to judge of the moral intent of an accused person, and hold +him guiltless, whatever his act, unless they find him to have acted with +a criminal intent; that is, with a design to do what he knew to be +criminal. + +This principle is clear, because the question for a jury to determine +is, whether the accused be _guilty_, or _not guilty_. _Guilt_ is a +personal quality of the actor,--not _necessarily_ involved in the act, +but depending also upon the intent or motive with which the act was +done. Consequently, the jury must find that he acted from a criminal +motive, before they can declare him _guilty_. + +There is no moral justice in, nor any political necessity for, punishing +a man for any act whatever that he may have committed, if he have done +it without any criminal intent. There can be no _moral justice_ in +punishing for such an act, because, there having been no _criminal +motive_, there can have been no other motive which justice can take +cognizance of, as demanding or justifying punishment. There can be no +_political necessity_ for punishing, to warn against similar acts in +future, because, if one man have injured another, however +unintentionally, he is liable, and justly liable, to a _civil_ suit for +damages; and in this suit he will be compelled to make compensation for +the injury, notwithstanding his innocence of any intention to injure. He +must bear the consequences of his own act, instead of throwing them upon +another, however innocent he may have been of any intention to do +wrong. And the damages he will have to pay will be a sufficient warning +to him not to do the like act again. + +If it be alleged that there are crimes against the public, (as treason, +for example, or any other resistance to government,) for which private +persons can recover no damages, and that there is a political necessity +for punishing for such offences, even though the party acted +conscientiously, the answer is,--the government must bear with all +resistance that is not so clearly wrong as to give evidence of criminal +intent. In other words, the government, in all its acts, must keep +itself so _clearly_ within the limits of justice, as that twelve men, +taken at random, will all agree that it is in the right, or it must +incur the risk of resistance, without any power to punish it. This is +the mode in which the trial by jury operates to prevent the government +from falling into the hands of a party, or a faction, and to keep it +within such limits as _all_, or substantially _all_, the people are +agreed that it may occupy. + +This necessity for a criminal intent, to justify conviction, is proved +by the issue which the jury are to try, and the verdict they are to +pronounce. The "issue" they are to try is, "_guilty_" or "_not guilty_." +And those are the terms they are required to use in rendering their +verdicts. But it is a plain falsehood to say that a man is "_guilty_," +unless he have done an act which he knew to be criminal. + +This necessity for a criminal intent--in other words, for _guilt_--as a +preliminary to conviction, makes it impossible that a man can be +rightfully convicted for an act that is intrinsically innocent, though +forbidden by the government; because guilt is an intrinsic quality of +actions and motives, and not one that can be imparted to them by +arbitrary legislation. All the efforts of the government, therefore, to +"_make offences by statute_," out of acts that are not criminal by +nature, must necessarily be ineffectual, unless a jury will declare a +man "_guilty_" for an act that is really innocent. + +The corruption of judges, in their attempts to uphold the arbitrary +authority of the government, by procuring the conviction of individuals +for acts innocent in themselves, and forbidden only by some tyrannical +statute, and the commission of which therefore indicates no criminal +intent, is very apparent. + +To accomplish this object, they have in modern times held it to be +unnecessary that indictments should charge, as by the common law they +were required to do, that an act was done "_wickedly_," "_feloniously_," +"_with malice aforethought_," or in any other manner that implied a +criminal intent, without which there can be no criminality; but that it +is sufficient to charge simply that it was done "_contrary to the form +of the statute in such case made and provided_." This form of indictment +proceeds plainly upon the assumption that the government is absolute, +and that it has authority to prohibit any act it pleases, however +innocent in its nature the act may be. Judges have been driven to the +alternative of either sanctioning this new form of indictment, (which +they never had any constitutional right to sanction,) or of seeing the +authority of many of the statutes of the government fall to the ground; +because the acts forbidden by the statutes were so plainly innocent in +their nature, that even the government itself had not the face to allege +that the commission of them implied or indicated any criminal intent. + +To get rid of the necessity of showing a criminal intent, and thereby +further to enslave the people, by reducing them to the necessity of a +blind, unreasoning submission to the arbitrary will of the government, +and of a surrender of all right, on their own part, to judge what are +their constitutional and natural rights and liberties, courts have +invented another idea, which they have incorporated among the pretended +_maxims_, upon which they act in criminal trials, viz., that "_ignorance +of the law excuses no one_." As if it were in the nature of things +possible that there could be an excuse more absolute and complete. What +else than ignorance of the law is it that excuses persons under the +years of discretion, and men of imbecile minds? What else than ignorance +of the law is it that excuses judges themselves for all their erroneous +decisions? Nothing. They are every day committing errors, which would be +crimes, but for their ignorance of the law. And yet these same judges, +who claim to be _learned_ in the law, and who yet could not hold their +offices for a day, but for the allowance which the law makes for their +ignorance, are continually asserting it to be a "maxim" that "ignorance +of the law excuses no one;" (by which, of course, they really mean that +it excuses no one but themselves; and especially that it excuses no +_unlearned_ man, who comes before them charged with crime.) + +This preposterous doctrine, that "ignorance of the law excuses no one," +is asserted by courts because it is an indispensable one to the +maintenance of absolute power in the government. It is indispensable for +this purpose, because, if it be once admitted that the people _have_ any +rights and liberties which the government cannot lawfully take from +them, then the question arises in regard to every statute of the +government, whether it be law, or not; that is, whether it infringe, or +not, the rights and liberties of the people. Of this question every man +must of course judge according to the light in his own mind. And no man +can be convicted unless the jury find, not only that the statute is +_law_,--that it does _not_ infringe the rights and liberties of the +people,--but also that it was so clearly law, so clearly consistent with +the rights and liberties of the people, as that the individual himself, +who transgressed it, _knew it to be so_, and therefore had no moral +excuse for transgressing it. Governments see that if ignorance of the +law were allowed to excuse a man for any act whatever, it must excuse +him for transgressing all statutes whatsoever, which he himself thinks +inconsistent with his rights and liberties. But such a doctrine would of +course be inconsistent with the maintenance of arbitrary power by the +government; and hence governments will not allow the plea, although they +will not confess their true reasons for disallowing it. + +The only reasons, (if they deserve the name of reasons), that I ever +knew given for the doctrine that ignorance of the law excuses no one, +are these: + + 1. "The reason for the maxim is that of necessity. It prevails, 'not + that all men know the law, but because it is an excuse which every + man will make, and no man can tell how to confute him.'--_Selden_, + (as quoted in the 2d edition of _Starkie on Slander_, Prelim. Disc., + p. 140, note.)"--_Law Magazine_, (_London_,) vol. 27, p. 97. + +This reason impliedly admits that ignorance of the law is, +_intrinsically_, an ample and sufficient excuse for a crime; and that +the excuse ought to be allowed, if the fact of ignorance could but be +ascertained. But it asserts that this fact is incapable of being +ascertained, and that therefore there is a necessity for punishing the +ignorant and the knowing--that is, the innocent and the guilty--without +discrimination. + +This reason is worthy of the doctrine it is used to uphold; as if a plea +of ignorance, any more than any other plea, must necessarily be believed +simply because it is urged; and as if it were not a common and every-day +practice of courts and juries, in both civil and criminal cases, to +determine the mental capacity of individuals; as, for example, to +determine whether they are of sufficient mental capacity to make +reasonable contracts; whether they are lunatic; whether they are +_compotes mentis_, "of sound mind and memory," &c. &c. And there is +obviously no more difficulty in a jury's determining whether an accused +person knew the law in a criminal case, than there is in determining any +of these other questions that are continually determined in regard to a +man's mental capacity. For the question to be settled by the jury is not +whether the accused person knew the particular _penalty_ attached to his +act, (for at common law no one knew what penalty a _jury_ would attach +to an offence,) but whether he knew that his act was _intrinsically +criminal_. If it were _intrinsically criminal_, it was criminal at +common law. If it was not intrinsically criminal, it was not criminal at +common law. (At least, such was the general principle of the common law. +There may have been exceptions in practice, owing to the fact that the +opinions of men, as to what was intrinsically criminal, may not have +been in all cases correct.) + +A jury, then, in judging whether an accused person knew his act to be +illegal, were bound first to use their own judgments, as to whether the +act were _intrinsically_ criminal. If their own judgments told them the +act was _intrinsically_ and _clearly_ criminal, they would naturally and +reasonably infer that the accused also understood that it was +intrinsically criminal, (and consequently illegal,) unless it should +appear that he was either below themselves in the scale of intellect, or +had had less opportunities of knowing what acts were criminal. In +short, they would judge, from any and every means they might have of +judging; and if they had any reasonable doubt that he knew his act to be +criminal in itself, they would be bound to acquit him. + +The second reason that has been offered for the doctrine that ignorance +of the law excuses no one, is this: + + "Ignorance of the municipal law of the kingdom, or of the penalty + thereby inflicted on offenders, doth not excuse any that is of the + age of discretion and compos mentis, from the penalty of the breach + of it; because every person, of the age of discretion and compos + mentis, _is bound to know the law_, and presumed to do so. + _Ignorantia eorum, quæ quis scire tenetur non excusat_." (Ignorance + of those things which every one is bound to know, does not + excuse.)--_1 Hale's Pleas of the Crown_, 42. _Doctor and Student, + Dialog. 2_, ch. 46. _Law Magazine_, (_London_,) vol. 27, p. 97. + +The sum of this reason is, that ignorance of the law excuses no one, +(who is of the age of discretion and is compos mentis,) because every +such person "_is bound to know the law_." But this is giving no reason +at all for the doctrine, since saying that a man "is bound to know the +law," is only saying, _in another form_, that "ignorance of the law does +not excuse him." There is no difference at all in the two ideas. To say, +therefore, that "ignorance of the law excuses no one, _because_ every +one is bound to know the law," is only equivalent to saying that +"ignorance of the law excuses no one, _because_ ignorance of the law +excuses no one." It is merely reässerting the doctrine, without giving +any reason at all. + +And yet these reasons, which are really no reasons at all, are the only +ones, so far as I know, that have ever been offered for this absurd and +brutal doctrine. + +The idea suggested, that "the age of discretion" determines the guilt of +a person,--that there is a particular age, prior to which _all_ persons +alike should be held incapable of knowing _any_ crime, and subsequent to +which _all_ persons alike should be held capable of knowing _all_ +crimes,--is another of this most ridiculous nest of ideas. All mankind +acquire their knowledge of crimes, as they do of other things, +_gradually_. Some they learn at an early age; others not till a later +one. One individual acquires a knowledge of crimes, as he does of +arithmetic, at an earlier age than others do. And to apply the same +presumption to all, on the ground of age alone, is not only gross +injustice, but gross folly. A universal presumption might, with nearly +or quite as much reason, be founded upon weight, or height, as upon +age.[103] + +This doctrine, that "ignorance of the law excuses no one," is constantly +repeated in the form that "every one is bound to know the law." The +doctrine is true in civil matters, especially in contracts, so far as +this: that no man, who has the _ordinary_ capacity to make reasonable +contracts, can escape the consequences of his own agreement, on the +ground that he did not know the law applicable to it. When a man makes a +contract, he gives the other party rights; and he must of necessity +judge for himself, and take his own risk, as to what those rights +are,--otherwise the contract would not be binding, and men could not +make contracts that would convey rights to each other. Besides, the +capacity to make reasonable contracts, _implies and includes_ a +capacity to form a reasonable judgment as to the law applicable to them. +But in _criminal_ matters, where the question is one of punishment, or +not; where no second party has acquired any right to have the crime +punished, unless it were committed with criminal intent, (but only to +have it compensated for by damages in a civil suit;) and when the +criminal intent is the only moral justification for the punishment, the +principle does not apply, and a man is bound to know the law _only as +well as he reasonably may_. The criminal law requires neither +impossibilities nor extraordinaries of any one. It requires only +thoughtfulness and a good conscience. It requires only that a man fairly +and properly use the judgment he possesses, and the means he has of +learning his duty. It requires of him only the same care to know his +duty in regard to the law, that he is morally bound to use in other +matters of equal importance. _And this care it does require of him._ Any +ignorance of the law, therefore, that is unnecessary, or that arises +from indifference or disregard of one's duty, is no excuse. An accused +person, therefore, may be rightfully held responsible for such a +knowledge of the law as is common to men in general, having no greater +natural capacities than himself, and no greater opportunities for +learning the law. And he can rightfully be held to no greater knowledge +of the law than this. To hold him responsible for a greater knowledge of +the law than is common to mankind, when other things are equal, would be +gross injustice and cruelty. The mass of mankind can give but little of +their attention to acquiring a knowledge of the law. Their other duties +in life forbid it. Of course, they cannot investigate abstruse or +difficult questions. All that can rightfully be required of each of +them, then, is that he exercise such a candid and conscientious judgment +as it is common for mankind generally to exercise in such matters. If he +have done this, it would be monstrous to punish him criminally for his +errors; errors not of conscience, but only of judgment. It would also be +contrary to the first principles of a free government (that is, a +government formed by voluntary association) to punish men in such cases, +because it would be absurd to suppose that any man would voluntarily +assist to establish or support a government that would punish himself +for acts which he himself did not know to be crimes. But a man may +reasonably unite with his fellow-men to maintain a government to punish +those acts which he himself considers criminal, and may reasonably +acquiesce in his own liability to be punished for such acts. As those +are the only grounds on which any one can be supposed to render any +voluntary support to a government, it follows that a government formed +by voluntary association, and of course having no powers except such as +_all_ the associates have consented that it may have, can have no power +to punish a man for acts which he did not himself know to be criminal. + +The safety of society, which is the only object of the criminal law, +requires only that those acts _which are understood by mankind at large +to be intrinsically criminal_, should be punished as crimes. The +remaining few (if there are any) may safely be left to go unpunished. +Nor does the safety of society require that any individuals, other than +those who have sufficient mental capacity to understand that their acts +are criminal, should be criminally punished. All others may safely be +left to their liability, under the _civil_ law, to compensate for their +unintentional wrongs. + +The only real object of this absurd and atrocious doctrine, that +"ignorance of the law (that is, of crime) excuses no one," and that +"every one is bound to know the _criminal_ law," (that is, bound to know +what is a crime,) is to maintain an entirely arbitrary authority on the +part of the government, and to deny to the people all right to judge for +themselves what their own rights and liberties are. In other words, the +whole object of the doctrine is to deny to the people themselves all +right to judge what statutes and other acts of the government are +consistent or inconsistent with their own rights and liberties; and thus +to reduce the people to the condition of mere slaves to a despotic +power, such as the people themselves would never have voluntarily +established, and the justice of whose laws the people themselves cannot +understand. + +Under the true trial by jury all tyranny of this kind would be +abolished. A jury would not only judge what acts were really criminal, +but they would judge of the mental capacity of an accused person, and of +his opportunities for understanding the true character of his conduct. +In short, they would judge of his moral intent from all the +circumstances of the case, and acquit him, if they had any reasonable +doubt that he knew that he was committing a crime.[104] + +[Footnote 103: This presumption, founded upon age alone, is as absurd in +civil matters as in criminal. What can be more entirely ludicrous than +the idea that all men (not manifestly imbecile) become mentally +competent to make all contracts whatsoever on the day they become +twenty-one years of age?--and that, previous to that day, no man becomes +competent to make any contract whatever, except for the present supply +of the most obvious wants of nature? In reason, a man's _legal_ +competency to make _binding_ contracts, in any and every case whatever, +depends wholly upon his _mental_ capacity to make _reasonable_ contracts +in each particular case. It of course requires more capacity to make a +reasonable contract in some cases than in others. It requires, for +example, more capacity to make a reasonable contract in the purchase of +a large estate, than in the purchase of a pair of shoes. But the mental +capacity to make a reasonable contract, in any particular case, is, in +reason, the only legal criterion of the legal competency to make a +binding contract in that case. The age, whether more or less than +twenty-one years, is of no legal consequence whatever, except that it is +entitled to some consideration as _evidence of capacity_. + +It may be mentioned, in this connection, that the rules that prevail, +that every man is entitled to freedom from parental authority at +twenty-one years of age, and no one before that age, are of the same +class of absurdities with those that have been mentioned. The only +ground on which a parent is ever entitled to exercise authority over his +child, is that the child is incapable of taking reasonable care of +himself. The child would be entitled to his freedom from his birth, if +he were at that time capable of taking reasonable care of himself. Some +become capable of taking care of themselves at an earlier age than +others. And whenever any one becomes capable of taking reasonable care +of himself, and not until then, he is entitled to his freedom, be his +age more or less. + +These principles would prevail under the true trial by jury, the jury +being the judges of the capacity of every individual whose capacity +should be called in question.] + +[Footnote 104: In contrast to the doctrines of the text, it may be +proper to present more distinctly the doctrines that are maintained by +judges, and that prevail in courts of justice. + +Of course, no judge, either of the present day, or perhaps within the +last five hundred years, has admitted the right of a jury to judge of +the _justice_ of a law, or to hold any law invalid for its injustice. +Every judge asserts the power of the government to punish for acts that +are intrinsically innocent, and which therefore involve or evince no +criminal intent. To accommodate the administration of law to this +principle, all judges, so far as I am aware, hold it to be unnecessary +that an indictment should charge, or that a jury should find, that an +act was done with a criminal intent, except in those cases where the act +is _malum in se_,--criminal in itself. In all other cases, so far as I +am aware, they hold it sufficient that the indictment charge, and +consequently that the jury find, simply that the act was done "contrary +to the form of the statute in such case made and provided;" in other +words, contrary to the orders of the government. + +All these doctrines prevail universally among judges, and are, I think, +uniformly practised upon in courts of justice; and they plainly involve +the most absolute despotism on the part of the government. + +But there is still another doctrine that extensively, and perhaps most +generally, prevails in practice, although judges are not agreed in +regard to its soundness. It is this: that it is not even necessary that +the jury should see or know, _for themselves_, what the law _is_ that is +charged to have been violated; nor to see or know, _for themselves_, +that the act charged was in violation of any law whatever;--but that it +is sufficient that they be simply _told by the judge_ that any act +whatever, charged in an indictment, is in violation of law, and that +they are then bound blindly to receive the declaration as true, and +convict a man accordingly, if they find that he has done the act +charged. + +This doctrine is adopted by many among the most eminent judges, and the +reasons for it are thus given by Lord Mansfield: + + "They (the jury) do not know, and are not presumed to know, the law. + They are not sworn to decide the law;[105] they are not required to + do it.... The jury ought not to assume the jurisdiction of law. They + do not know, and are not presumed to know, anything of the matter. + They do not understand the language in which it is conceived, or the + meaning of the terms. They have no rule to go by but their passions + and wishes."--_3 Term Rep._, 428, note. + +What is this but saying that the people, who are supposed to be +represented in juries, and who institute and support the government, (of +course for the protection of their own rights and liberties, _as they +understand them_, for plainly no other motive can be attributed to +them,) are really the slaves of a despotic power, whose arbitrary +commands even they are not supposed competent to understand, but for the +transgression of which they are nevertheless to be punished as +criminals? + +This is plainly the sum of the doctrine, because the jury are the peers +(equals) of the accused, and are therefore supposed to know the law as +well as he does, and as well as it is known by the people at large. If +_they_ (the jury) are not presumed to know the law, neither the accused +nor the people at large can be presumed to know it. Hence, it follows +that one principle of the _true_ trial by jury is, that no accused +person shall be held responsible for any other or greater knowledge of +the law than is common to his political equals, who will generally be +men of nearly similar condition in life. But the doctrine of Mansfield +is, that the body of the people, from whom jurors are taken, are +responsible to a law, _which it is agreed they cannot understand_. What +is this but despotism?--and not merely despotism, but insult and +oppression of the intensest kind? + +This doctrine of Mansfield is the doctrine of all who deny the right of +juries to judge of the law, although all may not choose to express it in +so blunt and unambiguous terms. But the doctrine evidently admits of no +other interpretation or defence.] + +[Footnote 105: This declaration of Mansfield, that juries in England +"are not sworn to decide the law" in criminal cases, is a plain +falsehood. They are sworn to try the whole case at issue between the +king and the prisoner, and that includes the law as well as the fact. +See _juror's oath_, page 86.] diff --git a/chapters/10.markdown b/chapters/10.markdown new file mode 100644 index 0000000..c799170 --- /dev/null +++ b/chapters/10.markdown @@ -0,0 +1,100 @@ +CHAPTER X. + +MORAL CONSIDERATIONS FOR JURORS. + + +The trial by jury must, if possible, be construed to be such that a man +can rightfully sit in a jury, and unite with his fellows in giving +judgment. But no man can rightfully do this, unless he hold in his own +hand alone a veto upon any judgment or sentence whatever to be rendered +by the jury against a defendant, which veto he must be permitted to use +according to his own discretion and conscience, and not bound to use +according to the dictation of either legislatures or judges. + +The prevalent idea, that a juror may, at the mere dictation of a +legislature or a judge, and without the concurrence of his own +conscience or understanding, declare a man "_guilty_," and thus in +effect license the government to punish him; and that the legislature or +the judge, and not himself, has in that case all the moral +responsibility for the correctness of the principles on which the +judgment was rendered, is one of the many gross impostures by which it +could hardly have been supposed that any sane man could ever have been +deluded, but which governments have nevertheless succeeded in inducing +the people at large to receive and act upon. + +As a moral proposition, it is perfectly self-evident that, unless juries +have all the legal rights that have been claimed for them in the +preceding chapters,--that is, the rights of judging what the law is, +whether the law be a just one, what evidence is admissible, what weight +the evidence is entitled to, whether an act were done with a criminal +intent, and the right also to _limit_ the sentence, free of all +dictation from any quarter,--they have no _moral_ right to sit in the +trial at all, and cannot do so without making themselves accomplices in +any injustice that they may have reason to believe may result from +their verdict. It is absurd to say that they have no moral +responsibility for the use that may be made of their verdict by the +government, when they have reason to suppose it will be used for +purposes of injustice. + +It is, for instance, manifestly absurd to say that jurors have no moral +responsibility for the enforcement of an unjust law, when they consent +to render a verdict of _guilty_ for the transgression of it; which +verdict they know, or have good reason to believe, will be used by the +government as a justification for inflicting a penalty. + +It is absurd, also, to say that jurors have no moral responsibility for +a punishment inflicted upon a man _against law_, when, at the dictation +of a judge as to what the law is, they have consented to render a +verdict against their own opinions of the law. + +It is absurd, too, to say that jurors have no moral responsibility for +the conviction and punishment of an innocent man, when they consent to +render a verdict against him on the strength of evidence, or laws of +evidence, dictated to them by the court, if any evidence or laws of +evidence have been excluded, which _they_ (the jurors) think ought to +have been admitted in his defence. + +It is absurd to say that jurors have no moral responsibility for +rendering a verdict of "_guilty_" against a man, for an act which he did +not know to be a crime, and in the commission of which, therefore, he +could have had no criminal intent, in obedience to the instructions of +courts that "ignorance of the law (that is, of crime) excuses no one." + +It is absurd, also, to say that jurors have no moral responsibility for +any cruel or unreasonable _sentence_ that may be inflicted even upon a +_guilty_ man, when they consent to render a verdict which they have +reason to believe will be used by the government as a justification for +the infliction of such sentence. + +The consequence is, that jurors must have the whole case in their hands, +and judge of law, evidence, and sentence, or they incur the moral +responsibility of accomplices in any injustice which they have reason to +believe will be done by the government on the authority of their +verdict. + +The same principles apply to civil cases as to criminal. If a jury +consent, at the dictation of the court, as to either law or evidence, to +render a verdict, on the strength of which they have reason to believe +that a man's property will be taken from him and given to another, +against their own notions of justice, they make themselves morally +responsible for the wrong. + +Every man, therefore, ought to refuse to sit in a jury, and to take the +oath of a juror, unless the form of the oath be such as to allow him to +use his own judgment, on every part of the case, free of all dictation +whatsoever, and to hold in his own hand a veto upon any verdict that can +be rendered against a defendant, and any sentence that can be inflicted +upon him, even if he be guilty. + +Of course, no man can rightfully take an oath as juror, to try a case +"according to law," (if by law be meant anything other than his own +ideas of justice,) nor "according to the law and the evidence, _as they +shall be given him_." Nor can he rightfully take an oath even to try a +case "_according to the evidence_," because in all cases he may have +good reason to believe that a party has been unable to produce all the +evidence legitimately entitled to be received. The only oath which it +would seem that a man can rightfully take as juror, in either a civil or +criminal case, is, that he "will try the case _according to his +conscience_." Of course, the form may admit of variation, but this +should be the substance. Such, we have seen, were the ancient common law +oaths. diff --git a/chapters/11.markdown b/chapters/11.markdown new file mode 100644 index 0000000..c8131c9 --- /dev/null +++ b/chapters/11.markdown @@ -0,0 +1,629 @@ +CHAPTER XI. + +AUTHORITY OF MAGNA CARTA. + + +Probably no political compact between king and people was ever entered +into in a manner to settle more authoritatively the fundamental law of a +nation, than was Magna Carta. Probably no people were ever more united +and resolute in demanding from their king a definite and unambiguous +acknowledgment of their rights and liberties, than were the English at +that time. Probably no king was ever more completely stripped of all +power to maintain his throne, and at the same time resist the demands of +his people, than was John on the 15th day of June, 1215. Probably no +king ever consented, more deliberately or explicitly, to hold his throne +subject to specific and enumerated limitations upon his power, than did +John when he put his seal to the Great Charter of the Liberties of +England. And if any political compact between king and people was ever +valid to settle the liberties of the people, or to limit the power of +the crown, that compact is now to be found in Magna Carta. If, +therefore, the constitutional authority of Magna Carta had rested solely +upon the compact of John with his people, that authority would have been +entitled to stand forever as the supreme law of the land, unless revoked +by the will of the people themselves. + +But the authority of Magna Carta does not rest alone upon the compact +with _John_. When, in the next year, (1216,) his son, Henry III., came +to the throne, the charter was ratified by him, and again in 1217, and +again in 1225, in substantially the same form, and especially without +allowing any new powers, legislative, judicial, or executive, to the +king or his judges, and without detracting in the least from the powers +of the jury. And from the latter date to this, the charter has remained +unchanged. + +In the course of two hundred years the charter was confirmed by Henry +and his successors more than thirty times. And although they were guilty +of numerous and almost continual breaches of it, and were constantly +seeking to evade it, yet such were the spirit, vigilance and courage of +the nation, that the kings held their thrones only on the condition of +their renewed and solemn promises of observance. And it was not until +1429, (as will be more fully shown hereafter,) when a truce between +themselves, and a formal combination against the mass of the people, had +been entered into, by the king, the nobility, and the "_forty shilling +freeholders_," (a class whom Mackintosh designates as "_a few +freeholders then accounted wealthy_,"[106]) by the exclusion of all +others than such freeholders from all voice in the election of knights +to represent the counties in the House of Commons, that a repetition of +these confirmations of Magna Carta ceased to be demanded and +obtained.[107] + +The terms and the formalities of some of these "confirmations" make them +worthy of insertion at length. + +Hume thus describes one which took place in the 38th year of Henry III. +(1253): + + "But as they (the barons) had experienced his (the king's) frequent + breach of promise, they required that he should ratify the Great + Charter in a manner still more authentic and solemn than any which he + had hitherto employed. All the prelates and abbots were assembled. + They held burning tapers in their hands. The Great Charter was read + before them. They denounced the sentence of excommunication against + every one who should thenceforth violate that fundamental law. They + threw their tapers on the ground, and exclaimed, _May the soul of + every one who incurs this sentence so stink and corrupt in hell!_ The + king bore a part in this ceremony, and subjoined, 'So help me God! I + will keep all these articles inviolate, as I am a man, as I am a + Christian, as I am a knight, and as I am a king crowned and + anointed.'"--_Hume_, ch. 12. See also _Blackstone's Introd. to the + Charters. Black. Law Tracts_, Oxford ed., p. 332. _Mackintosh's Hist. + of Eng._, ch. 3. _Lardner's Cab. Cyc._, vol. 45, p. 233-4. + +The following is the form of "the sentence of excommunication" referred +to by Hume: + + "_The Sentence of Curse, Given by the Bishops, against the Breakers + of the Charters._ + + "The year of our Lord a thousand two hundred and fifty-three, the + third day of May, in the great Hall of the King at Westminster, _in + the presence, and by the assent, of the Lord Henry, by the Grace of + God King of England_, and the Lords Richard, Earl of Cornwall, his + brother, Roger (Bigot) Earl of Norfolk and Suffolk, marshal of + England, Humphrey, Earl of Hereford, Henry, Earl of Oxford, John, + Earl of Warwick, and other estates of the Realm of England: We, + Boniface, by the mercy of God Archbishop of Canterbury, Primate of + all England, F. of London, H. of Ely, S. of Worcester, E. of Lincoln, + W. of Norwich, P. of Hereford, W. of Salisbury, W. of Durham, R. of + Exeter, M. of Carlisle, W. of Bath, E. of Rochester, T. of Saint + David's, Bishops, apparelled in Pontificals, with tapers burning, + against the breakers of the Church's Liberties, and of the Liberties + or free customs of the Realm of England, and especially of those + which are contained in the Charter of the Common Liberties of the + Realm, and the Charter of the Forest, have solemnly denounced the + sentence of Excommunication in this form. By the authority of + Almighty God, the Father, the Son, and the Holy Ghost, and of the + glorious Mother of God, and perpetual Virgin Mary, of the blessed + Apostles Peter and Paul, and of all apostles, of the blessed Thomas, + Archbishop and Martyr, and of all martyrs, of blessed Edward of + England, and of all Confessors and virgins, and of all the saints of + heaven: We excommunicate, accurse, and from the thresholds + (liminibus) of our Holy Mother the Church, We sequester, all those + that hereafter willingly and maliciously deprive or spoil the Church + of her right: And all those that by any craft or wiliness do violate, + break, diminish, or change the Church's Liberties, or the ancient + approved customs of the Realm, and especially the Liberties and free + Customs contained in the Charters of the Common Liberties, and of the + Forest, conceded by our Lord the King, to Archbishops, Bishops, and + other Prelates of England; and likewise to the Earls, Barons, + Knights, and other Freeholders of the Realm: And all that secretly, + or openly, by deed, word, or counsel, _do make statutes, or observe + them being made_, and that bring in Customs, or keep them when they + be brought in, against the said Liberties, or any of them, the + Writers and Counsellors of said statutes, and the Executors of them, + and all those that shall presume to judge according to them. All and + every which persons before mentioned, that wittingly shall commit + anything of the premises, let them well know that they incur the + aforesaid sentence, _ipso facto_, (i.e., upon the deed being done.) + And those that ignorantly do so, and be admonished, except they + reform themselves within fifteen days after the time of the + admonition, and make full satisfaction for that they have done, at + the will of the ordinary, shall be from that time forth included in + the same sentence. And with the same sentence we burden all those + that presume to perturb the peace of our sovereign Lord the King, and + of the Realm. To the perpetual memory of which thing, We, the + aforesaid Prelates, have put our seals to these presents."--_Statutes + of the Realm_, vol. 1, p. 6. _Ruffhead's Statutes_, vol. 1, p. 20. + +One of the Confirmations of the Charters, by Edward I., was by statute, +in the 25th year of his reign, (1297,) in the following terms. The +statute is usually entitled "_Confirmatio Cartarum_," (Confirmation of +the Charters.) + + _Ch. 1._ "Edward, by the Grace of God, King of England, Lord of + Ireland, and Duke of Guyan, To all those that these presents shall + hear or see, Greeting. Know ye, that We, to the honor of God, and of + Holy Church, and to the profit of our Realm, have granted, for us and + our heirs, that the Charter of Liberties, and the Charter of the + Forest, which were made by common assent of all the Realm, in the + time of King Henry our Father, shall be kept in every point without + breach. And we will that the same Charters shall be sent under our + seal, as well to our justices of the Forest, as to others, and to all + Sheriffs of shires, and to all our other officers, and to all our + cities throughout the Realm, together with our writs, in the which it + shall be contained, that they cause the aforesaid Charters to be + published, and to declare to the people that We have confirmed them + at all points; and to our Justices, Sheriffs, Mayors, and other + ministers, which under us have the Laws of our Land to guide, that + they allow the same Charters, in all their points, in pleas before + them, and in judgment; that is, to wit, the Great Charter as the + Common Law, and the Charter of the Forest for the wealth of our + Realm. + + _Ch. 2._ "And we will that if any judgment be given from henceforth + contrary to the points of the charters aforesaid by the justices, or + by any others our ministers that hold plea before them, against the + points of the Charters, it shall be undone and holden for naught. + + _Ch. 3._ "And we will, that the same Charters shall be sent, under + our seal, to Cathedral Churches throughout our Realm, there to + remain, and shall be read before the people two times in the year. + + _Ch. 4._ "And that all Archbishops and Bishops shall pronounce the + sentence of excommunication against all those that by word, deed, or + counsel, do contrary to the foresaid charters, or that in any point + break or undo them. And that the said Curses be twice a year + denounced and published by the prelates aforesaid. And if the same + prelates, or any of them, be remiss in the denunciation of the said + sentences, the Archbishops of Canterbury and York, for the time + being, shall compel and distrain them to make the denunciation in the + form aforesaid."--_St. 25 Edward I._, (1297.) _Statutes of the + Realm_, vol. 1, p. 123. + +It is unnecessary to repeat the terms of the various confirmations, most +of which were less formal than those that have been given, though of +course equally authoritative. Most of them are brief, and in the form of +a simple statute, or promise, to the effect that "The Great Charter, and +the Charter of the Forest, shall be firmly kept and maintained in all +points." They are to be found printed with the other statutes of the +realm. One of them, after having "again granted, renewed and confirmed" +the charters, requires as follows: + + "That the Charters be delivered to every sheriff of England under the + king's seal, to be read four times in the year before the people in + the full county," (that is, at the county court,) "that is, to wit, + the next county (court) after the feast of Saint Michael, and the + next county (court) after Christmas, and at the next county (court) + after Easter, and at the next county (court) after the feast of Saint + John."--_28 Edward I._, ch. 1, (1300.) + + Lingard says, "The Charter was ratified four times by Henry III., + twice by Edward I., fifteen times by Edward III., seven times by + Richard II., six times by Henry IV., and once by Henry V.;" making + thirty-five times in all.--_3 Lingard_, 50, note, Philad. ed. + +Coke says Magna Carta was confirmed thirty-two times.--Preface_ to_ 2 +_Inst_., p. 6. + + Lingard calls these "thirty-five successive ratifications" of the + charter, "a sufficient proof how much its provisions were abhorred + by the sovereign, and how highly they were prized by the nation."--_3 + Lingard_, 50. + + Mackintosh says, "For almost five centuries (that is, until 1688) it + (Magna Carta) was appealed to as the decisive authority on behalf of + the people, though commonly so far only as the necessities of each + case demanded."--_Mackintosh's Hist. of Eng._ ch. 3. _45 Lardner's + Cab. Cyc._, 221. + +Coke, who has labored so hard to overthrow the most vital principles of +Magna Carta, and who, therefore, ought to be considered good authority +when he speaks in its favor,[108] says: + + "It is called Magna Carta, not that it is great in quantity, for + there be many voluminous charters commonly passed, specially in these + later times, longer than this is; nor comparatively in respect that + it is greater than _Charta de Foresta_, but in respect of the great + importance and weightiness of the matter, as hereafter shall appear; + and likewise for the same cause _Charta de Foresta_; and both of them + are called _Magnæ Chartæ Libertatum Angliæ_, (The Great Charters of + the Liberties of England.) ... + + "And it is also called _Charta Libertatum regni_, (Charter of the + Liberties of the kingdom;) and upon great reason it is so called of + the effect, _quia liberos facit_, (because it makes men free.) + Sometime for the same cause (it is called) _communis libertas_, + (common liberty,) and _le chartre des franchises_, (the charter of + franchises.) ... + + "It was for the most part declaratory of the principal grounds of the + fundamental laws of England, and for the residue it is additional to + supply some defects of the common law.... + + "Also, by the said act of 25 Edward I., (called _Confirmatio + Chartarum_,) it is adjudged in parliament that the Great Charter and + the Charter of the Forest shall be taken as the common law.... + + "They (Magna Carta and Carta de Foresta) were, for the most part, but + declarations of the ancient common laws of England, to the + observation and keeping whereof, the king was bound and sworn. + + "After the making of Magna Charta, and Charta de Foresta, divers + learned men in the laws, that I may use the words of the record, kept + schools of the law in the city of London, and taught such as resorted + to them the laws of the realm, taking their foundation of Magna + Charta and Charta de Foresta. + + "And the said two charters have been confirmed, established, and + commanded to be put in execution by thirty-two several acts of + parliament in all. + + "This appeareth partly by that which hath been said, for that it hath + so often been confirmed by the wise providence of so many acts of + parliament. + + "And albeit judgments in the king's courts are of high regard in law, + and _judicia_ (judgments) are accounted as _jurisdicta_, (the speech + of the law itself,) yet it is provided by act of parliament, that if + any judgment be given contrary to any of the points of the Great + Charter and Charta de Foresta, by the justices, or by any other of + the king's ministers, &c., it shall be undone, and holden for naught. + + "And that both the said charters shall be sent under the great seal + to all cathedral churches throughout the realm, there to remain, and + shall be read to the people twice every year. + + "The highest and most binding laws are the statutes which are + established by parliament; and by authority of that highest court it + is enacted (only to show their tender care of Magna Carta and Carta + de Foresta) that if any statute be made contrary to the Great + Charter, or the Charter of the Forest, that shall be holden for none; + by which words all former statutes made against either of those + charters are now repealed; and the nobles and great officers were to + be sworn to the observation of Magna Charta and Charta de Foresta. + + "_Magna fuit quondam magnæ reverentia chartæ._" (Great was formerly + the reverence for Magna Carta.)--_Coke's Proem to 2 Inst._, p. 1 to + 7. + +Coke also says, "All pretence of prerogative against Magna Charta is +taken away."--_2 Inst._, 36. + +He also says, "That after this parliament (_52 Henry_ III., in 1267) +neither Magna Carta nor Carta de Foresta was ever attempted to be +impugned or questioned."--_2 Inst._, 102.[109] + +To give all the evidence of the authority of Magna Carta, it would be +necessary to give the constitutional history of England since the year +1215. This history would show that Magna Carta, although continually +violated and evaded, was still acknowledged as law by the government, +and was held up by the people as the great standard and proof of their +rights and liberties. It would show also that the judicial tribunals, +_whenever it suited their purposes to do so_, were in the habit of +referring to Magna Carta as authority, in the same manner, and with the +same real or pretended veneration, with which American courts now refer +to the constitution of the United States, or the constitutions of the +states. And, what is equally to the point, it would show that these same +tribunals, the mere tools of kings and parliaments, would resort to the +same artifices of assumption, _precedent_, construction, and false +interpretation, to evade the requirements of Magna Carta, and to +emasculate it of all its power for the preservation of liberty, that are +resorted to by American courts to accomplish the same work on our +American constitutions. + +I take it for granted, therefore, that if the authority of Magna Carta +had rested simply upon its character as a _compact_ between the king and +the people, it would have been forever binding upon the king, (that is, +upon the government, for the king was the government,) in his +legislative, judicial, and executive character; and that there was no +_constitutional_ possibility of his escaping from its restraints, unless +the people themselves should freely discharge him from them. + +But the authority of Magna Carta does not rest, either wholly or mainly, +upon its character as a compact. For centuries before the charter was +granted, its main principles constituted "the Law of the Land,"--the +fundamental and constitutional law of the realm, which the kings were +sworn to maintain. And the principal benefit of the charter was, that it +contained a _written_ description and acknowledgment, by the king +himself, of what the constitutional law of the kingdom was, which his +coronation oath bound him to observe. Previous to Magna Carta, this +constitutional law rested mainly in precedents, customs, and the +memories of the people. And if the king could but make one innovation +upon this law, without arousing resistance, and being compelled to +retreat from his usurpation, he would cite that innovation as a +precedent for another act of the same kind; next, assert a custom; and, +finally, raise a controversy as to what the Law of the Land really was. +The great object of the barons and people, in demanding from the king a +written description and acknowledgment of the Law of the Land, was to +put an end to all disputes of this kind, and to put it out of the power +of the king to plead any misunderstanding of the constitutional law of +the kingdom. And the charter, no doubt, accomplished very much in this +way. After Magna Carta, it required much more audacity, cunning, or +strength, on the part of the king, than it had before, to invade the +people's liberties with impunity. Still, Magna Carta, like all other +written constitutions, proved inadequate to the full accomplishment of +its purpose; for when did a parchment ever have power adequately to +restrain a government, that had either cunning to evade its +requirements, or strength to overcome those who attempted its defence? +The work of usurpation, therefore, though seriously checked, still went +on, to a great extent, after Magna Carta. Innovations upon the Law of +the Land are still made by the government. One innovation was cited as a +precedent; precedents made customs; and customs became laws, so far as +practice was concerned; until the government, composed of the king, the +high functionaries of the church, the nobility, a House of Commons +representing the "forty shilling freeholders," and a dependent and +servile judiciary, all acting in conspiracy against the mass of the +people, became practically absolute, as it is at this day. + +As proof that Magna Carta embraced little else than what was previously +recognized as the common law, or Law of the Land, I repeat some +authorities that have been already cited. + + Crabbe says, "It is admitted on all hands that it (Magna Carta) + contains nothing but what was confirmatory of the common law and the + ancient usages of the realm; and is, properly speaking, only an + enlargement of the charter of Henry I. and his + successors."--_Crabbe's Hist. of the Eng. Law_, p. 127. + + Blackstone says, "It is agreed by all our historians that the Great + Charter of King John was, for the most part, compiled from the + ancient customs of the realm, or the laws of Edward the Confessor; by + which they mean the old common law which was established under our + Saxon princes."--_Blackstone's Introd. to the Charters._ See + _Blackstone's Law Tracts_, Oxford ed., p. 289. + + Coke says, "The common law is the most general and ancient law of + the realm.... The common law appeareth in the statute of _Magna + Carta_, and other ancient statutes, (which for the most part are + affirmations of the common law,) in the original writs, in judicial + records, and in our books of terms and years."--_1 Inst._, 115 b. + + Coke also says, "It (Magna Carta) was for the most part declaratory + of the principal grounds of the fundamental laws of England, and for + the residue it was additional to supply some defects of the common + law.... They (Magna Carta and Carta de Foresta) were, for the most + part, but declarations of the ancient common laws of England, _to the + observation and keeping whereof the king was bound and + sworn_."--_Preface to 2 Inst._, p. 3 and 5. + + Hume says, "We may now, from the tenor of this charter, (Magna + Carta,) conjecture what those laws were of King Edward, (the + Confessor,) which the English nation during so many generations still + desired, with such an obstinate perseverance, to have recalled and + established. They were chiefly these latter articles of Magna Carta; + and the barons who, at the beginning of these commotions, demanded + the revival of the Saxon laws, undoubtedly thought that they had + sufficiently satisfied the people, by procuring them this concession, + which comprehended the principal objects to which they had so long + aspired."--_Hume_, ch. 11. + +Edward the First confessed that the Great Charter was substantially +identical with the common law, as far as it went, when he commanded his +justices to allow "the Great Charter as the Common Law," "in pleas +before them, and in judgment," as has been already cited in this +chapter.--_25 Edward_ I., ch. 1, (1297.) + +In conclusion of this chapter, it may be safely asserted that the +veneration, attachment, and pride, which the English nation, for more +than six centuries, have felt towards Magna Carta, are in their nature +among the most irrefragable of all proofs that it was the fundamental +law of the land, and constitutionally binding upon the government; for, +otherwise, it would have been, in their eyes, an unimportant and +worthless thing. What those sentiments were I will use the words of +others to describe,--the words, too, of men, who, like all modern +authors who have written on the same topic, had utterly inadequate ideas +of the true character of the instrument on which they lavished their +eulogiums. + +Hume, speaking of the Great Charter and the Charter of the Forest, as +they were confirmed by Henry III., in 1217, says: + + "Thus these famous charters were brought nearly to the shape in which + they have ever since stood; and they were, during many generations, + the peculiar favorites of the English nation, and esteemed the most + sacred rampart to national liberty and independence. As they secured + the rights of all orders of men, they were anxiously defended by all, + and became the basis, in a manner, of the English monarchy, and a + kind of original contract, which both limited the authority of the + king and ensured the conditional allegiance of his subjects. Though + often violated, they were still claimed by the nobility and people; + and, as no precedents were supposed valid that infringed them, they + rather acquired than lost authority, from the frequent attempts made + against them in several ages, by regal and arbitrary power."--_Hume_, + ch. 12. + + Mackintosh says, "It was understood by the simplest of the unlettered + age for whom it was intended. It was remembered by them.... For + almost five centuries it was appealed to as the decisive authority on + behalf of the people.... To have produced it, to have preserved it, + to have matured it, constitute the immortal claim of England on the + esteem of mankind. Her Bacons and Shakspeares, her Miltons and + Newtons, with all the truth which they have revealed, and all the + generous virtues which they have inspired, are of inferior value when + compared with the subjection of men and their rulers to the + principles of justice; if, indeed, it be not more true that these + mighty spirits could not have been formed except under equal laws, + nor roused to full activity without the influence of that spirit + which the Great Charter breathed over their + forefathers."--_Mackintosh's Hist. of Eng._, ch. 3.[110] + +Of the Great Charter, the trial by jury is the vital part, and the only +part that places the liberties of the people in their own keeping. Of +this Blackstone says: + + "The trial by jury, or the country, _per patriam_, is also that trial + by the peers of every Englishman, which, as the grand bulwark of his + liberties, is secured to him by the Great Charter; _nullus liber homo + capiatur, vel imprisonetur, aut exuletur, aut aliquo modo destruatur, + nisi per legale judicium parium suorum, vel per legem terrae...._ + + The liberties of England cannot but subsist so long as this palladium + remains sacred and inviolate, not only from all open attacks, which + none will be so hardy as to make, but also from all secret + machinations which may sap and undermine it."[111] + + "The trial by jury ever has been, and I trust ever will be, looked + upon as the glory of the English law.... It is the most transcendent + privilege which any subject can enjoy or wish for, that he cannot be + affected in his property, his liberty, or his person, but by the + unanimous consent of twelve of his neighbors and equals."[112] + + Hume calls the trial by jury "An institution admirable in itself, and + the best calculated for the preservation of liberty and the + administration of justice, that ever was devised by the wit of + man."[113] + +An old book, called "English Liberties," says: + + "English Parliaments have all along been most zealous for preserving + this great Jewel of Liberty, trials by juries having no less than + fifty-eight several times, since the Norman Conquest, been + established and confirmed by the legislative power, no one privilege + besides having been ever so often remembered in parliament."[114] + +[Footnote 106: _Mackintosh's Hist. of Eng._, ch. 3. _45 Lardner's Cab. +Cyc._, 354.] + +[Footnote 107: "_Forty shilling freeholders_" were those "people +dwelling and resident in the same counties, whereof every one of them +shall have free land or tenement to the value of forty shillings by the +year at the least above all charges." By statute _8 Henry_ 6, ch. 7, +(1429,) these freeholders only were allowed to vote for members of +Parliament from the _counties_.] + +[Footnote 108: He probably speaks in its favor only to blind the eyes of +the people to the frauds he has attempted upon its true meaning.] + +[Footnote 109: It will be noticed that Coke calls these confirmations of +the charter "acts of parliament," instead of acts of the king alone. +This needs explanation. + +It was one of Coke's ridiculous pretences, that laws anciently enacted +by the king, at the request, or with the consent, or by the advice, of +his parliament, was "an act of parliament," instead of the act of the +king. And in the extracts cited, he carries this idea so far as to +pretend that the various confirmations of the Great Charter were "acts +of parliament," instead of the acts of the kings. He might as well have +pretended that the original grant of the Charter was an "act of +parliament;" because it was not only granted at the request, and with +the consent, and by the advice, but on the compulsion even, of those who +commonly constituted his parliaments. Yet this did not make the grant of +the charter "an act of parliament." It was simply an act of the king. + +The object of Coke, in this pretence, was to furnish some color for the +palpable falsehood that the legislative authority, which parliament was +trying to assume in his own day, and which it finally succeeded in +obtaining, had a precedent in the ancient constitution of the kingdom. + +There would be as much reason in saying that, because the ancient kings +were in the habit of passing laws in special answer to the _petitions_ +of their subjects, therefore those _petitioners_ were a part of the +legislative power of the kingdom. + +One great objection to this argument of Coke, for the legislative +authority of the ancient parliaments, is that a very large--probably +much the larger--number of legislative acts were done _without_ the +advice, consent, request, or even presence, of a parliament. Not only +were many formal statutes passed without any mention of the consent or +advice of parliament, but a simple order of the king in council, or a +simple proclamation, writ, or letter under seal, issued by his command, +had the same force as what Coke calls "an act of parliament." And this +practice continued, to a considerable extent at least, down to Coke's +own time. + +The kings were always in the habit of consulting their parliaments, more +or less, in regard to matters of legislation,--not because their consent +was constitutionally necessary, but in order to make influence in favor +of their laws, and thus induce the people to observe them, and the +juries to enforce them. + +The general duties of the ancient parliaments were not legislative, but +judicial, as will be shown more fully hereafter. The _people_ were not +represented in the parliaments at the time of Magna Carta, but only the +archbishops, bishops, earls, barons, and knights; so that little or +nothing would have been gained for liberty by Coke's idea that +parliament had a legislative power. He would only have substituted an +aristocracy for a king. Even after the Commons were represented in +parliament, they for some centuries appeared only as _petitioners_, +except in the matter of taxation, when their _consent_ was asked. And +almost the only source of their influence on legislation was this: that +they would sometimes refuse their consent to the taxation, unless the +king would pass such laws as they petitioned for; or, as would seem to +have been much more frequently the case, unless he would abolish such +laws and practices as they remonstrated against. + +The _influence_ or power of parliament, and especially of the Commons, +in the general legislation of the country, was a thing of slow growth, +having its origin in a device of the king to get money contrary to law, +(as will be seen in the next volume,) and not at all a part of the +constitution of the kingdom, nor having its foundation in the consent of +the people. The power, _as at present exercised_, was not fully +established until 1688, (near five hundred years after Magna Carta,) +when the House of Commons (falsely so called) had acquired such +influence as the representative, _not of the people, but of the wealth, +of the nation_, that they compelled the king to discard the oath fixed +by the constitution of the kingdom; (which oath has been already given +in a former chapter,(page 101) and was, in substance, to preserve and +execute the Common Law, the Law of the Land,--or, in the words of the +oath, "_the just laws and customs which the common people had chosen_;") +and to swear that he would "govern the people of this kingdom of +England, and the dominions thereto belonging, _according to the statutes +in parliament agreed on_, and the laws and customs of the same."[115] + +The passage and enforcement of this statute, and the assumption of this +oath by the king, were plain violations of the English constitution, +inasmuch as they abolished, so far as such an oath could abolish, the +legislative power of the king, and also "those just laws and customs +which the common people (through their juries) had chosen," and +substituted the will of parliament in their stead. + +Coke was a great advocate for the legislative power of parliament, as a +means of restraining the power of the king. As he denied all power to +_juries_ to decide upon the obligation of laws, and as he held that the +legislative power was "_so transcendent and absolute as (that) it cannot +be confined, either for causes or persons, within any bounds_,"[116] he +was perhaps honest in holding that it was safer to trust this terrific +power in the hands of parliament, than in the hands of the king. His +error consisted in holding that either the king or parliament had any +such power, or that they had any power at all to pass laws that should +be binding upon a jury. + +These declarations of Coke, that the charter was confirmed by thirty-two +"acts of parliament," have a mischievous bearing in another respect. +They tend to weaken the authority of the charter, by conveying the +impression that the charter itself might be _abolished_ by "act of +parliament." Coke himself admits that it could not be revoked or +rescinded by the _king_; for he says, "All pretence of prerogative +against Magna Carta is taken away." (_2 Inst._, 36.) + +He knew perfectly well, and the whole English nation knew, that the +_king_ could not lawfully infringe Magna Carta. Magna Carta, therefore, +made it impossible that absolute power could ever be practically +established in England, _in the hands of the king_. Hence, as Coke was +an advocate for absolute power,--that is, for a legislative power "so +transcendent and absolute as (that) it cannot be confined, either for +causes or persons, within any bounds,"--there was no alternative for him +but to vest this absolute power in parliament. Had he not vested it in +parliament, he would have been obliged to abjure it altogether, and to +confess that the people, _through their juries_, had the right to judge +of the obligation of all legislation whatsoever; in other words, that +they had the right to confine the government within the limits of "those +just laws and customs which the common people (acting as jurors) had +chosen." True to his instincts, as a judge, and as a tyrant, he assumed +that this absolute power was vested in the hands of parliament. + +But the truth was that, as by the English constitution parliament had no +authority at all for _general_ legislation, it could no more confirm, +than it could abolish, Magna Carta. + +These thirty-two confirmations of Magna Carta, which Coke speaks of as +"acts of parliament," were merely acts of the king. The parliaments, +indeed, by refusing to grant him money, except on that condition, and +otherwise, had contributed to oblige him to make the confirmations; just +as they had helped to oblige him by arms to grant the charter in the +first place. But the confirmations themselves were nevertheless +constitutionally, as well as formally, the acts of the king alone.] + +[Footnote 110: Under the head of "_John._"] + +[Footnote 111: _4 Blackstone_, 349-50.] + +[Footnote 112: _3 Blackstone_, 379.] + +[Footnote 113: _Hume_, ch. 2.] + +[Footnote 114: Page 203, 5th edition, 1721.] + +[Footnote 115: St. 1 _William and Mary_, ch. 6, (1688.)] + +[Footnote 116: 4 _Inst._, 36.] diff --git a/chapters/12.markdown b/chapters/12.markdown new file mode 100644 index 0000000..2372452 --- /dev/null +++ b/chapters/12.markdown @@ -0,0 +1,570 @@ +CHAPTER XII. + +LIMITATIONS IMPOSED UPON THE MAJORITY BY THE TRIAL BY JURY. + + +The principal objection, that will be made to the doctrine of this +essay, is, that under it, a jury would paralyze the power of the +majority, and veto all legislation that was not in accordance with the +will of the whole, or nearly the whole, people. + +The answer to this objection is, that the limitation, which would be +thus imposed upon the legislative power, (whether that power be vested +in the majority, or minority, of the people,) is the crowning merit of +the trial by jury. It has other merits; but, though important in +themselves, they are utterly insignificant and worthless in comparison +with this. + +It is this power of vetoing all partial and oppressive legislation, and +of restricting the government to the maintenance of such laws as the +_whole_, or substantially the whole, people _are agreed in_, that makes +the trial by jury "the palladium of liberty." Without this power it +would never have deserved that name. + +The will, or the pretended will, of the majority, is the last lurking +place of tyranny at the present day. The dogma, that certain individuals +and families have a divine appointment to govern the rest of mankind, is +fast giving place to the one that the larger number have a right to +govern the smaller; a dogma, which may, or may not, be less oppressive +in its practical operation, but which certainly is no less false or +tyrannical in principle, than the one it is so rapidly supplanting. +Obviously there is nothing in the nature of majorities, that insures +justice at their hands. They have the same passions as minorities, and +they have no qualities whatever that should be expected to prevent them +from practising the same tyranny as minorities, if they think it will +be for their interest to do so. + +There is no particle of truth in the notion that the majority have a +_right_ to rule, or to exercise arbitrary power over, the minority, +simply because the former are more numerous than the latter. Two men +have no more natural right to rule one, than one has to rule two. Any +single man, or any body of men, many or few, have a natural right to +maintain justice for themselves, and for any others who may need their +assistance, against the injustice of any and all other men, without +regard to their numbers; and majorities have no right to do any more +than this. The relative numbers of the opposing parties have nothing to +do with the question of right. And no more tyrannical principle was ever +avowed, than that the will of the majority ought to have the force of +law, without regard to its justice; or, what is the same thing, that the +will of the majority ought always to be presumed to be in accordance +with justice. Such a doctrine is only another form of the doctrine that +might makes right. + +When _two_ men meet _one_ upon the highway, or in the wilderness, have +they a right to dispose of his life, liberty, or property at their +pleasure, simply because they are the more numerous party? Or is he +bound to submit to lose his life, liberty, or property, if they demand +it, merely because he is the less numerous party? Or, because they are +more numerous than he, is he bound to presume that they are governed +only by superior wisdom, and the principles of justice, and by no +selfish passion that can lead them to do him a wrong? Yet this is the +principle, which it is claimed should govern men in all their civil +relations to each other. Mankind fall in company with each other on the +highway or in the wilderness of life, and it is claimed that the more +numerous party, simply by virtue of their superior numbers, have the +right arbitrarily to dispose of the life, liberty, and property of the +minority; and that the minority are bound, by reason of their inferior +numbers, to practise abject submission, and consent to hold their +natural rights,--any, all, or none, as the case may be,--at the mere +will and pleasure of the majority; as if all a man's natural rights +expired, or were suspended by the operation of a paramount law, the +moment he came into the presence of superior numbers. + +If such be the true nature of the relations men hold to each other in +this world, it puts an end to all such things as crimes, unless they be +perpetrated upon those who are equal or superior, in number, to the +actors. All acts committed against persons _inferior_ in number to the +aggressors, become but the exercise of rightful authority. And +consistency with their own principles requires that all governments, +founded on the will of the majority, should recognize this plea as a +sufficient justification for all crimes whatsoever. + +If it be said that the majority should be allowed to rule, not because +they are stronger than the minority, but because their superior numbers +furnish a _probability_ that they are in the right; one answer is, that +the lives, liberties, and properties of men are too valuable to them, +and the natural presumptions are too strong in their favor, to justify +the destruction of them by their fellow-men on a mere balancing of +probabilities, _or on any ground whatever short of certainty beyond a +reasonable doubt_. This last is the moral rule universally recognized to +be binding upon single individuals. And in the forum of conscience the +same rule is equally binding upon governments, for governments are mere +associations of individuals. This is the rule on which the trial by jury +is based. And it is plainly the only rule that ought to induce a man to +submit his rights to the adjudication of his fellow-men, or dissuade him +from a forcible defence of them. + +Another answer is, that if two opposing parties could be supposed to +have no personal interests or passions involved, to warp their +judgments, or corrupt their motives, the fact that one of the parties +was more numerous than the other, (a fact that leaves the comparative +intellectual competency of the two parties entirely out of +consideration,) might, perhaps, furnish a slight, but at best only a +very slight, probability that such party was on the side of justice. But +when it is considered that the parties are liable to differ in their +intellectual capacities, and that one, or the other, or both, are +undoubtedly under the influence of such passions as rivalry, hatred, +avarice, and ambition,--passions that are nearly certain to pervert +their judgments, and very likely to corrupt their motives,--all +probabilities founded upon a mere numerical majority, in one party, or +the other, vanish at once; and the decision of the majority becomes, to +all practical purposes, a mere decision of chance. And to dispose of +men's properties, liberties, and lives, by the mere process of +enumerating such parties, is not only as palpable gambling as was ever +practised, but it is also the most atrocious that was ever practised, +except in matters of government. And where government is instituted on +this principle, (as in the United States, for example,) the nation is at +once converted into one great gambling establishment; where all the +rights of men are the stakes; a few bold bad men throw the dice--(dice +loaded with all the hopes, fears, interests, and passions which rage in +the breasts of ambitious and desperate men,)--and all the people, from +the interests they have depending, become enlisted, excited, agitated, +and generally corrupted, by the hazards of the game. + +The trial by jury disavows the majority principle altogether; and +proceeds upon the ground that every man should be presumed to be +entitled to life, liberty, and such property as he has in his +possession; and that the government should lay its hand upon none of +them, (except for the purpose of bringing them before a tribunal for +adjudication,) unless it be first ascertained, _beyond a reasonable +doubt_, in every individual case, that justice requires it. + +To ascertain whether there be such reasonable doubt, it takes twelve men +_by lot_ from the whole body of mature men. If any of these twelve are +proved to be under the influence of any _special_ interest or passion, +that may either pervert their judgments, or corrupt their motives, they +are set aside as unsuitable for the performance of a duty requiring such +absolute impartiality and integrity; and others substituted in their +stead. When the utmost practicable impartiality is attained on the part +of the whole twelve, they are sworn to the observance of justice; and +their unanimous concurrence is then held to be necessary to remove that +reasonable doubt, which, unremoved, would forbid the government to lay +its hand on its victim. + +Such is the caution which the trial by jury both practises and +inculcates, against the violation of justice, on the part of the +government, towards the humblest individual, in the smallest matter +affecting his civil rights, his property, liberty, or life. And such is +the contrast, which the trial by jury presents, to that gambler's and +robber's rule, that the majority have a right, by virtue of their +superior numbers, and without regard to justice, to dispose at pleasure +of the property and persons of all bodies of men less numerous than +themselves. + +The difference, in short, between the two systems, is this. The trial by +jury protects person and property, inviolate to their possessors, from +the hand of the law, unless _justice, beyond a reasonable doubt_, +require them to be taken. The majority principle takes person and +property from their possessors, at the mere arbitrary will of a +majority, who are liable and likely to be influenced, in taking them, by +motives of oppression, avarice, and ambition. + +If the relative numbers of opposing parties afforded sufficient evidence +of the comparative justice of their claims, the government should carry +the principle into its courts of justice; and instead of referring +controversies to impartial and disinterested men,--to judges and jurors, +sworn to do justice, and bound patiently to hear and weigh all the +evidence and arguments that can be offered on either side,--it should +simply _count_ the plaintiffs and defendants in each case, (where there +were more than one of either,) and then give the case to the majority; +after ample opportunity had been given to the plaintiffs and defendants +to reason with, flatter, cheat, threaten, and bribe each other, by way +of inducing them to change sides. Such a process would be just as +rational in courts of justice, as in halls of legislation; for it is of +no importance to a man, who has his rights taken from him, whether it be +done by a legislative enactment, or a judicial decision. + +In legislation, the people are all arranged as plaintiffs and defendants +in their own causes; (those who are in favor of a particular law, +standing as plaintiffs, and those who are opposed to the same law, +standing as defendants); and to allow these causes to be decided by +majorities, is plainly as absurd as it would be to allow judicial +decisions to be determined by the relative number of plaintiffs and +defendants. + +If this mode of decision were introduced into courts of justice, we +should see a parallel, and only a parallel, to that system of +legislation which we witness daily. We should see large bodies of men +conspiring to bring perfectly groundless suits, against other bodies of +men, for large sums of money, and to carry them by sheer force of +numbers; just as we now continually see large bodies of men conspiring +to carry, by mere force of numbers, some scheme of legislation that +will, directly or indirectly, take money out of other men's pockets, and +put it into their own. And we should also see distinct bodies of men, +parties in separate suits, combining and agreeing all to appear and be +counted as plaintiffs or defendants in each other's suits, for the +purpose of ekeing out the necessary majority; just as we now see +distinct bodies of men, interested in separate schemes of ambition or +plunder, conspiring to carry through a batch of legislative enactments, +that shall accomplish their several purposes. + +This system of combination and conspiracy would go on, until at length +whole states and a whole nation would become divided into two great +litigating parties, each party composed of several smaller bodies, +having their separate suits, but all confederating for the purpose of +making up the necessary majority in each case. The individuals composing +each of these two great parties, would at length become so accustomed to +acting together, and so well acquainted with each others' schemes, and +so mutually dependent upon each others' fidelity for success, that they +would become organized as permanent associations; bound together by that +kind of honor that prevails among thieves; and pledged by all their +interests, sympathies, and animosities, to mutual fidelity, and to +unceasing hostility to their opponents; and exerting all their arts and +all their resources of threats, injuries, promises, and bribes, to drive +or seduce from the other party enough to enable their own to retain or +acquire such a majority as would be necessary to gain their own suits, +and defeat the suits of their opponents. All the wealth and talent of +the country would become enlisted in the service of these rival +associations; and both would at length become so compact, so well +organized, so powerful, and yet always so much in need of recruits, +that a private person would be nearly or quite unable to obtain justice +in the most paltry suit with his neighbor, except on the condition of +joining one of these great litigating associations, who would agree to +carry through his cause, on condition of his assisting them to carry +through all the others, good and bad, which they had already undertaken. +If he refused this, they would threaten to make a similar offer to his +antagonist, and suffer their whole numbers to be counted against him. + +Now this picture is no caricature, but a true and honest likeness. And +such a system of administering justice, would be no more false, absurd, +or atrocious, than that system of working by majorities, which seeks to +accomplish, by legislation, the same ends which, in the case supposed, +would be accomplished by judicial decisions. + +Again, the doctrine that the minority ought to submit to the will of the +majority, proceeds, not upon the principle that government is formed by +voluntary association, and for an _agreed purpose_, on the part of all +who contribute to its support, but upon the presumption that all +government must be practically a state of war and plunder between +opposing parties; and that, in order to save blood, and prevent mutual +extermination, the parties come to an agreement that they will count +their respective numbers periodically, and the one party shall then be +permitted quietly to rule and plunder, (restrained only by their own +discretion,) and the other submit quietly to be ruled and plundered, +until the time of the next enumeration. + +Such an agreement may possibly be wiser than unceasing and deadly +conflict; it nevertheless partakes too much of the ludicrous to deserve +to be seriously considered as an expedient for the maintenance of civil +society. It would certainly seem that mankind might agree upon a +cessation of hostilities, upon more rational and equitable terms than +that of unconditional submission on the part of the less numerous body. +Unconditional submission is usually the last act of one who confesses +himself subdued and enslaved. How any one ever came to imagine that +condition to be one of freedom, has never been explained. And as for the +system being adapted to the maintenance of justice among men, it is a +mystery that any human mind could ever have been visited with an +insanity wild enough to originate the idea. + +If it be said that other corporations, than governments, surrender their +affairs into the hands of the majority, the answer is, that they allow +majorities to determine only trifling matters, that are in their nature +mere questions of discretion, and where there is no natural presumption +of justice or right on one side rather than the other. They _never_ +surrender to the majority the power to dispose of, or, what is +practically the same thing, to _determine_, the _rights_ of any +individual member. The _rights_ of every member are determined by the +written compact, to which all the members have voluntarily agreed. + +For example. A banking corporation allows a majority to determine such +questions of discretion as whether the note of A or of B shall be +discounted; whether notes shall be discounted on one, two, or six days +in the week; how many hours in a day their banking-house shall be kept +open; how many clerks shall be employed; what salaries they shall +receive, and such like matters, which are in their nature mere subjects +of discretion, and where there are no natural presumptions of justice or +right in favor of one course over the other. But no banking corporation +allows a majority, or any other number of its members less than the +whole, to divert the funds of the corporation to any other purpose than +the one to which _every member_ of the corporation has legally agreed +that they may be devoted; nor to take the stock of one member and give +it to another; nor to distribute the dividends among the stockholders +otherwise than to each one the proportion which he has agreed to accept, +and all the others have agreed that he shall receive. Nor does any +banking corporation allow a majority to impose taxes upon the members +for the payment of the corporate expenses, except in such proportions as +_every member_ has consented that they may be imposed. All these +questions, involving the _rights_ of the members as against each other, +are fixed by the articles of the association,--that is, by the agreement +to which _every member_ has personally assented. + +What is also specially to be noticed, and what constitutes a vital +difference between the banking corporation and the political +corporation, or government, is, that in case of controversy among the +members of the banking corporation, as to the _rights_ of any member, +the question is determined, not by any number, either majority, or +minority, of the corporation itself, _but by persons out of the +corporation_; by twelve men acting as jurors, or by other tribunals of +justice, of which no member of the corporation is allowed to be a part. +But in the case of the political corporation, controversies among the +parties to it, as to the rights of individual members, must of necessity +be settled by members of the corporation itself, because there are no +persons out of the corporation to whom the question can be referred. + +Since, then, all questions as to the _rights_ of the members of the +political corporation, must be determined by members of the corporation +itself, the trial by jury says that no man's _rights_,--neither his +right to his life, his liberty, nor his property,--shall be determined +by any such standard as the mere will and pleasure of majorities; but +only by the unanimous verdict of a tribunal fairly representing the +whole people,--that is, a tribunal of twelve men, taken, at random from +the whole body, and ascertained to be as impartial as the nature of the +case will admit, _and sworn to the observance of justice_. Such is the +difference in the two kinds of corporations; and the custom of managing +by majorities the mere discretionary matters of business corporations, +(the majority having no power to determine the _rights_ of any member,) +furnishes no analogy to the practice, adopted by political corporations, +of disposing of all the _rights_ of their members by the arbitrary will +of majorities. + +But further. The doctrine that the majority have a _right_ to rule, +proceeds upon the principle that minorities have no _rights_ in the +government; for certainly the minority cannot be said to have any +_rights_ in a government, so long as the majority alone determine what +their rights shall be. They hold everything, or nothing, as the case may +be, at the mere will of the majority. + +It is indispensable to a "_free_ government," (in the political sense of +that term,) that the minority, the weaker party, have a veto upon the +acts of the majority. Political liberty is liberty for the _weaker +party_ in a nation. It is only the weaker party that lose their +liberties, when a government becomes oppressive. The stronger party, in +all governments, are free by virtue of their superior strength. They +never oppress themselves. + +Legislation is the work of this stronger party; and if, in addition to +the sole power of legislating, they have the sole power of determining +what legislation shall be enforced, they have all power in their hands, +and the weaker party are the subjects of an absolute government. + +Unless the weaker party have a veto, either upon the making, or the +enforcement of laws, they have no power whatever in the government, and +can of course have no liberties except such as the stronger party, in +their arbitrary discretion, see fit to permit them to enjoy. + +In England and the United States, the trial by jury is the only +institution that gives the weaker party any veto upon the power of the +stronger. Consequently it is the only institution, that gives them any +effective voice in the government, or any guaranty against oppression. + +Suffrage, however free, is of no avail for this purpose; because the +suffrage of the minority is overborne by the suffrage of the majority, +and is thus rendered powerless for purposes of legislation. The +responsibility of officers can be made of no avail, because they are +responsible only to the majority. The minority, therefore, are wholly +without rights in the government, wholly at the mercy of the majority, +unless, through the trial by jury, they have a veto upon such +legislation as they think unjust. + +Government is established for the protection of the weak against the +strong. This is the principal, if not the sole, motive for the +establishment of all legitimate government. Laws, that are sufficient +for the protection of the weaker party, are of course sufficient for the +protection of the stronger party; because the strong can certainly need +no more protection than the weak. It is, therefore, right that the +weaker party should be represented in the tribunal which is finally to +determine what legislation may be enforced; and that no legislation +shall be enforced against their consent. They being presumed to be +competent judges of what kind of legislation makes for their safety, and +what for their injury, it must be presumed that any legislation, which +_they_ object to enforcing, tends to their oppression, and not to their +security. + +There is still another reason why the weaker party, or the minority, +should have a veto upon all legislation which they disapprove. _That +reason is, that that is the only means by which the government can be +kept within the limits of the contract, compact, or constitution, by +which the whole people agree to establish government._ If the majority +were allowed to interpret the compact for themselves, and enforce it +according to their own interpretation, they would, of course, make it +authorize them to do whatever they wish to do. + +The theory of free government is that it is formed by the voluntary +contract of the people individually with each other. This is the theory, +(although it is not, as it ought to be, the fact,) in all the +governments in the United States, as also in the government of England. +The theory assumes that each man, who is a party to the government, and +contributes to its support, has individually and freely consented to it. +Otherwise the government would have no right to tax him for its +support,--for taxation without consent is robbery. This theory, then, +necessarily supposes that this government, which is formed by the free +consent of all, has no powers except such as _all_ the parties to it +have individually agreed that it shall have; and especially that it has +no power to pass any _laws_, except such as _all_ the parties have +agreed that it may pass. + +This theory supposes that there may be certain laws that will be +beneficial to _all_,--so beneficial that _all_ consent to be taxed for +their maintenance. For the maintenance of these specific laws, in which +all are interested, all associate. And they associate for the +maintenance of those laws _only_, in which _all_ are interested. It +would be absurd to suppose that all would associate, and consent to be +taxed, for purposes which were beneficial only to a part; and especially +for purposes that were injurious to any. A government of the whole, +therefore, can have no powers except such as _all_ the parties consent +that it may have. It can do nothing except what _all_ have consented +that it may do. And if any portion of the people,--no matter how large +their number, if it be less than the whole,--desire a government for any +purposes other than those that are common to all, and desired by all, +they must form a separate association for those purposes. They have no +right,--by perverting this government of the whole, to the +accomplishment of purposes desired only by a part,--to compel any one to +contribute to purposes that are either useless or injurious to himself. + +Such being the principles on which the government is formed, the +question arises, how shall this government, when formed, be kept within +the limits of the contract by which it was established? How shall this +government, instituted by the whole people, agreed to by the whole +people, supported by the contributions of the whole people, be confined +to the accomplishment of those purposes alone, which the whole people +desire? How shall it be preserved from degenerating into a mere +government for the benefit of a part only of those who established, and +who support it? How shall it be prevented from even injuring a part of +its own members, for the aggrandizement of the rest? Its laws must be, +(or at least now are,) passed, and most of its other acts performed, by +mere agents,--agents chosen by a part of the people, and not by the +whole. How can these agents be restrained from seeking their own +interests, and the interests of those who elected them, at the expense +of the rights of the remainder of the people, by the passage and +enforcement of laws that shall be partial, unequal, and unjust in their +operation? That is the great question. And the trial by jury answers it. +And how does the trial by jury answer it? It answers it, as has already +been shown throughout this volume, by saying that these mere agents and +attorneys, who are chosen by a part only of the people, and are liable +to be influenced by partial and unequal purposes, shall not have +unlimited authority in the enactment and enforcement of laws; that they +shall not exercise _all_ the functions of government. It says that they +shall never exercise that ultimate power of compelling obedience to the +laws by punishing for disobedience, or of executing the laws against the +person or property of any man, without first getting the consent of the +people, through a tribunal that may fairly be presumed to represent the +whole, or substantially the whole, people. It says that if the power to +make laws, and the power also to enforce them, were committed to these +agents, they would have all power,--would be absolute masters of the +people, and could deprive them of their rights at pleasure. It says, +therefore, that the people themselves will hold a veto upon the +enforcement of any and every law, which these agents may enact, and that +whenever the occasion arises for them to give or withhold their +consent,--inasmuch as the whole people cannot assemble, or devote the +time and attention necessary to the investigation of each case,--twelve +of their number shall be taken by lot, or otherwise at random, from the +whole body; that they shall not be chosen by majorities, (the same +majorities that elected the agents who enacted the laws to be put in +issue,) nor by any interested or suspected party; that they shall not be +appointed by, or be in any way dependent upon, those who enacted the +law; that their opinions, whether for or against the law that is in +issue, shall not be inquired of beforehand; and that if these twelve men +give their consent to the enforcement of the law, their consent shall +stand for the consent of the whole. + +This is the mode, which the trial by jury provides, for keeping the +government within the limits designed by the whole people, who have +associated for its establishment. And it is the only mode, provided +either by the English or American constitutions, for the accomplishment +of that object. + +But it will, perhaps, be said that if the minority can defeat the will +of the majority, then the minority _rule_ the majority. But this is not +true in any unjust sense. The minority enact no laws of their own. They +simply refuse their assent to such laws of the majority as they do not +approve. The minority assume no authority over the majority; they simply +defend themselves. They do not interfere with the right of the majority +to seek their own happiness in their own way, so long as they (the +majority) do not interfere with the minority. They claim simply not to +be oppressed, and not to be compelled to assist in doing anything which +they do not approve. They say to the majority, "We will unite with you, +if you desire it, for the accomplishment of all those purposes, in +which we have a common interest with you. You can certainly expect us to +do nothing more. If you do not choose to associate with us on those +terms, there must be two separate associations. You must associate for +the accomplishment of your purposes; we for the accomplishment of ours." + +In this case, the minority assume no authority over the majority; they +simply refuse to surrender their own liberties into the hands of the +majority. They propose a union; but decline submission. The majority are +still at liberty to refuse the connection, and to seek their own +happiness in their own way, except that they cannot be gratified in +their desire to become absolute masters of the minority. + +But, it may be asked, how can the minority be trusted to enforce even +such legislation as is equal and just? The answer is, that they are as +reliable for that purpose as are the majority; they are as much presumed +to have associated, and are as likely to have associated, for that +object, as are the majority; and they have as much interest in such +legislation as have the majority. They have even more interest in it; +for, being the weaker party, they must rely on it for their +security,--having no other security on which they can rely. Hence their +consent to the establishment of government, and to the _taxation_ +required for its support, is _presumed_, (although it ought not to be +presumed,) without any express consent being given. This presumption of +their consent to be taxed for the maintenance of laws, would be absurd, +if they could not themselves be trusted to act in good faith in +enforcing those laws. And hence they cannot be presumed to have +consented to be taxed for the maintenance of any laws, except such as +they are themselves ready to aid in enforcing. It is therefore unjust to +tax them, unless they are eligible to seats in a jury, with power to +judge of the justice of the laws. Taxing them for the support of the +laws, on the assumption that they are in favor of the laws, and at the +same time refusing them the right, as jurors, to judge of the justice of +the laws, on the assumption that they are opposed to the laws, are flat +contradictions. + +But, it will be asked, what motive have the majority, when they have +all power in their own hands, to submit their will to the veto of the +minority? + +One answer is, that they have the motive of justice. It would be +_unjust_ to compel the minority to contribute, by taxation, to the +support of any laws which they did not approve. + +Another answer is, that if the stronger party wish to use their power +only for purposes of justice, they have no occasion to fear the veto of +the weaker party; for the latter have as strong motives for the +maintenance of _just_ government, as have the former. + +Another answer is, that if the stronger party use their power +_unjustly_, they will hold it by an uncertain tenure, especially in a +community where knowledge is diffused; for knowledge will enable the +weaker party to make itself in time the stronger party. It also enables +the weaker party, even while it remains the weaker party, perpetually to +annoy, alarm, and injure their oppressors. Unjust power,--or rather +power that is _grossly_ unjust, and that is known to be so by the +minority,--can be sustained only at the expense of standing armies, and +all the other machinery of force; for the oppressed party are always +ready to risk their lives for purposes of vengeance, and the acquisition +of their rights, whenever there is any tolerable chance of success. +Peace, safety, and quiet for all, can be enjoyed only under laws that +obtain the consent of all. Hence tyrants frequently yield to the demands +of justice from those weaker than themselves, as a means of buying peace +and safety. + +Still another answer is, that those who are in the majority on one law, +will be in the minority on another. All, therefore, need the benefit of +the veto, at some time or other, to protect themselves from injustice. + +That the limits, within which legislation would, by this process, be +confined, would be exceedingly narrow, in comparison with those it at +present occupies, there can be no doubt. All monopolies, all special +privileges, all sumptuary laws, all restraints upon any traffic, +bargain, or contract, that was naturally lawful,[117] all restraints +upon men's natural rights, the whole catalogue of _mala prohibita_, and +all taxation to which the taxed parties had not individually, severally, +and freely consented, would be at an end; because all such legislation +implies a violation of the rights of a greater or less minority. This +minority would disregard, trample upon, or resist, the execution of such +legislation, and then throw themselves upon a jury of the whole people +for justification and protection. In this way all legislation would be +nullified, except the legislation of that general nature which +impartially protected the rights, and subserved the interests, of all. +The only legislation that could be sustained, would probably be such as +tended directly to the maintenance of justice and liberty; such, for +example, as should contribute to the enforcement of contracts, the +protection of property, and the prevention and punishment of acts +intrinsically criminal. In short, government in practice would be +brought to the necessity of a strict adherence to natural law, and +natural justice, instead of being, as it now is, a great battle, in +which avarice and ambition are constantly fighting for and obtaining +advantages over the natural rights of mankind. + +[Footnote 117: Such as restraints upon banking, upon the rates of +interest, upon traffic with foreigners, &c., &c.] diff --git a/chapters/appendix.markdown b/chapters/appendix.markdown new file mode 100644 index 0000000..ab57418 --- /dev/null +++ b/chapters/appendix.markdown @@ -0,0 +1,127 @@ +APPENDIX. + +TAXATION. + + +It was a principle of the Common Law, as it is of the law of nature, and +of common sense, that no man can be taxed without his personal consent. +The Common Law knew nothing of that system, which now prevails in +England, of _assuming_ a man's own consent to be taxed, because some +pretended representative, whom he never authorized to act for him, has +taken it upon himself to consent that he may be taxed. That is one of +the many frauds on the Common Law, and the English constitution, which +have been introduced since Magna Carta. Having finally established +itself in England, it has been stupidly and servilely copied and +submitted to in the United States. + +If the trial by jury were reëstablished, the Common Law principle of +taxation would be reëstablished with it; for it is not to be supposed +that juries would enforce a tax upon an individual which he had never +agreed to pay. Taxation without consent is as plainly robbery, when +enforced against one man, as when enforced against millions; and it is +not to be imagined that juries could be blind to so self-evident a +principle. Taking a man's money without his consent, is also as much +robbery, when it is done by millions of men, acting in concert, and +calling themselves a government, as when it is done by a single +individual, acting on his own responsibility, and calling himself a +highwayman. Neither the numbers engaged in the act, nor the different +characters they assume as a cover for the act, alter the nature of the +act itself. + +If the government can take a man's money without his consent, there is +no limit to the additional tyranny it may practise upon him; for, with +his money, it can hire soldiers to stand over him, keep him in +subjection, plunder him at discretion, and kill him if he resists. And +governments always will do this, as they everywhere and always have done +it, except where the Common Law principle has been established. It is +therefore a first principle, a very _sine qua non_ of political freedom, +that a man can be taxed only by his personal consent. And the +establishment of this principle, with _trial by jury_, insures freedom +of course; because: 1. No man would pay his money unless he had first +contracted for such a government as he was willing to support; and, 2. +Unless the government then kept itself within the terms of its contract, +juries would not enforce the payment of the tax. Besides, the agreement +to be taxed would probably be entered into but for a year at a time. If, +in that year, the government proved itself either inefficient or +tyrannical, to any serious degree, the contract would not be renewed. +The dissatisfied parties, if sufficiently numerous for a new +organization, would form themselves into a separate association for +mutual protection. If not sufficiently numerous for that purpose, those +who were conscientious would forego all governmental protection, rather +than contribute to the support of a government which they deemed unjust. + +All legitimate government is a mutual insurance company, voluntarily +agreed upon by the parties to it, for the protection of their rights +against wrong-doers. In its voluntary character it is precisely similar +to an association for mutual protection against fire or shipwreck. +Before a man will join an association for these latter purposes, and pay +the premium for being insured, he will, if he be a man of sense, look at +the articles of the association; see what the company promises to do; +what it is likely to do; and what are the rates of insurance. If he be +satisfied on all these points, he will become a member, pay his premium +for a year, and then hold the company to its contract. If the conduct of +the company prove unsatisfactory, he will let his policy expire at the +end of the year for which he has paid; will decline to pay any further +premiums, and either seek insurance elsewhere, or take his own risk +without any insurance. And as men act in the insurance of their ships +and dwellings, they would act in the insurance of their properties, +liberties and lives, in the political association, or government. + +The political insurance company, or government, have no more right, in +nature or reason, to _assume_ a man's consent to be protected by them, +and to be taxed for that protection, when he has given no actual +consent, than a fire or marine insurance company have to assume a man's +consent to be protected by them, and to pay the premium, when his actual +consent has never been given. To take a man's property without his +consent is robbery; and to assume his consent, where no actual consent +is given, makes the taking none the less robbery. If it did, the +highwayman has the same right to assume a man's consent to part with his +purse, that any other man, or body of men, can have. And his assumption +would afford as much moral justification for his robbery as does a like +assumption, on the part of the government, for taking a man's property +without his consent. The government's pretence of protecting him, as an +equivalent for the taxation, affords no justification. It is for himself +to decide whether he desires such protection as the government offers +him. If he do not desire it, or do not bargain for it, the government +has no more right than any other insurance company to impose it upon +him, or make him pay for it. + +Trial by the country, and no taxation without consent, were the two +pillars of English liberty, (when England had any liberty,) and the +first principles of the Common Law. They mutually sustain each other; +and neither can stand without the other. Without both, no people have +any guaranty for their freedom; with both, no people can be otherwise +than free.[118] + +By what force, fraud, and conspiracy, on the part of kings, nobles, and +"a few wealthy freeholders," these pillars have been prostrated in +England, it is designed to show more fully in the next volume, if it +should be necessary. + +[Footnote 118: Trial by the country, and no taxation without consent, +mutually sustain each other, and can be sustained only by each other, +for these reasons: 1. Juries would refuse to enforce a tax against a man +who had never agreed to pay it. They would also protect men in forcibly +resisting the collection of taxes to which they had never consented. +Otherwise the jurors would authorize the government to tax themselves +without their consent,--a thing which no jury would be likely to do. In +these two ways, then, trial by the country would sustain the principle +of no taxation without consent. 2. On the other hand, the principle of +no taxation without consent would sustain the trial by the country, +because men in general would not consent to be taxed for the support of +a government under which trial by the country was not secured. Thus +these two principles mutually sustain each other. + +But, if either of these principles were broken down, the other would +fall with it, and for these reasons: 1. If trial by the country were +broken down, the principle of no taxation without consent would fall +with it, because the government would then be _able_ to tax the people +without their consent, inasmuch as the legal tribunals would be mere +tools of the government, and would enforce such taxation, and punish men +for resisting such taxation, as the government ordered. 2. On the other +hand, if the principle of no taxation without consent were broken down, +trial by the country would fall with it, because the government, if it +could tax people without their consent, would, of course, take enough of +their money to enable it to employ all the force necessary for +sustaining its own tribunals, (in the place of juries,) and carrying +their decrees into execution.] diff --git a/edit-chapters.go b/edit-chapters.go new file mode 100644 index 0000000..3d96c7a --- /dev/null +++ b/edit-chapters.go @@ -0,0 +1,93 @@ +// This is all because I don't want to deal with double-escaping regex special +// characters in sh. +package main + +import ( + "log" + "os" + "path/filepath" + "regexp" +) + +func mapSlice[A, B any](f func(A) B, a []A) []B { + b := make([]B, len(a)) + for i := range b { + b[i] = f(a[i]) + } + return b +} + +type Replacer struct { + re *regexp.Regexp + replacement string +} + +func compile(raw [2]string) Replacer { + return Replacer{ + re: regexp.MustCompile(raw[0]), + replacement: raw[1], + } +} + +var replacers = mapSlice(compile, [][2]string{ + // Chapter titles + {`CHAPTER [IVX]+\.` + "\n\n" + `(.*)\.`, `# $1`}, + + // Section titles + {`(?ms)SECTION [IVX]+\.\n\n_([^_]+)\._`, `## $1`}, + + // Untitled sections + {`SECTION [IVX]+\.`, `

`}, + + // Em dashes + {"--", "—"}, + + // Left double typographical quote + {`"(\w|_\w)`, `“$1`}, + + // Right double typographical quote + {`"`, `”`}, + + // Footnote superscripts + {`\[(\d+)\]`, `[^$1]`}, + + // Left single typographical quote + {`([^\pL])'(\pL|_)`, `$1‘$2`}, + {`(?m)^'`, `‘`}, + + // Right single typographical quote + {`'`, `’`}, + + // Block quotes + {`(?m)^ +(\S)`, `> $1`}, +}) + +func run() error { + paths, err := filepath.Glob("chapters/*.markdown") + if err != nil { + return err + } + for _, path := range paths { + b, err := os.ReadFile(path) + if err != nil { + return err + } + var edited = b + for _, r := range replacers { + edited = r.re.ReplaceAll(edited, []byte(r.replacement)) + } + outpath := filepath.Join("edited", filepath.Base(path)) + err = os.WriteFile(outpath, edited, 0666) + if err != nil { + return err + } + } + return nil +} + +func main() { + err := run() + if err != nil { + log.Fatal(err) + } +} diff --git a/edited/01.markdown b/edited/01.markdown new file mode 100644 index 0000000..ee02e3a --- /dev/null +++ b/edited/01.markdown @@ -0,0 +1,605 @@ +# THE RIGHT OF JURIES TO JUDGE OF THE JUSTICE OF LAWS + + +

+ +For more than six hundred years—that is, since Magna Carta, in +1215—there has been no clearer principle of English or American +constitutional law, than that, in criminal cases, it is not only the +right and duty of juries to judge what are the facts, what is the law, +and what was the moral intent of the accused; _but that it is also their +right, and their primary and paramount duty, to judge of the justice of +the law, and to hold all laws invalid, that are, in their opinion, +unjust or oppressive, and all persons guiltless in violating, or +resisting the execution of, such laws_. + +Unless such be the right and duty of jurors, it is plain that, instead +of juries being a “palladium of liberty”—a barrier against the tyranny +and oppression of the government—they are really mere tools in its +hands, for carrying into execution any injustice and oppression it may +desire to have executed. + +But for their right to judge of the law, _and the justice of the law_, +juries would be no protection to an accused person, _even as to matters +of fact_; for, if the government can dictate to a jury any law whatever, +in a criminal case, it can certainly dictate to them the laws of +evidence. That is, it can dictate what evidence is admissible, and what +inadmissible, _and also what force or weight is to be given to the +evidence admitted_. And if the government can thus dictate to a jury the +laws of evidence, it can not only make it necessary for them to convict +on a partial exhibition of the evidence rightfully pertaining to the +case, but it can even require them to convict on any evidence whatever +that it pleases to offer them. + +That the rights and duties of jurors must necessarily be such as are +here claimed for them, will be evident when it is considered what the +trial by jury is, and what is its object. + +_“The trial by jury,” then, is a “trial by the country”—that is, by the +people—as distinguished from a trial by the government._ + +It was anciently called “trial _per pais_”—that is, “trial by the +country.” And now, in every criminal trial, the jury are told that the +accused “has, for trial, put himself upon the _country_; which _country_ +you (the jury) are.” + +_The object of this trial “by the country” or by the people, in +preference to a trial by the government, is to guard against every +species of oppression by the government. In order to effect this end, it +is indispensable that the people, or “the country,” judge of and +determine their own liberties against the government; instead of the +government’s judging of and determining its own powers over the people. +How is it possible that juries can do anything to protect the liberties +of the people against the government, if they are not allowed to +determine what those liberties are?_ + +Any government, that is its own judge of, and determines authoritatively +for the people, what are its own powers over the people, is an absolute +government of course. It has all the powers that it chooses to exercise. +There is no other—or at least no more accurate—definition of a +despotism than this. + +On the other hand, any people, that judge of, and determine +authoritatively for the government, what are their own liberties against +the government, of course retain all the liberties they wish to enjoy. +_And this is freedom._ At least, it is freedom _to them_; because, +although it may be theoretically imperfect, it, nevertheless, +corresponds to _their_ highest notions of freedom. + +To secure this right of the people to judge of their own liberties +against the government, the jurors are taken, (or must be, to make them +lawful jurors,) from the body of the people, _by lot_, or by some +process that precludes any previous knowledge, choice, or selection of +them, on the part of the government. This is done to prevent the +government’s constituting a jury of its own partisans or friends; in +other words, to prevent the government’s _packing_ a jury, with a view +to maintain its own laws, and accomplish its own purposes. + +It is supposed that, if twelve men be taken, _by lot_, from the mass of +the people, without the possibility of any previous knowledge, choice, +or selection of them, on the part of the government, the jury will be a +fair epitome of “the country” at large, and not merely of the party or +faction that sustain the measures of the government; that substantially +all classes of opinions, prevailing among the people, will be +represented in the jury; and especially that the opponents of the +government, (if the government have any opponents,) will be represented +there, as well as its friends; that the classes, who are oppressed by +the laws of the government, (if any are thus oppressed,) will have their +representatives in the jury, as well as those classes, who take sides +with the oppressor—that is, with the government. + +It is fairly presumable that such a tribunal will agree to no conviction +except such as _substantially the whole country_ would agree to, if they +were present, taking part in the trial. A trial by such a tribunal is, +therefore, in effect, “a trial by the country.” In its results it +probably comes as near to a trial by the _whole_ country, as any trial +that it is practicable to have, without too great inconvenience and +expense. And as unanimity is required for a conviction, it follows that +no one can be convicted, except for the violation of such laws as +substantially the whole country wish to have maintained. The government +can enforce none of its laws, (by punishing offenders, through the +verdicts of juries,) except such as substantially the whole people wish +to have enforced. The government, therefore, consistently with the trial +by jury, can exercise no powers over the people, (or, what is the same +thing, over the accused person, who represents the rights of the +people,) except such as substantially the whole people of the country +consent that it may exercise. In such a trial, therefore, “the country,” +or the people, judge of and determine their own liberties against the +government, instead of the government’s judging of and determining its +own powers over the people. + +But all this “trial by the country” would be no trial at all “by the +country,” but only a trial by the government, if the government could +either declare who may, and who may not, be jurors, or could dictate to +the jury anything whatever, either of law or evidence, that is of the +essence of the trial. + +If the government may decide who may, and who may not, be jurors, it +will of course select only its partisans, and those friendly to its +measures. It may not only prescribe who may, and who may not, be +eligible to be drawn as jurors; but it may also question each person +drawn as a juror, as to his sentiments in regard to the particular law +involved in each trial, before suffering him to be sworn on the panel; +and exclude him if he be found unfavorable to the maintenance of such a +law.[^1] + +So, also, if the government may dictate to the jury _what laws they are +to enforce_, it is no longer a “trial by the country,” but a trial by +the government; because the jury then try the accused, not by any +standard of their own—not by their own judgments of their rightful +liberties—but by a standard dictated to them by the government. And the +standard, thus dictated by the government, becomes the measure of the +people’s liberties. If the government dictate the standard of trial, it +of course dictates the results of the trial. And such a trial is no +trial by the country, but only a trial by the government; and in it the +government determines what are its own powers over the people, instead +of the people’s determining what are their own liberties against the +government. In short, if the jury have no right to judge of the justice +of a law of the government, they plainly can do nothing to protect the +people against the oppressions of the government; for there are no +oppressions which the government may not authorize by law. + +The jury are also to judge whether the laws are rightly expounded to +them by the court. Unless they judge on this point, they do nothing to +protect their liberties against the oppressions that are capable of +being practised under cover of a corrupt exposition of the laws. If the +judiciary can authoritatively dictate to a jury any exposition of the +law, they can dictate to them the law itself, and such laws as they +please; because laws are, in practice, one thing or another, according +as they are expounded. + +The jury must also judge whether there really be any such law, (be it +good or bad,) as the accused is charged with having transgressed. Unless +they judge on this point, the people are liable to have their liberties +taken from them by brute force, without any law at all. + +The jury must also judge of the laws of evidence. If the government can +dictate to a jury the laws of evidence, it can not only shut out any +evidence it pleases, tending to vindicate the accused, but it can +require that any evidence whatever, that it pleases to offer, be held as +conclusive proof of any offence whatever which the government chooses to +allege. + +It is manifest, therefore, that the jury must judge of and try the whole +case, and every part and parcel of the case, free of any dictation or +authority on the part of the government. They must judge of the +existence of the law; of the true exposition of the law; _of the justice +of the law_; and of the admissibility and weight of all the evidence +offered; otherwise the government will have everything its own way; the +jury will be mere puppets in the hands of the government; and the trial +will be, in reality, a trial by the government, and not a “trial by the +country.” By such trials the government will determine its own powers +over the people, instead of the people’s determining their own liberties +against the government; and it will be an entire delusion to talk, as +for centuries we have done, of the trial by jury, as a “palladium of +liberty,” or as any protection to the people against the oppression and +tyranny of the government. + +The question, then, between trial by jury, as thus described, and trial +by the government, is simply a question between liberty and despotism. +The authority to judge what are the powers of the government, and what +the liberties of the people, must necessarily be vested in one or the +other of the parties themselves—the government, or the people; because +there is no third party to whom it can be entrusted. If the authority be +vested in the government, the government is absolute, and the people +have no liberties except such as the government sees fit to indulge them +with. If, on the other hand, that authority be vested in the people, +then the people have all liberties, (as against the government,) except +such as substantially the whole people (through a jury) choose to +disclaim; and the government can exercise no power except such as +substantially the whole people (through a jury) consent that it may +exercise. + + +

+ +The force and justice of the preceding argument cannot be evaded by +saying that the government is chosen by the people; that, in theory, it +represents the people; that it is designed to do the will of the people; +that its members are all sworn to observe the fundamental or +constitutional law instituted by the people; that its acts are therefore +entitled to be considered the acts of the people; and that to allow a +jury, representing the people, to invalidate the acts of the government, +would therefore be arraying the people against themselves. + +There are two answers to such an argument. + +One answer is, that, in a representative government, there is no +absurdity or contradiction, nor any arraying of the people against +themselves, in requiring that the statutes or enactments of the +government shall pass the ordeal of any number of separate tribunals, +before it shall be determined that they are to have the force of laws. +Our American constitutions have provided five of these separate +tribunals, to wit, representatives, senate, executive,[^2] jury, and +judges; and have made it necessary that each enactment shall pass the +ordeal of all these separate tribunals, before its authority can be +established by the punishment of those who choose to transgress it. And +there is no more absurdity or inconsistency in making a jury one of +these several tribunals, than there is in making the representatives, or +the senate, or the executive, or the judges, one of them. There is no +more absurdity in giving a jury a veto upon the laws, than there is in +giving a veto to each of these other tribunals. The people are no more +arrayed against themselves, when a jury puts its veto upon a statute, +which the other tribunals have sanctioned, than they are when the same +veto is exercised by the representatives, the senate, the executive, or +the judges. + +But another answer to the argument that the people are arrayed against +themselves, when a jury hold an enactment of the government invalid, is, +that the government, and all the departments of the government, _are +merely the servants and agents of the people_; not invested with +arbitrary or absolute authority to bind the people, but required to +submit all their enactments to the judgment of a tribunal more fairly +representing the whole people, before they carry them into execution, by +punishing any individual for transgressing them. If the government were +not thus required to submit their enactments to the judgment of “the +country,” before executing them upon individuals—if, in other words, +the people had reserved to themselves no veto upon the acts of the +government, the government, instead of being a mere servant and agent of +the people, would be an absolute despot over the people. It would have +all power in its own hands; because the power to _punish_ carries all +other powers with it. A power that can, of itself, and by its own +authority, punish disobedience, can compel obedience and submission, and +is above all responsibility for the character of its laws. In short, it +is a despotism. + +And it is of no consequence to inquire how a government came by this +power to punish, whether by prescription, by inheritance, by usurpation, +or by delegation from the people? _If it have now but got it_, the +government is absolute. + +It is plain, therefore, that if the people have invested the government +with power to make laws that absolutely bind the people, and to punish +the people for transgressing those laws, the people have surrendered +their liberties unreservedly into the hands of the government. + +It is of no avail to say, in answer to this view of the case, that in +surrendering their liberties into the hands of the government, the +people took an oath from the government, that it would exercise its +power within certain constitutional limits; for when did oaths ever +restrain a government that was otherwise unrestrained? Or when did a +government fail to determine that all its acts were within the +constitutional and authorized limits of its power, if it were permitted +to determine that question for itself? + +Neither is it of any avail to say, that, if the government abuse its +power, and enact unjust and oppressive laws, the government may be +changed by the influence of discussion, and the exercise of the right of +suffrage. Discussion can do nothing to prevent the enactment, or procure +the repeal, of unjust laws, unless it be understood that the discussion +is to be followed by resistance. Tyrants care nothing for discussions +that are to end only in discussion. Discussions, which do not interfere +with the enforcement of their laws, are but idle wind to them. Suffrage +is equally powerless and unreliable. It can be exercised only +periodically; and the tyranny must at least be borne until the time for +suffrage comes. Besides, when the suffrage is exercised, it gives no +guaranty for the repeal of existing laws that are oppressive, and no +security against the enactment of new ones that are equally so. The +second body of legislators are liable and likely to be just as +tyrannical as the first. If it be said that the second body may be +chosen for their integrity, the answer is, that the first were chosen +for that very reason, and yet proved tyrants. The second will be exposed +to the same temptations as the first, and will be just as likely to +prove tyrannical. Who ever heard that succeeding legislatures were, on +the whole, more honest than those that preceded them? What is there in +the nature of men or things to make them so? If it be said that the first +body were chosen from motives of injustice, that fact proves that there is +a portion of society who desire to establish injustice; and if they were +powerful or artful enough to procure the election of their instruments to +compose the first legislature, they will be likely to be powerful or +artful enough to procure the election of the same or similar instruments +to compose the second. The right of suffrage, therefore, and even a change +of legislators, guarantees no change of legislation—certainly no change +for the better. Even if a change for the better actually comes, it comes +too late, because it comes only after more or less injustice has been +irreparably done. + +But, at best, the right of suffrage can be exercised only periodically; +and between the periods the legislators are wholly irresponsible. No +despot was ever more entirely irresponsible than are republican +legislators during the period for which they are chosen. They can +neither be removed from their office, nor called to account while in +their office, nor punished after they leave their office, be their +tyranny what it may. Moreover, the judicial and executive departments of +the government are equally irresponsible _to the people_, and are only +responsible, (by impeachment, and dependence for their salaries), to +these irresponsible legislators. This dependence of the judiciary and +executive upon the legislature is a guaranty that they will always +sanction and execute its laws, whether just or unjust. Thus the +legislators hold the whole power of the government in their hands, and +are at the same time utterly irresponsible for the manner in which they +use it. + +If, now, this government, (the three branches thus really united in +one), can determine the validity of, and enforce, its own laws, it is, +for the time being, entirely absolute, and wholly irresponsible to the +people. + +But this is not all. These legislators, and this government, so +irresponsible while in power, can perpetuate their power at pleasure, if +they can determine what legislation is authoritative upon the people, +and can enforce obedience to it; for they can not only declare their +power perpetual, but they can enforce submission to all legislation that +is necessary to secure its perpetuity. They can, for example, prohibit +all discussion of the rightfulness of their authority; forbid the use of +the suffrage; prevent the election of any successors; disarm, plunder, +imprison, and even kill all who refuse submission. If, therefore, the +government (all departments united) be absolute for a day—that is, if +it can, for a day, enforce obedience to its own laws—it can, in that +day, secure its power for all time—like the queen, who wished to reign +but for a day, but in that day caused the king, her husband, to be +slain, and usurped his throne. + +Nor will it avail to say that such acts would be unconstitutional, and +that unconstitutional acts may be lawfully resisted; for everything a +government pleases to do will, of course, be determined to be +constitutional, if the government itself be permitted to determine the +question of the constitutionality of its own acts. Those who are capable +of tyranny, are capable of perjury to sustain it. + +The conclusion, therefore, is, that any government, that can, _for a +day_, enforce its own laws, without appealing to the people, (or to a +tribunal fairly representing the people,) for their consent, is, in +theory, an absolute government, irresponsible to the people, and can +perpetuate its power at pleasure. + +The trial by jury is based upon a recognition of this principle, and +therefore forbids the government to execute any of its laws, by +punishing violators, in any case whatever, without first getting the +consent of “the country,” or the people, through a jury. In this way, +the people, at all times, hold their liberties in their own hands, and +never surrender them, even for a moment, into the hands of the +government. + +The trial by jury, then, gives to any and every individual the liberty, +at any time, to disregard or resist any law whatever of the government, +if he be willing to submit to the decision of a jury, the questions, +whether the law be intrinsically just and obligatory? and whether his +conduct, in disregarding or resisting it, were right in itself? And any +law, which does not, in such trial, obtain the unanimous sanction of +twelve men, taken at random from the people, and judging according to +the standard of justice in their own minds, free from all dictation and +authority of the government, may be transgressed and resisted with +impunity, by whomsoever pleases to transgress or resist it.[^3] + +The trial by jury authorizes all this, or it is a sham and a hoax, +utterly worthless for protecting the people against oppression. If it do +not authorize an individual to resist the first and least act of +injustice or tyranny, on the part of the government, it does not +authorize him to resist the last and the greatest. If it do not +authorize individuals to nip tyranny in the bud, it does not authorize +them to cut it down when its branches are filled with the ripe fruits of +plunder and oppression. + +Those who deny the right of a jury to protect an individual in resisting +an unjust law of the government, deny him all _legal_ defence +whatsoever against oppression. The right of revolution, which tyrants, +in mockery, accord to mankind, is no _legal_ right _under_ a government; +it is only a _natural_ right to overturn a government. The government +itself never acknowledges this right. And the right is practically +established only when and because the government no longer exists to +call it in question. The right, therefore, can be exercised with +impunity, only when it is exercised victoriously. All _unsuccessful_ +attempts at revolution, however justifiable in themselves, are punished +as treason, if the government be permitted to judge of the treason. The +government itself never admits the injustice of its laws, as a legal +defence for those who have attempted a revolution, and failed. The right +of revolution, therefore, is a right of no practical value, except for +those who are stronger than the government. So long, therefore, as the +oppressions of a government are kept within such limits as simply not to +exasperate against it a power greater than its own, the right of +revolution cannot be appealed to, and is therefore inapplicable to the +case. This affords a wide field for tyranny; and if a jury cannot _here_ +intervene, the oppressed are utterly defenceless. + +It is manifest that the only security against the tyranny of the +government lies in forcible resistance to the execution of the +injustice; because the injustice will certainly be executed, _unless it +be forcibly resisted_. And if it be but suffered to be executed, it must +then be borne; for the government never makes compensation for its own +wrongs. + +Since, then, this forcible resistance to the injustice of the government +is the only possible means of preserving liberty, it is indispensable to +all _legal_ liberty that this _resistance_ should be _legalized_. It is +perfectly self-evident that where there is no _legal_ right to resist +the oppression of the government, there can be no _legal_ liberty. And +here it is all-important to notice, that, _practically speaking_, there +can be no _legal_ right to resist the oppressions of the government, +unless there be some _legal_ tribunal, other than the government, and +wholly independent of, and _above_, the government, to judge between the +government and those who resist its oppressions; in other words, to +judge what laws of the government are to be obeyed, and what may be +resisted and held for nought. The only tribunal known to our laws, for +this purpose, is a jury. If a jury have not the right to judge between +the government and those who disobey its laws, and resist its +oppressions, the government is absolute, and the people, _legally +speaking_, are slaves. Like many other slaves they may have sufficient +courage and strength to keep their masters somewhat in check; but they +are nevertheless _known to the law_ only as slaves. + +That this right of resistance was recognized as a common law right, when +the ancient and genuine trial by jury was in force, is not only proved +by the nature of the trial itself, but is acknowledged by history.[^4] + +This right of resistance is recognized by the constitution of the United +States, as a strictly legal and constitutional right. It is so +recognized, first by the provision that “the trial of all crimes, except +in cases of impeachment, shall be by jury”—that is, by the country—and +not by the government; secondly, by the provision that “the right of the +people to keep and bear arms shall not be infringed.” This +constitutional security for “the right to keep and bear arms,” implies +the right to use them—as much as a constitutional security for the +right to buy and keep food would have implied the right to eat it. The +constitution, therefore, takes it for granted that the people will +judge of the conduct of the government, and that, as they have the +right, they will also have the sense, to use arms, whenever the +necessity of the case justifies it. And it is a sufficient and _legal_ +defence for a person accused of using arms against the government, if he +can show, to the satisfaction of a jury, _or even any one of a jury_, +that the law he resisted was an unjust one. + +In the American _State_ constitutions also, this right of resistance to +the oppressions of the government is recognized, in various ways, as a +natural, legal, and constitutional right. In the first place, it is so +recognized by provisions establishing the trial by jury; thus requiring +that accused persons shall be tried by “the country,” instead of the +government. In the second place, it is recognized by many of them, as, +for example, those of Massachusetts, Maine, Vermont, Connecticut, +Pennsylvania, Ohio, Indiana, Michigan, Kentucky, Tennessee, Arkansas, +Mississippi, Alabama, and Florida, by provisions expressly declaring +that the people shall have the right to bear arms. In many of them also, +as, for example, those of Maine, New Hampshire, Vermont, Massachusetts, +New Jersey, Pennsylvania, Delaware, Ohio, Indiana, Illinois, Florida, +Iowa, and Arkansas, by provisions, in their bills of rights, declaring +that men have a natural, inherent, and inalienable right of “_defending_ +their lives and liberties.” This, of course, means that they have a +right to defend them against any injustice _on the part of the +government_, and not merely on the part of private individuals; because +the object of all bills of rights is to assert the rights of individuals +and the people, _as against the government_, and not as against private +persons. It would be a matter of ridiculous supererogation to assert, in +a constitution of government, the natural right of men to defend their +lives and liberties against private trespassers. + +Many of these bills of rights also assert the natural right of all men +to protect their property—that is, to protect it _against the +government_. It would be unnecessary and silly indeed to assert, in a +constitution of government, the natural right of individuals to protect +their property against thieves and robbers. + +The constitutions of New Hampshire and Tennessee also declare that “The +doctrine of non-resistance against arbitrary power and oppression is +absurd, slavish, and destructive of the good and happiness of mankind.” + +The legal effect of these constitutional recognitions of the right of +individuals to defend their property, liberties, and lives, against the +government, is to legalize resistance to all injustice and oppression, +of every name and nature whatsoever, on the part of the government. + +But for this right of resistance, on the part of the people, all +governments would become tyrannical to a degree of which few people are +aware. Constitutions are utterly worthless to restrain the tyranny of +governments, unless it be understood that the people will, by force, +compel the government to keep within the constitutional limits. +Practically speaking, no government knows any limits to its power, +except the endurance of the people. But that the people are stronger +than the government, and will resist in extreme cases, our governments +would be little or nothing else than organized systems of plunder and +oppression. All, or nearly all, the advantage there is in fixing any +constitutional limits to the power of a government, is simply to give +notice to the government of the point at which it will meet with +resistance. If the people are then as good as their word, they may keep +the government within the bounds they have set for it; otherwise it will +disregard them—as is proved by the example of all our American +governments, in which the constitutions have all become obsolete, at the +moment of their adoption, for nearly or quite all purposes except the +appointment of officers, who at once become practically absolute, except +so far as they are restrained by the fear of popular resistance. + +The bounds set to the power of the government, by the trial by jury, as +will hereafter be shown, are these—that the government shall never +touch the property, person, or natural or civil rights of an individual, +against his consent, (except for the purpose of bringing them before a +jury for trial,) unless in pursuance and _execution_ of a judgment, or +decree, rendered by a jury in each individual case, upon such evidence, +and such law, as are satisfactory to their own understandings and +consciences, irrespective of all legislation of the government. + +[Footnote 1: To show that this supposition is not an extravagant one, it +may be mentioned that courts have repeatedly questioned jurors to +ascertain whether they were prejudiced _against the government_—that +is, whether they were in favor of, or opposed to, such laws of the +government as were to be put in issue in the then pending trial. This +was done (in 1851) in the United States District Court for the District +of Massachusetts, by Peleg Sprague, the United States district judge, in +empanelling three several juries for the trials of Scott, Hayden, and +Morris, charged with having aided in the rescue of a fugitive slave from +the custody of the United States deputy marshal. This judge caused the +following question to be propounded to all the jurors separately; and +those who answered unfavorably for the purposes of the government, were +excluded from the panel. + +> “Do you hold any opinions upon the subject of the Fugitive Slave Law, +> so called, which will induce you to refuse to convict a person +> indicted under it, if the facts set forth in the indictment, _and +> constituting the offence_, are proved against him, and the court +> direct you that the law is constitutional?” + +The reason of this question was, that “the Fugitive Slave Law, so +called,” was so obnoxious to a large portion of the people, as to render +a conviction under it hopeless, if the jurors were taken +indiscriminately from among the people. + +A similar question was soon afterwards propounded to the persons drawn +as jurors in the United States _Circuit_ Court for the District of +Massachusetts, by Benjamin R. Curtis one of the Justices of the Supreme +Court of the United States, in empanelling a jury for the trial of the +aforesaid Morris on the charge before mentioned; and those who did not +answer the question favorably for the government were again excluded +from the panel. + +It has also been an habitual practice with the Supreme Court of +Massachusetts, in empanelling juries for the trial of _capital_ +offences, to inquire of the persons drawn as jurors whether they had any +conscientious scruples against finding verdicts of guilty in such cases; +that is, whether they had any conscientious scruples against sustaining +the law prescribing death as the punishment of the crime to be tried; +and to exclude from the panel all who answered in the affirmative. + +The only principle upon which these questions are asked, is this—that +no man shall be allowed to serve as juror, unless he be ready to enforce +any enactment of the government, however cruel or tyrannical it may be. + +What is such a jury good for, as a protection against the tyranny of the +government? A jury like that is palpably nothing but a mere tool of +oppression in the hands of the government. A trial by such a jury is +really a trial by the government itself—and not a trial by the +country—because it is a trial only by men specially selected by the +government for their readiness to enforce its own tyrannical measures. + +If that be the true principle of the trial by jury, the trial is utterly +worthless as a security to liberty. The Czar might, with perfect safety +to his authority, introduce the trial by jury into Russia, if he could +but be permitted to select his jurors from those who were ready to +maintain his laws, without regard to their injustice. + +This example is sufficient to show that the very pith of the trial by +jury, as a safeguard to liberty, consists in the jurors being taken +indiscriminately from the whole people, and in their right to hold +invalid all laws which they think unjust.] + +[Footnote 2: The executive has a qualified veto upon the passage of +laws, in most of our governments, and an absolute veto, in all of them, +upon the execution of any laws which he deems unconstitutional; because +his oath to support the constitution (as he understands it) forbids him +to execute any law that he deems unconstitutional.] + +[Footnote 3: And if there be so much as a reasonable _doubt_ of the +justice of the laws, the benefit of that doubt must be given to the +defendant, and not to the government. So that the government must keep +its laws _clearly_ within the limits of justice, if it would ask a jury +to enforce them.] + +[Footnote 4: _Hallam_ says, “The relation established between a lord and +his vassal by the feudal tenure, far from containing principles of any +servile and implicit obedience, permitted the compact to be dissolved in +case of its violation by either party. This extended as much to the +sovereign as to inferior lords. * * If a vassal was aggrieved, and if +justice was denied him, he sent a defiance, that is, a renunciation of +fealty to the king, and was entitled to enforce redress at the point of +his sword. It then became a contest of strength as between two +independent potentates, and was terminated by treaty, advantageous or +otherwise, according to the fortune of war. * * There remained the +original principle, that allegiance depended conditionally upon good +treatment, and that an appeal might be _lawfully_ made to arms against +an oppressive government. Nor was this, we may be sure, left for extreme +necessity, or thought to require a long-enduring forbearance. In modern +times, a king, compelled by his subjects’ swords to abandon any +pretension, would be supposed to have ceased to reign; and the express +recognition of such a right as that of insurrection has been justly +deemed inconsistent with the majesty of law. But ruder ages had ruder +sentiments. Force was necessary to repel force; and men accustomed to +see the king’s authority defied by a private riot, were not much shocked +when it was resisted in defence of public freedom.”—_3 Middle Ages_, +240-2.] diff --git a/edited/02.markdown b/edited/02.markdown new file mode 100644 index 0000000..64cfa73 --- /dev/null +++ b/edited/02.markdown @@ -0,0 +1,1388 @@ +# THE TRIAL BY JURY, AS DEFINED BY MAGNA CARTA + + +That the trial by jury is all that has been claimed for it in the +preceding chapter, is proved both by the history and the language of the +Great Charter of English Liberties, to which we are to look for a true +definition of the trial by jury, and of which the guaranty for that +trial is the vital, and most memorable, part. + + +## The History of Magna Carta + +In order to judge of the object and meaning of that chapter of Magna +Carta which secures the trial by jury, it is to be borne in mind that, +at the time of Magna Carta, the king (with exceptions immaterial to this +discussion, but which will appear hereafter) was, constitutionally, the +entire government; the sole _legislative_, _judicial_, and executive +power of the nation. The executive and judicial officers were merely his +servants, appointed by him, and removable at his pleasure. In addition +to this, “the king himself often sat in his court, which always attended +his person. He there heard causes, and pronounced judgment; and though +he was assisted by the advice of other members, it is not to be imagined +that a decision could be obtained contrary to his inclination or +opinion.”[^5] Judges were in those days, and afterwards, such abject +servants of the king, that “we find that King Edward I. (1272 to 1307) +fined and imprisoned his judges, in the same manner as Alfred the Great, +among the Saxons, had done before him, by the sole exercise of his +authority.”[^6] + +Parliament, so far as there was a parliament, was a mere _council_ of +the king.[^7] It assembled only at the pleasure of the king; sat only +during his pleasure; and when sitting had no power, so far as _general_ +legislation was concerned, beyond that of simply _advising_ the king. +The only legislation to which their assent was constitutionally +necessary, was demands for money and military services for +_extraordinary_ occasions. Even Magna Carta itself makes no provisions +whatever for any parliaments, except when the king should want means to +carry on war, or to meet some other _extraordinary_ necessity.[^8] He had +no need of parliaments to raise taxes for the _ordinary_ purposes of +government; for his revenues from the rents of the crown lands and other +sources, were ample for all except extraordinary occasions. Parliaments, +too, when assembled, consisted only of bishops, barons, and other great +men of the kingdom, unless the king chose to invite others.[^9] There was +no House of Commons at that time, and the people had no right to be +heard, unless as petitioners.[^10] + +Even when laws were made at the time of a parliament, they were made in +the name of the king alone. Sometimes it was inserted in the laws, that +they were made with the _consent_ or _advice_ of the bishops, barons, +and others assembled; but often this was omitted. Their consent or +advice was evidently a matter of no legal importance to the enactment or +validity of the laws, but only inserted, when inserted at all, with a +view of obtaining a more willing submission to them on the part of the +people. The style of enactment generally was, either “_The King wills +and commands_,” or some other form significant of the sole legislative +authority of the king. The king could pass laws at any time when it +pleased him. The presence of a parliament was wholly unnecessary. Hume +says, “It is asserted by Sir Harry Spelman, as an undoubted fact, that, +during the reigns of the Norman princes, every order of the king, issued +with the consent of his privy council, had the full force of law.”[^11] +And other authorities abundantly corroborate this assertion.[^12] + +The king was, therefore, constitutionally the government; and the only +legal limitation upon his power seems to have been simply the _Common +Law_, usually called “_the law of the land_,” which he was bound by oath +to maintain; (which oath had about the same practical value as similar +oaths have always had.) This “law of the land” seems not to have been +regarded at all by many of the kings, except so far as they found it +convenient to do so, or were constrained to observe it by the fear of +arousing resistance. But as all people are slow in making resistance, +oppression and usurpation often reached a great height; and, in the case +of John, they had become so intolerable as to enlist the nation almost +universally against him; and he was reduced to the necessity of +complying with any terms the barons saw fit to dictate to him. + +It was under these circumstances, that the Great Charter of English +Liberties was granted. The barons of England, sustained by the common +people, having their king in their power, compelled him, as the price of +his throne, to pledge himself that he would punish no freeman for a +violation of any of his laws, unless with the consent of the peers—that +is, the equals—of the accused. + +The question here arises, Whether the barons and people intended that +those peers (the jury) should be mere puppets in the hands of the king, +exercising no opinion of their own as to the intrinsic merits of the +accusations they should try, or the _justice_ of the laws they should be +called on to enforce? Whether those haughty and victorious barons, when +they had their tyrant king at their feet, gave back to him his throne, +with full power to enact any tyrannical laws he might please, reserving +only to a jury (“the country”) the contemptible and servile privilege of +ascertaining, (under the dictation of the king, or his judges, as to the +laws of evidence), the simple _fact_ whether those laws had been +transgressed? Was this the only restraint, which, when they had all +power in their hands, they placed upon the tyranny of a king, whose +oppressions they had risen in arms to resist? Was it to obtain such a +charter as that, that the whole nation had united, as it were, like one +man, against their king? Was it on such a charter that they intended to +rely, for all future time, for the security of their liberties? No. They +were engaged in no such senseless work as that. On the contrary, when +they required him to renounce forever the power to punish any freeman, +unless by the consent of his peers, they intended those peers should +judge of, and try, the whole case on its merits, independently of all +arbitrary legislation, or judicial authority, on the part of the king. +In this way they took the liberties of each individual—and thus the +liberties of the whole people—entirely out of the hands of the king, +and out of the power of his laws, and placed them in the keeping of the +people themselves. And this it was that made the trial by jury the +palladium of their liberties. + +The trial by jury, be it observed, was the only real barrier interposed +by them against absolute despotism. Could this trial, then, have been +such an entire farce as it necessarily must have been, if the jury had +had no power to judge of the justice of the laws the people were +required to obey? Did it not rather imply that the jury were to judge +independently and fearlessly as to everything involved in the charge, +and especially as to its intrinsic justice, and thereon give their +decision, (unbiased by any legislation of the king,) whether the accused +might be punished? The reason of the thing, no less than the historical +celebrity of the events, as securing the liberties of the people, and +the veneration with which the trial by jury has continued to be +regarded, notwithstanding its essence and vitality have been almost +entirely extracted from it in practice, would settle the question, if +other evidences had left the matter in doubt. + +Besides, if his laws were to be authoritative with the jury, why should +John indignantly refuse, as at first he did, to grant the charter, (and +finally grant it only when brought to the last extremity,) on the ground +that it deprived him of all power, and left him only the name of a king? +_He_ evidently understood that the juries were to veto his laws, and +paralyze his power, at discretion, by forming their own opinions as to +the true character of the offences they were to try, and the laws they +were to be called on to enforce; and that “_the king wills and +commands_” was to have no weight with them contrary to their own +judgments of what was intrinsically right.[^13] + +The barons and people having obtained by the charter all the liberties +they had demanded of the king, it was further provided by the charter +itself that twenty-five barons should be appointed by the barons, out of +their number, to keep special vigilance in the kingdom to see that the +charter was observed, with authority to make war upon the king in case +of its violation. The king also, by the charter, so far absolved all the +people of the kingdom from their allegiance to him, as to authorize and +require them to swear to obey the twenty-five barons, in case they +should make war upon the king for infringement of the charter. It was +then thought by the barons and people, that something substantial had +been done for the security of their liberties. + +This charter, in its most essential features, and without any abatement +as to the trial by jury, has since been confirmed more than thirty +times; and the people of England have always had a traditionary idea +that it was of some value as a guaranty against oppression. Yet that +idea has been an entire delusion, unless the jury have had the right to +judge of the justice of the laws they were called on to enforce. + + +## The Language of Magna Carta + +The language of the Great Charter establishes the same point that is +established by its history, viz., that it is the right and duty of the +jury to judge of the justice of the laws. + +The chapter guaranteeing the trial by jury is in these words: + +> “Nullus liber homo capiatur, vel imprisonetur, aut disseisetur, aut +> utlagetur, aut exuletur, aut aliquo modo destruatur; nec super eum +> ibimus, nec super eum mittemus, nisi per legale judicium parium +> suorum, vel per legem terræ.”[^14] + +The corresponding chapter in the Great Charter, granted by Henry III., +(1225,) and confirmed by Edward I., (1297,) (which charter is now +considered the basis of the English laws and constitution,) is in nearly +the same words, as follows: + +> “Nullus liber homo capiatur, vel imprisonetur, aut disseisetur de +> libero tenemento, vel libertatibus, vel liberis consuetudinibus suis, +> aut utlagetur, aut exuletur, aut aliquo modo destruatur, nec super +> eum ibimus, nec super eum mittemus, nisi per legale judicium parium +> suorum, vel per legem terræ.” + +The most common translation of these words, at the present day, is as +follows: + +> “No freeman shall be arrested, or imprisoned, or deprived of his +> freehold, or his liberties, or free customs, or outlawed, or exiled, +> or in any manner destroyed, _nor will we (the king) pass upon him, +> nor condemn him_, unless by the judgment of his peers, or the law of +> the land.” + +> “_Nec super eum ibimus, nec super eum mittemus._” + +There has been much confusion and doubt as to the true meaning of the +words, “_nec super eum ibimus, nec super eum mittemus_.” The more common +rendering has been, “_nor will we pass upon him, nor condemn him_.” But +some have translated them to mean, “_nor will we pass upon him, nor +commit him to prison_.” Coke gives still a different rendering, to the +effect that “No man shall be condemned at the king’s suit, either before +the king in his bench, nor before any other commissioner or judge +whatsoever.”[^15] + +But all these translations are clearly erroneous. In the first place, +“_nor will we pass upon him_,”—meaning thereby to decide upon his guilt +or innocence _judicially_—is not a correct rendering of the words, +“_nec super eum ibimus_.” There is nothing whatever, in these latter +words, that indicates _judicial_ action or opinion at all. The words, in +their common signification, describe _physical_ action alone. And the +true translation of them, as will hereafter be seen, is, _“nor will we +proceed against him,” executively_. + +In the second place, the rendering, “_nor will we condemn him_,” bears +little or no analogy to any common, or even uncommon, signification of +the words “_nec super eum mittemus_.” There is nothing in these latter +words that indicates _judicial_ action or decision. Their common +signification, like that of the words _nec super eum ibimus_, describes +_physical_ action alone. “_Nor will we send upon (or against) him_,” +would be the most obvious translation, and, as we shall hereafter see, +such is the true translation. + +But although these words describe _physical_ action, on the part of the +king, as distinguished from judicial, they nevertheless do not mean, as +one of the translations has it, “_nor will we commit him to prison_;” +for that would be a mere repetition of what had been already declared by +the words “_nec imprisonetur_.” Besides, there is nothing about prisons +in the words “_nec super eum mittemus_;” nothing about sending _him_ +anywhere; but only about sending (something or somebody) _upon_ him, or +_against_ him—that is, _executively_. + +Coke’s rendering is, if possible, the most absurd and gratuitous of all. +What is there in the words, “_nec super eum mittemus_” that can be made +to mean “_nor shall he be condemned before any other commissioner or +judge whatsoever_?” Clearly there is nothing. The whole rendering is a +sheer fabrication. And the whole object of it is to give color for the +exercise of a _judicial_ power, by the king, or his judges, which is +nowhere given them. + +Neither the words, “_nec super eum ibimus, nec super eum mittemus_,” nor +any other words in the whole chapter, authorize, provide for, describe, +or suggest, any _judicial_ action whatever, on the part either of the +king, or of his judges, or of anybody, _except the peers, or jury_. +There is nothing about the king’s _judges_ at all. And there is nothing +whatever, in the whole chapter, _so far as relates to the action of the +king_, that describes or suggests anything but _executive_ action.[^16] + +But that all these translations are certainly erroneous, is proved by a +temporary charter, granted by John a short time previous to the Great +Charter, for the purpose of giving an opportunity for conference, +arbitration, and reconciliation between him and his barons. It was to +have force until the matters in controversy between them could be +submitted to the Pope, and to other persons to be chosen, some by the +king, and some by the barons. The words of the charter are as follows: + +“Sciatis nos concessisse baronibus nostris qui contra nos sunt quod nec +eos nec homines suos capiemus, nec disseisiemus _nec super eos per vim +vel per arma ibimus_ nisi per legem regni nostri vel per judicium parium +suorum in curia nostra donec consideratio facta fuerit,” &c., &c. + +That is, “Know that we have granted to our barons who are opposed to us, +that we will neither arrest them nor their men, nor disseize them, _nor +will we proceed against them by force or by arms_, unless by the law of +our kingdom, or by the judgment of their peers in our court, until +consideration shall be had,” &c., &c. + +A copy of this charter is given in a note in Blackstone’s Introduction +to the Charters.[^17] + +Mr. Christian speaks of this charter as settling the true meaning of the +corresponding clause of Magna Carta, on the principle that laws and +charters on the same subject are to be construed with reference to each +other. See _3 Christian’s Blackstone_, 41, _note_. + +The true meaning of the words, _nec super eum ibimus, nec super eum +mittemus_, is also proved by the “_Articles of the Great Charter of +Liberties_,” demanded of the king by the barons, and agreed to by the +king, under seal, a few days before the date of the Charter, and from +which the Charter was framed.[^18] Here the words used are these: + +> “Ne corpus liberi hominis capiatur nec imprisonetur nec disseisetur +> nec utlagetur nec exuletur nec aliquo modo destruatur _nec rex eat +> vel mittat super eum vi_ nisi per judicium parium suorum vel per +> legem terræ.” + +> That is, “The body of a freeman shall not be arrested, nor +> imprisoned, nor disseized, nor outlawed, nor exiled, nor in any +> manner destroyed, _nor shall the king proceed or send (any one) +> against him_ WITH FORCE, unless by the judgment of his peers, or the +> law of the land.” + +The true translation of the words _nec super eum ibimus, nec super eum +mittemus_, in Magna Carta, is thus made certain, as follows, “_nor will +we (the king) proceed against him, nor send (any one) against him_ WITH +FORCE OR ARMS.”[^19] + +It is evident that the difference between the true and false +translations of the words, _nec super eum ibimus, nec super eum +mittemus_, is of the highest legal importance, inasmuch as the true +translation, _nor will we (the king) proceed against him, nor send (any +one) against him by force or arms_, represents the king only in an +_executive_ character, _carrying the judgment of the peers and “the law +of the land” into execution_; whereas the false translation, _nor will +we pass upon him, nor condemn him_, gives color for the exercise of a +_judicial_ power, on the part of the king, to which the king had no +right, but which, according to the true translation, belongs wholly to +the jury. + +> “_Per legale judicium parium suorum._” + +The foregoing interpretation is corroborated, (if it were not already +too plain to be susceptible of corroboration,) by the true +interpretation of the phrase “_per legale judicium parium suorum_.” + +In giving this interpretation, I leave out, for the present, the word +_legale_, which will be defined afterwards. + +The true meaning of the phrase, _per judicium parium suorum_, is, +_according to the sentence of his peers_. The word _judicium, judgment_, +has a technical meaning in the law, signifying the decree rendered in +the decision of a cause. In civil suits this decision is called a +_judgment_; in chancery proceedings it is called a _decree_; in criminal +actions it is called a _sentence_, or _judgment_, indifferently. Thus, +in a criminal suit, “a motion in arrest of _judgment_” means a motion in +arrest of _sentence_.[^20] + +In cases of sentence, therefore, in criminal suits, the words _sentence_ +and _judgment_ are synonymous terms. They are, to this day, commonly +used in law books as synonymous terms. And the phrase _per judicium +parium suorum_, therefore, implies that the jury are to fix the +sentence. + +The word _per_ means _according to_. Otherwise there is no sense in the +phrase _per judicium parium suorum_. There would be no sense in saying +that a king might imprison, disseize, outlaw, exile, or otherwise punish +a man, or proceed against him, or send any one against him, _by force or +arms, by_ a judgment of his peers; but there is sense in saying that the +king may imprison, disseize, and punish a man, or proceed against him, +or send any one against him, by force or arms, _according to_ a +judgment, or _sentence_, of his peers; because in that case the king +would be merely carrying the sentence or judgment of the peers into +execution. + +The word _per_, in the phrase “_per_ judicium parium suorum,” of course +means precisely what it does in the next phrase, “_per_ legem terræ;” +where it obviously means _according to_, and not _by_, as it is usually +translated. There would be no sense in saying that the king might +proceed against a man by force or arms, _by_ the law of the land; but +there is sense in saying that he may proceed against him, by force or +arms, _according to_ the law of the land; because the king would then be +acting only as an executive officer, carrying the law of the land into +execution. Indeed, the true meaning of the word _by_, as used in similar +cases now, always is _according to_; as, for example, when we say a +thing was done by the government, or by the executive, _by law_, we mean +only that it was done by them _according to law_; that is, that they +merely executed the law. + +Or, if we say that the word _by_ signifies _by authority of_, the result +will still be the same; for nothing can be done _by authority of_ law, +except what the law itself authorizes or directs to be done; that is, +nothing can be done by authority of law, except simply to carry the law +itself into execution. So nothing could be done _by authority of_ the +sentence of the peers, or _by authority of_ “the law of the land,” +except what the sentence of the peers, or the law of the land, +themselves authorized or directed to be done; nothing, in short, but to +carry the sentence of the peers, or the law of the land, themselves into +execution. + +Doing a thing _by_ law, or _according to_ law, is only carrying the law +into execution. And punishing a man _by_, or _according to_, the +sentence or judgment of his peers, is only carrying that sentence or +judgment into execution. + +If these reasons could leave any doubt that the word _per_ is to be +translated _according to_, that doubt would be removed by the terms of +an antecedent guaranty for the trial by jury, granted by the Emperor +Conrad, of Germany,[^21] two hundred years before Magna Carta. Blackstone +cites it as follows:—(_3 Blackstone_, 350.) + +“Nemo beneficium suum perdat, nisi _secundum_ consuetudinem antecessorum +nostrorum, et judicium parium suorum.” That is, No one shall lose his +estate,[^22] unless _according to_ (“_secundum_”) the custom (or law) of +our ancestors, and (_according to_) the sentence (or judgment) of his +peers. + +The evidence is therefore conclusive that the phrase _per judicium +parium suorum_ means _according to the sentence of his peers_; thus +implying that the jury, and not the government, are to fix the sentence. + +If any additional proof were wanted that juries were to fix the +sentence, it would be found in the following provisions of Magna Carta, +viz.: + +> “A freeman shall not be amerced for a small crime, (_delicto_,) but +> according to the degree of the crime; and for a great crime in +> proportion to the magnitude of it, saving to him his +> _contenement_;[^23] and after the same manner a merchant, saving to +> him his merchandise. And a villein shall be amerced after the same +> manner, saving to him his waynage,[^24] if he fall under our mercy; +> _and none of the aforesaid amercements shall be imposed, (or +> assessed, ponatur,) but by the oath of honest men of the +> neighborhood. Earls and Barons shall not be amerced but by their +> peers_, and according to the degree of their crime.”[^25] + +Pecuniary punishments were the most common punishments at that day, and +the foregoing provisions of Magna Carta show that the amount of those +punishments was to be fixed by the jury. + +Fines went to the king, and were a source of revenue; and if the amounts +of the fines had been left to be fixed by the king, he would have had a +pecuniary temptation to impose unreasonable and oppressive ones. So, +also, in regard to other punishments than fines. If it were left to the +king to fix the punishment, he might often have motives to inflict cruel +and oppressive ones. As it was the object of the trial by jury to +protect the people against all possible oppression from the king, it was +necessary that the jury, and not the king, should fix the +punishments.[^26] + +“_Legale._” + +The word “_legale_,” in the phrase “_per legale judicium parium +suorum_,” doubtless means two things. 1. That the sentence must be given +in a legal manner; that is, by the legal number of jurors, legally +empanelled and sworn to try the cause; and that they give their judgment +or sentence after a legal trial, both in form and substance, has been +had. 2. That the sentence shall be for a legal cause or offence. If, +therefore, a jury should convict and sentence a man, either without +giving him a legal trial, or for an act that was not really and legally +criminal, the sentence itself would not be legal; and consequently this +clause forbids the king to carry such a sentence into execution; for the +clause guarantees that he will execute no judgment or sentence, except +it be _legale judicium_, a legal sentence. Whether a sentence be a legal +one, would have to be ascertained by the king or his judges, on appeal, +or might be judged of informally by the king himself. + +The word “_legale_” clearly did not mean that the _judicium parium +suorum_ (judgment of his peers) should be a sentence which any law (of +the king) should _require_ the peers to pronounce; for in that case the +sentence would not be the sentence of the peers, but only the sentence +of the law, (that is, of the king); and the peers would be only a +mouthpiece of the law, (that is, of the king,) in uttering it. + +> “_Per legem terræ._” + +One other phrase remains to be explained, viz., “_per legem terræ_,” +“_by the law of the land_.” + +All writers agree that this means the _common law_. Thus, Sir Matthew +Hale says: + +> “The common law is sometimes called, by way of eminence, _lex terræ_, +> as in the statute of _Magna Carta_, chap. 29, where certainly the +> common law is principally intended by those words, _aut per legem +> terræ_; as appears by the exposition thereof in several subsequent +> statutes; and particularly in the statute of 28 Edward III., chap. 3, +> which is but an exposition and explanation of that statute. Sometimes +> it is called _lex Angliæ_, as in the statute of Merton, cap. 9, +> “_Nolumus leges Angliæ mutari_,” &c., (We will that the laws of +> England be not changed). Sometimes it is called _lex et consuetudo +> regni_ (the law and custom of the kingdom); as in all commissions of +> oyer and terminer; and in the statutes of 18 Edward I., cap.—, and +> _de quo warranto_, and divers others. But most commonly it is called +> the Common Law, or the Common Law of England; as in the statute +> _Articuli super Chartas_, cap. 15, in the statute 25 Edward III., +> cap. 5, (4,) and infinite more records and statutes.”—1 _Hale’s +> History of the Common Law_, 128. + +This common law, or “law of the land,” _the king was sworn to maintain_. +This fact is recognized by a statute made at Westminster, in 1346, by +Edward III., which commences in this manner: + +> “Edward, by the Grace of God, &c., &c., to the Sheriff of Stafford, +> Greeting: Because that by divers complaints made to us, we have +> perceived that _the law of the land, which we by oath are bound to +> maintain_,” &c.—_St. 20 Edward III._ + +The foregoing authorities are cited to show to the unprofessional +reader, what is well known to the profession, that _legem terræ, the law +of the land_, mentioned in Magna Carta, was the common, ancient, +fundamental law of the land, which the kings were bound by oath to +observe; _and that it did not include any statutes or laws enacted by +the king himself, the legislative power of the nation_. + +If the term _legem terræ_ had included laws enacted by the king himself, +the whole chapter of Magna Carta, now under discussion, would have +amounted to nothing as a protection to liberty; because it would have +imposed no restraint whatever upon the power of the king. The king could +make laws at any time, and such ones as he pleased. He could, therefore, +have done anything he pleased, _by the law of the land_, as well as in +any other way, if his own laws had been “_the law of the land_.” If his +own laws had been “the law of the land,” within the meaning of that term +as used in Magna Carta, this chapter of Magna Carta would have been +sheer nonsense, inasmuch as the whole purport of it would have been +simply that “no man shall be arrested, imprisoned, or deprived of his +freehold, or his liberties, or free customs, or outlawed, or exiled, or +in any manner destroyed (by the king); nor shall the king proceed +against him, nor send any one against him with force and arms, unless by +the judgment of his peers, _or unless the king shall please to do so_.” + +This chapter of Magna Carta would, therefore, have imposed not the +slightest restraint upon the power of the king, or afforded the +slightest protection to the liberties of the people, if the laws of the +king had been embraced in the term _legem terræ_. But if _legem terræ_ +was the common law, which the king was sworn to maintain, then a real +restriction was laid upon his power, and a real guaranty given to the +people for their liberties. + +Such, then, being the meaning of _legem terræ_, the fact is established +that Magna Carta took an accused person entirely out of the hands of the +legislative power, that is, of the king; and placed him in the power and +under the protection of his peers, and the common law alone; that, in +short, Magna Carta suffered no man to be punished for violating any +enactment of the legislative power, unless the peers or equals of the +accused freely consented to it, or the common law authorized it; that +the legislative power, _of itself_, was wholly incompetent to _require_ +the conviction or punishment of a man for any offence whatever. + +_Whether Magna Carta allowed of any other trial than by jury._ + +The question here arises, whether “_legem terræ_” did not allow of some +other mode of trial than that by jury. + +The answer is, that, at the time of Magna Carta, it is not probable, +(for the reasons given in the note,) that _legem terræ_ authorized, in +criminal cases, any other trial than the trial by jury; but, if it did, +it certainly authorized none but the trial by battle, the trial by +ordeal, and the trial by compurgators. These were the only modes of +trial, except by jury, that had been known in England, in criminal +cases, for some centuries previous to Magna Carta. All of them had +become nearly extinct at the time of Magna Carta, and it is not probable +that they were included in “_legem terræ_” as that term is used in that +instrument. But if they were included in it, they have now been long +obsolete, and were such as neither this nor any future age will ever +return to.[^27] For all practical purposes of the present day, +therefore, it may be asserted that Magna Carta allows no trial whatever +but trial by jury. + +_Whether Magna Carta allowed sentence to be fixed otherwise than by the +jury._ + +Still another question arises on the words _legem terræ_, viz., whether, +in cases where the question of guilt was determined by the jury, the +amount of _punishment_ may not have been fixed by _legem terræ_, the +Common Law, instead of its being fixed by the jury. + +I think we have no evidence whatever that, at the time of Magna Carta, +or indeed at any other time, _lex terræ_, the common law, fixed the +punishment in cases where the question of guilt was tried by a jury; or, +indeed, that it did in any other case. Doubtless certain punishments +were common and usual for certain offences; but I do not think it can be +shown that the _common law_, the _lex terræ_, which the king was sworn +to maintain, required any one specific punishment, or any precise amount +of punishment, for any one specific offence. If such a thing be claimed, +it must be shown, for it cannot be presumed. In fact, the contrary must +be presumed, because, in the nature of things, the amount of punishment +proper to be inflicted in any particular case, is a matter requiring the +exercise of discretion at the time, in order to adapt it to the moral +quality of the offence, which is different in each case, varying with +the mental and moral constitutions of the offenders, and the +circumstances of temptation or provocation. And Magna Carta recognizes +this principle distinctly, as has before been shown, in providing that +freemen, merchants, and villeins, “shall not be amerced for a small +crime, but according to the degree of the crime; and for a great crime +in proportion to the magnitude of it;” and that “none of the aforesaid +amercements shall be imposed (or assessed) but by the oaths of honest +men of the neighborhood;” and that “earls and barons shall not be +amerced but by their peers, and according to the quality of the +offence.” + +All this implies that the moral quality of the offence was to be judged +of at the trial, and that the punishment was to be fixed by the +discretion of the peers, or jury, and not by any such unvarying rule as +a common law rule would be. + +I think, therefore, it must be conceded that, in all cases, tried by a +jury, Magna Carta intended that the punishment should be fixed by the +jury, and not by the common law, for these several reasons. + +1. It is uncertain whether the _common law_ fixed the punishment of any +offence whatever. + +2. The words “_per judicium parium suorum_,” _according to the sentence +of his peers_, imply that the jury fixed the sentence in _some_ cases +tried by them; and if they fixed the sentence in some cases, it must be +presumed they did in all, unless the contrary be clearly shown. + +3. The express provisions of Magna Carta, before adverted to, that no +amercements, or fines, should be imposed upon freemen, merchants, or +villeins, “but by the oath of honest men of the neighborhood,” and +“according to the degree of the crime,” and that “earls and barons +should not be amerced but by their peers, and according to the quality +of the offence,” _proves_ that, at least, there was no common law fixing +the amount of _fines_, or, if there were, that it was to be no longer in +force. And if there was no common law fixing the amount of _fines_, or +if it was to be no longer in force, it is reasonable to infer, (in the +absence of all evidence to the contrary,) either that the common law did +not fix the amount of any other punishment, or that it was to be no +longer in force for that purpose.[^28] + +Under the Saxon laws, fines, payable to the injured party, seem to have +been the common punishments for all offences. Even murder was punishable +by a fine payable to the relatives of the deceased. The murder of the +king even was punishable by fine. When a criminal was unable to pay his +fine, his relatives often paid it for him. But if it were not paid, he +was put out of the protection of the law, and the injured parties, (or, +in the case of murder, the kindred of the deceased,) were allowed to +inflict such punishment as they pleased. And if the relatives of the +criminal protected him, it was lawful to take vengeance on them also. +Afterwards the custom grew up of exacting fines also to the king as a +punishment for offences.[^29] And this latter was, doubtless, the usual +punishment at the time of Magna Carta, as is evidenced by the fact that +for many years immediately following Magna Carta, nearly or quite all +statutes that prescribed any punishment at all, prescribed that the +offender should “be grievously amerced,” or “pay a great fine to the +king,” or a “grievous ransom,”—with the alternative in some cases +(perhaps _understood_ in all) of imprisonment, banishment, or outlawry, +in case of non-payment.[^30] + +Judging, therefore, from the special provisions in Magna Carta, +requiring _fines_, or amercements, to be imposed only by juries, +(without mentioning any other punishments;) judging, also, from the +statutes which immediately followed Magna Carta, it is probable that the +Saxon custom of punishing all, or nearly all, offences by _fines_, (with +the alternative to the criminal of being imprisoned, banished, or +outlawed, and exposed to private vengeance, in case of non-payment,) +continued until the time of Magna Carta; and that in providing expressly +that _fines_ should be fixed by the juries, Magna Carta provided for +nearly or quite all the punishments that were expected to be inflicted; +that if there were to be any others, they were to be fixed by the +juries; and consequently that nothing was left to be fixed by “_legem +terræ_.” + +But whether the common law fixed the punishment of any offences, or not, +is a matter of little or no practical importance at this day; because we +have no idea of going back to any common law punishments of six hundred +years ago, if, indeed, there were any such at that time. It is enough +for us to know—_and this is what it is material for us to know_—that +the jury fixed the punishments, in all cases, unless they were fixed by +the _common law_; that Magna Carta allowed no punishments to be +prescribed by statute—that is, by the legislative power—nor in any +other manner by the king, or his judges, in any case whatever; and, +consequently, that all statutes prescribing particular punishments for +particular offences, or giving the king’s judges any authority to fix +punishments, were void. + +If the power to fix punishments had been left in the hands of the king, +it would have given him a power of oppression, which was liable to be +greatly abused; which there was no occasion to leave with him; and which +would have been incongruous with the whole object of this chapter of +Magna Carta; which object was to take all discretionary or arbitrary +power over individuals entirely out of the hands of the king, and his +laws, and entrust it only to the common law, and the peers, or +jury—that is, the people. + +_What lex terræ did authorize._ + +But here the question arises, What then did “_legem terræ_” authorize +the king, (that is, the government,) to do in the case of an accused +person, if it neither authorized any other trial than that by jury, nor +any other punishments than those fixed by juries? + +The answer is, that, owing to the darkness of history on the point, it +is probably wholly impossible, at this day, to state, _with any +certainty or precision_, anything whatever that the _legem terræ_ of +Magna Carta did authorize the king, (that is, the government,) to do, +(if, indeed, it authorized him to do anything,) in the case of +criminals, _other than to have them tried and sentenced by their peers, +for common law crimes_; and to carry that sentence into execution. + +The trial by jury was a part of _legem terræ_, and we have the means of +knowing what the trial by jury was. The fact that the jury were to fix +the sentence, implies that they were to _try_ the accused; otherwise +they could not know what sentence, or whether any sentence, ought to be +inflicted upon him. Hence it follows that the jury were to judge of +everything involved in the trial; that is, they were to judge of the +nature of the offence, of the admissibility and weight of testimony, and +of everything else whatsoever that was of the essence of the trial. If +anything whatever could be dictated to them, either of law or evidence, +the sentence would not be theirs, but would be dictated to them by the +power that dictated to them the law or evidence. The trial and sentence, +then, were wholly in the hands of the jury. + +We also have sufficient evidence of the nature of the oath administered +to jurors in criminal cases. It was simply, that _they would neither +convict the innocent, nor acquit the guilty_. This was the oath in the +Saxon times, and probably continued to be until Magna Carta. + +We also know that, in case of _conviction_, the sentence of the jury was +not necessarily final; that the accused had the right of appeal to the +king and his judges, and to demand either a new trial, or an acquittal, +if the trial or conviction had been against law. + +So much, therefore, of the _legem terræ_ of Magna Carta, we know with +reasonable certainty. + +We also know that Magna Carta provides that “No bailiff (_balivus_) +shall hereafter put any man to his law, (put him on trial,) on his +single testimony, without credible witnesses brought to support it.” +Coke thinks “that under this word _balivus_, in this act, is +comprehended every justice, minister of the king, steward of the king, +steward and bailiff.” (2 Inst. 44.) And in support of this idea he +quotes from a very ancient law book, called the Mirror of Justices, +written in the time of Edward I., within a century after Magna Carta. +But whether this were really a common law principle, or whether the +provision grew out of that jealousy of the government which, at the time +of Magna Carta, had reached its height, cannot perhaps now be +determined. + +We also know that, by Magna Carta, amercements, or fines, could not be +imposed to the ruin of the criminal; that, in the case of a freeman, his +_contenement_, or means of subsisting in the condition of a freeman, +must be saved to him; that, in the case of a merchant, his merchandise +must be spared; and in the case of a villein, his _waynage_, or +plough-tackle and carts. This also is likely to have been a principle of +the common law, inasmuch as, in that rude age, when the means of getting +employment as laborers were not what they are now, the man and his +family would probably have been liable to starvation, if these means of +subsistence had been taken from him. + +We also know, _generally_, that, at the time of Magna Carta, _all acts +intrinsically criminal_, all trespasses against persons and property, +were crimes, according to _lex terræ_, or the common law. + +Beyond the points now given, we hardly know anything, probably nothing +_with certainty_, as to what the “_legem terræ_” of _Magna Carta_ did +authorize, in regard to crimes. There is hardly anything extant that can +give us any real light on the subject. + +It would seem, however, that there were, even at that day, some common +law principles governing arrests; and some common law forms and rules as +to holding a man for trial, (by bail or imprisonment;) putting him on +trial, such as by indictment or complaint; summoning and empanelling +jurors, &c., &c. Whatever these common law principles were, Magna Carta +requires them to be observed; for Magna Carta provides for the whole +proceedings, commencing with the arrest, (“no freeman shall be +_arrested_,” &c.,) and ending with the execution of the sentence. And it +provides that nothing shall be done, by the government, from beginning +to end, unless according to the sentence of the peers, or “_legem +terræ_,” the common law. The trial by peers was a part of _legem terræ_, +and we have seen that the peers must necessarily have governed the whole +proceedings at the trial. But all the proceedings for arresting the man, +and bringing him to trial, must have been had before the case could come +under the cognizance of the peers, and they must, therefore, have been +governed by other rules than the discretion of the peers. We may +_conjecture_, although we cannot perhaps know with much certainty, that +the _lex terræ_, or common law, governing these other proceedings, was +somewhat similar to the common law principles, on the same points, at +the present day. Such seem to be the opinions of Coke, who says that the +phrase _nisi per legem terræ_ means _unless by due process of law_. + +Thus, he says: + +“_Nisi per legem terræ. But by the law of the land._ For the true sense +and exposition of these words, see the statute of 37 Edw. III., cap. 8, +where the words, _by the law of the land_, are rendered _without due +process of law_; for there it is said, though it be contained in the +Great Charter, that no man be taken, imprisoned, or put out of his +freehold, _without process of the law; that is, by indictment or +presentment of good and lawful men, where such deeds be done in due +manner, or by writ original of the common law_. + +“Without being brought in to answer but by due process of the common +law. + +“No man be put to answer without presentment before justices, or thing +of record, or by due process, or by writ original, _according to the old +law of the land_.”—_2 Inst._ 50. + +The foregoing interpretations of the words _nisi per legem terræ_ are +corroborated by the following statutes, enacted in the next century +after Magna Carta. + +“That no man, from henceforth, shall be attached by any accusation, nor +forejudged of life or limb, nor his land, tenements, goods, nor +chattels, seized into the king’s hands, against the form of the Great +Charter, _and the law of the land_.”—_St. 5 Edward III., Ch._ 9. +(1331.) + +“Whereas it is contained in the Great Charter of the franchises of +England, that none shall be imprisoned, nor put out of his freehold, nor +of his franchises, nor free customs, _unless it be by the law of the +land_; it is accorded, assented, and established, that from henceforth +none shall be taken by petition, or suggestion made to our lord the +king, or to his council, _unless it be by indictment or presentment of +good and lawful people of the same neighborhood where such deeds be done +in due manner, or by process made by writ original at the common law_; +nor that none be put out of his franchises, nor of his freehold, _unless +he be duly brought into answer, and forejudged of the same by the course +of the law_; and if anything be done against the same, it shall be +redressed and holden for none.”—_St. 25 Edward III., Ch._ 4. (1350.) + +“That no man, of what estate or condition that he be, shall be put out +of land or tenement, nor taken, nor imprisoned, nor disinherited, nor +put to death, without being brought in answer _by due process of +law_.”—_St. 28 Edward III., Ch._ 3. (1354.) + +“That no man be put to answer without presentment before justices, or +matter of record, or by due process and writ original, according to the +_old law of the land_. And if anything from henceforth be done to the +contrary, it shall be void in law, and holden for error.”—_St. 42 +Edward III., Ch._ 3. (1368.) + +The foregoing interpretation of the words _nisi per legem terræ_—that +is, _by due process of law_—including indictment, &c., has been adopted +as the true one by modern writers and courts; as, for example, by Kent, +(2 _Comm._ 13,) Story, (3 _Comm._ 661,) and the Supreme Court of New +York, (19 _Wendell_, 676; 4 _Hill_, 146.) + +The fifth amendment to the constitution of the United States seems to +have been framed on the same idea, inasmuch as it provides that “no +person shall be deprived of life, liberty, or property, _without due +process of law_.”[^31] + +_Whether the word_ VEL _should be rendered by_ OR, _or by_ AND. + +Having thus given the meanings, or rather the applications, which the +words _vel per legem terræ_ will reasonably, and perhaps must +necessarily, bear, it is proper to suggest, that it has been supposed by +some that the word _vel_, instead of being rendered by _or_, as it +usually is, ought to be rendered by _and_, inasmuch as the word _vel_ is +often used for _et_, and the whole phrase _nisi per judicium parium +suorum, vel per legem terræ_, (which would then read, unless by the +sentence of his peers, _and_ the law of the land,) would convey a more +intelligible and harmonious meaning than it otherwise does. + +Blackstone suggests that this may be the true reading. (_Charters_, p. +41.) Also Mr. Hallam, who says: + +> “Nisi per legale judicium parium suorum, _vel_ per legem terræ. +> Several explanations have been offered of the alternative clause; +> which some have referred to judgment by default, or demurrer; others +> to the process of attachment for contempt. Certainly there are many +> legal procedures besides trial by jury, through which a party’s goods +> or person may be taken. But one may doubt whether these were in +> contemplation of the framers of Magna Carta. In an entry of the +> Charter of 1217 by a contemporary hand, preserved in the Town-clerk’s +> office in London, called Liber Custumarum et Regum antiquarum, a +> various reading, _et_ per legem terræ, occurs. _Blackstone’s +> Charters_, p. 42 (41.) And the word _vel_ is so frequently used for +> _et_, that I am not wholly free from a suspicion that it was so +> intended in this place. The meaning will be, that no person shall be +> disseized, &c., except upon a lawful cause of action, found by the +> verdict of a jury. This really seems as good as any of the +> disjunctive interpretations; but I do not offer it with much +> confidence.”—2 _Hallam’s Middle Ages, Ch._ 8, _Part_ 2, p. 449, +> _note_.[^32] + +The idea that the word _vel_ should be rendered by _and_, is +corroborated, if not absolutely confirmed, by the following passage in +Blackstone, which has before been cited. Speaking of the trial by jury, +as established by Magna Carta, he calls it, + +> “A privilege which is couched in almost the same words with that of +> the Emperor Conrad two hundred years before: ‘nemo beneficium suum +> perdat, nisi secundum consuetudinem antecessorum nostrorum, _et_ +> judicium parium suorum.’” (No one shall lose his estate unless +> according to the custom of our ancestors, and the judgment of his +> peers.)—_3 Blackstone_, 350. + +If the word _vel_ be rendered by _and_, (as I think it must be, at least +in some cases,) this chapter of Magna Carta will then read that no +freeman shall be arrested or punished, “unless according to the sentence +of his peers, _and_ the law of the land.” + +The difference between this reading and the other is important. In the +one case, there would be, at first view, some color of ground for saying +that a man might be punished in either of two ways, viz., according to +the sentence of his peers, _or_ according to the law of the land. In the +other case, it requires both the sentence of his peers _and_ the law of +the land (common law) to authorize his punishment. + +If this latter reading be adopted, the provision would seem to exclude +all trials except trial by jury, and all causes of action except those +of the _common law_. + +But I apprehend the word vel must be rendered both by _and_, and by +_or_; that in cases of a _judgment_, it should be rendered by _and_, so +as to require the concurrence both of “the judgment of the peers _and_ +the law of the land,” to authorize the king to make execution upon a +party’s goods or person; but that in cases of arrest and imprisonment, +simply for the purpose of bringing a man to trial, _vel_ should be +rendered by or, because there can have been no judgment of a jury in +such a case, and “the law of the land” must therefore necessarily be the +only guide to, and restraint upon, the king. If this guide and restraint +were taken away, the king would be invested with an arbitrary and most +dangerous power in making arrests, and confining in prison, under +pretence of an intention to bring to trial. + +Having thus examined the language of this chapter of Magna Carta, so far +as it relates to criminal cases, its legal import may be stated as +follows, viz.: + +No freeman shall be arrested, or imprisoned, or deprived of his +freehold, or his liberties, or free customs, or be outlawed, or exiled, +or in any manner destroyed, (harmed,) nor will we (the king) proceed +against him, nor send any one against him, by force or arms, unless +according to (that is, in execution of) the sentence of his peers, _and_ +(or _or_, as the case may require) the Common Law of England, (as it was +at the time of Magna Carta, in 1215.) + +[Footnote 5: 1 Hume, Appendix 2.] + +[Footnote 6: Crabbe’s History of the English Law, 236.] + +[Footnote 7: Coke says, “The king of England is armed with divers +councils, one whereof is called _commune concilium_, (the common +council,) and that is the court of parliament, and so it is _legally_ +called in writs and judicial proceedings _commune concilium regni +Angliæ_, (the common council of the kingdom of England.) And another is +called _magnum concilium_, (great council;) this is sometimes applied to +the upper house of parliament, and sometimes, out of parliament time, to +the peers of the realm, lords of parliament, who are called _magnum +concilium regis_, (the great council of the king;) * * Thirdly, (as +every man knoweth,) the king hath a privy council for matters of state. +* * The fourth council of the king are his judges for law matters.” + +_1 Coke’s Institutes, 110 a._] + +[Footnote 8: The Great Charter of Henry III., (1216 and 1225,) confirmed +by Edward I., (1297,) makes no provision whatever for, or mention of, a +parliament, unless the provision, (Ch. 37,) that “Escuage, (a military +contribution,) from henceforth shall be taken like as it was wont to be +in the time of King Henry our grandfather,” mean that a parliament shall +be summoned for that purpose.] + +[Footnote 9: The Magna Carta of John, (Ch. 17 and 18,) defines those who +were entitled to be summoned to parliament, to wit, “The Archbishops, +Bishops, Abbots, Earls, and Great Barons of the Realm, * * and all +others who hold of us _in chief_.” Those who held land of the king _in +chief_ included none below the rank of knights.] + +[Footnote 10: The parliaments of that time were, doubtless, such as +Carlyle describes them, when he says, “The parliament was at first a +most simple assemblage, quite cognate to the situation; that Red +William, or whoever had taken on him the terrible task of being King of +England, was wont to invite, oftenest about Christmas time, his +subordinate Kinglets, Barons as he called them, to give him the pleasure +of their company for a week or two; there, in earnest conference all +morning, in freer talk over Christmas cheer all evening, in some big +royal hall of Westminster, Winchester, or wherever it might be, with log +fires, huge rounds of roast and boiled, not lacking malmsey and other +generous liquor, they took counsel concerning the arduous matters of the +kingdom.”] + +[Footnote 11: Hume, Appendix 2.] + +[Footnote 12: This point will be more fully established hereafter.] + +[Footnote 13: It is plain that the king and all his partisans looked +upon the charter as utterly prostrating the king’s legislative supremacy +before the discretion of juries. When the schedule of liberties demanded +by the barons was shown to him, (of which the trial by jury was the most +important, because it was the only one that protected all the rest,) +“the king, falling into a violent passion, asked, _Why the barons did +not with these exactions demand his kingdom?_ * * _and with a solemn +oath protested, that he would never grant such liberties as would make +himself a slave_.” * * But afterwards, “seeing himself deserted, and +fearing they would seize his castles, he sent the Earl of Pembroke and +other faithful messengers to them, to let them know _he would grant them +the laws and liberties they desired_.” * * But after the charter had +been granted, “the king’s mercenary soldiers, desiring war more than +peace, were by their leaders continually whispering in his ears, _that +he was now no longer king, but the scorn of other princes; and that it +was more eligible to be no king, than such a one as he_.” * * He applied +“to the Pope, that he might by his apostolic authority make void what +the barons had done. * * At Rome he met with what success he could +desire, where all the transactions with the barons were fully +represented to the Pope, and the Charter of Liberties shown to him, in +writing; which, when he had carefully perused, he, with a furious look, +cried out, _What! Do the barons of England endeavor to dethrone a king, +who has taken upon him the Holy Cross, and is under the protection of +the Apostolic See; and would they force him to transfer the dominions of +the Roman Church to others? By St. Peter, this injury must not pass +unpunished._ Then debating the matter with the cardinals, he, by a +definitive sentence, damned and cassated forever the Charter of +Liberties, and sent the king a bull containing that sentence at +large.”—_Echard’s History of England_, p. 106-7. + +These things show that the nature and effect of the charter were well +understood by the king and his friends; that they all agreed that he was +effectually stripped of power. _Yet the legislative power had not been +taken from him; but only the power to enforce his laws, unless juries +should freely consent to their enforcement._] + +[Footnote 14: The laws were, at that time, all written in Latin.] + +[Footnote 15: “No man shall be condemned at the king’s suit, either +before the king in his bench, where pleas are _coram rege_, (before the +king,) (and so are the words _nec super eum ibimus_, to be understood,) +nor before any other commissioner or judge whatsoever, and so are the +words _nec super eum mittemus_, to be understood, but by the judgment of +his peers, that is, equals, or according to the law of the land.”—_2 +Coke’s Inst._, 46.] + +[Footnote 16: Perhaps the assertion in the text should be made with this +qualification—that the words “_per legem terræ_,” (according to the law +of the land,) and the words “_per legale judicium parium suorum_,” +(according to the _legal_ judgment of his peers,) imply that the king, +before proceeding to any _executive_ action, will take notice of “the +law of the land,” and of the _legality_ of the judgment of the peers, +and will _execute_ upon the prisoner nothing except what the law of the +land authorizes, and no judgments of the peers, except _legal_ ones. +With this qualification, the assertion in the text is strictly +correct—that there is nothing in the whole chapter that grants to the +king, or his judges, any _judicial_ power at all. The chapter only +describes and _limits_ his _executive_ power.] + +[Footnote 17: See Blackstone’s Law Tracts, page 294, Oxford Edition.] + +[Footnote 18: These Articles of the Charter are given in Blackstone’s +collection of Charters, and are also printed with the _Statutes of the +Realm_. Also in Wilkins’ Laws of the Anglo-Saxons, p. 356.] + +[Footnote 19: Lingard says, “The words, ‘_We will not destroy him, nor +will we go upon him, nor will we send upon him_,’ have been very +differently expounded by different legal authorities. Their real meaning +may be learned from John himself, who the next year promised by his +letters patent ... nec super eos _per vim vel per arma_ ibimus, nisi per +legem regni nostri, vel per judicium parium suorum in curia nostra, (nor +will we go upon them _by force or by arms_, unless by the law of our +kingdom, or the judgment of their peers in our court.) Pat. 16 Johan, +apud Drad. 11, app. no. 124. He had hitherto been in the habit of +_going_ with an armed force, or _sending_ an armed force on the lands, +and against the castles, of all whom he knew or suspected to be his +secret enemies, without observing any form of law.”—3 Lingard, 47 +note.] + +[Footnote 20: “_Judgment, judicium._ * * The sentence of the law, +pronounced by the court, upon the matter contained in the record.”—3 +_Blackstone_, 395. _Jacob’s Law Dictionary. Tomlin’s do._ + +“_Judgment_ is the decision or sentence of the law, given by a court of +justice or other competent tribunal, as the result of the proceedings +instituted therein, for the redress of an injury.”—_Bouvier’s Law +Dict._ + +“_Judgment, judicium._ * * Sentence of a judge against a criminal. * * +Determination, decision in general.”—_Bailey’s Dict._ + +“_Judgment._ * * In a legal sense, a sentence or decision pronounced by +authority of a king, or other power, either by their own mouth, or by +that of their judges and officers, whom they appoint to administer +justice in their stead.”—_Chambers’ Dict._ + +“_Judgment._ * * In law, the sentence or doom pronounced in any case, +civil or criminal, by the judge or court by which it is +tried.”—_Webster’s Dict._ + +Sometimes the punishment itself is called _judicium_, _judgment_; or, +rather, it was at the time of Magna Carta. For example, in a statute +passed fifty-one years after Magna Carta, it was said that a baker, for +default in the weight of his bread, “debeat amerciari vel subire +_judicium_ pillorie;” that is, ought to be amerced, or suffer the +punishment, or judgment, of the pillory. Also that a brewer, for +“selling ale contrary to the assize,” “debeat amerciari, vel pati +_judicium_ tumbrelli”; that is, ought to be amerced, or suffer the +punishment, or judgment, of the tumbrel.—51 _Henry_ 3, _St._ 6. (1266.) + +Also the “_Statutes of uncertain date_,” (but supposed to be prior to +Edward III., or 1326,) provide, in chapters 6, 7, and 10, for +“_judgment_ of the pillory.”—_See 1 Ruffhead’s Statutes_, 187, 188. 1 +_Statutes of the Realm_, 203. + +Blackstone, in his chapter “Of _Judgment_, and its Consequences,” says, + +“_Judgment_ (unless any matter be offered in arrest thereof) follows +upon conviction; being the pronouncing of that punishment which is +expressly ordained by law.”—_Blackstone’s Analysis of the Laws of +England, Book 4, Ch. 29, Sec. 1. Blackstone’s Law Tracts_, 126. + +Coke says, “_Judicium_ ... the judgment is the guide and direction of +the execution.” 3 _Inst._ 210.] + +[Footnote 21: This precedent from Germany is good authority, because the +trial by jury was in use, in the northern nations of Europe generally, +long before Magna Carta, and probably from time immemorial; and the +Saxons and Normans were familiar with it before they settled in +England.] + +[Footnote 22: _Beneficium_ was the legal name of an estate held by a +feudal tenure. See Spelman’s Glossary.] + +[Footnote 23: _Contenement_ of a freeman was the means of living in the +condition of a freeman.] + +[Footnote 24: _Waynage_ was a villein’s plough-tackle and carts.] + +[Footnote 25: Tomlin says, “The ancient practice was, when any such fine +was imposed, to inquire by a jury _quantum inde regi dare valeat per +annum, salva sustentatione sua et uxoris et liberorum suorum_, (how much +is he able to give to the king per annum, saving his own maintenance, +and that of his wife and children). And since the disuse of such +inquest, it is never usual to assess a larger fine than a man is able to +pay, without touching the implements of his livelihood; but to inflict +corporal punishment, or a limited imprisonment, instead of such a fine +as might amount to imprisonment for life. And this is the reason why +fines in the king’s courts are frequently denominated ransoms, because +the penalty must otherwise fall upon a man’s person, unless it be +redeemed or ransomed by a pecuniary fine.”—_Tomlin’s Law Dict., word +Fine._] + +[Footnote 26: Because juries were to fix the sentence, it must not be +supposed that the king was _obliged_ to carry the sentence into +execution; _but only that he could not go beyond the sentence_. He might +pardon, or he might acquit on grounds of law, notwithstanding the +sentence; but he could not punish beyond the extent of the sentence. +Magna Carta does not prescribe that the king _shall punish_ according to +the sentence of the peers; but only that he shall not punish _“unless +according to” that sentence_. He may acquit or pardon, notwithstanding +their sentence or judgment; but he cannot punish, except according to +their judgment.] + +[Footnote 27: _The trial by battle_ was one in which the accused +challenged his accuser to single combat, and staked the question of his +guilt or innocence on the result of the duel. This trial was introduced +into England by the Normans, within one hundred and fifty years before +Magna Carta. It was not very often resorted to even by the Normans +themselves; probably never by the Anglo-Saxons, unless in their +controversies with the Normans. It was strongly discouraged by some of +the Norman princes, particularly by Henry II., by whom the trial by jury +was especially favored. It is probable that the trial by battle, so far +as it prevailed at all in England, was rather tolerated as a matter of +chivalry, than authorized as a matter of law. At any rate, it is not +likely that it was included in the “_legem terræ_” of Magna Carta, +although such duels have occasionally occurred since that time, and +have, by some, been supposed to be lawful. I apprehend that nothing can +be properly said to be a part of _lex terræ_, unless it can be shown +either to have been of Saxon origin, or to have been recognized by Magna +Carta. + +_The trial by ordeal_ was of various kinds. In one ordeal the accused +was required to take hot iron in his hand; in another to walk blindfold +among red-hot ploughshares; in another to thrust his arm into boiling +water; in another to be thrown, with his hands and feet bound, into cold +water; in another to swallow the _morsel of execration_; in the +confidence that his guilt or innocence would be miraculously made known. +This mode of trial was nearly extinct at the time of Magna Carta, and it +is not likely that it was included in “_legem terræ_,” as that term is +used in that instrument. This idea is corroborated by the fact that the +trial by ordeal was specially prohibited only four years after Magna +Carta, “by act of Parliament in 3 Henry III., according to Sir Edward +Coke, or rather by an order of the king in council.”—_3 Blackstone_ +345, _note_. + +I apprehend that this trial was never forced upon accused persons, but +was only allowed to them, _as an appeal to God_, from the judgment of a +jury.[^33] + +_The trial by compurgators_ was one in which, if the accused could bring +twelve of his neighbors, who would make oath that they believed him +innocent, he was held to be so. It is probable that this trial was +really the trial by jury, or was allowed as an appeal from a jury. It is +wholly improbable that two different modes of trial, so nearly +resembling each other as this and the trial by jury do, should prevail +at the same time, and among a rude people, whose judicial proceedings +would naturally be of the simplest kind. But if this trial really were +any other than the trial by jury, it must have been nearly or quite +extinct at the time of Magna Carta; and there is no probability that it +was included in “_legem terræ_.”] + +[Footnote 28: Coke attempts to show that there is a distinction between +amercements and fines—admitting that amercements must be fixed by one’s +peers, but claiming that fines may be fixed by the government. (_2 +Inst._ 27, _8 Coke’s Reports_ 38.) But there seems to have been no +ground whatever for supposing that any such distinction existed at the +time of Magna Carta. If there were any such distinction in the time of +Coke, it had doubtless grown up within the four centuries that had +elapsed since Magna Carta, and is to be set down as one of the +numberless inventions of government for getting rid of the restraints of +Magna Carta, and for taking men out of the protection of their peers, +and subjecting them to such punishments as the government chooses to +inflict. + +The first statute of Westminster, passed sixty years after Magna Carta, +treats the fine and amercement as synonymous, as follows: + +“Forasmuch as _the common fine and amercement_ of the whole county in +Eyre of the justices for false judgments, or for other trespass, is +unjustly assessed by sheriffs and baretors in the shires, * * it is +provided, and the king wills, that from henceforth such sums shall be +assessed before the justices in Eyre, afore their departure, _by the +oath of knights and other honest men_,” &c.—_3 Edward I., Ch._ 18. +(1275.) + +And in many other statutes passed after Magna Carta, the terms _fine_ +and _amercement_ seem to be used indifferently, in prescribing the +punishment for offences. As late as 1461, (246 years after Magna Carta,) +the statute _1 Edward IV., Ch._ 2, speaks of “_fines, ransoms, and +amerciaments_” as being levied upon criminals, as if they were the +common punishments of offences. + +_St._ 2 and 3 _Philip and Mary, Ch._ 8, uses the terms, “_fines, +forfeitures, and amerciaments_” five times. (1555.) + +_St. 5 Elizabeth, Ch._ 13, _Sec._ 10, uses the terms “_fines, +forfeitures, and amerciaments_.” + +That amercements were fines, or pecuniary punishments, inflicted for +offences, is proved by the following statutes, (all supposed to have +been passed within one hundred and fifteen years after Magna Carta,) +which speak of amercements as a species of “_judgment_,” or punishment, +and as being inflicted for the same offences as other “judgments.” + +Thus one statute declares that a baker, for default in the weight of his +bread, “ought to be _amerced_, or suffer the _judgment_ of the pillory;” +and that a brewer, for “selling ale contrary to the assize,” “ought to +be _amerced_, or suffer the _judgment_ of the tumbrel.”—_51 Henry III., +St._ 6. (1266.) + +Among the “_Statutes of Uncertain Date_,” but supposed to be prior to +Edward III., (1326,) are the following: + +_Chap._ 6 provides that “if a brewer break the assize, (fixing the price +of ale,) the first, second, and third time, he shall be _amerced_; but +the fourth time he shall suffer _judgment_ of the pillory without +redemption.” + +_Chap._ 7 provides that “a butcher that selleth swine’s flesh measled, +or flesh dead of the murrain, or that buyeth flesh of Jews, and selleth +the same unto Christians, after he shall be convict thereof, for the +first time he shall be grievously _amerced_; the second time he shall +suffer _judgment_ of the pillory; and the third time he shall be +imprisoned and make _fine_; and the fourth time he shall forswear the +town.” + +_Chap. 10_, a statute against _forestalling_, provides that, + +“He that is convict thereof, the first time shall be _amerced_, and +shall lose the thing so bought, and that according to the custom of the +town; he that is convicted the second time shall have _judgment_ of the +pillory; at the third time he shall be imprisoned and make _fine_; the +fourth time he shall abjure the town. And this _judgment_ shall be given +upon all manner of forestallers, and likewise upon them that have given +them counsel, help, or favor.”—_1 Ruffhead’s Statutes_, 187, 188. _1 +Statutes of the Realm_, 203.] + +[Footnote 29: 1 Hume, Appendix, 1.] + +[Footnote 30: Blackstone says, “Our ancient Saxon laws nominally +punished theft with death, if above the value of twelve pence; but the +criminal was permitted to redeem his life by a pecuniary ransom, as +among their ancestors, the Germans, by a stated number of cattle. But in +the ninth year of Henry the First, (1109,) this power of redemption was +taken away, and all persons guilty of larceny above the value of twelve +pence were directed to be hanged, which law continues in force to this +day.”—_4 Blackstone_, 238. + +I give this statement of Blackstone, because the latter clause may seem +to militate with the idea, which the former clause corroborates, viz., +that at the time of Magna Carta, fines were the usual punishments of +offences. But I think there is no probability that a law so unreasonable +in itself, (unreasonable even after making all allowance for the +difference in the value of money,) and so contrary to immemorial custom, +could or did obtain any general or speedy acquiescence among a people +who cared little for the authority of kings. + +Maddox, writing of the period from William the Conqueror to John, says: + +“The amercements in criminal and common pleas, which were wont to be +imposed during this first period and afterwards, were of so many several +sorts, that it is not easy to place them under distinct heads. Let them, +for method’s sake, be reduced to the heads following: Amercements for or +by reason of murders and manslaughters, for misdemeanors, for +disseisins, for recreancy, for breach of assize, for defaults, for +non-appearance, for false judgment, and for not making suit, or hue and +cry. To them may be added miscellaneous amercements, for trespasses of +divers kinds.”—_1 Maddox’ History of the Exchequer_, 542.] + +[Footnote 31: Coke, in his exposition of the words _legem terræ_, gives +quite in detail the principles of the common law governing _arrests_; +and takes it for granted that the words “_nisi per legem terræ_” are +applicable to arrests, as well as to the indictment, &c.—2 _Inst._, +51,52.] + +[Footnote 32: I cite the above extract from Mr. Hallam solely for the +sake of his authority for rendering the word _vel_ by _and_; and not by +any means for the purpose of indorsing the opinion he suggests, that +_legem terræ_ authorized “judgments by default or demurrer,” _without +the intervention of a jury_. He seems to imagine that _lex terræ_, the +common law, at the time of Magna Carta, included everything, even to the +practice of courts, that is, _at this day_, called by the name of +_Common Law_; whereas much of what is _now_ called Common Law has grown +up, by usurpation, since the time of Magna Carta, in palpable violation +of the authority of that charter. He says, “Certainly there are many +legal procedures, besides _trial_ by jury, through which a party’s goods +or person may be taken.” Of course there are _now_ many such ways, in +which a party’s goods or person _are_ taken, besides by the judgment of +a jury; but the question is, whether such takings are not in violation +of Magna Carta. + +He seems to think that, in cases of “judgment by default or demurrer,” +there is no need of a jury, and thence to infer that _legem terræ_ may +not have required a jury in those cases. But this opinion is founded on +the erroneous idea that juries are required only for determining +contested _facts_, and not for judging of the law. In case of default, +the plaintiff must present a _prima facie_ case before he is entitled to +a judgment; and Magna Carta, (supposing it to require a jury trial in +civil cases, as Mr. Hallam assumes that it does,) as much requires that +this _prima facie_ case, both law and fact, be made out to the +satisfaction of a jury, as it does that a contested case shall be. + +As for a demurrer, the jury must try a demurrer (having the advice and +assistance of the court, of course) as much as any other matter of law +arising in a case. + +Mr. Hallam evidently thinks there is no use for a jury, except where +there is a “_trial_”—meaning thereby a contest on matters of _fact_. +His language is, that “there are many legal procedures, besides _trial_ +by jury, through which a party’s goods or person may be taken.” Now +Magna Carta says nothing of _trial_ by jury; but only of the _judgment_, +or sentence, of a jury. It is only _by inference_ that we come to the +conclusion that there must be a _trial_ by jury. Since the jury alone +can give the _judgment_, or _sentence_, we _infer_ that they must _try_ +the case; because otherwise they would be incompetent, and would have no +moral right, to give _judgment_. They must, therefore, examine the +grounds, (both of law and fact,) or rather _try_ the grounds, of every +action whatsoever, whether it be decided on “default, demurrer,” or +otherwise, and render their judgment, or sentence, thereon, before any +judgment can be a legal one, on which “to take a party’s goods or +person.” In short, the principle of Magna Carta is, that no judgment can +be valid _against a party’s goods or person_, (not even a judgment for +costs,) except a judgment rendered by a jury. Of course a jury must try +every question, both of law and fact, that is involved in the rendering +of that judgment. They are to have the assistance and advice of the +judges, so far as they desire them; but the judgment itself must be +theirs, and not the judgment of the court. + +As to “process of attachment for contempt,” it is of course lawful for a +judge, in his character of a peace officer, to issue a warrant for the +arrest of a man guilty of a contempt, as he would for the arrest of any +other offender, and hold him to bail, (or, in default of bail, commit +him to prison,) to answer for his offence before a jury. Or he may order +him into custody without a warrant when the offence is committed in the +judge’s presence. But there is no reason why a judge should have the +power of _punishing_ for contempt, any more than for any other offence. +And it is one of the most dangerous powers a judge can have, because it +gives him absolute authority in a court of justice, and enables him to +tyrannize as he pleases over parties, counsel, witnesses, and jurors. If +a judge have power to punish for contempt, and to determine for himself +what is a contempt, the whole administration of justice (or injustice, +if he choose to make it so) is in his hands. And all the rights of +jurors, witnesses, counsel, and parties, are held subject to his +pleasure, and can be exercised only agreeably to his will. He can of +course control the entire proceedings in, and consequently the decision +of, every cause, by restraining and punishing every one, whether party, +counsel, witness, or juror, who presumes to offer anything contrary to +his pleasure. + +This arbitrary power, which has been usurped and exercised by judges to +punish for contempt, has undoubtedly had much to do in subduing counsel +into those servile, obsequious, and cowardly habits, which so +universally prevail among them, and which have not only cost so many +clients their rights, but have also cost the people so many of their +liberties. + +If any _summary_ punishment for contempt be ever necessary, (as it +probably is not,) beyond exclusion for the time being from the +court-room, (which should be done, not as a punishment, but for +self-protection, and the preservation of order,) the judgment for it +should be given by the jury, (where the trial is before a jury,) and not +by the court, for the jury, and not the court, are really the judges. +For the same reason, exclusion from the court-room should be ordered +only by the jury, in cases when the trial is before a jury, because +they, being the real judges and triers of the cause, are entitled, if +anybody, to the control of the court-room. In appeal courts, where no +juries sit, it may be necessary—not as a punishment, but for +self-protection, and the maintenance of order—that the court should +exercise the power of excluding a person, for the time being, from the +court-room; but there is no reason why they should proceed to sentence +him as a criminal, without his being tried by a jury. + +If the people wish to have their rights respected and protected in +courts of justice, it is manifestly of the last importance that they +jealously guard the liberty of parties, counsel, witnesses, and jurors, +against all arbitrary power on the part of the court. + +Certainly Mr. Hallam may very well say that “one may doubt whether these +(the several cases he has mentioned) were in contemplation of the +framers of Magna Carta”—that is, as exceptions to the rule requiring +that all judgments, that are to be enforced “_against a party’s goods or +person_,” be rendered by a jury. + +Again, Mr. Hallam says, if the word _vel_ be rendered by _and_, “the +meaning will be, that no person shall be disseized, &c., _except upon a +lawful cause of action_.” This is true; but it does not follow that any +cause of action, founded on _statute only_, is therefore a “_lawful_ +cause of action,” within the meaning of _legem terræ_, or the _Common +Law_. Within the meaning of the _legem terræ_ of Magna Carta, nothing +but a _common law_ cause of action is a “_lawful_” one.] + +[Footnote 33: Hallam says, “It appears as if the ordeal were permitted +to persons already convicted by this verdict of a jury.”—_2 Middle +Ages_, 446, _note_.] diff --git a/edited/03.markdown b/edited/03.markdown new file mode 100644 index 0000000..46f096b --- /dev/null +++ b/edited/03.markdown @@ -0,0 +1,2793 @@ +# ADDITIONAL PROOFS OF THE RIGHTS AND DUTIES OF JURORS + + +If any evidence, extraneous to the history and language of Magna Carta, +were needed to prove that, by that chapter which guaranties the trial by +jury, all was meant that has now been ascribed to it, and _that the +legislation of the king was to be of no authority with the jury beyond +what they chose to allow to it_, and that the juries were to limit the +punishments to be inflicted, we should find that evidence in various +sources, such as the laws, customs, and characters of their ancestors on +the continent, and of the northern Europeans generally; in the +legislation and customs that immediately succeeded Magna Carta; in the +oaths that have at different times been administered to jurors, &c., &c. +This evidence can be exhibited here but partially. To give it all would +require too much space and labor. + + +## Weakness of the Regal Authority + +Hughes, in his preface to his translation of Horne’s “_Mirror of +Justices_,” (a book written in the time of Edward I., 1272 to 1307,) +giving a concise view of the laws of England generally, says: + +> “Although in the Saxon’s time I find the usual words of the acts then +> to have been _edictum_, (edict,) _constitutio_, (statute,) little +> mention being made of the commons, yet I further find that, _tum +> demum leges vim et vigerem habuerunt, cum fuerunt non modo institutæ +> sed firmatæ approbatione communitatis_.” (The laws had force and +> vigor only when they were not only enacted, but confirmed by the +> approval of the community.) + +The _Mirror of Justices_ itself also says, (ch. 1, sec. 3,) in speaking +“_Of the first Constitutions of the Ancient Kings_:” + +> “Many ordinances were made by many kings, until the time of the king +> that now is (Edward I.); the which ordinances were abused, _or not +> used by many, nor very current_, because they were not put in +> writing, and certainly published.”—_Mirror of Justices_, p. 6. + +Hallam says: + +> “The Franks, Lombards, and Saxons seem alike to have been jealous of +> judicial authority; and averse to surrendering what concerned every +> man’s private right, out of the hands of his neighbors and +> equals.”—_1 Middle Ages_, 271. + +The “judicial authority,” here spoken of, was the authority of the +kings, (who at that time united the office of both legislators and +judges,) and not of a separate department of government, called the +judiciary, like what has existed in more modern times.[^34] + +Hume says: + +> “The government of the Germans, and that of all the northern nations, +> who established themselves on the ruins of Rome, was always extremely +> free; and those fierce people, accustomed to independence and inured +> to arms, _were more guided by persuasion than authority, in the +> submission which they paid to their princes_. The military despotism, +> which had taken place in the Roman empire, and which, previously to +> the irruption of those conquerors, had sunk the genius of men, and +> destroyed every noble principle of science and virtue, was unable to +> resist the vigorous efforts of a free people, and Europe, as from a +> new epoch, rekindled her ancient spirit, and shook off the base +> servitude to arbitrary will and authority under which she had so long +> labored. The free constitutions then established, however impaired by +> the encroachments of succeeding princes, still preserve an air of +> independence and legal administration, which distinguished the +> European nations; and if that part of the globe maintain sentiments +> of liberty, honor, equity, and valor, superior to the rest of +> mankind, it owes these advantages chiefly to the seeds implanted by +> those generous barbarians. + +> “_The Saxons, who subdued Britain, as they enjoyed great liberty in +> their own country, obstinately retained that invaluable possession in +> their new settlement; and they imported into this island the same +> principles of independence, which they had inherited from their +> ancestors. The chieftains, (for such they were, more than kings or +> princes,) who commanded them in those military expeditions, still +> possessed a very limited authority_; and as the Saxons exterminated, +> rather than subdued the ancient inhabitants, they were, indeed, +> transplanted into a new territory, _but preserved unaltered all their +> civil and military institutions_. The language was pure Saxon; even +> the names of places, which often remain while the tongue entirely +> changes, were almost all affixed by the conquerors; the manners and +> customs were wholly German; and the same picture of a fierce and bold +> liberty, which is drawn by the masterly pen of Tacitus, will suit +> those founders of the English government. _The king, so far from +> being invested with arbitrary power, was only considered as the first +> among the citizens; his authority depended more on his personal +> qualities than on his station; he was even so far on a level with the +> people, that a stated price was fixed for his head, and a legal fine +> was levied upon his murderer, which though proportionate to his +> station, and superior to that paid for the life of a subject, was a +> sensible mark of his subordination to the community._”—_1 Hume_, +> _Appendix_, 1. + +Stuart says: + +> “The Saxons brought along with them into Britain their own customs, +> language, and civil institutions. Free in Germany, they renounced not +> their independence, when they had conquered. Proud from victory, and +> with their swords in their hands, would they surrender their +> liberties to a private man? Would temporary leaders, limited in their +> powers, and unprovided in resources, ever think to usurp an authority +> over warriors, who considered themselves as their equals, were +> impatient of control, and attached with devoted zeal to their +> privileges? Or, would they find leisure to form resolutions, or +> opportunities to put them in practice, amidst the tumult and +> confusion of those fierce and bloody wars, which their nations first +> waged with the Britons, and then engaged in among themselves? +> Sufficiently flattered in leading the armies of their countrymen, the +> ambition of commanders could as little suggest such designs, as the +> liberty of the people could submit to them. The conquerors of Britain +> retained their independence; and this island saw itself again in +> that free state in which the Roman arms had discovered it. + +> “The same firmness of character, and generosity of manners, which, in +> general, distinguished the Germans, were possessed in an eminent +> degree by the Saxons; and while we endeavor to unfold their political +> institutions, we must perpetually turn our observation to that +> masterly picture in which the Roman historian has described these +> nations. In the woods of Germany shall we find the principles which +> directed the state of land, in the different kingdoms of Europe; and +> there shall we find the foundation of those ranks of men, and of +> those civil arrangements, which the barbarians everywhere +> established; and which the English alone have had the good fortune, +> or the spirit, to preserve.”—_Stuart on the Constitution of +> England_, p. 59-61. + +> “Kings they (the Germans) respected as the first magistrates of the +> state; but the authority possessed by them was narrow and +> limited.”—_Ditto_, p. 134. + +> “Did he, (the king,) at any time, relax his activity and martial +> ardor, did he employ his abilities to the prejudice of his nation, or +> fancy he was superior to the laws; the same power which raised him to +> honor, humbled and degraded him. The customs and councils of his +> country pointed out to him his duty; and if he infringed on the +> former, or disobeyed the latter, a fierce people set aside his +> authority. * * + +> “His long hair was the only ornament he affected, and to be foremost +> to attack an enemy was his chief distinction. Engaged in every +> hazardous expedition, he was a stranger to repose; and, rivalled by +> half the heroes of his tribe, he could obtain little power. Anxious +> and watchful for the public interest, he felt every moment his +> dependence, and gave proofs of his submission. + +> “He attended the general assembly of his nation, and was allowed the +> privilege to harangue it first; but the arts of persuasion, though +> known and respected by a rude people, were unequally opposed to the +> prejudices and passions of men.”—_Ditto_, p. 135-6. + +> “_The authority of a Saxon monarch was not more considerable. The +> Saxons submitted not to the arbitrary rule of princes. They +> administered an oath to their sovereigns, which bound them to +> acknowledge the laws, and to defend the rights of the church and +> people; and if they forgot this obligation, they forfeited their +> office._ In both countries, a price was affixed on kings, a fine +> expiated their murder, as well as that of the meanest citizen; and +> the smallest violation of ancient usage, or the least step towards +> tyranny, was always dangerous, and often fatal to them.”—_Ditto_, p. +> 139-40. + +> “They were not allowed to impose taxes on the kingdom.”—_Ditto_, p. +> 146. + +> “Like the German monarchs, they deliberated in the general assembly +> of the nation; _but their legislative authority was not much +> respected_; and their assent was considered in no better light than +> as a form. This, however, was their chief prerogative; and they +> employed it to acquire an ascendant in the state. To art and +> insinuation they turned, as their only resource, and flattered a +> people whom they could not awe; but address, and the abilities to +> persuade, were a weak compensation for the absence of real power. + +> “They declared war, it is said, and made peace. In both cases, +> however, they acted as the instruments of the state, and put in +> execution the resolutions which its councils had decreed. If, indeed, +> an enemy had invaded the kingdom, and its glory and its safety were +> concerned, the great lords took the field at the call of their +> sovereign. But had a sovereign declared war against a neighboring +> state, without requiring their advice, or if he meant to revenge by +> arms an insult offered to him by a subject, a haughty and independent +> nobility refused their assistance. These they considered as the +> quarrels of the king, and not of the nation; and in all such +> emergencies he could only be assisted by his retainers and +> dependents.”—_Ditto_, p. 147-8. + +> “Nor must we imagine that the Saxon, any more than the German +> monarchs, succeeded each other in a lineal descent,[^35] or that they +> disposed of the crown at their pleasure. In both countries, the free +> election of the people filled the throne; and their choice was the +> only rule by which princes reigned. The succession, accordingly, of +> their kings was often broken and interrupted, and their depositions +> were frequent and groundless. The will of a prince whom they had long +> respected, and the favor they naturally transferred to his +> descendant, made them often advance him to the royal dignity; but the +> crown of his ancestor he considered as the gift of the people, and +> neither expected nor claimed it as a right.”—_Ditto_, p. 151-3. + +In Germany “It was the business of the great to command in war, and in +peace they distributed justice. * * + +> “The _princes_ in Germany were _earls_ in England. The great +> contended in both countries in the number of their retainers, and in +> that splendor and magnificence which are so alluring to a rude +> people; and though they joined to set bounds to regal power, they +> were often animated against each other with the fiercest hatred. To a +> proud and impatient nobility it seemed little and unsuiting to give +> or accept compositions for the injuries they committed or received; +> and their vassals adopting their resentment and passions, war and +> bloodshed alone could terminate their quarrels. What necessarily +> resulted from their situation in society, was continued as a +> _privilege_; and the great, in both countries, made war, of their +> private authority, on their enemies. The Saxon earls even carried +> their arms against their sovereigns; and, surrounded with retainers, +> or secure in fortresses and castles, they despised their resentment, +> and defied their power. + +> “The judges of the people, they presided in both countries in courts +> of law.[^36] The particular districts over which they exerted their +> authority were marked out in Germany by the council of the state; and +> in England their jurisdiction extended over the fiefs and other +> territories they possessed. All causes, both civil and criminal, were +> tried before them; and they judged, except in cases of the utmost +> importance, without appeal. They were even allowed to grant pardon to +> criminals, and to correct by their clemency the rigors of justice. +> Nor did the sovereign exercise any authority in their lands. In these +> his officers formed no courts, and his _writ_ was disregarded. * * + +> “They had officers, as well as the king, who collected their +> revenues, and added to their greatness; and the inhabitants of their +> lands they distinguished by the name of _subjects_. + +> “But to attend the general assembly of their nation was the chief +> prerogative of the German and Saxon princes; and as they consulted +> the interest of their country, and deliberated concerning matters of +> state, so in the _king’s court_, of which also they were members, +> they assisted to pronounce judgment in the complaints and appeals +> which were lodged in it.”—_Ditto_, p. 158 to 165. + +Henry says: + +> “Nothing can be more evident than this important truth; that our +> Anglo-Saxon kings were not absolute monarchs; but that their powers +> and prerogatives were limited by the laws and customs of the country. +> Our Saxon ancestors had been governed by limited monarchs in their +> native seats on the continent; and there is not the least appearance +> or probability that they relinquished their liberties, and submitted +> to absolute government in their new settlements in this island. It is +> not to be imagined that men, whose reigning passion was the love of +> liberty, would willingly resign it; and their new sovereigns, who had +> been their fellow-soldiers, had certainly no power to compel them to +> such a resignation.”—_3 Henry’s History of Great Britain_, 358. + +> Mackintosh says: “The Saxon chiefs, who were called kings, originally +> acquired power by the same natural causes which have gradually, and +> everywhere, raised a few men above their fellows. They were, +> doubtless, more experienced, more skilful, more brave, or more +> beautiful, than those who followed them. * * A king was powerful in +> war by the lustre of his arms, and the obvious necessity of +> obedience. His influence in peace fluctuated with his personal +> character. In the progress of usage his power became more fixed and +> more limited. * * It would be very unreasonable to suppose that the +> northern Germans who had conquered England, had so far changed their +> characteristic habits from the age of Tacitus, that the victors +> became slaves, and that their generals were converted into +> tyrants.”—_Mackintosh’s Hist. of England, Ch. 2._ _45 Lardner’s Cab. +> Cyc._, 73-4. + +Rapin, in his discourse on the “Origin and Nature of the English +Constitution,” says: + +> “There are but two things the Saxons did not think proper to trust +> their kings with; for being of like passions with other men, they +> might very possibly abuse them; namely, the power of changing the +> laws enacted by consent of king and people; and the power of raising +> taxes at pleasure. From these two articles sprung numberless branches +> concerning the liberty and property of the subject, which the king +> cannot touch, without breaking the constitution, and they are the +> distinguishing character of the English monarchy. The prerogatives of +> the crown, and the rights and privileges of the people, flowing from +> the two fore-mentioned articles, are the ground of all the laws that +> from time to time have been made by unanimous consent of king and +> people. The English government consists in the strict union of the +> king’s prerogatives with the people’s liberties. * * But when kings +> arose, as some there were, that aimed at absolute power, by changing +> the old, and making new laws, at pleasure; by imposing illegal taxes +> on the people; this excellent government being, in a manner, +> dissolved by these destructive measures, confusion and civil wars +> ensued, which some very wrongfully ascribe to the fickle and restless +> temper of the English.”—_Rapin’s Preface to his History of England._ + +Hallam says that among the Saxons, “the royal authority was weak.”—_2 +Middle Ages_, 403. + +But although the king himself had so little authority, that it cannot be +supposed for a moment that his laws were regarded as imperative by the +people, it has nevertheless been claimed, in modern times, by some who +seem determined to find or make a precedent for the present legislative +authority of parliament, that his laws were authoritative, _when +assented to_ by the _Witena-gemote_, or assembly of wise men—that is, +the bishops and barons. But this assembly evidently had no legislative +power whatever. The king would occasionally invite the bishops and +barons to meet him for consultation on public affairs, _simply as a +council_, and not as a legislative body. Such as saw fit to attend, did +so. If they were agreed upon what ought to be done, the king would pass +a law accordingly, and the barons and bishops would then return and +inform the people orally what laws had been passed, and use their +influence with them to induce them to conform to the law of the king, +and the recommendation of the council. And the people no doubt were much +more likely to accept a law of the king, if it had been approved by this +council, than if it had not. But it was still only a law of the king, +which they obeyed or disregarded according to their own notions of +expediency. The numbers who usually attended this council were too small +to admit of the supposition that they had any legislative authority +whatever, to impose laws upon the people against their will. + +Lingard says: + +> “It was necessary that the king should obtain the assent of these +> (the members of the Witena-gemotes) to all legislative enactments; +> _because, without their acquiescence and support, it was impossible +> to carry them into execution_. To many charters (laws) we have the +> signatures of the Witan. _They seldom exceed thirty in number; they +> never amount to sixty._”—_1 Lingard_, 486. + +It is ridiculous to suppose that the assent of such an assembly gave any +_authority_ to the laws of the king, or had any influence in securing +obedience to them, otherwise than by way of persuasion. If this body had +had any real legislative authority, such as is accorded to legislative +bodies of the present day, they would have made themselves at once the +most conspicuous portion of the government, and would have left behind +them abundant evidence of their power, instead of the evidence simply of +their assent to a few laws passed by the king. + +More than this. If this body had had any real legislative authority, +they would have constituted an aristocracy, having, in conjunction with +the king, absolute power over the people. Assembling voluntarily, merely +on the invitation of the king; deputed by nobody but themselves; +representing nobody but themselves; responsible to nobody but +themselves; their legislative authority, if they had had any, would of +necessity have made the government the government of an aristocracy +merely, _and the people slaves, of course_. And this would necessarily +have been the picture that history would have given us of the +Anglo-Saxon government, _and of Anglo-Saxon liberty_. + +The fact that the people had no representation in this assembly, and the +further fact that, through their juries alone, they nevertheless +maintained that noble freedom, the very tradition of which (after the +substance of the thing itself has ceased to exist) has constituted the +greatest pride and glory of the nation to this day, _prove_ that this +assembly exercised no authority which juries of the people acknowledged, +except at their own discretion.[^37] + +There is not a more palpable truth, in the history of the Anglo-Saxon +government, than that stated in the Introduction to Gilbert’s History of +the Common Pleas,[^38] viz., “_that the County and Hundred Courts_,” (to +which should have been added the other courts in which juries sat, the +courts-baron and court-leet,) “_in those times were the real and only +Parliaments of the kingdom_.” And why were they the real and only +parliaments of the kingdom? Solely because, as will be hereafter shown, +the juries in those courts tried causes on their intrinsic merits, +according to their own ideas of justice, irrespective of the laws agreed +upon by kings, priests, and barons; and whatever principles they +uniformly, or perhaps generally, enforced, _and none others_, became +practically the law of the land as matter of course.[^39] + +Finally, on this point. Conclusive proof that the legislation of the +king was of little or no authority, is found in the fact _that the kings +enacted so few laws_. If their laws had been received as authoritative, +in the manner that legislative enactments are at this day, they would +have been making laws continually. Yet the codes of the most celebrated +kings are very small, and were little more than compilations of +immemorial customs. The code of Alfred would not fill twelve pages of +the statute book of Massachusetts, and was little or nothing else than a +compilation of the laws of Moses, and the Saxon customs, evidently +collected from considerations of convenience, rather than enacted on the +principle of authority. The code of Edward the Confessor would not fill +twenty pages of the statute book of Massachusetts, and, says Blackstone, +“seems to have been no more than a new edition, or fresh promulgation of +Alfred’s code, or _dome-book_, with such additions and improvements as +the experience of a century and a half suggested.”—_1 Blackstone_, +66.[^40] + +The Code of William the Conqueror[^41] would fill less than seven pages +of the statute book of Massachusetts; and most of the laws contained in +it are taken from the laws of the preceding kings, and especially of +Edward the Confessor (whose laws William swore to observe); but few of +his own being added. + +The codes of the other Saxon and Norman kings were, as a general rule, +less voluminous even than these that have been named; and probably did +not exceed them in originality.[^42] The Norman princes, from William the +Conqueror to John, I think without exception, bound themselves, and, in +order to maintain their thrones, were obliged to bind themselves, to +observe the ancient laws and customs, in other words, the “_lex terræ_,” +or “_common law_” of the kingdom. Even Magna Carta contains hardly +anything other than this same “_common law_,” with some new securities +for its observance. + +How is this abstinence from legislation, on the part of the ancient +kings, to be accounted for, except on the supposition that the people +would accept, and juries enforce, few or no new laws enacted by their +kings? Plainly it can be accounted for in no other way. In fact, all +history informs us that anciently the attempts of the kings to introduce +or establish new laws, met with determined resistance from the people, +and generally resulted in failure. “_Nolumus Leges Angliæ mutari_,” (we +will that the laws of England be not changed,) was a determined +principle with the Anglo-Saxons, from which they seldom departed, up to +the time of Magna Carta, and indeed until long after.[^43] + + +## The Ancient Common Law Juries were mere Courts of Conscience + +But it is in the administration of justice, or of law, that the freedom +or subjection of a people is tested. If this administration be in +accordance with the arbitrary will of the legislator—that is, if his +will, as it appears in his statutes, be the highest rule of decision +known to the judicial tribunals,—the government is a despotism, and the +people are slaves. If, on the other hand, the rule of decision be those +principles of natural equity and justice, which constitute, or at least +are embodied in, the general conscience of mankind, the people are free +in just so far as that conscience is enlightened. + +That the authority of the king was of little weight with the _judicial +tribunals_, must necessarily be inferred from the fact already stated, +that his authority over the _people_ was but weak. If the authority of +his laws had been paramount in the judicial tribunals, it would have +been paramount with the people, of course; because they would have had +no alternative but submission. The fact, then, that his laws were _not_ +authoritative with the people, is proof that they were _not_ +authoritative with the tribunals—in other words, that they were not, as +matter of course, enforced by the tribunals. + +But we have additional evidence that, up to the time of Magna Carta, the +laws of the king were not binding upon the judicial tribunals; and if +they were not binding before that time, they certainly were not +afterwards, as has already been shown from Magna Carta itself. It is +manifest from all the accounts we have of the courts in which juries +sat, prior to Magna Carta, such as the court-baron, the hundred court, +the court-leet, and the county court, _that they were mere courts of +conscience, and that the juries were the judges, deciding causes +according to their own notions of equity, and not according to any laws +of the king, unless they thought them just_. + +These courts, it must be considered, were very numerous, and held very +frequent sessions. There were probably seven, eight, or nine hundred +courts _a month_, in the kingdom; the object being, as Blackstone says, +“_to bring justice home to every man’s door_.” (_3 Blackstone_, 30.) The +number of the _county_ courts, of course, corresponded to the number of +counties, (36.) The _court-leet_ was the criminal court for a district +less than a county. The _hundred court_ was the court for one of those +districts anciently called a _hundred_, because, at the time of their +first organization for judicial purposes, they comprised (as is +supposed) but a hundred families.[^44] The court-baron was the court for +a single manor, and there was a court for every manor in the kingdom. +All these courts were holden as often as once in three or five weeks; +the county court once a month. The king’s judges were present at none of +these courts; the only officers in attendance being sheriffs, bailiffs, +and stewards, merely ministerial, and not judicial, officers; doubtless +incompetent, and, if not incompetent, untrustworthy, for giving the +juries any reliable information in matters of law, beyond what was +already known to the jurors themselves. And yet these were the courts, +in which was done all the judicial business, both civil and criminal, of +the nation, except appeals, and some of the more important and difficult +cases.[^45] It is plain that the juries, in these courts, must, of +necessity, have been the sole judges of all matters of law whatsoever; +because there was no one present, but sheriffs, bailiffs, and stewards, +to give them any instructions; and surely it will not be pretended that +the jurors were bound to take their law from such sources as these. + +In the second place, it is manifest that the principles of law, by which +the juries determined causes, were, as a general rule, nothing else than +their own ideas of natural equity, _and not any laws of the king_; +because but few laws were enacted, and many of those were not written, +but only agreed upon in council.[^46] Of those that were written, few +copies only were made, (printing being then unknown,) and not enough to +supply all, or any considerable number, of these numerous courts. Beside +and beyond all this, few or none of the jurors could have read the laws, +if they had been written; because few or none of the common people +could, at that time, read. Not only were the common people unable to +read their own language, but, at the time of Magna Carta, the laws were +written in Latin, a language that could be read by few persons except +the priests, who were also the lawyers of the nation. Mackintosh says, +“the first act of the House of Commons composed and recorded in the +English tongue,” was in 1415, two centuries after Magna Carta.[^47] Up to +this time, and for some seventy years later, the laws were generally +written either in Latin or French; both languages incapable of being +read by the common people, as well Normans as Saxons; and one of them, +the Latin, not only incapable of being read by them, but of being even +understood when it was heard by them. + +To suppose that the people were bound to obey, and juries to enforce, +laws, many of which were unwritten, none of which _they_ could read, and +the larger part of which (those written in Latin) they could not +translate, or understand when they heard them read, is equivalent to +supposing the nation sunk in the most degrading slavery, instead of +enjoying a liberty of their own choosing. + +Their knowledge of the laws passed by the king was, of course, derived +only from oral information; and “_the good laws_,” as some of them were +called, in contradistinction to others—those which the people at large +esteemed to be good laws—were doubtless enforced by the juries, and the +others, as a general thing, disregarded.[^48] + +That such was the nature of judicial proceedings, and of the power of +juries, up to the time of Magna Carta, is further shown by the following +authorities. + +> “The sheriffs and bailiffs caused the free tenants of their bailiwics +> to meet at their counties and hundreds; _at which justice was so +> done, that every one so judged his neighbor by such judgment as a man +> could not elsewhere receive in the like cases_, until such times as +> the customs of the realm were put in writing, and certainly +> published. + +> “And although a freeman commonly was not to serve (as a juror or +> judge) without his assent, nevertheless it was assented unto that +> free tenants should meet together in the counties and hundreds, and +> lords courts, if they were not specially exempted to do such suits, +> and _there judged their neighbors_.”—_Mirror of Justices_, p. 7, 8. + +Gilbert, in his treatise on the Constitution of England, says: + +> “In the county courts, if the debt was above forty shillings, there +> issued a _justicies_ (a commission) to the sheriff, to enable him to +> hold such a plea, _where the suitors_ (_jurors_) _are judges of the +> law and fact_.”—_Gilbert’s Cases in Law and Equity, &c., &c._, 456. + +All the ancient writs, given in Glanville, for summoning jurors, +indicate that the jurors judged of everything, _on their consciences +only_. The writs are in this form: + +> “Summon twelve free and legal men (or sometimes twelve knights) to be +> in court, _prepared upon their oaths to declare whether A or B have +> the greater right to the land_ (_or other thing_) _in question_.” See +> Writs in Beames’ Glanville, p. 54 to 70, and 233-306 to 332. + +Crabbe, speaking of the time of Henry I., (1100 to 1135,) recognizes the +fact that the jurors were the judges. He says: + +> “By one law, every one was to be tried by his peers, who were of the +> same neighborhood as himself. * * By another law, _the judges, for so +> the jury were called_, were to be chosen by the party impleaded, +> after the manner of the Danish _nembas_; by which, probably, is to be +> understood that the defendant had the liberty of taking exceptions +> to, or challenging the jury, as it was afterwards called.”—_Crabbe’s +> History of the English Law_, p. 55. + +Reeve says: + +> “The great court for _civil_ business was the _county court_; held +> once every four weeks. Here the sheriff presided; _but the suitors of +> the court, as they were called, that is, the freemen or landholders +> of the county, were the judges_; and the sheriff was to execute the +> judgment. * * + +> “The _hundred court_ was held before _some bailiff_; the _leet_ +> before the lord of the manor’s steward.[^49] * * + +> “Out of the county court was derived an inferior court of _civil_ +> jurisdiction, called the _court-baron_. This was held from three +> weeks to three weeks, and _was in every respect like the county +> court_;” (_that is, the jurors were judges in it_;) “only the lord to +> whom this franchise was granted, or _his steward_, _presided instead +> of the sheriff_.”—_1 Reeve’s History of the English Law_, p. 7. + +Chief Baron Gilbert says: + +> “Besides the tenants of the king, which held _per baroniam_, (by the +> right of a baron,) and did suit and service (served as judges) at his +> own court; and the burghers and tenants in ancient demesne, that did +> suit and service (served as jurors or judges) in their own court in +> person, and in the king’s by proxy, there was also a set of +> freeholders, that did suit and service (served as jurors) at the +> county court. These were such as anciently held of the lord of the +> county, and by the escheats of earldoms had fallen to the king; or +> such as were granted out by service to hold of the king, but with +> particular reservation to do suit and service (serve as jurors) +> before the king’s bailiff; _because it was necessary the sheriff, or +> bailiff of the king, should have suitors_ (_jurors_) _at the county +> court, that the business might be despatched. These suitors are the +> pares_ (_peers_) _of the county court, and indeed the judges of it; +> as the pares_ (_peers_) _were the judges in every court-baron_; and +> therefore the king’s bailiff having a court before him, there must be +> _pares or judges, for the sheriff himself is not a judge_; and though +> the style of the court is _Curia prima Comitatus E.C. Milit.’ +> vicecom’ Comitat’ præd’ Tent’ apud B._, &c. (First Court of the +> county, E.C. knight, sheriff of the aforesaid county, held at B., &c.); +> by which it appears that the court was the sheriff’s; _yet, by +> the old feudal constitutions, the lord was not judge, but the pares_ +> (_peers_) _only_; so that, even in a _justicies_, which was a +> commission to the sheriff to hold plea of more than was allowed by +> the natural jurisdiction of a county court, _the pares_ (_peers, +> jurors_) _only were judges, and not the sheriff_; because it was to +> hold plea in the same manner as they used to do in that (the lord’s) +> court.”—_Gilbert on the Court of Exchequer_, ch. 5, p. 61-2. + +> “It is a distinguishing feature of the feudal system, to make civil +> jurisdiction necessarily, and criminal jurisdiction ordinarily, +> coëxtensive with tenure; and accordingly there is inseparably +> incident to every manor a court-baron (curia baronum), _being a court +> in which the freeholders of the manor are the sole judges_, but in +> which the lord, by himself, or more commonly by his steward, +> presides.”—_Political Dictionary_, word _Manor_. + +The same work, speaking of the county court, says: “_The judges were the +freeholders who did suit to the court._” See word _Courts_. + +> “In the case of freeholders attending as suitors, the county court +> or court-baron, (as in the case of the ancient tenants _per baroniam_ +> attending Parliament,) _the suitors are the judges of the court, both +> for law and for fact_, and the sheriff or the under sheriff in the +> county court, and the lord or his steward in the court-baron, are +> only presiding officers, _with no judicial authority_.”—_Political +> Dictionary_, word _Suit_. + +> “COURT, (curtis, curia aula); the space enclosed by the walls of a +> feudal residence, in which the followers of a lord used to assemble +> in the middle ages, to administer justice, and decide respecting +> affairs of common interest, &c. It was next used for those who stood +> in immediate connexion with the lord and master, the _pares curiæ_, +> (peers of the court,) the limited portion of the general assembly, to +> which was entrusted the pronouncing of judgment,” &c.—_Encyclopedia +> Americana_, word _Court_. + +> “In court-barons or county courts _the steward was not judge, but the +> pares_ (_peers_, _jurors_); nor was the speaker in the House of Lords +> judge, but the barons only.”—_Gilbert on the Court of Exchequer_, +> ch. 3, p. 42. + +Crabbe, speaking of the Saxon times, says: + +> “The sheriff presided at the _hundred court_, * * and sometimes sat +> in the place of the alderman (earl) in the _county +> court_.”—_Crabbe_, 23. + +The sheriff afterwards became the sole presiding officer of the county +court. + +Sir Thomas Smith, Secretary of State to Queen Elizabeth, writing more +than three hundred years after Magna Carta, in describing the difference +between the Civil Law and the English Law, says: + +> “_Judex_ is of us called Judge, but our fashion is so divers, that +> they which give the deadly stroke, and either condemn or acquit the +> man for guilty or not guilty, _are not called judges, but the twelve +> men. And the same order as well in civil matters and pecuniary, as in +> matters criminal_.”—_Smith’s Commonwealth of England_, ch. 9, p. 53, +> Edition of 1621. + +> _Court-Leet._ “That the _leet_ is the most ancient court in the land +> for _criminal_ matters, (the court-baron being of no less antiquity +> in _civil_,) has been pronounced by the highest legal authority. * * +> Lord Mansfield states that this court was coeval with the +> establishment of the Saxons here, and its activity marked very +> visibly both among the Saxons and Danes. * * The leet is a court of +> record for the cognizance of criminal matters, or pleas of the crown; +> and necessarily belongs to the king; though a subject, usually the +> lord of the manor, may be, and is, entitled to the profits, +> consisting of the essoign pence, fines, and amerciaments. + +> “_It is held before the steward, or was, in ancient times, before the +> bailiff, of the lord._”—_Tomlin’s Law Dict._, word _Court-Leet_. + +Of course the jury were the judges in this court, where only a “steward” +or “bailiff” of a manor presided. + +> “No cause of consequence was determined without the king’s writ; for +> even in the county courts, of the debts, which were above forty +> shillings, there issued a _Justicies_ (commission) to the sheriff, to +> enable him to hold such plea, _where the suitors are judges of the +> law and fact_.”—_Gilbert’s History of the Common Pleas, +> Introduction_, p. 19. + +> “This position” (that “the matter of law was decided by the King’s +> Justices, but the matter of fact by the pares”) “_is wholly +> incompatible with the common law, for the Jurata (jury) were the sole +> judges both of the law and the fact_.”—_Gilbert’s History of the +> Common Pleas_, p. 70, _note_. + +> We come now to the challenge; and of old _the suitors in court, who +> were judges_, could not be challenged; nor by the feudal law could +> the _pares_ be even challenged, _Pares qui ordinariam jurisdictionem +> habent recusari non possunt_; (the peers who have ordinary +> jurisdiction cannot be rejected;) “_but those suitors who are judges +> of the court_, could not be challenged; and the reason is, that there +> are several qualifications required by the writ, viz., that they be +> _liberos et legales homines de vincineto_ (free and legal men of the +> neighborhood) of the place laid in the declaration,” &c., +> &c.—_Ditto_, p. 93. + +> “_Ad questionem juris non respondent Juratores._” (To the question of +> law the jurors do not answer.) “The Annotist says, that this is +> indeed a maxim in the Civil-Law Jurisprudence, _but it does not bind +> an English jury, for by the common law of the land the jury are +> judges as well of the matter of law, as of the fact_, with this +> difference only, that the (a Saxon word) or judge on the bench is to +> give them no assistance in determining the matter of _fact_, but if +> they have any doubt among themselves relating to matter of _law_, +> they may then request him to explain it to them, which when he hath +> done, and they are thus become well informed, they, and they only, +> become competent judges of the matter of _law_. And this is the +> province of the judge on the bench, namely, to show, or _teach_ the +> law, but not to take upon him the trial of the delinquent, either in +> matter of fact or in matter of law.” (Here various Saxon laws are +> quoted.) “In neither of these fundamental laws is there the least +> word, hint, or idea, that the earl or alderman (that is to say, the +> _Prepositus_ (presiding officer) of the court, which is tantamount to +> _the judge on the bench_) is to take upon him to judge the delinquent +> in any sense whatever, the sole purport of his office is to _teach_ +> the secular or worldly law.”—_Ditto_, p. 57, _note_. + +> “The administration of justice was carefully provided for; it was not +> the caprice of their lord, _but the sentence of their peers, that +> they obeyed. Each was the judge of his equals, and each by his equals +> was judged._”—_Introd. to Gilbert on Tenures_, p. 12. + +> Hallam says: “A respectable class of free socagers, having, in +> general, full rights of alienating their lands, and holding them +> probably at a small certain rent from the lord of the manor, +> frequently occur in Domes-day Book. * * They undoubtedly were suitors +> to the court-baron of the lord, to whose soc, or right of justice, +> they belonged. _They were consequently judges in civil causes, +> determined before the manorial tribunal._”—_2 Middle Ages_, 481. + +Stephens adopts as correct the following quotations from Blackstone: + +> “The _Court-Baron_ is a court incident to every manor in the kingdom, +> to be holden by the steward within the said manor.” * * _It “is a +> court of common law, and it is the court before the freeholders who +> owe suit and service to the manor_,” (are bound to serve as jurors in +> the courts of the manor,) “_the steward being rather the registrar +> than the judge_. * * The freeholders’ court was composed of the +> lord’s tenants, who were the _pares_ (equals) of each other, and were +> bound by their feudal tenure to assist their lord in the dispensation +> of domestic justice. This was formerly held every three weeks; _and +> its most important business was to determine, by writ of right, all +> controversies relating to the right of lands within the manor_.”—_3 +> Stephens’ Commentaries_, 392-3. _3 Blackstone_, 32-3. + +> “A _Hundred Court_ is only a larger court-baron, being held for all +> the inhabitants of a particular hundred, instead of a manor. _The +> free suitors (jurors) are here also the judges, and the steward the +> register._”—_3 Stephens_, 394. _3 Blackstone_, 33. + +> “The _County Court_ is a court incident to the jurisdiction of the +> sheriff. * * _The freeholders of the county are the real judges in +> this court, and the sheriff is the ministerial officer._”—_3 +> Stephens_, 395-6. _3 Blackstone_, 35-6. + +Blackstone describes these courts, as courts “_wherein injuries were +redressed in an easy and expeditious manner, by the suffrage of +neighbors and friends_.”—_3 Blackstone_, 30. + +> “When we read of a certain number of _freemen_ chosen by the parties +> to decide in a dispute—all bound by oath to vote _in foro +> conscientia_—and that _their_ decision, _not the will of the judge +> presiding, ended the suit_, we at once perceive that a great +> improvement has been made in the old form of compurgation—an +> improvement which impartial observation can have no hesitation to +> pronounce as identical in its main features with the trial by +> jury.”—_Dunham’s Middle Ages_, Sec. 2, B. 2, Ch. 1. _57 Lardner’s +> Cab. Cyc._, 60. + +> “The bishop and the earl, or, in his absence, the gerefa, (sheriff,) +> and sometimes both the earl and the gerefa, presided at the +> _schyre-mote_ (county court); the gerefa (sheriff) usually alone +> presided at the _mote_ (meeting or court) of the hundred. In the +> cities and towns which were not within any peculiar jurisdiction, +> there was held, at regular stated intervals, a _burgh mote_, (borough +> court,) for the administration of justice, at which a gerefa, or a +> magistrate appointed by the king, presided.”—_Spence’s Origin of the +> Laws and Political Institutions of Modern Europe_, p. 444. + +> “The right of the plaintiff and defendant, and of the prosecutor and +> criminal, _to challenge the judices_, (judges,) _or assessors,[^50] +> appointed to try the cause in civil matters, and to decide upon the +> guilt or innocence of the accused in criminal matters_, is recognized +> in the treatise called the Laws of Henry the First; but I cannot +> discover, from the Anglo-Saxon laws or histories, that before the +> Conquest the parties had any general right of challenge; _indeed, had +> such right existed, the injunctions to all persons standing in the +> situation of judges (jurors) to do right according to their +> conscience_, would scarcely have been so frequently and anxiously +> repeated.”—_Spence_, 456. + +Hale says: + +> “The administration of the common justice of the kingdom seems to be +> wholly dispensed in the county courts, hundred courts, and +> courts-baron; except some of the greater crimes reformed by the laws +> of King Henry I., and that part thereof which was sometimes taken up +> by the _Justitiarius Angliæ_.” + +> This doubtless bred great inconvenience, uncertainty, and variety in +> the laws, viz.: + +> “_First, by the ignorance of the judges, which were the freeholders +> of the county._ * * + +> “Thirdly, a third inconvenience was, that all the business of any +> moment was carried by parties and factions. _For the freeholders +> being generally the judges_, and conversing one among another, _and +> being as it were the chief judges, not only of the fact, but of the +> law_; every man that had a suit there, sped according as he could +> make parties.”—_1 Hale’s History of the Common Law_, p. 246. + +> “In all these tribunals,” (county court, hundred court, &c.,) “_the +> judges were the free tenants_, owing suit to the court, and +> afterwards called its peers.”—_1 Lingard’s History of England_, 488. + +Henry calls the twelve jurors “assessors,” and says: + +> “These assessors, _who were in reality judges_, took a solemn oath, +> that they would faithfully discharge the duties of their office, and +> not suffer an innocent man to be condemned, nor any guilty person to +> be acquitted.”—_3 Henry’s History of Great Britain_, 346. + +Tyrrell says: + +> “Alfred cantoned his kingdom, first into _Trihings_ and _Lathes_, as +> they are still called in Kent and other places, consisting of three +> or four Hundreds; _in which, the freeholders being judges_, such +> causes were brought as could not be determined in the Hundred +> court.”—_Tyrrell’s Introduction to the History of England_, p. 80. + +Of the _Hundred Court_ he says: + +> “In this court anciently, _one of the principal inhabitants, called +> the alderman, together with the barons of the Hundred[^51]—id est the +> freeholders—was judge_.”—_Ditto_, p. 80. + +Also he says: + +> “By a law of Edward the Elder, ‘Every sheriff shall convene the +> people once a month, and do equal right to all, putting an end to +> controversies at times appointed.’”—_Ditto_, p. 86. + +> “A statute, emphatically termed the ‘Grand Assize,’ enabled the +> defendant, if he thought proper, to abide by the testimony of the +> twelve good and lawful knights, chosen by four others of the +> vicinage, _and whose oaths gave a final decision to the contested +> claim_.”—_1 Palgrave’s Rise and Progress of the English +> Commonwealth_, 261. + +> “From the moment when the crown became accustomed to the ‘Inquest,’ a +> restraint was imposed upon every branch of the prerogative. _The king +> could never be informed of his rights, but through the medium of the +> people._ Every ‘extent’ by which he claimed the profits and +> advantages resulting from the casualties of tenure, every process by +> which he repressed the usurpations of the baronage, depended upon the +> ‘good men and true’ who were impanelled to ‘pass’ between the subject +> and the sovereign; and the thunder of the Exchequer at Westminster +> might be silenced by the honesty, the firmness, or the obstinacy, of +> one sturdy knight or yeoman in the distant shire. + +> Taxation was controlled in the same manner by the voice of those who +> were most liable to oppression. * * A jury was impanelled to adjudge +> the proportion due to the sovereign; and this course was not +> essentially varied, even after the right of granting aids to the +> crown was fully acknowledged to be vested in the parliament of the +> realm. The people taxed themselves; and the collection of the grants +> was checked and controlled, and, perhaps, in many instances evaded, +> by these virtual representatives of the community. + +> The principle of the jury was, therefore, not confined to its mere +> application as a mode of trying contested facts, whether in civil or +> criminal cases; and, both in its form and in its consequences, it had +> a very material influence upon the general constitution of the realm. +> * * The main-spring of the machinery of remedial justice existed in +> the franchise of the lower and lowest orders of the political +> hierarchy. Without the suffrage of the yeoman, the burgess, and the +> churl, the sovereign could not exercise the most important and most +> essential function of royalty; from them he received the power of +> life and death; he could not wield the sword of justice until the +> humblest of his subjects placed the weapon in his hand.”—_1 +> Palgrave’s Rise and Progress of the English Constitution_, 274-7. + +Coke says, “The court of the county is no court of record,[^52] _and the +suitors are the judges thereof_.”—_4 Inst._, 266. + +Also, “The court of the Hundred is no court of record, _and the suitors +be thereof judges_.”—_4 Inst._, 267. + +Also, “The court-baron is a court incident to every manor, and is not of +record, _and the suitors be thereof judges_.”—_4 Inst._, 268. + +Also, “The court of ancient demesne is in the nature of a court-baron, +_wherein the suitors are judges_, and is no court of record.”—_4 +Inst._, 269. + +Millar says, “Some authors have thought that jurymen were originally +_compurgators_, called by a defendant to swear that they believed him +innocent of the facts with which he was charged.... But ... compurgators +were merely witnesses; _jurymen were, in reality, judges_. The former +were called to confirm the oath of the party by swearing, according to +their belief, that he had told the truth, (in his oath of purgation;) +_the latter were appointed to try, by witnesses, and by all other means +of proof, whether he was innocent or guilty_.... Juries were accustomed +to ascertain the truth of facts, by the defendant’s oath of purgation, +together with that of his compurgators.... Both of them (jurymen and +compurgators) were obliged to swear that they would _tell the truth_.... +According to the simple idea of our forefathers, guilt or innocence was +regarded as a mere matter of fact; and it was thought that no man, who +knew the real circumstances of a case, could be at a loss to determine +whether the culprit ought to be condemned or acquitted.”—_1 Millar’s +Hist. View of Eng. Gov._, ch. 12, p. 332-4. + +Also, “The same form of procedure, which took place in the +administration of justice among the vassals of a barony, was gradually +extended to the courts held in the _trading towns_.”—_Same_, p. 335. + +Also, “The same regulations, concerning the distribution of justice by +the intervention of juries, ... _were introduced into the baron courts +of the king_, as into those of the nobility, or such of his subjects as +retained their allodial property.”—_Same_, p. 337. + +Also. “This tribunal” (the _aula regis_, or king’s court, afterwards +divided into the courts of King’s Bench, Common Pleas, and Exchequer) +“was properly the ordinary baron-court of the king; and, being in the +same circumstances with the baron-courts of the nobility, it was under +the same necessity of trying causes by the intervention of a +jury.”—_Same_, vol. 2, p. 292. + +Speaking of the times of Edward the First, (1272 to 1307,) Millar says: + +“What is called the petty jury was therefore introduced into these +tribunals, (the King’s Bench, the Common Pleas, and the _Exchequer_,) as +well as into their auxiliary courts employed to distribute justice in +the circuits; and was thus rendered essentially necessary in determining +causes of every sort, whether civil, criminal, or _fiscal_.”—_Same_, +vol. 2, p. 293-4. + +Also, “That this form of trial (by jury) obtained universally in all the +feudal governments, as well as in that of England, there can be no +reason to doubt. In France, in Germany, and in other European countries, +where we have any accounts of the constitution and procedure of the +feudal courts, it appears that lawsuits of every sort concerning the +freemen or vassals of a barony, were determined by the _pares curiæ_ +(peers of the court;) _and that the judge took little more upon him than +to regulate the method of proceeding, or to declare the verdict of the +jury_.”—_Same_, vol. 1, ch. 12, p. 329. + +Also, “Among the Gothic nations of modern Europe, the custom of deciding +lawsuits by a jury seems to have prevailed universally; first in the +allodial courts of the county, or of the hundred, and afterwards in the +baron-courts of every feudal superior.”—_Same_, vol. 2, p. 296. + +Palgrave says that in Germany “The Graff (gerefa, sheriff) placed +himself in the seat of judgment, and gave the charge to the assembled +free Echevins, warning them to pronounce judgment according to right and +justice.”—2 _Palgrave_, 147. + +Also, that, in Germany, “The Echevins were composed of the villanage, +somewhat obscured in their functions by the learning of the grave +civilian who was associated to them, and somewhat limited by the +encroachments of modern feudality; _but they were still substantially +the judges of the court_.”—_Same_, 148. + +Palgrave also says, “Scotland, in like manner, had the laws of Burlaw, +or Birlaw, which were made and determined by the neighbors, elected by +common consent, in the Burlaw or Birlaw courts, wherein knowledge was +taken of complaints between neighbor and neighbor, _which men, so +chosen, were judges and arbitrators_, and called Birlaw men.”—1 +_Palgrave’s Rise_, &c., p. 80. + +But, in order to understand the common law trial by jury, as it existed +prior to Magna Carta, and as it was guaranteed by that instrument, it is +perhaps indispensable to understand more fully the nature of the courts +in which juries sat, and the extent of the powers exercised by juries in +those courts. I therefore give in a note extended extracts, on these +points, from Stuart on the Constitution of England, and from +Blackstone’s Commentaries.[^53] + +That all these courts were mere _courts of conscience, in which the +juries were sole judges, administering justice according to their own +ideas of it_, is not only shown by the extracts already given, but is +explicitly acknowledged in the following one, in which the _modern +“courts of conscience“_ are compared with the _ancient hundred and +county courts_, and the preference given to the latter, on the ground +that the duties of the jurors in the one case, and of the commissioners +in the other, are the same, and that the consciences of a jury are a +safer and purer tribunal than the consciences of individuals specially +appointed, and holding permanent offices. + +> “But there is one species of courts constituted by act of Parliament, +> in the city of London, and other trading and populous districts, +> which, in their proceedings, so vary from the course of the common +> law, that they deserve a more particular consideration. I mean the +> court of requests, _or courts of conscience_, for the recovery of +> small debts. The first of these was established in London so early as +> the reign of Henry VIII., by an act of their common council; which, +> however, was certainly insufficient for that purpose, and illegal, +> till confirmed by statute 3 Jac. I., ch. 15, which has since been +> explained and amended by statute 14 Geo. II., ch. 10. The +> constitution is this: two aldermen and four commoners sit twice a +> week to hear all causes of debt not exceeding the value of forty +> shillings; which they examine in a summary way, by the oath of the +> parties or other witnesses, _and make such order therein as is +> consonant to equity and good conscience_.* * Divers trading towns and +> other districts have obtained acts of Parliament, for establishing +> in them _courts of conscience_ upon nearly the same plan as that in +> the city of London. + +> “The anxious desire that has been shown to obtain these several acts, +> proves clearly that the nation, in general, is truly sensible of the +> great inconvenience arising from the disuse of the ancient county and +> hundred courts, wherein causes of this small value were always +> formerly decided with very little trouble and expense to the parties. +> But it is to be feared that the general remedy, which of late hath +> been principally applied to this inconvenience, (the erecting these +> new jurisdictions,) may itself be attended in time with very ill +> consequences; as the method of proceeding therein is entirely in +> derogation of the common law; and their large discretionary powers +> create a petty tyranny in a set of standing commissioners; and as the +> disuse of the trial by jury may tend to estrange the minds of the +> people from that valuable prerogative of Englishmen, which has +> already been more than sufficiently excluded in many instances. _How +> much rather is it to be wished that the proceedings in the county and +> hundred courts could be again revived_, without burdening the +> freeholders with too frequent and tedious attendances; and at the +> same time removing the delays that have insensibly crept into their +> proceedings, and the power that either party has of transferring at +> pleasure their suits to the courts at Westminster! _And we may, with +> satisfaction, observe, that this experiment has been actually tried, +> and has succeeded in the populous county of Middlesex_, which might +> serve as an example for others. For by statute 23 Geo. II., ch. 33, +> it is enacted: + +> 1. That a special county court shall be held at least once in a +> month, in every hundred of the county of Middlesex, _by the county +> clerk_. + +> 2. _That twelve freeholders of that hundred, qualified to serve on +> juries, and struck by the sheriff, shall be summoned to appear at +> such court by rotation_; so as none shall be summoned oftener than +> once a year. + +> 3. That in all causes not exceeding the value of forty shillings, +> _the county clerk and twelve suitors (jurors) shall proceed in a +> summary way_, examining the parties and witnesses on oath, without +> the formal process anciently used; _and shall make such order therein +> as they shall judge agreeable to conscience_.”—_3 Blackstone_, +> 81-83. + +What are these but courts of conscience? And yet Blackstone tells us +they are a _revival of the ancient hundred and county courts_. And what +does this fact prove, but that the ancient common law courts, in which +juries sat, were mere courts of conscience? + +It is perfectly evident that in all these courts the jurors were the +judges, and determined all questions of law for themselves; because the +only alternative to that supposition is, _that the jurors took their law +from sheriffs, bailiffs, and stewards_, of which there is not the least +evidence in history, nor the least probability in reason. It is evident, +also, that they judged independently of the laws of the king, for the +reasons before given, viz., that the authority of the king was held in +very little esteem; and, secondly, that the laws of the king (not being +printed, and the people being unable to read them if they had been +printed) must have been in a great measure unknown to them, and could +have been received by them only on the authority of the sheriff, +bailiff, or steward. If laws were to be received by them on the +authority of these officers, the latter would have imposed such laws +upon the people as they pleased. + +These courts, that have now been described, were continued in full power +long after Magna Carta, no alteration being made in them by that +instrument, _nor in the mode of administering justice in them_. + +There is no evidence whatever, so far as I am aware, that the juries had +any _less_ power in the courts held by the king’s justices, than in +those held by sheriffs, bailiffs, and stewards; and there is no +probability whatever that they had. All the difference between the +former courts and the latter undoubtedly was, that, in the former, the +juries had the benefit of the advice and assistance of the justices, +which would, of course, be considered valuable in difficult cases, on +account of the justices being regarded as more learned, not only in the +laws of the king, but also in the common law, or “law of the land.” + +The conclusion, therefore, I think, inevitably must be, that neither the +laws of the king, nor the instructions of his justices, had any +authority over jurors beyond what the latter saw fit to accord to them. +And this view is confirmed by this remark of Hallam, the truth of which +all will acknowledge: + +> “The rules of legal decision, among a rude people, are always very +> simple; not serving much to guide, far less to control the feelings +> of natural equity.”—_2 Middle Ages_, ch. 8, part 2, p. 465. + +It is evident that it was in this way, _by the free and concurrent +judgments of juries, approving and enforcing certain laws and rules of +conduct, corresponding to their notions of right and justice_, that the +laws and customs, which, for the most part, made up the _common law_, +and were called, at that day, “_the good laws, and good customs_,” and +“_the law of the land_,” were established. How otherwise could they ever +have become established, as Blackstone says they were, “_by long and +immemorial usage, and by their universal reception throughout the +kingdom_,”[^54] when, as the Mirror says, “_justice was so done, that +every one so judged his neighbor, by such judgment as a man could not +elsewhere receive in the like cases, until such times as the customs of +the realm were put in writing and certainly published_?” + +The fact that, in that dark age, so many of the principles of natural +equity, as those then embraced in the _Common Law_, should have been so +uniformly recognized and enforced by juries, as to have become +established by general consent as “_the law of the land_;” and the +further fact that this “law of the land” was held so sacred that even +the king could not lawfully infringe or alter it, but was required to +swear to maintain it, are beautiful and impressive illustrations of the +truth that men’s minds, even in the comparative infancy of other +knowledge, have clear and coincident ideas of the elementary principles, +and the paramount obligation, of justice. The same facts also prove that +the common mind, and the general, or, perhaps, rather, the universal +conscience, as developed in the untrammelled judgments of juries, may be +safely relied upon for the preservation of individual rights in civil +society; and that there is no necessity or excuse for that deluge of +arbitrary legislation, with which the present age is overwhelmed, under +the pretext that unless laws be _made_, the law will not be known; a +pretext, by the way, almost universally used for overturning, instead of +establishing, the principles of justice. + + +## The Oaths of Jurors + +The oaths that have been administered to jurors, in England, and which +are their _legal_ guide to their duty, _all_ (so far as I have +ascertained them) corroborate the idea that the jurors are to try all +cases on their intrinsic merits, independently of any laws that they +deem unjust or oppressive. It is probable that an oath was never +administered to a jury in England, either in a civil or criminal case, +to try it _according to law_. + +The earliest oath that I have found prescribed by law to be administered +to jurors is in the laws of Ethelred, (about the year 1015,) which +require that the jurors “_shall swear, with their hands upon a holy +thing, that they will condemn no man that is innocent, nor acquit any +that is guilty_.”—_4 Blackstone_, 302. _2 Turner’s History of the +Anglo-Saxons, 155. Wilkins’ Laws of the Anglo-Saxons_, 117. _Spelman’s +Glossary_, word _Jurata_. + +Blackstone assumes that this was the oath of the _grand_ jury (_4 +Blackstone_, 302); but there was but one jury at the time this oath was +ordained. The institution of two juries, grand and petit, took place +after the Norman Conquest. + +Hume, speaking of the administration of justice in the time of Alfred, +says that, in every hundred, + +> “Twelve freeholders were chosen, who, having sworn, together with the +> hundreder, or presiding magistrate of that division, _to administer +> impartial justice_, proceeded to the examination of that cause which +> was submitted to their jurisdiction.”—_Hume_, ch. 2. + +By a law of Henry II., in 1164, it was directed that the sheriff +“_faciet jurare duodecim legales homines de vicineto seu de villa, quod +inde veritatem secundum conscientiam suam manifestabunt_,” (shall make +twelve legal men from the neighborhood _to swear that they will make +known the truth according to their conscience_.)—_Crabbe’s History of +the English Law_, 119. _1 Reeves_, 87. _Wilkins_, 321-323. + +Glanville, who wrote within the half century previous to Magna Carta, +says: + +> “Each of the knights summoned for this purpose (as jurors) ought to +> swear that he will neither utter that which is false, nor knowingly +> conceal the truth.”—_Beames’ Glanville_, 65. + +Reeve calls the trial by jury “_the trial by twelve men sworn to speak +the truth_.”—_1 Reeve’s History of the English Law_, 87. + +Henry says that the jurors “took a solemn oath, that they would +faithfully discharge the duties of their office, and not suffer an +innocent man to be condemned, nor any guilty person to be +acquitted.”—_3 Henry’s Hist. of Great Britain_, 346. + +The _Mirror of Justices_, (written within a century after Magna Carta,) +in the chapter on the abuses of the Common Law, says: + +> “It is abuse to use the words, _to their knowledge_, in their oaths, +> to make the jurors speak upon thoughts, _since the chief words of +> their oaths be that they speak the truth_.”—p. 249. + +Smith, writing in the time of Elizabeth, says that, in _civil_ suits, +the jury “be sworn to declare the truth of that issue according to the +evidence, and their conscience.”—_Smith’s Commonwealth of England_, +edition of 1621, p. 73. + +In _criminal_ trials, he says: + +> “The clerk giveth the juror an oath to go uprightly betwixt the +> prince and the prisoner.”—_Ditto_, p. 90.[^55] + +Hale says: + +> “Then twelve, and no less, of such as are indifferent and are +> returned upon the principal panel, or the _tales_, are sworn to try +> the same according to the evidence.”—_2 Hale’s History of the Common +> Law_, 141. + +It appears from Blackstone that, even _at this day, neither in civil nor +criminal cases_, are jurors in England sworn to try causes _according to +law_. He says that in civil suits the jury are + +> “Sworn well and truly to _try the issue_ between the parties, and a +> true verdict to give according to the evidence.”—_3 Blackstone_, +> 365. + +“_The issue_” to be tried is whether A owes B anything; and if so, how +much? or whether A has in his possession anything that belongs to B; or +whether A has wronged B, and ought to make compensation; and if so, how +much? + +No statute passed by a legislature, simply as a legislature, can alter +either of these “issues” in hardly any conceivable case, perhaps in +none. No _unjust_ law could ever alter them in any. They are all mere +questions of natural justice, which legislatures have no power to alter, +and with which they have no right to interfere, further than to provide +for having them settled by the most competent and impartial tribunal +that it is practicable to have, and then for having all just decisions +enforced. And any tribunal, whether judge or jury, that attempts to try +these issues, has no more moral right to be swerved from the line of +justice, by the will of a legislature, than by the will of any other +body of men whatever. And this oath does not require or permit a jury to +be so swerved. + +In criminal cases, Blackstone says the oath of the jury in England is: + +> “Well and truly to try, and true deliverance make, between our +> sovereign lord, the king, and the prisoner whom they have in charge, +> and a true verdict to give according to the evidence.”—_4 +> Blackstone_, 355. + +“The issue” to be tried, in a criminal case, is “_guilty_,” or “_not +guilty_.” The laws passed by a legislature can rarely, if ever, have +anything to do with this issue. “_Guilt_” is an _intrinsic_ quality of +actions, and can neither be created, destroyed, nor changed by +legislation. And no tribunal that attempts to try this issue can have +any moral right to declare a man _guilty_, for an act that is +intrinsically innocent, at the bidding of a legislature, any more than +at the bidding of anybody else. And this oath does not require or permit +a jury to do so. + +The words, “_according to the evidence_,” have doubtless been introduced +into the above oaths in modern times. They are unquestionably in +violation of the Common Law, and of Magna Carta, if by them be meant +such evidence only as the government sees fit to allow to go to the +jury. If the government can dictate the evidence, and require the jury +to decide according to that evidence, it necessarily dictates the +conclusion to which they must arrive. In that case the trial is really a +trial by the government, and not by the jury. _The jury_ cannot _try an +issue_, unless _they_ determine what evidence shall be admitted. The +ancient oaths, it will be observed, say nothing about “_according to the +evidence_.” They obviously take it for granted that the jury try the +whole case; and of course that _they_ decide what evidence shall be +admitted. It would be intrinsically an immoral and criminal act for a +jury to declare a man guilty, or to declare that one man owed money to +another, unless all the evidence were admitted, which _they_ thought +ought to be admitted, for ascertaining the truth.[^56] + +_Grand Jury._—If jurors are bound to enforce all laws passed by the +legislature, it is a very remarkable fact that the oath of grand juries +does not require them to be governed by the laws in finding indictments. +There have been various forms of oath administered to grand jurors; but +by none of them that I recollect ever to have seen, except those of the +States of Connecticut and Vermont, are they sworn to present men +_according to law_. The English form, as given in the essay on Grand +Juries, written near two hundred years ago, and supposed to have been +written by _Lord Somers_, is as follows: + +> “You shall diligently inquire, and true presentment make, of all such +> articles, matters, and things, as shall be given you in charge, and +> of all other matters and things as shall come to your knowledge +> touching this present service. The king’s council, your fellows, and +> your own, you shall keep secret. You shall present no person for +> hatred or malice; neither shall you leave any one unpresented for +> favor, or affection, for love or gain, or any hopes thereof; but in +> all things you shall present the truth, the whole truth, and nothing +> but the truth, to the best of your knowledge. So help you God.” + +This form of oath is doubtless quite ancient, for the essay says “our +ancestors appointed” it.—_See Essay_, p. 33-34. + +On the obligations of this oath, the essay says: + +> “If it be asked how, or in what manner, the (grand) juries shall +> inquire, the answer is ready, _according to the best of their +> understandings_. They only, not the judges, are sworn to search +> diligently to find out all treasons, &c., within their charge, and +> they must and ought to use their own discretion in the way and manner +> of their inquiry. _No directions can legally be imposed upon them by +> any court or judges_; an honest jury will thankfully accept good +> advice from judges, as their assistants; but they are bound by their +> oaths to present the truth, the whole truth, and nothing but the +> truth, to the best of their own, not the judge’s, knowledge. Neither +> can they, without breach of that oath, resign their consciences, or +> blindly submit to the dictates of others; and therefore ought to +> receive or reject such advices, as they judge them good or bad. * * +> Nothing can be more plain and express than the words of the oath are +> to this purpose. The jurors need not search the law books, nor tumble +> over heaps of old records, for the explanation of them. Our greatest +> lawyers may from hence learn more certainly our ancient law in this +> case, than from all the books in their studies. The language wherein +> the oath is penned is known and understood by every man, and the +> words in it have the same signification as they have wheresoever else +> they are used. The judges, without assuming to themselves a +> legislative power, cannot put a new sense upon them, other than +> according to their genuine, common meaning. They cannot magisterially +> impose their opinions upon the jury, and make them forsake the direct +> words of their oath, to pursue their glosses. The grand inquest are +> bound to observe alike strictly every part of their oath, and to use +> all just and proper ways which may enable them to perform it; +> otherwise it were to say, that after men had sworn to inquire +> diligently after the truth, according to the best of their knowledge, +> they were bound to forsake all the natural and proper means which +> their understandings suggest for the discovery of it, if it be +> commanded by the judges.”—_Lord Somers’ Essay on Grand Juries_, p. +> 38. + +What is here said so plainly and forcibly of the oath and obligations of +grand juries, is equally applicable to the oath and obligations of petit +juries. In both cases the simple oaths of the jurors, and not the +instructions of the judges, nor the statutes of kings nor legislatures, +are their legal guides to their duties.[^57] + + +## The Right of Juries to fix the Sentence + +The nature of the common law courts existing prior to Magna Carta, such +as the county courts, the hundred courts, the court-leet, and the +court-baron, all prove, what has already been proved from Magna Carta, +that, in jury trials, the juries fixed the sentence; because, in those +courts, there was no one but the jury who could fix it, unless it were +the sheriff, bailiff, or steward; and no one will pretend that it was +fixed by them. The juries unquestionably gave the “judgment” in both +civil and criminal cases. + +That the juries were to fix the sentence under Magna Carta, is also +shown by statutes subsequent to Magna Carta. + +A statute passed fifty-one years after Magna Carta, says that a baker, +for default in the weight of his bread, “_debeat_ amerciari vel subire +judicium pilloræ,”—that is, “_ought_ to be amerced, or suffer the +sentence of the pillory.” And that a brewer, for “selling ale, contrary +to the assize,” “_debeat_ amerciari, vel pati judicium tumbrelli;” that +is, “_ought_ to be amerced, or suffer judgment of the tumbrel.”—_51 +Henry III._, st. 6. (1266.) + +If the king (the legislative power) had had authority to fix the +punishments of these offences imperatively, he would naturally have said +these offenders _shall_ be amerced, and _shall_ suffer judgment of the +pillory and tumbrel, instead of thus simply expressing the opinion that +they _ought_ to be punished in that manner. + +The statute of Westminster, passed sixty years after Magna Carta, +provides that, + +> “No city, borough, nor town, _nor any man_, be amerced, without +> reasonable cause, and according to the quantity of the trespass; that +> is to say, every freeman saving his freehold, a merchant saving his +> merchandise, a villein his waynage, _and that by his or their +> peers_.”—_3 Edward I._, ch. 6. (1275.) + +The same statute (ch. 18) provides further, that, + +> “Forasmuch as the _common fine and amercement_ of the whole county in +> Eyre of the justices for false judgments, or for other trespass, is +> unjustly assessed by sheriffs and baretors in the shires, so that the +> sum is many times increased, and the parcels otherwise assessed than +> they ought to be, to the damage of the people, which be many times +> paid to the sheriffs and baretors, which do not acquit the payers; it +> is provided, and the king wills, that from henceforth such sums shall +> be assessed before the justices in Eyre, afore their departure, _by +> the oath of knights and other honest men_, upon all such as ought to +> pay; and the justices shall cause the parcels to be put into their +> estreats, which shall be delivered up unto the exchequer, and not the +> whole sum.”—_St. 3 Edward I._, ch. 18, (1275.)[^58] + +The following statute, passed in 1341, one hundred and twenty-five years +after Magna Carta, providing for the trial of peers of the realm, and +the king’s ministers, contains a recognition of the principle of Magna +Carta, that the jury are to fix the sentence. + +> “Whereas before this time the peers of the land have been arrested +> and imprisoned, and their temporalities, lands, and tenements, goods +> and cattels, asseized in the king’s hands, and some put to death +> without judgment of their peers: It is accorded and assented, that no +> peer of the land, officer, nor other, because of his office, nor of +> things touching his office, nor by other cause, shall be brought in +> judgment to lose his temporalities, lands, tenements, goods and +> cattels, nor to be arrested, nor imprisoned, outlawed, exiled, nor +> forejudged, nor put to answer, nor be judged, but by _award_ +> (_sentence_) of the said peers in Parliament.”—_15 Edward III._, st. +> 1, sec. 2. + +Section 4, of the same statute provides, + +> “That in every Parliament, at the third day of every Parliament, the +> king shall take in his hands the offices of all the ministers +> aforesaid,” (that is, “the chancellor, treasurer, barons, and +> chancellor of the exchequer, the justices of the one bench and of the +> other, justices assigned in the country, steward and chamberlain of +> the king’s house, keeper of the privy seal, treasurer of the +> wardrobe, controllers, and they that be chief deputed to abide nigh +> the king’s son, Duke of Cornwall,”) “and so they shall abide four or +> five days; except the offices of justices of the one place or the +> other, justices assigned, barons of exchequer; so always that they +> and all other ministers be put to answer to every complaint; and if +> default be found in any of the said ministers, by complaint or other +> manner, and of that attainted in Parliament, he shall be punished by +> judgment of the peers, and put out of his office, and another +> convenient put in his place. And upon the same our said sovereign +> lord the king shall do (cause) to be pronounced and made execution +> without delay, _according to the judgment_ (_sentence_) of the said +> peers in the Parliament.” + +Here is an admission that the peers were to fix the sentence, or +judgment, and the king promises to make execution “_according to_” that +sentence. + +And this appears to be the law, under which peers of the realm and the +great officers of the crown were tried and sentenced, for four hundred +years after its passage, and, for aught I know, until this day. + +The first case given in Hargrave’s collection of English State Trials, +is that of _Alexander Nevil_, Archbishop of York, _Robert Vere_, Duke +of Ireland, _Michael de la Pole_, Earl of Suffolk, and _Robert +Tresilian_, Lord Chief Justice of England, with several others, +convicted of treason, before “the Lords of Parliament,” in 1388. The +sentences in these cases were adjudged by the “Lords of Parliament,” in +the following terms, as they are reported. + +> “Wherefore the said _Lords of Parliament_, there present, as judges +> in Parliament, in this case, _by assent of the king, pronounced their +> sentence_, and did adjudge the said archbishop, duke, and earl, with +> Robert Tresilian, so appealed, as aforesaid, to be guilty, and +> convicted of treason, and to be drawn and hanged, as traitors and +> enemies to the king and kingdom; and that their heirs should be +> disinherited forever, and their lands and tenements, goods and +> chattels, forfeited to the king, and that the temporalities of the +> Archbishop of York should be taken into the king’s hands.” + +> Also, in the same case, Sir _John Holt_, Sir _William Burgh_, Sir +> _John Cary_, Sir _Roger Fulthorpe_, and _John Locton_, “_were by the +> lords temporal, by the assent of the king_, adjudged to be drawn and +> hanged, as traitors, their heirs disinherited, and their lands and +> tenements, goods and chattels, to be forfeited to the king.” + +> Also, in the same case, _John Blake_, “of council for the king,” and +> _Thomas Uske_, under sheriff of Middlesex, having been convicted of +> treason, + +> “_The lords awarded, by assent of the king_, that they should both be +> hanged and drawn as traitors, as open enemies to the king and +> kingdom, and their heirs disinherited forever, and their lands and +> tenements, goods and chattels, forfeited to the king.” + +> Also, “_Simon Burleigh_, the king’s chamberlain,” being convicted of +> treason, “_by joint consent of the king and the lords_, sentence was +> pronounced against the said Simon Burleigh, that he should be drawn +> from the town to Tyburn, and there be hanged till he be dead, and +> then have his head struck from his body.” + +> Also, “_John Beauchamp_, steward of the household to the king, _James +> Beroverse_, and _John Salisbury_, knights, gentlemen of the privy +> chamber, _were in like manner condemned_.”—_1 Hargrave’s State +> Trials_, first case. + +Here the sentences were all fixed by the peers, _with the assent of the +king_. But that the king should be consulted, and his assent obtained to +the sentence pronounced by the peers, does not imply any deficiency of +power on their part to fix the sentence independently of the king. There +are obvious reasons why they might choose to consult the king, and +obtain his approbation of the sentence they were about to impose, +without supposing any legal necessity for their so doing. + +So far as we can gather from the reports of state trials, peers of the +realm were usually sentenced by those who tried them, _with the assent +of the king_. But in some instances no mention is made of the assent of +the king, as in the case of “Lionel, Earl of Middlesex, Lord High +Treasurer of England,” in 1624, (four hundred years after Magna Carta,) +where the sentence was as follows: + +> “This High Court of Parliament doth adjudge, that Lionel, Earl of +> Middlesex, now Lord Treasurer of England, shall lose all his offices +> which he holds in this kingdom, and shall, hereafter, be made +> incapable of any office, place, or employment in the state and +> commonwealth. That he shall be imprisoned in the tower of London, +> during the king’s pleasure. That he shall pay unto our sovereign lord +> the king a fine of 50,000 pounds. That he shall never sit in +> Parliament any more, and that he shall never come within the verge of +> the court.”—_2 Howell’s State Trials_, 1250. + +Here was a peer of the realm, and a minister of the king, of the highest +grade; and if it were ever _necessary_ to obtain the assent of the king +to sentences pronounced by the peers, it would unquestionably have been +obtained in this instance, and his assent would have appeared in the +sentence. + +_Lord Bacon_ was sentenced by the House of Lords, (1620,) _no mention +being made of the assent of the king_. The sentence is in these words: + +> “And, therefore, this High Court doth adjudge, That the Lord Viscount +> St. Albans, Lord Chancellor of England, shall undergo fine and ransom +> of 40,000 pounds. That he shall be imprisoned in the tower during the +> king’s pleasure. That he shall forever be incapable of any office, +> place, or employment in the state or commonwealth. That he shall +> never sit in Parliament, nor come within the verge of the court.” + +And when it was demanded of him, before sentence, whether it were his +hand that was subscribed to his confession, and whether he would stand +to it; he made the following answer, which implies that the lords were +the ones to determine his sentence. + +> “My lords, it is my act, my hand, my heart. _I beseech your lordships +> to be merciful to a broken reed._”—_1 Hargrave’s State Trials_, +> 386-7. + +The sentence against Charles the First, (1648,) after reciting the +grounds of his condemnation, concludes in this form: + +> “For all which treasons and crimes, _this court doth adjudge_, that +> he, the said Charles Stuart, as a tyrant, traitor, murderer, and +> public enemy to the good people of this nation, shall be put to death +> by the severing his head from his body.” + +The report then adds: + +> “This sentence being read, the president (of the court) spake as +> followeth: ‘This sentence now read and published, is the act, +> sentence, judgment and resolution of the whole court.’”—_1 +> Hargrave’s State Trials_, 1037. + +Unless it had been the received “_law of the land_” that those who tried +a man should fix his sentence, it would have required an act of +Parliament to fix the sentence of Charles, and his sentence would have +been declared to be “_the sentence of the law_,” instead of “_the act, +sentence, judgment, and resolution of the court_.” + +But the report of the proceedings in “the trial of Thomas, Earl of +Macclesfield, Lord High Chancellor of Great Britain, before the House of +Lords, for high crimes and misdemeanors in the execution of his office,” +in 1725, is so full on this point, and shows so clearly that it rested +wholly with the lords to fix the sentence, and that the assent of the +king was wholly unnecessary, that I give the report somewhat at length. + +_After being found guilty_, the earl addressed the _lords_, for a +_mitigation of sentence_, as follows: + +> ”‘I am now to expect your lordships’ judgment; and I hope that you +> will be pleased to consider that I have suffered no small matter +> already in the trial, in the expense I have been at, the fatigue, and +> what I have suffered otherways. * * I have paid back 10,800 pounds of +> the money already; I have lost my office; I have undergone the +> censure of both houses of Parliament, which is in itself a severe +> punishment,’” &c., &c. + +On being interrupted, he proceeded: + +> ”‘My lords, I submit whether this be not proper in _mitigation of +> your lordships’ sentence_; but whether it be or not, I leave myself +> to your lordships’ justice and mercy; I am sure neither of them will +> be wanting, and I entirely submit.’ * * + +> “Then the said earl, as also the managers, were directed to withdraw; +> and the House (of Lords) ordered Thomas, Earl of Macclesfield, to be +> committed to the custody of the gentleman usher of the black rod; and +> then proceeded to the consideration of what _judgment_,” (that is, +> _sentence_, for he had already been found _guilty_,) “to give upon +> the impeachment against the said earl.” * * + +> “The next day, the Commons, with their speaker, being present at the +> bar of the House (of Lords), * * the speaker of the House of Commons +> said as follows: + +> ”‘My Lords, the knights, citizens, and burgesses in Parliament +> assembled, in the name of themselves, and of all the commons of Great +> Britain, did at this bar impeach Thomas, Earl of Macclesfield, of +> high crimes and misdemeanors, and did exhibit articles of impeachment +> against him, and have made good their charge. I do, therefore, in the +> name of the knights, citizens, and burgesses, in Parliament +> assembled, and of all the commons of Great Britain, demand _judgment_ +> (_sentence_) of your lordships against Thomas, Earl of Macclesfield, +> for the said high crimes and misdemeanors.’ + +> “Then the Lord Chief Justice King, Speaker of the House of Lords, +> said: ‘Mr. Speaker, the Lords are now ready to proceed to judgment in +> the case by you mentioned. + +> ”‘Thomas, Earl of Macclesfield, the Lords have unanimously found you +> guilty of high crimes and misdemeanors, charged on you by the +> impeachment of the House of Commons, and do now, according to law, +> proceed to _judgment_ against you, which I am ordered to pronounce. +> Their lordships’ _judgment_ is, and this high court doth adjudge, +> that you, Thomas, Earl of Macclesfield, be fined in the sum of thirty +> thousand pounds unto our sovereign lord the king; and that you shall +> be imprisoned in the tower of London, and there kept in safe custody, +> until you shall pay the said fine.’”—_6 Hargrave’s State Trials_, +> 762-3-4. + +This case shows that the principle of Magna Carta, that a man should be +_sentenced only_ by his peers, was in force, and acted upon as law, in +England, so lately as 1725, (five hundred years after Magna Carta,) so +far as it applied to a _peer of the realm_. + +But the same principle, on this point, that applies to a peer of the +realm, applies to every freeman. The only difference between the two is, +that the peers of the realm have had influence enough to preserve their +constitutional rights; while the constitutional rights of the people +have been trampled upon and rendered obsolete by the usurpation and +corruption of the government and the courts. + + +## The Oaths of Judges + +As further proof that the legislation of the king, whether enacted with +or without the assent and advice of his parliaments, was of no authority +unless it were consistent with the _common law_, and unless juries and +judges saw fit to enforce it, it may be mentioned that it is probable +that no judge in England was ever sworn to observe the laws enacted +either by the king alone, or by the king with the advice and assent of +parliament. + +The judges were sworn to “_do equal law, and execution of right, to all +the king’s subjects, rich and poor, without having regard to any +person_;” and that they will “_deny no man common right_;”[^59] but they +were _not_ sworn to obey or execute any statutes of the king, or of the +king and parliament. Indeed, they are virtually sworn _not_ to obey any +statutes that are against “_common right_,” or contrary to “_the common +law_,” or “_law of the land_;” but to “certify the king thereof”—that +is, notify him that his statutes are against the common law;—and then +proceed to execute the _common law_, notwithstanding such legislation to +the contrary. The words of the oath on this point are these: + +> “_That ye deny no man common right by (virtue of) the king’s letters, +> nor none other man’s, nor for none other cause; and in case any +> letters come to you contrary to the law_, (that is, the common law, +> as will be seen on reference to the entire oath given in the note,) +> _that ye do nothing by such letters, but certify the king thereof +> and proceed to execute the law_, (that is, the common law,) +> _notwithstanding the same letters_.” + +When it is considered that the king was the sole legislative power, and +that he exercised this power, to a great extent, by orders in council, +and by writs and “letters” addressed often-times to some sheriff, or +other person, and that his commands, when communicated to his justices, +or any other person, “by letters,” or writs, _under seal_, had as much +legal authority as laws promulgated in any other form whatever, it will +be seen that this oath of the justices _absolutely required_ that they +disregard any legislation that was contrary to “_common right_,” or +“_the common law_,” and notify the king that it was contrary to common +right, or the common law, and then proceed to execute the common law, +notwithstanding such legislation.[^60] + +If there could be any doubt that such was the meaning of this oath, that +doubt would be removed by a statute passed by the king two years +afterwards, which fully explains this oath, as follows: + +> “Edward, by the Grace of God, &c., to the Sheriff of _Stafford_, +> greeting: Because that by divers complaints made to us, we have +> perceived that _the Law of the Land, which we by our oath are bound +> to maintain_, is the less well kept, and the execution of the same +> disturbed many times by maintenance and procurement, as well in the +> court as in the country; we greatly moved of conscience in this +> matter, and for this cause desiring as much for the pleasure of God, +> and ease and quietness of our subjects, as to save our conscience, +> and for to save and keep our said oath, by the assent of the great +> men and other wise men of our council, we have ordained these things +> following: + +> “First, we have commanded all our justices, that they shall from +> henceforth _do equal law and execution of right_ to all our subjects, +> rich and poor, without having regard to any person, _and without +> omitting to do right for any letters or commandment which may come to +> them from us, or from any other, or by any other cause. And if that +> any letters, writs, or commandments come to the justices, or to other +> deputed to do law and right according to the usage of the realm, in +> disturbance of the law, or of the execution of the same, or of right +> to the parties, the justices and other aforesaid shall proceed and +> hold their courts and processes, where the pleas and matters be +> depending before them, as if no such letters, writs, or commandments +> were come to them; and they shall certify us and our council of such +> commandments which be contrary to the law_, (that is, “the law of the +> land,” or common law,) _as afore is said_.[^61] And to the intent that +> our justices shall do even right to all people in the manner +> aforesaid, without more favor showing to one than to another, we have +> ordained and caused our said justices to be sworn, that they shall +> not from henceforth, as long as they shall be in the office of +> justice, take fee nor robe of any man, but of ourself, and that they +> shall take no gift nor reward by themselves, nor by other, privily +> nor apertly, of any man that hath to do before them by any way, +> except meat and drink, and that of small value; and that they shall +> give no counsel to great men or small, in case where we be party, or +> which do or may touch us in any point, upon pain to be at our will, +> body, lands, and goods, to do thereof as shall please us, in case +> they do contrary. And for this cause we have increased the fees of +> the same, our justices, in such manner as it ought reasonably to +> suffice them.”—_20 Edward III._, ch. 1. (1346.) + +Other statutes of similar tenor have been enacted, as follows: + +> “It is accorded and established, that it shall not be commanded by +> the great seal, nor the little seal, to disturb or delay _common +> right_; and though such commandments do come, the justices shall not +> therefore leave (omit) to do right in any point.”—_St. 2 Edward +> III._, ch. 8. (1328.) + +> “That by commandment of the great seal, or privy seal, no point of +> this statute shall be put in delay; nor that the justices of +> whatsoever place it be shall let (omit) to do the _common law_, by +> commandment, which shall come to them under the great seal, or the +> privy seal.”—_14 Edward III._, st. 1, ch. 14. (1340.) + +> “It is ordained and established, that neither letters of the signet, +> nor of the king’s privy seal, shall be from henceforth sent in damage +> or prejudice of the realm, nor in disturbance of the law” (the common +> law).—_11 Richard II._, ch. 10. (1387.) + +It is perfectly apparent from these statutes, and from the oath +administered to the justices, that it was a matter freely confessed by +the king himself, that his statutes were of no validity, if contrary to +the common law, or “common right.” + +The oath of the justices, before given, is, I presume, the same that has +been administered to judges in England from the day when it was first +prescribed to them, (1344,) until now. I do not find from the English +statutes that the oath has ever been changed. The Essay on Grand Juries, +before referred to, and supposed to have been written by _Lord Somers_, +mentions this oath (page 73) as being still administered to judges, that +is, in the time of Charles II., more than three hundred years after the +oath was first ordained. If the oath has never been changed, it follows +that judges have not only never been sworn to support any statutes +whatever of the king, or of parliament, but that, for five hundred +years past, they actually have been sworn to treat as invalid all +statutes that were contrary to the common law. + + +## The Coronation Oath + +That the legislation of the king was of no authority over a jury, is +further proved by the oath taken by the kings at their coronation. This +oath seems to have been substantially the same, from the time of the +_Saxon_ kings, down to the seventeenth century, as will be seen from the +authorities hereafter given. + +The purport of the oath is, that the king swears _to maintain the law of +the land_—that is, _the common law_. In other words, he swears “_to +concede and preserve to the English people the laws and customs conceded +to them by the ancient, just, and pious English kings, * * and +especially the laws, customs, and liberties conceded to the clergy and +people by the illustrious king Edward;” * * and “the just laws and +customs which the common people have chosen, (quas vulgus elegit)_.” + +These are the same laws and customs which were called by the general +name of “_the law of the land_,” or “_the common law_,” and, with some +slight additions, were embodied in _Magna Carta_. + +This oath not only forbids the king to enact any statutes contrary to +the common law, but it proves that his statutes could be of no authority +over the consciences of a jury; since, as has already been sufficiently +shown, it was one part of this very common law itself,—that is, of the +ancient “laws, customs, and liberties,” mentioned in the oath,—that +juries should judge of all questions that came before them, according to +their own consciences, independently of the legislation of the king. + +It was impossible that this right of the jury could subsist consistently +with any right, on the part of the king, to impose any authoritative +legislation upon them. His oath, therefore, to maintain the law of the +land, or the ancient “laws, customs, and liberties,” was equivalent to +an oath that he would never _assume_ to impose laws upon juries, as +imperative rules of decision, or take from them the right to try all +cases according to their own consciences. It is also an admission that +he had no constitutional power to do so, if he should ever desire it. +This oath, then, is conclusive proof that his legislation was of no +authority with a jury, and that they were under no obligation whatever +to enforce it, unless it coincided with their own ideas of justice. + +The ancient coronation oath is printed with the Statutes of the Realm, +vol. i., p. 168, and is as follows:[^62] + +TRANSLATION. + +> “_Form of the Oath of the King of England, on his Coronation._ + +> (The Archbishop of Canterbury, to whom, of right and custom of the +> Church of Canterbury, ancient and approved, it pertains to anoint and +> crown the kings of England, on the day of the coronation of the king, +> and before the king is crowned, shall propound the underwritten +> questions to the king.) + +> The laws and customs, conceded to the English people by the ancient, +> just, and pious English kings, will you concede and preserve to the +> same people, with the confirmation of an oath? and especially the +> laws, customs, and liberties conceded to the clergy and people by the +> illustrious king Edward? + +> (And the king shall answer,) I do concede, and will preserve them, +> and confirm them by my oath. + +> Will you preserve to the church of God, the clergy, and the people, +> entire peace and harmony in God, according to your powers? + +> (And the king shall answer,) I will. + +> In all your judgments, will you cause equal and right justice and +> discretion to be done, in mercy and truth, according to your powers? + +> (And the king shall answer,) I will. + +> Do you concede that the just laws and customs, _which the common +> people have chosen_, shall be preserved; and do you promise that they +> shall be protected by you, and strengthened to the honor of God, +> according to your powers? + +> (And the king shall answer,) I concede and promise.” + +The language used in the last of these questions, “Do you concede that +the just laws and customs, _which the common people have chosen_, (_quas +vulgus elegit_,) shall be preserved?” &c., is worthy of especial notice, +as showing that the laws, which were to be preserved, were not +necessarily _all_ the laws which the kings enacted, _but only such of +them as the common people had selected or approved_. + +And how had the common people made known their approbation or selection +of these laws? Plainly, in no other way than this—_that the juries +composed of the common people had voluntarily enforced them_. The common +people had no other legal form of making known their approbation of +particular laws. + +The word “concede,” too, is an important word. In the English statutes +it is usually translated _grant_—as if with an intention to indicate +that “the laws, customs, and liberties” of the English people were mere +_privileges, granted_ to them by the king; whereas it should be +translated _concede_, to indicate simply an _acknowledgment_, on the +part of the king, that such were the laws, customs, and liberties, which +had been chosen and established by the people themselves, and of right +belonged to them, and which he was bound to respect. + +I will now give some authorities to show that the foregoing oath has, +_in substance_, been the coronation oath from the times of William the +Conqueror, (1066,) down to the time of James the First, and probably +until 1688. + +It will be noticed, in the quotation from Kelham, that he says this oath +(or the oath of William the Conqueror) is “in sense and substance the +very same with that which the _Saxon_ kings used to take at their +coronations.” + +Hale says: + +> “Yet the English were very zealous for them,” (that is, for the laws +> of Edward the Confessor,) “no less or otherwise than they are at this +> time for the Great Charter; insomuch that they were never satisfied +> till the said laws were reënforced, and mingled, for the most part, +> with the coronation oath of king William I., and some of his +> successors.”—_1 Hale’s History of Common Law_, 157. + +> Also, “William, on his coronation, had sworn to govern by the laws of +> Edward the Confessor, some of which had been reduced into writing, +> but the greater part consisted of the immemorial customs of the +> realm.”—_Ditto_, p. 202, note L. + +Kelham says: + +> “Thus stood the laws of England at the entry of William I., and it +> seems plain that the laws, commonly called the laws of Edward the +> Confessor, were at that time the standing laws of the kingdom, and +> considered the great rule of their rights and liberties; and that the +> English were so zealous for them, ‘that they were never satisfied +> till the said laws were reënforced, and mingled, for the most part, +> with the coronation oath.’ Accordingly, we find that this great +> conqueror, at his coronation on the Christmas day succeeding his +> victory, took an oath at the altar of St. Peter, Westminster, _in +> sense and substance the very same with that which the Saxon kings +> used to take at their coronations_. * * And at Barkhamstead, in the +> fourth year of his reign, in the presence of Lanfranc, Archbishop of +> Canterbury, for the quieting of the people, he swore that he would +> inviolably observe the good and approved ancient laws which had been +> made by the devout and pious kings of England, his ancestors, and +> chiefly by King Edward; and we are told that the people then departed +> in good humor.”—_Kelham’s Preliminary Discourse to the Laws of +> William the Conqueror._ See, also, _1 Hale’s History of the Common +> Law_, 186. + +Crabbe says that William the Conqueror “solemnly swore that he would +observe the good and approved laws of Edward the Confessor.”—_Crabbe’s +History of the English Law_, p. 43. + +The successors of William, up to the time of Magna Carta, probably all +took the same oath, according to the custom of the kingdom; although +there may be no historical accounts extant of the oath of each separate +king. But history tells us specially that Henry I., Stephen, and Henry +II., confirmed these ancient laws and customs. It appears, also, that +the barons desired of John (what he afterwards granted by Magna Carta) +“_that the laws and liberties of King Edward_, with other privileges +granted to the kingdom and church of England, might be confirmed, as +they were contained in the charters of Henry the First; further +alleging, _that at the time of his absolution, he promised by his oath +to observe these very laws and liberties_.”—_Echard’s History of +England_, p. 105-6. + +It would appear, from the following authorities, that since Magna Carta +the form of the coronation oath has been “_to maintain the law of the +land_,”—meaning that law as embodied in Magna Carta. Or perhaps it is +more probable that the ancient form has been still observed, but that, +as its substance and purport were “_to maintain the law of the land_,” +this latter form of expression has been used, in the instances here +cited, from motives of brevity and convenience. This supposition is the +more probable, from the fact that I find no statute prescribing a change +in the form of the oath until 1688. + +That Magna Carta was considered as embodying “the law of the land,” or +“common law,” is shown by a statute passed by Edward I., wherein he +“grants,” or concedes, + +> “That the Charter of Liberties and the Charter of the Forest * * +> shall be kept in every point, without breach, * * and that our +> justices, sheriffs, mayors, and other ministers, which, under us, +> have the _laws of our land_[^63] to guide, shall allow the said +> charters pleaded before them in judgment, in all their points, that +> is, to wit, _the Great Charter as the Common Law_, and the Charter of +> the Forest for the wealth of the realm. + +> “And we will, that if any judgment be given from henceforth, contrary +> to the points of the charters aforesaid, by the justices, or by any +> other our ministers that hold plea before them against the points of +> the charters, it shall be undone, and holden for naught.”—_25 Edward +> I._, ch. 1 and 2. (1297.) + +Blackstone also says: + +> “It is agreed by all our historians that the Great Charter of King +> John was, for the most part, _compiled from the ancient customs of +> the realm, or the laws of Edward the Confessor; by which they usually +> mean the old common law which was established under our Saxon +> princes_.”—_Blackstone’s Introduction to the Charters._ See +> _Blackstone’s Law Tracts_, 289. + +Crabbe says: + +> “It is admitted, on all hands, that it (Magna Carta) contains nothing +> but what was confirmatory of the common law, and the ancient usages +> of the realm, and is, properly speaking, only an enlargement of the +> charter of Henry I., and his successors.”—_Crabbe’s History of the +> English Law_, p. 127. + +That the coronation oath of the kings subsequent to Magna Carta was, in +substance, if not in form, “_to maintain this law of the land, or common +law_,” is shown by a statute of Edward Third, commencing as follows: + +> “Edward, by the Grace of God, &c., &c., to the Sheriff of Stafford, +> Greeting: Because that by divers complaints made to us, we have +> perceived that _the law of the land, which we by oath are bound to +> maintain_,” &c.—_St. 20 Edward III._ (1346.) + +The following extract from Lord Somers’ tract on Grand Juries shows that +the coronation oath continued the same as late as 1616, (four hundred +years after Magna Carta.) He says: + +> “King James, in his speech to the judges, in the Star Chamber, Anno +> 1616, told them, ‘That he had, after many years, resolved to renew +> his oath, made at his coronation, concerning justice, and the promise +> therein contained for _maintaining the law of the land_.’ And, in the +> next page save one, says, ‘_I was sworn to maintain the law of the +> land_, and therefore had been perjured if I had broken it. God is my +> judge, I never intended it.’”—_Somers on Grand Juries_, p. 82. + +In 1688, the coronation oath was changed by act of Parliament, and the +king was made to swear: + +> “To govern the people of this kingdom of England, and the dominions +> thereto belonging, _according to the statutes in Parliament agreed +> on, and the laws and customs of the same_.”—_St. 1 William and +> Mary_, ch. 6. (1688.) + +The effect and legality of this oath will hereafter be considered. For +the present it is sufficient to show, as has been already sufficiently +done, that from the Saxon times until at least as lately as 1616, the +coronation oath has been, in substance, _to maintain the law of the +land, or the common law_, meaning thereby the ancient Saxon customs, as +embodied in the laws of Alfred, of Edward the Confessor, and finally in +Magna Carta. + +It may here be repeated that this oath plainly proves that the statutes +of the king were of no authority over juries, if inconsistent with their +ideas of right; because it was one part of the common law that juries +should try all causes according to their own consciences, any +legislation of the king to the contrary notwithstanding.[^64] + +[Footnote 34: Hale says: + +> “The trial by jury of twelve men was the usual trial among the +> Normans, in most suits; especially in assizes, et juris utrum.”—_1 +> Hale’s History of the Common Law_, 219. + +This was in Normandy, before the conquest of England by the Normans. +_See Ditto_, p. 218. + +Crabbe says: + +> “It cannot be denied that the practice of submitting causes to the +> decision of twelve men was universal among all the northern tribes +> (of Europe) from the very remotest antiquity.”—_Crabbe’s History of +> the English Law_, p. 32.] + +[Footnote 35: “The people, who in every general council or assembly +could oppose and dethrone their sovereigns, were in little dread of +their encroachments on their liberties; and kings, who found sufficient +employment in keeping possession of their crowns, would not likely +attack the more important privileges of their subjects.”] + +[Footnote 36: This office was afterwards committed to sheriffs. But even +while the court was held by the lord, “_the Lord was not judge, but the +Pares (peers) only_.”—_Gilbert on the Court of Exchequer_, 61-2.] + +[Footnote 37: The opinion expressed in the text, that the Witan had no +legislative authority, is corroborated by the following authorities: + +“From the fact that the new laws passed by the king and the Witan were +laid before the shire-mote, (county court,) we should be almost +justified in the inference that a second sanction was necessary before +they could have the effect of law in that particular county.”—_Dunham’s +Middle Ages, Sec._ 2, _B._ 2, _Ch._ 1. _57 Lardner’s Cab. Cyc._, 53. + +The “_second sanction_” required to give the legislation of the king and +Witan the effect of law, was undoubtedly, I think, _as a general thing, +the sanction of a jury_. I know of no evidence whatever that laws were +ever submitted to popular vote in the county courts, as this author +seems to suppose possible. Another mode, sometimes resorted to for +obtaining the sanction of the people to the laws of the Witan, was, it +seems, to persuade the people themselves to swear to observe them. +Mackintosh says: + +“The preambles of the laws (of the Witan) speak of the infinite number +of _liegemen_ who attended, as only applauding the measures of the +assembly. But this applause was neither so unimportant to the success of +the measures, nor so precisely distinguished from a share in +legislation, as those who read history with a modern eye might imagine. +It appears that under Athelstan expedients were resorted to, to obtain a +consent to the law from great bodies of the people in their districts, +which their numbers rendered impossible in a national assembly. That +monarch appears to have sent commissioners to hold _shire-gemotes_ or +county meetings, where they proclaimed the laws made by the king and his +counsellors, which, being acknowledged and sworn to at these +_folk-motes_ (meetings of the people) became, by their assent, +completely binding on the whole nation.”—_Mackintosh’s Hist. of +England_, _Ch._ 2. _45 Lardner’s Cab. Cyc._, 75.] + +[Footnote 38: Page 31.] + +[Footnote 39: Hallam says, “It was, however, to the county court that an +English freeman chiefly looked for the maintenance of his civil +rights.”—_2 Middle Ages_, 392. + +Also, “This (the county court) was the great constitutional judicature +in all questions of civil right.”—_Ditto_, 395. + +Also, “The liberties of these Anglo-Saxon thanes were chiefly secured, +next to their swords and their free spirits, by the inestimable right of +deciding civil and criminal suits in their own county courts.”—_Ditto_, +399.] + +[Footnote 40: “Alfred may, in one sense, be called the founder of these +laws, (the Saxon,) for until his time they were an unwritten code, but +he expressly says, ‘_that I, Alfred, collected the good laws of our +forefathers into one code, and also I wrote them down_’—which is a +decisive fact in the history of our laws well worth noting.”—_Introduction +to Gilbert’s History of the Common Pleas_, p. 2, _note_. + +Kelham says, “Let us consult our own lawyers and historians, and they +will tell us * * that Alfred, Edgar, and Edward the Confessor, were the +great _compilers and restorers_ of the English Laws.”—_Kelham’s +Preliminary Discourse to the Laws of William the Conqueror_, p. 12. +_Appendix to Kelham’s Dictionary of the Norman Language._ + +“He (Alfred) also, like another Theodosius, _collected the various +customs_ that he found dispersed in the kingdom, and reduced and +digested them into one uniform system, or code of laws, in his +_som-bec_, or _liber judicialis_ (judicial book). This he _compiled_ for +the use of the court baron, hundred and county court, the court-leet and +sheriff’s tourn, tribunals which he established for the trial of all +causes, civil and criminal, in the very districts wherein the complaints +arose.”—_4 Blackstone_, 411. + +Alfred himself says, “Hence I, King Alfred, gathered these together, and +commanded many of those to be written down which our forefathers +observed—those which I liked—and those which I did not like, by the +advice of my Witan, I threw aside. For I durst not venture to set down +in writing over many of my own, since I knew not what among them would +please those that should come after us. But those which I met with +either of the days of me, my kinsman, or of Offa, King of Mercia, or of +Æthelbert, who was the first of the English who received baptism—those +which appeared to me the justest—I have here collected, and abandoned +the others. Then I, Alfred, King of the West Saxons, showed these to all +my Witan, and they then said that they were all willing to observe +them.”—_Laws of Alfred, translated by R. Price, prefixed to +Mackintosh’s History of England_, _vol._ 1. _45 Lardner’s Cab. Cyc._ + +“King Edward * * projected and begun what his grandson, King Edward the +Confessor, afterwards completed, viz., one uniform digest or body of +laws to be observed throughout the whole kingdom, _being probably no +more than a revival of King Alfred’s code_, with some improvements +suggested by necessity and experience, particularly the incorporating +some of the British, or, rather, Mercian _customs_, and also _such of +the Danish_ (customs) as were reasonable and approved, into the _West +Saxon Lage_, which was still the ground-work of the whole. And this +appears to be the best supported and most plausible conjecture, (for +certainty is not to be expected,) of the rise and original of that +admirable system of maxims and unwritten customs which is now known by +the name of the _common law_, as extending its authority universally +over all the realm, and which is doubtless of Saxon parentage.”—_4 +Blackstone_, 412. + +“By the _Lex Terræ_ and _Lex Regni_ is understood the laws of Edward the +Confessor, confirmed and enlarged as they were by William the Conqueror; +and this Constitution or Code of Laws is what even to this day are +called ‘_The Common Law of the Land_.’”—_Introduction to Gilbert’s +History of the Common Pleas_, p. 22, _note_.] + +[Footnote 41: Not the conqueror of the English people, (as the friends +of liberty maintain,) but only of Harold the usurper.—See _Hale’s +History of the Common Law_, ch. 5.] + +[Footnote 42: For all these codes see Wilkins’ Laws of the Anglo-Saxons. + +“Being regulations adapted to existing institutions, the Anglo-Saxon +statutes are concise and technical, alluding to the law which was then +living and in vigor, rather than defining it. The same clauses and +chapters are often repeated word for word, in the statutes of subsequent +kings, showing that enactments which bear the appearance of novelty are +merely declaratory. Consequently the appearance of a law, seemingly for +the first time, is by no means to be considered as a proof that the +matter which it contains is new; nor can we trace the progress of the +Anglo-Saxon institutions with any degree of certainty, by following the +dates of the statutes in which we find them first noticed. All arguments +founded on the apparent chronology of the subjects included in the laws, +are liable to great fallacies. Furthermore, a considerable portion of +the Anglo-Saxon law was never recorded in writing. There can be no doubt +but that the rules of inheritance were well established and defined; yet +we have not a single law, and hardly a single document from which the +course of the descent of land can be inferred. * * Positive proof cannot +be obtained of the commencement of any institution, because the first +written law relating to it may possibly be merely confirmatory or +declaratory; neither can the non-existence of any institution be +inferred from the absence of direct evidence. Written laws were modified +and controlled by customs of which no trace can be discovered, until +after the lapse of centuries, although those usages must have been in +constant vigor during the long interval of silence.”—_1 Palgrave’s Rise +and Progress of the English Commonwealth_, 58-9.] + +[Footnote 43: Rapin says, “The customs now practised in England are, for +the most part, the same as the Anglo-Saxons brought with them from +Germany.”—_Rapin’s Dissertation on the Government of the Anglo-Saxons_, +vol. 2, Oct. Ed., p. 198. See _Kelham’s Discourse before named_.] + +[Footnote 44: Hallam says, “The county of Sussex contains sixty-five +(‘hundreds’); that of Dorset forty-three; while Yorkshire has only +twenty-six; and Lancashire but six.”—_2 Middle Ages_, 391.] + +[Footnote 45: Excepting also matters pertaining to the collection of the +revenue, which were determined in the king’s court of exchequer. But +even in this court it was the law “_that none be amerced but by his +peers_.”—_Mirror of Justices_, 49.] + +[Footnote 46: “For the English laws, _although not written_, may, as it +should seem, and that without any absurdity, be termed laws, (since this +itself is law—that which pleases the prince has the force of law,) I +mean those laws which it is evident were promulgated by the advice of +the nobles and the authority of the prince, concerning doubts to be +settled in their assembly. For if from the mere want of writing only, +they should not be considered laws, then, unquestionably, writing would +seem to confer more authority upon laws themselves, than either the +equity of the persons constituting, or the reason of those framing +them.”—_Glanville’s Preface_, p. 38. (Glanville was chief justice of +Henry II., 1180.) _2 Turner’s History of the Anglo-Saxons_, 280.] + +[Footnote 47: Mackintosh’s History of England, ch. 3. Lardner’s Cabinet +Cyclopædia, 266.] + +[Footnote 48: If the laws of the king were received as authoritative by +the juries, what occasion was there for his appointing special +commissioners for the trial of offences, without the intervention of a +jury, as he frequently did, in manifest and acknowledged violation of +Magna Carta, and “the law of the land?” These appointments were +undoubtedly made for no other reason than that the juries were not +sufficiently subservient, but judged according to their own notions of +right, instead of the will of the king—whether the latter were +expressed in his statutes, or by his judges.] + +[Footnote 49: Of course, Mr. Reeve means to be understood that, in the +hundred court, and court-leet, _the jurors were the judges_, as he +declares them to have been in the county court; otherwise the “bailiff” +or “steward” must have been judge.] + +[Footnote 50: The jurors were sometimes called “assessors,” because they +assessed, or determined the amount of fines and amercements to be +imposed.] + +[Footnote 51: “The barons of the Hundred” were the freeholders. Hallam +says: “The word _baro_, originally meaning only a man, was of very large +significance, and is not unfrequently applied to common freeholders, as +in the phrase _court-baron_.”—_3 Middle Ages_, 14-15. + +_Blackstone_ says: “The _court-baron_ * * is a court of common law, and +it is the court of the barons, by which name the freeholders were +sometimes anciently called; for that it is held before the freeholders +who owe suit and service to the manor.”—_3 Blackstone_, 33.] + +[Footnote 52: The ancient jury courts kept no records, because those who +composed the courts could neither make nor read records. Their decisions +were preserved by the memories of the jurors and other persons present.] + +[Footnote 53: Stuart says: + +“The courts, or civil arrangements, which were modelled in Germany, +preserved the independence of the people; and having followed the Saxons +into England, and continuing their importance, they supported the envied +liberty we boast of. * * + +“As a chieftain led out his retainers to the field, and governed them +during war; so in peace he summoned them together, and exerted a civil +jurisdiction. He was at once their captain and their judge. They +constituted his court; and having inquired with him into the guilt of +those of their order whom justice had accused, they assisted him to +enforce his decrees. + +“This court (the court-baron) was imported into England; but the +innovation which conquest introduced into the fashion of the times +altered somewhat its appearance. * * + +“The head or lord of the manor called forth his attendants to his hall. +* * He inquired into the breaches of custom, and of justice, which were +committed within the precincts of his territory; and with his followers, +_who sat with him as judges_, he determined in all matters of debt, and +of trespass to a certain amount. He possessed a similar jurisdiction +with the chieftain in Germany, and his tenants enjoyed an equal +authority with the German retainers. + +“But a mode of administration which intrusted so much power to the great +could not long be exercised without blame or injustice. The German, +guided by the candor of his mind, and entering into all his engagements +with the greatest ardor, perceived not, at first, that the chieftain to +whom he submitted his disputes might be swayed, in the judgments he +pronounced, by partiality, prejudice, or interest; and that the +influence he maintained with his followers was too strong to be +restrained by justice. Experience instructed him of his error; he +acknowledged the necessity of appealing from his lord; and the court of +the Hundred was erected. + +“This establishment was formed both in Germany and England, by the +inhabitants of a certain division, who extended their jurisdiction over +the territory they occupied.[^65] They bound themselves under a penalty +to assemble at stated times; _and having elected the wisest to preside +over them, they judged, not only all civil and criminal matters_, but of +those also which regarded religion and the priesthood. The judicial +power thus invested in the people was extensive; they were able to +preserve their rights, and attended this court in arms. + +“As the communication, however, and intercourse, of the individuals of a +German community began to be wider, and more general, as their dealings +enlarged, and as disputes arose among the members of different hundreds, +the insufficiency of these courts for the preservation of order was +gradually perceived. The _shyre mote_, therefore, or _county court_, was +instituted; and it formed the chief source of justice both in Germany +and England. + +“The powers, accordingly, which had been enjoyed by the court of the +_hundred_, were considerably impaired. It decided no longer concerning +capital offences; it decided not concerning matters of liberty, and the +property of estates, or of slaves; its judgments, in every case, became +subject to review; and it lost entirely the decision of causes, when it +delayed too long to consider them. + +“Every subject of claim or contention was brought, in the first +instance, or by appeal, to the _county court_; and the _earl_, or +_eorldorman_, who presided there, was active to put the laws in +execution. He repressed the disorders which fell out within the circuit +of his authority; and the least remission in his duty, or the least +fraud he committed, was complained of and punished. He was elected from +among the great, and was above the temptation of a bribe; but, to +encourage his activity, he was presented with a share of the territory +he governed, or was entitled to a proportion of the fines and profits of +justice. Every man, in his district, was bound to inform him concerning +criminals, and to assist him to bring them to trial; and, as in rude and +violent times the poor and helpless were ready to be oppressed by the +strong, he was instructed particularly to defend them. + +“His court was ambulatory, and assembled only twice a year, unless the +distribution of justice required that its meetings should be oftener. +Every freeholder in the county was obliged to attend it; and should he +refuse this service, his possessions were seized, and he was forced to +find surety for his appearance. The neighboring earls held not their +courts on the same day; and, what seems very singular, no judge was +allowed, after meals, to exercise his office. + +“The druids also, or priests, in Germany, as we had formerly occasion to +remark, and the clergy in England, exercised a jurisdiction in the +_hundred_ and _county_ courts. They instructed the people in religious +duties, and in matters regarding the priesthood; and the princes, earls, +or _eorldormen_, related to them the laws and customs of the community. +These judges were mutually a check to each other; but it was expected +that they should agree in their judgments, and should willingly unite +their efforts for the public interest.[^66] + +“_But the prince or earl performed not, at all times, in person, the +obligations of his office._ The enjoyment of ease and of pleasure, to +which in Germany he had delivered himself over, when disengaged from +war, and the mean idea he conceived of the drudgery of civil affairs, +_made him often delegate to an inferior person the distribution of +justice in his district_. The same sentiments were experienced by the +Saxon nobility; and the service which they owed by their tenures, and +the high employments they sustained, called them often from the +management of their counties. The progress, too, of commerce, giving an +intricacy to cases, and swelling the civil code, added to the difficulty +of their office, and made them averse to its duties. _Sheriffs, +therefore, or deputies, were frequently appointed to transact their +business; and though these were at first under some subordination to the +earls, they grew at length to be entirely independent of them. The +connection of jurisdiction and territory ceasing to prevail, and the +civil being separated from the ecclesiastical power, they became the +sole and proper officers for the direction of justice in the counties._ + +“The _hundred_, however, and _county_ courts, were not equal of +themselves for the purposes of jurisdiction and order. It was necessary +that a court should be erected, of supreme authority, where the disputes +of the great should be decided, where the disagreeing sentiments of +judges should be reconciled, and where protection should be given to the +people against their fraud and injustice. + +“The princes accordingly, or chief nobility, in the German communities, +assembled together to judge of such matters. The Saxon nobles continued +this prerogative; and the king, or, in his absence, the chief +_justiciary_, watched over their deliberations. But it was not on every +trivial occasion that this court interested itself. In smaller concerns, +justice was refused during three sessions of the _hundred_, and claimed +without effect, at four courts of the county, before there could lie an +appeal to it. + +“So gradually were these arrangements established, and so naturally did +the varying circumstances in the situation of the Germans and +Anglo-Saxons direct those successive improvements which the preservation +of order, and the advantage of society, called them to adopt. The +admission of the people into the courts of justice preserved, among the +former, that equality of ranks for which they were remarkable; and it +helped to overturn, among the latter, those envious distinctions which +the feudal system tended to introduce, and prevented that venality in +judges, and those arbitrary proceedings, which the growing attachment to +interest, and the influence of the crown, might otherwise have +occasioned.”—_Stuart on the Constitution of England_, p. 222 to 245. + +“In the Anglo-Saxon period, accordingly, _twelve_ only were elected; and +these, together with the judge, or presiding officer of the district, +being sworn to regard justice, and the voice of reason, or conscience, +all causes were submitted to them.”—_Ditto_, p. 260. + +“Before the orders of men were very nicely distinguished, the jurors +were elected from the same rank. When, however, a regular subordination +of orders was established, and when a knowledge of property had inspired +the necessitous with envy, and the rich with contempt, _every man was +tried by his equals_. The same spirit of liberty which gave rise to this +regulation attended its progress. Nor could monarchs assume a more +arbitrary method of proceeding. ‘I will not’ (said the Earl of Cornwall +to his sovereign) ‘render up my castles, nor depart the kingdom, but by +judgment of my peers.’ Of this institution, so wisely calculated for the +preservation of liberty, all our historians have pronounced the +eulogium.”—_Ditto_, p. 262-3. + +Blackstone says: + +“The policy of our ancient constitution, as regulated and established by +the great Alfred, was to bring justice home to every man’s door, by +constituting as many courts of judicature as there are manors and towns +in the kingdom; _wherein injuries were redressed in an easy and +expeditious manner, by the suffrage of neighbors and friends_. These +little courts, however, communicated with others of a larger +jurisdiction, and those with others of a still greater power; ascending +gradually from the lowest to the supreme courts, which were respectively +constituted to correct the errors of the inferior ones, and to determine +such causes as, by reason of their weight and difficulty, demanded a +more solemn discussion. The course of justice flowing in large streams +from the king, as the fountain, to his superior courts of record; and +being then subdivided into smaller channels, till the whole and every +part of the kingdom were plentifully watered and refreshed. An +institution that seems highly agreeable to the dictates of natural +reason, as well as of more enlightened policy. * * + +“These inferior courts, at least the name and form of them, still +continue in our legal constitution; but as the superior courts of record +have, in practice, obtained a concurrent original jurisdiction, and as +there is, besides, a power of removing plaints or actions thither from +all the inferior jurisdictions; upon these accounts (among others) it +has happened that these petty tribunals have fallen into decay, and +almost into oblivion; whether for the better or the worse may be matter +of some speculation, when we consider, on the one hand, the increase of +expense and delay, and, on the other, the more able and impartial +decisions that follow from this change of jurisdiction. + +“The order I shall observe in discoursing on these several courts, +constituted for the redress of _civil_ injuries, (for with those of a +jurisdiction merely _criminal_ I shall not at present concern +myself,[^67]) will be by beginning with the lowest, and those whose +jurisdiction, though public and generally dispersed through the kingdom, +is yet (with regard to each particular court) confined to very narrow +limits; and so ascending gradually to those of the most extensive and +transcendent power.”—3 _Blackstone_, 30 to 32. + +“The _court-baron_ is a court incident to every manor in the kingdom, +_to be holden by the steward within the said manor_. This court-baron is +of two natures; the one is a customary court, of which we formerly +spoke, appertaining entirely to the copy-holders, in which their estates +are transferred by surrender and admittance, and other matters +transacted relative to their tenures only. The other, of which we now +speak, is a court of common law, and it is a court of the barons, by +which name the freeholders were sometimes anciently called; _for that it +is held by the freeholders who owe suit and service to the manor, the +steward being rather the registrar than the judge_. These courts, though +in their nature distinct, are frequently confounded together. _The court +we are now considering, viz., the freeholders court, was composed of the +lord’s tenants, who were the pares_ (equals) _of each other, and were +bound by their feudal tenure to assist their lord in the dispensation of +domestic justice_. This was formerly held every three weeks; and its +most important business is to determine, by writ of right, all +controversies relating to the right of lands within the manor. It may +also hold plea of any personal actions, of debt, trespass in the case, +or the like, where the debt or damages do not amount to forty shillings; +which is the same sum, or three marks, that bounded the jurisdiction of +the ancient Gothic courts in their lowest instance, or _fierding +courts_, so called because four were instituted within every superior +district or hundred.”—3 _Blackstone_, 33, 34. + +“A _hundred court_ is only a larger court-baron, being held for all the +inhabitants of a particular hundred, instead of a manor. _The free +suitors are here also the judges, and the steward the registrar, as in +the case of a court-baron._ It is likewise no court of record, +resembling the former at all points, except that in point of territory +it is of greater jurisdiction. This is said by Sir Edward Coke to have +been derived out of the county court for the ease of the people, that +they might have justice done to them at their own doors, without any +charge or loss of time; but its institution was probably coeval with +that of hundreds themselves, which were formerly observed to have been +introduced, though not invented, by Alfred, being derived from the +polity of the ancient Germans. The _centeni_, we may remember, were the +principal inhabitants of a district composed of different villages, +originally in number a _hundred_, but afterward only called by that +name, and who probably gave the same denomination to the district out of +which they were chosen. Cæsar speaks positively of the judicial power +exercised in their hundred courts and courts-baron. ‘_Princeps regiorum +atque pagorum_’ (which we may fairly construe the lords of hundreds and +manors) ‘_inter suos jus dicunt, controversias que minuunt_.’ (The +chiefs of the country and the villages declare the law among them, and +abate controversies.) And Tacitus, who had examined their constitution +still more attentively, informs us not only of the authority of the +lords, but that of the _centeni_, the hundreders, or jury, _who were +taken out of the common freeholders, and had themselves a share in the +determination. ‘Eliguntur in conciliis et principes, qui jura per pagos +vicosque reddunt, centeni singulis, ex plebe comites concilium simul et +auctoritas adsunt_.’ (The princes are chosen in the assemblies, who +administer the laws throughout the towns and villages, and with each one +are associated an hundred companions, taken from the people, for +purposes both of counsel and authority.) This hundred court was +denominated _hæreda_ in the Gothic constitution. But this court, as +causes are equally liable to removal from hence as from the common +court-baron, and by the same writs, and may also be reviewed by writ of +false judgment, is therefore fallen into equal disuse with regard to the +trial of actions.”—_3 Blackstone_, 34, 35. + +“The _county court_ is a court incident to the jurisdiction of the +_sheriff_. It is not a court of record, but may hold pleas of debt, or +damages, under the value of forty shillings; over some of which causes +these inferior courts have, by the express words of the statute of +Gloucester, (6 Edward I., ch. 8,) a jurisdiction totally exclusive of +the king’s superior courts. * * The county court may also hold plea of +many real actions, and of all personal actions to any amount, by virtue +of a special writ, called a _justicies_, which is a writ empowering the +sheriff, for the sake of despatch, to do the same justice in his county +court as might otherwise be had at Westminster. _The freeholders of the +county court are the real judges in this court, and the sheriff is the +ministerial officer._ * * In modern times, as proceedings are removable +from hence into the king’s superior courts, by writ of pone or +_recordari_, in the same manner as from hundred courts and courts-baron, +and as the same writ of false judgment may be had in nature of a writ of +error, this has occasioned the same disuse of bringing actions +therein.”—_3 Blackstone_, 36, 37. + +“Upon the whole, we cannot but admire the wise economy and admirable +provision of our ancestors in settling the distribution of justice in a +method so well calculated for cheapness, expedition, and ease. By the +constitution which they established, all trivial debts, and injuries of +small consequence, were to be recovered or redressed in every man’s own +county, hundred, or perhaps parish.”—_3 Blackstone_, 59.] + +[Footnote 54: 1 Blackstone, 63-67.] + +[Footnote 55: This quaint and curious book (Smith’s Commonwealth of +England) describes the _minutiæ_ of trials, giving in detail the mode of +impanelling the jury, and then the conduct of the lawyers, witnesses, +and court. I give the following extracts, _tending to show that the +judges impose no law upon the juries, in either civil or criminal cases, +but only require them to determine the causes according to their +consciences_. + +In civil causes he says: + +> “When it is thought that it is enough pleaded before them, and the +> witnesses have said what they can, one of the judges, with a brief +> and pithy recapitulation, reciteth to the twelve in sum the arguments +> of the sergeants of either side, that which the witnesses have +> declared, and the chief points of the evidence showed in writing, and +> once again putteth them in mind of the issue, and sometime giveth it +> them in writing, delivering to them the evidence which is showed on +> either part, if any be, (evidence here is called writings of +> contracts, authentical after the manner of England, that is to say, +> written, sealed, and delivered,) and biddeth them go together.”—p. +> 74. + +This is the whole account given of the charge to the jury. + +In criminal cases, after the witnesses have been heard, and the prisoner +has said what he pleases in his defence, the book proceeds: + +> “When the judge hath heard them say enough, he asketh if they can say +> any more: If they say no, then he turneth his speech to the inquest. +> ‘Good men, (saith he,) ye of the inquest, ye have heard what these +> men say against the prisoner. You have also heard what the prisoner +> can say for himself. _Have an eye to your oath, and to your duty, and +> do that which God shall put in your minds to the discharge of your +> consciences_, and mark well what is said.’”—p. 92. + +This is the whole account given of the charge in a criminal case. + +The following statement goes to confirm the same idea, that jurors in +England have formerly understood it to be their right and duty to judge +only according to their consciences, and not to submit to any dictation +from the court, either as to law or fact. + +> “If having pregnant evidence, nevertheless, the twelve do acquit the +> malefactor, which they will do sometime, especially if they perceive +> either one of the justices or of the judges, or some other man, to +> pursue too much and too maliciously the death of the prisoner, * * +> the prisoner escapeth; but the twelve (are) not only rebuked by the +> judges, but also threatened of punishment; and many times commanded +> to appear in the Star-Chamber, or before the Privy Council for the +> matter. But this threatening chanceth oftener than the execution +> thereof; _and the twelve answer with most gentle words, they did it +> according to their consciences_, and pray the judges to be good unto +> them, _they did as they thought right, and as they accorded all_, and +> so it passeth away for the most part.”—p. 100. + +The account given of the trial of a peer of the realm corroborates the +same point: + +> “If any duke, marquis, or any other of the degrees of a baron, or +> above, lord of the Parliament, be appeached of treason, or any other +> capital crime, he is judged by his peers and equals; that is, the +> yeomanry doth not go upon him, but an inquest of the Lords of +> Parliament, and they give their voice not one for all, but each +> severally as they do in Parliament, being (beginning) at the youngest +> lord. And for judge one lord sitteth, who is constable of England for +> that day. The judgment once given, he breaketh his staff, and +> abdicateth his office. In the rest there is no difference from that +> above written,” (that is, in the case of a freeman.)—p. 98.] + +[Footnote 56: “The present form of the jurors’ oath is that they shall +‘give a true verdict _according to the evidence_.’ At what time this +form was introduced is uncertain; but for several centuries after the +Conquest, the jurors, _both in civil and criminal cases_, were sworn +merely to _speak the truth_. (Glanville, lib. 2, cap. 17; Bracton, lib. +3, cap. 22; lib. 4, p. 287, 291; Britton, p. 135.) Hence their decision +was accurately termed _veredictum_, or verdict, that is, ‘a thing truly +said’; whereas the phrase ‘true verdict’ in the modern oath is not an +accurate expression.”—_Political Dictionary_, word _Jury_.] + +[Footnote 57: Of course, there can be no legal trial by jury, in either +civil or criminal cases, where the jury are sworn to try the cases +“_according to law_.”] + +[Footnote 58: _Coke_, as late as 1588, admits that amercements must be +fixed by the peers (8 Coke’s Rep. 38, 2 Inst. 27); but he attempts, +wholly without success, as it seems to me, to show a difference between +fines and amercements. The statutes are very numerous, running through +the three or four hundred years immediately succeeding Magna Carta, in +which fines, ransoms, and amercements are spoken of as if they were the +common punishments of offences, and as if they all meant the same thing. +If, however, any technical difference could be made out between them, +there is clearly none in principle; and the word amercement, as used in +Magna Carta, must be taken in its most comprehensive sense.] + +[Footnote 59: “_Common right_” was the common law. _1 Coke’s Inst._ 142 +a. 2 _do._ 55, 6.] + +[Footnote 60: The oath of the justices is in these words: + +“Ye shall swear, that well and lawfully ye shall serve our lord the king +_and his people_, in the office of justice, and that lawfully ye shall +counsel the king in his business, and that ye shall not counsel nor +assent to anything which may turn him in damage or disherison in any +manner, way, or color. And that ye shall not know the damage or +disherison of him, whereof ye shall not cause him to be warned by +yourself, or by other; _and that ye shall do equal law and execution of +right to all his subjects, rich and poor, without having regard to any +person_. And that ye take not by yourself, or by other, privily nor +apertly, gift nor reward of gold nor silver, nor of any other thing that +may turn to your profit, unless it be meat or drink, and that of small +value, of any man that shall have any plea or process hanging before +you, as long as the same process shall be so hanging, nor after for the +same cause. And that ye take no fee, as long as ye shall be justice, nor +robe of any man great or small, but of the king himself. And that ye +give none advice or counsel to no man great or small, in no case where +the king is party. And in case that any, of what estate or condition +they be, come before you in your sessions with force and arms, or +otherwise against the peace, or against the form of the statute thereof +made, _to disturb execution of the common law_,” (mark the term, +“_common law_,”) “or to menace the people that they may not pursue the +law, that ye shall cause their bodies to be arrested and put in prison; +and in case they be such that ye cannot arrest them, that ye certify the +king of their names, and of their misprision, hastily, so that he may +thereof ordain a convenable remedy. And that ye by yourself, nor by +other, privily nor apertly, maintain any plea or quarrel hanging in the +king’s court, or elsewhere in the country. _And that ye deny no man +common right by the king’s letters, nor none other man’s, nor for none +other cause; and in case any letters come to you contrary to the law,” +(that is, the “common law” before mentioned,) “that ye do nothing by +such letters, but certify the king thereof, and proceed to execute the +law,” (the “common law” before mentioned,) “notwithstanding the same +letters._ And that ye shall do and procure the profit of the king and of +his crown, with all things where ye may reasonably do the same. And in +case ye be from henceforth found in default in any of the points +aforesaid, ye shall be at the king’s will of body, lands, and goods, +thereof to be done as shall please him, as God you help and all +saints.”—_18 Edward III._, st. 4. (1344.)] + +[Footnote 61: That the terms “_Law_” and “_Right_,” as used in this +statute, mean the _common law_, is shown by the preamble, which declares +the motive of the statute to be that “_the Law of the Land, (the common +law,) which we (the king) by our oath are bound to maintain_,” may be +the better kept, &c.] + +[Footnote 62: The following is a copy of the original: + +> “_Forma Juramenti Regis Angliæ in Coronacione sua_: + +> (Archiepiscopus Cantuariæ, ad quo de jure et consuetudine Ecclesiæ +> Cantuariæ, antiqua et approbata, pertinet Reges Angliæ inungere et +> coronare, die coronacionis Regis, anteque Rex coronetur, faciet Regi +> Interrogationes subscriptas.) + +> Si leges et consuetudines ab antiquis justis et Deo devotis Regibus +> plebi Anglicano concessas, cum sacramenti confirmacione eidem plebi +> concedere et servare (volueris:) Et præsertim leges et consuetudines +> et libertates a glorioso Rege Edwardo clero populoque concessas? + +> (Et respondeat Rex,) Concedo et servare volo, et sacramento +> confirmare. + +> Servabis Ecclesiæ Dei, Cleroque, et Populo, pacem ex integro et +> concordiam in Deo secundum vires tuas? + +> (Et respondeat Rex,) Servabo. + +> Facies fieri in omnibus Judiciis tuis equam et rectam justiciam, et +> discrecionem, in misericordia et veritate, secundum vires tuas? + +> (Et respondeat Rex,) Faciam. + +> Concedis justas, leges et consuetudines esse tenendas, et promittis +> per te eas esse protegendas, et ad honorem Dei corroborandas, quas +> vulgus elegit, secundum vires tuas? + +> (Et respondeat Rex,) Concedo et promitto.”] + +[Footnote 63: It would appear, from the text, that the Charter of +Liberties and the Charter of the Forest were sometimes called “_laws of +the land_.”] + +[Footnote 64: As the ancient coronation oath, given in the text, has +come down from the Saxon times, the following remarks of Palgrave will +be pertinent, in connection with the oath, as illustrating the fact +that, in those times, no special authority attached to the laws of the +king: + +“The Imperial Witenagemot was not a legislative assembly, in the strict +sense of the term, for the whole Anglo-Saxon empire. Promulgating his +edicts amidst his peers and prelates, the king uses the language of +command; but the theoretical prerogative was modified by usage, and the +practice of the constitution required that the law should be accepted by +the legislatures (courts) of the several kingdoms. * * The ‘Basileus’ +speaks in the tone of prerogative: Edgar does not merely recommend, he +commands that the law shall be adopted by all the people, whether +English, Danes, or Britons, in every part of his empire. Let this +statute be observed, he continues, by Earl Oslac, and all the host who +dwell under his government, and let it be transmitted by writ to the +ealdormen of the other subordinate states. And yet, in defiance of this +positive injunction, the laws of Edgar were not accepted in Mercia until +the reign of Canute the Dane. It might be said that the course so +adopted may have been an exception to the general rule; but in the +scanty and imperfect annals of Anglo-Saxon legislation, we shall be able +to find so many examples of similar proceedings, _that this mode of +enactment must be considered as dictated by the constitution of the +empire_. Edward was the supreme lord of the Northumbrians, but more than +a century elapsed before they obeyed his decrees. The laws of the +glorious Athelstane had no effect in Kent, (county,) the dependent +appanage of his crown, until sanctioned by the _Witan_ of the _shire_ +(county court). And the power of Canute himself, the ‘King of all +England,’ does not seem to have compelled the Northumbrians to receive +his code, until the reign of the Confessor, when such acceptance became +a part of the compact upon the accession of a new earl. + +Legislation constituted but a small portion of the ordinary business +transacted by the Imperial Witenagemot. The wisdom of the assembly was +shown in avoiding unnecessary change. _Consisting principally of +traditionary usages and ancestorial customs, the law was upheld by +opinion. The people considered their jurisprudence as a part of their +inheritance._ Their privileges and their duties were closely conjoined; +_most frequently, the statutes themselves were only affirmances of +ancient customs, or declaratory enactments_. In the Anglo-Saxon +commonwealth, therefore, the legislative functions of the Witenagemot +were of far less importance than the other branches of its authority. * +* The members of the Witenagemot were the ‘Pares Curiæ’ (Peers of Court) +of the kingdom. How far, on these occasions, their opinion or their +equity controlled the power of the crown, cannot be ascertained. But the +form of inserting their names in the _‘Testing Clause_’ was retained +under the Anglo-Norman reigns; and the sovereign, who submitted his +Charter to the judgment of the _Proceres_, professed to be guided by the +opinion which they gave. As the ‘_Pares_’ of the empire, the Witenagemot +decided the disputes between the great vassals of the crown. * * The +jurisdiction exercised in the Parliament of Edward I., when the barony +of a _Lord-Marcher_ became the subject of litigation, is entirely +analogous to the proceedings thus adopted by the great council of +Edward, the son of Alfred, the Anglo-Saxon king. + +In this assembly, the king, the prelates, the dukes, the ealdormen, and +the optimates passed judgment upon all great offenders. * * + +_The sovereign could not compel the obedience of the different nations +composing the Anglo-Saxon empire._ Hence, it became more necessary for +him to _conciliate their opinions_, if he solicited any service from a +vassal prince or a vassal state beyond the ordinary terms of the +compact; still more so, when he needed the support of a free burgh or +city. And we may view the assembly (the Witenagemot) as partaking of the +character of a political congress, in which the liegemen of the crown, +or the communities protected by the ‘Basileus,’ (sovereign,) were asked +or persuaded to relieve the exigences of the state, or to consider those +measures which might be required for the common weal. The sovereign was +compelled to parley with his dependents. + +It may be doubted whether any one member of the empire had power to +legislate for any other member. The Regulus of Cumbria was unaffected by +the vote of the Earl of East Angliæ, if he chose to stand out against +it. These dignitaries constituted a congress, in which the sovereign +could treat more conveniently and effectually with his vassals than by +separate negotiations. * * But the determinations of the Witan bound +those only who were present, or who concurred in the proposition; and a +vassal denying his assent to the grant, might assert that the engagement +which he had contracted with his superior did not involve any pecuniary +subsidy, but only rendered him liable to perform service in the +field.”—_1 Palgrave’s Rise and Progress of the English Commonwealth_, +637 to 642.] + +[Footnote 65: “It was the freemen in Germany, and the possessors of land +in England, who were _suitors_ (jurors) in the hundred court. These +ranks of men were the same. The alteration which had happened in +relation to property had invested the German freemen with land or +territory.”] + +[Footnote 66: It would be wholly erroneous, I think, to infer from this +statement of Stuart, that either the “priests, princes, earls, or +_eorldormen_” exercised any authority over the jury in the trial of +causes, in the way of dictating the law to them. Henry’s account of this +matter doubtless gives a much more accurate representation of the truth. +He says that _anciently_ + +> “The meeting (the county court) was opened with a discourse by the +> bishop, explaining, out of the Scriptures and ecclesiastical canons, +> their several duties as good Christians and members of the church. +> After this, the alderman, or one of his assessors, made a discourse +> on the laws of the land, and the duties of good subjects and good +> citizens. _When these preliminaries were over, they proceeded to try +> and determine, first the causes of the church, next the pleas of the +> crown, and last of all the controversies of private parties._”—3 +> _Henry’s History of Great Britain_, 348. + +This view is corroborated by Tyrrell’s _Introduction to the History of +England_, p. 83-84, and by Spence’s _Origin of the Laws and Political +Institutions of Modern Europe_, p. 447, and the note on the same page. +Also by a law of Canute to this effect, _In every county let there be +twice a year an assembly, whereat the bishop and the earl shall be +present, the one to instruct the people in divine, the other in human, +laws_.—_Wilkins_, p. 136.] + +[Footnote 67: There was no distinction between the civil and criminal +counts, as to the rights or powers of juries.] diff --git a/edited/04.markdown b/edited/04.markdown new file mode 100644 index 0000000..d3c6982 --- /dev/null +++ b/edited/04.markdown @@ -0,0 +1,557 @@ +# THE RIGHTS AND DUTIES OF JURIES IN CIVIL SUITS + + +The evidence already given in the preceding chapters proves that the +rights and duties of jurors, in civil suits, were anciently the same as +in criminal ones; that the laws of the king were of no obligation upon +the consciences of the jurors, any further than the laws were seen by +them to be just; that very few laws were enacted applicable to civil +suits; that when a new law was enacted, the nature of it could have been +known to the jurors only by report, and was very likely not to be known +to them at all; that nearly all the law involved in civil suits was +_unwritten_; that there was _usually_ no one in attendance upon juries +who could possibly enlighten them, unless it were sheriffs, stewards, +and bailiffs, who were unquestionably too ignorant and untrustworthy to +instruct them authoritatively; that the jurors must therefore +necessarily have judged for themselves of the whole case; and that, _as +a general rule_, they could judge of it by no law but the law of nature, +or the principles of justice as they existed in their own minds. + +The ancient oath of jurors in civil suits, viz., that “_they would make +known the truth according to their consciences_,” implies that the +jurors were above the authority of all legislation. The modern oath, in +England, viz., that they “_will well and truly try the issue between the +parties, and a true verdict give, according to the evidence_,” implies +the same thing. If the laws of the king had been binding upon a jury, +they would have been sworn to try the cases _according to law_, or +according to the laws. + +The ancient writs, in civil suits, as given in Glanville, (within the +half century before Magna Carta,) to wit, “Summon twelve free and legal +men, (or sometimes twelve knights,) to be in court, _prepared upon their +oaths to declare whether A or B have the greater right to the land in +question_,” indicate that the jurors judged of the whole matter on their +consciences only. + +The language of Magna Carta, already discussed, establishes the same +point; for, although some of the words, such as “outlawed,” and +“exiled,” would apply only to criminal cases, nearly the whole chapter +applies as well to civil as to criminal suits. For example, how could +the payment of a debt ever be enforced against an unwilling debtor, if +he could neither be “arrested, imprisoned, nor deprived of his +freehold,” and if the king could neither “proceed against him, nor send +any one against him, by force or arms”? Yet Magna Carta as much forbids +that any of these things shall be done against a debtor, as against a +criminal, _except according to, or in execution of_, “_a judgment of his +peers, or the law of the land_,”—a provision which, it has been shown, +gave the jury the free and absolute right to give or withhold “judgment” +according to their consciences, irrespective of all legislation. + +The following provisions, in the Magna Carta of John, illustrate the +custom of referring the most important matters of a civil nature, even +where the king was a party, to the determination of the peers, or of +twelve men, acting by no rules but their own consciences. These examples +at least show that there is nothing improbable or unnatural in the idea +that juries should try all civil suits according to their own judgments, +independently of all laws of the king. + +> _Chap. 65._ “If we have disseized or dispossessed the Welsh of any +> lands, liberties, or other things, without the legal judgment of +> their peers, they shall be immediately restored to them. And if any +> dispute arises upon this head, the matter shall be determined in the +> Marches,[^68] _by the judgment of their peers_,” &c. + +> _Chap. 68._ “We shall treat with Alexander, king of Scots, concerning +> the restoring of his sisters, and hostages, and rights and liberties, +> in the same form and manner as we shall do to the rest of our barons +> of England; unless by the engagements, which his father William, late +> king of Scots, hath entered into with us, it ought to be otherwise; +> _and this shall be left to the determination of his peers in our +> court_.” + +> _Chap. 56._ “All evil customs concerning forests, warrens, and +> foresters, warreners, sheriffs, and their officers, rivers and their +> keepers, shall forthwith be inquired into in each county, _by twelve +> knights of the same shire_, chosen by the most creditable persons in +> the same county, _and upon oath_; and within forty days after the +> said inquest, be utterly abolished, so as never to be restored.” + +There is substantially the same reason why a jury _ought_ to judge of +the justice of laws, and hold all unjust laws invalid, in civil suits, +as in criminal ones. That reason is the necessity of guarding against +the tyranny of the government. Nearly the same oppressions can be +practised in civil suits as in criminal ones. For example, individuals +may be deprived of their liberty, and robbed of their property, by +judgments rendered in civil suits, as well as in criminal ones. If the +laws of the king were imperative upon a jury in civil suits, the king +might enact laws giving one man’s property to another, or confiscating +it to the king himself, and authorizing civil suits to obtain possession +of it. Thus a man might be robbed of his property at the arbitrary +pleasure of the king. In fact, all the property of the kingdom would be +placed at the arbitrary disposal of the king, through the judgments of +juries in civil suits, if the laws of the king were imperative upon a +jury in such suits.[^69] + +Furthermore, it would be absurd and inconsistent to make a jury +paramount to legislation in _criminal_ suits, and subordinate to it in +_civil_ suits; because an individual, by resisting the execution of a +_civil_ judgment, founded upon an unjust law, could give rise to a +_criminal_ suit, in which the jury would be bound to hold the same law +invalid. So that, if an unjust law were binding upon a jury in _civil_ +suits, a defendant, by resisting the execution of the judgment, could, +_in effect_, convert the civil action into a criminal one, in which the +jury would be paramount to the same legislation, to which, in the +_civil_ suit, they were subordinate. In other words, in the _criminal_ +suit, the jury would be obliged to justify the defendant in resisting a +law, which, in the _civil_ suit, they had said he was bound to submit +to. + +To make this point plain to the most common mind—suppose a law be +enacted that the property of A shall be given to B. B brings a civil +action to obtain possession of it. If the jury, in this _civil_ suit, +are bound to hold the law obligatory, they render a judgment in favor of +B, that he be put in possession of the property; _thereby declaring that +A is bound to submit to a law depriving him of his property_. But when +the execution of that judgment comes to be attempted—that is, when the +sheriff comes to take the property for the purpose of delivering it to +B—A acting, as he has a _natural_ right to do, in defence of his +property, resists and kills the sheriff. He is thereupon indicted for +murder. On this trial his plea is, that in killing the sheriff, he was +simply exercising his _natural_ right of defending his property against +an unjust law. The jury, not being bound, in a _criminal_ case, by the +authority of an unjust law, judge the act on its merits, and acquit the +defendant—thus declaring that he was _not_ bound to submit to the same +law which the jury, in the _civil_ suit, had, by their judgment, +declared that he _was_ bound to submit to. Here is a contradiction +between the two judgments. In the _civil_ suit, the law is declared to +be obligatory upon A; in the _criminal_ suit, the same law is declared +to be of no obligation. + +It would be a solecism and absurdity in government to allow such +consequences as these. Besides, it would be practically impossible to +maintain government on such principles; for no government could enforce +its _civil_ judgments, unless it could support them by _criminal_ ones, +in case of resistance. A jury must therefore be paramount to legislation +in both civil and criminal cases, or in neither. If they are paramount +in neither, they are no protection to liberty. If they are paramount in +both, then all legislation goes only for what it may chance to be worth +in the estimation of a jury. + +Another reason why Magna Carta makes the discretion and consciences of +juries paramount to all legislation in _civil_ suits, is, that if +legislation were binding upon a jury, the jurors—(by reason of their +being unable to read, as jurors in those days were, and also by reason +of many of the statutes being unwritten, or at least not so many copies +written as that juries could be supplied with them)—would have been +necessitated—at least in those courts in which the king’s justices +sat—to take the word of those justices as to what the laws of the king +really were. In other words, they would have been necessitated _to take +the law from the court_, as jurors do now. + +Now there were two reasons why, as we may rationally suppose, the people +did not wish juries to take their law from the king’s judges. One was, +that, at that day, the people probably had sense enough to see, (what +we, at this day, have not sense enough to see, although we have the +evidence of it every day before our eyes,) that those judges, being +dependent upon the legislative power, (the king,) being appointed by it, +paid by it, and removable by it at pleasure, would be mere tools of that +power, and would hold all its legislation obligatory, whether it were +just or unjust. This was one reason, doubtless, why Magna Carta made +juries, in civil suits, paramount to all instructions of the king’s +judges. The reason was precisely the same as that for making them +paramount to all instructions of judges in criminal suits, viz., that +the people did not choose to subject their rights of property, and all +other rights involved in civil suits, to the operation of such laws as +the king might please to enact. It was seen that to allow the king’s +judges to dictate the law to the jury would be equivalent to making the +legislation of the king imperative upon the jury. + +Another reason why the people did not wish juries, in civil suits, to +take their law from the king’s judges, doubtless was, that, knowing the +dependence of the judges upon the king, and knowing that the king would, +of course, tolerate no judges who were not subservient to his will, they +necessarily inferred that the king’s judges would be as corrupt, in the +administration of justice, as was the king himself, or as he wished them +to be. And how corrupt that was, may be inferred from the following +historical facts. + +Hume says: + +> “It appears that the ancient kings of England put themselves entirely +> upon the footing of the barbarous Eastern princes, whom no man must +> approach without a present, who sell all their good offices, and who +> intrude themselves into every business that they may have a pretence +> for extorting money. Even justice was avowedly bought and sold; the +> king’s court itself, though the supreme judicature of the kingdom, +> was open to none that brought not presents to the king; the bribes +> given for expedition, delay, suspension, and doubtless for the +> perversion of justice, were entered in the public registers of the +> royal revenue, and remain as monuments of the perpetual iniquity and +> tyranny of the times. The barons of the exchequer, for instance, the +> first nobility of the kingdom, were not ashamed to insert, as an +> article in their records, that the county of Norfolk paid a sum that +> they might be fairly dealt with; the borough of Yarmouth, that the +> king’s charters, which they have for their liberties, might not be +> violated; Richard, son of Gilbert, for the king’s helping him to +> recover his debt from the Jews; * * Serlo, son of Terlavaston, that +> he might be permitted to make his defence, in case he were accused of +> a certain homicide; Walter de Burton, for free law, if accused of +> wounding another; Robert de Essart, for having an inquest to find +> whether Roger, the butcher, and Wace and Humphrey, accused him of +> robbery and theft out of envy and ill-will, or not; William Buhurst, +> for having an inquest to find whether he were accused of the death of +> one Godwin, out of ill-will, or for just cause. I have selected these +> few instances from a great number of the like kind, which Madox had +> selected from a still greater number, preserved in the ancient rolls +> of the exchequer. + +> Sometimes a party litigant offered the king a certain portion, a +> half, a third, a fourth, payable out of the debts which he, as the +> executor of justice, should assist in recovering. Theophania de +> Westland agreed to pay the half of two hundred and twelve marks, that +> she might recover that sum against James de Fughleston; Solomon, the +> Jew, engaged to pay one mark out of every seven that he should +> recover against Hugh de la Hose; Nicholas Morrel promised to pay +> sixty pounds, that the Earl of Flanders might be distrained to pay +> him three hundred and forty-three pounds, which the earl had taken +> from him; and these sixty pounds were to be paid out of the first +> money that Nicholas should recover from the earl.”—_Hume, Appendix +> 2._ + +> “In the reign of Henry II., the best and most just of these (the +> Norman) princes, * * Peter, of Blois, a judicious and even elegant +> writer, of that age, gives a pathetic description of the _venality of +> justice_, and the oppressions of the poor, * * and he scruples not to +> complain to the king himself of these abuses. We may judge what the +> case would be under the government of worse princes.”—_Hume, +> Appendix 2._ + +Carte says: + +> “The crown exercised in those days an exorbitant and inconvenient +> power, ordering the justices of the king’s court, in suits about +> lands, to turn out, put, and keep in possession, which of the +> litigants they pleased; to send contradictory orders; and take large +> sums of money from each; to respite proceedings; to direct sentences; +> and the judges, acting by their commission, conceived themselves +> bound to observe such orders, to the great delay, interruption, and +> preventing of justice; at least, this was John’s practice.”—_Carte’s +> History of England_, vol. 1, p. 832. + +Hallam says: + +> “But of all the abuses that deformed the Anglo-Saxon government, none +> was so flagitious as the sale of judicial redress. The king, we are +> often told, is the fountain of justice; but in those ages it was one +> which gold alone could unseal. Men fined (paid fines) to have right +> done them; to sue in a certain court; to implead a certain person; to +> have restitution of land which they had recovered at law. From the +> sale of that justice which every citizen has a right to demand, it +> was an easy transition to withhold or deny it. Fines were received +> for the king’s help against the adverse suitor; that is, for +> perversion of justice, or for delay. Sometimes they were paid by +> opposite parties, and, of course, for opposite ends.”—_2 Middle +> Ages_, 438. + +In allusion to the provision of Magna Carta on this subject, Hallam +says: + +> “A law which enacts that justice shall neither be sold, denied, nor +> delayed, stamps with infamy that government under which it had become +> necessary.”—_2 Middle Ages_, 451. + +Lingard, speaking of the times of Henry II., (say 1184,) says: + +> “It was universally understood that money possessed greater influence +> than justice in the royal courts, and instances are on record, in +> which one party has made the king a present to accelerate, and the +> other by a more valuable offer has succeeded in retarding a decision. +> * * But besides the fines paid to the sovereigns, _the judges often +> exacted presents for themselves_, and loud complaints existed against +> their venality and injustice.”—_2 Lingard_, 231. + +In the narrative of “The costs and charges which I, Richard de Anesty, +bestowed in recovering the land of William, my uncle,” (some fifty years +before Magna Carta,) are the following items: + +> “To Ralph, the king’s physician, I gave thirty-six marks and one +> half; to the king an hundred marks; and to the queen one mark of +> gold.” The result is thus stated. “At last, thanks to our lord the +> king, and by judgment of his court, my uncle’s land was adjudged to +> me.”—_2 Palgrave’s Rise and Progress of the English Commonwealth_, +> p. 9 and 24. + +Palgrave also says: + +> “The precious ore was cast into the scales of justice, even when held +> by the most conscientious of our Anglo-Saxon kings. A single case +> will exemplify the practices which prevailed. Alfric, the heir of +> ‘Aylwin, the black,’ seeks to set aside the death-bed bequest, by +> which his kinsman bestowed four rich and fertile manors upon St. +> Benedict. Alfric, the claimant, was supported by extensive and +> powerful connexions; and Abbot Alfwine, the defendant, was well aware +> that there would be _danger_ in the discussion of the dispute in +> public, or before the Folkmoot, (people’s meeting, or county court); +> or, in other words, that the Thanes of the shire would do their best +> to give a judgment in favor of their compeer. The plea being removed +> into the Royal Court, the abbot acted with that prudence which so +> often calls forth the praises of the monastic scribe. He gladly +> emptied twenty marks of gold into the sleeve of the Confessor, +> (Edward,) and five marks of gold presented to Edith, the Fair, +> encouraged her to aid the bishop, and to exercise her gentle +> influence in his favor. Alfric, with equal wisdom, withdrew from +> prosecuting the hopeless cause, in which his opponent might possess +> an advocate in the royal judge, and a friend in the king’s consort. +> Both parties, therefore, found it desirable to come to an +> agreement.”—_1 Palgrave’s Rise and Progress, &c._, p. 650. + +But Magna Carta has another provision for the trial of _civil_ suits, +that obviously had its origin in the corruption of the king’s judges. +The provision is, that four knights, to be chosen in every county, by +the people of the county, shall sit with the king’s judges, in the +Common Pleas, in jury trials, (assizes,) on the trial of three certain +kinds of suits, that were among the most important that were tried at +all. The reason for this provision undoubtedly was, that the corruption +and subserviency of the king’s judges were so well known, that the +people would not even trust them to sit alone in a jury trial of any +considerable importance. The provision is this: + +> _Chap. 22_, (of John’s Charter.) “Common Pleas shall not follow our +> court, but shall be holden in some certain place. Trials upon the +> writ of _novel disseisin_, and of _Mort d’Ancester_, and of _Darrein +> Presentment_, shall be taken but in their proper counties, and after +> this manner: We, or, if we should be out of our realm, our chief +> justiciary, shall send two justiciaries through every county four +> times a year;[^70] _who, with four knights chosen out of every shire, +> by the people, shall hold the assizes_ (juries) _in the county, on +> the day and at the place appointed_.” + +It would be very unreasonable to suppose that the king’s judges were +allowed to _dictate_ the law to the juries, when the people would not +even suffer them to sit alone in jury trials, but themselves chose four +men to sit with them, to keep them honest.[^71] + +This practice of sending the king’s judges into the counties to preside +at jury trials, was introduced by the Norman kings. Under the Saxons it +was not so. _No officer of the king was allowed to preside at a jury +trial; but only magistrates chosen by the people._[^72] + +But the following chapter of John’s charter, which immediately succeeds +the one just quoted, and refers to the same suits, affords very strong, +not to say conclusive, proof, that juries judged of the law in civil +suits—that is, _made the law_, so far as their deciding according to +their own notions of justice could make the law. + +> _Chap. 23._ “And if, on the county day, the aforesaid assizes cannot +> be taken, _so many knights and freeholders shall remain, of those who +> shall have been present on said day, as that the judgments may be +> rendered by them_, whether the business be more or less.” + +The meaning of this chapter is, that so many of the _civil_ suits, as +could not be tried on the day when the king’s justices were present, +should be tried afterwards, _by the four knights before mentioned, and +the freeholders, that is, the jury_. It must be admitted, of course, +that the juries, in these cases, judged the matters of law, as well as +fact, unless it be presumed that the _knights_ dictated the law to the +jury—a thing of which there is no evidence at all. + +As a final proof on this point, there is a statute enacted seventy years +after Magna Carta, which, although it is contrary to the common law, and +therefore void, is nevertheless good evidence, inasmuch as it contains +an acknowledgment, on the part of the king himself, that juries had a +right to judge of the whole matter, law and fact, in civil suits. The +provision is this: + +> “It is ordained, that the justices assigned to take the assizes, +> shall not compel the jurors to say precisely whether it be disseisin, +> or not, so that they do show the truth of the deed, and seek aid of +> the justices. But if they will, of their own accord, say that it is +> disseisin, or not, their verdict shall be admitted at their own +> peril.”—_13 Edward I._, st. 1, ch. 3, sec. 2. (1285.) + +The question of “disseisin, or not,” was a question of law, as well as +fact. This statute, therefore, admits that the law, as well as the fact, +was in the hands of the jury. The statute is nevertheless void, because +the king had no authority to give jurors a dispensation from the +obligation imposed upon them by their oaths and the “law of the land,” +that they should “make known the truth according their (own) +consciences.” This they were bound to do, and there was no power in the +king to absolve them from the duty. And the attempt of the king thus to +absolve them, and authorize them to throw the case into the hands of the +judges for decision, was simply an illegal and unconstitutional attempt +to overturn the “law of the land,” which he was sworn to maintain, and +gather power into his own hands, through his judges. He had just as much +constitutional power to enact that the jurors should not be compelled to +declare the _facts_, but that they might leave _them_ to be determined +by the king’s judges, as he had to enact that they should not be +compelled to declare the _law_, but might leave _it_ to be decided by +the king’s judges. It was as much the legal duty of the jury to decide +the law as to decide the fact; and no law of the king could affect their +obligation to do either. And this statute is only one example of the +numberless contrivances and usurpations which have been resorted to, for +the purpose of destroying the original and genuine trial by jury. + +[Footnote 68: _Marches_, the limits, or boundaries, between England and +Wales.] + +[Footnote 69: That the kings would have had no scruples to enact laws +for the special purpose of plundering the people, by means of the +judgments of juries, if they could have got juries to acknowledge the +authority of their laws, is evident from the audacity with which they +plundered them, without any judgments of juries to authorize them. + +It is not necessary to occupy space here to give details as to these +robberies; but only some evidence of the general fact. + +> Hallam says, that “For the first three reigns (of the Norman kings) * +> * the intolerable exactions of tribute, the rapine of purveyance, the +> iniquity of royal courts, are continually in the mouths of the +> historians. ‘God sees the wretched people,’ says the Saxon +> Chronicler, ‘most unjustly oppressed; first they are despoiled of +> their possessions, and then butchered.’ This was a grievous year +> (1124). Whoever had any property, lost it by heavy taxes and unjust +> decrees.”—_2 Middle Ages_, 435-6. + +> “In the succeeding reign of _John_, all the rapacious exactions usual +> to these Norman kings were not only redoubled, but mingled with +> outrages of tyranny still more intolerable. * * + +> “In 1207 John took a seventh of the movables of lay and spiritual +> persons, all murmuring, but none daring to speak against +> it.”—_Ditto_, 446. + +In Hume’s account of the extortions of those times, the following +paragraph occurs: + +> “But the most barefaced acts of tyranny and oppression were practised +> against the Jews, who were entirely out of the protection of the law, +> and were abandoned to the immeasurable rapacity of the king and his +> ministers. Besides many other indignities, to which they were +> continually exposed, it appears that they were once all thrown into +> prison, and the sum of 66,000 marks exacted for their liberty. At +> another time, Isaac, the Jew, paid alone 5100 marks; Brun, 3000 +> marks; Jurnet, 2000; Bennet, 500. At another, Licorica, widow of +> David, the Jew of Oxford, was required to pay 6000 marks.”—_Hume’s +> Hist. Eng., Appendix_ 2. + +Further accounts of the extortions and oppressions of the kings may be +found in Hume’s History, Appendix 2, and in Hallam’s Middle Ages, vol. +2, p. 435 to 446. + +By Magna Carta John bound himself to make restitution for some of the +spoliations he had committed upon individuals “_without the legal +judgment of their peers_.”—_See Magna Carta of John_, ch. 60, 61, 65 +and 66. + +One of the great charges, on account of which the nation rose against +John, was, that he plundered individuals of their property, “_without +legal judgment of their peers_.” Now it was evidently very weak and +short-sighted in John to expose himself to such charges, _if his laws +were really obligatory upon the peers_; because, in that case, he could +have enacted any laws that were necessary for his purpose, and then, by +civil suits, have brought the cases before juries for their “judgment,” +and thus have accomplished all his robberies in a perfectly legal +manner. + +There would evidently have been no sense in these complaints, that he +deprived men of their property “_without legal judgment of their +peers_,” if his laws had been binding upon the peers; because he could +then have made the same spoliations as well with the judgment of the +peers as without it. Taking the judgment of the peers in the matter, +would have been only a ridiculous and useless formality, if they were to +exercise no discretion or conscience of their own, independently of the +laws of the king. + +It may here be mentioned, in passing, that the same would be true in +criminal matters, if the king’s laws were obligatory upon juries. + +As an illustration of what tyranny the kings would sometimes practise, +Hume says: + +> “It appears from the Great Charter itself, that not only John, a +> tyrannical prince, and Richard, a violent one, but their father +> Henry, under whose reign the prevalence of gross abuses is the least +> to be suspected, were accustomed, from their sole authority, without +> process of law, to imprison, banish, and attaint the freemen of their +> kingdom.”—_Hume, Appendix_ 2. + +The provision, also, in the 64th chapter of Magna Carta, that “all +unjust and illegal fines, and all amercements, _imposed unjustly, and +contrary to the Law of the Land, shall be entirely forgiven_,” &c.; and +the provision, in chapter 61, that the king “will cause full justice to +be administered” in regard to “all those things, of which any person +has, without legal judgment of his peers, been dispossessed or deprived, +either by King Henry, our father, or our brother, King Richard,” +indicate the tyrannical practices that prevailed. + +> We are told also that John himself “had dispossessed several great +> men without any judgment of their peers, condemned others to cruel +> deaths, * * insomuch that his tyrannical will stood instead of a +> law.”—_Echard’s History of England_, 106. + +Now all these things were very unnecessary and foolish, if his laws were +binding upon juries; because, in that case, he could have procured the +conviction of these men in a legal manner, and thus have saved the +necessity of such usurpation. In short, if the laws of the king had been +binding upon juries, there is no robbery, vengeance, or oppression, +which he could not have accomplished through the judgments of juries. +This consideration is sufficient, of itself, to prove that the laws of +the king were of no authority over a jury, in either civil or criminal +cases, unless the juries regarded the laws as just in themselves.] + +[Footnote 70: By the Magna Carta of Henry III. this is changed to once a +year.] + +[Footnote 71: From the provision of Magna Carta, cited in the text, it +must be inferred that there can be no legal trial by jury, in civil +cases, if only the king’s justices preside; that, to make the trial +legal, there must be other persons, chosen by the people, to sit with +them; the object being to prevent the jury’s being deceived by the +justices. I think we must also infer that the king’s justices could sit +only in the three actions specially mentioned. We cannot go beyond the +letter of Magna Carta, in making innovations upon the common law, which +required all presiding officers in jury trials to be elected by the +people.] + +[Footnote 72: “The earls, sheriffs, and head-boroughs were annually +elected in the full folcmote, (people’s meeting).”—_Introduction to +Gilbert’s History of the Common Pleas_, p. 2, _note_. + +“It was the especial province of the earldomen or earl to attend the +shyre-meeting, (the county court,) twice a year, and there officiate as +the county judge in expounding the secular laws, as appears by the fifth +of Edgar’s laws.”—_Same_, p. 2, _note_. + +“Every ward had its proper alderman, who was _chosen_, and not imposed +by the prince.”—_Same_, p. 4, _text_. + +“As the aldermen, or earls, were always _chosen_” (by the people) “from +among the greatest thanes, who in those times were generally more +addicted to arms than to letters, they were but ill-qualified for the +administration of justice, and performing the civil duties of their +office.”—_3 Henry’s History of Great Britain_, 343. + +“But none of these thanes were annually elected in the full folcmote, +(people’s meeting,) _as the earls, sheriffs, and head-boroughs were_; +nor did King Alfred (as this author suggests) deprive the people of the +election of those last mentioned magistrates and nobles, much less did +he appoint them himself.”—_Introd. to Gilbert’s Hist. Com. Pleas_, p. +2, _note_. + +“The sheriff was usually not appointed by the lord, but elected by the +freeholders of the district.”—_Political Dictionary_, word _Sheriff_. + +“Among the most remarkable of the Saxon laws we may reckon * * the +election of their magistrates by the people, originally even that of +their kings, till dear-bought experience evinced the convenience and +necessity of establishing an hereditary succession to the crown. But +that (the election) of all subordinate magistrates, their military +officers or heretochs, their sheriffs, their conservators of the peace, +their coroners, their portreeves, (since changed into mayors and +bailiffs,) and even their tithing-men and borsholders at the last, +continued, some, till the Norman conquest, others for two centuries +after, and some remain to this day.”—_4 Blackstone_, 413. + +“The election of sheriffs was left to the people, _according to ancient +usage_.”—_St. West._ 1, c. 27.—_Crabbe’s History of English Law_, +181.] diff --git a/edited/05.markdown b/edited/05.markdown new file mode 100644 index 0000000..1db3132 --- /dev/null +++ b/edited/05.markdown @@ -0,0 +1,754 @@ +CHAPTER V. + +OBJECTIONS ANSWERED + + +The following objections will be made to the doctrines and the evidence +presented in the preceding chapters. + +1. That it is a _maxim_ of the law, that the judges respond to the +question of law, and juries only to the question of fact. + +The answer to this objection is, that, since Magna Carta, judges have +had more than six centuries in which to invent and promulgate pretended +maxims to suit themselves; and this is one of them. Instead of +expressing the law, it expresses nothing but the ambitious and lawless +will of the judges themselves, and of those whose instruments they +are.[^73] + +2. It will be asked, Of what use are the justices, if the jurors judge +both of law and fact? + +The answer is, that they are of use, 1. To assist and enlighten the +jurors, if they can, by their advice and information; such advice and +information to be received only for what they may chance to be worth in +the estimation of the jurors. 2. To do anything that may be necessary in +regard to granting appeals and new trials. + +3. It is said that it would be absurd that twelve ignorant men should +have power to judge of the law, while justices learned in the law should +be compelled to sit by and see the law decided erroneously. + +One answer to this objection is, that the powers of juries are not +granted to them on the supposition that they know the law better than +the justices; but on the ground that the justices are untrustworthy, +that they are exposed to bribes, are themselves fond of power and +authority, and are also the dependent and subservient creatures of the +legislature; and that to allow them to dictate the law, would not only +expose the rights of parties to be sold for money, but would be +equivalent to surrendering all the property, liberty, and rights of the +people, unreservedly into the hands of arbitrary power, (the +legislature,) to be disposed of at its pleasure. The powers of juries, +therefore, not only place a curb upon the powers of legislators and +judges, but imply also an imputation upon their integrity and +trustworthiness; and _these_ are the reasons why legislators and judges +have formerly entertained the intensest hatred of juries, and, so fast +as they could do it without alarming the people for their liberties, +have, by indirection, denied, undermined, and practically destroyed +their power. And it is only since all the real power of juries has been +destroyed, and they have become mere tools in the hands of legislators +and judges, that they have become favorites with them. + +Legislators and judges are necessarily exposed to all the temptations of +money, fame, and power, to induce them to disregard justice between +parties, and sell the rights, and violate the liberties of the people. +Jurors, on the other hand, are exposed to none of these temptations. +They are not liable to bribery, for they are unknown to the parties +until they come into the jury-box. They can rarely gain either fame, +power, or money, by giving erroneous decisions. Their offices are +temporary, and they know that when they shall have executed them, they +must return to the people, to hold all their own rights in life subject +to the liability of such judgments, by their successors, as they +themselves have given an example for. The laws of human nature do not +permit the supposition that twelve men, taken by lot from the mass of +the people, and acting under such circumstances, will _all_ prove +dishonest. It is a supposable case that they may not be sufficiently +enlightened to know and do their whole duty, in all cases whatsoever; +but that they should _all_ prove _dishonest_, is not within the range +of probability. A jury, therefore, insures to us—what no other court +does—that first and indispensable requisite in a judicial tribunal, +integrity. + +4. It is alleged that if juries are allowed to judge of the law, _they +decide the law absolutely; that their decision must necessarily stand, +be it right or wrong_; and that this power of absolute decision would be +dangerous in their hands, by reason of their ignorance of the law. + +One answer is, that this power, which juries have of _judging_ of the +law, is not a power of _absolute decision in all cases_. For example, it +is a power to declare imperatively that a man’s property, liberty, or +life, shall _not_ be taken from him; but it is not a power to declare +imperatively that they _shall_ be taken from him. + +Magna Carta does not provide that the judgments of the peers _shall be +executed_; but only that _no other than their judgments_ shall ever be +executed, _so far as to take a party’s goods, rights, or person, +thereon_. + +A judgment of the peers may be reviewed, and invalidated, and a new +trial granted. So that practically a jury has no absolute power to take +a party’s goods, rights, or person. They have only an absolute veto upon +their being taken by the government. The government is not bound to do +everything that a jury may adjudge. It is only prohibited from doing +anything—(that is, from taking a party’s goods, rights, or +person)—unless a jury have first adjudged it to be done. + +But it will, perhaps, be said, that if an erroneous judgment of one jury +should be reaffirmed by another, on a new trial, it must _then_ be +executed. But Magna Carta does not command even this—although it might, +perhaps, have been reasonably safe for it to have done so—for if two +juries unanimously affirm the same thing, after all the light and aid +that judges and lawyers can afford them, that fact probably furnishes as +strong a presumption in favor of the correctness of their opinion, as +can ordinarily be obtained in favor of a judgment, by any measures of a +practical character for the administration of justice. Still, there is +nothing in Magna Carta that _compels_ the execution of even a second +judgment of a jury. The only injunction of Magna Carta upon the +government, as to what it _shall do_, on this point, is that it shall +“do justice and right,” without sale, denial, or delay. But this leaves +the government all power of determining what is justice and right, +except that it shall not consider anything as justice and right—so far +as to carry it into execution against the goods, rights, or person of a +party—unless it be something which a jury have sanctioned. + +If the government had no alternative but to execute all judgments of a +jury indiscriminately, the power of juries would unquestionably be +dangerous; for there is no doubt that they may sometimes give hasty and +erroneous judgments. But when it is considered that their judgments can +be reviewed, and new trials granted, this danger is, for all practical +purposes, obviated. + +If it be said that juries may _successively_ give erroneous judgments, +and that new trials cannot be granted indefinitely, the answer is, that +so far as Magna Carta is concerned, there is nothing to prevent the +granting of new trials indefinitely, if the judgments of juries are +contrary to “justice and right.” So that Magna Carta does not _require_ +any judgment whatever to be executed—so far as to take a party’s goods, +rights, or person, thereon—unless it be concurred in by both court and +jury. + +Nevertheless, we may, for the sake of the argument, suppose the +existence of a _practical_, if not _legal_, necessity, for executing +_some_ judgment or other, in cases where juries persist in disagreeing +with the courts. In such cases, the principle of Magna Carta +unquestionably is, that the uniform judgments of _successive_ juries +shall prevail over the opinion of the court. And the reason of this +principle is obvious, viz., that it is the will of the country, and not +the will of the court, or the government, that must determine what laws +shall be established and enforced; that the concurrent judgments of +successive juries, given in opposition to all the reasoning which judges +and lawyers can offer to the contrary, must necessarily be presumed to +be a truer exposition of the will of the country, than are the opinions +of the judges. + +But it may be said that, unless jurors submit to the control of the +court, in matters of law, they may disagree among themselves, and +_never_ come to any judgment; and thus justice fail to be done. + +Such a case is perhaps possible; but, if possible, it can occur but +rarely; because, although one jury may disagree, a succession of juries +are not likely to disagree—that is, _on matters of natural law, or +abstract justice_.[^74] If such a thing should occur, it would almost +certainly be owing to the attempt of the court to mislead them. It is +hardly possible that any other cause should be adequate to produce such +an effect; because justice comes very near to being a self-evident +principle. The mind perceives it almost intuitively. If, in addition to +this, the court be uniformly on the side of justice, it is not a +reasonable supposition that a succession of juries should disagree about +it. If, therefore, a succession of juries do disagree on the law of any +case, the presumption is, not that justice fails of being done, but that +injustice is prevented—_that_ injustice, which would be done, if the +opinion of the court were suffered to control the jury. + +For the sake of the argument, however, it may be admitted to be possible +that justice should sometimes fail of being done through the +disagreements of jurors, notwithstanding all the light which judges and +lawyers can throw upon the question in issue. If it be asked what +provision the trial by jury makes for such cases, the answer is, _it +makes none; and justice must fail of being done, from the want of its +being made sufficiently intelligible_. + +Under the trial by jury, justice can never be done—that is, by a +judgment that shall take a party’s goods, rights, or person—until that +justice can be made intelligible or perceptible to the minds of _all_ +the jurors; or, at least, until it obtain the voluntary assent of +all—an assent, which ought not to be given until the justice itself +shall have become perceptible to all. + +The principles of the trial by jury, then, are these: + +1. That, in criminal cases, the accused is presumed innocent. + +2. That, in civil cases, possession is presumptive proof of property; +or, in other words, every man is presumed to be the rightful proprietor +of whatever he has in his possession. + +3. That these presumptions shall be overcome, in a court of justice, +only by evidence, the sufficiency of which, and by law, the justice of +which, are satisfactory to the understanding and consciences of _all_ +the jurors. + +These are the bases on which the trial by jury places the property, +liberty, and rights of every individual. + +But some one will say, if these are the principles of the trial by jury, +then it is plain that justice must often fail to be done. Admitting, for +the sake of the argument, that this may be true, the compensation for it +is, that positive _injustice_ will also often fail to be done; whereas +otherwise it would be done frequently. The very precautions used to +prevent _injustice_ being done, may often have the effect to prevent +_justice_ being done. But are we, therefore, to take no precautions +against injustice? By no means, all will agree. The question then +arises—Does the trial by jury, _as here explained_, involve such +extreme and unnecessary precautions against injustice, as to interpose +unnecessary obstacles to the doing of justice? Men of different minds +may very likely answer this question differently, according as they have +more or less confidence in the wisdom and justice of legislators, the +integrity and independence of judges, and the intelligence of jurors. +This much, however, may be said in favor of these precautions, viz., +that the history of the past, as well as our constant present +experience, prove how much injustice may, and certainly will, be done, +systematically and continually, _for the want of these precautions_—that +is, while the law is authoritatively made and expounded by legislators and +judges. On the other hand, we have no such evidence of how much justice +may fail to be done, _by reason of these precautions_—that is, by reason +of the law being left to the judgments and consciences of jurors. We can +determine the former point—that is, how much positive injustice is done +under the first of these two systems—because the system is in full +operation; but we cannot determine how much justice would fail to be +done under the latter system, because we have, in modern times, had no +experience of the use of the precautions themselves. In ancient times, +when these precautions were _nominally_ in force, such was the tyranny of +kings, and such the poverty, ignorance, and the inability of concert and +resistance, on the part of the people, that the system had no full or fair +operation. It, nevertheless, under all these disadvantages, impressed +itself upon the understandings, and imbedded itself in the hearts, of the +people, so as no other system of civil liberty has ever done. + +But this view of the two systems compares only the injustice done, and +the justice omitted to be done, in the individual cases adjudged, +without looking beyond them. And some persons might, on first thought, +argue that, if justice failed of being done under the one system, +oftener than positive injustice were done under the other, the balance +was in favor of the latter system. But such a weighing of the two +systems against each other gives no true idea of their comparative +merits or demerits; for, possibly, in this view alone, the balance would +not be very great in favor of either. To compare, or rather to contrast, +the two, we must consider that, under the jury system, the failures to +do justice would be only rare and exceptional cases; and would be owing +either to the intrinsic difficulty of the questions, or to the fact that +the parties had transacted their business in a manner unintelligible to +the jury, and the effects would be confined to the individual or +individuals interested in the particular suits. No permanent law would +be established thereby destructive of the rights of the people in other +like cases. And the people at large would continue to enjoy all their +natural rights as before. But under the other system, whenever an unjust +law is enacted by the legislature, and the judge imposes it upon the +jury as authoritative, and they give a judgment in accordance therewith, +the authority of the law is thereby established, and the whole people +are thus brought under the yoke of that law; because they then +understand that the law will be enforced against them in future, if they +presume to exercise their rights, or refuse to comply with the +exactions of the law. In this manner all unjust laws are established, +and made operative against the rights of the people. + +The difference, then, between the two systems is this: Under the one +system, a jury, at distant intervals, would (not enforce any positive +injustice, but only) fail of enforcing justice, in a dark and difficult +case, or in consequence of the parties not having transacted their +business in a manner intelligible to a jury; and the plaintiff would +thus fail of obtaining what was rightfully due him. And there the matter +would end, _for evil_, though not for good; for thenceforth parties, +warned of the danger of losing their rights, would be careful to +transact their business in a more clear and intelligible manner. Under +the other system—the system of legislative and judicial +authority—positive injustice is not only done in every suit arising +under unjust laws,—that is, men’s property, liberty, or lives are not +only unjustly taken on those particular judgments,—but the rights of +the whole people are struck down by the authority of the laws thus +enforced, and a wide-sweeping tyranny at once put in operation. + +But there is another ample and conclusive answer to the argument that +justice would often fail to be done, if jurors were allowed to be +governed by their own consciences, instead of the direction of the +justices, in matters of law. That answer is this: + +Legitimate government can be formed only by the voluntary association of +all who contribute to its support. As a voluntary association, it can +have for its objects only those things in which the members of the +association are _all agreed_. If, therefore, there be any _justice_, in +regard to which all the parties to the government _are not agreed_, the +objects of the association do not extend to it.[^75] + +If any of the members wish more than this,—if they claim to have +acquired a more extended knowledge of justice than is common to all, and +wish to have their pretended discoveries carried into effect, in +reference to themselves,—they must either form a separate association +for that purpose, or be content to wait until they can make their views +intelligible to the people at large. They cannot claim or expect that +the whole people shall practise the folly of taking on trust their +pretended superior knowledge, and of committing blindly into their hands +all their own interests, liberties, and rights, to be disposed of on +principles, the justness of which the people themselves cannot +comprehend. + +A government of the whole, therefore, must necessarily confine itself to +the administration of such principles of law as _all_ the people, who +contribute to the support of the government, can comprehend and see the +justice of. And it can be confined within those limits only by allowing +the jurors, who represent all the parties to the compact, to judge of +the law, and the justice of the law, in all cases whatsoever. And if any +justice be left undone, under these circumstances, it is a justice for +which the nature of the association does not provide, which the +association does not undertake to do, and which, as an association, it +is under no obligation to do. + +The people at large, the unlearned and common people, have certainly an +indisputable right to associate for the establishment and maintenance of +such a government as _they themselves_ see the justice of, and feel the +need of, for the promotion of their own interests, and the safety of +their own rights, without at the same time surrendering all their +property, liberty, and rights into the hands of men, who, under the +pretence of a superior and incomprehensible knowledge of justice, may +dispose of such property, liberties, and rights, in a manner to suit +their own selfish and dishonest purposes. + +If a government were to be established and supported _solely_ by that +portion of the people who lay claim to superior knowledge, there would +be some consistency in their saying that the common people should not be +received as jurors, with power to judge of the justice of the laws. But +so long as the whole people (or all the male adults) are presumed to be +voluntary parties to the government, and voluntary contributors to its +support, there is no consistency in refusing to any one of them more +than to another the right to sit as juror, with full power to decide for +himself whether any law that is proposed to be enforced in any +particular case, be within the objects of the association. + +The conclusion, therefore, is, that, in a government formed by voluntary +association, or on the _theory_ of voluntary association, and voluntary +support, (as all the North American governments are,) no law can +rightfully be enforced by the association in its corporate capacity, +against the goods, rights, or person of any individual, except it be +such as _all_ the members of the association agree that it may enforce. +To enforce any other law, to the extent of taking a man’s goods, rights, +or person, would be making _some_ of the parties to the association +accomplices in what they regard as acts of injustice. It would also be +making them consent to what they regard as the destruction of their own +rights. These are things which no legitimate system or theory of +government can require of any of the parties to it. + +The mode adopted, by the trial by jury, for ascertaining whether all the +parties to the government do approve of a particular law, is to take +twelve men at random from the whole people, and accept their unanimous +decision as representing the opinions of the whole. Even this mode is +not theoretically accurate; for theoretical accuracy would require that +every man, who was a party to the government, should individually give +his consent to the enforcement of every law in every separate case. But +such a thing would be impossible in practice. The consent of twelve men +is therefore taken instead; with the privilege of appeal, and (in case +of error found by the appeal court) a new trial, to guard against +possible mistakes. This system, it is assumed, will ascertain the sense +of the whole people—“the country”—with sufficient accuracy for all +practical purposes, and with as much accuracy as is practicable without +too great inconvenience and expense. + +5. Another objection that will perhaps be made to allowing jurors to +judge of the law, and the justice of the law, is, that the law would be +uncertain. + +If, by this objection, it be meant that the law would be uncertain to +the minds of the people at large, so that they would not know what the +juries would sanction and what condemn, and would not therefore know +practically what their own rights and liberties were under the law, the +objection is thoroughly baseless and false. No system of law that was +ever devised could be so entirely intelligible and certain to the minds +of the people at large as this. Compared with it, the complicated +systems of law that are compounded of the law of nature, of +constitutional grants, of innumerable and incessantly changing +legislative enactments, and of countless and contradictory judicial +decisions, with no uniform principle of reason or justice running +through them, are among the blindest of all the mazes in which +unsophisticated minds were ever bewildered and lost. The uncertainty of +the law under these systems has become a proverb. So great is this +uncertainty, that nearly all men, learned as well as unlearned, shun the +law as their enemy, instead of resorting to it for protection. They +usually go into courts of justice, so called, only as men go into +battle—when there is no alternative left for them. And even then they +go into them as men go into dark labyrinths and caverns—with no +knowledge of their own, but trusting wholly to their guides. Yet, less +fortunate than other adventurers, they can have little confidence even +in their guides, for the reason that the guides themselves know little +of the mazes they are threading. They know the mode and place of +entrance; but what they will meet with on their way, and what will be +the time, mode, place, or condition of their exit; whether they will +emerge into a prison, or not; whether _wholly_ naked and destitute, or +not; whether with their reputations left to them, or not; and whether in +time or eternity; experienced and honest guides rarely venture to +predict. Was there ever such fatuity as that of a nation of men madly +bent on building up such labyrinths as these, for no other purpose than +that of exposing all their rights of reputation, property, liberty, and +life, to the hazards of being lost in them, instead of being content to +live in the light of the open day of their own understandings? + +What honest, unsophisticated man ever found himself involved in a +lawsuit, that he did not desire, of all things, that his cause might be +judged of on principles of natural justice, as those principles were +understood by plain men like himself? He would then feel that he could +foresee the result. These plain men are the men who pay the taxes, and +support the government. Why should they not have such an administration +of justice as they desire, and can understand? + +If the jurors were to judge of the law, and the justice of the law, +there would be something like certainty in the administration of +justice, and in the popular knowledge of the law, and men would govern +themselves accordingly. There would be something like certainty, because +every man has himself something like definite and clear opinions, and +also knows something of the opinions of his neighbors, on matters of +justice. And he would know that no statute, unless it were so clearly +just as to command the unanimous assent of twelve men, who should be +taken at random from the whole community, could be enforced so as to +take from him his reputation, property, liberty, or life. What greater +certainty can men require or need, as to the laws under which they are +to live? If a statute were enacted by a legislature, a man, in order to +know what was its true interpretation, whether it were constitutional, +and whether it would be enforced, would not be under the necessity of +waiting for years until some suit had arisen and been carried through +all the stages of judicial proceeding, to a final decision. He would +need only to use his own reason as to its meaning and its justice, and +then talk with his neighbors on the same points. Unless he found them +nearly unanimous in their interpretation and approbation of it, he would +conclude that juries would not unite in enforcing it, and that it would +consequently be a dead letter. And he would be safe in coming to this +conclusion. + +There would be something like certainty in the administration of +justice, and in the popular knowledge of the law, for the further reason +that there would be little legislation, and men’s rights would be left +to stand almost solely upon the law of nature, or what was once called +in England “the _common law_,” (before so much legislation and +usurpation had become incorporated into the common law,)—in other +words, upon the principles of natural justice. + +Of the certainty of this law of nature, or the ancient English common +law, I may be excused for repeating here what I have said on another +occasion. + +> “Natural law, so far from being uncertain, when compared with +> statutory and constitutional law, is the only thing that gives any +> certainty at all to a very large portion of our statutory and +> constitutional law. The reason is this. The words in which statutes +> and constitutions are written are susceptible of so many different +> meanings,—meanings widely different from, often directly opposite +> to, each other, in their bearing upon men’s rights,—that, unless +> there were some rule of interpretation for determining which of these +> various and opposite meanings are the true ones, there could be no +> certainty at all as to the meaning of the statutes and constitutions +> themselves. Judges could make almost anything they should please out +> of them. Hence the necessity of a rule of interpretation. _And this +> rule is, that the language of statutes and constitutions shall be +> construed, as nearly as possible, consistently with natural law._ + +> The rule assumes, what is true, that natural law is a thing certain +> in itself; also that it is capable of being learned. It assumes, +> furthermore, that it actually is understood by the legislators and +> judges who make and interpret the written law. Of necessity, +> therefore, it assumes further, that they (the legislators and judges) +> are _incompetent_ to make and interpret the _written_ law, unless +> they previously understand the natural law applicable to the same +> subject. It also assumes that the _people_ must understand the +> natural law, before they can understand the written law. + +> It is a principle perfectly familiar to lawyers, and one that must be +> perfectly obvious to every other man that will reflect a moment, +> that, as a general rule, _no one can know what the written law is, +> until he knows what it ought to be_; that men are liable to be +> constantly misled by the various and conflicting senses of the same +> words, unless they perceive the true legal sense in which the words +> _ought to be taken_. And this true legal sense is the sense that is +> most nearly consistent with natural law of any that the words can be +> made to bear, consistently with the laws of language, and +> appropriately to the subjects to which they are applied. + +> Though the words _contain_ the law, the _words_ themselves are not +> the law. Were the words themselves the law, each single written law +> would be liable to embrace many different laws, to wit, as many +> different laws as there were different senses, and different +> combinations of senses, in which each and all the words were capable +> of being taken. + +> Take, for example, the Constitution of the United States. By adopting +> one or another sense of the single word “_free_,” the whole +> instrument is changed. Yet the word _free_ is capable of some ten or +> twenty different senses. So that, by changing the sense of that +> single word, some ten or twenty different constitutions could be made +> out of the same written instrument. But there are, we will suppose, a +> thousand other words in the constitution, each of which is capable of +> from two to ten different senses. So that, by changing the sense of +> only a single word at a time, several thousands of different +> constitutions would be made. But this is not all. Variations could +> also be made by changing the senses of two or more words at a time, +> and these variations could be run through all the changes and +> combinations of senses that these thousand words are capable of. We +> see, then, that it is no more than a literal truth, that out of that +> single instrument, as it now stands, without altering the location of +> a single word, might be formed, by construction and interpretation, +> more different constitutions than figures can well estimate. + +> But each written law, in order to be a law, must be taken only in +> some _one_ definite and distinct sense; and that definite and +> distinct sense must be selected from the almost infinite variety of +> senses which its words are capable of. How is this selection to be +> made? It can be only by the aid of that perception of natural law, or +> natural justice, which men naturally possess. + +> Such, then, is the comparative certainty of the natural and the +> written law. Nearly all the certainty there is in the latter, so far +> as it relates to principles, is based upon, and derived from, the +> still greater certainty of the former. In fact, nearly all the +> uncertainty of the laws under which we live,—which are a mixture of +> natural and written laws,—arises from the difficulty of construing, +> or, rather, from the facility of misconstruing, the _written_ law; +> while natural law has nearly or quite the same certainty as +> mathematics. On this point, Sir William Jones, one of the most +> learned judges that have ever lived, learned in Asiatic as well as +> European law, says,—and the fact should be kept forever in mind, as +> one of the most important of all truths:—“_It is pleasing to remark +> the similarity, or, rather, the identity of those conclusions which +> pure, unbiassed reason, in all ages and nations, seldom fails to +> draw, in such juridical inquiries as are not fettered and manacled by +> positive institutions._”[^76] In short, the simple fact that the +> written law must be interpreted by the natural, is, of itself, a +> sufficient confession of the superior certainty of the latter. + +> The written law, then, even where it can be construed consistently +> with the natural, introduces labor and obscurity, instead of shutting +> them out. And this must always be the case, because words do not +> create ideas, but only recall them; and the same word may recall many +> different ideas. For this reason, nearly all abstract principles can +> be seen by the single mind more clearly than they can be expressed by +> words to another. This is owing to the imperfection of language, and +> the different senses, meanings, and shades of meaning, which +> different individuals attach to the same words, in the same +> circumstances.[^77] + +> Where the written law cannot be construed consistently with the +> natural, there is no reason why it should ever be enacted at all. It +> may, indeed, be sufficiently plain and certain to be easily +> understood; but its certainty and plainness are but a poor +> compensation for its injustice. Doubtless a law forbidding men to +> drink water, on pain of death, might be made so intelligible as to +> cut off all discussion as to its meaning; but would the +> intelligibleness of such a law be any equivalent for the right to +> drink water? The principle is the same in regard to all unjust laws. +> Few persons could reasonably feel compensated for the arbitrary +> destruction of their rights, by having the order for their +> destruction made known beforehand, in terms so distinct and +> unequivocal as to admit of neither mistake nor evasion. Yet this is +> all the compensation that such laws offer. + +> Whether, therefore, written laws correspond with, or differ from, the +> natural, they are to be condemned. In the first case, they are +> useless repetitions, introducing labor and obscurity. In the latter +> case, they are positive violations of men’s rights. + +> There would be substantially the same reason in enacting mathematics +> by statute, that there is in enacting natural law. Whenever the +> natural law is sufficiently certain to all men’s minds to justify its +> being enacted, it is sufficiently certain to need no enactment. On +> the other hand, until it be thus certain, there is danger of doing +> injustice by enacting it; it should, therefore, be left open to be +> discussed by anybody who may be disposed to question it, and to be +> judged of by the proper tribunal, the judiciary.[^78] + +> It is not necessary that legislators should enact natural law in +> order that it may be known to the _people_, because that would be +> presuming that the legislators already understand it better than the +> people,—a fact of which I am not aware that they have ever +> heretofore given any very satisfactory evidence. The same sources of +> knowledge on the subject are open to the people that are open to the +> legislators, and the people must be presumed to know it as well as +> they. + +> The objections made to natural law, on the ground of obscurity, are +> wholly unfounded. It is true, it must be learned, like any other +> science; but it is equally true that it is very easily learned. +> Although as illimitable in its applications as the infinite relations +> of men to each other, it is, nevertheless, made up of simple +> elementary principles, of the truth and justice of which every +> ordinary mind has an almost intuitive perception. _It is the science +> of justice_,—and almost all men have the same perceptions of what +> constitutes justice, or of what justice requires, when they +> understand alike the facts from which their inferences are to be +> drawn. Men living in contact with each other, and having intercourse +> together, _cannot avoid_ learning natural law, to a very great +> extent, even if they would. The dealings of men with men, their +> separate possessions, and their individual wants, are continually +> forcing upon their minds the questions,—Is this act just? or is it +> unjust? Is this thing mine? or is it his? And these are questions of +> natural law; questions, which, in regard to the great mass of cases, +> are answered alike by the human mind everywhere. + +> Children learn many principles of natural law at a very early age. +> For example: they learn that when one child has picked up an apple or +> a flower, it is his, and that his associates must not take it from +> him against his will. They also learn that if he voluntarily exchange +> his apple or flower with a playmate, for some other article of +> desire, he has thereby surrendered his right to it, and must not +> reclaim it. These are fundamental principles of natural law, which +> govern most of the greatest interests of individuals and society; yet +> children learn them earlier than they learn that three and three are +> six, or five and five, ten. Talk of enacting natural law by statute, +> that it may be known! It would hardly be extravagant to say, that, in +> nine cases in ten, men learn it before they have learned the language +> by which we describe it. Nevertheless, numerous treatises are written +> on it, as on other sciences. The decisions of courts, containing +> their opinions upon the almost endless variety of cases that have +> come before them, are reported; and these reports are condensed, +> codified, and digested, so as to give, in a small compass, the facts, +> and the opinions of the courts as to the law resulting from them. And +> these treatises, codes, and digests are open to be read of all men. +> And a man has the same excuse for being ignorant of arithmetic, or +> any other science, that he has for being ignorant of natural law. He +> can learn it as well, if he will, without its being enacted, as he +> could if it were. + +> If our governments would but themselves adhere to natural law, there +> would be little occasion to complain of the ignorance of the people +> in regard to it. The popular ignorance of law is attributable mainly +> to the innovations that have been made upon natural law by +> legislation; whereby our system has become an incongruous mixture of +> natural and statute law, with no uniform principle pervading it. To +> learn such a system,—if system it can be called, and if learned it +> can be,—is a matter of very similar difficulty to what it would be +> to learn a system of mathematics, which should consist of the +> mathematics of nature, interspersed with such other mathematics as +> might be created by legislation, in violation of all the natural +> principles of numbers and quantities. + +> But whether the difficulties of learning natural law be greater or +> less than here represented, they exist in the nature of things, and +> cannot be removed. Legislation, instead of removing, only increases +> them. This it does by innovating upon natural truths and principles, +> and introducing jargon and contradiction, in the place of order, +> analogy, consistency, and uniformity. + +> Further than this; legislation does not even profess to remove the +> obscurity of natural law. That is no part of its object. It only +> professes to substitute something arbitrary in the place of natural +> law. Legislators generally have the sense to see that legislation +> will not make natural law any clearer than it is. Neither is it the +> object of legislation to establish the authority of natural law. +> Legislators have the sense to see that they can add nothing to the +> authority of natural law, and that it will stand on its own +> authority, unless they overturn it. + +> The whole object of legislation, excepting that legislation which +> merely makes regulations, and provides instrumentalities for carrying +> other laws into effect, is to overturn natural law, and substitute +> for it the arbitrary will of power. In other words, the whole object +> of it is to destroy men’s rights. At least, such is its only effect; +> and its designs must be inferred from its effect. Taking all the +> statutes in the country, there probably is not one in a +> hundred,—except the auxiliary ones just mentioned,—that does not +> violate natural law; that does not invade some right or other. + +> Yet the advocates of arbitrary legislation are continually practising +> the fraud of pretending that unless the legislature _make_ the laws, +> the laws will not be known. The whole object of the fraud is to +> secure to the government the authority of making laws that never +> ought to be known.” + +In addition to the authority already cited, of Sir William Jones, as to +the certainty of natural law, and the uniformity of men’s opinions in +regard to it, I may add the following: + +> “There is that great simplicity and plainness in the Common Law, that +> Lord Coke has gone so far as to assert, (and Lord Bacon nearly +> seconds him in observing,) that ‘he never knew two questions arise +> merely upon common law; but that they were mostly owing to statutes +> ill-penned and overladen with provisos.’”—_3 Eunomus_, 157-8. + +If it still be said that juries would disagree, as to what was natural +justice, and that one jury would decide one way, and another jury +another; the answer is, that such a thing is hardly credible, as that +twelve men, taken at random from the people at large, should +_unanimously_ decide a question of natural justice one way, and that +twelve other men, selected in the same manner, should _unanimously_ +decide the same question the other way, _unless they were misled by the +justices_. If, however, such things should sometimes happen, from any +cause whatever, the remedy is by appeal, and new trial. + +[Footnote 73: Judges do not even live up to that part of their own +maxim, which requires jurors to try the matter of fact. By dictating to +them the laws of evidence,—that is, by dictating what evidence they may +hear, and what they may not hear, and also by dictating to them rules +for weighing such evidence as they permit them to hear,—they of +necessity dictate the conclusion to which they shall arrive. And thus +the court really tries the question of fact, as well as the question of +law, in every cause. It is clearly impossible, in the nature of things, +for a jury to try a question of fact, without trying every question of +law on which the fact depends.] + +[Footnote 74: Most disagreements of juries are on matters of fact, which +are admitted to be within their province. We have little or no evidence +of their disagreements on matters of natural justice. The disagreements +of _courts_ on matters of law, afford little or no evidence that juries +would also disagree on matters of law—that is, _of justice_; because +the disagreements of courts are generally on matters of _legislation_, +and not on those principles of abstract justice, by which juries would +be governed, and in regard to which the minds of men are nearly +unanimous.] + +[Footnote 75: This is the principle of all voluntary associations +whatsoever. No voluntary association was ever formed, and in the nature +of things there never can be one formed, for the accomplishment of any +objects except those in which all the parties to the association are +agreed. Government, therefore, must be kept within these limits, or it +is no longer a voluntary association of all who contribute to its +support, but a mere tyranny established by a part over the rest. + +All, or nearly all, voluntary associations give to a majority, or to +some other portion of the members less than the whole, the right to use +some _limited_ discretion as to the means to be used to accomplish the +ends in view; but _the ends themselves to be accomplished_ are always +precisely defined, and are such as every member necessarily agrees to, +else he would not voluntarily join the association. + +Justice is the object of government, and those who support the +government, must be agreed as to the justice to be executed by it, or +they cannot rightfully unite in maintaining the government itself.] + +[Footnote 76: Jones on Bailments, 133.] + +[Footnote 77: Kent, describing the difficulty of construing the written +law, says: + +“Such is the imperfection of language, and the want of technical skill +in the makers of the law, that statutes often give occasion to the most +perplexing and distressing doubts and discussions, arising from the +ambiguity that attends them. It requires great experience, as well as +the command of a perspicuous diction, to frame a law in such clear and +precise terms, as to secure it from ambiguous expressions, and from all +doubts and criticisms upon its meaning.”—_Kent_, 460. + +The following extract from a speech of Lord Brougham, in the House of +Lords, confesses the same difficulty: + +“There was another subject, well worthy of the consideration of +government during the recess,—the expediency, _or rather the absolute +necessity_, of some arrangement for the preparation of bills, not merely +private, but public bills, _in order that legislation might be +consistent and systematic, and that the courts might not have so large a +portion of their time occupied in endeavoring to construe acts of +Parliament, in many cases unconstruable, and in most cases difficult to +be construed_.”—_Law Reporter_, 1848, p. 525.] + +[Footnote 78: This condemnation of written laws must, of course, be +understood as applying only to cases where principles and rights are +involved, and not as condemning any governmental arrangements, or +instrumentalities, that are consistent with natural right, and which +must be agreed upon for the purpose of carrying natural law into effect. +These things may be varied, as expediency may dictate, so only that they +be allowed to infringe no principle of justice. And they must, of +course, be written, because they do not exist as fixed principles, or +laws in nature.] diff --git a/edited/06.markdown b/edited/06.markdown new file mode 100644 index 0000000..3287755 --- /dev/null +++ b/edited/06.markdown @@ -0,0 +1,687 @@ +# JURIES OF THE PRESENT DAY ILLEGAL + + +It may probably be safely asserted that there are, at this day, no legal +juries, either in England or America. And if there are no legal juries, +there is, of course, no legal trial, nor “judgment,” by jury. + +In saying that there are probably no legal juries, I mean that there are +probably no juries appointed in conformity with the principles of the +_common law_. + +The term _jury_ is a technical one, derived from the common law; and +when the American constitutions provide for the trial by jury, they +provide for the _common law_ trial by jury; and not merely for any trial +by jury that the government itself may chance to invent, and call by +that name. It is the _thing_, and not merely the _name_, that is +guarantied. Any legislation, therefore, that infringes any _essential +principle_ of the _common law_, in the selection of jurors, is +unconstitutional; and the juries selected in accordance with such +legislation are, of course, illegal, and their judgments void. + +It will also be shown, in a subsequent chapter,[^79] that since Magna +Carta, the legislative power in England (whether king or parliament) has +never had any constitutional authority to infringe, by legislation, any +essential principle of the common law in the selection of jurors. All +such legislation is as much unconstitutional and void, as though it +abolished the trial by jury altogether. In reality it does abolish it. + +What, then, are the _essential principles_ of the common law, +controlling the selection of jurors? + +They are two. + +1. That _all_ the freemen, or adult male members of the state, shall be +eligible as jurors.[^80] + +Any legislation which requires the selection of jurors to be made from a +less number of freemen than the whole, makes the jury selected an +illegal one. + +If a part only of the freemen, or members of the state, are eligible as +jurors, the jury no longer represent “the country,” but only a part of +“the country.” + +If the selection of jurors can be restricted to any less number of +freemen than the whole, it can be restricted to a very small proportion +of the whole; and thus the government be taken out of the hands of “the +country,” or the whole people, and be thrown into the hands of a few. + +That, at common law, the whole body of freemen were eligible as jurors +is sufficiently proved, not only by the reason of the thing, but by the +following evidence: + +1. Everybody must be presumed eligible, until the contrary be shown. We +have no evidence, that I am aware of, of a prior date to Magna Carta, to +_disprove_ that all freemen were eligible as jurors, unless it be the +law of Ethelred, which requires that they be elderly[^81] men. Since no +specific age is given, it is probable, I think, that this statute meant +nothing more than that they be more than twenty-one years old. If it +meant anything more, it was probably contrary to the common law, and +therefore void. + +2. Since Magna Carta, we have evidence showing quite conclusively that +all freemen, above the age of twenty-one years, were eligible as jurors. + +The _Mirror of Justices_, (written within a century after Magna Carta,) +in the section “_Of Judges_”—that is, _jurors_—says: + +> “All those who are not forbidden by law may be judges (jurors). To +> women it is forbidden by law that they be judges; and thence it is, +> that feme coverts are exempted to do suit in inferior courts. On the +> other part, a villein cannot be a judge, by reason of the two +> estates, which are repugnants; persons attainted of false judgments +> cannot be judges, nor infants, nor any under the age of twenty-one +> years, nor infected persons, nor idiots, nor madmen, nor deaf, nor +> dumb, nor parties in the pleas, nor men excommunicated by the bishop, +> nor criminal persons. * * And those who are not of the Christian +> faith cannot be judges, nor those who are out of the king’s +> allegiance.”—_Mirror of Justices_, 59-60. + +In the section “_Of Inferior Courts_,” it is said: + +> “From the first assemblies came consistories, which we now call +> courts, and that in divers places, and in divers manners; whereof the +> sheriffs held one monthly, or every five weeks, according to the +> greatness or largeness of the shires. And these courts are called +> county courts, _where the judgment is by the suitors_, if there be no +> writ, and is by warrant of jurisdiction ordinary. The other inferior +> courts are the courts of every lord of the fee, to the likeness of +> the hundred courts. * * There are other inferior courts which the +> bailiffs hold in every hundred, from three weeks to three weeks, _by +> the suitors of the freeholders of the hundred. All the tenants within +> the fees are bounden to do their suit there_, and that not for the +> service of their persons, but for the service of their fees. But +> women, infants within the age of twenty-one years, deaf, dumb, +> idiots, those who are indicted or appealed of mortal felony, before +> they be acquitted, diseased persons, and excommunicated persons are +> exempted from doing suit.”—_Mirror of Justices_, 50-51. + +In the section “_Of the Sheriff’s Turns_,” it is said: + +> “The sheriffs by ancient ordinances hold several meetings twice in +> the year in every hundred; _where all the freeholders within the +> hundred_ are bound to appear for the service of their fees.”—_Mirror +> of Justices_, 50. + +The following statute was passed by Edward I., seventy years after Magna +Carta: + +> “Forasmuch also as sheriffs, hundreders, and bailiffs of liberties, +> have used to grieve those which be placed under them, putting in +> assizes and juries men diseased and decrepit, and having continual or +> sudden disease; and men also that dwelled not in the country at the +> time of the summons; and summon also an unreasonable number of +> jurors, for to extort money from some of them, for letting them go +> in peace, and so the assizes and juries pass many times by poor men, +> and the rich abide at home by reason of their bribes; it is ordained +> that from henceforth in one assize no more shall be summoned than +> four and twenty; and old men above three score and ten years, being +> continually sick, or being diseased at the time of the summons, or +> not dwelling in that country, shall not be put in juries of petit +> assizes.”—_St. 13 Edward I._, ch. 38. (1285.) + +Although this command to the sheriffs and other officers, not to summon, +as jurors, those who, from age and disease, were physically incapable of +performing the duties, may not, of itself, afford any absolute or legal +implication, by which we can determine precisely who were, and who were +not, eligible as jurors at common law, yet the exceptions here made +nevertheless carry a seeming confession with them that, at common law, +all male adults were eligible as jurors. + +But the main principle of the feudal system itself shows that _all_ the +full and free adult male members of the state—that is, all who were +free born, and had not lost their civil rights by crime, or +otherwise—_must_, at common law, have been eligible as jurors. What was +that principle? It was, that the state rested for support upon the land, +and not upon taxation levied upon the people personally. The lands of +the country were considered the property of the state, and were made to +support the state _in this way_. A portion of them was set apart to the +king, the rents of which went to pay his personal and official +expenditures, not including the maintenance of armies, or the +administration of justice. War and the administration of justice were +provided for in the following manner. The freemen, or the freeborn adult +male members of the state—who had not forfeited their political +rights—were entitled to land _of right_, (until all the land was taken +up,) on condition of their rendering certain military and civil services +to the state. The military services consisted in serving personally as +soldiers, or contributing an equivalent in horses, provisions, or other +military supplies. The civil services consisted, among other things, in +serving as jurors (and, it would appear, as witnesses) in the courts of +justice. For these services they received no compensation other than +the use of their lands. In this way the state was sustained; and the +king had no power to levy additional burdens or taxes upon the people. +The persons holding lands on these terms were called _freeholders_—in +later times _freemen_—meaning free and full members of the state. + +Now, as the principle of the system was that the freeholders held their +lands of the state, on the condition of rendering these military and +civil services as _rents_ for their lands, the principle implies that +_all_ the freeholders were liable to these rents, and were therefore +eligible as jurors. Indeed, I do not know that it has ever been doubted +that, at common law, _all_ the freeholders were eligible as jurors. If +all had not been eligible, we unquestionably should have had abundant +evidence of the exceptions. And if anybody, at this day, allege any +exceptions, the burden will be on him to prove them. The presumption +clearly is that _all_ were eligible. + +The first invasion, which I find made, by the English statutes, upon +this common law principle, was made in 1285, seventy years after Magna +Carta. It was then enacted as follows: + +> “Nor shall any be put in assizes or juries, though they ought to be +> taken in their own shire, that hold a tenement of less than the value +> of _twenty shillings yearly_. And if such assizes and juries be taken +> out of the shire, no one shall be placed in them who holds a tenement +> of less value than forty shillings yearly at the least, except such +> as be witnesses in deeds or other writings, whose presence is +> necessary, so that they be able to travel.”—_St. 13 Edward I._, ch. +> 38. (1285.) + +The next invasion of the common law, in this particular, was made in +1414, about two hundred years after Magna Carta, when it was enacted: + +> “That no person shall be admitted to pass in any inquest upon trial +> of the death of a man, nor in any inquest betwixt party and party in +> plea real, nor in plea personal, whereof the debt or the damage +> declared amount to forty marks, if the same person have not lands or +> tenements of the yearly value of _forty shillings above all charges +> of the same_.”—_2 Henry V._, st. 2, ch. 3. (1414.) + +Other statutes on this subject of the property qualifications of jurors, +are given in the note.[^82] + +From these statutes it will be seen that, since 1285, seventy years +after Magna Carta, the common law right of all free British subjects to +eligibility as jurors has been abolished, and the qualifications of +jurors have been made a subject of arbitrary legislation. In other +words, the government has usurped the authority of _selecting_ the +jurors that were to sit in judgment upon its own acts. This is +destroying the vital principle of the trial by jury itself, which is +that the legislation of the government shall be subjected to the +judgment of a tribunal, taken indiscriminately from the whole people, +without any choice by the government, and over which the government can +exercise no control. If the government can select the jurors, it will, +of course, select those whom it supposes will be favorable to its +enactments. And an exclusion of _any_ of the freemen from eligibility is +a _selection_ of those not excluded. + +It will be seen, from the statutes cited, that the most absolute +authority over the jury box—that is, over the right of the people to +sit in juries—has been usurped by the government; that the +qualifications of jurors have been repeatedly changed, and made to vary +from a freehold of _ten shillings yearly_, to one of “_twenty pounds by +the year at least above reprises_.” They have also been made different, +in the counties of Southampton, Surrey, and Sussex, from what they were +in the other counties; different in Wales from what they were in +England; and different in the city of London, and in the county of +Middlesex, from what they were in any other part of the kingdom. + +But this is not all. The government has not only assumed arbitrarily to +classify the people, on the basis of property, but it has even assumed +to give to some of its judges entire and absolute personal discretion in +the selection of the jurors to be impanelled in criminal cases, as the +following statutes show. + +> “Be it also ordained and enacted by the same authority, that all +> panels hereafter to be returned, which be not at the suit of any +> party, that shall be made and put in afore any justice of gaol +> delivery or justices of peace in their open sessions _to inquire for +> the king, shall hereafter be reformed by additions and taking out of +> names of persons by discretion of the same justices before whom such +> panel shall be returned; and the same justices shall hereafter +> command the sheriff, or his ministers in his absence, to put other +> persons in the same panel by their discretions; and that panel so +> hereafter to be made, to be good and lawful_. This act to endure only +> to the next Parliament.”—_11 Henry VII._, ch. 24, sec. 6. (1495.) + +This act was continued in force by 1 Henry VIII., ch. 11, (1509,) to the +end of the then next Parliament. + +It was reënacted, and made perpetual, by 3 Henry VIII., ch. 12. (1511.) + +_These acts gave unlimited authority to the king’s justices to pack +juries at their discretion; and abolished the last vestige of the common +law right of the people to sit as jurors, and judge of their own +liberties, in the courts to which the acts applied._ + +Yet, as matters of law, these statutes were no more clear violations of +the common law, the fundamental and paramount “law of the land,” than +were those statutes which affixed the property qualifications before +named; because, if the king, or the government, can select the jurors on +the ground of property, it can select them on any other ground +whatever. + +Any infringement or restriction of the common law right of the whole +body of the freemen of the kingdom to eligibility as jurors, was legally +an abolition of the trial by jury itself. The juries no longer +represented “the country,” but only a part of the country; that part, +too, on whose favor the government chose to rely for the maintenance of +its power, and which it therefore saw fit to select as being the most +reliable instruments for its purposes of oppression towards the rest. +And the selection was made on the same principle, on which tyrannical +governments generally select their supporters, viz., that of +conciliating those who would be most dangerous as enemies, and most +powerful as friends—that is, the wealthy.[^83] + +These restrictions, or indeed any one of them, of the right of +eligibility as jurors, was, in principle, a complete abolition of the +English constitution; or, at least, of its most vital and valuable part. +It was, in principle, an assertion of a right, on the part of the +government, to _select_ the individuals who were to determine the +authority of its own laws, and the extent of its own powers. It was, +therefore, _in effect_, the assertion of a right, on the part of the +government itself, to determine its own powers, and the authority of its +own legislation, over the people; and a denial of all right, on the part +of the people, to judge of or determine their own liberties against the +government. It was, therefore, in reality, a declaration of entire +absolutism on the part of the government. It was an act as purely +despotic, _in principle_, as would have been the express abolition of +all juries whatsoever. By “the law of the land,” which the kings were +sworn to maintain, every free adult male British subject was eligible to +the jury box, with full power to exercise his own judgment as to the +authority and obligation of every statute of the king, which might come +before him. But the principle of these statutes (fixing the +qualifications of jurors) is, that nobody is to sit in judgment upon the +acts or legislation of the king, or the government, except those whom +the government itself shall select for that purpose. A more complete +subversion of the essential principles of the English constitution could +not be devised. + +The juries of England are illegal for another reason, viz., that the +statutes cited require the jurors (except in London and a few other +places) to be _freeholders_. All the other free British subjects are +excluded; whereas, at common law, all such subjects are eligible to sit +in juries, whether they be freeholders or not. + +It is true, the ancient common law required the jurors to be +freeholders; but the term _freeholder_ no longer expresses the same idea +that it did in the ancient common law; because no land is now holden in +England on the same principle, or by the same tenure, as that on which +all the land was held in the early times of the common law. + +As has heretofore been mentioned, in the early times of the common law +the land was considered the property of the state; and was all holden by +the _tenants_, so called, (that is, _holders_,) on the condition of +their rendering certain military and civil services to the state, (or to +the king as the representative of the state,) under the name of _rents_. +Those who held lands on these terms were called free _tenants_, that is, +_free holders_—meaning free persons, or members of the state, holding +lands—to distinguish them from villeins, or serfs, who were not members +of the state, but held their lands by a more servile tenure, and also to +distinguish them from persons of foreign birth, outlaws, and all other +persons, who were not members of the state. + +Every freeborn adult male Englishman (who had not lost his civil rights +by crime or otherwise) was entitled to land of _right_; that is, by +virtue of his civil freedom, or membership of the body politic. Every +member of the state was therefore a freeholder; and every freeholder was +a member of the state. And the members of the state were therefore +called freeholders. But what is material to be observed, is, that a +man’s right to land was an incident to his _civil freedom_; not his +civil freedom an incident to his right to land. He was a freeholder +because he was a _freeborn_ member of the state; and not a freeborn +member of the state because he was a freeholder; for this last would be +an absurdity. + +As the tenures of lands changed, the term _freeholder_ lost its original +significance, and no longer described a man who held land of the state +by virtue of his civil freedom, but only one who held it in +fee-simple—that is, free of any liability to military or civil +services. But the government, in fixing the qualifications of jurors, +has adhered to the term _freeholder_ after that term has ceased to +express the _thing_ originally designated by it. + +The principle, then, of the common law, was, that every freeman, or +freeborn male Englishman, of adult age, &c., was eligible to sit in +juries, by virtue of his civil freedom, or his being a member of the +state, or body politic. But the principle of the present English +statutes is, that a man shall have a right to sit in juries because he +owns lands in fee-simple. At the common law a man was _born_ to the +right to sit in juries. By the present statutes he _buys_ that right +when he buys his land. And thus this, the greatest of all the political +rights of an Englishman, has become a mere article of merchandise; a +thing that is bought and sold in the market for what it will bring. + +Of course, there can be no legality in such juries as these; but only in +juries to which every free or natural born adult male Englishman is +eligible. + +The second essential principle of the common law, controlling the +selection of jurors, is, that when the selection of the actual jurors +comes to be made, (from the whole body of male adults,) that selection +shall be made in some mode that excludes the possibility of choice _on +the part of the government_. + +Of course, this principle forbids the selection to be made _by any +officer of the government_. + +There seem to have been at least three modes of selecting the jurors, at +the common law. 1. By lot.[^84] 2. Two knights, or other freeholders, +were appointed, (probably by the sheriff,) to select the jurors. 3. By +the sheriff, bailiff, or other person, who held the court, or rather +acted as its ministerial officer. Probably the latter mode may have been +the most common, although there may be some doubt on this point. + +At the common law the sheriffs, bailiffs, and other officers _were +chosen by the people, instead of being appointed by the king_. (_4 +Blackstone_, 413. _Introduction to Gilbert’s History of the Common +Pleas_, p. 2, _note_, and p. 4.) This has been shown in a former +chapter.[^85] At common law, therefore, jurors selected by these officers +were legally selected, so far as the principle now under discussion is +concerned; that is, they were not selected by any officer who was +dependent on the government. + +But in the year 1315, one hundred years after Magna Carta, the choice of +sheriffs was taken from the people, and it was enacted: + +> “That the sheriffs shall henceforth be assigned by the chancellor, +> treasurer, barons of the exchequer, and by the justices. And in the +> absence of the chancellor, by the treasurer, barons and +> justices.”—_9 Edward II._, st. 2. (1315.) + +These officers, who appointed the sheriffs, were themselves appointed by +the king, and held their offices during his pleasure. Their appointment +of sheriffs was, therefore, equivalent to an appointment by the king +himself. And the sheriffs, thus appointed, held their offices only +during the pleasure of the king, and were of course mere tools of the +king; and their selection of jurors was really a selection by the king +himself. In this manner the king usurped the selection of the jurors who +were to sit in judgment upon his own laws. + +Here, then, was another usurpation, by which the common law trial by +jury was destroyed, so far as related to the county courts, in which the +sheriffs presided, and which were the most important courts of the +kingdom. From this cause alone, if there were no other, there has not +been a legal jury in a _county_ court in England, for more than five +hundred years. + +In nearly or quite all the States of the United States the juries are +illegal, for one or the other of the same reasons that make the juries +in England illegal. + +In order that the juries in the United States may be legal—that is, in +accordance with the principles of the common law—it is necessary that +every adult male member of the state should have his name in the jury +box, or be eligible as a juror. Yet this is the case in hardly a single +state. + +In New Jersey, Maryland, North Carolina, Tennessee, and Mississippi, the +jurors are required to be _freeholders_. But this requirement is +illegal, for the reason that the term _freeholder_, in this country, has +no meaning analogous to the meaning it had in the ancient common law. + +In Arkansas, Missouri, Indiana, and Alabama, jurors are required to be +“freeholders or householders.” Each of these requirements is illegal. + +In Florida, they are required to be “householders.” + +In Connecticut, Maine, Ohio, and Georgia, jurors are required to have +the qualifications of “electors.” + +In Virginia, they are required to have a property qualification of one +hundred dollars. + +In Maine, Massachusetts, Vermont, Connecticut, New York, Ohio, Indiana, +Michigan, and Wisconsin, certain civil authorities of the towns, cities, +and counties are authorized to select, once in one, two, or three years, +a certain number of the people—a small number compared with the +whole—from whom jurors are to be taken when wanted; thus disfranchising +all except the few thus selected. + +In Maine and Vermont, the inhabitants, by vote in town meeting, have a +veto upon the jurors selected by the authorities of the town. + +In Massachusetts, the inhabitants, by vote in town meeting, can strike +out any names inserted by the authorities, and insert others; thus +making jurors elective by the people, and, of course, representatives +only of a majority of the people. + +In Illinois, the jurors are selected, for each term of court, by the +county commissioners. + +In North Carolina, “_the courts of pleas and quarter sessions_ * * shall +select the names of such persons only as are freeholders, and as are +well qualified to act as jurors, &c.; thus giving the courts power to +pack the juries.”—(_Revised Statutes_, 147.) + +In Arkansas, too, “It shall be the duty of the _county court_ of each +county * * to make out and cause to be delivered to the sheriff a list +of not less than sixteen, nor more than twenty-three persons, qualified +to serve as _grand_ jurors;” and the sheriff is to summon such persons +to serve as _grand_ jurors. + +In Tennessee, also, the jurors are to be selected by the _county +courts_. + +In Georgia, the jurors are to be selected by “the justices of the +inferior courts of each county, together with the sheriff and clerk, or +a majority of them.” + +In Alabama, “the sheriff, judge of the county court, and clerks of the +circuit and county courts,” or “a majority of” them, select the jurors. + +In Virginia, the jurors are selected by the sheriffs; but the sheriffs +are appointed by the governor of the state, and that is enough to make +the juries illegal. Probably the same objection lies against the +legality of the juries in some other states. + +How jurors are appointed, and what are their qualifications, in New +Hampshire, Rhode Island, Pennsylvania, Delaware, South Carolina, +Kentucky, Iowa, Texas, and California, I know not. There is little doubt +that there is some valid objection to them, of the kinds already +suggested, in all these states. + +In regard to jurors in the courts of the United States, it is enacted, +by act of Congress: + +> “That jurors to serve in the courts of the United States, in each +> state respectively, shall have the like qualifications, and be +> entitled to the like exemptions, as jurors of the highest court of +> law of such state now have and are entitled to, and shall hereafter, +> from time to time, have and be entitled to, and shall be designated +> by ballot, lot, or otherwise, according to the mode of forming such +> juries now practised and hereafter to be practised therein, in so far +> as such mode may be practicable by the courts of the United States, +> or the officers thereof; and for this purpose, the said courts shall +> have power to make all necessary rules and regulations for conforming +> the designation and empanelling of jurors, in substance, to the laws +> and usages now in force in such state; and, further, shall have +> power, by rule or order, from time to time, to conform the same to +> any change in these respects which may be hereafter adopted by the +> legislatures of the respective states for the state courts.”—_St._ +> 1840, ch. 47, _Statutes at Large_, vol. 5, p. 394. + +In this corrupt and lawless manner, Congress, instead of taking care to +preserve the trial by jury, so far as they might, by providing for the +appointment of legal juries—incomparably the most important of all our +judicial tribunals, and the only ones on which the least reliance can be +placed for the preservation of liberty—have given the selection of them +over entirely to the control of an indefinite number of state +legislatures, and thus authorized each state legislature to adapt the +juries of the United States to the maintenance of any and every system +of tyranny that may prevail in such state. + +Congress have as much constitutional right to give over all the +functions of the United States government into the hands of the state +legislatures, to be exercised within each state in such manner as the +legislature of such state shall please to exercise them, as they have to +thus give up to these legislatures the selection of juries for the +courts of the United States. + +There has, probably, never been a legal jury, nor a legal trial by jury, +in a single court of the United States, since the adoption of the +constitution. + +These facts show how much reliance can be placed in written +constitutions, to control the action of the government, and preserve the +liberties of the people. + +If the real trial by jury had been preserved in the courts of the United +States—that is, if we had had legal juries, and the jurors had known +their rights—it is hardly probable that one tenth of the past +legislation of Congress would ever have been enacted, or, at least, +that, if enacted, it could have been enforced. + +Probably the best mode of appointing jurors would be this: Let the names +of _all_ the adult male members of the state, in each township, be kept +in a jury box, by the officers of the township; and when a court is to +be held for a county or other district, let the officers of a sufficient +number of townships be required (without seeing the names) to draw out a +name from their boxes respectively, to be returned to the court as a +juror. This mode of appointment would guard against collusion and +selection; and juries so appointed would be likely to be a fair epitome +of “the country.” + +[Footnote 79: On the English Constitution.] + +[Footnote 80: Although all the freemen are legally eligible as jurors, +any one may nevertheless be challenged and set aside, at the trial, for +any special _personal_ disqualification; such as mental or physical +inability to perform the duties; having been convicted, or being under +charge, of crime; interest, bias, &c. But it is clear that the common +law allows none of these points to be determined by the court, but only +by “_triers_.”] + +[Footnote 81: What was the precise meaning of the Saxon word, which I +have here called _elderly_, I do not know. In the Latin translations it +is rendered by _seniores_, which may perhaps mean simply those who have +attained their majority.] + +[Footnote 82: In 1483 it was enacted, by a statute entitled “Of what +credit and estate those jurors must be which shall be impanelled in the +Sheriff’s Turn.” + +> “That no bailiff nor other officer from henceforth return or impanel +> any such person in any shire of England, to be taken or put in or +> upon any inquiry in any of the said Turns, but such as be of good +> name and fame, and having lands and tenements of freehold within the +> same shires, to the yearly value of _twenty shillings_ at the least, +> or else lands and tenements holden by custom of manor, commonly +> called _copy-hold_, within the said shires, to the yearly value of +> twenty-six shillings eight pence over all charges at the least.”—_1 +> Richard III._, ch. 4. (1483.) + +> In 1486 it was enacted, “That the justices of the peace of every +> shire of this realm for the time being may take, by their discretion, +> an inquest, whereof every man shall have lands and tenements to the +> yearly value of _forty shillings_ at the least, to inquire of the +> concealments of others,” &c., &c.—_3 Henry VII._, ch. 1 (1486.) + +A statute passed in 1494, in regard to jurors in the city of London, +enacts: + +> “That no person nor persons hereafter be impanelled, summoned, or +> sworn in any jury or inquest in courts within the same city, (of +> London,) except he be of lands, tenements, or goods and chattels, to +> the value of _forty marks_;[^86] and that no person or persons +> hereafter be impanelled, summoned, nor sworn in any jury or inquest +> in any court within the said city, for lands or tenements, or action +> personal, wherein the debt or damage amounteth to the sum of forty +> marks, or above, except he be in lands, tenements, goods, or +> chattels, to the value of _one hundred marks_.”—_11 Henry VII._, ch. +> 21. (1494.) + +The statute _4 Henry VIII._, ch. 3, sec. 4, (1512) requires jurors in +London to have “_goods_ to the value of one hundred marks.” + +> In 1494 it was enacted that “It shall be lawful to every sheriff of +> the counties of _Southampton_, _Surrey_, _and Sussex_, to impanel and +> summons twenty-four lawful men of such, inhabiting within the +> precinct of his or their turns, as owe suit to the same turn, whereof +> every one hath lands or freehold to the yearly value of _ten_ +> shillings, or copy-hold lands to the yearly value of _thirteen +> shillings four pence_, above all charges within any of the said +> counties, or men of less livelihood, if there be not so many there, +> notwithstanding the statute of _1 Richard III._, ch. 4. To endure to +> the next parliament.”—_11 Henry VII._, ch. 26. (1494.) + +This statute was continued in force by _19 Henry VII._, ch. 16. (1503.) + +> In 1531 it was enacted, “That every person or persons, being the +> king’s natural subject born, which either by the name of citizen, or +> of a freeman, or any other name, doth enjoy and use the liberties and +> privileges of any city, borough, or town corporate, where he dwelleth +> and maketh his abode, being worth in _movable goods and substance_ to +> the clear value of _forty pounds_, be henceforth admitted in trials +> of murders and felonies in every sessions and gaol delivery, to be +> kept and holden in and for the liberty of such cities, boroughs, and +> towns corporate, albeit they have no freehold; any act, statute, use, +> custom, or ordinance to the contrary hereof notwithstanding.”—_23 +> Henry VIII._, ch. 13. (1531.) + +> In 1585 it was enacted, “That in all cases where any jurors to be +> returned for trial of any issue or issues joined in any of the +> Queen’s majesty’s courts of King’s Bench, Common Pleas, and the +> Exchequer, or before justices of assize, by the laws of this realm +> now in force, ought to have estate of freehold in lands, tenements, +> or hereditaments, of the clear yearly value of _forty shillings_, +> that in every such case the jurors that shall be returned from and +> after the end of this present session of parliament, shall every of +> them have estate of freehold in lands, tenements, or hereditaments, +> to the clear yearly value of _four pounds_ at the least.”—_27 +> Elizabeth_, ch. 6. (1585.) + +> In 1664-5 it was enacted, “That all jurors (other than strangers upon +> trials _per medietatem linguæ_) who are to be returned for the trials +> of issues joined in any of (his) majesty’s courts of king’s bench, +> common pleas, or the exchequer, or before justices of assize, or nisi +> prius, oyer and terminer, gaol delivery, or general or quarter +> sessions of the peace, from and after the twentieth day of April, +> which shall be in the year of our Lord one thousand six hundred and +> sixty-five, in any county of this realm of England, shall every of +> them thon have, in their own name, or in trust for them, within the +> same county, _twenty pounds by the year_, at least, above reprises, +> in their own or their wives’ right, of freehold lands, or of ancient +> demesne, or of rents in fee, fee-tail, or for life. And that in every +> county within the dominion of Wales every such juror shall then have, +> within the same, _eight pounds by the year_, at the least, above +> reprises, in manner aforesaid. All which persons having such estate +> as aforesaid are hereby enabled and made liable to be returned and +> serve as jurors for the trial of issues before the justices +> aforesaid, any law or statute to the contrary in any wise +> notwithstanding.”—_16 and 17 Charles II._, ch. 3. (1664-5.) + +By a statute passed in 1692, jurors in England are to have landed +estates of the value of _ten pounds a year_; and jurors in Wales to have +similar estates of the realm of _six pounds a year_.—_4 and 5 William +and Mary_, ch. 24, sec. 14. (1692.) + +By the same statute, (sec. 18,) persons may be returned to serve upon +the _tales_ in any county of England, who shall have, within the same +county, _five pounds by the year_, above reprises, in the manner +aforesaid. + +By _St_. 3 _George II_., ch. 25, sec. 19, 20, no one is to be a juror in +London, who shall not be “an householder within the said city, and have +lands, tenements, or personal estate, to the value of _one hundred +pounds_.” + +By another statute, applicable only to the county of _Middlesex_, it is +enacted, + +> “That all leaseholders, upon leases where the improved rents or value +> shall amount to _fifty pounds or upwards per annum_, over and above +> all ground rents or other reservations payable by virtue of the said +> leases, shall be liable and obliged to serve upon juries when they +> shall be legally summoned for that purpose.”—_4 George II._, ch. 7, +> sec. 3. (1731.)] + +[Footnote 83: Suppose these statutes, instead of disfranchising all +whose freeholds were of less than the standard value fixed by the +statutes, had disfranchised all whose freeholds were of greater value +than the same standard—would anybody ever have doubted that such +legislation was inconsistent with the English constitution; or that it +amounted to an entire abolition of the trial by jury? Certainly not. Yet +it was as clearly inconsistent with the common law, or the English +constitution, to disfranchise those whose freeholds fell below any +arbitrary standard fixed by the government, as it would have been to +disfranchise all whose freeholds rose above that standard.] + +[Footnote 84: _Lingard_ says: “These compurgators or jurors * * were +sometimes * * _drawn by lot_.”—_1 Lingard’s History of England_, p. +300.] + +[Footnote 85: Chapter 4, p. 120, note.] + +[Footnote 86: A mark was thirteen shillings and four pence.] diff --git a/edited/07.markdown b/edited/07.markdown new file mode 100644 index 0000000..980a209 --- /dev/null +++ b/edited/07.markdown @@ -0,0 +1,842 @@ +# ILLEGAL JUDGES + + +It is a principle of Magna Carta, and therefore of the trial by jury, +(for all parts of Magna Carta must be construed together,) that no judge +or other officer _appointed by the king_, shall preside in jury trials, +_in criminal cases_, or “pleas of the crown.” + +This provision is contained in the great charters of both John and +Henry, and is second in importance only to the provision guaranteeing +the trial by jury, of which it is really a part. Consequently, without +the observance of this prohibition, there can be no genuine or +_legal_—that is, _common law_—trial by jury. + +At the common law, all officers who held jury trials, whether in civil +or criminal cases, were chosen by the people.[^87] + +But previous to Magna Carta, the kings had adopted the practice of +sending officers of their own appointment, called justices, into the +counties, to hold jury trials in some cases; and Magna Carta authorizes +this practice to be continued so far as it relates to _three_ kinds of +_civil_ actions, to wit: “novel disseisin, mort de ancestor, and darrein +presentment;”[^88] but specially forbids its being extended to criminal +cases, or pleas of the crown. + +This prohibition is in these words: + +> “Nullus vicecomes, constabularius, coronator, _vel alii balivi +> nostri_, teneant placita coronæ nostræ.” (No sheriff, constable, +> coroner, _or other our bailiffs_, shall hold pleas of our +> crown.)—_John’s Charter_, ch. 53. _Henry’s ditto_, ch. 17. + +Some persons seem to have supposed that this was a prohibition merely +upon officers _bearing the specific names of_ “_sheriffs, constables, +coroners and bailiffs_,” to hold criminal trials. But such is not the +meaning. If it were, the _name_ could be changed, and the _thing_ +retained; and thus the prohibition be evaded. The prohibition applies +(as will presently be seen) to all officers of the king whatsoever; and +it sets up a distinction between officers _of the king_, (“_our_ +bailiffs,”) and officers chosen by the people. + +The prohibition upon the king’s _justices_ sitting in criminal trials, +is included in the words “_vel alii balivi nostri_,” (or other our +bailiffs.) The word _bailiff_ was anciently a sort of general name for +_judicial officers_ and persons employed in and about the administration +of justice. In modern times its use, as applied to the higher grades of +judicial officers, has been superseded by other words; and it therefore +now, more generally, if not universally, signifies an executive or +police officer, _a servant of courts_, rather than one whose functions +are purely judicial. + +The word is a French word, brought into England by the Normans. + +> Coke says, “_Baylife_ is a French word, and signifies an officer +> concerned in the administration of justice of a certain province; and +> because a sheriff hath an office concerning the administration of +> justice within his county, or bailiwick, therefore he called his +> county _baliva sua_, (his bailiwick.) + +> “I have heard great question made what the true exposition of this +> word _balivus_ is. In the statute of Magna Carta, cap. 28, the letter +> of that statute is, _nullus balivus de cætero ponat aliquem ad legem +> manifestam nec ad juramentum simplici loquela sua sine testibus +> fidelibus ad hoc inductis_.” (No bailiff from henceforth shall put +> any one to his open law, nor to an oath (of self-exculpation) upon +> his own simple accusation, or complaint, without faithful witnesses +> brought in for the same.) “And some have said that _balivus_ in this +> statute signifieth _any judge_; for the law must be waged and made +> before the judge. And this statute (say they) extends to _the courts +> of common pleas_, _king’s bench_, &c., for they must bring with them +> _fideles testes_, (faithful witnesses,) &c., _and so hath been the +> usage to this day_.”—_1 Coke’s Inst._, 168 b. + +Coke makes various references, in his margin to Bracton, Fleta, and +other authorities, which I have not examined, but which, I presume, +support the opinion expressed in this quotation. + +Coke also, in another place, under the head of the chapter just cited +from Magna Carta, that “_no bailiff shall put any man to his open law_,” +&c., gives the following commentary upon it, from the _Mirror of +Justices_, from which it appears that in the time of Edward I., (1272 to +1307,) this word _balivus_ was understood to include _all judicial_, as +well as all other, officers of the king. + +> The Mirror says: “The point which forbiddeth that no _bailiff_ put a +> freeman to his oath without suit, is to be understood in this +> manner,—_that no justice, no minister of the king_, nor other +> steward, nor bailiff, have power to make a freeman make oath, (of +> self-exculpation,) _without the king’s command_,[^89] nor receive any +> plaint, without witnesses present who testify the plaint to be +> true.”—_Mirror of Justices_, ch. 5, sec. 2, p. 257. + +Coke quotes this commentary, (in the original French,) and then endorses +it in these words: + +> “By this it appeareth, that under this word _balivus_, in this act, +> is comprehended _every justice, minister of the king_, steward, and +> bailiff.”—2 _Inst._, 44. + +Coke also, in his commentary upon this very chapter of Magna Carta, that +provides that “_no sheriff, constable, coroner, or other our bailiffs, +shall hold pleas of our crown_,” expresses the opinion that it “_is a +general law_,” (that is, applicable to all officers of the king,) “by +reason of the words _vel alii balivi nostri_, (or other our bailiffs,) +_under which words are comprehended all judges or justices of any courts +of justice_.” And he cites a decision in the king’s bench, in the 17th +year of Edward I., (1289,) as authority; which decision he calls “a +notable and leading judgment.”—_2 Inst._, 30—1. + +And yet Coke, in flat contradiction of this decision, which he quotes +with such emphasis and approbation, and in flat contradiction also of +the definition he repeatedly gives of the word _balivus_, showing that +it embraced _all ministers of the king whatsoever_, whether high or low, +judicial or executive, fabricates an entirely gratuitous interpretation +of this chapter of Magna Carta, and pretends that after all it only +required that _felonies_ should be tried before the king’s _justices, on +account of their superior learning_; and that it permitted all lesser +offences to be tried before inferior officers, (meaning of course the +_king’s_ inferior officers.)—_2 Inst._, 30. + +And thus this chapter of Magna Carta, which, according to his own +definition of the word _balivus_, applies to all officers of the king; +and which, according to the common and true definition of the term +“pleas of the crown,” applies to all criminal cases without distinction, +and which, therefore, forbids any officer or minister of the king to +preside in a jury trial in any criminal case whatsoever, he coolly and +gratuitously interprets into a mere senseless provision for simply +restricting the discretion of the king in giving _names_ to his own +officers who should preside at the trials of particular offences; as if +the king, who made and unmade all his officers by a word, could not +defeat the whole object of the prohibition, by appointing such +individuals as he pleased, to try such causes as he pleased, and calling +them by such names as he pleased, _if he were but permitted to appoint +and name such officers at all_; and as if it were of the least +importance what _name_ an officer bore, whom the king might appoint to a +particular duty.[^90] + +Coke evidently gives this interpretation solely because, as he was +giving a general commentary on Magna Carta, he was bound to give some +interpretation or other to every chapter of it; and for this chapter he +could invent, or fabricate, (for it is a sheer fabrication,) no +interpretation better suited to his purpose than this. It seems never to +have entered his mind, (or if it did, he intended that it should never +enter the mind of anybody else,) that the object of the chapter could be +to deprive the king of the power of putting his creatures into criminal +courts, to pack, cheat, and browbeat juries, and thus maintain his +authority by procuring the conviction of those who should transgress his +laws, or incur his displeasure. + +This example of Coke tends to show how utterly blind, or how utterly +corrupt, English judges, (dependent upon the crown and the legislature), +have been in regard to everything in Magna Carta, that went to secure +the liberties of the people, or limit the power of the government. + +Coke’s interpretation of this chapter of Magna Carta is of a piece with +his absurd and gratuitous interpretation of the words “_nec super eum +ibimus, nec super eum mittemus_,” which was pointed out in a former +article, and by which he attempted to give a _judicial_ power to the +king and his judges, where Magna Carta had given it only to a jury. It +is also of a piece with his pretence that there was a difference +between _fine_ and _amercement_, and that _fines_ might be imposed by +the king, and that juries were required only for fixing _amercements_. + +These are some of the innumerable frauds by which the English people +have been cheated out of the trial by jury. + +_Ex uno disce omnes._ From one judge learn the characters of all.[^91] + +I give in the note additional and abundant authorities for the meaning +ascribed to the word _bailiff_. The importance of the principle involved +will be a sufficient excuse for such an accumulation of authorities as +would otherwise be tedious and perhaps unnecessary.[^92] + +The foregoing interpretation of the chapter of Magna Carta now under +discussion, is corroborated by another chapter of Magna Carta, which +specially provides that the king’s justices shall “go through every +county” to “take the assizes” (hold jury trials) in three kinds of +_civil_ actions, to wit, “novel disseisin, mort de ancestor, and darrein +presentment;” but makes no mention whatever of their holding jury trials +in _criminal_ cases,—an omission wholly unlikely to be made, if it +were designed they should attend the trial of such causes. Besides, the +chapter here spoken of (in John’s charter) does not allow these justices +to sit _alone_ in jury trials, even in _civil_ actions; but provides +that four knights, chosen by the county, shall sit with them to keep +them honest. When the king’s justices were known to be so corrupt and +servile that the people would not even trust them to sit alone, in jury +trials, in _civil_ actions, how preposterous is it to suppose that they +would not only suffer them to sit, but to sit alone, in _criminal_ ones. + +It is entirely incredible that Magna Carta, which makes such careful +provision in regard to the king’s justices sitting in civil actions, +should make no provision whatever as to their sitting in _criminal_ +trials, if they were to be allowed to sit in them at all. Yet Magna +Carta has no provision whatever on the subject.[^93] + +But what would appear to make this matter absolutely certain is, that +unless the prohibition that “no bailiff, &c., _of ours_ shall hold pleas +of our crown,” apply to all officers of the king, justices as well as +others, it would be wholly nugatory for any practical or useful purpose, +because the prohibition could be evaded by the king, at any time, by +simply changing the titles of his officers. Instead of calling them +“sheriffs, coroners, constables and bailiffs,” he could call them +“_justices_,” or anything else he pleased; and this prohibition, so +important to the liberty of the people, would then be entirely defeated. +The king also could make and unmake “justices” at his pleasure; and if +he could appoint any officers whatever to preside over juries in +criminal trials, he could appoint any tool that he might at any time +find adapted to his purpose. It was as easy to make justices of Jeffreys +and Scroggs, as of any other material; and to have prohibited all the +king’s officers, _except his justices_, from presiding in criminal +trials, would therefore have been mere fool’s play. + +We can all perhaps form some idea, though few of us will be likely to +form any adequate idea, of what a different thing the trial by jury +would have been _in practice_, and of what would have been the +difference to the liberties of England, for five hundred years last +past, had this prohibition of Magna Carta, upon the king’s officers +sitting in the trial of criminal cases, been observed. + +The principle of this chapter of Magna Carta, as applicable to the +governments of the United States of America, forbids that any officer +appointed either by the executive or _legislative_ power, or dependent +upon them for their salaries, or responsible to them by impeachment, +should preside over a jury in criminal trials. To have the trial a legal +(that is, a _common law_) and true trial by jury, the presiding officers +must be chosen by the people, and be entirely free from all dependence +upon, and all accountability to, the executive and legislative branches +of the government.[^94] + +[Footnote 87: The proofs of this principle of the common law have +already been given on page 120, _note_. + +There is much confusion and contradiction among authors as to the manner +in which sheriffs and other officers were appointed; some maintaining +that they were appointed by the king, others that they were elected by +the people. I imagine that both these opinions are correct, and that +several of the king’s officers bore the same official names as those +chosen by the people; and that this is the cause of the confusion that +has arisen on the subject. + +It seems to be a perfectly well established fact that, at common law, +several magistrates, bearing the names of aldermen, sheriffs, stewards, +coroners and bailiffs, were chosen by the people; and yet it appears, +from Magna Carta itself, that some of the _king’s_ officers (of whom he +must have had many) were also called “sheriffs, constables, coroners, +and bailiffs.” + +But Magna Carta, in various instances, speaks of sheriffs and bailiffs +as “_our_ sheriffs and bailiffs;” thus apparently intending to recognize +the distinction between officers _of the king_, bearing those names, and +other officers, bearing the same official names, but chosen by the +people. Thus it says that “no sheriff or bailiff _of ours_, or any other +(officer), shall take horses or carts of any freeman for carriage, +unless with the consent of the freeman himself.”—_John’s Charter_, ch. +36. + +In a kingdom subdivided into so many counties, hundreds, tithings, +manors, cities and boroughs, each having a judicial or police +organization of its own, it is evident that many of the officers must +have been chosen by the people, else the government could not have +maintained its popular character. On the other hand, it is evident that +the king, the executive power of the nation, must have had large numbers +of officers of his own in every part of the kingdom. And it is perfectly +natural that these different sets of officers should, in many instances, +bear the same official names; and, consequently that the king, when +speaking of his own officers, as distinguished from those chosen by the +people, should call them “our sheriffs, bailiffs,” &c., as he does in +Magna Carta. + +I apprehend that inattention to these considerations has been the cause +of all the confusion of ideas that has arisen on this subject,—a +confusion very evident in the following paragraph from Dunham, which may +be given as an illustration of that which is exhibited by others on the +same points. + +> “Subordinate to the ealdormen were the _gerefas_, the sheriffs, or +> reeves, _of whom there were several in every shire, or county_. +> _There was one in every borough, as a judge._ There was one at every +> gate, who witnessed purchases outside the walls; and there was one, +> higher than either,—the high sheriff,—who was probably the reeve of +> the shire. This last _appears_ to have been appointed by the king. +> Their functions were to execute the decrees of the king, or +> ealdormen, to arrest prisoners, to require bail for their appearance +> at the sessions, to collect fines or penalties levied by the court of +> the shire, to preserve the public peace, _and to preside in a +> subordinate tribunal of their own_.”—_Dunham’s Middle Ages_, sec. 2, +> B. 2, ch. 1. 57 _Lardner’s Cab. Cyc._, p. 41. + +The confusion of _duties_ attributed to these officers indicates clearly +enough that different officers, bearing, the same official names, must +have had different duties, and have derived their authority from +different sources,—to wit, the king, and the people.] + +[Footnote 88: _Darrein presentment_ was an inquest to discover who +presented the last person to a church; _mort de ancestor_, whether the +last possessor was seized of land in demesne of his own fee; and _novel +disseisin_, whether the claimant had been unjustly disseized of his +freehold.] + +[Footnote 89: He has no power to do it, _either with, or without, the +king’s command_. The prohibition is absolute, containing no such +qualification as is here interpolated, viz., “_without the king’s +command_.” If it could be done _with_ the king’s command, the king would +be invested with arbitrary power in the matter.] + +[Footnote 90: The absurdity of this doctrine of Coke is made more +apparent by the fact that, at that time, the “justices” and other +persons appointed by the king to hold courts were not only dependent +upon the king for their offices, and removable at his pleasure, _but +that the usual custom was, not to appoint them with any view to +permanency, but only to give them special commissions for trying a +single cause, or for holding a single term of a court, or for making a +single circuit; which, being done, their commissions expired_. The king, +therefore, could, _and undoubtedly did, appoint any individual he +pleased, to try any cause he pleased, with a special view to the +verdicts he desired to obtain in the particular cases_. + +This custom of commissioning particular persons to hold jury trials, in +_criminal_ cases, (and probably also in _civil_ ones,) was of course a +usurpation upon the common law, but had been practised more or less from +the time of William the Conqueror. Palgrave says: + +> “The frequent absence of William from his insular dominions +> occasioned another mode of administration, _which ultimately produced +> still greater changes in the law_. It was the practice of appointing +> justiciars to represent the king’s person, to hold his court, to +> decide his pleas, to dispense justice on his behalf, to command the +> military levies, and to act as conservators of the peace in the +> king’s name.[^95] ... The justices who were assigned in the name of +> the sovereign, and whose powers were revocable at his pleasure, +> derived their authority merely from their grant.... Some of those +> judges were usually deputed for the purpose of relieving the king +> from the burden of his judicial functions.... The number as well as +> the variety of names of the justices appearing in the early +> chirographs of ‘Concords,’ leave reason for doubting whether, +> anterior to the reign of Henry III., (1216 to 1272,) _a court, whose +> members were changing at almost every session, can be said to have +> been permanently constituted. It seems more probable that the +> individuals who composed the tribunal were selected as suited the +> pleasure of the sovereign, and the convenience of the clerks and +> barons_; and the history of our legal administration will be much +> simplified, if we consider all those courts which were afterwards +> denominated the Exchequer, the King’s Bench, the Common Pleas, and +> the Chancery, _as being originally committees, selected by the king +> when occasion required_, out of a large body, for the despatch of +> peculiar branches of business, _and which committees, by degrees, +> assumed an independent and permanent existence_.... Justices +> itinerant, who, despatched throughout the land, decided the ‘Pleas of +> the Crown,’ may be obscurely traced in the reign of the Conqueror; +> _not, perhaps, appointed with much regularity, but despatched upon +> peculiar occasions and emergencies_.”—_1 Palgrave’s Rise and +> Progress_, &c., p. 289 to 293. + +The following statute, passed in 1354, (139 years after Magna Carta,) +shows that even after this usurpation of appointing “justices” of his +own, to try criminal cases, had probably become somewhat established in +practice, in defiance of Magna Carta, the king was in the habit of +granting special commissions to still other persons, (especially to +sheriffs,—_his_ sheriffs, no doubt,) to try particular cases: + +> “Because that the people of the realm have suffered many evils and +> mischiefs, for that sheriffs of divers counties, by virtue of +> commissions and general writs granted to them at their own suit, for +> their singular profit to gain of the people, have made and taken +> divers inquests to cause to indict the people at their will, and have +> taken fine and ransom of them to their own use, and have delivered +> them; whereas such persons indicted were not brought before the +> king’s justices to have their deliverance, it is accorded and +> established, for to eschew all such evils and mischiefs, that such +> commissions and writs before this time made shall be utterly +> repealed, and that from henceforth no such commissions shall be +> granted.”—_St. 28 Edward III._, ch. 9, (1354.) + +How silly to suppose that the illegality of these commissions to try +criminal cases, could have been avoided by simply granting them to +persons under the title of “_justices_,” instead of granting them to +“_sheriffs_.” The statute was evidently a cheat, or at least designed as +such, inasmuch as it virtually asserts the right of the king to appoint +his tools, under the name of “justices,” to try criminal cases, while it +_disavows_ his right to appoint them under the name of “sheriffs.” + +> Millar says: “When the king’s bench came to have its usual residence +> at Westminster, the sovereign was induced to _grant special +> commissions, for trying particular crimes_, in such parts of the +> country as were found most convenient; and this practice was +> _gradually_ modelled into a regular appointment of certain +> commissioners, empowered, at stated seasons, to perform circuits over +> the kingdom, and to hold courts in particular towns, for the trial of +> all sorts of crimes. These judges of the circuit, however, _never +> obtained an ordinary jurisdiction, but continued, on every occasion, +> to derive their authority from two special commissions_: that of +> _oyer and terminer_, by which they were appointed to hear and +> determine all treasons, felonies and misdemeanors, within certain +> districts; and that of _gaol delivery_, by which they were directed +> to try every prisoner confined in the gaols of the several towns +> falling under their inspection.”—_Millar’s Hist. View of Eng. Gov._, +> vol. 2, ch. 7, p. 282. + +The following extract from Gilbert shows to what lengths of usurpation +the kings would sometimes go, in their attempts to get the judicial +power out of the hands of the people, and entrust it to instruments of +their own choosing: + +> “From the time of the _Saxons_,” (that is, from the commencement of +> the reign of William the Conqueror,) “till the reign of Edward the +> first, (1272 to 1307,) the several county courts and sheriffs courts +> did decline in their interest and authority. The methods by which +> they were broken were two-fold. _First, by granting commissions to +> the sheriffs by writ of_ JUSTICIES, _whereby the sheriff had a +> particular jurisdiction granted him to be judge of a particular +> cause, independent of the suitors of the county court_,” (that is, +> without a jury;) “_and these commissions were after the Norman form, +> by which (according to which) all power of judicature was immediately +> derived from the king_.”—_Gilbert on the Court of Chancery_, p. 1. + +The several authorities now given show that it was the custom of the +_Norman_ kings, not only to appoint persons to sit as judges in jury +trials, in criminal cases, but that they also commissioned individuals +to sit in singular and particular cases, as occasion required; and that +they therefore readily _could_, and naturally _would_, and therefore +undoubtedly _did_, commission individuals with a special view to their +adaptation or capacity to procure such judgments as the kings desired. + +The extract from Gilbert suggests also the usurpation of the _Norman_ +kings, in their assumption that _they_, (and _not the people_, as by the +_common law_,) were the fountains of justice. It was only by virtue of +this illegal assumption that they could claim to appoint their tools to +hold courts. + +All these things show how perfectly lawless and arbitrary the kings were +both before and after Magna Carta, and how necessary to liberty was the +principle of Magna Carta and the common law, that no person appointed by +the king should hold jury trials in criminal cases.] + +[Footnote 91: The opinions and decisions of judges and courts are +undeserving of the least reliance, (beyond the intrinsic merit of the +arguments offered to sustain them,) and are unworthy even to be quoted +as evidence of the law, _when those opinions or decisions are favorable +to the power of the government, or unfavorable to the liberties of the +people_. The only reasons that their opinions, _when in favor of +liberty_, are entitled to any confidence, are, first, that all +presumptions of law are in favor of liberty; and, second, that the +admissions of all men, the innocent and the criminal alike, _when made +against their own interests_, are entitled to be received as true, +because it is contrary to human nature for a man to confess anything but +truth against himself. + +More solemn farces, or more gross impostures, were never practised upon +mankind, than are all, or very nearly all, those oracular responses by +which courts assume to determine that certain statutes, in restraint of +individual liberty, are within the constitutional power of the +government, and are therefore valid and binding upon the people. + +The reason why these courts are so intensely servile and corrupt, is, +that they are not only parts of, but the veriest creatures of, the very +governments whose oppressions they are thus seeking to uphold. They +receive their offices and salaries from, and are impeachable and +removable by, the very governments upon whose acts they affect to sit in +judgment. Of course, no one with his eyes open ever places himself in a +position so incompatible with the liberty of declaring his honest +opinion, unless he do it with the intention of becoming a mere +instrument in the hands of the government for the execution of all its +oppressions. + +As proof of this, look at the judicial history of England for the last +five hundred years, and of America from its settlement. In all that time +(so far as I know, or presume) no bench of judges, (probably not even +any single judge,) dependent upon the legislature that passed the +statute, has ever declared a single _penal_ statute invalid, on account +of its being in conflict either with the common law, which the judges in +England have been sworn to preserve, or with the written constitutions, +(recognizing men’s natural rights,) which the American judges were under +oath to maintain. Every oppression, every atrocity even, that has ever +been enacted in either country, by the legislative power, in the shape +of a criminal law, (or, indeed, in almost any other shape,) has been as +sure of a sanction from the judiciary that was dependent upon, and +impeachable by, the legislature that enacted the law, as if there were a +physical necessity that the legislative enactment and the judicial +sanction should go together. Practically speaking, the sum of their +decisions, all and singular, has been, that there are no limits to the +power of the government, and that the people have no rights except what +the government pleases to allow to them. + +It is extreme folly for a people to allow such dependent, servile, and +perjured creatures to sit either in civil or criminal trials; but to +allow them to sit in criminal trials, and judge of the people’s +liberties, is not merely fatuity,—it is suicide.] + +[Footnote 92: Coke, speaking of the word _bailiffs_, as used in the +statute of 1 _Westminster_, ch. 35, (1275,) says: + +> “Here _bailiffs_ are taken for the _judges of the court_, as +> manifestly appeareth hereby.”—2 _Inst._, 229. + +Coke also says, “It is a maxim in law, _aliquis non debet esse judex in +propria causa_, (no one ought to be judge in his own cause;) and +therefore a fine levied before the _baylifes of Salop_ was reversed, +because one of the _baylifes_ was party to the fine, _quia non potest +esse judex et pars_,” (because one cannot be _judge_ and party.)—_1 +Inst._, 141 a. + +In the statute of Gloucester, ch. 11 and 12, (1278,) “the mayor and +_bailiffs_ of London (undoubtedly chosen by the people, or at any rate +not appointed by the king) are manifestly spoken of as _judges_, or +magistrates, holding _jury_ trials, as follows: + +> _Ch. II._ “It is provided, also, that if any man lease his tenement +> in the city of London, for a term of years, and he to whom the +> freehold belongeth causeth himself to be impleaded by collusion, and +> maketh default after default, or cometh into court and giveth it up, +> for to make the termor (lessee) lose his term, (lease,) and the +> demandant hath his suit, so that the termor may recover by writ of +> covenant; _the mayor and bailiffs may inquire by a good inquest_, +> (_jury_,) in the presence of the termor and the demandant, whether +> the demandant moved his plea upon good right that he had, or by +> collusion, or fraud, to make the termor lose his term; and if it be +> found by the inquest (jury) that the demandant moved his plea upon +> good right that he had, the judgment shall be given forthwith; and if +> it be found by the inquest (jury) that he impleaded him (self) by +> fraud, to put the termor from his term, then shall the termor enjoy +> his term, and the execution of judgment for the demandant shall be +> suspended until the term be expired.”—_6 Edward I._, ch. 11, (1278.) + +> Coke, in his commentary on this chapter, calls this court of “the +> mayor and _bailiffs_” of London, “_the court of the hustings, the +> greatest and highest court in London;_” and adds, “other cities have +> the like court, and so called, as York, Lincoln, Winchester, &c. Here +> the city of London is named; but it appeareth by that which hath been +> said out of Fleta, that this act extends to such cities and boroughs +> privileged,—that is, such as have such privilege to hold plea as +> London hath.”—_2 Inst._, 322. + +The 12th chapter of the same statute is in the following words, which +plainly recognize the fact that “the mayor and _bailiffs_ of London” are +judicial officers holding courts in London. + +> “It is provided, also, that if a man, impleaded for a tenement in the +> same city, (London,) doth vouch a foreigner to warranty, that he +> shall come into the chancery, and have a writ to summon his warrantor +> at a certain day before the justices of the bench, _and another writ +> to the mayor and bailiffs of London, that they shall surcease_ +> (suspend proceedings) _in the matter that is before them by writ_, +> until the plea of the warrantee be determined before the justices of +> the bench; and when the plea at the bench shall be determined, then +> shall he that is vouched be commanded to go into the city,” (that is, +> before “the mayor and _bailiffs’_” court,) “to answer unto the chief +> plea; and a writ shall be awarded at the suit of the demandant by the +> justices _unto the mayor and bailiffs, that they shall proceed in the +> plea_,” &c.—_6 Edward I._, ch. 12, (1278.) + +Coke, in his commentary on this chapter, also speaks repeatedly of “the +mayor and _bailiffs_” _as judges holding courts_; and also speaks of +this chapter as applicable not only to “the citie of London, specially +named for the cause aforesaid, but extended by equity to all other +privileged places,” (that is, privileged to have a court of “mayor and +_bailiffs_,”) “where foreign voucher is made, as to Chester, Durham, +Salop,” &c.—_2 Inst._, 325-7. + +BAILIE.—In Scotch law, a municipal magistrate, corresponding with the +English _alderman_.[^96]—_Burrill’s Law Dictionary_. + +BAILIFFE.—_Baillif._ Fr. A bailiff: a ministerial officer with duties +similar to those of a sheriff.... _The judge of a court._ A municipal +magistrate, &c.—_Burrill’s Law Dict._ + +BAILIFF.... The word _bailiff_ is of Norman origin, and was applied in +England, at an early period, (after the example, it is said, of the +French,) to the chief magistrates of counties, or shires, such as the +alderman, the reeve, or sheriff, and also of inferior jurisdictions, +such as hundreds and wapentakes.—_Spelman, voc. Balivus; 1 Bl. Com._, +344. _See Bailli_, _Ballivus_. The Latin _ballivus_ occurs, indeed, in +the laws of Edward the Confessor, but Spelman thinks it was introduced +by a later hand. _Balliva_ (bailiwick) was the word formed from +_ballivus_, to denote the extent of territory comprised within a +bailiff’s jurisdiction; and _bailiwick_ is still retained in writs and +other proceedings, as the name of a sheriff’s county.—_1 Bl. Com._, +344. _See Balliva._ _The office of bailiff was at first strictly, though +not exclusively, a judicial one._ In France, the word had the sense of +what Spelman calls _justitia tutelaris_. _Ballivus_ occurs frequently in +the _Regiam Majestatem_, in the sense of a _judge_.—_Spelman._ In its +sense of a _deputy_, it was formerly applied, in England, to those +officers who, by virtue of a deputation, either from the sheriff or the +lords of private jurisdictions, exercised within the hundred, or +whatever might be the limits of their bailiwick, certain _judicial_ and +ministerial functions. With the disuse of private and local +jurisdictions, the meaning of the term became commonly restricted to +such persons as were deputed by the sheriff to assist him in the merely +ministerial portion of his duty; such as the summoning of juries, and +the execution of writs.—_Brande._ ... The word _bailiff_ is also +applied in England to the chief magistrates of certain towns and +jurisdictions, to the keepers of castles, forests and other places, and +to the stewards or agents of lords of manors.—_Burrill’s Law Dict._ + +“BAILIFF, (from the Lat. _ballivus_; Fr. _baillif_, i.e., _Præfectus +provinciæ_,) signifies an officer appointed for the administration of +justice within a certain district. The office, as well as the name, +appears to have been derived from the French,” &c.,—_Brewster’s +Encyclopedia._ + +Millar says, “The French monarchs, about this period, were not content +with the power of receiving appeals from the several courts of their +barons. An expedient was devised of sending royal _bailiffs_ into +different parts of the kingdom, with a commission to take cognizance of +all those causes in which the sovereign was interested, and in reality +for the purpose of abridging and limiting the subordinate jurisdiction +of the neighboring feudal superiors. By an edict of Phillip Augustus, in +the year 1190, those _bailiffs_ were appointed in all the principal +towns of the kingdom.”—_Millar’s Hist. View of the Eng. Gov._, vol. +ii., ch. 3, p. 126. + +> “BAILIFF-_office_.—Magistrates who formerly administered justice in +> the parliaments or courts of France, answering to the English +> sheriffs, as mentioned by Bracton.”—_Bouvier’s Law Dict._ + +> “There be several officers called _bailiffs_, whose offices and +> employments seem quite different from each other.... The chief +> magistrate, in divers ancient corporations, are called _bailiffs_, as +> in Ipswich, Yarmouth, Colchester, &c. There are, likewise, officers +> of the forest, who are termed bailiffs.”—_1 Bacon’s Abridgment_, +> 498-9. + +> “BAILIFF signifies a keeper or superintendent, and is directly +> derived from the French word _bailli_, which appears to come from the +> word _balivus_, and that from _bagalus_, a Latin word signifying +> generally a governor, tutor, or superintendent.... The French word +> _bailli_ is thus explained by Richelet, (_Dictionaire_, &c.:) +> _Bailli._—_He who in a province has the superintendence of justice, +> who is the ordinary judge of the nobles_, who is their head for the +> _ban_ and _arriere ban_,[^97] and who maintains the right and property +> of others against those who attack them.... All the various officers +> who are called by this name, though differing as to the nature of +> their employments, seem to have some kind of superintendence +> intrusted to them by their superior.”—_Political Dictionary._ + +“BAILIFF, _balivus_. From the French word _bayliff_, that is, _præfectus +provinciæ_, and as the name, so the office itself was answerable to that +of France, where there were eight parliaments, which were high courts +from whence there lay no appeal, and within the precincts of the several +parts of that kingdom which belonged to each parliament, _there were +several provinces to which justice was administered by certain officers +called bailiffs_; and in England we have several counties in which +justice hath been, and still is, in small suits, administered to the +inhabitants by the officer whom we now call _sheriff_, or _viscount_; +(one of which names descends from the Saxons, the other from the +Normans.) And, though the sheriff is not called _bailiff_, yet it was +probable that was one of his names also, because the county is often +called _balliva_; as in the return of a writ, where the person is not +arrested, the sheriff saith, _infra-nominatus_, _A.B. non est inventus +in balliva mea_, &c.; (the within named A.B. is not found in my +bailiwick, &c.) And in the statute of Magna Carta, ch. 28, and 14 Ed. 3, +ch. 9, the word _bailiff_ seems to comprise as well sheriffs, as +bailiffs of hundreds. + +“_Bailies_, in Scotland, are magistrates of burghs, possessed of certain +jurisdictions, having the same power within their territory as sheriffs +in the county.... + +“As England is divided into counties, so every county is divided into +hundreds; within which, in ancient times, the people had justice +administered to them by the several officers of every hundred, which +were the _bailiffs_. And it appears by Bracton, (_lib. 3, tract_. 2, ch. +34,) that _bailiffs_ of hundreds might anciently hold plea of appeal and +approvers; but since that time the hundred courts, except certain +franchises, are swallowed in the county courts; and now the _bailiff’s_ +name and office is grown into contempt, they being generally officers to +serve writs, &c., within their liberties; though, in other respects, the +name is still in good esteem, for the chief magistrates in divers towns +are called _bailiffs_; and sometimes the persons to whom the king’s +castles are committed are termed _bailiffs_, as the _bailiff_ of Dover +Castle, &c. + +“Of the ordinary _bailiffs_ there are several sorts, viz., _bailiffs_ of +liberties; sheriffs’ _bailiffs_; _bailiffs_ of lords of manors; +_bailiffs_ of husbandry, &c.... + +“_Bailiffs_ of liberties or franchises are to be sworn to take +distresses, truly impanel jurors, make returns by indenture between them +and sheriffs, &c.... + +“_Bailiffs of courts baron_ summon those courts, and execute the process +thereof.... + +“Besides these, there are also _bailiffs of the forest_ ...”—_Jacob’s +Law Dict. Tomlin’s do._ + +“BAILIWICK, _balliva_,—is not only taken for the county, but signifies +generally that liberty which is exempted from the sheriff of the county, +over which the lord of the liberty appointeth a _bailiff_, with such +powers within his precinct as an under-sheriff exerciseth under the +sheriff of the county; such as the _bailiff_ of Westminster.”—_Jacob’s +Law Dict. Tomlin’s do._ + +“_A bailiff of a Leet, Court-baron, Manor, Balivus Letæ, Baronis, +Manerii._—He is one that is appointed by the lord, or his steward, +within every manor, to do such offices as appertain thereunto, as to +summon the court, warn the tenants and resiants; also, to summon the +Leet and Homage, levy fines, and make distresses, &c., of which you may +read at large in _Kitchen’s Court-leet and Court-baron_.”—_A Law +Dictionary, anonymous_, (_in Suffolk Law Library_.) + +“BAILIFF.—In England an officer appointed by the sheriff. Bailiffs are +either special, and appointed, for their adroitness, to arrest persons; +or bailiffs of hundreds, who collect fines, summon juries, attend the +assizes, and execute writs and processes. _The sheriff in England is the +king’s bailiff...._ + +“_The office of bailiff formerly was high and honorable in England, and +officers under that title on the continent are still invested with +important functions._”—_Webster._ + +“BAILLI, (Scotland.)—An alderman; a magistrate who is second in rank in +a royal burgh.”—_Worcester._ + +“_Baili, or Bailiff._—(Sorte d’officier de justice.) A bailiff; a sort +of magistrate.”—_Boyer’s French Dict._ + +“By some opinions, a _bailiff_, in Magna Carta, ch. 28, signifies _any +judge_.”—_Cunningham’s Law Dict._ + +“BAILIFF.—In the court of the Greek emperors there was a grand +_bajulos_, first tutor of the emperor’s children. The superintendent of +foreign merchants seems also to have been called _bajulos_; and, as he +was appointed by the Venetians, this title (balio) was transferred to +the Venetian ambassador. From Greece, the official _bajulos_ +(_ballivus_, _bailli_, in France; _bailiff_, in England,) was introduced +into the south of Europe, and denoted a superintendent; hence the eight +_ballivi_ of the knights of St. John, which constitute its supreme +council. In France, the royal bailiffs were commanders of the militia, +administrators or stewards of the domains, _and judges of their +districts_. In the course of time, only the first duty remained to the +bailiff; hence he was _bailli d’épée_, _and laws were administered in +his name by a lawyer, as his deputy, lieutenant de robe_. The +seigniories, with which high courts were connected, employed bailiffs, +who thus constituted, almost everywhere, _the lowest order of judges_. +From the courts of the nobility, the appellation passed to the royal +courts; from thence to the parliaments. In the greater bailiwicks of +cities of importance, Henry II. established a collegial constitution +under the name of _presidial courts_.... _The name of bailiff was +introduced into England with William I._ The counties were also called +_bailiwicks_, (_ballivæ_,) while the subdivisions were called +_hundreds_; but, as the courts of the hundreds have long since ceased, +the English bailiffs are only a kind of subordinate officers of justice, +like the French _huissiers_. These correspond very nearly to the +officers called _constables_ in the United States. Every sheriff has +some of them under him, for whom he is answerable. In some cities the +highest municipal officer yet bears this name, as the high bailiff of +Westminster. In London, the Lord Mayor is at the same time bailiff, +(which title he bore before the present became usual,) _and administers, +in this quality, the criminal jurisdiction of the city, in the court of +old Bailey_, where there are, annually, eight sittings of the court, for +the city of London and the county of Middlesex. _Usually, the recorder +of London supplies his place as judge._ In some instances the term +_bailiff_, in England, is applied to the chief magistrates of towns, or +to the commanders of particular castles, as that of Dover. The term +_baillie_, in Scotland, is applied to a judicial police-officer, having +powers very similar to those of justices of peace in the United +States.”—_Encyclopædia Americana._] + +[Footnote 93: Perhaps it may be said (and such, it has already been +seen, is the opinion of Coke and others) that the chapter of Magna +Carta, that “no _bailiff_ from henceforth shall put any man to his open +law, (put him on trial,) nor to an oath (that is, an oath of +self-exculpation) upon his (the bailiff’s) own accusation or testimony, +without credible witnesses brought in to prove the charge,” _is itself_ +a “provision in regard to the king’s justices sitting in criminal +trials,” and therefore implies that _they are to sit_ in such trials. + +But, although the word _bailiff_ includes all _judicial_, as well as +other, officers, and would therefore in this case apply to the king’s +justices, if they were to sit in criminal trials; yet this particular +chapter of Magna Carta evidently does not contemplate “_bailiffs_” while +acting in their _judicial_ capacity, (for they were not allowed to sit +in criminal trials at all,) but only in the character of _witnesses_; +and that the meaning of the chapter is, that the simple testimony +(simplici loquela) of “no bailiff,” (of whatever kind,) unsupported by +other and “credible witnesses,” shall be sufficient to put any man on +trial, or to his oath of self-exculpation.[^98] + +It will be noticed that the words of this chapter are _not_, “no bailiff +_of ours_,”—that is, _of the king_,—as in some other chapters of Magna +Carta; but simply “no bailiff,” &c. The prohibition, therefore, applies +to all “bailiffs,”—to those chosen by the people, as well as those +appointed by the king. And the prohibition is obviously founded upon the +idea (a very sound one in that age certainly, and probably also in this) +that public officers (whether appointed by king or people) have +generally, or at least frequently, too many interests and animosities +against accused persons, to make it safe to convict any man on their +testimony alone. + +The idea of Coke and others, that the object of this chapter was simply +to forbid _magistrates_ to put a man on trial, when there were no +witnesses against him, but only the simple accusation or testimony of +the magistrates themselves, before whom he was to be tried, is +preposterous; for that would be equivalent to supposing that magistrates +acted in the triple character of judge, jury and witnesses, _in the same +trial_; and that, therefore, _in such cases_, they needed to be +prohibited from condemning a man on their own accusation or testimony +alone. But such a provision would have been unnecessary and senseless, +for two reasons; first, because the bailiffs or magistrates had no power +to “hold pleas of the crown,” still less to try or condemn a man; that +power resting wholly with the juries; second, because if bailiffs or +magistrates could try and condemn a man, without a jury, the prohibition +upon their doing so upon their own accusation or testimony alone, would +give no additional protection to the accused, so long as these same +bailiffs or magistrates were allowed to decide what weight should be +given, _both to their own testimony and that of other witnesses_; for, +if they wished to convict, they would of course decide that any +testimony, however frivolous or irrelevant, _in addition to their own_, +was sufficient. Certainly a magistrate could always procure witnesses +enough to testify to something or other, which _he himself_ could decide +to be corroborative of his own testimony. And thus the prohibition would +be defeated in fact, though observed in form.] + +[Footnote 94: In this chapter I have called the justices “_presiding_ +officers,” solely for the want of a better term. They are not +“_presiding_ officers,” in the sense of having any authority over the +jury; but are only assistants to, and teachers and servants of, the +jury. The foreman of the jury is properly the “presiding officer,” so +far as there is such an officer at all. The sheriff has no authority +except over other persons than the jury.] + +[Footnote 95: In this extract, Palgrave seems to assume that the king +himself had a right to sit as judge, in _jury_ trials, in the _county_ +courts, in both civil and criminal cases. I apprehend he had no such +power at the _common law_, but only to sit in the trial of appeals, and +in the trial of peers, and of civil suits in which peers were parties, +and possibly in the courts of ancient demesne.] + +[Footnote 96: _Alderman_ was a title anciently given to various +_judicial_ officers, as the Alderman of all England, Alderman of the +King, Alderman of the County, Alderman of the City or Borough, Alderman +of the Hundred or Wapentake. These were all _judicial_ officers. See Law +Dictionaries.] + +[Footnote 97: “_Ban and arriere ban_, a proclamation, whereby all that +hold lands of the crown, (except some privileged officers and citizens,) +are summoned to meet at a certain place in order to serve the king in +his wars, either personally, or by proxy.”—_Boyer._] + +[Footnote 98: At the common law, parties, in both civil and criminal +cases, were allowed to swear in their own behalf; and it will be so +again, if the true trial by jury should be reëstablished.] diff --git a/edited/08.markdown b/edited/08.markdown new file mode 100644 index 0000000..2cae924 --- /dev/null +++ b/edited/08.markdown @@ -0,0 +1,213 @@ +# THE FREE ADMINISTRATION OF JUSTICE + + +The free administration of justice was a principle of the common law; +and it must necessarily be a part of every system of government which is +not designed to be an engine in the hands of the rich for the oppression +of the poor. + +In saying that the free administration of justice was a principle of the +common law, I mean only that parties were subjected to no costs for +jurors, witnesses, writs, or other necessaries for the trial, +_preliminary to the trial itself_. Consequently, no one could lose the +benefit of a trial, for the want of means to defray expenses. _But after +the trial_, the plaintiff or defendant was liable to be amerced, (by the +jury, of course,) for having troubled the court with the prosecution or +defence of an unjust suit.[^99] But it is not likely that the losing +party was subjected to an amercement as a matter of course, but only in +those cases where the injustice of his cause was so evident as to make +him inexcusable in bringing it before the courts. + +All the freeholders were required to attend the courts, that they might +serve as jurors and witnesses, and do any other service that could +legally be required of them; and their attendance was paid for by the +state. In other words, their attendance and service at the courts were +part of the rents which they paid the state for their lands. + +The freeholders, who were thus required always to attend the courts, +were doubtless the only witnesses who were _usually_ required in _civil_ +causes. This was owing to the fact that, in those days, when the people +at large could neither write nor read, few contracts were put in +writing. The expedient adopted for proving contracts, was that of making +them in the presence of witnesses, who could afterwards testify to the +transactions. Most contracts in regard to lands were made at the courts, +in the presence of the freeholders there assembled.[^100] + +In the king’s courts it was specially provided by Magna Carta that +“justice and right” should not be “sold;” that is, that the king should +take nothing from the parties for administering justice. + +The oath of a party to the justice of his cause was all that was +necessary to entitle him to the benefit of the courts free of all +expense; (except the risk of being amerced after the trial, in case the +jury should think he deserved it.[^101]) + +_This principle of the free administration of justice connects itself +necessarily with the trial by jury, because a jury could not rightfully +give judgment against any man, in either a civil or criminal case, if +they had any reason to suppose he had been unable to procure his +witnesses._ + +The true trial by jury would also compel the free administration of +justice from another necessity, viz., that of preventing private +quarrels; because, unless the government enforced a man’s rights and +redressed his wrongs, _free of expense to him_, a jury would be bound to +protect him in taking the law into his own hands. A man has a natural +right to enforce his own rights and redress his own wrongs. If one man +owe another a debt, and refuse to pay it, the creditor has a natural +right to seize sufficient property of the debtor, wherever he can find +it, to satisfy the debt. If one man commit a trespass upon the person, +property or character of another, the injured party has a natural right, +either to chastise the aggressor, or to take compensation for the injury +out of his property. But as the government is an impartial party as +between these individuals, it is more likely to do _exact_ justice +between them than the injured individual himself would do. The +government, also, having more power at its command, is likely to right a +man’s wrongs more peacefully than the injured party himself could do it. +If, therefore, the government will do the work of enforcing a man’s +rights, and redressing his wrongs, _promptly, and free of expense to +him_, he is under a moral obligation to leave the work in the hands of +the government; but not otherwise. When the government forbids him to +enforce his own rights or redress his own wrongs, and deprives him of +all means of obtaining justice, except on the condition of his employing +the government to obtain it for him, _and of paying the government for +doing it_, the government becomes itself the protector and accomplice of +the wrong-doer. If the government will forbid a man to protect his own +rights, it is bound to do it for him, _free of expense to him_. And so +long as government refuses to do this, juries, if they knew their +duties, would protect a man in defending his own rights. + +Under the prevailing system, probably one half of the community are +virtually deprived of all protection for their rights, except what the +criminal law affords them. Courts of justice, for all civil suits, are +as effectually shut against them, as though it were done by bolts and +bars. Being forbidden to maintain their own rights by force,—as, for +instance, to compel the payment of debts,—and being unable to pay the +expenses of civil suits, they have no alternative but submission to many +acts of injustice, against which the government is bound either to +protect them, _free of expense_, or allow them to protect themselves. + +There would be the same reason in compelling a party to pay the judge +and jury for their services, that there is in compelling him to pay the +witnesses, or any other _necessary_ charges.[^102] + +This compelling parties to pay the expenses of civil suits is one of the +many cases in which government is false to the fundamental principles on +which free government is based. What is the object of government, but to +protect men’s rights? On what principle does a man pay his taxes to the +government, except on that of contributing his proportion towards the +necessary cost of protecting the rights of all? Yet, when his own rights +are actually invaded, the government, which he contributes to support, +instead of fulfilling its implied contract, becomes his enemy, and not +only refuses to protect his rights, (except at his own cost,) but even +forbids him to do it himself. + +All free government is founded on the theory of voluntary association; +and on the theory that all the parties to it _voluntarily_ pay their +taxes for its support, on the condition of receiving protection in +return. But the idea that any _poor_ man would voluntarily pay taxes to +build up a government, which will neither protect his rights, (except at +a cost which he cannot meet,) nor suffer himself to protect them by such +means as may be in his power, is absurd. + +Under the prevailing system, a large portion of the lawsuits determined +in courts, are mere contests of purses rather than of rights. And a +jury, sworn to decide causes “according to the evidence” produced, are +quite likely, _for aught they themselves can know_, to be deciding +merely the comparative length of the parties’ purses, rather than the +intrinsic strength of their respective rights. Jurors ought to refuse to +decide a cause at all, except upon the assurance that all the evidence, +necessary to a full knowledge of the cause, is produced. This assurance +they can seldom have, unless the government itself produces all the +witnesses the parties desire. + +In criminal cases, the atrocity of accusing a man of crime, and then +condemning him unless he prove his innocence at his own charges, is so +evident that a jury could rarely, if ever, be justified in convicting a +man under such circumstances. + +But the free administration of justice is not only indispensable to the +maintenance of right between man and man; it would also promote +simplicity and stability in the laws. The mania for legislation would +be, in an important degree, restrained, if the government were compelled +to pay the expenses of all the suits that grew out of it. + +The free administration of justice would diminish and nearly extinguish +another great evil,—that of malicious _civil_ suits. It is an old +saying, that “_multi litigant in foro, non ut aliquid lucrentur, sed ut +vexant alios_.” (Many litigate in court, not that they may gain +anything, but that they may harass others.) Many men, from motives of +revenge and oppression, are willing to spend their own money in +prosecuting a groundless suit, if they can thereby compel their victims, +who are less able than themselves to bear the loss, to spend money in +the defence. Under the prevailing system, in which the parties pay the +expenses of their suits, nothing but money is necessary to enable any +malicious man to commence and prosecute a groundless suit, to the +terror, injury, and perhaps ruin, of another man. In this way, a court +of justice, into which none but a conscientious _plaintiff_ certainly +should ever be allowed to enter, becomes an arena into which any rich +and revengeful oppressor may drag any man poorer than himself, and +harass, terrify, and impoverish him, to almost any extent. It is a +scandal and an outrage, that government should suffer itself to be made +an instrument, in this way, for the gratification of private malice. We +might nearly as well have no courts of justice, as to throw them open, +as we do, for such flagitious uses. Yet the evil probably admits of no +remedy except a free administration of justice. Under a free system, +plaintiffs could rarely be influenced by motives of this kind; because +they could put their victim to little or no expense, _neither pending +the suit_, (which it is the object of the oppressor to do,) nor at its +termination. Besides, if the ancient common law practice should be +adopted, of amercing a party for troubling the courts with groundless +suits, the prosecutor himself would, in the end, be likely to be amerced +by the jury, in such a manner as to make courts of justice a very +unprofitable place for a man to go to seek revenge. + +In estimating the evils of this kind, resulting from the present system, +we are to consider that they are not, by any means, confined to the +actual suits in which this kind of oppression is practised; but we are +to include all those cases in which the fear of such oppression is used +as a weapon to compel men into a surrender of their rights. + +[Footnote 99: _2 Sullivan Lectures_, 234-5. _3 Blackstone_, 274-5, 376. +Sullivan says that both plaintiffs and defendants were liable to +amercement. Blackstone speaks of plaintiffs being liable, without saying +whether defendants were so or not. What the rule really was I do not +know. There would seem to be some reason in allowing defendants to +defend themselves, _at their own charges_, without exposing themselves +to amercement in case of failure.] + +[Footnote 100: When any other witnesses than freeholders were required +in a civil suit, I am not aware of the manner in which their attendance +was procured; but it was doubtless done at the expense either of the +state or of the witnesses themselves. And it was doubtless the same in +criminal cases.] + +[Footnote 101: “All claims were established in the first stage by the +oath of the plaintiff, except when otherwise specially directed by the +law. The oath, by which any claim was supported, was called the +fore-oath, or ‘Præjuramentum,’ and it was the foundation of his suit. +One of the cases which did not require this initiatory confirmation, was +when cattle could be tracked into another man’s land, and then the +foot-mark stood for the fore-oath.”—_2 Palgrave’s Rise and Progress_, +&c., 114.] + +[Footnote 102: Among the necessary expenses of suits, should be reckoned +reasonable compensation to counsel, for they are nearly or quite as +important to the administration of justice, as are judges, jurors, or +witnesses; and the universal practice of employing them, both on the +part of governments and of private persons, shows that their importance +is generally understood. As a mere matter of economy, too, it would be +wise for the government to pay them, rather than they should not be +employed; because they collect and arrange the testimony and the law +beforehand, so as to be able to present the whole case to the court and +jury intelligibly, and in a short space of time. Whereas, if they were +not employed, the court and jury would be under the necessity either of +spending much more time than now in the investigation of causes, or of +despatching them in haste, and with little regard to justice. They would +be very likely to do the latter, thus defeating the whole object of the +people in establishing courts. + +To prevent the abuse of this right, it should perhaps be left +discretionary with the jury in each case to determine whether the +counsel should receive any pay—and, if any, how much—from the +government.] diff --git a/edited/09.markdown b/edited/09.markdown new file mode 100644 index 0000000..595804c --- /dev/null +++ b/edited/09.markdown @@ -0,0 +1,429 @@ +# THE CRIMINAL INTENT + + +It is a maxim of the common law that there can be no crime without a +criminal intent. And it is a perfectly clear principle, although one +which judges have in a great measure overthrown in practice, that +_jurors_ are to judge of the moral intent of an accused person, and hold +him guiltless, whatever his act, unless they find him to have acted with +a criminal intent; that is, with a design to do what he knew to be +criminal. + +This principle is clear, because the question for a jury to determine +is, whether the accused be _guilty_, or _not guilty_. _Guilt_ is a +personal quality of the actor,—not _necessarily_ involved in the act, +but depending also upon the intent or motive with which the act was +done. Consequently, the jury must find that he acted from a criminal +motive, before they can declare him _guilty_. + +There is no moral justice in, nor any political necessity for, punishing +a man for any act whatever that he may have committed, if he have done +it without any criminal intent. There can be no _moral justice_ in +punishing for such an act, because, there having been no _criminal +motive_, there can have been no other motive which justice can take +cognizance of, as demanding or justifying punishment. There can be no +_political necessity_ for punishing, to warn against similar acts in +future, because, if one man have injured another, however +unintentionally, he is liable, and justly liable, to a _civil_ suit for +damages; and in this suit he will be compelled to make compensation for +the injury, notwithstanding his innocence of any intention to injure. He +must bear the consequences of his own act, instead of throwing them upon +another, however innocent he may have been of any intention to do +wrong. And the damages he will have to pay will be a sufficient warning +to him not to do the like act again. + +If it be alleged that there are crimes against the public, (as treason, +for example, or any other resistance to government,) for which private +persons can recover no damages, and that there is a political necessity +for punishing for such offences, even though the party acted +conscientiously, the answer is,—the government must bear with all +resistance that is not so clearly wrong as to give evidence of criminal +intent. In other words, the government, in all its acts, must keep +itself so _clearly_ within the limits of justice, as that twelve men, +taken at random, will all agree that it is in the right, or it must +incur the risk of resistance, without any power to punish it. This is +the mode in which the trial by jury operates to prevent the government +from falling into the hands of a party, or a faction, and to keep it +within such limits as _all_, or substantially _all_, the people are +agreed that it may occupy. + +This necessity for a criminal intent, to justify conviction, is proved +by the issue which the jury are to try, and the verdict they are to +pronounce. The “issue” they are to try is, “_guilty_” or “_not guilty_.” +And those are the terms they are required to use in rendering their +verdicts. But it is a plain falsehood to say that a man is “_guilty_,” +unless he have done an act which he knew to be criminal. + +This necessity for a criminal intent—in other words, for _guilt_—as a +preliminary to conviction, makes it impossible that a man can be +rightfully convicted for an act that is intrinsically innocent, though +forbidden by the government; because guilt is an intrinsic quality of +actions and motives, and not one that can be imparted to them by +arbitrary legislation. All the efforts of the government, therefore, to +“_make offences by statute_,” out of acts that are not criminal by +nature, must necessarily be ineffectual, unless a jury will declare a +man “_guilty_” for an act that is really innocent. + +The corruption of judges, in their attempts to uphold the arbitrary +authority of the government, by procuring the conviction of individuals +for acts innocent in themselves, and forbidden only by some tyrannical +statute, and the commission of which therefore indicates no criminal +intent, is very apparent. + +To accomplish this object, they have in modern times held it to be +unnecessary that indictments should charge, as by the common law they +were required to do, that an act was done “_wickedly_,” “_feloniously_,” +“_with malice aforethought_,” or in any other manner that implied a +criminal intent, without which there can be no criminality; but that it +is sufficient to charge simply that it was done “_contrary to the form +of the statute in such case made and provided_.” This form of indictment +proceeds plainly upon the assumption that the government is absolute, +and that it has authority to prohibit any act it pleases, however +innocent in its nature the act may be. Judges have been driven to the +alternative of either sanctioning this new form of indictment, (which +they never had any constitutional right to sanction,) or of seeing the +authority of many of the statutes of the government fall to the ground; +because the acts forbidden by the statutes were so plainly innocent in +their nature, that even the government itself had not the face to allege +that the commission of them implied or indicated any criminal intent. + +To get rid of the necessity of showing a criminal intent, and thereby +further to enslave the people, by reducing them to the necessity of a +blind, unreasoning submission to the arbitrary will of the government, +and of a surrender of all right, on their own part, to judge what are +their constitutional and natural rights and liberties, courts have +invented another idea, which they have incorporated among the pretended +_maxims_, upon which they act in criminal trials, viz., that “_ignorance +of the law excuses no one_.” As if it were in the nature of things +possible that there could be an excuse more absolute and complete. What +else than ignorance of the law is it that excuses persons under the +years of discretion, and men of imbecile minds? What else than ignorance +of the law is it that excuses judges themselves for all their erroneous +decisions? Nothing. They are every day committing errors, which would be +crimes, but for their ignorance of the law. And yet these same judges, +who claim to be _learned_ in the law, and who yet could not hold their +offices for a day, but for the allowance which the law makes for their +ignorance, are continually asserting it to be a “maxim” that “ignorance +of the law excuses no one;” (by which, of course, they really mean that +it excuses no one but themselves; and especially that it excuses no +_unlearned_ man, who comes before them charged with crime.) + +This preposterous doctrine, that “ignorance of the law excuses no one,” +is asserted by courts because it is an indispensable one to the +maintenance of absolute power in the government. It is indispensable for +this purpose, because, if it be once admitted that the people _have_ any +rights and liberties which the government cannot lawfully take from +them, then the question arises in regard to every statute of the +government, whether it be law, or not; that is, whether it infringe, or +not, the rights and liberties of the people. Of this question every man +must of course judge according to the light in his own mind. And no man +can be convicted unless the jury find, not only that the statute is +_law_,—that it does _not_ infringe the rights and liberties of the +people,—but also that it was so clearly law, so clearly consistent with +the rights and liberties of the people, as that the individual himself, +who transgressed it, _knew it to be so_, and therefore had no moral +excuse for transgressing it. Governments see that if ignorance of the +law were allowed to excuse a man for any act whatever, it must excuse +him for transgressing all statutes whatsoever, which he himself thinks +inconsistent with his rights and liberties. But such a doctrine would of +course be inconsistent with the maintenance of arbitrary power by the +government; and hence governments will not allow the plea, although they +will not confess their true reasons for disallowing it. + +The only reasons, (if they deserve the name of reasons), that I ever +knew given for the doctrine that ignorance of the law excuses no one, +are these: + +> 1. “The reason for the maxim is that of necessity. It prevails, ‘not +> that all men know the law, but because it is an excuse which every +> man will make, and no man can tell how to confute him.’—_Selden_, +> (as quoted in the 2d edition of _Starkie on Slander_, Prelim. Disc., +> p. 140, note.)”—_Law Magazine_, (_London_,) vol. 27, p. 97. + +This reason impliedly admits that ignorance of the law is, +_intrinsically_, an ample and sufficient excuse for a crime; and that +the excuse ought to be allowed, if the fact of ignorance could but be +ascertained. But it asserts that this fact is incapable of being +ascertained, and that therefore there is a necessity for punishing the +ignorant and the knowing—that is, the innocent and the guilty—without +discrimination. + +This reason is worthy of the doctrine it is used to uphold; as if a plea +of ignorance, any more than any other plea, must necessarily be believed +simply because it is urged; and as if it were not a common and every-day +practice of courts and juries, in both civil and criminal cases, to +determine the mental capacity of individuals; as, for example, to +determine whether they are of sufficient mental capacity to make +reasonable contracts; whether they are lunatic; whether they are +_compotes mentis_, “of sound mind and memory,” &c. &c. And there is +obviously no more difficulty in a jury’s determining whether an accused +person knew the law in a criminal case, than there is in determining any +of these other questions that are continually determined in regard to a +man’s mental capacity. For the question to be settled by the jury is not +whether the accused person knew the particular _penalty_ attached to his +act, (for at common law no one knew what penalty a _jury_ would attach +to an offence,) but whether he knew that his act was _intrinsically +criminal_. If it were _intrinsically criminal_, it was criminal at +common law. If it was not intrinsically criminal, it was not criminal at +common law. (At least, such was the general principle of the common law. +There may have been exceptions in practice, owing to the fact that the +opinions of men, as to what was intrinsically criminal, may not have +been in all cases correct.) + +A jury, then, in judging whether an accused person knew his act to be +illegal, were bound first to use their own judgments, as to whether the +act were _intrinsically_ criminal. If their own judgments told them the +act was _intrinsically_ and _clearly_ criminal, they would naturally and +reasonably infer that the accused also understood that it was +intrinsically criminal, (and consequently illegal,) unless it should +appear that he was either below themselves in the scale of intellect, or +had had less opportunities of knowing what acts were criminal. In +short, they would judge, from any and every means they might have of +judging; and if they had any reasonable doubt that he knew his act to be +criminal in itself, they would be bound to acquit him. + +The second reason that has been offered for the doctrine that ignorance +of the law excuses no one, is this: + +> “Ignorance of the municipal law of the kingdom, or of the penalty +> thereby inflicted on offenders, doth not excuse any that is of the +> age of discretion and compos mentis, from the penalty of the breach +> of it; because every person, of the age of discretion and compos +> mentis, _is bound to know the law_, and presumed to do so. +> _Ignorantia eorum, quæ quis scire tenetur non excusat_.” (Ignorance +> of those things which every one is bound to know, does not +> excuse.)—_1 Hale’s Pleas of the Crown_, 42. _Doctor and Student, +> Dialog. 2_, ch. 46. _Law Magazine_, (_London_,) vol. 27, p. 97. + +The sum of this reason is, that ignorance of the law excuses no one, +(who is of the age of discretion and is compos mentis,) because every +such person “_is bound to know the law_.” But this is giving no reason +at all for the doctrine, since saying that a man “is bound to know the +law,” is only saying, _in another form_, that “ignorance of the law does +not excuse him.” There is no difference at all in the two ideas. To say, +therefore, that “ignorance of the law excuses no one, _because_ every +one is bound to know the law,” is only equivalent to saying that +“ignorance of the law excuses no one, _because_ ignorance of the law +excuses no one.” It is merely reässerting the doctrine, without giving +any reason at all. + +And yet these reasons, which are really no reasons at all, are the only +ones, so far as I know, that have ever been offered for this absurd and +brutal doctrine. + +The idea suggested, that “the age of discretion” determines the guilt of +a person,—that there is a particular age, prior to which _all_ persons +alike should be held incapable of knowing _any_ crime, and subsequent to +which _all_ persons alike should be held capable of knowing _all_ +crimes,—is another of this most ridiculous nest of ideas. All mankind +acquire their knowledge of crimes, as they do of other things, +_gradually_. Some they learn at an early age; others not till a later +one. One individual acquires a knowledge of crimes, as he does of +arithmetic, at an earlier age than others do. And to apply the same +presumption to all, on the ground of age alone, is not only gross +injustice, but gross folly. A universal presumption might, with nearly +or quite as much reason, be founded upon weight, or height, as upon +age.[^103] + +This doctrine, that “ignorance of the law excuses no one,” is constantly +repeated in the form that “every one is bound to know the law.” The +doctrine is true in civil matters, especially in contracts, so far as +this: that no man, who has the _ordinary_ capacity to make reasonable +contracts, can escape the consequences of his own agreement, on the +ground that he did not know the law applicable to it. When a man makes a +contract, he gives the other party rights; and he must of necessity +judge for himself, and take his own risk, as to what those rights +are,—otherwise the contract would not be binding, and men could not +make contracts that would convey rights to each other. Besides, the +capacity to make reasonable contracts, _implies and includes_ a +capacity to form a reasonable judgment as to the law applicable to them. +But in _criminal_ matters, where the question is one of punishment, or +not; where no second party has acquired any right to have the crime +punished, unless it were committed with criminal intent, (but only to +have it compensated for by damages in a civil suit;) and when the +criminal intent is the only moral justification for the punishment, the +principle does not apply, and a man is bound to know the law _only as +well as he reasonably may_. The criminal law requires neither +impossibilities nor extraordinaries of any one. It requires only +thoughtfulness and a good conscience. It requires only that a man fairly +and properly use the judgment he possesses, and the means he has of +learning his duty. It requires of him only the same care to know his +duty in regard to the law, that he is morally bound to use in other +matters of equal importance. _And this care it does require of him._ Any +ignorance of the law, therefore, that is unnecessary, or that arises +from indifference or disregard of one’s duty, is no excuse. An accused +person, therefore, may be rightfully held responsible for such a +knowledge of the law as is common to men in general, having no greater +natural capacities than himself, and no greater opportunities for +learning the law. And he can rightfully be held to no greater knowledge +of the law than this. To hold him responsible for a greater knowledge of +the law than is common to mankind, when other things are equal, would be +gross injustice and cruelty. The mass of mankind can give but little of +their attention to acquiring a knowledge of the law. Their other duties +in life forbid it. Of course, they cannot investigate abstruse or +difficult questions. All that can rightfully be required of each of +them, then, is that he exercise such a candid and conscientious judgment +as it is common for mankind generally to exercise in such matters. If he +have done this, it would be monstrous to punish him criminally for his +errors; errors not of conscience, but only of judgment. It would also be +contrary to the first principles of a free government (that is, a +government formed by voluntary association) to punish men in such cases, +because it would be absurd to suppose that any man would voluntarily +assist to establish or support a government that would punish himself +for acts which he himself did not know to be crimes. But a man may +reasonably unite with his fellow-men to maintain a government to punish +those acts which he himself considers criminal, and may reasonably +acquiesce in his own liability to be punished for such acts. As those +are the only grounds on which any one can be supposed to render any +voluntary support to a government, it follows that a government formed +by voluntary association, and of course having no powers except such as +_all_ the associates have consented that it may have, can have no power +to punish a man for acts which he did not himself know to be criminal. + +The safety of society, which is the only object of the criminal law, +requires only that those acts _which are understood by mankind at large +to be intrinsically criminal_, should be punished as crimes. The +remaining few (if there are any) may safely be left to go unpunished. +Nor does the safety of society require that any individuals, other than +those who have sufficient mental capacity to understand that their acts +are criminal, should be criminally punished. All others may safely be +left to their liability, under the _civil_ law, to compensate for their +unintentional wrongs. + +The only real object of this absurd and atrocious doctrine, that +“ignorance of the law (that is, of crime) excuses no one,” and that +“every one is bound to know the _criminal_ law,” (that is, bound to know +what is a crime,) is to maintain an entirely arbitrary authority on the +part of the government, and to deny to the people all right to judge for +themselves what their own rights and liberties are. In other words, the +whole object of the doctrine is to deny to the people themselves all +right to judge what statutes and other acts of the government are +consistent or inconsistent with their own rights and liberties; and thus +to reduce the people to the condition of mere slaves to a despotic +power, such as the people themselves would never have voluntarily +established, and the justice of whose laws the people themselves cannot +understand. + +Under the true trial by jury all tyranny of this kind would be +abolished. A jury would not only judge what acts were really criminal, +but they would judge of the mental capacity of an accused person, and of +his opportunities for understanding the true character of his conduct. +In short, they would judge of his moral intent from all the +circumstances of the case, and acquit him, if they had any reasonable +doubt that he knew that he was committing a crime.[^104] + +[Footnote 103: This presumption, founded upon age alone, is as absurd in +civil matters as in criminal. What can be more entirely ludicrous than +the idea that all men (not manifestly imbecile) become mentally +competent to make all contracts whatsoever on the day they become +twenty-one years of age?—and that, previous to that day, no man becomes +competent to make any contract whatever, except for the present supply +of the most obvious wants of nature? In reason, a man’s _legal_ +competency to make _binding_ contracts, in any and every case whatever, +depends wholly upon his _mental_ capacity to make _reasonable_ contracts +in each particular case. It of course requires more capacity to make a +reasonable contract in some cases than in others. It requires, for +example, more capacity to make a reasonable contract in the purchase of +a large estate, than in the purchase of a pair of shoes. But the mental +capacity to make a reasonable contract, in any particular case, is, in +reason, the only legal criterion of the legal competency to make a +binding contract in that case. The age, whether more or less than +twenty-one years, is of no legal consequence whatever, except that it is +entitled to some consideration as _evidence of capacity_. + +It may be mentioned, in this connection, that the rules that prevail, +that every man is entitled to freedom from parental authority at +twenty-one years of age, and no one before that age, are of the same +class of absurdities with those that have been mentioned. The only +ground on which a parent is ever entitled to exercise authority over his +child, is that the child is incapable of taking reasonable care of +himself. The child would be entitled to his freedom from his birth, if +he were at that time capable of taking reasonable care of himself. Some +become capable of taking care of themselves at an earlier age than +others. And whenever any one becomes capable of taking reasonable care +of himself, and not until then, he is entitled to his freedom, be his +age more or less. + +These principles would prevail under the true trial by jury, the jury +being the judges of the capacity of every individual whose capacity +should be called in question.] + +[Footnote 104: In contrast to the doctrines of the text, it may be +proper to present more distinctly the doctrines that are maintained by +judges, and that prevail in courts of justice. + +Of course, no judge, either of the present day, or perhaps within the +last five hundred years, has admitted the right of a jury to judge of +the _justice_ of a law, or to hold any law invalid for its injustice. +Every judge asserts the power of the government to punish for acts that +are intrinsically innocent, and which therefore involve or evince no +criminal intent. To accommodate the administration of law to this +principle, all judges, so far as I am aware, hold it to be unnecessary +that an indictment should charge, or that a jury should find, that an +act was done with a criminal intent, except in those cases where the act +is _malum in se_,—criminal in itself. In all other cases, so far as I +am aware, they hold it sufficient that the indictment charge, and +consequently that the jury find, simply that the act was done “contrary +to the form of the statute in such case made and provided;” in other +words, contrary to the orders of the government. + +All these doctrines prevail universally among judges, and are, I think, +uniformly practised upon in courts of justice; and they plainly involve +the most absolute despotism on the part of the government. + +But there is still another doctrine that extensively, and perhaps most +generally, prevails in practice, although judges are not agreed in +regard to its soundness. It is this: that it is not even necessary that +the jury should see or know, _for themselves_, what the law _is_ that is +charged to have been violated; nor to see or know, _for themselves_, +that the act charged was in violation of any law whatever;—but that it +is sufficient that they be simply _told by the judge_ that any act +whatever, charged in an indictment, is in violation of law, and that +they are then bound blindly to receive the declaration as true, and +convict a man accordingly, if they find that he has done the act +charged. + +This doctrine is adopted by many among the most eminent judges, and the +reasons for it are thus given by Lord Mansfield: + +> “They (the jury) do not know, and are not presumed to know, the law. +> They are not sworn to decide the law;[^105] they are not required to +> do it.... The jury ought not to assume the jurisdiction of law. They +> do not know, and are not presumed to know, anything of the matter. +> They do not understand the language in which it is conceived, or the +> meaning of the terms. They have no rule to go by but their passions +> and wishes.”—_3 Term Rep._, 428, note. + +What is this but saying that the people, who are supposed to be +represented in juries, and who institute and support the government, (of +course for the protection of their own rights and liberties, _as they +understand them_, for plainly no other motive can be attributed to +them,) are really the slaves of a despotic power, whose arbitrary +commands even they are not supposed competent to understand, but for the +transgression of which they are nevertheless to be punished as +criminals? + +This is plainly the sum of the doctrine, because the jury are the peers +(equals) of the accused, and are therefore supposed to know the law as +well as he does, and as well as it is known by the people at large. If +_they_ (the jury) are not presumed to know the law, neither the accused +nor the people at large can be presumed to know it. Hence, it follows +that one principle of the _true_ trial by jury is, that no accused +person shall be held responsible for any other or greater knowledge of +the law than is common to his political equals, who will generally be +men of nearly similar condition in life. But the doctrine of Mansfield +is, that the body of the people, from whom jurors are taken, are +responsible to a law, _which it is agreed they cannot understand_. What +is this but despotism?—and not merely despotism, but insult and +oppression of the intensest kind? + +This doctrine of Mansfield is the doctrine of all who deny the right of +juries to judge of the law, although all may not choose to express it in +so blunt and unambiguous terms. But the doctrine evidently admits of no +other interpretation or defence.] + +[Footnote 105: This declaration of Mansfield, that juries in England +“are not sworn to decide the law” in criminal cases, is a plain +falsehood. They are sworn to try the whole case at issue between the +king and the prisoner, and that includes the law as well as the fact. +See _juror’s oath_, page 86.] diff --git a/edited/10.markdown b/edited/10.markdown new file mode 100644 index 0000000..7e81c43 --- /dev/null +++ b/edited/10.markdown @@ -0,0 +1,98 @@ +# MORAL CONSIDERATIONS FOR JURORS + + +The trial by jury must, if possible, be construed to be such that a man +can rightfully sit in a jury, and unite with his fellows in giving +judgment. But no man can rightfully do this, unless he hold in his own +hand alone a veto upon any judgment or sentence whatever to be rendered +by the jury against a defendant, which veto he must be permitted to use +according to his own discretion and conscience, and not bound to use +according to the dictation of either legislatures or judges. + +The prevalent idea, that a juror may, at the mere dictation of a +legislature or a judge, and without the concurrence of his own +conscience or understanding, declare a man “_guilty_,” and thus in +effect license the government to punish him; and that the legislature or +the judge, and not himself, has in that case all the moral +responsibility for the correctness of the principles on which the +judgment was rendered, is one of the many gross impostures by which it +could hardly have been supposed that any sane man could ever have been +deluded, but which governments have nevertheless succeeded in inducing +the people at large to receive and act upon. + +As a moral proposition, it is perfectly self-evident that, unless juries +have all the legal rights that have been claimed for them in the +preceding chapters,—that is, the rights of judging what the law is, +whether the law be a just one, what evidence is admissible, what weight +the evidence is entitled to, whether an act were done with a criminal +intent, and the right also to _limit_ the sentence, free of all +dictation from any quarter,—they have no _moral_ right to sit in the +trial at all, and cannot do so without making themselves accomplices in +any injustice that they may have reason to believe may result from +their verdict. It is absurd to say that they have no moral +responsibility for the use that may be made of their verdict by the +government, when they have reason to suppose it will be used for +purposes of injustice. + +It is, for instance, manifestly absurd to say that jurors have no moral +responsibility for the enforcement of an unjust law, when they consent +to render a verdict of _guilty_ for the transgression of it; which +verdict they know, or have good reason to believe, will be used by the +government as a justification for inflicting a penalty. + +It is absurd, also, to say that jurors have no moral responsibility for +a punishment inflicted upon a man _against law_, when, at the dictation +of a judge as to what the law is, they have consented to render a +verdict against their own opinions of the law. + +It is absurd, too, to say that jurors have no moral responsibility for +the conviction and punishment of an innocent man, when they consent to +render a verdict against him on the strength of evidence, or laws of +evidence, dictated to them by the court, if any evidence or laws of +evidence have been excluded, which _they_ (the jurors) think ought to +have been admitted in his defence. + +It is absurd to say that jurors have no moral responsibility for +rendering a verdict of “_guilty_” against a man, for an act which he did +not know to be a crime, and in the commission of which, therefore, he +could have had no criminal intent, in obedience to the instructions of +courts that “ignorance of the law (that is, of crime) excuses no one.” + +It is absurd, also, to say that jurors have no moral responsibility for +any cruel or unreasonable _sentence_ that may be inflicted even upon a +_guilty_ man, when they consent to render a verdict which they have +reason to believe will be used by the government as a justification for +the infliction of such sentence. + +The consequence is, that jurors must have the whole case in their hands, +and judge of law, evidence, and sentence, or they incur the moral +responsibility of accomplices in any injustice which they have reason to +believe will be done by the government on the authority of their +verdict. + +The same principles apply to civil cases as to criminal. If a jury +consent, at the dictation of the court, as to either law or evidence, to +render a verdict, on the strength of which they have reason to believe +that a man’s property will be taken from him and given to another, +against their own notions of justice, they make themselves morally +responsible for the wrong. + +Every man, therefore, ought to refuse to sit in a jury, and to take the +oath of a juror, unless the form of the oath be such as to allow him to +use his own judgment, on every part of the case, free of all dictation +whatsoever, and to hold in his own hand a veto upon any verdict that can +be rendered against a defendant, and any sentence that can be inflicted +upon him, even if he be guilty. + +Of course, no man can rightfully take an oath as juror, to try a case +“according to law,” (if by law be meant anything other than his own +ideas of justice,) nor “according to the law and the evidence, _as they +shall be given him_.” Nor can he rightfully take an oath even to try a +case “_according to the evidence_,” because in all cases he may have +good reason to believe that a party has been unable to produce all the +evidence legitimately entitled to be received. The only oath which it +would seem that a man can rightfully take as juror, in either a civil or +criminal case, is, that he “will try the case _according to his +conscience_.” Of course, the form may admit of variation, but this +should be the substance. Such, we have seen, were the ancient common law +oaths. diff --git a/edited/11.markdown b/edited/11.markdown new file mode 100644 index 0000000..2f6c31d --- /dev/null +++ b/edited/11.markdown @@ -0,0 +1,627 @@ +# AUTHORITY OF MAGNA CARTA + + +Probably no political compact between king and people was ever entered +into in a manner to settle more authoritatively the fundamental law of a +nation, than was Magna Carta. Probably no people were ever more united +and resolute in demanding from their king a definite and unambiguous +acknowledgment of their rights and liberties, than were the English at +that time. Probably no king was ever more completely stripped of all +power to maintain his throne, and at the same time resist the demands of +his people, than was John on the 15th day of June, 1215. Probably no +king ever consented, more deliberately or explicitly, to hold his throne +subject to specific and enumerated limitations upon his power, than did +John when he put his seal to the Great Charter of the Liberties of +England. And if any political compact between king and people was ever +valid to settle the liberties of the people, or to limit the power of +the crown, that compact is now to be found in Magna Carta. If, +therefore, the constitutional authority of Magna Carta had rested solely +upon the compact of John with his people, that authority would have been +entitled to stand forever as the supreme law of the land, unless revoked +by the will of the people themselves. + +But the authority of Magna Carta does not rest alone upon the compact +with _John_. When, in the next year, (1216,) his son, Henry III., came +to the throne, the charter was ratified by him, and again in 1217, and +again in 1225, in substantially the same form, and especially without +allowing any new powers, legislative, judicial, or executive, to the +king or his judges, and without detracting in the least from the powers +of the jury. And from the latter date to this, the charter has remained +unchanged. + +In the course of two hundred years the charter was confirmed by Henry +and his successors more than thirty times. And although they were guilty +of numerous and almost continual breaches of it, and were constantly +seeking to evade it, yet such were the spirit, vigilance and courage of +the nation, that the kings held their thrones only on the condition of +their renewed and solemn promises of observance. And it was not until +1429, (as will be more fully shown hereafter,) when a truce between +themselves, and a formal combination against the mass of the people, had +been entered into, by the king, the nobility, and the “_forty shilling +freeholders_,” (a class whom Mackintosh designates as “_a few +freeholders then accounted wealthy_,”[^106]) by the exclusion of all +others than such freeholders from all voice in the election of knights +to represent the counties in the House of Commons, that a repetition of +these confirmations of Magna Carta ceased to be demanded and +obtained.[^107] + +The terms and the formalities of some of these “confirmations” make them +worthy of insertion at length. + +Hume thus describes one which took place in the 38th year of Henry III. +(1253): + +> “But as they (the barons) had experienced his (the king’s) frequent +> breach of promise, they required that he should ratify the Great +> Charter in a manner still more authentic and solemn than any which he +> had hitherto employed. All the prelates and abbots were assembled. +> They held burning tapers in their hands. The Great Charter was read +> before them. They denounced the sentence of excommunication against +> every one who should thenceforth violate that fundamental law. They +> threw their tapers on the ground, and exclaimed, _May the soul of +> every one who incurs this sentence so stink and corrupt in hell!_ The +> king bore a part in this ceremony, and subjoined, ‘So help me God! I +> will keep all these articles inviolate, as I am a man, as I am a +> Christian, as I am a knight, and as I am a king crowned and +> anointed.’”—_Hume_, ch. 12. See also _Blackstone’s Introd. to the +> Charters. Black. Law Tracts_, Oxford ed., p. 332. _Mackintosh’s Hist. +> of Eng._, ch. 3. _Lardner’s Cab. Cyc._, vol. 45, p. 233-4. + +The following is the form of “the sentence of excommunication” referred +to by Hume: + +> “_The Sentence of Curse, Given by the Bishops, against the Breakers +> of the Charters._ + +> “The year of our Lord a thousand two hundred and fifty-three, the +> third day of May, in the great Hall of the King at Westminster, _in +> the presence, and by the assent, of the Lord Henry, by the Grace of +> God King of England_, and the Lords Richard, Earl of Cornwall, his +> brother, Roger (Bigot) Earl of Norfolk and Suffolk, marshal of +> England, Humphrey, Earl of Hereford, Henry, Earl of Oxford, John, +> Earl of Warwick, and other estates of the Realm of England: We, +> Boniface, by the mercy of God Archbishop of Canterbury, Primate of +> all England, F. of London, H. of Ely, S. of Worcester, E. of Lincoln, +> W. of Norwich, P. of Hereford, W. of Salisbury, W. of Durham, R. of +> Exeter, M. of Carlisle, W. of Bath, E. of Rochester, T. of Saint +> David’s, Bishops, apparelled in Pontificals, with tapers burning, +> against the breakers of the Church’s Liberties, and of the Liberties +> or free customs of the Realm of England, and especially of those +> which are contained in the Charter of the Common Liberties of the +> Realm, and the Charter of the Forest, have solemnly denounced the +> sentence of Excommunication in this form. By the authority of +> Almighty God, the Father, the Son, and the Holy Ghost, and of the +> glorious Mother of God, and perpetual Virgin Mary, of the blessed +> Apostles Peter and Paul, and of all apostles, of the blessed Thomas, +> Archbishop and Martyr, and of all martyrs, of blessed Edward of +> England, and of all Confessors and virgins, and of all the saints of +> heaven: We excommunicate, accurse, and from the thresholds +> (liminibus) of our Holy Mother the Church, We sequester, all those +> that hereafter willingly and maliciously deprive or spoil the Church +> of her right: And all those that by any craft or wiliness do violate, +> break, diminish, or change the Church’s Liberties, or the ancient +> approved customs of the Realm, and especially the Liberties and free +> Customs contained in the Charters of the Common Liberties, and of the +> Forest, conceded by our Lord the King, to Archbishops, Bishops, and +> other Prelates of England; and likewise to the Earls, Barons, +> Knights, and other Freeholders of the Realm: And all that secretly, +> or openly, by deed, word, or counsel, _do make statutes, or observe +> them being made_, and that bring in Customs, or keep them when they +> be brought in, against the said Liberties, or any of them, the +> Writers and Counsellors of said statutes, and the Executors of them, +> and all those that shall presume to judge according to them. All and +> every which persons before mentioned, that wittingly shall commit +> anything of the premises, let them well know that they incur the +> aforesaid sentence, _ipso facto_, (i.e., upon the deed being done.) +> And those that ignorantly do so, and be admonished, except they +> reform themselves within fifteen days after the time of the +> admonition, and make full satisfaction for that they have done, at +> the will of the ordinary, shall be from that time forth included in +> the same sentence. And with the same sentence we burden all those +> that presume to perturb the peace of our sovereign Lord the King, and +> of the Realm. To the perpetual memory of which thing, We, the +> aforesaid Prelates, have put our seals to these presents.”—_Statutes +> of the Realm_, vol. 1, p. 6. _Ruffhead’s Statutes_, vol. 1, p. 20. + +One of the Confirmations of the Charters, by Edward I., was by statute, +in the 25th year of his reign, (1297,) in the following terms. The +statute is usually entitled “_Confirmatio Cartarum_,” (Confirmation of +the Charters.) + +> _Ch. 1._ “Edward, by the Grace of God, King of England, Lord of +> Ireland, and Duke of Guyan, To all those that these presents shall +> hear or see, Greeting. Know ye, that We, to the honor of God, and of +> Holy Church, and to the profit of our Realm, have granted, for us and +> our heirs, that the Charter of Liberties, and the Charter of the +> Forest, which were made by common assent of all the Realm, in the +> time of King Henry our Father, shall be kept in every point without +> breach. And we will that the same Charters shall be sent under our +> seal, as well to our justices of the Forest, as to others, and to all +> Sheriffs of shires, and to all our other officers, and to all our +> cities throughout the Realm, together with our writs, in the which it +> shall be contained, that they cause the aforesaid Charters to be +> published, and to declare to the people that We have confirmed them +> at all points; and to our Justices, Sheriffs, Mayors, and other +> ministers, which under us have the Laws of our Land to guide, that +> they allow the same Charters, in all their points, in pleas before +> them, and in judgment; that is, to wit, the Great Charter as the +> Common Law, and the Charter of the Forest for the wealth of our +> Realm. + +> _Ch. 2._ “And we will that if any judgment be given from henceforth +> contrary to the points of the charters aforesaid by the justices, or +> by any others our ministers that hold plea before them, against the +> points of the Charters, it shall be undone and holden for naught. + +> _Ch. 3._ “And we will, that the same Charters shall be sent, under +> our seal, to Cathedral Churches throughout our Realm, there to +> remain, and shall be read before the people two times in the year. + +> _Ch. 4._ “And that all Archbishops and Bishops shall pronounce the +> sentence of excommunication against all those that by word, deed, or +> counsel, do contrary to the foresaid charters, or that in any point +> break or undo them. And that the said Curses be twice a year +> denounced and published by the prelates aforesaid. And if the same +> prelates, or any of them, be remiss in the denunciation of the said +> sentences, the Archbishops of Canterbury and York, for the time +> being, shall compel and distrain them to make the denunciation in the +> form aforesaid.”—_St. 25 Edward I._, (1297.) _Statutes of the +> Realm_, vol. 1, p. 123. + +It is unnecessary to repeat the terms of the various confirmations, most +of which were less formal than those that have been given, though of +course equally authoritative. Most of them are brief, and in the form of +a simple statute, or promise, to the effect that “The Great Charter, and +the Charter of the Forest, shall be firmly kept and maintained in all +points.” They are to be found printed with the other statutes of the +realm. One of them, after having “again granted, renewed and confirmed” +the charters, requires as follows: + +> “That the Charters be delivered to every sheriff of England under the +> king’s seal, to be read four times in the year before the people in +> the full county,” (that is, at the county court,) “that is, to wit, +> the next county (court) after the feast of Saint Michael, and the +> next county (court) after Christmas, and at the next county (court) +> after Easter, and at the next county (court) after the feast of Saint +> John.”—_28 Edward I._, ch. 1, (1300.) + +> Lingard says, “The Charter was ratified four times by Henry III., +> twice by Edward I., fifteen times by Edward III., seven times by +> Richard II., six times by Henry IV., and once by Henry V.;” making +> thirty-five times in all.—_3 Lingard_, 50, note, Philad. ed. + +Coke says Magna Carta was confirmed thirty-two times.—Preface_ to_ 2 +_Inst_., p. 6. + +> Lingard calls these “thirty-five successive ratifications” of the +> charter, “a sufficient proof how much its provisions were abhorred +> by the sovereign, and how highly they were prized by the nation.”—_3 +> Lingard_, 50. + +> Mackintosh says, “For almost five centuries (that is, until 1688) it +> (Magna Carta) was appealed to as the decisive authority on behalf of +> the people, though commonly so far only as the necessities of each +> case demanded.”—_Mackintosh’s Hist. of Eng._ ch. 3. _45 Lardner’s +> Cab. Cyc._, 221. + +Coke, who has labored so hard to overthrow the most vital principles of +Magna Carta, and who, therefore, ought to be considered good authority +when he speaks in its favor,[^108] says: + +> “It is called Magna Carta, not that it is great in quantity, for +> there be many voluminous charters commonly passed, specially in these +> later times, longer than this is; nor comparatively in respect that +> it is greater than _Charta de Foresta_, but in respect of the great +> importance and weightiness of the matter, as hereafter shall appear; +> and likewise for the same cause _Charta de Foresta_; and both of them +> are called _Magnæ Chartæ Libertatum Angliæ_, (The Great Charters of +> the Liberties of England.) ... + +> “And it is also called _Charta Libertatum regni_, (Charter of the +> Liberties of the kingdom;) and upon great reason it is so called of +> the effect, _quia liberos facit_, (because it makes men free.) +> Sometime for the same cause (it is called) _communis libertas_, +> (common liberty,) and _le chartre des franchises_, (the charter of +> franchises.) ... + +> “It was for the most part declaratory of the principal grounds of the +> fundamental laws of England, and for the residue it is additional to +> supply some defects of the common law.... + +> “Also, by the said act of 25 Edward I., (called _Confirmatio +> Chartarum_,) it is adjudged in parliament that the Great Charter and +> the Charter of the Forest shall be taken as the common law.... + +> “They (Magna Carta and Carta de Foresta) were, for the most part, but +> declarations of the ancient common laws of England, to the +> observation and keeping whereof, the king was bound and sworn. + +> “After the making of Magna Charta, and Charta de Foresta, divers +> learned men in the laws, that I may use the words of the record, kept +> schools of the law in the city of London, and taught such as resorted +> to them the laws of the realm, taking their foundation of Magna +> Charta and Charta de Foresta. + +> “And the said two charters have been confirmed, established, and +> commanded to be put in execution by thirty-two several acts of +> parliament in all. + +> “This appeareth partly by that which hath been said, for that it hath +> so often been confirmed by the wise providence of so many acts of +> parliament. + +> “And albeit judgments in the king’s courts are of high regard in law, +> and _judicia_ (judgments) are accounted as _jurisdicta_, (the speech +> of the law itself,) yet it is provided by act of parliament, that if +> any judgment be given contrary to any of the points of the Great +> Charter and Charta de Foresta, by the justices, or by any other of +> the king’s ministers, &c., it shall be undone, and holden for naught. + +> “And that both the said charters shall be sent under the great seal +> to all cathedral churches throughout the realm, there to remain, and +> shall be read to the people twice every year. + +> “The highest and most binding laws are the statutes which are +> established by parliament; and by authority of that highest court it +> is enacted (only to show their tender care of Magna Carta and Carta +> de Foresta) that if any statute be made contrary to the Great +> Charter, or the Charter of the Forest, that shall be holden for none; +> by which words all former statutes made against either of those +> charters are now repealed; and the nobles and great officers were to +> be sworn to the observation of Magna Charta and Charta de Foresta. + +> “_Magna fuit quondam magnæ reverentia chartæ._” (Great was formerly +> the reverence for Magna Carta.)—_Coke’s Proem to 2 Inst._, p. 1 to +> 7. + +Coke also says, “All pretence of prerogative against Magna Charta is +taken away.”—_2 Inst._, 36. + +He also says, “That after this parliament (_52 Henry_ III., in 1267) +neither Magna Carta nor Carta de Foresta was ever attempted to be +impugned or questioned.”—_2 Inst._, 102.[^109] + +To give all the evidence of the authority of Magna Carta, it would be +necessary to give the constitutional history of England since the year +1215. This history would show that Magna Carta, although continually +violated and evaded, was still acknowledged as law by the government, +and was held up by the people as the great standard and proof of their +rights and liberties. It would show also that the judicial tribunals, +_whenever it suited their purposes to do so_, were in the habit of +referring to Magna Carta as authority, in the same manner, and with the +same real or pretended veneration, with which American courts now refer +to the constitution of the United States, or the constitutions of the +states. And, what is equally to the point, it would show that these same +tribunals, the mere tools of kings and parliaments, would resort to the +same artifices of assumption, _precedent_, construction, and false +interpretation, to evade the requirements of Magna Carta, and to +emasculate it of all its power for the preservation of liberty, that are +resorted to by American courts to accomplish the same work on our +American constitutions. + +I take it for granted, therefore, that if the authority of Magna Carta +had rested simply upon its character as a _compact_ between the king and +the people, it would have been forever binding upon the king, (that is, +upon the government, for the king was the government,) in his +legislative, judicial, and executive character; and that there was no +_constitutional_ possibility of his escaping from its restraints, unless +the people themselves should freely discharge him from them. + +But the authority of Magna Carta does not rest, either wholly or mainly, +upon its character as a compact. For centuries before the charter was +granted, its main principles constituted “the Law of the Land,”—the +fundamental and constitutional law of the realm, which the kings were +sworn to maintain. And the principal benefit of the charter was, that it +contained a _written_ description and acknowledgment, by the king +himself, of what the constitutional law of the kingdom was, which his +coronation oath bound him to observe. Previous to Magna Carta, this +constitutional law rested mainly in precedents, customs, and the +memories of the people. And if the king could but make one innovation +upon this law, without arousing resistance, and being compelled to +retreat from his usurpation, he would cite that innovation as a +precedent for another act of the same kind; next, assert a custom; and, +finally, raise a controversy as to what the Law of the Land really was. +The great object of the barons and people, in demanding from the king a +written description and acknowledgment of the Law of the Land, was to +put an end to all disputes of this kind, and to put it out of the power +of the king to plead any misunderstanding of the constitutional law of +the kingdom. And the charter, no doubt, accomplished very much in this +way. After Magna Carta, it required much more audacity, cunning, or +strength, on the part of the king, than it had before, to invade the +people’s liberties with impunity. Still, Magna Carta, like all other +written constitutions, proved inadequate to the full accomplishment of +its purpose; for when did a parchment ever have power adequately to +restrain a government, that had either cunning to evade its +requirements, or strength to overcome those who attempted its defence? +The work of usurpation, therefore, though seriously checked, still went +on, to a great extent, after Magna Carta. Innovations upon the Law of +the Land are still made by the government. One innovation was cited as a +precedent; precedents made customs; and customs became laws, so far as +practice was concerned; until the government, composed of the king, the +high functionaries of the church, the nobility, a House of Commons +representing the “forty shilling freeholders,” and a dependent and +servile judiciary, all acting in conspiracy against the mass of the +people, became practically absolute, as it is at this day. + +As proof that Magna Carta embraced little else than what was previously +recognized as the common law, or Law of the Land, I repeat some +authorities that have been already cited. + +> Crabbe says, “It is admitted on all hands that it (Magna Carta) +> contains nothing but what was confirmatory of the common law and the +> ancient usages of the realm; and is, properly speaking, only an +> enlargement of the charter of Henry I. and his +> successors.”—_Crabbe’s Hist. of the Eng. Law_, p. 127. + +> Blackstone says, “It is agreed by all our historians that the Great +> Charter of King John was, for the most part, compiled from the +> ancient customs of the realm, or the laws of Edward the Confessor; by +> which they mean the old common law which was established under our +> Saxon princes.”—_Blackstone’s Introd. to the Charters._ See +> _Blackstone’s Law Tracts_, Oxford ed., p. 289. + +> Coke says, “The common law is the most general and ancient law of +> the realm.... The common law appeareth in the statute of _Magna +> Carta_, and other ancient statutes, (which for the most part are +> affirmations of the common law,) in the original writs, in judicial +> records, and in our books of terms and years.”—_1 Inst._, 115 b. + +> Coke also says, “It (Magna Carta) was for the most part declaratory +> of the principal grounds of the fundamental laws of England, and for +> the residue it was additional to supply some defects of the common +> law.... They (Magna Carta and Carta de Foresta) were, for the most +> part, but declarations of the ancient common laws of England, _to the +> observation and keeping whereof the king was bound and +> sworn_.”—_Preface to 2 Inst._, p. 3 and 5. + +> Hume says, “We may now, from the tenor of this charter, (Magna +> Carta,) conjecture what those laws were of King Edward, (the +> Confessor,) which the English nation during so many generations still +> desired, with such an obstinate perseverance, to have recalled and +> established. They were chiefly these latter articles of Magna Carta; +> and the barons who, at the beginning of these commotions, demanded +> the revival of the Saxon laws, undoubtedly thought that they had +> sufficiently satisfied the people, by procuring them this concession, +> which comprehended the principal objects to which they had so long +> aspired.”—_Hume_, ch. 11. + +Edward the First confessed that the Great Charter was substantially +identical with the common law, as far as it went, when he commanded his +justices to allow “the Great Charter as the Common Law,” “in pleas +before them, and in judgment,” as has been already cited in this +chapter.—_25 Edward_ I., ch. 1, (1297.) + +In conclusion of this chapter, it may be safely asserted that the +veneration, attachment, and pride, which the English nation, for more +than six centuries, have felt towards Magna Carta, are in their nature +among the most irrefragable of all proofs that it was the fundamental +law of the land, and constitutionally binding upon the government; for, +otherwise, it would have been, in their eyes, an unimportant and +worthless thing. What those sentiments were I will use the words of +others to describe,—the words, too, of men, who, like all modern +authors who have written on the same topic, had utterly inadequate ideas +of the true character of the instrument on which they lavished their +eulogiums. + +Hume, speaking of the Great Charter and the Charter of the Forest, as +they were confirmed by Henry III., in 1217, says: + +> “Thus these famous charters were brought nearly to the shape in which +> they have ever since stood; and they were, during many generations, +> the peculiar favorites of the English nation, and esteemed the most +> sacred rampart to national liberty and independence. As they secured +> the rights of all orders of men, they were anxiously defended by all, +> and became the basis, in a manner, of the English monarchy, and a +> kind of original contract, which both limited the authority of the +> king and ensured the conditional allegiance of his subjects. Though +> often violated, they were still claimed by the nobility and people; +> and, as no precedents were supposed valid that infringed them, they +> rather acquired than lost authority, from the frequent attempts made +> against them in several ages, by regal and arbitrary power.”—_Hume_, +> ch. 12. + +> Mackintosh says, “It was understood by the simplest of the unlettered +> age for whom it was intended. It was remembered by them.... For +> almost five centuries it was appealed to as the decisive authority on +> behalf of the people.... To have produced it, to have preserved it, +> to have matured it, constitute the immortal claim of England on the +> esteem of mankind. Her Bacons and Shakspeares, her Miltons and +> Newtons, with all the truth which they have revealed, and all the +> generous virtues which they have inspired, are of inferior value when +> compared with the subjection of men and their rulers to the +> principles of justice; if, indeed, it be not more true that these +> mighty spirits could not have been formed except under equal laws, +> nor roused to full activity without the influence of that spirit +> which the Great Charter breathed over their +> forefathers.”—_Mackintosh’s Hist. of Eng._, ch. 3.[^110] + +Of the Great Charter, the trial by jury is the vital part, and the only +part that places the liberties of the people in their own keeping. Of +this Blackstone says: + +> “The trial by jury, or the country, _per patriam_, is also that trial +> by the peers of every Englishman, which, as the grand bulwark of his +> liberties, is secured to him by the Great Charter; _nullus liber homo +> capiatur, vel imprisonetur, aut exuletur, aut aliquo modo destruatur, +> nisi per legale judicium parium suorum, vel per legem terrae...._ + +> The liberties of England cannot but subsist so long as this palladium +> remains sacred and inviolate, not only from all open attacks, which +> none will be so hardy as to make, but also from all secret +> machinations which may sap and undermine it.”[^111] + +> “The trial by jury ever has been, and I trust ever will be, looked +> upon as the glory of the English law.... It is the most transcendent +> privilege which any subject can enjoy or wish for, that he cannot be +> affected in his property, his liberty, or his person, but by the +> unanimous consent of twelve of his neighbors and equals.”[^112] + +> Hume calls the trial by jury “An institution admirable in itself, and +> the best calculated for the preservation of liberty and the +> administration of justice, that ever was devised by the wit of +> man.”[^113] + +An old book, called “English Liberties,” says: + +> “English Parliaments have all along been most zealous for preserving +> this great Jewel of Liberty, trials by juries having no less than +> fifty-eight several times, since the Norman Conquest, been +> established and confirmed by the legislative power, no one privilege +> besides having been ever so often remembered in parliament.”[^114] + +[Footnote 106: _Mackintosh’s Hist. of Eng._, ch. 3. _45 Lardner’s Cab. +Cyc._, 354.] + +[Footnote 107: “_Forty shilling freeholders_” were those “people +dwelling and resident in the same counties, whereof every one of them +shall have free land or tenement to the value of forty shillings by the +year at the least above all charges.” By statute _8 Henry_ 6, ch. 7, +(1429,) these freeholders only were allowed to vote for members of +Parliament from the _counties_.] + +[Footnote 108: He probably speaks in its favor only to blind the eyes of +the people to the frauds he has attempted upon its true meaning.] + +[Footnote 109: It will be noticed that Coke calls these confirmations of +the charter “acts of parliament,” instead of acts of the king alone. +This needs explanation. + +It was one of Coke’s ridiculous pretences, that laws anciently enacted +by the king, at the request, or with the consent, or by the advice, of +his parliament, was “an act of parliament,” instead of the act of the +king. And in the extracts cited, he carries this idea so far as to +pretend that the various confirmations of the Great Charter were “acts +of parliament,” instead of the acts of the kings. He might as well have +pretended that the original grant of the Charter was an “act of +parliament;” because it was not only granted at the request, and with +the consent, and by the advice, but on the compulsion even, of those who +commonly constituted his parliaments. Yet this did not make the grant of +the charter “an act of parliament.” It was simply an act of the king. + +The object of Coke, in this pretence, was to furnish some color for the +palpable falsehood that the legislative authority, which parliament was +trying to assume in his own day, and which it finally succeeded in +obtaining, had a precedent in the ancient constitution of the kingdom. + +There would be as much reason in saying that, because the ancient kings +were in the habit of passing laws in special answer to the _petitions_ +of their subjects, therefore those _petitioners_ were a part of the +legislative power of the kingdom. + +One great objection to this argument of Coke, for the legislative +authority of the ancient parliaments, is that a very large—probably +much the larger—number of legislative acts were done _without_ the +advice, consent, request, or even presence, of a parliament. Not only +were many formal statutes passed without any mention of the consent or +advice of parliament, but a simple order of the king in council, or a +simple proclamation, writ, or letter under seal, issued by his command, +had the same force as what Coke calls “an act of parliament.” And this +practice continued, to a considerable extent at least, down to Coke’s +own time. + +The kings were always in the habit of consulting their parliaments, more +or less, in regard to matters of legislation,—not because their consent +was constitutionally necessary, but in order to make influence in favor +of their laws, and thus induce the people to observe them, and the +juries to enforce them. + +The general duties of the ancient parliaments were not legislative, but +judicial, as will be shown more fully hereafter. The _people_ were not +represented in the parliaments at the time of Magna Carta, but only the +archbishops, bishops, earls, barons, and knights; so that little or +nothing would have been gained for liberty by Coke’s idea that +parliament had a legislative power. He would only have substituted an +aristocracy for a king. Even after the Commons were represented in +parliament, they for some centuries appeared only as _petitioners_, +except in the matter of taxation, when their _consent_ was asked. And +almost the only source of their influence on legislation was this: that +they would sometimes refuse their consent to the taxation, unless the +king would pass such laws as they petitioned for; or, as would seem to +have been much more frequently the case, unless he would abolish such +laws and practices as they remonstrated against. + +The _influence_ or power of parliament, and especially of the Commons, +in the general legislation of the country, was a thing of slow growth, +having its origin in a device of the king to get money contrary to law, +(as will be seen in the next volume,) and not at all a part of the +constitution of the kingdom, nor having its foundation in the consent of +the people. The power, _as at present exercised_, was not fully +established until 1688, (near five hundred years after Magna Carta,) +when the House of Commons (falsely so called) had acquired such +influence as the representative, _not of the people, but of the wealth, +of the nation_, that they compelled the king to discard the oath fixed +by the constitution of the kingdom; (which oath has been already given +in a former chapter,(page 101) and was, in substance, to preserve and +execute the Common Law, the Law of the Land,—or, in the words of the +oath, “_the just laws and customs which the common people had chosen_;”) +and to swear that he would “govern the people of this kingdom of +England, and the dominions thereto belonging, _according to the statutes +in parliament agreed on_, and the laws and customs of the same.”[^115] + +The passage and enforcement of this statute, and the assumption of this +oath by the king, were plain violations of the English constitution, +inasmuch as they abolished, so far as such an oath could abolish, the +legislative power of the king, and also “those just laws and customs +which the common people (through their juries) had chosen,” and +substituted the will of parliament in their stead. + +Coke was a great advocate for the legislative power of parliament, as a +means of restraining the power of the king. As he denied all power to +_juries_ to decide upon the obligation of laws, and as he held that the +legislative power was “_so transcendent and absolute as (that) it cannot +be confined, either for causes or persons, within any bounds_,”[^116] he +was perhaps honest in holding that it was safer to trust this terrific +power in the hands of parliament, than in the hands of the king. His +error consisted in holding that either the king or parliament had any +such power, or that they had any power at all to pass laws that should +be binding upon a jury. + +These declarations of Coke, that the charter was confirmed by thirty-two +“acts of parliament,” have a mischievous bearing in another respect. +They tend to weaken the authority of the charter, by conveying the +impression that the charter itself might be _abolished_ by “act of +parliament.” Coke himself admits that it could not be revoked or +rescinded by the _king_; for he says, “All pretence of prerogative +against Magna Carta is taken away.” (_2 Inst._, 36.) + +He knew perfectly well, and the whole English nation knew, that the +_king_ could not lawfully infringe Magna Carta. Magna Carta, therefore, +made it impossible that absolute power could ever be practically +established in England, _in the hands of the king_. Hence, as Coke was +an advocate for absolute power,—that is, for a legislative power “so +transcendent and absolute as (that) it cannot be confined, either for +causes or persons, within any bounds,”—there was no alternative for him +but to vest this absolute power in parliament. Had he not vested it in +parliament, he would have been obliged to abjure it altogether, and to +confess that the people, _through their juries_, had the right to judge +of the obligation of all legislation whatsoever; in other words, that +they had the right to confine the government within the limits of “those +just laws and customs which the common people (acting as jurors) had +chosen.” True to his instincts, as a judge, and as a tyrant, he assumed +that this absolute power was vested in the hands of parliament. + +But the truth was that, as by the English constitution parliament had no +authority at all for _general_ legislation, it could no more confirm, +than it could abolish, Magna Carta. + +These thirty-two confirmations of Magna Carta, which Coke speaks of as +“acts of parliament,” were merely acts of the king. The parliaments, +indeed, by refusing to grant him money, except on that condition, and +otherwise, had contributed to oblige him to make the confirmations; just +as they had helped to oblige him by arms to grant the charter in the +first place. But the confirmations themselves were nevertheless +constitutionally, as well as formally, the acts of the king alone.] + +[Footnote 110: Under the head of “_John._”] + +[Footnote 111: _4 Blackstone_, 349-50.] + +[Footnote 112: _3 Blackstone_, 379.] + +[Footnote 113: _Hume_, ch. 2.] + +[Footnote 114: Page 203, 5th edition, 1721.] + +[Footnote 115: St. 1 _William and Mary_, ch. 6, (1688.)] + +[Footnote 116: 4 _Inst._, 36.] diff --git a/edited/12.markdown b/edited/12.markdown new file mode 100644 index 0000000..148d287 --- /dev/null +++ b/edited/12.markdown @@ -0,0 +1,568 @@ +# LIMITATIONS IMPOSED UPON THE MAJORITY BY THE TRIAL BY JURY + + +The principal objection, that will be made to the doctrine of this +essay, is, that under it, a jury would paralyze the power of the +majority, and veto all legislation that was not in accordance with the +will of the whole, or nearly the whole, people. + +The answer to this objection is, that the limitation, which would be +thus imposed upon the legislative power, (whether that power be vested +in the majority, or minority, of the people,) is the crowning merit of +the trial by jury. It has other merits; but, though important in +themselves, they are utterly insignificant and worthless in comparison +with this. + +It is this power of vetoing all partial and oppressive legislation, and +of restricting the government to the maintenance of such laws as the +_whole_, or substantially the whole, people _are agreed in_, that makes +the trial by jury “the palladium of liberty.” Without this power it +would never have deserved that name. + +The will, or the pretended will, of the majority, is the last lurking +place of tyranny at the present day. The dogma, that certain individuals +and families have a divine appointment to govern the rest of mankind, is +fast giving place to the one that the larger number have a right to +govern the smaller; a dogma, which may, or may not, be less oppressive +in its practical operation, but which certainly is no less false or +tyrannical in principle, than the one it is so rapidly supplanting. +Obviously there is nothing in the nature of majorities, that insures +justice at their hands. They have the same passions as minorities, and +they have no qualities whatever that should be expected to prevent them +from practising the same tyranny as minorities, if they think it will +be for their interest to do so. + +There is no particle of truth in the notion that the majority have a +_right_ to rule, or to exercise arbitrary power over, the minority, +simply because the former are more numerous than the latter. Two men +have no more natural right to rule one, than one has to rule two. Any +single man, or any body of men, many or few, have a natural right to +maintain justice for themselves, and for any others who may need their +assistance, against the injustice of any and all other men, without +regard to their numbers; and majorities have no right to do any more +than this. The relative numbers of the opposing parties have nothing to +do with the question of right. And no more tyrannical principle was ever +avowed, than that the will of the majority ought to have the force of +law, without regard to its justice; or, what is the same thing, that the +will of the majority ought always to be presumed to be in accordance +with justice. Such a doctrine is only another form of the doctrine that +might makes right. + +When _two_ men meet _one_ upon the highway, or in the wilderness, have +they a right to dispose of his life, liberty, or property at their +pleasure, simply because they are the more numerous party? Or is he +bound to submit to lose his life, liberty, or property, if they demand +it, merely because he is the less numerous party? Or, because they are +more numerous than he, is he bound to presume that they are governed +only by superior wisdom, and the principles of justice, and by no +selfish passion that can lead them to do him a wrong? Yet this is the +principle, which it is claimed should govern men in all their civil +relations to each other. Mankind fall in company with each other on the +highway or in the wilderness of life, and it is claimed that the more +numerous party, simply by virtue of their superior numbers, have the +right arbitrarily to dispose of the life, liberty, and property of the +minority; and that the minority are bound, by reason of their inferior +numbers, to practise abject submission, and consent to hold their +natural rights,—any, all, or none, as the case may be,—at the mere +will and pleasure of the majority; as if all a man’s natural rights +expired, or were suspended by the operation of a paramount law, the +moment he came into the presence of superior numbers. + +If such be the true nature of the relations men hold to each other in +this world, it puts an end to all such things as crimes, unless they be +perpetrated upon those who are equal or superior, in number, to the +actors. All acts committed against persons _inferior_ in number to the +aggressors, become but the exercise of rightful authority. And +consistency with their own principles requires that all governments, +founded on the will of the majority, should recognize this plea as a +sufficient justification for all crimes whatsoever. + +If it be said that the majority should be allowed to rule, not because +they are stronger than the minority, but because their superior numbers +furnish a _probability_ that they are in the right; one answer is, that +the lives, liberties, and properties of men are too valuable to them, +and the natural presumptions are too strong in their favor, to justify +the destruction of them by their fellow-men on a mere balancing of +probabilities, _or on any ground whatever short of certainty beyond a +reasonable doubt_. This last is the moral rule universally recognized to +be binding upon single individuals. And in the forum of conscience the +same rule is equally binding upon governments, for governments are mere +associations of individuals. This is the rule on which the trial by jury +is based. And it is plainly the only rule that ought to induce a man to +submit his rights to the adjudication of his fellow-men, or dissuade him +from a forcible defence of them. + +Another answer is, that if two opposing parties could be supposed to +have no personal interests or passions involved, to warp their +judgments, or corrupt their motives, the fact that one of the parties +was more numerous than the other, (a fact that leaves the comparative +intellectual competency of the two parties entirely out of +consideration,) might, perhaps, furnish a slight, but at best only a +very slight, probability that such party was on the side of justice. But +when it is considered that the parties are liable to differ in their +intellectual capacities, and that one, or the other, or both, are +undoubtedly under the influence of such passions as rivalry, hatred, +avarice, and ambition,—passions that are nearly certain to pervert +their judgments, and very likely to corrupt their motives,—all +probabilities founded upon a mere numerical majority, in one party, or +the other, vanish at once; and the decision of the majority becomes, to +all practical purposes, a mere decision of chance. And to dispose of +men’s properties, liberties, and lives, by the mere process of +enumerating such parties, is not only as palpable gambling as was ever +practised, but it is also the most atrocious that was ever practised, +except in matters of government. And where government is instituted on +this principle, (as in the United States, for example,) the nation is at +once converted into one great gambling establishment; where all the +rights of men are the stakes; a few bold bad men throw the dice—(dice +loaded with all the hopes, fears, interests, and passions which rage in +the breasts of ambitious and desperate men,)—and all the people, from +the interests they have depending, become enlisted, excited, agitated, +and generally corrupted, by the hazards of the game. + +The trial by jury disavows the majority principle altogether; and +proceeds upon the ground that every man should be presumed to be +entitled to life, liberty, and such property as he has in his +possession; and that the government should lay its hand upon none of +them, (except for the purpose of bringing them before a tribunal for +adjudication,) unless it be first ascertained, _beyond a reasonable +doubt_, in every individual case, that justice requires it. + +To ascertain whether there be such reasonable doubt, it takes twelve men +_by lot_ from the whole body of mature men. If any of these twelve are +proved to be under the influence of any _special_ interest or passion, +that may either pervert their judgments, or corrupt their motives, they +are set aside as unsuitable for the performance of a duty requiring such +absolute impartiality and integrity; and others substituted in their +stead. When the utmost practicable impartiality is attained on the part +of the whole twelve, they are sworn to the observance of justice; and +their unanimous concurrence is then held to be necessary to remove that +reasonable doubt, which, unremoved, would forbid the government to lay +its hand on its victim. + +Such is the caution which the trial by jury both practises and +inculcates, against the violation of justice, on the part of the +government, towards the humblest individual, in the smallest matter +affecting his civil rights, his property, liberty, or life. And such is +the contrast, which the trial by jury presents, to that gambler’s and +robber’s rule, that the majority have a right, by virtue of their +superior numbers, and without regard to justice, to dispose at pleasure +of the property and persons of all bodies of men less numerous than +themselves. + +The difference, in short, between the two systems, is this. The trial by +jury protects person and property, inviolate to their possessors, from +the hand of the law, unless _justice, beyond a reasonable doubt_, +require them to be taken. The majority principle takes person and +property from their possessors, at the mere arbitrary will of a +majority, who are liable and likely to be influenced, in taking them, by +motives of oppression, avarice, and ambition. + +If the relative numbers of opposing parties afforded sufficient evidence +of the comparative justice of their claims, the government should carry +the principle into its courts of justice; and instead of referring +controversies to impartial and disinterested men,—to judges and jurors, +sworn to do justice, and bound patiently to hear and weigh all the +evidence and arguments that can be offered on either side,—it should +simply _count_ the plaintiffs and defendants in each case, (where there +were more than one of either,) and then give the case to the majority; +after ample opportunity had been given to the plaintiffs and defendants +to reason with, flatter, cheat, threaten, and bribe each other, by way +of inducing them to change sides. Such a process would be just as +rational in courts of justice, as in halls of legislation; for it is of +no importance to a man, who has his rights taken from him, whether it be +done by a legislative enactment, or a judicial decision. + +In legislation, the people are all arranged as plaintiffs and defendants +in their own causes; (those who are in favor of a particular law, +standing as plaintiffs, and those who are opposed to the same law, +standing as defendants); and to allow these causes to be decided by +majorities, is plainly as absurd as it would be to allow judicial +decisions to be determined by the relative number of plaintiffs and +defendants. + +If this mode of decision were introduced into courts of justice, we +should see a parallel, and only a parallel, to that system of +legislation which we witness daily. We should see large bodies of men +conspiring to bring perfectly groundless suits, against other bodies of +men, for large sums of money, and to carry them by sheer force of +numbers; just as we now continually see large bodies of men conspiring +to carry, by mere force of numbers, some scheme of legislation that +will, directly or indirectly, take money out of other men’s pockets, and +put it into their own. And we should also see distinct bodies of men, +parties in separate suits, combining and agreeing all to appear and be +counted as plaintiffs or defendants in each other’s suits, for the +purpose of ekeing out the necessary majority; just as we now see +distinct bodies of men, interested in separate schemes of ambition or +plunder, conspiring to carry through a batch of legislative enactments, +that shall accomplish their several purposes. + +This system of combination and conspiracy would go on, until at length +whole states and a whole nation would become divided into two great +litigating parties, each party composed of several smaller bodies, +having their separate suits, but all confederating for the purpose of +making up the necessary majority in each case. The individuals composing +each of these two great parties, would at length become so accustomed to +acting together, and so well acquainted with each others’ schemes, and +so mutually dependent upon each others’ fidelity for success, that they +would become organized as permanent associations; bound together by that +kind of honor that prevails among thieves; and pledged by all their +interests, sympathies, and animosities, to mutual fidelity, and to +unceasing hostility to their opponents; and exerting all their arts and +all their resources of threats, injuries, promises, and bribes, to drive +or seduce from the other party enough to enable their own to retain or +acquire such a majority as would be necessary to gain their own suits, +and defeat the suits of their opponents. All the wealth and talent of +the country would become enlisted in the service of these rival +associations; and both would at length become so compact, so well +organized, so powerful, and yet always so much in need of recruits, +that a private person would be nearly or quite unable to obtain justice +in the most paltry suit with his neighbor, except on the condition of +joining one of these great litigating associations, who would agree to +carry through his cause, on condition of his assisting them to carry +through all the others, good and bad, which they had already undertaken. +If he refused this, they would threaten to make a similar offer to his +antagonist, and suffer their whole numbers to be counted against him. + +Now this picture is no caricature, but a true and honest likeness. And +such a system of administering justice, would be no more false, absurd, +or atrocious, than that system of working by majorities, which seeks to +accomplish, by legislation, the same ends which, in the case supposed, +would be accomplished by judicial decisions. + +Again, the doctrine that the minority ought to submit to the will of the +majority, proceeds, not upon the principle that government is formed by +voluntary association, and for an _agreed purpose_, on the part of all +who contribute to its support, but upon the presumption that all +government must be practically a state of war and plunder between +opposing parties; and that, in order to save blood, and prevent mutual +extermination, the parties come to an agreement that they will count +their respective numbers periodically, and the one party shall then be +permitted quietly to rule and plunder, (restrained only by their own +discretion,) and the other submit quietly to be ruled and plundered, +until the time of the next enumeration. + +Such an agreement may possibly be wiser than unceasing and deadly +conflict; it nevertheless partakes too much of the ludicrous to deserve +to be seriously considered as an expedient for the maintenance of civil +society. It would certainly seem that mankind might agree upon a +cessation of hostilities, upon more rational and equitable terms than +that of unconditional submission on the part of the less numerous body. +Unconditional submission is usually the last act of one who confesses +himself subdued and enslaved. How any one ever came to imagine that +condition to be one of freedom, has never been explained. And as for the +system being adapted to the maintenance of justice among men, it is a +mystery that any human mind could ever have been visited with an +insanity wild enough to originate the idea. + +If it be said that other corporations, than governments, surrender their +affairs into the hands of the majority, the answer is, that they allow +majorities to determine only trifling matters, that are in their nature +mere questions of discretion, and where there is no natural presumption +of justice or right on one side rather than the other. They _never_ +surrender to the majority the power to dispose of, or, what is +practically the same thing, to _determine_, the _rights_ of any +individual member. The _rights_ of every member are determined by the +written compact, to which all the members have voluntarily agreed. + +For example. A banking corporation allows a majority to determine such +questions of discretion as whether the note of A or of B shall be +discounted; whether notes shall be discounted on one, two, or six days +in the week; how many hours in a day their banking-house shall be kept +open; how many clerks shall be employed; what salaries they shall +receive, and such like matters, which are in their nature mere subjects +of discretion, and where there are no natural presumptions of justice or +right in favor of one course over the other. But no banking corporation +allows a majority, or any other number of its members less than the +whole, to divert the funds of the corporation to any other purpose than +the one to which _every member_ of the corporation has legally agreed +that they may be devoted; nor to take the stock of one member and give +it to another; nor to distribute the dividends among the stockholders +otherwise than to each one the proportion which he has agreed to accept, +and all the others have agreed that he shall receive. Nor does any +banking corporation allow a majority to impose taxes upon the members +for the payment of the corporate expenses, except in such proportions as +_every member_ has consented that they may be imposed. All these +questions, involving the _rights_ of the members as against each other, +are fixed by the articles of the association,—that is, by the agreement +to which _every member_ has personally assented. + +What is also specially to be noticed, and what constitutes a vital +difference between the banking corporation and the political +corporation, or government, is, that in case of controversy among the +members of the banking corporation, as to the _rights_ of any member, +the question is determined, not by any number, either majority, or +minority, of the corporation itself, _but by persons out of the +corporation_; by twelve men acting as jurors, or by other tribunals of +justice, of which no member of the corporation is allowed to be a part. +But in the case of the political corporation, controversies among the +parties to it, as to the rights of individual members, must of necessity +be settled by members of the corporation itself, because there are no +persons out of the corporation to whom the question can be referred. + +Since, then, all questions as to the _rights_ of the members of the +political corporation, must be determined by members of the corporation +itself, the trial by jury says that no man’s _rights_,—neither his +right to his life, his liberty, nor his property,—shall be determined +by any such standard as the mere will and pleasure of majorities; but +only by the unanimous verdict of a tribunal fairly representing the +whole people,—that is, a tribunal of twelve men, taken, at random from +the whole body, and ascertained to be as impartial as the nature of the +case will admit, _and sworn to the observance of justice_. Such is the +difference in the two kinds of corporations; and the custom of managing +by majorities the mere discretionary matters of business corporations, +(the majority having no power to determine the _rights_ of any member,) +furnishes no analogy to the practice, adopted by political corporations, +of disposing of all the _rights_ of their members by the arbitrary will +of majorities. + +But further. The doctrine that the majority have a _right_ to rule, +proceeds upon the principle that minorities have no _rights_ in the +government; for certainly the minority cannot be said to have any +_rights_ in a government, so long as the majority alone determine what +their rights shall be. They hold everything, or nothing, as the case may +be, at the mere will of the majority. + +It is indispensable to a “_free_ government,” (in the political sense of +that term,) that the minority, the weaker party, have a veto upon the +acts of the majority. Political liberty is liberty for the _weaker +party_ in a nation. It is only the weaker party that lose their +liberties, when a government becomes oppressive. The stronger party, in +all governments, are free by virtue of their superior strength. They +never oppress themselves. + +Legislation is the work of this stronger party; and if, in addition to +the sole power of legislating, they have the sole power of determining +what legislation shall be enforced, they have all power in their hands, +and the weaker party are the subjects of an absolute government. + +Unless the weaker party have a veto, either upon the making, or the +enforcement of laws, they have no power whatever in the government, and +can of course have no liberties except such as the stronger party, in +their arbitrary discretion, see fit to permit them to enjoy. + +In England and the United States, the trial by jury is the only +institution that gives the weaker party any veto upon the power of the +stronger. Consequently it is the only institution, that gives them any +effective voice in the government, or any guaranty against oppression. + +Suffrage, however free, is of no avail for this purpose; because the +suffrage of the minority is overborne by the suffrage of the majority, +and is thus rendered powerless for purposes of legislation. The +responsibility of officers can be made of no avail, because they are +responsible only to the majority. The minority, therefore, are wholly +without rights in the government, wholly at the mercy of the majority, +unless, through the trial by jury, they have a veto upon such +legislation as they think unjust. + +Government is established for the protection of the weak against the +strong. This is the principal, if not the sole, motive for the +establishment of all legitimate government. Laws, that are sufficient +for the protection of the weaker party, are of course sufficient for the +protection of the stronger party; because the strong can certainly need +no more protection than the weak. It is, therefore, right that the +weaker party should be represented in the tribunal which is finally to +determine what legislation may be enforced; and that no legislation +shall be enforced against their consent. They being presumed to be +competent judges of what kind of legislation makes for their safety, and +what for their injury, it must be presumed that any legislation, which +_they_ object to enforcing, tends to their oppression, and not to their +security. + +There is still another reason why the weaker party, or the minority, +should have a veto upon all legislation which they disapprove. _That +reason is, that that is the only means by which the government can be +kept within the limits of the contract, compact, or constitution, by +which the whole people agree to establish government._ If the majority +were allowed to interpret the compact for themselves, and enforce it +according to their own interpretation, they would, of course, make it +authorize them to do whatever they wish to do. + +The theory of free government is that it is formed by the voluntary +contract of the people individually with each other. This is the theory, +(although it is not, as it ought to be, the fact,) in all the +governments in the United States, as also in the government of England. +The theory assumes that each man, who is a party to the government, and +contributes to its support, has individually and freely consented to it. +Otherwise the government would have no right to tax him for its +support,—for taxation without consent is robbery. This theory, then, +necessarily supposes that this government, which is formed by the free +consent of all, has no powers except such as _all_ the parties to it +have individually agreed that it shall have; and especially that it has +no power to pass any _laws_, except such as _all_ the parties have +agreed that it may pass. + +This theory supposes that there may be certain laws that will be +beneficial to _all_,—so beneficial that _all_ consent to be taxed for +their maintenance. For the maintenance of these specific laws, in which +all are interested, all associate. And they associate for the +maintenance of those laws _only_, in which _all_ are interested. It +would be absurd to suppose that all would associate, and consent to be +taxed, for purposes which were beneficial only to a part; and especially +for purposes that were injurious to any. A government of the whole, +therefore, can have no powers except such as _all_ the parties consent +that it may have. It can do nothing except what _all_ have consented +that it may do. And if any portion of the people,—no matter how large +their number, if it be less than the whole,—desire a government for any +purposes other than those that are common to all, and desired by all, +they must form a separate association for those purposes. They have no +right,—by perverting this government of the whole, to the +accomplishment of purposes desired only by a part,—to compel any one to +contribute to purposes that are either useless or injurious to himself. + +Such being the principles on which the government is formed, the +question arises, how shall this government, when formed, be kept within +the limits of the contract by which it was established? How shall this +government, instituted by the whole people, agreed to by the whole +people, supported by the contributions of the whole people, be confined +to the accomplishment of those purposes alone, which the whole people +desire? How shall it be preserved from degenerating into a mere +government for the benefit of a part only of those who established, and +who support it? How shall it be prevented from even injuring a part of +its own members, for the aggrandizement of the rest? Its laws must be, +(or at least now are,) passed, and most of its other acts performed, by +mere agents,—agents chosen by a part of the people, and not by the +whole. How can these agents be restrained from seeking their own +interests, and the interests of those who elected them, at the expense +of the rights of the remainder of the people, by the passage and +enforcement of laws that shall be partial, unequal, and unjust in their +operation? That is the great question. And the trial by jury answers it. +And how does the trial by jury answer it? It answers it, as has already +been shown throughout this volume, by saying that these mere agents and +attorneys, who are chosen by a part only of the people, and are liable +to be influenced by partial and unequal purposes, shall not have +unlimited authority in the enactment and enforcement of laws; that they +shall not exercise _all_ the functions of government. It says that they +shall never exercise that ultimate power of compelling obedience to the +laws by punishing for disobedience, or of executing the laws against the +person or property of any man, without first getting the consent of the +people, through a tribunal that may fairly be presumed to represent the +whole, or substantially the whole, people. It says that if the power to +make laws, and the power also to enforce them, were committed to these +agents, they would have all power,—would be absolute masters of the +people, and could deprive them of their rights at pleasure. It says, +therefore, that the people themselves will hold a veto upon the +enforcement of any and every law, which these agents may enact, and that +whenever the occasion arises for them to give or withhold their +consent,—inasmuch as the whole people cannot assemble, or devote the +time and attention necessary to the investigation of each case,—twelve +of their number shall be taken by lot, or otherwise at random, from the +whole body; that they shall not be chosen by majorities, (the same +majorities that elected the agents who enacted the laws to be put in +issue,) nor by any interested or suspected party; that they shall not be +appointed by, or be in any way dependent upon, those who enacted the +law; that their opinions, whether for or against the law that is in +issue, shall not be inquired of beforehand; and that if these twelve men +give their consent to the enforcement of the law, their consent shall +stand for the consent of the whole. + +This is the mode, which the trial by jury provides, for keeping the +government within the limits designed by the whole people, who have +associated for its establishment. And it is the only mode, provided +either by the English or American constitutions, for the accomplishment +of that object. + +But it will, perhaps, be said that if the minority can defeat the will +of the majority, then the minority _rule_ the majority. But this is not +true in any unjust sense. The minority enact no laws of their own. They +simply refuse their assent to such laws of the majority as they do not +approve. The minority assume no authority over the majority; they simply +defend themselves. They do not interfere with the right of the majority +to seek their own happiness in their own way, so long as they (the +majority) do not interfere with the minority. They claim simply not to +be oppressed, and not to be compelled to assist in doing anything which +they do not approve. They say to the majority, “We will unite with you, +if you desire it, for the accomplishment of all those purposes, in +which we have a common interest with you. You can certainly expect us to +do nothing more. If you do not choose to associate with us on those +terms, there must be two separate associations. You must associate for +the accomplishment of your purposes; we for the accomplishment of ours.” + +In this case, the minority assume no authority over the majority; they +simply refuse to surrender their own liberties into the hands of the +majority. They propose a union; but decline submission. The majority are +still at liberty to refuse the connection, and to seek their own +happiness in their own way, except that they cannot be gratified in +their desire to become absolute masters of the minority. + +But, it may be asked, how can the minority be trusted to enforce even +such legislation as is equal and just? The answer is, that they are as +reliable for that purpose as are the majority; they are as much presumed +to have associated, and are as likely to have associated, for that +object, as are the majority; and they have as much interest in such +legislation as have the majority. They have even more interest in it; +for, being the weaker party, they must rely on it for their +security,—having no other security on which they can rely. Hence their +consent to the establishment of government, and to the _taxation_ +required for its support, is _presumed_, (although it ought not to be +presumed,) without any express consent being given. This presumption of +their consent to be taxed for the maintenance of laws, would be absurd, +if they could not themselves be trusted to act in good faith in +enforcing those laws. And hence they cannot be presumed to have +consented to be taxed for the maintenance of any laws, except such as +they are themselves ready to aid in enforcing. It is therefore unjust to +tax them, unless they are eligible to seats in a jury, with power to +judge of the justice of the laws. Taxing them for the support of the +laws, on the assumption that they are in favor of the laws, and at the +same time refusing them the right, as jurors, to judge of the justice of +the laws, on the assumption that they are opposed to the laws, are flat +contradictions. + +But, it will be asked, what motive have the majority, when they have +all power in their own hands, to submit their will to the veto of the +minority? + +One answer is, that they have the motive of justice. It would be +_unjust_ to compel the minority to contribute, by taxation, to the +support of any laws which they did not approve. + +Another answer is, that if the stronger party wish to use their power +only for purposes of justice, they have no occasion to fear the veto of +the weaker party; for the latter have as strong motives for the +maintenance of _just_ government, as have the former. + +Another answer is, that if the stronger party use their power +_unjustly_, they will hold it by an uncertain tenure, especially in a +community where knowledge is diffused; for knowledge will enable the +weaker party to make itself in time the stronger party. It also enables +the weaker party, even while it remains the weaker party, perpetually to +annoy, alarm, and injure their oppressors. Unjust power,—or rather +power that is _grossly_ unjust, and that is known to be so by the +minority,—can be sustained only at the expense of standing armies, and +all the other machinery of force; for the oppressed party are always +ready to risk their lives for purposes of vengeance, and the acquisition +of their rights, whenever there is any tolerable chance of success. +Peace, safety, and quiet for all, can be enjoyed only under laws that +obtain the consent of all. Hence tyrants frequently yield to the demands +of justice from those weaker than themselves, as a means of buying peace +and safety. + +Still another answer is, that those who are in the majority on one law, +will be in the minority on another. All, therefore, need the benefit of +the veto, at some time or other, to protect themselves from injustice. + +That the limits, within which legislation would, by this process, be +confined, would be exceedingly narrow, in comparison with those it at +present occupies, there can be no doubt. All monopolies, all special +privileges, all sumptuary laws, all restraints upon any traffic, +bargain, or contract, that was naturally lawful,[^117] all restraints +upon men’s natural rights, the whole catalogue of _mala prohibita_, and +all taxation to which the taxed parties had not individually, severally, +and freely consented, would be at an end; because all such legislation +implies a violation of the rights of a greater or less minority. This +minority would disregard, trample upon, or resist, the execution of such +legislation, and then throw themselves upon a jury of the whole people +for justification and protection. In this way all legislation would be +nullified, except the legislation of that general nature which +impartially protected the rights, and subserved the interests, of all. +The only legislation that could be sustained, would probably be such as +tended directly to the maintenance of justice and liberty; such, for +example, as should contribute to the enforcement of contracts, the +protection of property, and the prevention and punishment of acts +intrinsically criminal. In short, government in practice would be +brought to the necessity of a strict adherence to natural law, and +natural justice, instead of being, as it now is, a great battle, in +which avarice and ambition are constantly fighting for and obtaining +advantages over the natural rights of mankind. + +[Footnote 117: Such as restraints upon banking, upon the rates of +interest, upon traffic with foreigners, &c., &c.] diff --git a/edited/appendix.markdown b/edited/appendix.markdown new file mode 100644 index 0000000..5b03b87 --- /dev/null +++ b/edited/appendix.markdown @@ -0,0 +1,127 @@ +APPENDIX. + +TAXATION. + + +It was a principle of the Common Law, as it is of the law of nature, and +of common sense, that no man can be taxed without his personal consent. +The Common Law knew nothing of that system, which now prevails in +England, of _assuming_ a man’s own consent to be taxed, because some +pretended representative, whom he never authorized to act for him, has +taken it upon himself to consent that he may be taxed. That is one of +the many frauds on the Common Law, and the English constitution, which +have been introduced since Magna Carta. Having finally established +itself in England, it has been stupidly and servilely copied and +submitted to in the United States. + +If the trial by jury were reëstablished, the Common Law principle of +taxation would be reëstablished with it; for it is not to be supposed +that juries would enforce a tax upon an individual which he had never +agreed to pay. Taxation without consent is as plainly robbery, when +enforced against one man, as when enforced against millions; and it is +not to be imagined that juries could be blind to so self-evident a +principle. Taking a man’s money without his consent, is also as much +robbery, when it is done by millions of men, acting in concert, and +calling themselves a government, as when it is done by a single +individual, acting on his own responsibility, and calling himself a +highwayman. Neither the numbers engaged in the act, nor the different +characters they assume as a cover for the act, alter the nature of the +act itself. + +If the government can take a man’s money without his consent, there is +no limit to the additional tyranny it may practise upon him; for, with +his money, it can hire soldiers to stand over him, keep him in +subjection, plunder him at discretion, and kill him if he resists. And +governments always will do this, as they everywhere and always have done +it, except where the Common Law principle has been established. It is +therefore a first principle, a very _sine qua non_ of political freedom, +that a man can be taxed only by his personal consent. And the +establishment of this principle, with _trial by jury_, insures freedom +of course; because: 1. No man would pay his money unless he had first +contracted for such a government as he was willing to support; and, 2. +Unless the government then kept itself within the terms of its contract, +juries would not enforce the payment of the tax. Besides, the agreement +to be taxed would probably be entered into but for a year at a time. If, +in that year, the government proved itself either inefficient or +tyrannical, to any serious degree, the contract would not be renewed. +The dissatisfied parties, if sufficiently numerous for a new +organization, would form themselves into a separate association for +mutual protection. If not sufficiently numerous for that purpose, those +who were conscientious would forego all governmental protection, rather +than contribute to the support of a government which they deemed unjust. + +All legitimate government is a mutual insurance company, voluntarily +agreed upon by the parties to it, for the protection of their rights +against wrong-doers. In its voluntary character it is precisely similar +to an association for mutual protection against fire or shipwreck. +Before a man will join an association for these latter purposes, and pay +the premium for being insured, he will, if he be a man of sense, look at +the articles of the association; see what the company promises to do; +what it is likely to do; and what are the rates of insurance. If he be +satisfied on all these points, he will become a member, pay his premium +for a year, and then hold the company to its contract. If the conduct of +the company prove unsatisfactory, he will let his policy expire at the +end of the year for which he has paid; will decline to pay any further +premiums, and either seek insurance elsewhere, or take his own risk +without any insurance. And as men act in the insurance of their ships +and dwellings, they would act in the insurance of their properties, +liberties and lives, in the political association, or government. + +The political insurance company, or government, have no more right, in +nature or reason, to _assume_ a man’s consent to be protected by them, +and to be taxed for that protection, when he has given no actual +consent, than a fire or marine insurance company have to assume a man’s +consent to be protected by them, and to pay the premium, when his actual +consent has never been given. To take a man’s property without his +consent is robbery; and to assume his consent, where no actual consent +is given, makes the taking none the less robbery. If it did, the +highwayman has the same right to assume a man’s consent to part with his +purse, that any other man, or body of men, can have. And his assumption +would afford as much moral justification for his robbery as does a like +assumption, on the part of the government, for taking a man’s property +without his consent. The government’s pretence of protecting him, as an +equivalent for the taxation, affords no justification. It is for himself +to decide whether he desires such protection as the government offers +him. If he do not desire it, or do not bargain for it, the government +has no more right than any other insurance company to impose it upon +him, or make him pay for it. + +Trial by the country, and no taxation without consent, were the two +pillars of English liberty, (when England had any liberty,) and the +first principles of the Common Law. They mutually sustain each other; +and neither can stand without the other. Without both, no people have +any guaranty for their freedom; with both, no people can be otherwise +than free.[^118] + +By what force, fraud, and conspiracy, on the part of kings, nobles, and +“a few wealthy freeholders,” these pillars have been prostrated in +England, it is designed to show more fully in the next volume, if it +should be necessary. + +[Footnote 118: Trial by the country, and no taxation without consent, +mutually sustain each other, and can be sustained only by each other, +for these reasons: 1. Juries would refuse to enforce a tax against a man +who had never agreed to pay it. They would also protect men in forcibly +resisting the collection of taxes to which they had never consented. +Otherwise the jurors would authorize the government to tax themselves +without their consent,—a thing which no jury would be likely to do. In +these two ways, then, trial by the country would sustain the principle +of no taxation without consent. 2. On the other hand, the principle of +no taxation without consent would sustain the trial by the country, +because men in general would not consent to be taxed for the support of +a government under which trial by the country was not secured. Thus +these two principles mutually sustain each other. + +But, if either of these principles were broken down, the other would +fall with it, and for these reasons: 1. If trial by the country were +broken down, the principle of no taxation without consent would fall +with it, because the government would then be _able_ to tax the people +without their consent, inasmuch as the legal tribunals would be mere +tools of the government, and would enforce such taxation, and punish men +for resisting such taxation, as the government ordered. 2. On the other +hand, if the principle of no taxation without consent were broken down, +trial by the country would fall with it, because the government, if it +could tax people without their consent, would, of course, take enough of +their money to enable it to employ all the force necessary for +sustaining its own tribunals, (in the place of juries,) and carrying +their decrees into execution.] diff --git a/original.txt b/original.txt new file mode 100644 index 0000000..04bb6dc --- /dev/null +++ b/original.txt @@ -0,0 +1,10308 @@ +Project Gutenberg's An Essay on the Trial by Jury, by Lysander Spooner + +This eBook is for the use of anyone anywhere at no cost and with +almost no restrictions whatsoever. You may copy it, give it away or +re-use it under the terms of the Project Gutenberg License included +with this eBook or online at www.gutenberg.org + + +Title: An Essay on the Trial by Jury + +Author: Lysander Spooner + +Release Date: June 27, 2010 [EBook #32984] + +Language: English + + +*** START OF THIS PROJECT GUTENBERG EBOOK AN ESSAY ON THE TRIAL BY JURY *** + + + + +Produced by Susan Goble, Curtis Weyant, Graeme Mackreth +and the Online Distributed Proofreading Team at +https://www.pgdp.net + + + + + + + +AN ESSAY + +ON THE + +TRIAL BY JURY. + + +BY LYSANDER SPOONER. + + + BOSTON: + JOHN P. JEWETT AND COMPANY. + CLEVELAND, OHIO: + JEWETT, PROCTOR & WORTHINGTON. + 1852. + + + Entered according to Act of Congress, in the year 1852, by + LYSANDER SPOONER, + In the Clerk's Office of the District Court of Massachusetts. + + +NOTICE TO ENGLISH PUBLISHERS. + +The author claims the copyright of this book in England, on Common Law +principles, without regard to acts of parliament; and if the main +principle of the book itself be true, viz., that no legislation, in +conflict with the Common Law, is of any validity, his claim is a legal +one. He forbids any one to reprint the book without his consent. + + + Stereotyped by + HOBART & ROBBINS; + New England Type and Stereotype Foundery, + BOSTON. + + +NOTE. + +This volume, it is presumed by the author, gives what will generally be +considered satisfactory evidence,--though not all the evidence,--of what +the Common Law trial by jury really is. In a future volume, if it should +be called for, it is designed to corroborate the grounds taken in this; +give a concise view of the English constitution; show the +unconstitutional character of the existing government in England, and +the unconstitutional means by which the trial by jury has been broken +down in practice; prove that, neither in England nor the United States, +have legislatures ever been invested by the people with any authority to +impair the powers, change the oaths, or (with few exceptions) abridge +the jurisdiction, of juries, or select jurors on any other than Common +Law principles; and, consequently, that, in both countries, legislation +is still constitutionally subordinate to the discretion and consciences +of Common Law juries, in all cases, both civil and criminal, in which +juries sit. The same volume will probably also discuss several political +and legal questions, which will naturally assume importance if the trial +by jury should be reëstablished. + + + + +CONTENTS. + + PAGE + + +CHAPTER I. THE RIGHT OF JURIES TO JUDGE OF THE JUSTICE OF LAWS, 5 + + SECTION 1, 5 + + SECTION 2, 11 + + +CHAPTER II. THE TRIAL BY JURY, AS DEFINED BY MAGNA CARTA, 20 + + SECTION 1. _The History of Magna Carta_, 20 + + SECTION 2. _The Language of Magna Carta_, 25 + + +CHAPTER III. ADDITIONAL PROOFS OF THE RIGHTS AND DUTIES OF JURORS, 51 + + SECTION 1. _Weakness of the Regal Authority_, 51 + + SECTION 2. _The Ancient Common Law Juries were mere + Courts of Conscience_, 63 + + SECTION 3. _The Oaths of Jurors_, 85 + + SECTION 4. _The Right of Jurors to fix the Sentence_, 91 + + SECTION 5. _The Oaths of Judges_, 98 + + SECTION 6. _The Coronation Oath_, 102 + + +CHAPTER IV. THE RIGHTS AND DUTIES OF JURIES IN CIVIL SUITS, 110 + + +CHAPTER V. OBJECTIONS ANSWERED, 128 + + +CHAPTER VI. JURIES OF THE PRESENT DAY ILLEGAL, 142 + + +CHAPTER VII. ILLEGAL JUDGES, 157 + + +CHAPTER VIII. THE FREE ADMINISTRATION OF JUSTICE, 172 + + +CHAPTER IX. THE CRIMINAL INTENT, 178 + + +CHAPTER X. MORAL CONSIDERATIONS FOR JURORS, 189 + + +CHAPTER XI. AUTHORITY OF MAGNA CARTA, 192 + + +CHAPTER XII. LIMITATIONS IMPOSED UPON THE MAJORITY BY + THE TRIAL BY JURY, 206 + + +APPENDIX--TAXATION, 222 + + + + +TRIAL BY JURY. + + + + +CHAPTER I. + +THE RIGHT OF JURIES TO JUDGE OF THE JUSTICE OF LAWS. + + +SECTION I. + +For more than six hundred years--that is, since Magna Carta, in +1215--there has been no clearer principle of English or American +constitutional law, than that, in criminal cases, it is not only the +right and duty of juries to judge what are the facts, what is the law, +and what was the moral intent of the accused; _but that it is also their +right, and their primary and paramount duty, to judge of the justice of +the law, and to hold all laws invalid, that are, in their opinion, +unjust or oppressive, and all persons guiltless in violating, or +resisting the execution of, such laws_. + +Unless such be the right and duty of jurors, it is plain that, instead +of juries being a "palladium of liberty"--a barrier against the tyranny +and oppression of the government--they are really mere tools in its +hands, for carrying into execution any injustice and oppression it may +desire to have executed. + +But for their right to judge of the law, _and the justice of the law_, +juries would be no protection to an accused person, _even as to matters +of fact_; for, if the government can dictate to a jury any law whatever, +in a criminal case, it can certainly dictate to them the laws of +evidence. That is, it can dictate what evidence is admissible, and what +inadmissible, _and also what force or weight is to be given to the +evidence admitted_. And if the government can thus dictate to a jury the +laws of evidence, it can not only make it necessary for them to convict +on a partial exhibition of the evidence rightfully pertaining to the +case, but it can even require them to convict on any evidence whatever +that it pleases to offer them. + +That the rights and duties of jurors must necessarily be such as are +here claimed for them, will be evident when it is considered what the +trial by jury is, and what is its object. + +_"The trial by jury," then, is a "trial by the country"--that is, by the +people--as distinguished from a trial by the government._ + +It was anciently called "trial _per pais_"--that is, "trial by the +country." And now, in every criminal trial, the jury are told that the +accused "has, for trial, put himself upon the _country_; which _country_ +you (the jury) are." + +_The object of this trial "by the country" or by the people, in +preference to a trial by the government, is to guard against every +species of oppression by the government. In order to effect this end, it +is indispensable that the people, or "the country," judge of and +determine their own liberties against the government; instead of the +government's judging of and determining its own powers over the people. +How is it possible that juries can do anything to protect the liberties +of the people against the government, if they are not allowed to +determine what those liberties are?_ + +Any government, that is its own judge of, and determines authoritatively +for the people, what are its own powers over the people, is an absolute +government of course. It has all the powers that it chooses to exercise. +There is no other--or at least no more accurate--definition of a +despotism than this. + +On the other hand, any people, that judge of, and determine +authoritatively for the government, what are their own liberties against +the government, of course retain all the liberties they wish to enjoy. +_And this is freedom._ At least, it is freedom _to them_; because, +although it may be theoretically imperfect, it, nevertheless, +corresponds to _their_ highest notions of freedom. + +To secure this right of the people to judge of their own liberties +against the government, the jurors are taken, (or must be, to make them +lawful jurors,) from the body of the people, _by lot_, or by some +process that precludes any previous knowledge, choice, or selection of +them, on the part of the government. This is done to prevent the +government's constituting a jury of its own partisans or friends; in +other words, to prevent the government's _packing_ a jury, with a view +to maintain its own laws, and accomplish its own purposes. + +It is supposed that, if twelve men be taken, _by lot_, from the mass of +the people, without the possibility of any previous knowledge, choice, +or selection of them, on the part of the government, the jury will be a +fair epitome of "the country" at large, and not merely of the party or +faction that sustain the measures of the government; that substantially +all classes of opinions, prevailing among the people, will be +represented in the jury; and especially that the opponents of the +government, (if the government have any opponents,) will be represented +there, as well as its friends; that the classes, who are oppressed by +the laws of the government, (if any are thus oppressed,) will have their +representatives in the jury, as well as those classes, who take sides +with the oppressor--that is, with the government. + +It is fairly presumable that such a tribunal will agree to no conviction +except such as _substantially the whole country_ would agree to, if they +were present, taking part in the trial. A trial by such a tribunal is, +therefore, in effect, "a trial by the country." In its results it +probably comes as near to a trial by the _whole_ country, as any trial +that it is practicable to have, without too great inconvenience and +expense. And as unanimity is required for a conviction, it follows that +no one can be convicted, except for the violation of such laws as +substantially the whole country wish to have maintained. The government +can enforce none of its laws, (by punishing offenders, through the +verdicts of juries,) except such as substantially the whole people wish +to have enforced. The government, therefore, consistently with the trial +by jury, can exercise no powers over the people, (or, what is the same +thing, over the accused person, who represents the rights of the +people,) except such as substantially the whole people of the country +consent that it may exercise. In such a trial, therefore, "the country," +or the people, judge of and determine their own liberties against the +government, instead of the government's judging of and determining its +own powers over the people. + +But all this "trial by the country" would be no trial at all "by the +country," but only a trial by the government, if the government could +either declare who may, and who may not, be jurors, or could dictate to +the jury anything whatever, either of law or evidence, that is of the +essence of the trial. + +If the government may decide who may, and who may not, be jurors, it +will of course select only its partisans, and those friendly to its +measures. It may not only prescribe who may, and who may not, be +eligible to be drawn as jurors; but it may also question each person +drawn as a juror, as to his sentiments in regard to the particular law +involved in each trial, before suffering him to be sworn on the panel; +and exclude him if he be found unfavorable to the maintenance of such a +law.[1] + +So, also, if the government may dictate to the jury _what laws they are +to enforce_, it is no longer a "trial by the country," but a trial by +the government; because the jury then try the accused, not by any +standard of their own--not by their own judgments of their rightful +liberties--but by a standard dictated to them by the government. And the +standard, thus dictated by the government, becomes the measure of the +people's liberties. If the government dictate the standard of trial, it +of course dictates the results of the trial. And such a trial is no +trial by the country, but only a trial by the government; and in it the +government determines what are its own powers over the people, instead +of the people's determining what are their own liberties against the +government. In short, if the jury have no right to judge of the justice +of a law of the government, they plainly can do nothing to protect the +people against the oppressions of the government; for there are no +oppressions which the government may not authorize by law. + +The jury are also to judge whether the laws are rightly expounded to +them by the court. Unless they judge on this point, they do nothing to +protect their liberties against the oppressions that are capable of +being practised under cover of a corrupt exposition of the laws. If the +judiciary can authoritatively dictate to a jury any exposition of the +law, they can dictate to them the law itself, and such laws as they +please; because laws are, in practice, one thing or another, according +as they are expounded. + +The jury must also judge whether there really be any such law, (be it +good or bad,) as the accused is charged with having transgressed. Unless +they judge on this point, the people are liable to have their liberties +taken from them by brute force, without any law at all. + +The jury must also judge of the laws of evidence. If the government can +dictate to a jury the laws of evidence, it can not only shut out any +evidence it pleases, tending to vindicate the accused, but it can +require that any evidence whatever, that it pleases to offer, be held as +conclusive proof of any offence whatever which the government chooses to +allege. + +It is manifest, therefore, that the jury must judge of and try the whole +case, and every part and parcel of the case, free of any dictation or +authority on the part of the government. They must judge of the +existence of the law; of the true exposition of the law; _of the justice +of the law_; and of the admissibility and weight of all the evidence +offered; otherwise the government will have everything its own way; the +jury will be mere puppets in the hands of the government; and the trial +will be, in reality, a trial by the government, and not a "trial by the +country." By such trials the government will determine its own powers +over the people, instead of the people's determining their own liberties +against the government; and it will be an entire delusion to talk, as +for centuries we have done, of the trial by jury, as a "palladium of +liberty," or as any protection to the people against the oppression and +tyranny of the government. + +The question, then, between trial by jury, as thus described, and trial +by the government, is simply a question between liberty and despotism. +The authority to judge what are the powers of the government, and what +the liberties of the people, must necessarily be vested in one or the +other of the parties themselves--the government, or the people; because +there is no third party to whom it can be entrusted. If the authority be +vested in the government, the government is absolute, and the people +have no liberties except such as the government sees fit to indulge them +with. If, on the other hand, that authority be vested in the people, +then the people have all liberties, (as against the government,) except +such as substantially the whole people (through a jury) choose to +disclaim; and the government can exercise no power except such as +substantially the whole people (through a jury) consent that it may +exercise. + + +SECTION II. + +The force and justice of the preceding argument cannot be evaded by +saying that the government is chosen by the people; that, in theory, it +represents the people; that it is designed to do the will of the people; +that its members are all sworn to observe the fundamental or +constitutional law instituted by the people; that its acts are therefore +entitled to be considered the acts of the people; and that to allow a +jury, representing the people, to invalidate the acts of the government, +would therefore be arraying the people against themselves. + +There are two answers to such an argument. + +One answer is, that, in a representative government, there is no +absurdity or contradiction, nor any arraying of the people against +themselves, in requiring that the statutes or enactments of the +government shall pass the ordeal of any number of separate tribunals, +before it shall be determined that they are to have the force of laws. +Our American constitutions have provided five of these separate +tribunals, to wit, representatives, senate, executive,[2] jury, and +judges; and have made it necessary that each enactment shall pass the +ordeal of all these separate tribunals, before its authority can be +established by the punishment of those who choose to transgress it. And +there is no more absurdity or inconsistency in making a jury one of +these several tribunals, than there is in making the representatives, or +the senate, or the executive, or the judges, one of them. There is no +more absurdity in giving a jury a veto upon the laws, than there is in +giving a veto to each of these other tribunals. The people are no more +arrayed against themselves, when a jury puts its veto upon a statute, +which the other tribunals have sanctioned, than they are when the same +veto is exercised by the representatives, the senate, the executive, or +the judges. + +But another answer to the argument that the people are arrayed against +themselves, when a jury hold an enactment of the government invalid, is, +that the government, and all the departments of the government, _are +merely the servants and agents of the people_; not invested with +arbitrary or absolute authority to bind the people, but required to +submit all their enactments to the judgment of a tribunal more fairly +representing the whole people, before they carry them into execution, by +punishing any individual for transgressing them. If the government were +not thus required to submit their enactments to the judgment of "the +country," before executing them upon individuals--if, in other words, +the people had reserved to themselves no veto upon the acts of the +government, the government, instead of being a mere servant and agent of +the people, would be an absolute despot over the people. It would have +all power in its own hands; because the power to _punish_ carries all +other powers with it. A power that can, of itself, and by its own +authority, punish disobedience, can compel obedience and submission, and +is above all responsibility for the character of its laws. In short, it +is a despotism. + +And it is of no consequence to inquire how a government came by this +power to punish, whether by prescription, by inheritance, by usurpation, +or by delegation from the people? _If it have now but got it_, the +government is absolute. + +It is plain, therefore, that if the people have invested the government +with power to make laws that absolutely bind the people, and to punish +the people for transgressing those laws, the people have surrendered +their liberties unreservedly into the hands of the government. + +It is of no avail to say, in answer to this view of the case, that in +surrendering their liberties into the hands of the government, the +people took an oath from the government, that it would exercise its +power within certain constitutional limits; for when did oaths ever +restrain a government that was otherwise unrestrained? Or when did a +government fail to determine that all its acts were within the +constitutional and authorized limits of its power, if it were permitted +to determine that question for itself? + +Neither is it of any avail to say, that, if the government abuse its +power, and enact unjust and oppressive laws, the government may be +changed by the influence of discussion, and the exercise of the right of +suffrage. Discussion can do nothing to prevent the enactment, or procure +the repeal, of unjust laws, unless it be understood that the discussion +is to be followed by resistance. Tyrants care nothing for discussions +that are to end only in discussion. Discussions, which do not interfere +with the enforcement of their laws, are but idle wind to them. Suffrage +is equally powerless and unreliable. It can be exercised only +periodically; and the tyranny must at least be borne until the time for +suffrage comes. Besides, when the suffrage is exercised, it gives no +guaranty for the repeal of existing laws that are oppressive, and no +security against the enactment of new ones that are equally so. The +second body of legislators are liable and likely to be just as +tyrannical as the first. If it be said that the second body may be +chosen for their integrity, the answer is, that the first were chosen +for that very reason, and yet proved tyrants. The second will be exposed +to the same temptations as the first, and will be just as likely to +prove tyrannical. Who ever heard that succeeding legislatures were, on +the whole, more honest than those that preceded them? What is there in +the nature of men or things to make them so? If it be said that the first +body were chosen from motives of injustice, that fact proves that there is +a portion of society who desire to establish injustice; and if they were +powerful or artful enough to procure the election of their instruments to +compose the first legislature, they will be likely to be powerful or +artful enough to procure the election of the same or similar instruments +to compose the second. The right of suffrage, therefore, and even a change +of legislators, guarantees no change of legislation--certainly no change +for the better. Even if a change for the better actually comes, it comes +too late, because it comes only after more or less injustice has been +irreparably done. + +But, at best, the right of suffrage can be exercised only periodically; +and between the periods the legislators are wholly irresponsible. No +despot was ever more entirely irresponsible than are republican +legislators during the period for which they are chosen. They can +neither be removed from their office, nor called to account while in +their office, nor punished after they leave their office, be their +tyranny what it may. Moreover, the judicial and executive departments of +the government are equally irresponsible _to the people_, and are only +responsible, (by impeachment, and dependence for their salaries), to +these irresponsible legislators. This dependence of the judiciary and +executive upon the legislature is a guaranty that they will always +sanction and execute its laws, whether just or unjust. Thus the +legislators hold the whole power of the government in their hands, and +are at the same time utterly irresponsible for the manner in which they +use it. + +If, now, this government, (the three branches thus really united in +one), can determine the validity of, and enforce, its own laws, it is, +for the time being, entirely absolute, and wholly irresponsible to the +people. + +But this is not all. These legislators, and this government, so +irresponsible while in power, can perpetuate their power at pleasure, if +they can determine what legislation is authoritative upon the people, +and can enforce obedience to it; for they can not only declare their +power perpetual, but they can enforce submission to all legislation that +is necessary to secure its perpetuity. They can, for example, prohibit +all discussion of the rightfulness of their authority; forbid the use of +the suffrage; prevent the election of any successors; disarm, plunder, +imprison, and even kill all who refuse submission. If, therefore, the +government (all departments united) be absolute for a day--that is, if +it can, for a day, enforce obedience to its own laws--it can, in that +day, secure its power for all time--like the queen, who wished to reign +but for a day, but in that day caused the king, her husband, to be +slain, and usurped his throne. + +Nor will it avail to say that such acts would be unconstitutional, and +that unconstitutional acts may be lawfully resisted; for everything a +government pleases to do will, of course, be determined to be +constitutional, if the government itself be permitted to determine the +question of the constitutionality of its own acts. Those who are capable +of tyranny, are capable of perjury to sustain it. + +The conclusion, therefore, is, that any government, that can, _for a +day_, enforce its own laws, without appealing to the people, (or to a +tribunal fairly representing the people,) for their consent, is, in +theory, an absolute government, irresponsible to the people, and can +perpetuate its power at pleasure. + +The trial by jury is based upon a recognition of this principle, and +therefore forbids the government to execute any of its laws, by +punishing violators, in any case whatever, without first getting the +consent of "the country," or the people, through a jury. In this way, +the people, at all times, hold their liberties in their own hands, and +never surrender them, even for a moment, into the hands of the +government. + +The trial by jury, then, gives to any and every individual the liberty, +at any time, to disregard or resist any law whatever of the government, +if he be willing to submit to the decision of a jury, the questions, +whether the law be intrinsically just and obligatory? and whether his +conduct, in disregarding or resisting it, were right in itself? And any +law, which does not, in such trial, obtain the unanimous sanction of +twelve men, taken at random from the people, and judging according to +the standard of justice in their own minds, free from all dictation and +authority of the government, may be transgressed and resisted with +impunity, by whomsoever pleases to transgress or resist it.[3] + +The trial by jury authorizes all this, or it is a sham and a hoax, +utterly worthless for protecting the people against oppression. If it do +not authorize an individual to resist the first and least act of +injustice or tyranny, on the part of the government, it does not +authorize him to resist the last and the greatest. If it do not +authorize individuals to nip tyranny in the bud, it does not authorize +them to cut it down when its branches are filled with the ripe fruits of +plunder and oppression. + +Those who deny the right of a jury to protect an individual in resisting +an unjust law of the government, deny him all _legal_ defence +whatsoever against oppression. The right of revolution, which tyrants, +in mockery, accord to mankind, is no _legal_ right _under_ a government; +it is only a _natural_ right to overturn a government. The government +itself never acknowledges this right. And the right is practically +established only when and because the government no longer exists to +call it in question. The right, therefore, can be exercised with +impunity, only when it is exercised victoriously. All _unsuccessful_ +attempts at revolution, however justifiable in themselves, are punished +as treason, if the government be permitted to judge of the treason. The +government itself never admits the injustice of its laws, as a legal +defence for those who have attempted a revolution, and failed. The right +of revolution, therefore, is a right of no practical value, except for +those who are stronger than the government. So long, therefore, as the +oppressions of a government are kept within such limits as simply not to +exasperate against it a power greater than its own, the right of +revolution cannot be appealed to, and is therefore inapplicable to the +case. This affords a wide field for tyranny; and if a jury cannot _here_ +intervene, the oppressed are utterly defenceless. + +It is manifest that the only security against the tyranny of the +government lies in forcible resistance to the execution of the +injustice; because the injustice will certainly be executed, _unless it +be forcibly resisted_. And if it be but suffered to be executed, it must +then be borne; for the government never makes compensation for its own +wrongs. + +Since, then, this forcible resistance to the injustice of the government +is the only possible means of preserving liberty, it is indispensable to +all _legal_ liberty that this _resistance_ should be _legalized_. It is +perfectly self-evident that where there is no _legal_ right to resist +the oppression of the government, there can be no _legal_ liberty. And +here it is all-important to notice, that, _practically speaking_, there +can be no _legal_ right to resist the oppressions of the government, +unless there be some _legal_ tribunal, other than the government, and +wholly independent of, and _above_, the government, to judge between the +government and those who resist its oppressions; in other words, to +judge what laws of the government are to be obeyed, and what may be +resisted and held for nought. The only tribunal known to our laws, for +this purpose, is a jury. If a jury have not the right to judge between +the government and those who disobey its laws, and resist its +oppressions, the government is absolute, and the people, _legally +speaking_, are slaves. Like many other slaves they may have sufficient +courage and strength to keep their masters somewhat in check; but they +are nevertheless _known to the law_ only as slaves. + +That this right of resistance was recognized as a common law right, when +the ancient and genuine trial by jury was in force, is not only proved +by the nature of the trial itself, but is acknowledged by history.[4] + +This right of resistance is recognized by the constitution of the United +States, as a strictly legal and constitutional right. It is so +recognized, first by the provision that "the trial of all crimes, except +in cases of impeachment, shall be by jury"--that is, by the country--and +not by the government; secondly, by the provision that "the right of the +people to keep and bear arms shall not be infringed." This +constitutional security for "the right to keep and bear arms," implies +the right to use them--as much as a constitutional security for the +right to buy and keep food would have implied the right to eat it. The +constitution, therefore, takes it for granted that the people will +judge of the conduct of the government, and that, as they have the +right, they will also have the sense, to use arms, whenever the +necessity of the case justifies it. And it is a sufficient and _legal_ +defence for a person accused of using arms against the government, if he +can show, to the satisfaction of a jury, _or even any one of a jury_, +that the law he resisted was an unjust one. + +In the American _State_ constitutions also, this right of resistance to +the oppressions of the government is recognized, in various ways, as a +natural, legal, and constitutional right. In the first place, it is so +recognized by provisions establishing the trial by jury; thus requiring +that accused persons shall be tried by "the country," instead of the +government. In the second place, it is recognized by many of them, as, +for example, those of Massachusetts, Maine, Vermont, Connecticut, +Pennsylvania, Ohio, Indiana, Michigan, Kentucky, Tennessee, Arkansas, +Mississippi, Alabama, and Florida, by provisions expressly declaring +that the people shall have the right to bear arms. In many of them also, +as, for example, those of Maine, New Hampshire, Vermont, Massachusetts, +New Jersey, Pennsylvania, Delaware, Ohio, Indiana, Illinois, Florida, +Iowa, and Arkansas, by provisions, in their bills of rights, declaring +that men have a natural, inherent, and inalienable right of "_defending_ +their lives and liberties." This, of course, means that they have a +right to defend them against any injustice _on the part of the +government_, and not merely on the part of private individuals; because +the object of all bills of rights is to assert the rights of individuals +and the people, _as against the government_, and not as against private +persons. It would be a matter of ridiculous supererogation to assert, in +a constitution of government, the natural right of men to defend their +lives and liberties against private trespassers. + +Many of these bills of rights also assert the natural right of all men +to protect their property--that is, to protect it _against the +government_. It would be unnecessary and silly indeed to assert, in a +constitution of government, the natural right of individuals to protect +their property against thieves and robbers. + +The constitutions of New Hampshire and Tennessee also declare that "The +doctrine of non-resistance against arbitrary power and oppression is +absurd, slavish, and destructive of the good and happiness of mankind." + +The legal effect of these constitutional recognitions of the right of +individuals to defend their property, liberties, and lives, against the +government, is to legalize resistance to all injustice and oppression, +of every name and nature whatsoever, on the part of the government. + +But for this right of resistance, on the part of the people, all +governments would become tyrannical to a degree of which few people are +aware. Constitutions are utterly worthless to restrain the tyranny of +governments, unless it be understood that the people will, by force, +compel the government to keep within the constitutional limits. +Practically speaking, no government knows any limits to its power, +except the endurance of the people. But that the people are stronger +than the government, and will resist in extreme cases, our governments +would be little or nothing else than organized systems of plunder and +oppression. All, or nearly all, the advantage there is in fixing any +constitutional limits to the power of a government, is simply to give +notice to the government of the point at which it will meet with +resistance. If the people are then as good as their word, they may keep +the government within the bounds they have set for it; otherwise it will +disregard them--as is proved by the example of all our American +governments, in which the constitutions have all become obsolete, at the +moment of their adoption, for nearly or quite all purposes except the +appointment of officers, who at once become practically absolute, except +so far as they are restrained by the fear of popular resistance. + +The bounds set to the power of the government, by the trial by jury, as +will hereafter be shown, are these--that the government shall never +touch the property, person, or natural or civil rights of an individual, +against his consent, (except for the purpose of bringing them before a +jury for trial,) unless in pursuance and _execution_ of a judgment, or +decree, rendered by a jury in each individual case, upon such evidence, +and such law, as are satisfactory to their own understandings and +consciences, irrespective of all legislation of the government. + +[Footnote 1: To show that this supposition is not an extravagant one, it +may be mentioned that courts have repeatedly questioned jurors to +ascertain whether they were prejudiced _against the government_--that +is, whether they were in favor of, or opposed to, such laws of the +government as were to be put in issue in the then pending trial. This +was done (in 1851) in the United States District Court for the District +of Massachusetts, by Peleg Sprague, the United States district judge, in +empanelling three several juries for the trials of Scott, Hayden, and +Morris, charged with having aided in the rescue of a fugitive slave from +the custody of the United States deputy marshal. This judge caused the +following question to be propounded to all the jurors separately; and +those who answered unfavorably for the purposes of the government, were +excluded from the panel. + + "Do you hold any opinions upon the subject of the Fugitive Slave Law, + so called, which will induce you to refuse to convict a person + indicted under it, if the facts set forth in the indictment, _and + constituting the offence_, are proved against him, and the court + direct you that the law is constitutional?" + +The reason of this question was, that "the Fugitive Slave Law, so +called," was so obnoxious to a large portion of the people, as to render +a conviction under it hopeless, if the jurors were taken +indiscriminately from among the people. + +A similar question was soon afterwards propounded to the persons drawn +as jurors in the United States _Circuit_ Court for the District of +Massachusetts, by Benjamin R. Curtis one of the Justices of the Supreme +Court of the United States, in empanelling a jury for the trial of the +aforesaid Morris on the charge before mentioned; and those who did not +answer the question favorably for the government were again excluded +from the panel. + +It has also been an habitual practice with the Supreme Court of +Massachusetts, in empanelling juries for the trial of _capital_ +offences, to inquire of the persons drawn as jurors whether they had any +conscientious scruples against finding verdicts of guilty in such cases; +that is, whether they had any conscientious scruples against sustaining +the law prescribing death as the punishment of the crime to be tried; +and to exclude from the panel all who answered in the affirmative. + +The only principle upon which these questions are asked, is this--that +no man shall be allowed to serve as juror, unless he be ready to enforce +any enactment of the government, however cruel or tyrannical it may be. + +What is such a jury good for, as a protection against the tyranny of the +government? A jury like that is palpably nothing but a mere tool of +oppression in the hands of the government. A trial by such a jury is +really a trial by the government itself--and not a trial by the +country--because it is a trial only by men specially selected by the +government for their readiness to enforce its own tyrannical measures. + +If that be the true principle of the trial by jury, the trial is utterly +worthless as a security to liberty. The Czar might, with perfect safety +to his authority, introduce the trial by jury into Russia, if he could +but be permitted to select his jurors from those who were ready to +maintain his laws, without regard to their injustice. + +This example is sufficient to show that the very pith of the trial by +jury, as a safeguard to liberty, consists in the jurors being taken +indiscriminately from the whole people, and in their right to hold +invalid all laws which they think unjust.] + +[Footnote 2: The executive has a qualified veto upon the passage of +laws, in most of our governments, and an absolute veto, in all of them, +upon the execution of any laws which he deems unconstitutional; because +his oath to support the constitution (as he understands it) forbids him +to execute any law that he deems unconstitutional.] + +[Footnote 3: And if there be so much as a reasonable _doubt_ of the +justice of the laws, the benefit of that doubt must be given to the +defendant, and not to the government. So that the government must keep +its laws _clearly_ within the limits of justice, if it would ask a jury +to enforce them.] + +[Footnote 4: _Hallam_ says, "The relation established between a lord and +his vassal by the feudal tenure, far from containing principles of any +servile and implicit obedience, permitted the compact to be dissolved in +case of its violation by either party. This extended as much to the +sovereign as to inferior lords. * * If a vassal was aggrieved, and if +justice was denied him, he sent a defiance, that is, a renunciation of +fealty to the king, and was entitled to enforce redress at the point of +his sword. It then became a contest of strength as between two +independent potentates, and was terminated by treaty, advantageous or +otherwise, according to the fortune of war. * * There remained the +original principle, that allegiance depended conditionally upon good +treatment, and that an appeal might be _lawfully_ made to arms against +an oppressive government. Nor was this, we may be sure, left for extreme +necessity, or thought to require a long-enduring forbearance. In modern +times, a king, compelled by his subjects' swords to abandon any +pretension, would be supposed to have ceased to reign; and the express +recognition of such a right as that of insurrection has been justly +deemed inconsistent with the majesty of law. But ruder ages had ruder +sentiments. Force was necessary to repel force; and men accustomed to +see the king's authority defied by a private riot, were not much shocked +when it was resisted in defence of public freedom."--_3 Middle Ages_, +240-2.] + + + + +CHAPTER II. + +THE TRIAL BY JURY, AS DEFINED BY MAGNA CARTA. + + +That the trial by jury is all that has been claimed for it in the +preceding chapter, is proved both by the history and the language of the +Great Charter of English Liberties, to which we are to look for a true +definition of the trial by jury, and of which the guaranty for that +trial is the vital, and most memorable, part. + + +SECTION I. + +_The History of Magna Carta._ + +In order to judge of the object and meaning of that chapter of Magna +Carta which secures the trial by jury, it is to be borne in mind that, +at the time of Magna Carta, the king (with exceptions immaterial to this +discussion, but which will appear hereafter) was, constitutionally, the +entire government; the sole _legislative_, _judicial_, and executive +power of the nation. The executive and judicial officers were merely his +servants, appointed by him, and removable at his pleasure. In addition +to this, "the king himself often sat in his court, which always attended +his person. He there heard causes, and pronounced judgment; and though +he was assisted by the advice of other members, it is not to be imagined +that a decision could be obtained contrary to his inclination or +opinion."[5] Judges were in those days, and afterwards, such abject +servants of the king, that "we find that King Edward I. (1272 to 1307) +fined and imprisoned his judges, in the same manner as Alfred the Great, +among the Saxons, had done before him, by the sole exercise of his +authority."[6] + +Parliament, so far as there was a parliament, was a mere _council_ of +the king.[7] It assembled only at the pleasure of the king; sat only +during his pleasure; and when sitting had no power, so far as _general_ +legislation was concerned, beyond that of simply _advising_ the king. +The only legislation to which their assent was constitutionally +necessary, was demands for money and military services for +_extraordinary_ occasions. Even Magna Carta itself makes no provisions +whatever for any parliaments, except when the king should want means to +carry on war, or to meet some other _extraordinary_ necessity.[8] He had +no need of parliaments to raise taxes for the _ordinary_ purposes of +government; for his revenues from the rents of the crown lands and other +sources, were ample for all except extraordinary occasions. Parliaments, +too, when assembled, consisted only of bishops, barons, and other great +men of the kingdom, unless the king chose to invite others.[9] There was +no House of Commons at that time, and the people had no right to be +heard, unless as petitioners.[10] + +Even when laws were made at the time of a parliament, they were made in +the name of the king alone. Sometimes it was inserted in the laws, that +they were made with the _consent_ or _advice_ of the bishops, barons, +and others assembled; but often this was omitted. Their consent or +advice was evidently a matter of no legal importance to the enactment or +validity of the laws, but only inserted, when inserted at all, with a +view of obtaining a more willing submission to them on the part of the +people. The style of enactment generally was, either "_The King wills +and commands_," or some other form significant of the sole legislative +authority of the king. The king could pass laws at any time when it +pleased him. The presence of a parliament was wholly unnecessary. Hume +says, "It is asserted by Sir Harry Spelman, as an undoubted fact, that, +during the reigns of the Norman princes, every order of the king, issued +with the consent of his privy council, had the full force of law."[11] +And other authorities abundantly corroborate this assertion.[12] + +The king was, therefore, constitutionally the government; and the only +legal limitation upon his power seems to have been simply the _Common +Law_, usually called "_the law of the land_," which he was bound by oath +to maintain; (which oath had about the same practical value as similar +oaths have always had.) This "law of the land" seems not to have been +regarded at all by many of the kings, except so far as they found it +convenient to do so, or were constrained to observe it by the fear of +arousing resistance. But as all people are slow in making resistance, +oppression and usurpation often reached a great height; and, in the case +of John, they had become so intolerable as to enlist the nation almost +universally against him; and he was reduced to the necessity of +complying with any terms the barons saw fit to dictate to him. + +It was under these circumstances, that the Great Charter of English +Liberties was granted. The barons of England, sustained by the common +people, having their king in their power, compelled him, as the price of +his throne, to pledge himself that he would punish no freeman for a +violation of any of his laws, unless with the consent of the peers--that +is, the equals--of the accused. + +The question here arises, Whether the barons and people intended that +those peers (the jury) should be mere puppets in the hands of the king, +exercising no opinion of their own as to the intrinsic merits of the +accusations they should try, or the _justice_ of the laws they should be +called on to enforce? Whether those haughty and victorious barons, when +they had their tyrant king at their feet, gave back to him his throne, +with full power to enact any tyrannical laws he might please, reserving +only to a jury ("the country") the contemptible and servile privilege of +ascertaining, (under the dictation of the king, or his judges, as to the +laws of evidence), the simple _fact_ whether those laws had been +transgressed? Was this the only restraint, which, when they had all +power in their hands, they placed upon the tyranny of a king, whose +oppressions they had risen in arms to resist? Was it to obtain such a +charter as that, that the whole nation had united, as it were, like one +man, against their king? Was it on such a charter that they intended to +rely, for all future time, for the security of their liberties? No. They +were engaged in no such senseless work as that. On the contrary, when +they required him to renounce forever the power to punish any freeman, +unless by the consent of his peers, they intended those peers should +judge of, and try, the whole case on its merits, independently of all +arbitrary legislation, or judicial authority, on the part of the king. +In this way they took the liberties of each individual--and thus the +liberties of the whole people--entirely out of the hands of the king, +and out of the power of his laws, and placed them in the keeping of the +people themselves. And this it was that made the trial by jury the +palladium of their liberties. + +The trial by jury, be it observed, was the only real barrier interposed +by them against absolute despotism. Could this trial, then, have been +such an entire farce as it necessarily must have been, if the jury had +had no power to judge of the justice of the laws the people were +required to obey? Did it not rather imply that the jury were to judge +independently and fearlessly as to everything involved in the charge, +and especially as to its intrinsic justice, and thereon give their +decision, (unbiased by any legislation of the king,) whether the accused +might be punished? The reason of the thing, no less than the historical +celebrity of the events, as securing the liberties of the people, and +the veneration with which the trial by jury has continued to be +regarded, notwithstanding its essence and vitality have been almost +entirely extracted from it in practice, would settle the question, if +other evidences had left the matter in doubt. + +Besides, if his laws were to be authoritative with the jury, why should +John indignantly refuse, as at first he did, to grant the charter, (and +finally grant it only when brought to the last extremity,) on the ground +that it deprived him of all power, and left him only the name of a king? +_He_ evidently understood that the juries were to veto his laws, and +paralyze his power, at discretion, by forming their own opinions as to +the true character of the offences they were to try, and the laws they +were to be called on to enforce; and that "_the king wills and +commands_" was to have no weight with them contrary to their own +judgments of what was intrinsically right.[13] + +The barons and people having obtained by the charter all the liberties +they had demanded of the king, it was further provided by the charter +itself that twenty-five barons should be appointed by the barons, out of +their number, to keep special vigilance in the kingdom to see that the +charter was observed, with authority to make war upon the king in case +of its violation. The king also, by the charter, so far absolved all the +people of the kingdom from their allegiance to him, as to authorize and +require them to swear to obey the twenty-five barons, in case they +should make war upon the king for infringement of the charter. It was +then thought by the barons and people, that something substantial had +been done for the security of their liberties. + +This charter, in its most essential features, and without any abatement +as to the trial by jury, has since been confirmed more than thirty +times; and the people of England have always had a traditionary idea +that it was of some value as a guaranty against oppression. Yet that +idea has been an entire delusion, unless the jury have had the right to +judge of the justice of the laws they were called on to enforce. + + +SECTION II. + +_The Language of Magna Carta._ + +The language of the Great Charter establishes the same point that is +established by its history, viz., that it is the right and duty of the +jury to judge of the justice of the laws. + +The chapter guaranteeing the trial by jury is in these words: + + "Nullus liber homo capiatur, vel imprisonetur, aut disseisetur, aut + utlagetur, aut exuletur, aut aliquo modo destruatur; nec super eum + ibimus, nec super eum mittemus, nisi per legale judicium parium + suorum, vel per legem terræ."[14] + +The corresponding chapter in the Great Charter, granted by Henry III., +(1225,) and confirmed by Edward I., (1297,) (which charter is now +considered the basis of the English laws and constitution,) is in nearly +the same words, as follows: + + "Nullus liber homo capiatur, vel imprisonetur, aut disseisetur de + libero tenemento, vel libertatibus, vel liberis consuetudinibus suis, + aut utlagetur, aut exuletur, aut aliquo modo destruatur, nec super + eum ibimus, nec super eum mittemus, nisi per legale judicium parium + suorum, vel per legem terræ." + +The most common translation of these words, at the present day, is as +follows: + + "No freeman shall be arrested, or imprisoned, or deprived of his + freehold, or his liberties, or free customs, or outlawed, or exiled, + or in any manner destroyed, _nor will we (the king) pass upon him, + nor condemn him_, unless by the judgment of his peers, or the law of + the land." + + "_Nec super eum ibimus, nec super eum mittemus._" + +There has been much confusion and doubt as to the true meaning of the +words, "_nec super eum ibimus, nec super eum mittemus_." The more common +rendering has been, "_nor will we pass upon him, nor condemn him_." But +some have translated them to mean, "_nor will we pass upon him, nor +commit him to prison_." Coke gives still a different rendering, to the +effect that "No man shall be condemned at the king's suit, either before +the king in his bench, nor before any other commissioner or judge +whatsoever."[15] + +But all these translations are clearly erroneous. In the first place, +"_nor will we pass upon him_,"--meaning thereby to decide upon his guilt +or innocence _judicially_--is not a correct rendering of the words, +"_nec super eum ibimus_." There is nothing whatever, in these latter +words, that indicates _judicial_ action or opinion at all. The words, in +their common signification, describe _physical_ action alone. And the +true translation of them, as will hereafter be seen, is, _"nor will we +proceed against him," executively_. + +In the second place, the rendering, "_nor will we condemn him_," bears +little or no analogy to any common, or even uncommon, signification of +the words "_nec super eum mittemus_." There is nothing in these latter +words that indicates _judicial_ action or decision. Their common +signification, like that of the words _nec super eum ibimus_, describes +_physical_ action alone. "_Nor will we send upon (or against) him_," +would be the most obvious translation, and, as we shall hereafter see, +such is the true translation. + +But although these words describe _physical_ action, on the part of the +king, as distinguished from judicial, they nevertheless do not mean, as +one of the translations has it, "_nor will we commit him to prison_;" +for that would be a mere repetition of what had been already declared by +the words "_nec imprisonetur_." Besides, there is nothing about prisons +in the words "_nec super eum mittemus_;" nothing about sending _him_ +anywhere; but only about sending (something or somebody) _upon_ him, or +_against_ him--that is, _executively_. + +Coke's rendering is, if possible, the most absurd and gratuitous of all. +What is there in the words, "_nec super eum mittemus_" that can be made +to mean "_nor shall he be condemned before any other commissioner or +judge whatsoever_?" Clearly there is nothing. The whole rendering is a +sheer fabrication. And the whole object of it is to give color for the +exercise of a _judicial_ power, by the king, or his judges, which is +nowhere given them. + +Neither the words, "_nec super eum ibimus, nec super eum mittemus_," nor +any other words in the whole chapter, authorize, provide for, describe, +or suggest, any _judicial_ action whatever, on the part either of the +king, or of his judges, or of anybody, _except the peers, or jury_. +There is nothing about the king's _judges_ at all. And there is nothing +whatever, in the whole chapter, _so far as relates to the action of the +king_, that describes or suggests anything but _executive_ action.[16] + +But that all these translations are certainly erroneous, is proved by a +temporary charter, granted by John a short time previous to the Great +Charter, for the purpose of giving an opportunity for conference, +arbitration, and reconciliation between him and his barons. It was to +have force until the matters in controversy between them could be +submitted to the Pope, and to other persons to be chosen, some by the +king, and some by the barons. The words of the charter are as follows: + +"Sciatis nos concessisse baronibus nostris qui contra nos sunt quod nec +eos nec homines suos capiemus, nec disseisiemus _nec super eos per vim +vel per arma ibimus_ nisi per legem regni nostri vel per judicium parium +suorum in curia nostra donec consideratio facta fuerit," &c., &c. + +That is, "Know that we have granted to our barons who are opposed to us, +that we will neither arrest them nor their men, nor disseize them, _nor +will we proceed against them by force or by arms_, unless by the law of +our kingdom, or by the judgment of their peers in our court, until +consideration shall be had," &c., &c. + +A copy of this charter is given in a note in Blackstone's Introduction +to the Charters.[17] + +Mr. Christian speaks of this charter as settling the true meaning of the +corresponding clause of Magna Carta, on the principle that laws and +charters on the same subject are to be construed with reference to each +other. See _3 Christian's Blackstone_, 41, _note_. + +The true meaning of the words, _nec super eum ibimus, nec super eum +mittemus_, is also proved by the "_Articles of the Great Charter of +Liberties_," demanded of the king by the barons, and agreed to by the +king, under seal, a few days before the date of the Charter, and from +which the Charter was framed.[18] Here the words used are these: + + "Ne corpus liberi hominis capiatur nec imprisonetur nec disseisetur + nec utlagetur nec exuletur nec aliquo modo destruatur _nec rex eat + vel mittat super eum vi_ nisi per judicium parium suorum vel per + legem terræ." + + That is, "The body of a freeman shall not be arrested, nor + imprisoned, nor disseized, nor outlawed, nor exiled, nor in any + manner destroyed, _nor shall the king proceed or send (any one) + against him_ WITH FORCE, unless by the judgment of his peers, or the + law of the land." + +The true translation of the words _nec super eum ibimus, nec super eum +mittemus_, in Magna Carta, is thus made certain, as follows, "_nor will +we (the king) proceed against him, nor send (any one) against him_ WITH +FORCE OR ARMS."[19] + +It is evident that the difference between the true and false +translations of the words, _nec super eum ibimus, nec super eum +mittemus_, is of the highest legal importance, inasmuch as the true +translation, _nor will we (the king) proceed against him, nor send (any +one) against him by force or arms_, represents the king only in an +_executive_ character, _carrying the judgment of the peers and "the law +of the land" into execution_; whereas the false translation, _nor will +we pass upon him, nor condemn him_, gives color for the exercise of a +_judicial_ power, on the part of the king, to which the king had no +right, but which, according to the true translation, belongs wholly to +the jury. + + "_Per legale judicium parium suorum._" + +The foregoing interpretation is corroborated, (if it were not already +too plain to be susceptible of corroboration,) by the true +interpretation of the phrase "_per legale judicium parium suorum_." + +In giving this interpretation, I leave out, for the present, the word +_legale_, which will be defined afterwards. + +The true meaning of the phrase, _per judicium parium suorum_, is, +_according to the sentence of his peers_. The word _judicium, judgment_, +has a technical meaning in the law, signifying the decree rendered in +the decision of a cause. In civil suits this decision is called a +_judgment_; in chancery proceedings it is called a _decree_; in criminal +actions it is called a _sentence_, or _judgment_, indifferently. Thus, +in a criminal suit, "a motion in arrest of _judgment_" means a motion in +arrest of _sentence_.[20] + +In cases of sentence, therefore, in criminal suits, the words _sentence_ +and _judgment_ are synonymous terms. They are, to this day, commonly +used in law books as synonymous terms. And the phrase _per judicium +parium suorum_, therefore, implies that the jury are to fix the +sentence. + +The word _per_ means _according to_. Otherwise there is no sense in the +phrase _per judicium parium suorum_. There would be no sense in saying +that a king might imprison, disseize, outlaw, exile, or otherwise punish +a man, or proceed against him, or send any one against him, _by force or +arms, by_ a judgment of his peers; but there is sense in saying that the +king may imprison, disseize, and punish a man, or proceed against him, +or send any one against him, by force or arms, _according to_ a +judgment, or _sentence_, of his peers; because in that case the king +would be merely carrying the sentence or judgment of the peers into +execution. + +The word _per_, in the phrase "_per_ judicium parium suorum," of course +means precisely what it does in the next phrase, "_per_ legem terræ;" +where it obviously means _according to_, and not _by_, as it is usually +translated. There would be no sense in saying that the king might +proceed against a man by force or arms, _by_ the law of the land; but +there is sense in saying that he may proceed against him, by force or +arms, _according to_ the law of the land; because the king would then be +acting only as an executive officer, carrying the law of the land into +execution. Indeed, the true meaning of the word _by_, as used in similar +cases now, always is _according to_; as, for example, when we say a +thing was done by the government, or by the executive, _by law_, we mean +only that it was done by them _according to law_; that is, that they +merely executed the law. + +Or, if we say that the word _by_ signifies _by authority of_, the result +will still be the same; for nothing can be done _by authority of_ law, +except what the law itself authorizes or directs to be done; that is, +nothing can be done by authority of law, except simply to carry the law +itself into execution. So nothing could be done _by authority of_ the +sentence of the peers, or _by authority of_ "the law of the land," +except what the sentence of the peers, or the law of the land, +themselves authorized or directed to be done; nothing, in short, but to +carry the sentence of the peers, or the law of the land, themselves into +execution. + +Doing a thing _by_ law, or _according to_ law, is only carrying the law +into execution. And punishing a man _by_, or _according to_, the +sentence or judgment of his peers, is only carrying that sentence or +judgment into execution. + +If these reasons could leave any doubt that the word _per_ is to be +translated _according to_, that doubt would be removed by the terms of +an antecedent guaranty for the trial by jury, granted by the Emperor +Conrad, of Germany,[21] two hundred years before Magna Carta. Blackstone +cites it as follows:--(_3 Blackstone_, 350.) + +"Nemo beneficium suum perdat, nisi _secundum_ consuetudinem antecessorum +nostrorum, et judicium parium suorum." That is, No one shall lose his +estate,[22] unless _according to_ ("_secundum_") the custom (or law) of +our ancestors, and (_according to_) the sentence (or judgment) of his +peers. + +The evidence is therefore conclusive that the phrase _per judicium +parium suorum_ means _according to the sentence of his peers_; thus +implying that the jury, and not the government, are to fix the sentence. + +If any additional proof were wanted that juries were to fix the +sentence, it would be found in the following provisions of Magna Carta, +viz.: + + "A freeman shall not be amerced for a small crime, (_delicto_,) but + according to the degree of the crime; and for a great crime in + proportion to the magnitude of it, saving to him his + _contenement_;[23] and after the same manner a merchant, saving to + him his merchandise. And a villein shall be amerced after the same + manner, saving to him his waynage,[24] if he fall under our mercy; + _and none of the aforesaid amercements shall be imposed, (or + assessed, ponatur,) but by the oath of honest men of the + neighborhood. Earls and Barons shall not be amerced but by their + peers_, and according to the degree of their crime."[25] + +Pecuniary punishments were the most common punishments at that day, and +the foregoing provisions of Magna Carta show that the amount of those +punishments was to be fixed by the jury. + +Fines went to the king, and were a source of revenue; and if the amounts +of the fines had been left to be fixed by the king, he would have had a +pecuniary temptation to impose unreasonable and oppressive ones. So, +also, in regard to other punishments than fines. If it were left to the +king to fix the punishment, he might often have motives to inflict cruel +and oppressive ones. As it was the object of the trial by jury to +protect the people against all possible oppression from the king, it was +necessary that the jury, and not the king, should fix the +punishments.[26] + +"_Legale._" + +The word "_legale_," in the phrase "_per legale judicium parium +suorum_," doubtless means two things. 1. That the sentence must be given +in a legal manner; that is, by the legal number of jurors, legally +empanelled and sworn to try the cause; and that they give their judgment +or sentence after a legal trial, both in form and substance, has been +had. 2. That the sentence shall be for a legal cause or offence. If, +therefore, a jury should convict and sentence a man, either without +giving him a legal trial, or for an act that was not really and legally +criminal, the sentence itself would not be legal; and consequently this +clause forbids the king to carry such a sentence into execution; for the +clause guarantees that he will execute no judgment or sentence, except +it be _legale judicium_, a legal sentence. Whether a sentence be a legal +one, would have to be ascertained by the king or his judges, on appeal, +or might be judged of informally by the king himself. + +The word "_legale_" clearly did not mean that the _judicium parium +suorum_ (judgment of his peers) should be a sentence which any law (of +the king) should _require_ the peers to pronounce; for in that case the +sentence would not be the sentence of the peers, but only the sentence +of the law, (that is, of the king); and the peers would be only a +mouthpiece of the law, (that is, of the king,) in uttering it. + + "_Per legem terræ._" + +One other phrase remains to be explained, viz., "_per legem terræ_," +"_by the law of the land_." + +All writers agree that this means the _common law_. Thus, Sir Matthew +Hale says: + + "The common law is sometimes called, by way of eminence, _lex terræ_, + as in the statute of _Magna Carta_, chap. 29, where certainly the + common law is principally intended by those words, _aut per legem + terræ_; as appears by the exposition thereof in several subsequent + statutes; and particularly in the statute of 28 Edward III., chap. 3, + which is but an exposition and explanation of that statute. Sometimes + it is called _lex Angliæ_, as in the statute of Merton, cap. 9, + "_Nolumus leges Angliæ mutari_," &c., (We will that the laws of + England be not changed). Sometimes it is called _lex et consuetudo + regni_ (the law and custom of the kingdom); as in all commissions of + oyer and terminer; and in the statutes of 18 Edward I., cap.--, and + _de quo warranto_, and divers others. But most commonly it is called + the Common Law, or the Common Law of England; as in the statute + _Articuli super Chartas_, cap. 15, in the statute 25 Edward III., + cap. 5, (4,) and infinite more records and statutes."--1 _Hale's + History of the Common Law_, 128. + +This common law, or "law of the land," _the king was sworn to maintain_. +This fact is recognized by a statute made at Westminster, in 1346, by +Edward III., which commences in this manner: + + "Edward, by the Grace of God, &c., &c., to the Sheriff of Stafford, + Greeting: Because that by divers complaints made to us, we have + perceived that _the law of the land, which we by oath are bound to + maintain_," &c.--_St. 20 Edward III._ + +The foregoing authorities are cited to show to the unprofessional +reader, what is well known to the profession, that _legem terræ, the law +of the land_, mentioned in Magna Carta, was the common, ancient, +fundamental law of the land, which the kings were bound by oath to +observe; _and that it did not include any statutes or laws enacted by +the king himself, the legislative power of the nation_. + +If the term _legem terræ_ had included laws enacted by the king himself, +the whole chapter of Magna Carta, now under discussion, would have +amounted to nothing as a protection to liberty; because it would have +imposed no restraint whatever upon the power of the king. The king could +make laws at any time, and such ones as he pleased. He could, therefore, +have done anything he pleased, _by the law of the land_, as well as in +any other way, if his own laws had been "_the law of the land_." If his +own laws had been "the law of the land," within the meaning of that term +as used in Magna Carta, this chapter of Magna Carta would have been +sheer nonsense, inasmuch as the whole purport of it would have been +simply that "no man shall be arrested, imprisoned, or deprived of his +freehold, or his liberties, or free customs, or outlawed, or exiled, or +in any manner destroyed (by the king); nor shall the king proceed +against him, nor send any one against him with force and arms, unless by +the judgment of his peers, _or unless the king shall please to do so_." + +This chapter of Magna Carta would, therefore, have imposed not the +slightest restraint upon the power of the king, or afforded the +slightest protection to the liberties of the people, if the laws of the +king had been embraced in the term _legem terræ_. But if _legem terræ_ +was the common law, which the king was sworn to maintain, then a real +restriction was laid upon his power, and a real guaranty given to the +people for their liberties. + +Such, then, being the meaning of _legem terræ_, the fact is established +that Magna Carta took an accused person entirely out of the hands of the +legislative power, that is, of the king; and placed him in the power and +under the protection of his peers, and the common law alone; that, in +short, Magna Carta suffered no man to be punished for violating any +enactment of the legislative power, unless the peers or equals of the +accused freely consented to it, or the common law authorized it; that +the legislative power, _of itself_, was wholly incompetent to _require_ +the conviction or punishment of a man for any offence whatever. + +_Whether Magna Carta allowed of any other trial than by jury._ + +The question here arises, whether "_legem terræ_" did not allow of some +other mode of trial than that by jury. + +The answer is, that, at the time of Magna Carta, it is not probable, +(for the reasons given in the note,) that _legem terræ_ authorized, in +criminal cases, any other trial than the trial by jury; but, if it did, +it certainly authorized none but the trial by battle, the trial by +ordeal, and the trial by compurgators. These were the only modes of +trial, except by jury, that had been known in England, in criminal +cases, for some centuries previous to Magna Carta. All of them had +become nearly extinct at the time of Magna Carta, and it is not probable +that they were included in "_legem terræ_" as that term is used in that +instrument. But if they were included in it, they have now been long +obsolete, and were such as neither this nor any future age will ever +return to.[27] For all practical purposes of the present day, +therefore, it may be asserted that Magna Carta allows no trial whatever +but trial by jury. + +_Whether Magna Carta allowed sentence to be fixed otherwise than by the +jury._ + +Still another question arises on the words _legem terræ_, viz., whether, +in cases where the question of guilt was determined by the jury, the +amount of _punishment_ may not have been fixed by _legem terræ_, the +Common Law, instead of its being fixed by the jury. + +I think we have no evidence whatever that, at the time of Magna Carta, +or indeed at any other time, _lex terræ_, the common law, fixed the +punishment in cases where the question of guilt was tried by a jury; or, +indeed, that it did in any other case. Doubtless certain punishments +were common and usual for certain offences; but I do not think it can be +shown that the _common law_, the _lex terræ_, which the king was sworn +to maintain, required any one specific punishment, or any precise amount +of punishment, for any one specific offence. If such a thing be claimed, +it must be shown, for it cannot be presumed. In fact, the contrary must +be presumed, because, in the nature of things, the amount of punishment +proper to be inflicted in any particular case, is a matter requiring the +exercise of discretion at the time, in order to adapt it to the moral +quality of the offence, which is different in each case, varying with +the mental and moral constitutions of the offenders, and the +circumstances of temptation or provocation. And Magna Carta recognizes +this principle distinctly, as has before been shown, in providing that +freemen, merchants, and villeins, "shall not be amerced for a small +crime, but according to the degree of the crime; and for a great crime +in proportion to the magnitude of it;" and that "none of the aforesaid +amercements shall be imposed (or assessed) but by the oaths of honest +men of the neighborhood;" and that "earls and barons shall not be +amerced but by their peers, and according to the quality of the +offence." + +All this implies that the moral quality of the offence was to be judged +of at the trial, and that the punishment was to be fixed by the +discretion of the peers, or jury, and not by any such unvarying rule as +a common law rule would be. + +I think, therefore, it must be conceded that, in all cases, tried by a +jury, Magna Carta intended that the punishment should be fixed by the +jury, and not by the common law, for these several reasons. + +1. It is uncertain whether the _common law_ fixed the punishment of any +offence whatever. + +2. The words "_per judicium parium suorum_," _according to the sentence +of his peers_, imply that the jury fixed the sentence in _some_ cases +tried by them; and if they fixed the sentence in some cases, it must be +presumed they did in all, unless the contrary be clearly shown. + +3. The express provisions of Magna Carta, before adverted to, that no +amercements, or fines, should be imposed upon freemen, merchants, or +villeins, "but by the oath of honest men of the neighborhood," and +"according to the degree of the crime," and that "earls and barons +should not be amerced but by their peers, and according to the quality +of the offence," _proves_ that, at least, there was no common law fixing +the amount of _fines_, or, if there were, that it was to be no longer in +force. And if there was no common law fixing the amount of _fines_, or +if it was to be no longer in force, it is reasonable to infer, (in the +absence of all evidence to the contrary,) either that the common law did +not fix the amount of any other punishment, or that it was to be no +longer in force for that purpose.[28] + +Under the Saxon laws, fines, payable to the injured party, seem to have +been the common punishments for all offences. Even murder was punishable +by a fine payable to the relatives of the deceased. The murder of the +king even was punishable by fine. When a criminal was unable to pay his +fine, his relatives often paid it for him. But if it were not paid, he +was put out of the protection of the law, and the injured parties, (or, +in the case of murder, the kindred of the deceased,) were allowed to +inflict such punishment as they pleased. And if the relatives of the +criminal protected him, it was lawful to take vengeance on them also. +Afterwards the custom grew up of exacting fines also to the king as a +punishment for offences.[29] And this latter was, doubtless, the usual +punishment at the time of Magna Carta, as is evidenced by the fact that +for many years immediately following Magna Carta, nearly or quite all +statutes that prescribed any punishment at all, prescribed that the +offender should "be grievously amerced," or "pay a great fine to the +king," or a "grievous ransom,"--with the alternative in some cases +(perhaps _understood_ in all) of imprisonment, banishment, or outlawry, +in case of non-payment.[30] + +Judging, therefore, from the special provisions in Magna Carta, +requiring _fines_, or amercements, to be imposed only by juries, +(without mentioning any other punishments;) judging, also, from the +statutes which immediately followed Magna Carta, it is probable that the +Saxon custom of punishing all, or nearly all, offences by _fines_, (with +the alternative to the criminal of being imprisoned, banished, or +outlawed, and exposed to private vengeance, in case of non-payment,) +continued until the time of Magna Carta; and that in providing expressly +that _fines_ should be fixed by the juries, Magna Carta provided for +nearly or quite all the punishments that were expected to be inflicted; +that if there were to be any others, they were to be fixed by the +juries; and consequently that nothing was left to be fixed by "_legem +terræ_." + +But whether the common law fixed the punishment of any offences, or not, +is a matter of little or no practical importance at this day; because we +have no idea of going back to any common law punishments of six hundred +years ago, if, indeed, there were any such at that time. It is enough +for us to know--_and this is what it is material for us to know_--that +the jury fixed the punishments, in all cases, unless they were fixed by +the _common law_; that Magna Carta allowed no punishments to be +prescribed by statute--that is, by the legislative power--nor in any +other manner by the king, or his judges, in any case whatever; and, +consequently, that all statutes prescribing particular punishments for +particular offences, or giving the king's judges any authority to fix +punishments, were void. + +If the power to fix punishments had been left in the hands of the king, +it would have given him a power of oppression, which was liable to be +greatly abused; which there was no occasion to leave with him; and which +would have been incongruous with the whole object of this chapter of +Magna Carta; which object was to take all discretionary or arbitrary +power over individuals entirely out of the hands of the king, and his +laws, and entrust it only to the common law, and the peers, or +jury--that is, the people. + +_What lex terræ did authorize._ + +But here the question arises, What then did "_legem terræ_" authorize +the king, (that is, the government,) to do in the case of an accused +person, if it neither authorized any other trial than that by jury, nor +any other punishments than those fixed by juries? + +The answer is, that, owing to the darkness of history on the point, it +is probably wholly impossible, at this day, to state, _with any +certainty or precision_, anything whatever that the _legem terræ_ of +Magna Carta did authorize the king, (that is, the government,) to do, +(if, indeed, it authorized him to do anything,) in the case of +criminals, _other than to have them tried and sentenced by their peers, +for common law crimes_; and to carry that sentence into execution. + +The trial by jury was a part of _legem terræ_, and we have the means of +knowing what the trial by jury was. The fact that the jury were to fix +the sentence, implies that they were to _try_ the accused; otherwise +they could not know what sentence, or whether any sentence, ought to be +inflicted upon him. Hence it follows that the jury were to judge of +everything involved in the trial; that is, they were to judge of the +nature of the offence, of the admissibility and weight of testimony, and +of everything else whatsoever that was of the essence of the trial. If +anything whatever could be dictated to them, either of law or evidence, +the sentence would not be theirs, but would be dictated to them by the +power that dictated to them the law or evidence. The trial and sentence, +then, were wholly in the hands of the jury. + +We also have sufficient evidence of the nature of the oath administered +to jurors in criminal cases. It was simply, that _they would neither +convict the innocent, nor acquit the guilty_. This was the oath in the +Saxon times, and probably continued to be until Magna Carta. + +We also know that, in case of _conviction_, the sentence of the jury was +not necessarily final; that the accused had the right of appeal to the +king and his judges, and to demand either a new trial, or an acquittal, +if the trial or conviction had been against law. + +So much, therefore, of the _legem terræ_ of Magna Carta, we know with +reasonable certainty. + +We also know that Magna Carta provides that "No bailiff (_balivus_) +shall hereafter put any man to his law, (put him on trial,) on his +single testimony, without credible witnesses brought to support it." +Coke thinks "that under this word _balivus_, in this act, is +comprehended every justice, minister of the king, steward of the king, +steward and bailiff." (2 Inst. 44.) And in support of this idea he +quotes from a very ancient law book, called the Mirror of Justices, +written in the time of Edward I., within a century after Magna Carta. +But whether this were really a common law principle, or whether the +provision grew out of that jealousy of the government which, at the time +of Magna Carta, had reached its height, cannot perhaps now be +determined. + +We also know that, by Magna Carta, amercements, or fines, could not be +imposed to the ruin of the criminal; that, in the case of a freeman, his +_contenement_, or means of subsisting in the condition of a freeman, +must be saved to him; that, in the case of a merchant, his merchandise +must be spared; and in the case of a villein, his _waynage_, or +plough-tackle and carts. This also is likely to have been a principle of +the common law, inasmuch as, in that rude age, when the means of getting +employment as laborers were not what they are now, the man and his +family would probably have been liable to starvation, if these means of +subsistence had been taken from him. + +We also know, _generally_, that, at the time of Magna Carta, _all acts +intrinsically criminal_, all trespasses against persons and property, +were crimes, according to _lex terræ_, or the common law. + +Beyond the points now given, we hardly know anything, probably nothing +_with certainty_, as to what the "_legem terræ_" of _Magna Carta_ did +authorize, in regard to crimes. There is hardly anything extant that can +give us any real light on the subject. + +It would seem, however, that there were, even at that day, some common +law principles governing arrests; and some common law forms and rules as +to holding a man for trial, (by bail or imprisonment;) putting him on +trial, such as by indictment or complaint; summoning and empanelling +jurors, &c., &c. Whatever these common law principles were, Magna Carta +requires them to be observed; for Magna Carta provides for the whole +proceedings, commencing with the arrest, ("no freeman shall be +_arrested_," &c.,) and ending with the execution of the sentence. And it +provides that nothing shall be done, by the government, from beginning +to end, unless according to the sentence of the peers, or "_legem +terræ_," the common law. The trial by peers was a part of _legem terræ_, +and we have seen that the peers must necessarily have governed the whole +proceedings at the trial. But all the proceedings for arresting the man, +and bringing him to trial, must have been had before the case could come +under the cognizance of the peers, and they must, therefore, have been +governed by other rules than the discretion of the peers. We may +_conjecture_, although we cannot perhaps know with much certainty, that +the _lex terræ_, or common law, governing these other proceedings, was +somewhat similar to the common law principles, on the same points, at +the present day. Such seem to be the opinions of Coke, who says that the +phrase _nisi per legem terræ_ means _unless by due process of law_. + +Thus, he says: + +"_Nisi per legem terræ. But by the law of the land._ For the true sense +and exposition of these words, see the statute of 37 Edw. III., cap. 8, +where the words, _by the law of the land_, are rendered _without due +process of law_; for there it is said, though it be contained in the +Great Charter, that no man be taken, imprisoned, or put out of his +freehold, _without process of the law; that is, by indictment or +presentment of good and lawful men, where such deeds be done in due +manner, or by writ original of the common law_. + +"Without being brought in to answer but by due process of the common +law. + +"No man be put to answer without presentment before justices, or thing +of record, or by due process, or by writ original, _according to the old +law of the land_."--_2 Inst._ 50. + +The foregoing interpretations of the words _nisi per legem terræ_ are +corroborated by the following statutes, enacted in the next century +after Magna Carta. + +"That no man, from henceforth, shall be attached by any accusation, nor +forejudged of life or limb, nor his land, tenements, goods, nor +chattels, seized into the king's hands, against the form of the Great +Charter, _and the law of the land_."--_St. 5 Edward III., Ch._ 9. +(1331.) + +"Whereas it is contained in the Great Charter of the franchises of +England, that none shall be imprisoned, nor put out of his freehold, nor +of his franchises, nor free customs, _unless it be by the law of the +land_; it is accorded, assented, and established, that from henceforth +none shall be taken by petition, or suggestion made to our lord the +king, or to his council, _unless it be by indictment or presentment of +good and lawful people of the same neighborhood where such deeds be done +in due manner, or by process made by writ original at the common law_; +nor that none be put out of his franchises, nor of his freehold, _unless +he be duly brought into answer, and forejudged of the same by the course +of the law_; and if anything be done against the same, it shall be +redressed and holden for none."--_St. 25 Edward III., Ch._ 4. (1350.) + +"That no man, of what estate or condition that he be, shall be put out +of land or tenement, nor taken, nor imprisoned, nor disinherited, nor +put to death, without being brought in answer _by due process of +law_."--_St. 28 Edward III., Ch._ 3. (1354.) + +"That no man be put to answer without presentment before justices, or +matter of record, or by due process and writ original, according to the +_old law of the land_. And if anything from henceforth be done to the +contrary, it shall be void in law, and holden for error."--_St. 42 +Edward III., Ch._ 3. (1368.) + +The foregoing interpretation of the words _nisi per legem terræ_--that +is, _by due process of law_--including indictment, &c., has been adopted +as the true one by modern writers and courts; as, for example, by Kent, +(2 _Comm._ 13,) Story, (3 _Comm._ 661,) and the Supreme Court of New +York, (19 _Wendell_, 676; 4 _Hill_, 146.) + +The fifth amendment to the constitution of the United States seems to +have been framed on the same idea, inasmuch as it provides that "no +person shall be deprived of life, liberty, or property, _without due +process of law_."[31] + +_Whether the word_ VEL _should be rendered by_ OR, _or by_ AND. + +Having thus given the meanings, or rather the applications, which the +words _vel per legem terræ_ will reasonably, and perhaps must +necessarily, bear, it is proper to suggest, that it has been supposed by +some that the word _vel_, instead of being rendered by _or_, as it +usually is, ought to be rendered by _and_, inasmuch as the word _vel_ is +often used for _et_, and the whole phrase _nisi per judicium parium +suorum, vel per legem terræ_, (which would then read, unless by the +sentence of his peers, _and_ the law of the land,) would convey a more +intelligible and harmonious meaning than it otherwise does. + +Blackstone suggests that this may be the true reading. (_Charters_, p. +41.) Also Mr. Hallam, who says: + + "Nisi per legale judicium parium suorum, _vel_ per legem terræ. + Several explanations have been offered of the alternative clause; + which some have referred to judgment by default, or demurrer; others + to the process of attachment for contempt. Certainly there are many + legal procedures besides trial by jury, through which a party's goods + or person may be taken. But one may doubt whether these were in + contemplation of the framers of Magna Carta. In an entry of the + Charter of 1217 by a contemporary hand, preserved in the Town-clerk's + office in London, called Liber Custumarum et Regum antiquarum, a + various reading, _et_ per legem terræ, occurs. _Blackstone's + Charters_, p. 42 (41.) And the word _vel_ is so frequently used for + _et_, that I am not wholly free from a suspicion that it was so + intended in this place. The meaning will be, that no person shall be + disseized, &c., except upon a lawful cause of action, found by the + verdict of a jury. This really seems as good as any of the + disjunctive interpretations; but I do not offer it with much + confidence."--2 _Hallam's Middle Ages, Ch._ 8, _Part_ 2, p. 449, + _note_.[32] + +The idea that the word _vel_ should be rendered by _and_, is +corroborated, if not absolutely confirmed, by the following passage in +Blackstone, which has before been cited. Speaking of the trial by jury, +as established by Magna Carta, he calls it, + + "A privilege which is couched in almost the same words with that of + the Emperor Conrad two hundred years before: 'nemo beneficium suum + perdat, nisi secundum consuetudinem antecessorum nostrorum, _et_ + judicium parium suorum.'" (No one shall lose his estate unless + according to the custom of our ancestors, and the judgment of his + peers.)--_3 Blackstone_, 350. + +If the word _vel_ be rendered by _and_, (as I think it must be, at least +in some cases,) this chapter of Magna Carta will then read that no +freeman shall be arrested or punished, "unless according to the sentence +of his peers, _and_ the law of the land." + +The difference between this reading and the other is important. In the +one case, there would be, at first view, some color of ground for saying +that a man might be punished in either of two ways, viz., according to +the sentence of his peers, _or_ according to the law of the land. In the +other case, it requires both the sentence of his peers _and_ the law of +the land (common law) to authorize his punishment. + +If this latter reading be adopted, the provision would seem to exclude +all trials except trial by jury, and all causes of action except those +of the _common law_. + +But I apprehend the word vel must be rendered both by _and_, and by +_or_; that in cases of a _judgment_, it should be rendered by _and_, so +as to require the concurrence both of "the judgment of the peers _and_ +the law of the land," to authorize the king to make execution upon a +party's goods or person; but that in cases of arrest and imprisonment, +simply for the purpose of bringing a man to trial, _vel_ should be +rendered by or, because there can have been no judgment of a jury in +such a case, and "the law of the land" must therefore necessarily be the +only guide to, and restraint upon, the king. If this guide and restraint +were taken away, the king would be invested with an arbitrary and most +dangerous power in making arrests, and confining in prison, under +pretence of an intention to bring to trial. + +Having thus examined the language of this chapter of Magna Carta, so far +as it relates to criminal cases, its legal import may be stated as +follows, viz.: + +No freeman shall be arrested, or imprisoned, or deprived of his +freehold, or his liberties, or free customs, or be outlawed, or exiled, +or in any manner destroyed, (harmed,) nor will we (the king) proceed +against him, nor send any one against him, by force or arms, unless +according to (that is, in execution of) the sentence of his peers, _and_ +(or _or_, as the case may require) the Common Law of England, (as it was +at the time of Magna Carta, in 1215.) + +[Footnote 5: 1 Hume, Appendix 2.] + +[Footnote 6: Crabbe's History of the English Law, 236.] + +[Footnote 7: Coke says, "The king of England is armed with divers +councils, one whereof is called _commune concilium_, (the common +council,) and that is the court of parliament, and so it is _legally_ +called in writs and judicial proceedings _commune concilium regni +Angliæ_, (the common council of the kingdom of England.) And another is +called _magnum concilium_, (great council;) this is sometimes applied to +the upper house of parliament, and sometimes, out of parliament time, to +the peers of the realm, lords of parliament, who are called _magnum +concilium regis_, (the great council of the king;) * * Thirdly, (as +every man knoweth,) the king hath a privy council for matters of state. +* * The fourth council of the king are his judges for law matters." + +_1 Coke's Institutes, 110 a._] + +[Footnote 8: The Great Charter of Henry III., (1216 and 1225,) confirmed +by Edward I., (1297,) makes no provision whatever for, or mention of, a +parliament, unless the provision, (Ch. 37,) that "Escuage, (a military +contribution,) from henceforth shall be taken like as it was wont to be +in the time of King Henry our grandfather," mean that a parliament shall +be summoned for that purpose.] + +[Footnote 9: The Magna Carta of John, (Ch. 17 and 18,) defines those who +were entitled to be summoned to parliament, to wit, "The Archbishops, +Bishops, Abbots, Earls, and Great Barons of the Realm, * * and all +others who hold of us _in chief_." Those who held land of the king _in +chief_ included none below the rank of knights.] + +[Footnote 10: The parliaments of that time were, doubtless, such as +Carlyle describes them, when he says, "The parliament was at first a +most simple assemblage, quite cognate to the situation; that Red +William, or whoever had taken on him the terrible task of being King of +England, was wont to invite, oftenest about Christmas time, his +subordinate Kinglets, Barons as he called them, to give him the pleasure +of their company for a week or two; there, in earnest conference all +morning, in freer talk over Christmas cheer all evening, in some big +royal hall of Westminster, Winchester, or wherever it might be, with log +fires, huge rounds of roast and boiled, not lacking malmsey and other +generous liquor, they took counsel concerning the arduous matters of the +kingdom."] + +[Footnote 11: Hume, Appendix 2.] + +[Footnote 12: This point will be more fully established hereafter.] + +[Footnote 13: It is plain that the king and all his partisans looked +upon the charter as utterly prostrating the king's legislative supremacy +before the discretion of juries. When the schedule of liberties demanded +by the barons was shown to him, (of which the trial by jury was the most +important, because it was the only one that protected all the rest,) +"the king, falling into a violent passion, asked, _Why the barons did +not with these exactions demand his kingdom?_ * * _and with a solemn +oath protested, that he would never grant such liberties as would make +himself a slave_." * * But afterwards, "seeing himself deserted, and +fearing they would seize his castles, he sent the Earl of Pembroke and +other faithful messengers to them, to let them know _he would grant them +the laws and liberties they desired_." * * But after the charter had +been granted, "the king's mercenary soldiers, desiring war more than +peace, were by their leaders continually whispering in his ears, _that +he was now no longer king, but the scorn of other princes; and that it +was more eligible to be no king, than such a one as he_." * * He applied +"to the Pope, that he might by his apostolic authority make void what +the barons had done. * * At Rome he met with what success he could +desire, where all the transactions with the barons were fully +represented to the Pope, and the Charter of Liberties shown to him, in +writing; which, when he had carefully perused, he, with a furious look, +cried out, _What! Do the barons of England endeavor to dethrone a king, +who has taken upon him the Holy Cross, and is under the protection of +the Apostolic See; and would they force him to transfer the dominions of +the Roman Church to others? By St. Peter, this injury must not pass +unpunished._ Then debating the matter with the cardinals, he, by a +definitive sentence, damned and cassated forever the Charter of +Liberties, and sent the king a bull containing that sentence at +large."--_Echard's History of England_, p. 106-7. + +These things show that the nature and effect of the charter were well +understood by the king and his friends; that they all agreed that he was +effectually stripped of power. _Yet the legislative power had not been +taken from him; but only the power to enforce his laws, unless juries +should freely consent to their enforcement._] + +[Footnote 14: The laws were, at that time, all written in Latin.] + +[Footnote 15: "No man shall be condemned at the king's suit, either +before the king in his bench, where pleas are _coram rege_, (before the +king,) (and so are the words _nec super eum ibimus_, to be understood,) +nor before any other commissioner or judge whatsoever, and so are the +words _nec super eum mittemus_, to be understood, but by the judgment of +his peers, that is, equals, or according to the law of the land."--_2 +Coke's Inst._, 46.] + +[Footnote 16: Perhaps the assertion in the text should be made with this +qualification--that the words "_per legem terræ_," (according to the law +of the land,) and the words "_per legale judicium parium suorum_," +(according to the _legal_ judgment of his peers,) imply that the king, +before proceeding to any _executive_ action, will take notice of "the +law of the land," and of the _legality_ of the judgment of the peers, +and will _execute_ upon the prisoner nothing except what the law of the +land authorizes, and no judgments of the peers, except _legal_ ones. +With this qualification, the assertion in the text is strictly +correct--that there is nothing in the whole chapter that grants to the +king, or his judges, any _judicial_ power at all. The chapter only +describes and _limits_ his _executive_ power.] + +[Footnote 17: See Blackstone's Law Tracts, page 294, Oxford Edition.] + +[Footnote 18: These Articles of the Charter are given in Blackstone's +collection of Charters, and are also printed with the _Statutes of the +Realm_. Also in Wilkins' Laws of the Anglo-Saxons, p. 356.] + +[Footnote 19: Lingard says, "The words, '_We will not destroy him, nor +will we go upon him, nor will we send upon him_,' have been very +differently expounded by different legal authorities. Their real meaning +may be learned from John himself, who the next year promised by his +letters patent ... nec super eos _per vim vel per arma_ ibimus, nisi per +legem regni nostri, vel per judicium parium suorum in curia nostra, (nor +will we go upon them _by force or by arms_, unless by the law of our +kingdom, or the judgment of their peers in our court.) Pat. 16 Johan, +apud Drad. 11, app. no. 124. He had hitherto been in the habit of +_going_ with an armed force, or _sending_ an armed force on the lands, +and against the castles, of all whom he knew or suspected to be his +secret enemies, without observing any form of law."--3 Lingard, 47 +note.] + +[Footnote 20: "_Judgment, judicium._ * * The sentence of the law, +pronounced by the court, upon the matter contained in the record."--3 +_Blackstone_, 395. _Jacob's Law Dictionary. Tomlin's do._ + +"_Judgment_ is the decision or sentence of the law, given by a court of +justice or other competent tribunal, as the result of the proceedings +instituted therein, for the redress of an injury."--_Bouvier's Law +Dict._ + +"_Judgment, judicium._ * * Sentence of a judge against a criminal. * * +Determination, decision in general."--_Bailey's Dict._ + +"_Judgment._ * * In a legal sense, a sentence or decision pronounced by +authority of a king, or other power, either by their own mouth, or by +that of their judges and officers, whom they appoint to administer +justice in their stead."--_Chambers' Dict._ + +"_Judgment._ * * In law, the sentence or doom pronounced in any case, +civil or criminal, by the judge or court by which it is +tried."--_Webster's Dict._ + +Sometimes the punishment itself is called _judicium_, _judgment_; or, +rather, it was at the time of Magna Carta. For example, in a statute +passed fifty-one years after Magna Carta, it was said that a baker, for +default in the weight of his bread, "debeat amerciari vel subire +_judicium_ pillorie;" that is, ought to be amerced, or suffer the +punishment, or judgment, of the pillory. Also that a brewer, for +"selling ale contrary to the assize," "debeat amerciari, vel pati +_judicium_ tumbrelli"; that is, ought to be amerced, or suffer the +punishment, or judgment, of the tumbrel.--51 _Henry_ 3, _St._ 6. (1266.) + +Also the "_Statutes of uncertain date_," (but supposed to be prior to +Edward III., or 1326,) provide, in chapters 6, 7, and 10, for +"_judgment_ of the pillory."--_See 1 Ruffhead's Statutes_, 187, 188. 1 +_Statutes of the Realm_, 203. + +Blackstone, in his chapter "Of _Judgment_, and its Consequences," says, + +"_Judgment_ (unless any matter be offered in arrest thereof) follows +upon conviction; being the pronouncing of that punishment which is +expressly ordained by law."--_Blackstone's Analysis of the Laws of +England, Book 4, Ch. 29, Sec. 1. Blackstone's Law Tracts_, 126. + +Coke says, "_Judicium_ ... the judgment is the guide and direction of +the execution." 3 _Inst._ 210.] + +[Footnote 21: This precedent from Germany is good authority, because the +trial by jury was in use, in the northern nations of Europe generally, +long before Magna Carta, and probably from time immemorial; and the +Saxons and Normans were familiar with it before they settled in +England.] + +[Footnote 22: _Beneficium_ was the legal name of an estate held by a +feudal tenure. See Spelman's Glossary.] + +[Footnote 23: _Contenement_ of a freeman was the means of living in the +condition of a freeman.] + +[Footnote 24: _Waynage_ was a villein's plough-tackle and carts.] + +[Footnote 25: Tomlin says, "The ancient practice was, when any such fine +was imposed, to inquire by a jury _quantum inde regi dare valeat per +annum, salva sustentatione sua et uxoris et liberorum suorum_, (how much +is he able to give to the king per annum, saving his own maintenance, +and that of his wife and children). And since the disuse of such +inquest, it is never usual to assess a larger fine than a man is able to +pay, without touching the implements of his livelihood; but to inflict +corporal punishment, or a limited imprisonment, instead of such a fine +as might amount to imprisonment for life. And this is the reason why +fines in the king's courts are frequently denominated ransoms, because +the penalty must otherwise fall upon a man's person, unless it be +redeemed or ransomed by a pecuniary fine."--_Tomlin's Law Dict., word +Fine._] + +[Footnote 26: Because juries were to fix the sentence, it must not be +supposed that the king was _obliged_ to carry the sentence into +execution; _but only that he could not go beyond the sentence_. He might +pardon, or he might acquit on grounds of law, notwithstanding the +sentence; but he could not punish beyond the extent of the sentence. +Magna Carta does not prescribe that the king _shall punish_ according to +the sentence of the peers; but only that he shall not punish _"unless +according to" that sentence_. He may acquit or pardon, notwithstanding +their sentence or judgment; but he cannot punish, except according to +their judgment.] + +[Footnote 27: _The trial by battle_ was one in which the accused +challenged his accuser to single combat, and staked the question of his +guilt or innocence on the result of the duel. This trial was introduced +into England by the Normans, within one hundred and fifty years before +Magna Carta. It was not very often resorted to even by the Normans +themselves; probably never by the Anglo-Saxons, unless in their +controversies with the Normans. It was strongly discouraged by some of +the Norman princes, particularly by Henry II., by whom the trial by jury +was especially favored. It is probable that the trial by battle, so far +as it prevailed at all in England, was rather tolerated as a matter of +chivalry, than authorized as a matter of law. At any rate, it is not +likely that it was included in the "_legem terræ_" of Magna Carta, +although such duels have occasionally occurred since that time, and +have, by some, been supposed to be lawful. I apprehend that nothing can +be properly said to be a part of _lex terræ_, unless it can be shown +either to have been of Saxon origin, or to have been recognized by Magna +Carta. + +_The trial by ordeal_ was of various kinds. In one ordeal the accused +was required to take hot iron in his hand; in another to walk blindfold +among red-hot ploughshares; in another to thrust his arm into boiling +water; in another to be thrown, with his hands and feet bound, into cold +water; in another to swallow the _morsel of execration_; in the +confidence that his guilt or innocence would be miraculously made known. +This mode of trial was nearly extinct at the time of Magna Carta, and it +is not likely that it was included in "_legem terræ_," as that term is +used in that instrument. This idea is corroborated by the fact that the +trial by ordeal was specially prohibited only four years after Magna +Carta, "by act of Parliament in 3 Henry III., according to Sir Edward +Coke, or rather by an order of the king in council."--_3 Blackstone_ +345, _note_. + +I apprehend that this trial was never forced upon accused persons, but +was only allowed to them, _as an appeal to God_, from the judgment of a +jury.[33] + +_The trial by compurgators_ was one in which, if the accused could bring +twelve of his neighbors, who would make oath that they believed him +innocent, he was held to be so. It is probable that this trial was +really the trial by jury, or was allowed as an appeal from a jury. It is +wholly improbable that two different modes of trial, so nearly +resembling each other as this and the trial by jury do, should prevail +at the same time, and among a rude people, whose judicial proceedings +would naturally be of the simplest kind. But if this trial really were +any other than the trial by jury, it must have been nearly or quite +extinct at the time of Magna Carta; and there is no probability that it +was included in "_legem terræ_."] + +[Footnote 28: Coke attempts to show that there is a distinction between +amercements and fines--admitting that amercements must be fixed by one's +peers, but claiming that fines may be fixed by the government. (_2 +Inst._ 27, _8 Coke's Reports_ 38.) But there seems to have been no +ground whatever for supposing that any such distinction existed at the +time of Magna Carta. If there were any such distinction in the time of +Coke, it had doubtless grown up within the four centuries that had +elapsed since Magna Carta, and is to be set down as one of the +numberless inventions of government for getting rid of the restraints of +Magna Carta, and for taking men out of the protection of their peers, +and subjecting them to such punishments as the government chooses to +inflict. + +The first statute of Westminster, passed sixty years after Magna Carta, +treats the fine and amercement as synonymous, as follows: + +"Forasmuch as _the common fine and amercement_ of the whole county in +Eyre of the justices for false judgments, or for other trespass, is +unjustly assessed by sheriffs and baretors in the shires, * * it is +provided, and the king wills, that from henceforth such sums shall be +assessed before the justices in Eyre, afore their departure, _by the +oath of knights and other honest men_," &c.--_3 Edward I., Ch._ 18. +(1275.) + +And in many other statutes passed after Magna Carta, the terms _fine_ +and _amercement_ seem to be used indifferently, in prescribing the +punishment for offences. As late as 1461, (246 years after Magna Carta,) +the statute _1 Edward IV., Ch._ 2, speaks of "_fines, ransoms, and +amerciaments_" as being levied upon criminals, as if they were the +common punishments of offences. + +_St._ 2 and 3 _Philip and Mary, Ch._ 8, uses the terms, "_fines, +forfeitures, and amerciaments_" five times. (1555.) + +_St. 5 Elizabeth, Ch._ 13, _Sec._ 10, uses the terms "_fines, +forfeitures, and amerciaments_." + +That amercements were fines, or pecuniary punishments, inflicted for +offences, is proved by the following statutes, (all supposed to have +been passed within one hundred and fifteen years after Magna Carta,) +which speak of amercements as a species of "_judgment_," or punishment, +and as being inflicted for the same offences as other "judgments." + +Thus one statute declares that a baker, for default in the weight of his +bread, "ought to be _amerced_, or suffer the _judgment_ of the pillory;" +and that a brewer, for "selling ale contrary to the assize," "ought to +be _amerced_, or suffer the _judgment_ of the tumbrel."--_51 Henry III., +St._ 6. (1266.) + +Among the "_Statutes of Uncertain Date_," but supposed to be prior to +Edward III., (1326,) are the following: + +_Chap._ 6 provides that "if a brewer break the assize, (fixing the price +of ale,) the first, second, and third time, he shall be _amerced_; but +the fourth time he shall suffer _judgment_ of the pillory without +redemption." + +_Chap._ 7 provides that "a butcher that selleth swine's flesh measled, +or flesh dead of the murrain, or that buyeth flesh of Jews, and selleth +the same unto Christians, after he shall be convict thereof, for the +first time he shall be grievously _amerced_; the second time he shall +suffer _judgment_ of the pillory; and the third time he shall be +imprisoned and make _fine_; and the fourth time he shall forswear the +town." + +_Chap. 10_, a statute against _forestalling_, provides that, + +"He that is convict thereof, the first time shall be _amerced_, and +shall lose the thing so bought, and that according to the custom of the +town; he that is convicted the second time shall have _judgment_ of the +pillory; at the third time he shall be imprisoned and make _fine_; the +fourth time he shall abjure the town. And this _judgment_ shall be given +upon all manner of forestallers, and likewise upon them that have given +them counsel, help, or favor."--_1 Ruffhead's Statutes_, 187, 188. _1 +Statutes of the Realm_, 203.] + +[Footnote 29: 1 Hume, Appendix, 1.] + +[Footnote 30: Blackstone says, "Our ancient Saxon laws nominally +punished theft with death, if above the value of twelve pence; but the +criminal was permitted to redeem his life by a pecuniary ransom, as +among their ancestors, the Germans, by a stated number of cattle. But in +the ninth year of Henry the First, (1109,) this power of redemption was +taken away, and all persons guilty of larceny above the value of twelve +pence were directed to be hanged, which law continues in force to this +day."--_4 Blackstone_, 238. + +I give this statement of Blackstone, because the latter clause may seem +to militate with the idea, which the former clause corroborates, viz., +that at the time of Magna Carta, fines were the usual punishments of +offences. But I think there is no probability that a law so unreasonable +in itself, (unreasonable even after making all allowance for the +difference in the value of money,) and so contrary to immemorial custom, +could or did obtain any general or speedy acquiescence among a people +who cared little for the authority of kings. + +Maddox, writing of the period from William the Conqueror to John, says: + +"The amercements in criminal and common pleas, which were wont to be +imposed during this first period and afterwards, were of so many several +sorts, that it is not easy to place them under distinct heads. Let them, +for method's sake, be reduced to the heads following: Amercements for or +by reason of murders and manslaughters, for misdemeanors, for +disseisins, for recreancy, for breach of assize, for defaults, for +non-appearance, for false judgment, and for not making suit, or hue and +cry. To them may be added miscellaneous amercements, for trespasses of +divers kinds."--_1 Maddox' History of the Exchequer_, 542.] + +[Footnote 31: Coke, in his exposition of the words _legem terræ_, gives +quite in detail the principles of the common law governing _arrests_; +and takes it for granted that the words "_nisi per legem terræ_" are +applicable to arrests, as well as to the indictment, &c.--2 _Inst._, +51,52.] + +[Footnote 32: I cite the above extract from Mr. Hallam solely for the +sake of his authority for rendering the word _vel_ by _and_; and not by +any means for the purpose of indorsing the opinion he suggests, that +_legem terræ_ authorized "judgments by default or demurrer," _without +the intervention of a jury_. He seems to imagine that _lex terræ_, the +common law, at the time of Magna Carta, included everything, even to the +practice of courts, that is, _at this day_, called by the name of +_Common Law_; whereas much of what is _now_ called Common Law has grown +up, by usurpation, since the time of Magna Carta, in palpable violation +of the authority of that charter. He says, "Certainly there are many +legal procedures, besides _trial_ by jury, through which a party's goods +or person may be taken." Of course there are _now_ many such ways, in +which a party's goods or person _are_ taken, besides by the judgment of +a jury; but the question is, whether such takings are not in violation +of Magna Carta. + +He seems to think that, in cases of "judgment by default or demurrer," +there is no need of a jury, and thence to infer that _legem terræ_ may +not have required a jury in those cases. But this opinion is founded on +the erroneous idea that juries are required only for determining +contested _facts_, and not for judging of the law. In case of default, +the plaintiff must present a _prima facie_ case before he is entitled to +a judgment; and Magna Carta, (supposing it to require a jury trial in +civil cases, as Mr. Hallam assumes that it does,) as much requires that +this _prima facie_ case, both law and fact, be made out to the +satisfaction of a jury, as it does that a contested case shall be. + +As for a demurrer, the jury must try a demurrer (having the advice and +assistance of the court, of course) as much as any other matter of law +arising in a case. + +Mr. Hallam evidently thinks there is no use for a jury, except where +there is a "_trial_"--meaning thereby a contest on matters of _fact_. +His language is, that "there are many legal procedures, besides _trial_ +by jury, through which a party's goods or person may be taken." Now +Magna Carta says nothing of _trial_ by jury; but only of the _judgment_, +or sentence, of a jury. It is only _by inference_ that we come to the +conclusion that there must be a _trial_ by jury. Since the jury alone +can give the _judgment_, or _sentence_, we _infer_ that they must _try_ +the case; because otherwise they would be incompetent, and would have no +moral right, to give _judgment_. They must, therefore, examine the +grounds, (both of law and fact,) or rather _try_ the grounds, of every +action whatsoever, whether it be decided on "default, demurrer," or +otherwise, and render their judgment, or sentence, thereon, before any +judgment can be a legal one, on which "to take a party's goods or +person." In short, the principle of Magna Carta is, that no judgment can +be valid _against a party's goods or person_, (not even a judgment for +costs,) except a judgment rendered by a jury. Of course a jury must try +every question, both of law and fact, that is involved in the rendering +of that judgment. They are to have the assistance and advice of the +judges, so far as they desire them; but the judgment itself must be +theirs, and not the judgment of the court. + +As to "process of attachment for contempt," it is of course lawful for a +judge, in his character of a peace officer, to issue a warrant for the +arrest of a man guilty of a contempt, as he would for the arrest of any +other offender, and hold him to bail, (or, in default of bail, commit +him to prison,) to answer for his offence before a jury. Or he may order +him into custody without a warrant when the offence is committed in the +judge's presence. But there is no reason why a judge should have the +power of _punishing_ for contempt, any more than for any other offence. +And it is one of the most dangerous powers a judge can have, because it +gives him absolute authority in a court of justice, and enables him to +tyrannize as he pleases over parties, counsel, witnesses, and jurors. If +a judge have power to punish for contempt, and to determine for himself +what is a contempt, the whole administration of justice (or injustice, +if he choose to make it so) is in his hands. And all the rights of +jurors, witnesses, counsel, and parties, are held subject to his +pleasure, and can be exercised only agreeably to his will. He can of +course control the entire proceedings in, and consequently the decision +of, every cause, by restraining and punishing every one, whether party, +counsel, witness, or juror, who presumes to offer anything contrary to +his pleasure. + +This arbitrary power, which has been usurped and exercised by judges to +punish for contempt, has undoubtedly had much to do in subduing counsel +into those servile, obsequious, and cowardly habits, which so +universally prevail among them, and which have not only cost so many +clients their rights, but have also cost the people so many of their +liberties. + +If any _summary_ punishment for contempt be ever necessary, (as it +probably is not,) beyond exclusion for the time being from the +court-room, (which should be done, not as a punishment, but for +self-protection, and the preservation of order,) the judgment for it +should be given by the jury, (where the trial is before a jury,) and not +by the court, for the jury, and not the court, are really the judges. +For the same reason, exclusion from the court-room should be ordered +only by the jury, in cases when the trial is before a jury, because +they, being the real judges and triers of the cause, are entitled, if +anybody, to the control of the court-room. In appeal courts, where no +juries sit, it may be necessary--not as a punishment, but for +self-protection, and the maintenance of order--that the court should +exercise the power of excluding a person, for the time being, from the +court-room; but there is no reason why they should proceed to sentence +him as a criminal, without his being tried by a jury. + +If the people wish to have their rights respected and protected in +courts of justice, it is manifestly of the last importance that they +jealously guard the liberty of parties, counsel, witnesses, and jurors, +against all arbitrary power on the part of the court. + +Certainly Mr. Hallam may very well say that "one may doubt whether these +(the several cases he has mentioned) were in contemplation of the +framers of Magna Carta"--that is, as exceptions to the rule requiring +that all judgments, that are to be enforced "_against a party's goods or +person_," be rendered by a jury. + +Again, Mr. Hallam says, if the word _vel_ be rendered by _and_, "the +meaning will be, that no person shall be disseized, &c., _except upon a +lawful cause of action_." This is true; but it does not follow that any +cause of action, founded on _statute only_, is therefore a "_lawful_ +cause of action," within the meaning of _legem terræ_, or the _Common +Law_. Within the meaning of the _legem terræ_ of Magna Carta, nothing +but a _common law_ cause of action is a "_lawful_" one.] + +[Footnote 33: Hallam says, "It appears as if the ordeal were permitted +to persons already convicted by this verdict of a jury."--_2 Middle +Ages_, 446, _note_.] + + + + +CHAPTER III. + +ADDITIONAL PROOFS OF THE RIGHTS AND DUTIES OF JURORS. + + +If any evidence, extraneous to the history and language of Magna Carta, +were needed to prove that, by that chapter which guaranties the trial by +jury, all was meant that has now been ascribed to it, and _that the +legislation of the king was to be of no authority with the jury beyond +what they chose to allow to it_, and that the juries were to limit the +punishments to be inflicted, we should find that evidence in various +sources, such as the laws, customs, and characters of their ancestors on +the continent, and of the northern Europeans generally; in the +legislation and customs that immediately succeeded Magna Carta; in the +oaths that have at different times been administered to jurors, &c., &c. +This evidence can be exhibited here but partially. To give it all would +require too much space and labor. + + +SECTION I. + +_Weakness of the Regal Authority._ + +Hughes, in his preface to his translation of Horne's "_Mirror of +Justices_," (a book written in the time of Edward I., 1272 to 1307,) +giving a concise view of the laws of England generally, says: + + "Although in the Saxon's time I find the usual words of the acts then + to have been _edictum_, (edict,) _constitutio_, (statute,) little + mention being made of the commons, yet I further find that, _tum + demum leges vim et vigerem habuerunt, cum fuerunt non modo institutæ + sed firmatæ approbatione communitatis_." (The laws had force and + vigor only when they were not only enacted, but confirmed by the + approval of the community.) + +The _Mirror of Justices_ itself also says, (ch. 1, sec. 3,) in speaking +"_Of the first Constitutions of the Ancient Kings_:" + + "Many ordinances were made by many kings, until the time of the king + that now is (Edward I.); the which ordinances were abused, _or not + used by many, nor very current_, because they were not put in + writing, and certainly published."--_Mirror of Justices_, p. 6. + +Hallam says: + + "The Franks, Lombards, and Saxons seem alike to have been jealous of + judicial authority; and averse to surrendering what concerned every + man's private right, out of the hands of his neighbors and + equals."--_1 Middle Ages_, 271. + +The "judicial authority," here spoken of, was the authority of the +kings, (who at that time united the office of both legislators and +judges,) and not of a separate department of government, called the +judiciary, like what has existed in more modern times.[34] + +Hume says: + + "The government of the Germans, and that of all the northern nations, + who established themselves on the ruins of Rome, was always extremely + free; and those fierce people, accustomed to independence and inured + to arms, _were more guided by persuasion than authority, in the + submission which they paid to their princes_. The military despotism, + which had taken place in the Roman empire, and which, previously to + the irruption of those conquerors, had sunk the genius of men, and + destroyed every noble principle of science and virtue, was unable to + resist the vigorous efforts of a free people, and Europe, as from a + new epoch, rekindled her ancient spirit, and shook off the base + servitude to arbitrary will and authority under which she had so long + labored. The free constitutions then established, however impaired by + the encroachments of succeeding princes, still preserve an air of + independence and legal administration, which distinguished the + European nations; and if that part of the globe maintain sentiments + of liberty, honor, equity, and valor, superior to the rest of + mankind, it owes these advantages chiefly to the seeds implanted by + those generous barbarians. + + "_The Saxons, who subdued Britain, as they enjoyed great liberty in + their own country, obstinately retained that invaluable possession in + their new settlement; and they imported into this island the same + principles of independence, which they had inherited from their + ancestors. The chieftains, (for such they were, more than kings or + princes,) who commanded them in those military expeditions, still + possessed a very limited authority_; and as the Saxons exterminated, + rather than subdued the ancient inhabitants, they were, indeed, + transplanted into a new territory, _but preserved unaltered all their + civil and military institutions_. The language was pure Saxon; even + the names of places, which often remain while the tongue entirely + changes, were almost all affixed by the conquerors; the manners and + customs were wholly German; and the same picture of a fierce and bold + liberty, which is drawn by the masterly pen of Tacitus, will suit + those founders of the English government. _The king, so far from + being invested with arbitrary power, was only considered as the first + among the citizens; his authority depended more on his personal + qualities than on his station; he was even so far on a level with the + people, that a stated price was fixed for his head, and a legal fine + was levied upon his murderer, which though proportionate to his + station, and superior to that paid for the life of a subject, was a + sensible mark of his subordination to the community._"--_1 Hume_, + _Appendix_, 1. + +Stuart says: + + "The Saxons brought along with them into Britain their own customs, + language, and civil institutions. Free in Germany, they renounced not + their independence, when they had conquered. Proud from victory, and + with their swords in their hands, would they surrender their + liberties to a private man? Would temporary leaders, limited in their + powers, and unprovided in resources, ever think to usurp an authority + over warriors, who considered themselves as their equals, were + impatient of control, and attached with devoted zeal to their + privileges? Or, would they find leisure to form resolutions, or + opportunities to put them in practice, amidst the tumult and + confusion of those fierce and bloody wars, which their nations first + waged with the Britons, and then engaged in among themselves? + Sufficiently flattered in leading the armies of their countrymen, the + ambition of commanders could as little suggest such designs, as the + liberty of the people could submit to them. The conquerors of Britain + retained their independence; and this island saw itself again in + that free state in which the Roman arms had discovered it. + + "The same firmness of character, and generosity of manners, which, in + general, distinguished the Germans, were possessed in an eminent + degree by the Saxons; and while we endeavor to unfold their political + institutions, we must perpetually turn our observation to that + masterly picture in which the Roman historian has described these + nations. In the woods of Germany shall we find the principles which + directed the state of land, in the different kingdoms of Europe; and + there shall we find the foundation of those ranks of men, and of + those civil arrangements, which the barbarians everywhere + established; and which the English alone have had the good fortune, + or the spirit, to preserve."--_Stuart on the Constitution of + England_, p. 59-61. + + "Kings they (the Germans) respected as the first magistrates of the + state; but the authority possessed by them was narrow and + limited."--_Ditto_, p. 134. + + "Did he, (the king,) at any time, relax his activity and martial + ardor, did he employ his abilities to the prejudice of his nation, or + fancy he was superior to the laws; the same power which raised him to + honor, humbled and degraded him. The customs and councils of his + country pointed out to him his duty; and if he infringed on the + former, or disobeyed the latter, a fierce people set aside his + authority. * * + + "His long hair was the only ornament he affected, and to be foremost + to attack an enemy was his chief distinction. Engaged in every + hazardous expedition, he was a stranger to repose; and, rivalled by + half the heroes of his tribe, he could obtain little power. Anxious + and watchful for the public interest, he felt every moment his + dependence, and gave proofs of his submission. + + "He attended the general assembly of his nation, and was allowed the + privilege to harangue it first; but the arts of persuasion, though + known and respected by a rude people, were unequally opposed to the + prejudices and passions of men."--_Ditto_, p. 135-6. + + "_The authority of a Saxon monarch was not more considerable. The + Saxons submitted not to the arbitrary rule of princes. They + administered an oath to their sovereigns, which bound them to + acknowledge the laws, and to defend the rights of the church and + people; and if they forgot this obligation, they forfeited their + office._ In both countries, a price was affixed on kings, a fine + expiated their murder, as well as that of the meanest citizen; and + the smallest violation of ancient usage, or the least step towards + tyranny, was always dangerous, and often fatal to them."--_Ditto_, p. + 139-40. + + "They were not allowed to impose taxes on the kingdom."--_Ditto_, p. + 146. + + "Like the German monarchs, they deliberated in the general assembly + of the nation; _but their legislative authority was not much + respected_; and their assent was considered in no better light than + as a form. This, however, was their chief prerogative; and they + employed it to acquire an ascendant in the state. To art and + insinuation they turned, as their only resource, and flattered a + people whom they could not awe; but address, and the abilities to + persuade, were a weak compensation for the absence of real power. + + "They declared war, it is said, and made peace. In both cases, + however, they acted as the instruments of the state, and put in + execution the resolutions which its councils had decreed. If, indeed, + an enemy had invaded the kingdom, and its glory and its safety were + concerned, the great lords took the field at the call of their + sovereign. But had a sovereign declared war against a neighboring + state, without requiring their advice, or if he meant to revenge by + arms an insult offered to him by a subject, a haughty and independent + nobility refused their assistance. These they considered as the + quarrels of the king, and not of the nation; and in all such + emergencies he could only be assisted by his retainers and + dependents."--_Ditto_, p. 147-8. + + "Nor must we imagine that the Saxon, any more than the German + monarchs, succeeded each other in a lineal descent,[35] or that they + disposed of the crown at their pleasure. In both countries, the free + election of the people filled the throne; and their choice was the + only rule by which princes reigned. The succession, accordingly, of + their kings was often broken and interrupted, and their depositions + were frequent and groundless. The will of a prince whom they had long + respected, and the favor they naturally transferred to his + descendant, made them often advance him to the royal dignity; but the + crown of his ancestor he considered as the gift of the people, and + neither expected nor claimed it as a right."--_Ditto_, p. 151-3. + +In Germany "It was the business of the great to command in war, and in +peace they distributed justice. * * + + "The _princes_ in Germany were _earls_ in England. The great + contended in both countries in the number of their retainers, and in + that splendor and magnificence which are so alluring to a rude + people; and though they joined to set bounds to regal power, they + were often animated against each other with the fiercest hatred. To a + proud and impatient nobility it seemed little and unsuiting to give + or accept compositions for the injuries they committed or received; + and their vassals adopting their resentment and passions, war and + bloodshed alone could terminate their quarrels. What necessarily + resulted from their situation in society, was continued as a + _privilege_; and the great, in both countries, made war, of their + private authority, on their enemies. The Saxon earls even carried + their arms against their sovereigns; and, surrounded with retainers, + or secure in fortresses and castles, they despised their resentment, + and defied their power. + + "The judges of the people, they presided in both countries in courts + of law.[36] The particular districts over which they exerted their + authority were marked out in Germany by the council of the state; and + in England their jurisdiction extended over the fiefs and other + territories they possessed. All causes, both civil and criminal, were + tried before them; and they judged, except in cases of the utmost + importance, without appeal. They were even allowed to grant pardon to + criminals, and to correct by their clemency the rigors of justice. + Nor did the sovereign exercise any authority in their lands. In these + his officers formed no courts, and his _writ_ was disregarded. * * + + "They had officers, as well as the king, who collected their + revenues, and added to their greatness; and the inhabitants of their + lands they distinguished by the name of _subjects_. + + "But to attend the general assembly of their nation was the chief + prerogative of the German and Saxon princes; and as they consulted + the interest of their country, and deliberated concerning matters of + state, so in the _king's court_, of which also they were members, + they assisted to pronounce judgment in the complaints and appeals + which were lodged in it."--_Ditto_, p. 158 to 165. + +Henry says: + + "Nothing can be more evident than this important truth; that our + Anglo-Saxon kings were not absolute monarchs; but that their powers + and prerogatives were limited by the laws and customs of the country. + Our Saxon ancestors had been governed by limited monarchs in their + native seats on the continent; and there is not the least appearance + or probability that they relinquished their liberties, and submitted + to absolute government in their new settlements in this island. It is + not to be imagined that men, whose reigning passion was the love of + liberty, would willingly resign it; and their new sovereigns, who had + been their fellow-soldiers, had certainly no power to compel them to + such a resignation."--_3 Henry's History of Great Britain_, 358. + + Mackintosh says: "The Saxon chiefs, who were called kings, originally + acquired power by the same natural causes which have gradually, and + everywhere, raised a few men above their fellows. They were, + doubtless, more experienced, more skilful, more brave, or more + beautiful, than those who followed them. * * A king was powerful in + war by the lustre of his arms, and the obvious necessity of + obedience. His influence in peace fluctuated with his personal + character. In the progress of usage his power became more fixed and + more limited. * * It would be very unreasonable to suppose that the + northern Germans who had conquered England, had so far changed their + characteristic habits from the age of Tacitus, that the victors + became slaves, and that their generals were converted into + tyrants."--_Mackintosh's Hist. of England, Ch. 2._ _45 Lardner's Cab. + Cyc._, 73-4. + +Rapin, in his discourse on the "Origin and Nature of the English +Constitution," says: + + "There are but two things the Saxons did not think proper to trust + their kings with; for being of like passions with other men, they + might very possibly abuse them; namely, the power of changing the + laws enacted by consent of king and people; and the power of raising + taxes at pleasure. From these two articles sprung numberless branches + concerning the liberty and property of the subject, which the king + cannot touch, without breaking the constitution, and they are the + distinguishing character of the English monarchy. The prerogatives of + the crown, and the rights and privileges of the people, flowing from + the two fore-mentioned articles, are the ground of all the laws that + from time to time have been made by unanimous consent of king and + people. The English government consists in the strict union of the + king's prerogatives with the people's liberties. * * But when kings + arose, as some there were, that aimed at absolute power, by changing + the old, and making new laws, at pleasure; by imposing illegal taxes + on the people; this excellent government being, in a manner, + dissolved by these destructive measures, confusion and civil wars + ensued, which some very wrongfully ascribe to the fickle and restless + temper of the English."--_Rapin's Preface to his History of England._ + +Hallam says that among the Saxons, "the royal authority was weak."--_2 +Middle Ages_, 403. + +But although the king himself had so little authority, that it cannot be +supposed for a moment that his laws were regarded as imperative by the +people, it has nevertheless been claimed, in modern times, by some who +seem determined to find or make a precedent for the present legislative +authority of parliament, that his laws were authoritative, _when +assented to_ by the _Witena-gemote_, or assembly of wise men--that is, +the bishops and barons. But this assembly evidently had no legislative +power whatever. The king would occasionally invite the bishops and +barons to meet him for consultation on public affairs, _simply as a +council_, and not as a legislative body. Such as saw fit to attend, did +so. If they were agreed upon what ought to be done, the king would pass +a law accordingly, and the barons and bishops would then return and +inform the people orally what laws had been passed, and use their +influence with them to induce them to conform to the law of the king, +and the recommendation of the council. And the people no doubt were much +more likely to accept a law of the king, if it had been approved by this +council, than if it had not. But it was still only a law of the king, +which they obeyed or disregarded according to their own notions of +expediency. The numbers who usually attended this council were too small +to admit of the supposition that they had any legislative authority +whatever, to impose laws upon the people against their will. + +Lingard says: + + "It was necessary that the king should obtain the assent of these + (the members of the Witena-gemotes) to all legislative enactments; + _because, without their acquiescence and support, it was impossible + to carry them into execution_. To many charters (laws) we have the + signatures of the Witan. _They seldom exceed thirty in number; they + never amount to sixty._"--_1 Lingard_, 486. + +It is ridiculous to suppose that the assent of such an assembly gave any +_authority_ to the laws of the king, or had any influence in securing +obedience to them, otherwise than by way of persuasion. If this body had +had any real legislative authority, such as is accorded to legislative +bodies of the present day, they would have made themselves at once the +most conspicuous portion of the government, and would have left behind +them abundant evidence of their power, instead of the evidence simply of +their assent to a few laws passed by the king. + +More than this. If this body had had any real legislative authority, +they would have constituted an aristocracy, having, in conjunction with +the king, absolute power over the people. Assembling voluntarily, merely +on the invitation of the king; deputed by nobody but themselves; +representing nobody but themselves; responsible to nobody but +themselves; their legislative authority, if they had had any, would of +necessity have made the government the government of an aristocracy +merely, _and the people slaves, of course_. And this would necessarily +have been the picture that history would have given us of the +Anglo-Saxon government, _and of Anglo-Saxon liberty_. + +The fact that the people had no representation in this assembly, and the +further fact that, through their juries alone, they nevertheless +maintained that noble freedom, the very tradition of which (after the +substance of the thing itself has ceased to exist) has constituted the +greatest pride and glory of the nation to this day, _prove_ that this +assembly exercised no authority which juries of the people acknowledged, +except at their own discretion.[37] + +There is not a more palpable truth, in the history of the Anglo-Saxon +government, than that stated in the Introduction to Gilbert's History of +the Common Pleas,[38] viz., "_that the County and Hundred Courts_," (to +which should have been added the other courts in which juries sat, the +courts-baron and court-leet,) "_in those times were the real and only +Parliaments of the kingdom_." And why were they the real and only +parliaments of the kingdom? Solely because, as will be hereafter shown, +the juries in those courts tried causes on their intrinsic merits, +according to their own ideas of justice, irrespective of the laws agreed +upon by kings, priests, and barons; and whatever principles they +uniformly, or perhaps generally, enforced, _and none others_, became +practically the law of the land as matter of course.[39] + +Finally, on this point. Conclusive proof that the legislation of the +king was of little or no authority, is found in the fact _that the kings +enacted so few laws_. If their laws had been received as authoritative, +in the manner that legislative enactments are at this day, they would +have been making laws continually. Yet the codes of the most celebrated +kings are very small, and were little more than compilations of +immemorial customs. The code of Alfred would not fill twelve pages of +the statute book of Massachusetts, and was little or nothing else than a +compilation of the laws of Moses, and the Saxon customs, evidently +collected from considerations of convenience, rather than enacted on the +principle of authority. The code of Edward the Confessor would not fill +twenty pages of the statute book of Massachusetts, and, says Blackstone, +"seems to have been no more than a new edition, or fresh promulgation of +Alfred's code, or _dome-book_, with such additions and improvements as +the experience of a century and a half suggested."--_1 Blackstone_, +66.[40] + +The Code of William the Conqueror[41] would fill less than seven pages +of the statute book of Massachusetts; and most of the laws contained in +it are taken from the laws of the preceding kings, and especially of +Edward the Confessor (whose laws William swore to observe); but few of +his own being added. + +The codes of the other Saxon and Norman kings were, as a general rule, +less voluminous even than these that have been named; and probably did +not exceed them in originality.[42] The Norman princes, from William the +Conqueror to John, I think without exception, bound themselves, and, in +order to maintain their thrones, were obliged to bind themselves, to +observe the ancient laws and customs, in other words, the "_lex terræ_," +or "_common law_" of the kingdom. Even Magna Carta contains hardly +anything other than this same "_common law_," with some new securities +for its observance. + +How is this abstinence from legislation, on the part of the ancient +kings, to be accounted for, except on the supposition that the people +would accept, and juries enforce, few or no new laws enacted by their +kings? Plainly it can be accounted for in no other way. In fact, all +history informs us that anciently the attempts of the kings to introduce +or establish new laws, met with determined resistance from the people, +and generally resulted in failure. "_Nolumus Leges Angliæ mutari_," (we +will that the laws of England be not changed,) was a determined +principle with the Anglo-Saxons, from which they seldom departed, up to +the time of Magna Carta, and indeed until long after.[43] + + +SECTION II. + +_The Ancient Common Law Juries were mere Courts of Conscience._ + +But it is in the administration of justice, or of law, that the freedom +or subjection of a people is tested. If this administration be in +accordance with the arbitrary will of the legislator--that is, if his +will, as it appears in his statutes, be the highest rule of decision +known to the judicial tribunals,--the government is a despotism, and the +people are slaves. If, on the other hand, the rule of decision be those +principles of natural equity and justice, which constitute, or at least +are embodied in, the general conscience of mankind, the people are free +in just so far as that conscience is enlightened. + +That the authority of the king was of little weight with the _judicial +tribunals_, must necessarily be inferred from the fact already stated, +that his authority over the _people_ was but weak. If the authority of +his laws had been paramount in the judicial tribunals, it would have +been paramount with the people, of course; because they would have had +no alternative but submission. The fact, then, that his laws were _not_ +authoritative with the people, is proof that they were _not_ +authoritative with the tribunals--in other words, that they were not, as +matter of course, enforced by the tribunals. + +But we have additional evidence that, up to the time of Magna Carta, the +laws of the king were not binding upon the judicial tribunals; and if +they were not binding before that time, they certainly were not +afterwards, as has already been shown from Magna Carta itself. It is +manifest from all the accounts we have of the courts in which juries +sat, prior to Magna Carta, such as the court-baron, the hundred court, +the court-leet, and the county court, _that they were mere courts of +conscience, and that the juries were the judges, deciding causes +according to their own notions of equity, and not according to any laws +of the king, unless they thought them just_. + +These courts, it must be considered, were very numerous, and held very +frequent sessions. There were probably seven, eight, or nine hundred +courts _a month_, in the kingdom; the object being, as Blackstone says, +"_to bring justice home to every man's door_." (_3 Blackstone_, 30.) The +number of the _county_ courts, of course, corresponded to the number of +counties, (36.) The _court-leet_ was the criminal court for a district +less than a county. The _hundred court_ was the court for one of those +districts anciently called a _hundred_, because, at the time of their +first organization for judicial purposes, they comprised (as is +supposed) but a hundred families.[44] The court-baron was the court for +a single manor, and there was a court for every manor in the kingdom. +All these courts were holden as often as once in three or five weeks; +the county court once a month. The king's judges were present at none of +these courts; the only officers in attendance being sheriffs, bailiffs, +and stewards, merely ministerial, and not judicial, officers; doubtless +incompetent, and, if not incompetent, untrustworthy, for giving the +juries any reliable information in matters of law, beyond what was +already known to the jurors themselves. And yet these were the courts, +in which was done all the judicial business, both civil and criminal, of +the nation, except appeals, and some of the more important and difficult +cases.[45] It is plain that the juries, in these courts, must, of +necessity, have been the sole judges of all matters of law whatsoever; +because there was no one present, but sheriffs, bailiffs, and stewards, +to give them any instructions; and surely it will not be pretended that +the jurors were bound to take their law from such sources as these. + +In the second place, it is manifest that the principles of law, by which +the juries determined causes, were, as a general rule, nothing else than +their own ideas of natural equity, _and not any laws of the king_; +because but few laws were enacted, and many of those were not written, +but only agreed upon in council.[46] Of those that were written, few +copies only were made, (printing being then unknown,) and not enough to +supply all, or any considerable number, of these numerous courts. Beside +and beyond all this, few or none of the jurors could have read the laws, +if they had been written; because few or none of the common people +could, at that time, read. Not only were the common people unable to +read their own language, but, at the time of Magna Carta, the laws were +written in Latin, a language that could be read by few persons except +the priests, who were also the lawyers of the nation. Mackintosh says, +"the first act of the House of Commons composed and recorded in the +English tongue," was in 1415, two centuries after Magna Carta.[47] Up to +this time, and for some seventy years later, the laws were generally +written either in Latin or French; both languages incapable of being +read by the common people, as well Normans as Saxons; and one of them, +the Latin, not only incapable of being read by them, but of being even +understood when it was heard by them. + +To suppose that the people were bound to obey, and juries to enforce, +laws, many of which were unwritten, none of which _they_ could read, and +the larger part of which (those written in Latin) they could not +translate, or understand when they heard them read, is equivalent to +supposing the nation sunk in the most degrading slavery, instead of +enjoying a liberty of their own choosing. + +Their knowledge of the laws passed by the king was, of course, derived +only from oral information; and "_the good laws_," as some of them were +called, in contradistinction to others--those which the people at large +esteemed to be good laws--were doubtless enforced by the juries, and the +others, as a general thing, disregarded.[48] + +That such was the nature of judicial proceedings, and of the power of +juries, up to the time of Magna Carta, is further shown by the following +authorities. + + "The sheriffs and bailiffs caused the free tenants of their bailiwics + to meet at their counties and hundreds; _at which justice was so + done, that every one so judged his neighbor by such judgment as a man + could not elsewhere receive in the like cases_, until such times as + the customs of the realm were put in writing, and certainly + published. + + "And although a freeman commonly was not to serve (as a juror or + judge) without his assent, nevertheless it was assented unto that + free tenants should meet together in the counties and hundreds, and + lords courts, if they were not specially exempted to do such suits, + and _there judged their neighbors_."--_Mirror of Justices_, p. 7, 8. + +Gilbert, in his treatise on the Constitution of England, says: + + "In the county courts, if the debt was above forty shillings, there + issued a _justicies_ (a commission) to the sheriff, to enable him to + hold such a plea, _where the suitors_ (_jurors_) _are judges of the + law and fact_."--_Gilbert's Cases in Law and Equity, &c., &c._, 456. + +All the ancient writs, given in Glanville, for summoning jurors, +indicate that the jurors judged of everything, _on their consciences +only_. The writs are in this form: + + "Summon twelve free and legal men (or sometimes twelve knights) to be + in court, _prepared upon their oaths to declare whether A or B have + the greater right to the land_ (_or other thing_) _in question_." See + Writs in Beames' Glanville, p. 54 to 70, and 233-306 to 332. + +Crabbe, speaking of the time of Henry I., (1100 to 1135,) recognizes the +fact that the jurors were the judges. He says: + + "By one law, every one was to be tried by his peers, who were of the + same neighborhood as himself. * * By another law, _the judges, for so + the jury were called_, were to be chosen by the party impleaded, + after the manner of the Danish _nembas_; by which, probably, is to be + understood that the defendant had the liberty of taking exceptions + to, or challenging the jury, as it was afterwards called."--_Crabbe's + History of the English Law_, p. 55. + +Reeve says: + + "The great court for _civil_ business was the _county court_; held + once every four weeks. Here the sheriff presided; _but the suitors of + the court, as they were called, that is, the freemen or landholders + of the county, were the judges_; and the sheriff was to execute the + judgment. * * + + "The _hundred court_ was held before _some bailiff_; the _leet_ + before the lord of the manor's steward.[49] * * + + "Out of the county court was derived an inferior court of _civil_ + jurisdiction, called the _court-baron_. This was held from three + weeks to three weeks, and _was in every respect like the county + court_;" (_that is, the jurors were judges in it_;) "only the lord to + whom this franchise was granted, or _his steward_, _presided instead + of the sheriff_."--_1 Reeve's History of the English Law_, p. 7. + +Chief Baron Gilbert says: + + "Besides the tenants of the king, which held _per baroniam_, (by the + right of a baron,) and did suit and service (served as judges) at his + own court; and the burghers and tenants in ancient demesne, that did + suit and service (served as jurors or judges) in their own court in + person, and in the king's by proxy, there was also a set of + freeholders, that did suit and service (served as jurors) at the + county court. These were such as anciently held of the lord of the + county, and by the escheats of earldoms had fallen to the king; or + such as were granted out by service to hold of the king, but with + particular reservation to do suit and service (serve as jurors) + before the king's bailiff; _because it was necessary the sheriff, or + bailiff of the king, should have suitors_ (_jurors_) _at the county + court, that the business might be despatched. These suitors are the + pares_ (_peers_) _of the county court, and indeed the judges of it; + as the pares_ (_peers_) _were the judges in every court-baron_; and + therefore the king's bailiff having a court before him, there must be + _pares or judges, for the sheriff himself is not a judge_; and though + the style of the court is _Curia prima Comitatus E.C. Milit.' + vicecom' Comitat' præd' Tent' apud B._, &c. (First Court of the + county, E.C. knight, sheriff of the aforesaid county, held at B., &c.); + by which it appears that the court was the sheriff's; _yet, by + the old feudal constitutions, the lord was not judge, but the pares_ + (_peers_) _only_; so that, even in a _justicies_, which was a + commission to the sheriff to hold plea of more than was allowed by + the natural jurisdiction of a county court, _the pares_ (_peers, + jurors_) _only were judges, and not the sheriff_; because it was to + hold plea in the same manner as they used to do in that (the lord's) + court."--_Gilbert on the Court of Exchequer_, ch. 5, p. 61-2. + + "It is a distinguishing feature of the feudal system, to make civil + jurisdiction necessarily, and criminal jurisdiction ordinarily, + coëxtensive with tenure; and accordingly there is inseparably + incident to every manor a court-baron (curia baronum), _being a court + in which the freeholders of the manor are the sole judges_, but in + which the lord, by himself, or more commonly by his steward, + presides."--_Political Dictionary_, word _Manor_. + +The same work, speaking of the county court, says: "_The judges were the +freeholders who did suit to the court._" See word _Courts_. + + "In the case of freeholders attending as suitors, the county court + or court-baron, (as in the case of the ancient tenants _per baroniam_ + attending Parliament,) _the suitors are the judges of the court, both + for law and for fact_, and the sheriff or the under sheriff in the + county court, and the lord or his steward in the court-baron, are + only presiding officers, _with no judicial authority_."--_Political + Dictionary_, word _Suit_. + + "COURT, (curtis, curia aula); the space enclosed by the walls of a + feudal residence, in which the followers of a lord used to assemble + in the middle ages, to administer justice, and decide respecting + affairs of common interest, &c. It was next used for those who stood + in immediate connexion with the lord and master, the _pares curiæ_, + (peers of the court,) the limited portion of the general assembly, to + which was entrusted the pronouncing of judgment," &c.--_Encyclopedia + Americana_, word _Court_. + + "In court-barons or county courts _the steward was not judge, but the + pares_ (_peers_, _jurors_); nor was the speaker in the House of Lords + judge, but the barons only."--_Gilbert on the Court of Exchequer_, + ch. 3, p. 42. + +Crabbe, speaking of the Saxon times, says: + + "The sheriff presided at the _hundred court_, * * and sometimes sat + in the place of the alderman (earl) in the _county + court_."--_Crabbe_, 23. + +The sheriff afterwards became the sole presiding officer of the county +court. + +Sir Thomas Smith, Secretary of State to Queen Elizabeth, writing more +than three hundred years after Magna Carta, in describing the difference +between the Civil Law and the English Law, says: + + "_Judex_ is of us called Judge, but our fashion is so divers, that + they which give the deadly stroke, and either condemn or acquit the + man for guilty or not guilty, _are not called judges, but the twelve + men. And the same order as well in civil matters and pecuniary, as in + matters criminal_."--_Smith's Commonwealth of England_, ch. 9, p. 53, + Edition of 1621. + + _Court-Leet._ "That the _leet_ is the most ancient court in the land + for _criminal_ matters, (the court-baron being of no less antiquity + in _civil_,) has been pronounced by the highest legal authority. * * + Lord Mansfield states that this court was coeval with the + establishment of the Saxons here, and its activity marked very + visibly both among the Saxons and Danes. * * The leet is a court of + record for the cognizance of criminal matters, or pleas of the crown; + and necessarily belongs to the king; though a subject, usually the + lord of the manor, may be, and is, entitled to the profits, + consisting of the essoign pence, fines, and amerciaments. + + "_It is held before the steward, or was, in ancient times, before the + bailiff, of the lord._"--_Tomlin's Law Dict._, word _Court-Leet_. + +Of course the jury were the judges in this court, where only a "steward" +or "bailiff" of a manor presided. + + "No cause of consequence was determined without the king's writ; for + even in the county courts, of the debts, which were above forty + shillings, there issued a _Justicies_ (commission) to the sheriff, to + enable him to hold such plea, _where the suitors are judges of the + law and fact_."--_Gilbert's History of the Common Pleas, + Introduction_, p. 19. + + "This position" (that "the matter of law was decided by the King's + Justices, but the matter of fact by the pares") "_is wholly + incompatible with the common law, for the Jurata (jury) were the sole + judges both of the law and the fact_."--_Gilbert's History of the + Common Pleas_, p. 70, _note_. + + We come now to the challenge; and of old _the suitors in court, who + were judges_, could not be challenged; nor by the feudal law could + the _pares_ be even challenged, _Pares qui ordinariam jurisdictionem + habent recusari non possunt_; (the peers who have ordinary + jurisdiction cannot be rejected;) "_but those suitors who are judges + of the court_, could not be challenged; and the reason is, that there + are several qualifications required by the writ, viz., that they be + _liberos et legales homines de vincineto_ (free and legal men of the + neighborhood) of the place laid in the declaration," &c., + &c.--_Ditto_, p. 93. + + "_Ad questionem juris non respondent Juratores._" (To the question of + law the jurors do not answer.) "The Annotist says, that this is + indeed a maxim in the Civil-Law Jurisprudence, _but it does not bind + an English jury, for by the common law of the land the jury are + judges as well of the matter of law, as of the fact_, with this + difference only, that the (a Saxon word) or judge on the bench is to + give them no assistance in determining the matter of _fact_, but if + they have any doubt among themselves relating to matter of _law_, + they may then request him to explain it to them, which when he hath + done, and they are thus become well informed, they, and they only, + become competent judges of the matter of _law_. And this is the + province of the judge on the bench, namely, to show, or _teach_ the + law, but not to take upon him the trial of the delinquent, either in + matter of fact or in matter of law." (Here various Saxon laws are + quoted.) "In neither of these fundamental laws is there the least + word, hint, or idea, that the earl or alderman (that is to say, the + _Prepositus_ (presiding officer) of the court, which is tantamount to + _the judge on the bench_) is to take upon him to judge the delinquent + in any sense whatever, the sole purport of his office is to _teach_ + the secular or worldly law."--_Ditto_, p. 57, _note_. + + "The administration of justice was carefully provided for; it was not + the caprice of their lord, _but the sentence of their peers, that + they obeyed. Each was the judge of his equals, and each by his equals + was judged._"--_Introd. to Gilbert on Tenures_, p. 12. + + Hallam says: "A respectable class of free socagers, having, in + general, full rights of alienating their lands, and holding them + probably at a small certain rent from the lord of the manor, + frequently occur in Domes-day Book. * * They undoubtedly were suitors + to the court-baron of the lord, to whose soc, or right of justice, + they belonged. _They were consequently judges in civil causes, + determined before the manorial tribunal._"--_2 Middle Ages_, 481. + +Stephens adopts as correct the following quotations from Blackstone: + + "The _Court-Baron_ is a court incident to every manor in the kingdom, + to be holden by the steward within the said manor." * * _It "is a + court of common law, and it is the court before the freeholders who + owe suit and service to the manor_," (are bound to serve as jurors in + the courts of the manor,) "_the steward being rather the registrar + than the judge_. * * The freeholders' court was composed of the + lord's tenants, who were the _pares_ (equals) of each other, and were + bound by their feudal tenure to assist their lord in the dispensation + of domestic justice. This was formerly held every three weeks; _and + its most important business was to determine, by writ of right, all + controversies relating to the right of lands within the manor_."--_3 + Stephens' Commentaries_, 392-3. _3 Blackstone_, 32-3. + + "A _Hundred Court_ is only a larger court-baron, being held for all + the inhabitants of a particular hundred, instead of a manor. _The + free suitors (jurors) are here also the judges, and the steward the + register._"--_3 Stephens_, 394. _3 Blackstone_, 33. + + "The _County Court_ is a court incident to the jurisdiction of the + sheriff. * * _The freeholders of the county are the real judges in + this court, and the sheriff is the ministerial officer._"--_3 + Stephens_, 395-6. _3 Blackstone_, 35-6. + +Blackstone describes these courts, as courts "_wherein injuries were +redressed in an easy and expeditious manner, by the suffrage of +neighbors and friends_."--_3 Blackstone_, 30. + + "When we read of a certain number of _freemen_ chosen by the parties + to decide in a dispute--all bound by oath to vote _in foro + conscientia_--and that _their_ decision, _not the will of the judge + presiding, ended the suit_, we at once perceive that a great + improvement has been made in the old form of compurgation--an + improvement which impartial observation can have no hesitation to + pronounce as identical in its main features with the trial by + jury."--_Dunham's Middle Ages_, Sec. 2, B. 2, Ch. 1. _57 Lardner's + Cab. Cyc._, 60. + + "The bishop and the earl, or, in his absence, the gerefa, (sheriff,) + and sometimes both the earl and the gerefa, presided at the + _schyre-mote_ (county court); the gerefa (sheriff) usually alone + presided at the _mote_ (meeting or court) of the hundred. In the + cities and towns which were not within any peculiar jurisdiction, + there was held, at regular stated intervals, a _burgh mote_, (borough + court,) for the administration of justice, at which a gerefa, or a + magistrate appointed by the king, presided."--_Spence's Origin of the + Laws and Political Institutions of Modern Europe_, p. 444. + + "The right of the plaintiff and defendant, and of the prosecutor and + criminal, _to challenge the judices_, (judges,) _or assessors,[50] + appointed to try the cause in civil matters, and to decide upon the + guilt or innocence of the accused in criminal matters_, is recognized + in the treatise called the Laws of Henry the First; but I cannot + discover, from the Anglo-Saxon laws or histories, that before the + Conquest the parties had any general right of challenge; _indeed, had + such right existed, the injunctions to all persons standing in the + situation of judges (jurors) to do right according to their + conscience_, would scarcely have been so frequently and anxiously + repeated."--_Spence_, 456. + +Hale says: + + "The administration of the common justice of the kingdom seems to be + wholly dispensed in the county courts, hundred courts, and + courts-baron; except some of the greater crimes reformed by the laws + of King Henry I., and that part thereof which was sometimes taken up + by the _Justitiarius Angliæ_." + + This doubtless bred great inconvenience, uncertainty, and variety in + the laws, viz.: + + "_First, by the ignorance of the judges, which were the freeholders + of the county._ * * + + "Thirdly, a third inconvenience was, that all the business of any + moment was carried by parties and factions. _For the freeholders + being generally the judges_, and conversing one among another, _and + being as it were the chief judges, not only of the fact, but of the + law_; every man that had a suit there, sped according as he could + make parties."--_1 Hale's History of the Common Law_, p. 246. + + "In all these tribunals," (county court, hundred court, &c.,) "_the + judges were the free tenants_, owing suit to the court, and + afterwards called its peers."--_1 Lingard's History of England_, 488. + +Henry calls the twelve jurors "assessors," and says: + + "These assessors, _who were in reality judges_, took a solemn oath, + that they would faithfully discharge the duties of their office, and + not suffer an innocent man to be condemned, nor any guilty person to + be acquitted."--_3 Henry's History of Great Britain_, 346. + +Tyrrell says: + + "Alfred cantoned his kingdom, first into _Trihings_ and _Lathes_, as + they are still called in Kent and other places, consisting of three + or four Hundreds; _in which, the freeholders being judges_, such + causes were brought as could not be determined in the Hundred + court."--_Tyrrell's Introduction to the History of England_, p. 80. + +Of the _Hundred Court_ he says: + + "In this court anciently, _one of the principal inhabitants, called + the alderman, together with the barons of the Hundred[51]--id est the + freeholders--was judge_."--_Ditto_, p. 80. + +Also he says: + + "By a law of Edward the Elder, 'Every sheriff shall convene the + people once a month, and do equal right to all, putting an end to + controversies at times appointed.'"--_Ditto_, p. 86. + + "A statute, emphatically termed the 'Grand Assize,' enabled the + defendant, if he thought proper, to abide by the testimony of the + twelve good and lawful knights, chosen by four others of the + vicinage, _and whose oaths gave a final decision to the contested + claim_."--_1 Palgrave's Rise and Progress of the English + Commonwealth_, 261. + + "From the moment when the crown became accustomed to the 'Inquest,' a + restraint was imposed upon every branch of the prerogative. _The king + could never be informed of his rights, but through the medium of the + people._ Every 'extent' by which he claimed the profits and + advantages resulting from the casualties of tenure, every process by + which he repressed the usurpations of the baronage, depended upon the + 'good men and true' who were impanelled to 'pass' between the subject + and the sovereign; and the thunder of the Exchequer at Westminster + might be silenced by the honesty, the firmness, or the obstinacy, of + one sturdy knight or yeoman in the distant shire. + + Taxation was controlled in the same manner by the voice of those who + were most liable to oppression. * * A jury was impanelled to adjudge + the proportion due to the sovereign; and this course was not + essentially varied, even after the right of granting aids to the + crown was fully acknowledged to be vested in the parliament of the + realm. The people taxed themselves; and the collection of the grants + was checked and controlled, and, perhaps, in many instances evaded, + by these virtual representatives of the community. + + The principle of the jury was, therefore, not confined to its mere + application as a mode of trying contested facts, whether in civil or + criminal cases; and, both in its form and in its consequences, it had + a very material influence upon the general constitution of the realm. + * * The main-spring of the machinery of remedial justice existed in + the franchise of the lower and lowest orders of the political + hierarchy. Without the suffrage of the yeoman, the burgess, and the + churl, the sovereign could not exercise the most important and most + essential function of royalty; from them he received the power of + life and death; he could not wield the sword of justice until the + humblest of his subjects placed the weapon in his hand."--_1 + Palgrave's Rise and Progress of the English Constitution_, 274-7. + +Coke says, "The court of the county is no court of record,[52] _and the +suitors are the judges thereof_."--_4 Inst._, 266. + +Also, "The court of the Hundred is no court of record, _and the suitors +be thereof judges_."--_4 Inst._, 267. + +Also, "The court-baron is a court incident to every manor, and is not of +record, _and the suitors be thereof judges_."--_4 Inst._, 268. + +Also, "The court of ancient demesne is in the nature of a court-baron, +_wherein the suitors are judges_, and is no court of record."--_4 +Inst._, 269. + +Millar says, "Some authors have thought that jurymen were originally +_compurgators_, called by a defendant to swear that they believed him +innocent of the facts with which he was charged.... But ... compurgators +were merely witnesses; _jurymen were, in reality, judges_. The former +were called to confirm the oath of the party by swearing, according to +their belief, that he had told the truth, (in his oath of purgation;) +_the latter were appointed to try, by witnesses, and by all other means +of proof, whether he was innocent or guilty_.... Juries were accustomed +to ascertain the truth of facts, by the defendant's oath of purgation, +together with that of his compurgators.... Both of them (jurymen and +compurgators) were obliged to swear that they would _tell the truth_.... +According to the simple idea of our forefathers, guilt or innocence was +regarded as a mere matter of fact; and it was thought that no man, who +knew the real circumstances of a case, could be at a loss to determine +whether the culprit ought to be condemned or acquitted."--_1 Millar's +Hist. View of Eng. Gov._, ch. 12, p. 332-4. + +Also, "The same form of procedure, which took place in the +administration of justice among the vassals of a barony, was gradually +extended to the courts held in the _trading towns_."--_Same_, p. 335. + +Also, "The same regulations, concerning the distribution of justice by +the intervention of juries, ... _were introduced into the baron courts +of the king_, as into those of the nobility, or such of his subjects as +retained their allodial property."--_Same_, p. 337. + +Also. "This tribunal" (the _aula regis_, or king's court, afterwards +divided into the courts of King's Bench, Common Pleas, and Exchequer) +"was properly the ordinary baron-court of the king; and, being in the +same circumstances with the baron-courts of the nobility, it was under +the same necessity of trying causes by the intervention of a +jury."--_Same_, vol. 2, p. 292. + +Speaking of the times of Edward the First, (1272 to 1307,) Millar says: + +"What is called the petty jury was therefore introduced into these +tribunals, (the King's Bench, the Common Pleas, and the _Exchequer_,) as +well as into their auxiliary courts employed to distribute justice in +the circuits; and was thus rendered essentially necessary in determining +causes of every sort, whether civil, criminal, or _fiscal_."--_Same_, +vol. 2, p. 293-4. + +Also, "That this form of trial (by jury) obtained universally in all the +feudal governments, as well as in that of England, there can be no +reason to doubt. In France, in Germany, and in other European countries, +where we have any accounts of the constitution and procedure of the +feudal courts, it appears that lawsuits of every sort concerning the +freemen or vassals of a barony, were determined by the _pares curiæ_ +(peers of the court;) _and that the judge took little more upon him than +to regulate the method of proceeding, or to declare the verdict of the +jury_."--_Same_, vol. 1, ch. 12, p. 329. + +Also, "Among the Gothic nations of modern Europe, the custom of deciding +lawsuits by a jury seems to have prevailed universally; first in the +allodial courts of the county, or of the hundred, and afterwards in the +baron-courts of every feudal superior."--_Same_, vol. 2, p. 296. + +Palgrave says that in Germany "The Graff (gerefa, sheriff) placed +himself in the seat of judgment, and gave the charge to the assembled +free Echevins, warning them to pronounce judgment according to right and +justice."--2 _Palgrave_, 147. + +Also, that, in Germany, "The Echevins were composed of the villanage, +somewhat obscured in their functions by the learning of the grave +civilian who was associated to them, and somewhat limited by the +encroachments of modern feudality; _but they were still substantially +the judges of the court_."--_Same_, 148. + +Palgrave also says, "Scotland, in like manner, had the laws of Burlaw, +or Birlaw, which were made and determined by the neighbors, elected by +common consent, in the Burlaw or Birlaw courts, wherein knowledge was +taken of complaints between neighbor and neighbor, _which men, so +chosen, were judges and arbitrators_, and called Birlaw men."--1 +_Palgrave's Rise_, &c., p. 80. + +But, in order to understand the common law trial by jury, as it existed +prior to Magna Carta, and as it was guaranteed by that instrument, it is +perhaps indispensable to understand more fully the nature of the courts +in which juries sat, and the extent of the powers exercised by juries in +those courts. I therefore give in a note extended extracts, on these +points, from Stuart on the Constitution of England, and from +Blackstone's Commentaries.[53] + +That all these courts were mere _courts of conscience, in which the +juries were sole judges, administering justice according to their own +ideas of it_, is not only shown by the extracts already given, but is +explicitly acknowledged in the following one, in which the _modern +"courts of conscience"_ are compared with the _ancient hundred and +county courts_, and the preference given to the latter, on the ground +that the duties of the jurors in the one case, and of the commissioners +in the other, are the same, and that the consciences of a jury are a +safer and purer tribunal than the consciences of individuals specially +appointed, and holding permanent offices. + + "But there is one species of courts constituted by act of Parliament, + in the city of London, and other trading and populous districts, + which, in their proceedings, so vary from the course of the common + law, that they deserve a more particular consideration. I mean the + court of requests, _or courts of conscience_, for the recovery of + small debts. The first of these was established in London so early as + the reign of Henry VIII., by an act of their common council; which, + however, was certainly insufficient for that purpose, and illegal, + till confirmed by statute 3 Jac. I., ch. 15, which has since been + explained and amended by statute 14 Geo. II., ch. 10. The + constitution is this: two aldermen and four commoners sit twice a + week to hear all causes of debt not exceeding the value of forty + shillings; which they examine in a summary way, by the oath of the + parties or other witnesses, _and make such order therein as is + consonant to equity and good conscience_.* * Divers trading towns and + other districts have obtained acts of Parliament, for establishing + in them _courts of conscience_ upon nearly the same plan as that in + the city of London. + + "The anxious desire that has been shown to obtain these several acts, + proves clearly that the nation, in general, is truly sensible of the + great inconvenience arising from the disuse of the ancient county and + hundred courts, wherein causes of this small value were always + formerly decided with very little trouble and expense to the parties. + But it is to be feared that the general remedy, which of late hath + been principally applied to this inconvenience, (the erecting these + new jurisdictions,) may itself be attended in time with very ill + consequences; as the method of proceeding therein is entirely in + derogation of the common law; and their large discretionary powers + create a petty tyranny in a set of standing commissioners; and as the + disuse of the trial by jury may tend to estrange the minds of the + people from that valuable prerogative of Englishmen, which has + already been more than sufficiently excluded in many instances. _How + much rather is it to be wished that the proceedings in the county and + hundred courts could be again revived_, without burdening the + freeholders with too frequent and tedious attendances; and at the + same time removing the delays that have insensibly crept into their + proceedings, and the power that either party has of transferring at + pleasure their suits to the courts at Westminster! _And we may, with + satisfaction, observe, that this experiment has been actually tried, + and has succeeded in the populous county of Middlesex_, which might + serve as an example for others. For by statute 23 Geo. II., ch. 33, + it is enacted: + + 1. That a special county court shall be held at least once in a + month, in every hundred of the county of Middlesex, _by the county + clerk_. + + 2. _That twelve freeholders of that hundred, qualified to serve on + juries, and struck by the sheriff, shall be summoned to appear at + such court by rotation_; so as none shall be summoned oftener than + once a year. + + 3. That in all causes not exceeding the value of forty shillings, + _the county clerk and twelve suitors (jurors) shall proceed in a + summary way_, examining the parties and witnesses on oath, without + the formal process anciently used; _and shall make such order therein + as they shall judge agreeable to conscience_."--_3 Blackstone_, + 81-83. + +What are these but courts of conscience? And yet Blackstone tells us +they are a _revival of the ancient hundred and county courts_. And what +does this fact prove, but that the ancient common law courts, in which +juries sat, were mere courts of conscience? + +It is perfectly evident that in all these courts the jurors were the +judges, and determined all questions of law for themselves; because the +only alternative to that supposition is, _that the jurors took their law +from sheriffs, bailiffs, and stewards_, of which there is not the least +evidence in history, nor the least probability in reason. It is evident, +also, that they judged independently of the laws of the king, for the +reasons before given, viz., that the authority of the king was held in +very little esteem; and, secondly, that the laws of the king (not being +printed, and the people being unable to read them if they had been +printed) must have been in a great measure unknown to them, and could +have been received by them only on the authority of the sheriff, +bailiff, or steward. If laws were to be received by them on the +authority of these officers, the latter would have imposed such laws +upon the people as they pleased. + +These courts, that have now been described, were continued in full power +long after Magna Carta, no alteration being made in them by that +instrument, _nor in the mode of administering justice in them_. + +There is no evidence whatever, so far as I am aware, that the juries had +any _less_ power in the courts held by the king's justices, than in +those held by sheriffs, bailiffs, and stewards; and there is no +probability whatever that they had. All the difference between the +former courts and the latter undoubtedly was, that, in the former, the +juries had the benefit of the advice and assistance of the justices, +which would, of course, be considered valuable in difficult cases, on +account of the justices being regarded as more learned, not only in the +laws of the king, but also in the common law, or "law of the land." + +The conclusion, therefore, I think, inevitably must be, that neither the +laws of the king, nor the instructions of his justices, had any +authority over jurors beyond what the latter saw fit to accord to them. +And this view is confirmed by this remark of Hallam, the truth of which +all will acknowledge: + + "The rules of legal decision, among a rude people, are always very + simple; not serving much to guide, far less to control the feelings + of natural equity."--_2 Middle Ages_, ch. 8, part 2, p. 465. + +It is evident that it was in this way, _by the free and concurrent +judgments of juries, approving and enforcing certain laws and rules of +conduct, corresponding to their notions of right and justice_, that the +laws and customs, which, for the most part, made up the _common law_, +and were called, at that day, "_the good laws, and good customs_," and +"_the law of the land_," were established. How otherwise could they ever +have become established, as Blackstone says they were, "_by long and +immemorial usage, and by their universal reception throughout the +kingdom_,"[54] when, as the Mirror says, "_justice was so done, that +every one so judged his neighbor, by such judgment as a man could not +elsewhere receive in the like cases, until such times as the customs of +the realm were put in writing and certainly published_?" + +The fact that, in that dark age, so many of the principles of natural +equity, as those then embraced in the _Common Law_, should have been so +uniformly recognized and enforced by juries, as to have become +established by general consent as "_the law of the land_;" and the +further fact that this "law of the land" was held so sacred that even +the king could not lawfully infringe or alter it, but was required to +swear to maintain it, are beautiful and impressive illustrations of the +truth that men's minds, even in the comparative infancy of other +knowledge, have clear and coincident ideas of the elementary principles, +and the paramount obligation, of justice. The same facts also prove that +the common mind, and the general, or, perhaps, rather, the universal +conscience, as developed in the untrammelled judgments of juries, may be +safely relied upon for the preservation of individual rights in civil +society; and that there is no necessity or excuse for that deluge of +arbitrary legislation, with which the present age is overwhelmed, under +the pretext that unless laws be _made_, the law will not be known; a +pretext, by the way, almost universally used for overturning, instead of +establishing, the principles of justice. + + +SECTION III. + +_The Oaths of Jurors._ + +The oaths that have been administered to jurors, in England, and which +are their _legal_ guide to their duty, _all_ (so far as I have +ascertained them) corroborate the idea that the jurors are to try all +cases on their intrinsic merits, independently of any laws that they +deem unjust or oppressive. It is probable that an oath was never +administered to a jury in England, either in a civil or criminal case, +to try it _according to law_. + +The earliest oath that I have found prescribed by law to be administered +to jurors is in the laws of Ethelred, (about the year 1015,) which +require that the jurors "_shall swear, with their hands upon a holy +thing, that they will condemn no man that is innocent, nor acquit any +that is guilty_."--_4 Blackstone_, 302. _2 Turner's History of the +Anglo-Saxons, 155. Wilkins' Laws of the Anglo-Saxons_, 117. _Spelman's +Glossary_, word _Jurata_. + +Blackstone assumes that this was the oath of the _grand_ jury (_4 +Blackstone_, 302); but there was but one jury at the time this oath was +ordained. The institution of two juries, grand and petit, took place +after the Norman Conquest. + +Hume, speaking of the administration of justice in the time of Alfred, +says that, in every hundred, + + "Twelve freeholders were chosen, who, having sworn, together with the + hundreder, or presiding magistrate of that division, _to administer + impartial justice_, proceeded to the examination of that cause which + was submitted to their jurisdiction."--_Hume_, ch. 2. + +By a law of Henry II., in 1164, it was directed that the sheriff +"_faciet jurare duodecim legales homines de vicineto seu de villa, quod +inde veritatem secundum conscientiam suam manifestabunt_," (shall make +twelve legal men from the neighborhood _to swear that they will make +known the truth according to their conscience_.)--_Crabbe's History of +the English Law_, 119. _1 Reeves_, 87. _Wilkins_, 321-323. + +Glanville, who wrote within the half century previous to Magna Carta, +says: + + "Each of the knights summoned for this purpose (as jurors) ought to + swear that he will neither utter that which is false, nor knowingly + conceal the truth."--_Beames' Glanville_, 65. + +Reeve calls the trial by jury "_the trial by twelve men sworn to speak +the truth_."--_1 Reeve's History of the English Law_, 87. + +Henry says that the jurors "took a solemn oath, that they would +faithfully discharge the duties of their office, and not suffer an +innocent man to be condemned, nor any guilty person to be +acquitted."--_3 Henry's Hist. of Great Britain_, 346. + +The _Mirror of Justices_, (written within a century after Magna Carta,) +in the chapter on the abuses of the Common Law, says: + + "It is abuse to use the words, _to their knowledge_, in their oaths, + to make the jurors speak upon thoughts, _since the chief words of + their oaths be that they speak the truth_."--p. 249. + +Smith, writing in the time of Elizabeth, says that, in _civil_ suits, +the jury "be sworn to declare the truth of that issue according to the +evidence, and their conscience."--_Smith's Commonwealth of England_, +edition of 1621, p. 73. + +In _criminal_ trials, he says: + + "The clerk giveth the juror an oath to go uprightly betwixt the + prince and the prisoner."--_Ditto_, p. 90.[55] + +Hale says: + + "Then twelve, and no less, of such as are indifferent and are + returned upon the principal panel, or the _tales_, are sworn to try + the same according to the evidence."--_2 Hale's History of the Common + Law_, 141. + +It appears from Blackstone that, even _at this day, neither in civil nor +criminal cases_, are jurors in England sworn to try causes _according to +law_. He says that in civil suits the jury are + + "Sworn well and truly to _try the issue_ between the parties, and a + true verdict to give according to the evidence."--_3 Blackstone_, + 365. + +"_The issue_" to be tried is whether A owes B anything; and if so, how +much? or whether A has in his possession anything that belongs to B; or +whether A has wronged B, and ought to make compensation; and if so, how +much? + +No statute passed by a legislature, simply as a legislature, can alter +either of these "issues" in hardly any conceivable case, perhaps in +none. No _unjust_ law could ever alter them in any. They are all mere +questions of natural justice, which legislatures have no power to alter, +and with which they have no right to interfere, further than to provide +for having them settled by the most competent and impartial tribunal +that it is practicable to have, and then for having all just decisions +enforced. And any tribunal, whether judge or jury, that attempts to try +these issues, has no more moral right to be swerved from the line of +justice, by the will of a legislature, than by the will of any other +body of men whatever. And this oath does not require or permit a jury to +be so swerved. + +In criminal cases, Blackstone says the oath of the jury in England is: + + "Well and truly to try, and true deliverance make, between our + sovereign lord, the king, and the prisoner whom they have in charge, + and a true verdict to give according to the evidence."--_4 + Blackstone_, 355. + +"The issue" to be tried, in a criminal case, is "_guilty_," or "_not +guilty_." The laws passed by a legislature can rarely, if ever, have +anything to do with this issue. "_Guilt_" is an _intrinsic_ quality of +actions, and can neither be created, destroyed, nor changed by +legislation. And no tribunal that attempts to try this issue can have +any moral right to declare a man _guilty_, for an act that is +intrinsically innocent, at the bidding of a legislature, any more than +at the bidding of anybody else. And this oath does not require or permit +a jury to do so. + +The words, "_according to the evidence_," have doubtless been introduced +into the above oaths in modern times. They are unquestionably in +violation of the Common Law, and of Magna Carta, if by them be meant +such evidence only as the government sees fit to allow to go to the +jury. If the government can dictate the evidence, and require the jury +to decide according to that evidence, it necessarily dictates the +conclusion to which they must arrive. In that case the trial is really a +trial by the government, and not by the jury. _The jury_ cannot _try an +issue_, unless _they_ determine what evidence shall be admitted. The +ancient oaths, it will be observed, say nothing about "_according to the +evidence_." They obviously take it for granted that the jury try the +whole case; and of course that _they_ decide what evidence shall be +admitted. It would be intrinsically an immoral and criminal act for a +jury to declare a man guilty, or to declare that one man owed money to +another, unless all the evidence were admitted, which _they_ thought +ought to be admitted, for ascertaining the truth.[56] + +_Grand Jury._--If jurors are bound to enforce all laws passed by the +legislature, it is a very remarkable fact that the oath of grand juries +does not require them to be governed by the laws in finding indictments. +There have been various forms of oath administered to grand jurors; but +by none of them that I recollect ever to have seen, except those of the +States of Connecticut and Vermont, are they sworn to present men +_according to law_. The English form, as given in the essay on Grand +Juries, written near two hundred years ago, and supposed to have been +written by _Lord Somers_, is as follows: + + "You shall diligently inquire, and true presentment make, of all such + articles, matters, and things, as shall be given you in charge, and + of all other matters and things as shall come to your knowledge + touching this present service. The king's council, your fellows, and + your own, you shall keep secret. You shall present no person for + hatred or malice; neither shall you leave any one unpresented for + favor, or affection, for love or gain, or any hopes thereof; but in + all things you shall present the truth, the whole truth, and nothing + but the truth, to the best of your knowledge. So help you God." + +This form of oath is doubtless quite ancient, for the essay says "our +ancestors appointed" it.--_See Essay_, p. 33-34. + +On the obligations of this oath, the essay says: + + "If it be asked how, or in what manner, the (grand) juries shall + inquire, the answer is ready, _according to the best of their + understandings_. They only, not the judges, are sworn to search + diligently to find out all treasons, &c., within their charge, and + they must and ought to use their own discretion in the way and manner + of their inquiry. _No directions can legally be imposed upon them by + any court or judges_; an honest jury will thankfully accept good + advice from judges, as their assistants; but they are bound by their + oaths to present the truth, the whole truth, and nothing but the + truth, to the best of their own, not the judge's, knowledge. Neither + can they, without breach of that oath, resign their consciences, or + blindly submit to the dictates of others; and therefore ought to + receive or reject such advices, as they judge them good or bad. * * + Nothing can be more plain and express than the words of the oath are + to this purpose. The jurors need not search the law books, nor tumble + over heaps of old records, for the explanation of them. Our greatest + lawyers may from hence learn more certainly our ancient law in this + case, than from all the books in their studies. The language wherein + the oath is penned is known and understood by every man, and the + words in it have the same signification as they have wheresoever else + they are used. The judges, without assuming to themselves a + legislative power, cannot put a new sense upon them, other than + according to their genuine, common meaning. They cannot magisterially + impose their opinions upon the jury, and make them forsake the direct + words of their oath, to pursue their glosses. The grand inquest are + bound to observe alike strictly every part of their oath, and to use + all just and proper ways which may enable them to perform it; + otherwise it were to say, that after men had sworn to inquire + diligently after the truth, according to the best of their knowledge, + they were bound to forsake all the natural and proper means which + their understandings suggest for the discovery of it, if it be + commanded by the judges."--_Lord Somers' Essay on Grand Juries_, p. + 38. + +What is here said so plainly and forcibly of the oath and obligations of +grand juries, is equally applicable to the oath and obligations of petit +juries. In both cases the simple oaths of the jurors, and not the +instructions of the judges, nor the statutes of kings nor legislatures, +are their legal guides to their duties.[57] + + +SECTION IV. + +_The Right of Juries to fix the Sentence._ + +The nature of the common law courts existing prior to Magna Carta, such +as the county courts, the hundred courts, the court-leet, and the +court-baron, all prove, what has already been proved from Magna Carta, +that, in jury trials, the juries fixed the sentence; because, in those +courts, there was no one but the jury who could fix it, unless it were +the sheriff, bailiff, or steward; and no one will pretend that it was +fixed by them. The juries unquestionably gave the "judgment" in both +civil and criminal cases. + +That the juries were to fix the sentence under Magna Carta, is also +shown by statutes subsequent to Magna Carta. + +A statute passed fifty-one years after Magna Carta, says that a baker, +for default in the weight of his bread, "_debeat_ amerciari vel subire +judicium pilloræ,"--that is, "_ought_ to be amerced, or suffer the +sentence of the pillory." And that a brewer, for "selling ale, contrary +to the assize," "_debeat_ amerciari, vel pati judicium tumbrelli;" that +is, "_ought_ to be amerced, or suffer judgment of the tumbrel."--_51 +Henry III._, st. 6. (1266.) + +If the king (the legislative power) had had authority to fix the +punishments of these offences imperatively, he would naturally have said +these offenders _shall_ be amerced, and _shall_ suffer judgment of the +pillory and tumbrel, instead of thus simply expressing the opinion that +they _ought_ to be punished in that manner. + +The statute of Westminster, passed sixty years after Magna Carta, +provides that, + + "No city, borough, nor town, _nor any man_, be amerced, without + reasonable cause, and according to the quantity of the trespass; that + is to say, every freeman saving his freehold, a merchant saving his + merchandise, a villein his waynage, _and that by his or their + peers_."--_3 Edward I._, ch. 6. (1275.) + +The same statute (ch. 18) provides further, that, + + "Forasmuch as the _common fine and amercement_ of the whole county in + Eyre of the justices for false judgments, or for other trespass, is + unjustly assessed by sheriffs and baretors in the shires, so that the + sum is many times increased, and the parcels otherwise assessed than + they ought to be, to the damage of the people, which be many times + paid to the sheriffs and baretors, which do not acquit the payers; it + is provided, and the king wills, that from henceforth such sums shall + be assessed before the justices in Eyre, afore their departure, _by + the oath of knights and other honest men_, upon all such as ought to + pay; and the justices shall cause the parcels to be put into their + estreats, which shall be delivered up unto the exchequer, and not the + whole sum."--_St. 3 Edward I._, ch. 18, (1275.)[58] + +The following statute, passed in 1341, one hundred and twenty-five years +after Magna Carta, providing for the trial of peers of the realm, and +the king's ministers, contains a recognition of the principle of Magna +Carta, that the jury are to fix the sentence. + + "Whereas before this time the peers of the land have been arrested + and imprisoned, and their temporalities, lands, and tenements, goods + and cattels, asseized in the king's hands, and some put to death + without judgment of their peers: It is accorded and assented, that no + peer of the land, officer, nor other, because of his office, nor of + things touching his office, nor by other cause, shall be brought in + judgment to lose his temporalities, lands, tenements, goods and + cattels, nor to be arrested, nor imprisoned, outlawed, exiled, nor + forejudged, nor put to answer, nor be judged, but by _award_ + (_sentence_) of the said peers in Parliament."--_15 Edward III._, st. + 1, sec. 2. + +Section 4, of the same statute provides, + + "That in every Parliament, at the third day of every Parliament, the + king shall take in his hands the offices of all the ministers + aforesaid," (that is, "the chancellor, treasurer, barons, and + chancellor of the exchequer, the justices of the one bench and of the + other, justices assigned in the country, steward and chamberlain of + the king's house, keeper of the privy seal, treasurer of the + wardrobe, controllers, and they that be chief deputed to abide nigh + the king's son, Duke of Cornwall,") "and so they shall abide four or + five days; except the offices of justices of the one place or the + other, justices assigned, barons of exchequer; so always that they + and all other ministers be put to answer to every complaint; and if + default be found in any of the said ministers, by complaint or other + manner, and of that attainted in Parliament, he shall be punished by + judgment of the peers, and put out of his office, and another + convenient put in his place. And upon the same our said sovereign + lord the king shall do (cause) to be pronounced and made execution + without delay, _according to the judgment_ (_sentence_) of the said + peers in the Parliament." + +Here is an admission that the peers were to fix the sentence, or +judgment, and the king promises to make execution "_according to_" that +sentence. + +And this appears to be the law, under which peers of the realm and the +great officers of the crown were tried and sentenced, for four hundred +years after its passage, and, for aught I know, until this day. + +The first case given in Hargrave's collection of English State Trials, +is that of _Alexander Nevil_, Archbishop of York, _Robert Vere_, Duke +of Ireland, _Michael de la Pole_, Earl of Suffolk, and _Robert +Tresilian_, Lord Chief Justice of England, with several others, +convicted of treason, before "the Lords of Parliament," in 1388. The +sentences in these cases were adjudged by the "Lords of Parliament," in +the following terms, as they are reported. + + "Wherefore the said _Lords of Parliament_, there present, as judges + in Parliament, in this case, _by assent of the king, pronounced their + sentence_, and did adjudge the said archbishop, duke, and earl, with + Robert Tresilian, so appealed, as aforesaid, to be guilty, and + convicted of treason, and to be drawn and hanged, as traitors and + enemies to the king and kingdom; and that their heirs should be + disinherited forever, and their lands and tenements, goods and + chattels, forfeited to the king, and that the temporalities of the + Archbishop of York should be taken into the king's hands." + + Also, in the same case, Sir _John Holt_, Sir _William Burgh_, Sir + _John Cary_, Sir _Roger Fulthorpe_, and _John Locton_, "_were by the + lords temporal, by the assent of the king_, adjudged to be drawn and + hanged, as traitors, their heirs disinherited, and their lands and + tenements, goods and chattels, to be forfeited to the king." + + Also, in the same case, _John Blake_, "of council for the king," and + _Thomas Uske_, under sheriff of Middlesex, having been convicted of + treason, + + "_The lords awarded, by assent of the king_, that they should both be + hanged and drawn as traitors, as open enemies to the king and + kingdom, and their heirs disinherited forever, and their lands and + tenements, goods and chattels, forfeited to the king." + + Also, "_Simon Burleigh_, the king's chamberlain," being convicted of + treason, "_by joint consent of the king and the lords_, sentence was + pronounced against the said Simon Burleigh, that he should be drawn + from the town to Tyburn, and there be hanged till he be dead, and + then have his head struck from his body." + + Also, "_John Beauchamp_, steward of the household to the king, _James + Beroverse_, and _John Salisbury_, knights, gentlemen of the privy + chamber, _were in like manner condemned_."--_1 Hargrave's State + Trials_, first case. + +Here the sentences were all fixed by the peers, _with the assent of the +king_. But that the king should be consulted, and his assent obtained to +the sentence pronounced by the peers, does not imply any deficiency of +power on their part to fix the sentence independently of the king. There +are obvious reasons why they might choose to consult the king, and +obtain his approbation of the sentence they were about to impose, +without supposing any legal necessity for their so doing. + +So far as we can gather from the reports of state trials, peers of the +realm were usually sentenced by those who tried them, _with the assent +of the king_. But in some instances no mention is made of the assent of +the king, as in the case of "Lionel, Earl of Middlesex, Lord High +Treasurer of England," in 1624, (four hundred years after Magna Carta,) +where the sentence was as follows: + + "This High Court of Parliament doth adjudge, that Lionel, Earl of + Middlesex, now Lord Treasurer of England, shall lose all his offices + which he holds in this kingdom, and shall, hereafter, be made + incapable of any office, place, or employment in the state and + commonwealth. That he shall be imprisoned in the tower of London, + during the king's pleasure. That he shall pay unto our sovereign lord + the king a fine of 50,000 pounds. That he shall never sit in + Parliament any more, and that he shall never come within the verge of + the court."--_2 Howell's State Trials_, 1250. + +Here was a peer of the realm, and a minister of the king, of the highest +grade; and if it were ever _necessary_ to obtain the assent of the king +to sentences pronounced by the peers, it would unquestionably have been +obtained in this instance, and his assent would have appeared in the +sentence. + +_Lord Bacon_ was sentenced by the House of Lords, (1620,) _no mention +being made of the assent of the king_. The sentence is in these words: + + "And, therefore, this High Court doth adjudge, That the Lord Viscount + St. Albans, Lord Chancellor of England, shall undergo fine and ransom + of 40,000 pounds. That he shall be imprisoned in the tower during the + king's pleasure. That he shall forever be incapable of any office, + place, or employment in the state or commonwealth. That he shall + never sit in Parliament, nor come within the verge of the court." + +And when it was demanded of him, before sentence, whether it were his +hand that was subscribed to his confession, and whether he would stand +to it; he made the following answer, which implies that the lords were +the ones to determine his sentence. + + "My lords, it is my act, my hand, my heart. _I beseech your lordships + to be merciful to a broken reed._"--_1 Hargrave's State Trials_, + 386-7. + +The sentence against Charles the First, (1648,) after reciting the +grounds of his condemnation, concludes in this form: + + "For all which treasons and crimes, _this court doth adjudge_, that + he, the said Charles Stuart, as a tyrant, traitor, murderer, and + public enemy to the good people of this nation, shall be put to death + by the severing his head from his body." + +The report then adds: + + "This sentence being read, the president (of the court) spake as + followeth: 'This sentence now read and published, is the act, + sentence, judgment and resolution of the whole court.'"--_1 + Hargrave's State Trials_, 1037. + +Unless it had been the received "_law of the land_" that those who tried +a man should fix his sentence, it would have required an act of +Parliament to fix the sentence of Charles, and his sentence would have +been declared to be "_the sentence of the law_," instead of "_the act, +sentence, judgment, and resolution of the court_." + +But the report of the proceedings in "the trial of Thomas, Earl of +Macclesfield, Lord High Chancellor of Great Britain, before the House of +Lords, for high crimes and misdemeanors in the execution of his office," +in 1725, is so full on this point, and shows so clearly that it rested +wholly with the lords to fix the sentence, and that the assent of the +king was wholly unnecessary, that I give the report somewhat at length. + +_After being found guilty_, the earl addressed the _lords_, for a +_mitigation of sentence_, as follows: + + "'I am now to expect your lordships' judgment; and I hope that you + will be pleased to consider that I have suffered no small matter + already in the trial, in the expense I have been at, the fatigue, and + what I have suffered otherways. * * I have paid back 10,800 pounds of + the money already; I have lost my office; I have undergone the + censure of both houses of Parliament, which is in itself a severe + punishment,'" &c., &c. + +On being interrupted, he proceeded: + + "'My lords, I submit whether this be not proper in _mitigation of + your lordships' sentence_; but whether it be or not, I leave myself + to your lordships' justice and mercy; I am sure neither of them will + be wanting, and I entirely submit.' * * + + "Then the said earl, as also the managers, were directed to withdraw; + and the House (of Lords) ordered Thomas, Earl of Macclesfield, to be + committed to the custody of the gentleman usher of the black rod; and + then proceeded to the consideration of what _judgment_," (that is, + _sentence_, for he had already been found _guilty_,) "to give upon + the impeachment against the said earl." * * + + "The next day, the Commons, with their speaker, being present at the + bar of the House (of Lords), * * the speaker of the House of Commons + said as follows: + + "'My Lords, the knights, citizens, and burgesses in Parliament + assembled, in the name of themselves, and of all the commons of Great + Britain, did at this bar impeach Thomas, Earl of Macclesfield, of + high crimes and misdemeanors, and did exhibit articles of impeachment + against him, and have made good their charge. I do, therefore, in the + name of the knights, citizens, and burgesses, in Parliament + assembled, and of all the commons of Great Britain, demand _judgment_ + (_sentence_) of your lordships against Thomas, Earl of Macclesfield, + for the said high crimes and misdemeanors.' + + "Then the Lord Chief Justice King, Speaker of the House of Lords, + said: 'Mr. Speaker, the Lords are now ready to proceed to judgment in + the case by you mentioned. + + "'Thomas, Earl of Macclesfield, the Lords have unanimously found you + guilty of high crimes and misdemeanors, charged on you by the + impeachment of the House of Commons, and do now, according to law, + proceed to _judgment_ against you, which I am ordered to pronounce. + Their lordships' _judgment_ is, and this high court doth adjudge, + that you, Thomas, Earl of Macclesfield, be fined in the sum of thirty + thousand pounds unto our sovereign lord the king; and that you shall + be imprisoned in the tower of London, and there kept in safe custody, + until you shall pay the said fine.'"--_6 Hargrave's State Trials_, + 762-3-4. + +This case shows that the principle of Magna Carta, that a man should be +_sentenced only_ by his peers, was in force, and acted upon as law, in +England, so lately as 1725, (five hundred years after Magna Carta,) so +far as it applied to a _peer of the realm_. + +But the same principle, on this point, that applies to a peer of the +realm, applies to every freeman. The only difference between the two is, +that the peers of the realm have had influence enough to preserve their +constitutional rights; while the constitutional rights of the people +have been trampled upon and rendered obsolete by the usurpation and +corruption of the government and the courts. + + +SECTION V. + +_The Oaths of Judges._ + +As further proof that the legislation of the king, whether enacted with +or without the assent and advice of his parliaments, was of no authority +unless it were consistent with the _common law_, and unless juries and +judges saw fit to enforce it, it may be mentioned that it is probable +that no judge in England was ever sworn to observe the laws enacted +either by the king alone, or by the king with the advice and assent of +parliament. + +The judges were sworn to "_do equal law, and execution of right, to all +the king's subjects, rich and poor, without having regard to any +person_;" and that they will "_deny no man common right_;"[59] but they +were _not_ sworn to obey or execute any statutes of the king, or of the +king and parliament. Indeed, they are virtually sworn _not_ to obey any +statutes that are against "_common right_," or contrary to "_the common +law_," or "_law of the land_;" but to "certify the king thereof"--that +is, notify him that his statutes are against the common law;--and then +proceed to execute the _common law_, notwithstanding such legislation to +the contrary. The words of the oath on this point are these: + + "_That ye deny no man common right by (virtue of) the king's letters, + nor none other man's, nor for none other cause; and in case any + letters come to you contrary to the law_, (that is, the common law, + as will be seen on reference to the entire oath given in the note,) + _that ye do nothing by such letters, but certify the king thereof + and proceed to execute the law_, (that is, the common law,) + _notwithstanding the same letters_." + +When it is considered that the king was the sole legislative power, and +that he exercised this power, to a great extent, by orders in council, +and by writs and "letters" addressed often-times to some sheriff, or +other person, and that his commands, when communicated to his justices, +or any other person, "by letters," or writs, _under seal_, had as much +legal authority as laws promulgated in any other form whatever, it will +be seen that this oath of the justices _absolutely required_ that they +disregard any legislation that was contrary to "_common right_," or +"_the common law_," and notify the king that it was contrary to common +right, or the common law, and then proceed to execute the common law, +notwithstanding such legislation.[60] + +If there could be any doubt that such was the meaning of this oath, that +doubt would be removed by a statute passed by the king two years +afterwards, which fully explains this oath, as follows: + + "Edward, by the Grace of God, &c., to the Sheriff of _Stafford_, + greeting: Because that by divers complaints made to us, we have + perceived that _the Law of the Land, which we by our oath are bound + to maintain_, is the less well kept, and the execution of the same + disturbed many times by maintenance and procurement, as well in the + court as in the country; we greatly moved of conscience in this + matter, and for this cause desiring as much for the pleasure of God, + and ease and quietness of our subjects, as to save our conscience, + and for to save and keep our said oath, by the assent of the great + men and other wise men of our council, we have ordained these things + following: + + "First, we have commanded all our justices, that they shall from + henceforth _do equal law and execution of right_ to all our subjects, + rich and poor, without having regard to any person, _and without + omitting to do right for any letters or commandment which may come to + them from us, or from any other, or by any other cause. And if that + any letters, writs, or commandments come to the justices, or to other + deputed to do law and right according to the usage of the realm, in + disturbance of the law, or of the execution of the same, or of right + to the parties, the justices and other aforesaid shall proceed and + hold their courts and processes, where the pleas and matters be + depending before them, as if no such letters, writs, or commandments + were come to them; and they shall certify us and our council of such + commandments which be contrary to the law_, (that is, "the law of the + land," or common law,) _as afore is said_.[61] And to the intent that + our justices shall do even right to all people in the manner + aforesaid, without more favor showing to one than to another, we have + ordained and caused our said justices to be sworn, that they shall + not from henceforth, as long as they shall be in the office of + justice, take fee nor robe of any man, but of ourself, and that they + shall take no gift nor reward by themselves, nor by other, privily + nor apertly, of any man that hath to do before them by any way, + except meat and drink, and that of small value; and that they shall + give no counsel to great men or small, in case where we be party, or + which do or may touch us in any point, upon pain to be at our will, + body, lands, and goods, to do thereof as shall please us, in case + they do contrary. And for this cause we have increased the fees of + the same, our justices, in such manner as it ought reasonably to + suffice them."--_20 Edward III._, ch. 1. (1346.) + +Other statutes of similar tenor have been enacted, as follows: + + "It is accorded and established, that it shall not be commanded by + the great seal, nor the little seal, to disturb or delay _common + right_; and though such commandments do come, the justices shall not + therefore leave (omit) to do right in any point."--_St. 2 Edward + III._, ch. 8. (1328.) + + "That by commandment of the great seal, or privy seal, no point of + this statute shall be put in delay; nor that the justices of + whatsoever place it be shall let (omit) to do the _common law_, by + commandment, which shall come to them under the great seal, or the + privy seal."--_14 Edward III._, st. 1, ch. 14. (1340.) + + "It is ordained and established, that neither letters of the signet, + nor of the king's privy seal, shall be from henceforth sent in damage + or prejudice of the realm, nor in disturbance of the law" (the common + law).--_11 Richard II._, ch. 10. (1387.) + +It is perfectly apparent from these statutes, and from the oath +administered to the justices, that it was a matter freely confessed by +the king himself, that his statutes were of no validity, if contrary to +the common law, or "common right." + +The oath of the justices, before given, is, I presume, the same that has +been administered to judges in England from the day when it was first +prescribed to them, (1344,) until now. I do not find from the English +statutes that the oath has ever been changed. The Essay on Grand Juries, +before referred to, and supposed to have been written by _Lord Somers_, +mentions this oath (page 73) as being still administered to judges, that +is, in the time of Charles II., more than three hundred years after the +oath was first ordained. If the oath has never been changed, it follows +that judges have not only never been sworn to support any statutes +whatever of the king, or of parliament, but that, for five hundred +years past, they actually have been sworn to treat as invalid all +statutes that were contrary to the common law. + + +SECTION VI. + +_The Coronation Oath._ + +That the legislation of the king was of no authority over a jury, is +further proved by the oath taken by the kings at their coronation. This +oath seems to have been substantially the same, from the time of the +_Saxon_ kings, down to the seventeenth century, as will be seen from the +authorities hereafter given. + +The purport of the oath is, that the king swears _to maintain the law of +the land_--that is, _the common law_. In other words, he swears "_to +concede and preserve to the English people the laws and customs conceded +to them by the ancient, just, and pious English kings, * * and +especially the laws, customs, and liberties conceded to the clergy and +people by the illustrious king Edward;" * * and "the just laws and +customs which the common people have chosen, (quas vulgus elegit)_." + +These are the same laws and customs which were called by the general +name of "_the law of the land_," or "_the common law_," and, with some +slight additions, were embodied in _Magna Carta_. + +This oath not only forbids the king to enact any statutes contrary to +the common law, but it proves that his statutes could be of no authority +over the consciences of a jury; since, as has already been sufficiently +shown, it was one part of this very common law itself,--that is, of the +ancient "laws, customs, and liberties," mentioned in the oath,--that +juries should judge of all questions that came before them, according to +their own consciences, independently of the legislation of the king. + +It was impossible that this right of the jury could subsist consistently +with any right, on the part of the king, to impose any authoritative +legislation upon them. His oath, therefore, to maintain the law of the +land, or the ancient "laws, customs, and liberties," was equivalent to +an oath that he would never _assume_ to impose laws upon juries, as +imperative rules of decision, or take from them the right to try all +cases according to their own consciences. It is also an admission that +he had no constitutional power to do so, if he should ever desire it. +This oath, then, is conclusive proof that his legislation was of no +authority with a jury, and that they were under no obligation whatever +to enforce it, unless it coincided with their own ideas of justice. + +The ancient coronation oath is printed with the Statutes of the Realm, +vol. i., p. 168, and is as follows:[62] + +TRANSLATION. + + "_Form of the Oath of the King of England, on his Coronation._ + + (The Archbishop of Canterbury, to whom, of right and custom of the + Church of Canterbury, ancient and approved, it pertains to anoint and + crown the kings of England, on the day of the coronation of the king, + and before the king is crowned, shall propound the underwritten + questions to the king.) + + The laws and customs, conceded to the English people by the ancient, + just, and pious English kings, will you concede and preserve to the + same people, with the confirmation of an oath? and especially the + laws, customs, and liberties conceded to the clergy and people by the + illustrious king Edward? + + (And the king shall answer,) I do concede, and will preserve them, + and confirm them by my oath. + + Will you preserve to the church of God, the clergy, and the people, + entire peace and harmony in God, according to your powers? + + (And the king shall answer,) I will. + + In all your judgments, will you cause equal and right justice and + discretion to be done, in mercy and truth, according to your powers? + + (And the king shall answer,) I will. + + Do you concede that the just laws and customs, _which the common + people have chosen_, shall be preserved; and do you promise that they + shall be protected by you, and strengthened to the honor of God, + according to your powers? + + (And the king shall answer,) I concede and promise." + +The language used in the last of these questions, "Do you concede that +the just laws and customs, _which the common people have chosen_, (_quas +vulgus elegit_,) shall be preserved?" &c., is worthy of especial notice, +as showing that the laws, which were to be preserved, were not +necessarily _all_ the laws which the kings enacted, _but only such of +them as the common people had selected or approved_. + +And how had the common people made known their approbation or selection +of these laws? Plainly, in no other way than this--_that the juries +composed of the common people had voluntarily enforced them_. The common +people had no other legal form of making known their approbation of +particular laws. + +The word "concede," too, is an important word. In the English statutes +it is usually translated _grant_--as if with an intention to indicate +that "the laws, customs, and liberties" of the English people were mere +_privileges, granted_ to them by the king; whereas it should be +translated _concede_, to indicate simply an _acknowledgment_, on the +part of the king, that such were the laws, customs, and liberties, which +had been chosen and established by the people themselves, and of right +belonged to them, and which he was bound to respect. + +I will now give some authorities to show that the foregoing oath has, +_in substance_, been the coronation oath from the times of William the +Conqueror, (1066,) down to the time of James the First, and probably +until 1688. + +It will be noticed, in the quotation from Kelham, that he says this oath +(or the oath of William the Conqueror) is "in sense and substance the +very same with that which the _Saxon_ kings used to take at their +coronations." + +Hale says: + + "Yet the English were very zealous for them," (that is, for the laws + of Edward the Confessor,) "no less or otherwise than they are at this + time for the Great Charter; insomuch that they were never satisfied + till the said laws were reënforced, and mingled, for the most part, + with the coronation oath of king William I., and some of his + successors."--_1 Hale's History of Common Law_, 157. + + Also, "William, on his coronation, had sworn to govern by the laws of + Edward the Confessor, some of which had been reduced into writing, + but the greater part consisted of the immemorial customs of the + realm."--_Ditto_, p. 202, note L. + +Kelham says: + + "Thus stood the laws of England at the entry of William I., and it + seems plain that the laws, commonly called the laws of Edward the + Confessor, were at that time the standing laws of the kingdom, and + considered the great rule of their rights and liberties; and that the + English were so zealous for them, 'that they were never satisfied + till the said laws were reënforced, and mingled, for the most part, + with the coronation oath.' Accordingly, we find that this great + conqueror, at his coronation on the Christmas day succeeding his + victory, took an oath at the altar of St. Peter, Westminster, _in + sense and substance the very same with that which the Saxon kings + used to take at their coronations_. * * And at Barkhamstead, in the + fourth year of his reign, in the presence of Lanfranc, Archbishop of + Canterbury, for the quieting of the people, he swore that he would + inviolably observe the good and approved ancient laws which had been + made by the devout and pious kings of England, his ancestors, and + chiefly by King Edward; and we are told that the people then departed + in good humor."--_Kelham's Preliminary Discourse to the Laws of + William the Conqueror._ See, also, _1 Hale's History of the Common + Law_, 186. + +Crabbe says that William the Conqueror "solemnly swore that he would +observe the good and approved laws of Edward the Confessor."--_Crabbe's +History of the English Law_, p. 43. + +The successors of William, up to the time of Magna Carta, probably all +took the same oath, according to the custom of the kingdom; although +there may be no historical accounts extant of the oath of each separate +king. But history tells us specially that Henry I., Stephen, and Henry +II., confirmed these ancient laws and customs. It appears, also, that +the barons desired of John (what he afterwards granted by Magna Carta) +"_that the laws and liberties of King Edward_, with other privileges +granted to the kingdom and church of England, might be confirmed, as +they were contained in the charters of Henry the First; further +alleging, _that at the time of his absolution, he promised by his oath +to observe these very laws and liberties_."--_Echard's History of +England_, p. 105-6. + +It would appear, from the following authorities, that since Magna Carta +the form of the coronation oath has been "_to maintain the law of the +land_,"--meaning that law as embodied in Magna Carta. Or perhaps it is +more probable that the ancient form has been still observed, but that, +as its substance and purport were "_to maintain the law of the land_," +this latter form of expression has been used, in the instances here +cited, from motives of brevity and convenience. This supposition is the +more probable, from the fact that I find no statute prescribing a change +in the form of the oath until 1688. + +That Magna Carta was considered as embodying "the law of the land," or +"common law," is shown by a statute passed by Edward I., wherein he +"grants," or concedes, + + "That the Charter of Liberties and the Charter of the Forest * * + shall be kept in every point, without breach, * * and that our + justices, sheriffs, mayors, and other ministers, which, under us, + have the _laws of our land_[63] to guide, shall allow the said + charters pleaded before them in judgment, in all their points, that + is, to wit, _the Great Charter as the Common Law_, and the Charter of + the Forest for the wealth of the realm. + + "And we will, that if any judgment be given from henceforth, contrary + to the points of the charters aforesaid, by the justices, or by any + other our ministers that hold plea before them against the points of + the charters, it shall be undone, and holden for naught."--_25 Edward + I._, ch. 1 and 2. (1297.) + +Blackstone also says: + + "It is agreed by all our historians that the Great Charter of King + John was, for the most part, _compiled from the ancient customs of + the realm, or the laws of Edward the Confessor; by which they usually + mean the old common law which was established under our Saxon + princes_."--_Blackstone's Introduction to the Charters._ See + _Blackstone's Law Tracts_, 289. + +Crabbe says: + + "It is admitted, on all hands, that it (Magna Carta) contains nothing + but what was confirmatory of the common law, and the ancient usages + of the realm, and is, properly speaking, only an enlargement of the + charter of Henry I., and his successors."--_Crabbe's History of the + English Law_, p. 127. + +That the coronation oath of the kings subsequent to Magna Carta was, in +substance, if not in form, "_to maintain this law of the land, or common +law_," is shown by a statute of Edward Third, commencing as follows: + + "Edward, by the Grace of God, &c., &c., to the Sheriff of Stafford, + Greeting: Because that by divers complaints made to us, we have + perceived that _the law of the land, which we by oath are bound to + maintain_," &c.--_St. 20 Edward III._ (1346.) + +The following extract from Lord Somers' tract on Grand Juries shows that +the coronation oath continued the same as late as 1616, (four hundred +years after Magna Carta.) He says: + + "King James, in his speech to the judges, in the Star Chamber, Anno + 1616, told them, 'That he had, after many years, resolved to renew + his oath, made at his coronation, concerning justice, and the promise + therein contained for _maintaining the law of the land_.' And, in the + next page save one, says, '_I was sworn to maintain the law of the + land_, and therefore had been perjured if I had broken it. God is my + judge, I never intended it.'"--_Somers on Grand Juries_, p. 82. + +In 1688, the coronation oath was changed by act of Parliament, and the +king was made to swear: + + "To govern the people of this kingdom of England, and the dominions + thereto belonging, _according to the statutes in Parliament agreed + on, and the laws and customs of the same_."--_St. 1 William and + Mary_, ch. 6. (1688.) + +The effect and legality of this oath will hereafter be considered. For +the present it is sufficient to show, as has been already sufficiently +done, that from the Saxon times until at least as lately as 1616, the +coronation oath has been, in substance, _to maintain the law of the +land, or the common law_, meaning thereby the ancient Saxon customs, as +embodied in the laws of Alfred, of Edward the Confessor, and finally in +Magna Carta. + +It may here be repeated that this oath plainly proves that the statutes +of the king were of no authority over juries, if inconsistent with their +ideas of right; because it was one part of the common law that juries +should try all causes according to their own consciences, any +legislation of the king to the contrary notwithstanding.[64] + +[Footnote 34: Hale says: + + "The trial by jury of twelve men was the usual trial among the + Normans, in most suits; especially in assizes, et juris utrum."--_1 + Hale's History of the Common Law_, 219. + +This was in Normandy, before the conquest of England by the Normans. +_See Ditto_, p. 218. + +Crabbe says: + + "It cannot be denied that the practice of submitting causes to the + decision of twelve men was universal among all the northern tribes + (of Europe) from the very remotest antiquity."--_Crabbe's History of + the English Law_, p. 32.] + +[Footnote 35: "The people, who in every general council or assembly +could oppose and dethrone their sovereigns, were in little dread of +their encroachments on their liberties; and kings, who found sufficient +employment in keeping possession of their crowns, would not likely +attack the more important privileges of their subjects."] + +[Footnote 36: This office was afterwards committed to sheriffs. But even +while the court was held by the lord, "_the Lord was not judge, but the +Pares (peers) only_."--_Gilbert on the Court of Exchequer_, 61-2.] + +[Footnote 37: The opinion expressed in the text, that the Witan had no +legislative authority, is corroborated by the following authorities: + +"From the fact that the new laws passed by the king and the Witan were +laid before the shire-mote, (county court,) we should be almost +justified in the inference that a second sanction was necessary before +they could have the effect of law in that particular county."--_Dunham's +Middle Ages, Sec._ 2, _B._ 2, _Ch._ 1. _57 Lardner's Cab. Cyc._, 53. + +The "_second sanction_" required to give the legislation of the king and +Witan the effect of law, was undoubtedly, I think, _as a general thing, +the sanction of a jury_. I know of no evidence whatever that laws were +ever submitted to popular vote in the county courts, as this author +seems to suppose possible. Another mode, sometimes resorted to for +obtaining the sanction of the people to the laws of the Witan, was, it +seems, to persuade the people themselves to swear to observe them. +Mackintosh says: + +"The preambles of the laws (of the Witan) speak of the infinite number +of _liegemen_ who attended, as only applauding the measures of the +assembly. But this applause was neither so unimportant to the success of +the measures, nor so precisely distinguished from a share in +legislation, as those who read history with a modern eye might imagine. +It appears that under Athelstan expedients were resorted to, to obtain a +consent to the law from great bodies of the people in their districts, +which their numbers rendered impossible in a national assembly. That +monarch appears to have sent commissioners to hold _shire-gemotes_ or +county meetings, where they proclaimed the laws made by the king and his +counsellors, which, being acknowledged and sworn to at these +_folk-motes_ (meetings of the people) became, by their assent, +completely binding on the whole nation."--_Mackintosh's Hist. of +England_, _Ch._ 2. _45 Lardner's Cab. Cyc._, 75.] + +[Footnote 38: Page 31.] + +[Footnote 39: Hallam says, "It was, however, to the county court that an +English freeman chiefly looked for the maintenance of his civil +rights."--_2 Middle Ages_, 392. + +Also, "This (the county court) was the great constitutional judicature +in all questions of civil right."--_Ditto_, 395. + +Also, "The liberties of these Anglo-Saxon thanes were chiefly secured, +next to their swords and their free spirits, by the inestimable right of +deciding civil and criminal suits in their own county courts."--_Ditto_, +399.] + +[Footnote 40: "Alfred may, in one sense, be called the founder of these +laws, (the Saxon,) for until his time they were an unwritten code, but +he expressly says, '_that I, Alfred, collected the good laws of our +forefathers into one code, and also I wrote them down_'--which is a +decisive fact in the history of our laws well worth noting."--_Introduction +to Gilbert's History of the Common Pleas_, p. 2, _note_. + +Kelham says, "Let us consult our own lawyers and historians, and they +will tell us * * that Alfred, Edgar, and Edward the Confessor, were the +great _compilers and restorers_ of the English Laws."--_Kelham's +Preliminary Discourse to the Laws of William the Conqueror_, p. 12. +_Appendix to Kelham's Dictionary of the Norman Language._ + +"He (Alfred) also, like another Theodosius, _collected the various +customs_ that he found dispersed in the kingdom, and reduced and +digested them into one uniform system, or code of laws, in his +_som-bec_, or _liber judicialis_ (judicial book). This he _compiled_ for +the use of the court baron, hundred and county court, the court-leet and +sheriff's tourn, tribunals which he established for the trial of all +causes, civil and criminal, in the very districts wherein the complaints +arose."--_4 Blackstone_, 411. + +Alfred himself says, "Hence I, King Alfred, gathered these together, and +commanded many of those to be written down which our forefathers +observed--those which I liked--and those which I did not like, by the +advice of my Witan, I threw aside. For I durst not venture to set down +in writing over many of my own, since I knew not what among them would +please those that should come after us. But those which I met with +either of the days of me, my kinsman, or of Offa, King of Mercia, or of +Æthelbert, who was the first of the English who received baptism--those +which appeared to me the justest--I have here collected, and abandoned +the others. Then I, Alfred, King of the West Saxons, showed these to all +my Witan, and they then said that they were all willing to observe +them."--_Laws of Alfred, translated by R. Price, prefixed to +Mackintosh's History of England_, _vol._ 1. _45 Lardner's Cab. Cyc._ + +"King Edward * * projected and begun what his grandson, King Edward the +Confessor, afterwards completed, viz., one uniform digest or body of +laws to be observed throughout the whole kingdom, _being probably no +more than a revival of King Alfred's code_, with some improvements +suggested by necessity and experience, particularly the incorporating +some of the British, or, rather, Mercian _customs_, and also _such of +the Danish_ (customs) as were reasonable and approved, into the _West +Saxon Lage_, which was still the ground-work of the whole. And this +appears to be the best supported and most plausible conjecture, (for +certainty is not to be expected,) of the rise and original of that +admirable system of maxims and unwritten customs which is now known by +the name of the _common law_, as extending its authority universally +over all the realm, and which is doubtless of Saxon parentage."--_4 +Blackstone_, 412. + +"By the _Lex Terræ_ and _Lex Regni_ is understood the laws of Edward the +Confessor, confirmed and enlarged as they were by William the Conqueror; +and this Constitution or Code of Laws is what even to this day are +called '_The Common Law of the Land_.'"--_Introduction to Gilbert's +History of the Common Pleas_, p. 22, _note_.] + +[Footnote 41: Not the conqueror of the English people, (as the friends +of liberty maintain,) but only of Harold the usurper.--See _Hale's +History of the Common Law_, ch. 5.] + +[Footnote 42: For all these codes see Wilkins' Laws of the Anglo-Saxons. + +"Being regulations adapted to existing institutions, the Anglo-Saxon +statutes are concise and technical, alluding to the law which was then +living and in vigor, rather than defining it. The same clauses and +chapters are often repeated word for word, in the statutes of subsequent +kings, showing that enactments which bear the appearance of novelty are +merely declaratory. Consequently the appearance of a law, seemingly for +the first time, is by no means to be considered as a proof that the +matter which it contains is new; nor can we trace the progress of the +Anglo-Saxon institutions with any degree of certainty, by following the +dates of the statutes in which we find them first noticed. All arguments +founded on the apparent chronology of the subjects included in the laws, +are liable to great fallacies. Furthermore, a considerable portion of +the Anglo-Saxon law was never recorded in writing. There can be no doubt +but that the rules of inheritance were well established and defined; yet +we have not a single law, and hardly a single document from which the +course of the descent of land can be inferred. * * Positive proof cannot +be obtained of the commencement of any institution, because the first +written law relating to it may possibly be merely confirmatory or +declaratory; neither can the non-existence of any institution be +inferred from the absence of direct evidence. Written laws were modified +and controlled by customs of which no trace can be discovered, until +after the lapse of centuries, although those usages must have been in +constant vigor during the long interval of silence."--_1 Palgrave's Rise +and Progress of the English Commonwealth_, 58-9.] + +[Footnote 43: Rapin says, "The customs now practised in England are, for +the most part, the same as the Anglo-Saxons brought with them from +Germany."--_Rapin's Dissertation on the Government of the Anglo-Saxons_, +vol. 2, Oct. Ed., p. 198. See _Kelham's Discourse before named_.] + +[Footnote 44: Hallam says, "The county of Sussex contains sixty-five +('hundreds'); that of Dorset forty-three; while Yorkshire has only +twenty-six; and Lancashire but six."--_2 Middle Ages_, 391.] + +[Footnote 45: Excepting also matters pertaining to the collection of the +revenue, which were determined in the king's court of exchequer. But +even in this court it was the law "_that none be amerced but by his +peers_."--_Mirror of Justices_, 49.] + +[Footnote 46: "For the English laws, _although not written_, may, as it +should seem, and that without any absurdity, be termed laws, (since this +itself is law--that which pleases the prince has the force of law,) I +mean those laws which it is evident were promulgated by the advice of +the nobles and the authority of the prince, concerning doubts to be +settled in their assembly. For if from the mere want of writing only, +they should not be considered laws, then, unquestionably, writing would +seem to confer more authority upon laws themselves, than either the +equity of the persons constituting, or the reason of those framing +them."--_Glanville's Preface_, p. 38. (Glanville was chief justice of +Henry II., 1180.) _2 Turner's History of the Anglo-Saxons_, 280.] + +[Footnote 47: Mackintosh's History of England, ch. 3. Lardner's Cabinet +Cyclopædia, 266.] + +[Footnote 48: If the laws of the king were received as authoritative by +the juries, what occasion was there for his appointing special +commissioners for the trial of offences, without the intervention of a +jury, as he frequently did, in manifest and acknowledged violation of +Magna Carta, and "the law of the land?" These appointments were +undoubtedly made for no other reason than that the juries were not +sufficiently subservient, but judged according to their own notions of +right, instead of the will of the king--whether the latter were +expressed in his statutes, or by his judges.] + +[Footnote 49: Of course, Mr. Reeve means to be understood that, in the +hundred court, and court-leet, _the jurors were the judges_, as he +declares them to have been in the county court; otherwise the "bailiff" +or "steward" must have been judge.] + +[Footnote 50: The jurors were sometimes called "assessors," because they +assessed, or determined the amount of fines and amercements to be +imposed.] + +[Footnote 51: "The barons of the Hundred" were the freeholders. Hallam +says: "The word _baro_, originally meaning only a man, was of very large +significance, and is not unfrequently applied to common freeholders, as +in the phrase _court-baron_."--_3 Middle Ages_, 14-15. + +_Blackstone_ says: "The _court-baron_ * * is a court of common law, and +it is the court of the barons, by which name the freeholders were +sometimes anciently called; for that it is held before the freeholders +who owe suit and service to the manor."--_3 Blackstone_, 33.] + +[Footnote 52: The ancient jury courts kept no records, because those who +composed the courts could neither make nor read records. Their decisions +were preserved by the memories of the jurors and other persons present.] + +[Footnote 53: Stuart says: + +"The courts, or civil arrangements, which were modelled in Germany, +preserved the independence of the people; and having followed the Saxons +into England, and continuing their importance, they supported the envied +liberty we boast of. * * + +"As a chieftain led out his retainers to the field, and governed them +during war; so in peace he summoned them together, and exerted a civil +jurisdiction. He was at once their captain and their judge. They +constituted his court; and having inquired with him into the guilt of +those of their order whom justice had accused, they assisted him to +enforce his decrees. + +"This court (the court-baron) was imported into England; but the +innovation which conquest introduced into the fashion of the times +altered somewhat its appearance. * * + +"The head or lord of the manor called forth his attendants to his hall. +* * He inquired into the breaches of custom, and of justice, which were +committed within the precincts of his territory; and with his followers, +_who sat with him as judges_, he determined in all matters of debt, and +of trespass to a certain amount. He possessed a similar jurisdiction +with the chieftain in Germany, and his tenants enjoyed an equal +authority with the German retainers. + +"But a mode of administration which intrusted so much power to the great +could not long be exercised without blame or injustice. The German, +guided by the candor of his mind, and entering into all his engagements +with the greatest ardor, perceived not, at first, that the chieftain to +whom he submitted his disputes might be swayed, in the judgments he +pronounced, by partiality, prejudice, or interest; and that the +influence he maintained with his followers was too strong to be +restrained by justice. Experience instructed him of his error; he +acknowledged the necessity of appealing from his lord; and the court of +the Hundred was erected. + +"This establishment was formed both in Germany and England, by the +inhabitants of a certain division, who extended their jurisdiction over +the territory they occupied.[65] They bound themselves under a penalty +to assemble at stated times; _and having elected the wisest to preside +over them, they judged, not only all civil and criminal matters_, but of +those also which regarded religion and the priesthood. The judicial +power thus invested in the people was extensive; they were able to +preserve their rights, and attended this court in arms. + +"As the communication, however, and intercourse, of the individuals of a +German community began to be wider, and more general, as their dealings +enlarged, and as disputes arose among the members of different hundreds, +the insufficiency of these courts for the preservation of order was +gradually perceived. The _shyre mote_, therefore, or _county court_, was +instituted; and it formed the chief source of justice both in Germany +and England. + +"The powers, accordingly, which had been enjoyed by the court of the +_hundred_, were considerably impaired. It decided no longer concerning +capital offences; it decided not concerning matters of liberty, and the +property of estates, or of slaves; its judgments, in every case, became +subject to review; and it lost entirely the decision of causes, when it +delayed too long to consider them. + +"Every subject of claim or contention was brought, in the first +instance, or by appeal, to the _county court_; and the _earl_, or +_eorldorman_, who presided there, was active to put the laws in +execution. He repressed the disorders which fell out within the circuit +of his authority; and the least remission in his duty, or the least +fraud he committed, was complained of and punished. He was elected from +among the great, and was above the temptation of a bribe; but, to +encourage his activity, he was presented with a share of the territory +he governed, or was entitled to a proportion of the fines and profits of +justice. Every man, in his district, was bound to inform him concerning +criminals, and to assist him to bring them to trial; and, as in rude and +violent times the poor and helpless were ready to be oppressed by the +strong, he was instructed particularly to defend them. + +"His court was ambulatory, and assembled only twice a year, unless the +distribution of justice required that its meetings should be oftener. +Every freeholder in the county was obliged to attend it; and should he +refuse this service, his possessions were seized, and he was forced to +find surety for his appearance. The neighboring earls held not their +courts on the same day; and, what seems very singular, no judge was +allowed, after meals, to exercise his office. + +"The druids also, or priests, in Germany, as we had formerly occasion to +remark, and the clergy in England, exercised a jurisdiction in the +_hundred_ and _county_ courts. They instructed the people in religious +duties, and in matters regarding the priesthood; and the princes, earls, +or _eorldormen_, related to them the laws and customs of the community. +These judges were mutually a check to each other; but it was expected +that they should agree in their judgments, and should willingly unite +their efforts for the public interest.[66] + +"_But the prince or earl performed not, at all times, in person, the +obligations of his office._ The enjoyment of ease and of pleasure, to +which in Germany he had delivered himself over, when disengaged from +war, and the mean idea he conceived of the drudgery of civil affairs, +_made him often delegate to an inferior person the distribution of +justice in his district_. The same sentiments were experienced by the +Saxon nobility; and the service which they owed by their tenures, and +the high employments they sustained, called them often from the +management of their counties. The progress, too, of commerce, giving an +intricacy to cases, and swelling the civil code, added to the difficulty +of their office, and made them averse to its duties. _Sheriffs, +therefore, or deputies, were frequently appointed to transact their +business; and though these were at first under some subordination to the +earls, they grew at length to be entirely independent of them. The +connection of jurisdiction and territory ceasing to prevail, and the +civil being separated from the ecclesiastical power, they became the +sole and proper officers for the direction of justice in the counties._ + +"The _hundred_, however, and _county_ courts, were not equal of +themselves for the purposes of jurisdiction and order. It was necessary +that a court should be erected, of supreme authority, where the disputes +of the great should be decided, where the disagreeing sentiments of +judges should be reconciled, and where protection should be given to the +people against their fraud and injustice. + +"The princes accordingly, or chief nobility, in the German communities, +assembled together to judge of such matters. The Saxon nobles continued +this prerogative; and the king, or, in his absence, the chief +_justiciary_, watched over their deliberations. But it was not on every +trivial occasion that this court interested itself. In smaller concerns, +justice was refused during three sessions of the _hundred_, and claimed +without effect, at four courts of the county, before there could lie an +appeal to it. + +"So gradually were these arrangements established, and so naturally did +the varying circumstances in the situation of the Germans and +Anglo-Saxons direct those successive improvements which the preservation +of order, and the advantage of society, called them to adopt. The +admission of the people into the courts of justice preserved, among the +former, that equality of ranks for which they were remarkable; and it +helped to overturn, among the latter, those envious distinctions which +the feudal system tended to introduce, and prevented that venality in +judges, and those arbitrary proceedings, which the growing attachment to +interest, and the influence of the crown, might otherwise have +occasioned."--_Stuart on the Constitution of England_, p. 222 to 245. + +"In the Anglo-Saxon period, accordingly, _twelve_ only were elected; and +these, together with the judge, or presiding officer of the district, +being sworn to regard justice, and the voice of reason, or conscience, +all causes were submitted to them."--_Ditto_, p. 260. + +"Before the orders of men were very nicely distinguished, the jurors +were elected from the same rank. When, however, a regular subordination +of orders was established, and when a knowledge of property had inspired +the necessitous with envy, and the rich with contempt, _every man was +tried by his equals_. The same spirit of liberty which gave rise to this +regulation attended its progress. Nor could monarchs assume a more +arbitrary method of proceeding. 'I will not' (said the Earl of Cornwall +to his sovereign) 'render up my castles, nor depart the kingdom, but by +judgment of my peers.' Of this institution, so wisely calculated for the +preservation of liberty, all our historians have pronounced the +eulogium."--_Ditto_, p. 262-3. + +Blackstone says: + +"The policy of our ancient constitution, as regulated and established by +the great Alfred, was to bring justice home to every man's door, by +constituting as many courts of judicature as there are manors and towns +in the kingdom; _wherein injuries were redressed in an easy and +expeditious manner, by the suffrage of neighbors and friends_. These +little courts, however, communicated with others of a larger +jurisdiction, and those with others of a still greater power; ascending +gradually from the lowest to the supreme courts, which were respectively +constituted to correct the errors of the inferior ones, and to determine +such causes as, by reason of their weight and difficulty, demanded a +more solemn discussion. The course of justice flowing in large streams +from the king, as the fountain, to his superior courts of record; and +being then subdivided into smaller channels, till the whole and every +part of the kingdom were plentifully watered and refreshed. An +institution that seems highly agreeable to the dictates of natural +reason, as well as of more enlightened policy. * * + +"These inferior courts, at least the name and form of them, still +continue in our legal constitution; but as the superior courts of record +have, in practice, obtained a concurrent original jurisdiction, and as +there is, besides, a power of removing plaints or actions thither from +all the inferior jurisdictions; upon these accounts (among others) it +has happened that these petty tribunals have fallen into decay, and +almost into oblivion; whether for the better or the worse may be matter +of some speculation, when we consider, on the one hand, the increase of +expense and delay, and, on the other, the more able and impartial +decisions that follow from this change of jurisdiction. + +"The order I shall observe in discoursing on these several courts, +constituted for the redress of _civil_ injuries, (for with those of a +jurisdiction merely _criminal_ I shall not at present concern +myself,[67]) will be by beginning with the lowest, and those whose +jurisdiction, though public and generally dispersed through the kingdom, +is yet (with regard to each particular court) confined to very narrow +limits; and so ascending gradually to those of the most extensive and +transcendent power."--3 _Blackstone_, 30 to 32. + +"The _court-baron_ is a court incident to every manor in the kingdom, +_to be holden by the steward within the said manor_. This court-baron is +of two natures; the one is a customary court, of which we formerly +spoke, appertaining entirely to the copy-holders, in which their estates +are transferred by surrender and admittance, and other matters +transacted relative to their tenures only. The other, of which we now +speak, is a court of common law, and it is a court of the barons, by +which name the freeholders were sometimes anciently called; _for that it +is held by the freeholders who owe suit and service to the manor, the +steward being rather the registrar than the judge_. These courts, though +in their nature distinct, are frequently confounded together. _The court +we are now considering, viz., the freeholders court, was composed of the +lord's tenants, who were the pares_ (equals) _of each other, and were +bound by their feudal tenure to assist their lord in the dispensation of +domestic justice_. This was formerly held every three weeks; and its +most important business is to determine, by writ of right, all +controversies relating to the right of lands within the manor. It may +also hold plea of any personal actions, of debt, trespass in the case, +or the like, where the debt or damages do not amount to forty shillings; +which is the same sum, or three marks, that bounded the jurisdiction of +the ancient Gothic courts in their lowest instance, or _fierding +courts_, so called because four were instituted within every superior +district or hundred."--3 _Blackstone_, 33, 34. + +"A _hundred court_ is only a larger court-baron, being held for all the +inhabitants of a particular hundred, instead of a manor. _The free +suitors are here also the judges, and the steward the registrar, as in +the case of a court-baron._ It is likewise no court of record, +resembling the former at all points, except that in point of territory +it is of greater jurisdiction. This is said by Sir Edward Coke to have +been derived out of the county court for the ease of the people, that +they might have justice done to them at their own doors, without any +charge or loss of time; but its institution was probably coeval with +that of hundreds themselves, which were formerly observed to have been +introduced, though not invented, by Alfred, being derived from the +polity of the ancient Germans. The _centeni_, we may remember, were the +principal inhabitants of a district composed of different villages, +originally in number a _hundred_, but afterward only called by that +name, and who probably gave the same denomination to the district out of +which they were chosen. Cæsar speaks positively of the judicial power +exercised in their hundred courts and courts-baron. '_Princeps regiorum +atque pagorum_' (which we may fairly construe the lords of hundreds and +manors) '_inter suos jus dicunt, controversias que minuunt_.' (The +chiefs of the country and the villages declare the law among them, and +abate controversies.) And Tacitus, who had examined their constitution +still more attentively, informs us not only of the authority of the +lords, but that of the _centeni_, the hundreders, or jury, _who were +taken out of the common freeholders, and had themselves a share in the +determination. 'Eliguntur in conciliis et principes, qui jura per pagos +vicosque reddunt, centeni singulis, ex plebe comites concilium simul et +auctoritas adsunt_.' (The princes are chosen in the assemblies, who +administer the laws throughout the towns and villages, and with each one +are associated an hundred companions, taken from the people, for +purposes both of counsel and authority.) This hundred court was +denominated _hæreda_ in the Gothic constitution. But this court, as +causes are equally liable to removal from hence as from the common +court-baron, and by the same writs, and may also be reviewed by writ of +false judgment, is therefore fallen into equal disuse with regard to the +trial of actions."--_3 Blackstone_, 34, 35. + +"The _county court_ is a court incident to the jurisdiction of the +_sheriff_. It is not a court of record, but may hold pleas of debt, or +damages, under the value of forty shillings; over some of which causes +these inferior courts have, by the express words of the statute of +Gloucester, (6 Edward I., ch. 8,) a jurisdiction totally exclusive of +the king's superior courts. * * The county court may also hold plea of +many real actions, and of all personal actions to any amount, by virtue +of a special writ, called a _justicies_, which is a writ empowering the +sheriff, for the sake of despatch, to do the same justice in his county +court as might otherwise be had at Westminster. _The freeholders of the +county court are the real judges in this court, and the sheriff is the +ministerial officer._ * * In modern times, as proceedings are removable +from hence into the king's superior courts, by writ of pone or +_recordari_, in the same manner as from hundred courts and courts-baron, +and as the same writ of false judgment may be had in nature of a writ of +error, this has occasioned the same disuse of bringing actions +therein."--_3 Blackstone_, 36, 37. + +"Upon the whole, we cannot but admire the wise economy and admirable +provision of our ancestors in settling the distribution of justice in a +method so well calculated for cheapness, expedition, and ease. By the +constitution which they established, all trivial debts, and injuries of +small consequence, were to be recovered or redressed in every man's own +county, hundred, or perhaps parish."--_3 Blackstone_, 59.] + +[Footnote 54: 1 Blackstone, 63-67.] + +[Footnote 55: This quaint and curious book (Smith's Commonwealth of +England) describes the _minutiæ_ of trials, giving in detail the mode of +impanelling the jury, and then the conduct of the lawyers, witnesses, +and court. I give the following extracts, _tending to show that the +judges impose no law upon the juries, in either civil or criminal cases, +but only require them to determine the causes according to their +consciences_. + +In civil causes he says: + + "When it is thought that it is enough pleaded before them, and the + witnesses have said what they can, one of the judges, with a brief + and pithy recapitulation, reciteth to the twelve in sum the arguments + of the sergeants of either side, that which the witnesses have + declared, and the chief points of the evidence showed in writing, and + once again putteth them in mind of the issue, and sometime giveth it + them in writing, delivering to them the evidence which is showed on + either part, if any be, (evidence here is called writings of + contracts, authentical after the manner of England, that is to say, + written, sealed, and delivered,) and biddeth them go together."--p. + 74. + +This is the whole account given of the charge to the jury. + +In criminal cases, after the witnesses have been heard, and the prisoner +has said what he pleases in his defence, the book proceeds: + + "When the judge hath heard them say enough, he asketh if they can say + any more: If they say no, then he turneth his speech to the inquest. + 'Good men, (saith he,) ye of the inquest, ye have heard what these + men say against the prisoner. You have also heard what the prisoner + can say for himself. _Have an eye to your oath, and to your duty, and + do that which God shall put in your minds to the discharge of your + consciences_, and mark well what is said.'"--p. 92. + +This is the whole account given of the charge in a criminal case. + +The following statement goes to confirm the same idea, that jurors in +England have formerly understood it to be their right and duty to judge +only according to their consciences, and not to submit to any dictation +from the court, either as to law or fact. + + "If having pregnant evidence, nevertheless, the twelve do acquit the + malefactor, which they will do sometime, especially if they perceive + either one of the justices or of the judges, or some other man, to + pursue too much and too maliciously the death of the prisoner, * * + the prisoner escapeth; but the twelve (are) not only rebuked by the + judges, but also threatened of punishment; and many times commanded + to appear in the Star-Chamber, or before the Privy Council for the + matter. But this threatening chanceth oftener than the execution + thereof; _and the twelve answer with most gentle words, they did it + according to their consciences_, and pray the judges to be good unto + them, _they did as they thought right, and as they accorded all_, and + so it passeth away for the most part."--p. 100. + +The account given of the trial of a peer of the realm corroborates the +same point: + + "If any duke, marquis, or any other of the degrees of a baron, or + above, lord of the Parliament, be appeached of treason, or any other + capital crime, he is judged by his peers and equals; that is, the + yeomanry doth not go upon him, but an inquest of the Lords of + Parliament, and they give their voice not one for all, but each + severally as they do in Parliament, being (beginning) at the youngest + lord. And for judge one lord sitteth, who is constable of England for + that day. The judgment once given, he breaketh his staff, and + abdicateth his office. In the rest there is no difference from that + above written," (that is, in the case of a freeman.)--p. 98.] + +[Footnote 56: "The present form of the jurors' oath is that they shall +'give a true verdict _according to the evidence_.' At what time this +form was introduced is uncertain; but for several centuries after the +Conquest, the jurors, _both in civil and criminal cases_, were sworn +merely to _speak the truth_. (Glanville, lib. 2, cap. 17; Bracton, lib. +3, cap. 22; lib. 4, p. 287, 291; Britton, p. 135.) Hence their decision +was accurately termed _veredictum_, or verdict, that is, 'a thing truly +said'; whereas the phrase 'true verdict' in the modern oath is not an +accurate expression."--_Political Dictionary_, word _Jury_.] + +[Footnote 57: Of course, there can be no legal trial by jury, in either +civil or criminal cases, where the jury are sworn to try the cases +"_according to law_."] + +[Footnote 58: _Coke_, as late as 1588, admits that amercements must be +fixed by the peers (8 Coke's Rep. 38, 2 Inst. 27); but he attempts, +wholly without success, as it seems to me, to show a difference between +fines and amercements. The statutes are very numerous, running through +the three or four hundred years immediately succeeding Magna Carta, in +which fines, ransoms, and amercements are spoken of as if they were the +common punishments of offences, and as if they all meant the same thing. +If, however, any technical difference could be made out between them, +there is clearly none in principle; and the word amercement, as used in +Magna Carta, must be taken in its most comprehensive sense.] + +[Footnote 59: "_Common right_" was the common law. _1 Coke's Inst._ 142 +a. 2 _do._ 55, 6.] + +[Footnote 60: The oath of the justices is in these words: + +"Ye shall swear, that well and lawfully ye shall serve our lord the king +_and his people_, in the office of justice, and that lawfully ye shall +counsel the king in his business, and that ye shall not counsel nor +assent to anything which may turn him in damage or disherison in any +manner, way, or color. And that ye shall not know the damage or +disherison of him, whereof ye shall not cause him to be warned by +yourself, or by other; _and that ye shall do equal law and execution of +right to all his subjects, rich and poor, without having regard to any +person_. And that ye take not by yourself, or by other, privily nor +apertly, gift nor reward of gold nor silver, nor of any other thing that +may turn to your profit, unless it be meat or drink, and that of small +value, of any man that shall have any plea or process hanging before +you, as long as the same process shall be so hanging, nor after for the +same cause. And that ye take no fee, as long as ye shall be justice, nor +robe of any man great or small, but of the king himself. And that ye +give none advice or counsel to no man great or small, in no case where +the king is party. And in case that any, of what estate or condition +they be, come before you in your sessions with force and arms, or +otherwise against the peace, or against the form of the statute thereof +made, _to disturb execution of the common law_," (mark the term, +"_common law_,") "or to menace the people that they may not pursue the +law, that ye shall cause their bodies to be arrested and put in prison; +and in case they be such that ye cannot arrest them, that ye certify the +king of their names, and of their misprision, hastily, so that he may +thereof ordain a convenable remedy. And that ye by yourself, nor by +other, privily nor apertly, maintain any plea or quarrel hanging in the +king's court, or elsewhere in the country. _And that ye deny no man +common right by the king's letters, nor none other man's, nor for none +other cause; and in case any letters come to you contrary to the law," +(that is, the "common law" before mentioned,) "that ye do nothing by +such letters, but certify the king thereof, and proceed to execute the +law," (the "common law" before mentioned,) "notwithstanding the same +letters._ And that ye shall do and procure the profit of the king and of +his crown, with all things where ye may reasonably do the same. And in +case ye be from henceforth found in default in any of the points +aforesaid, ye shall be at the king's will of body, lands, and goods, +thereof to be done as shall please him, as God you help and all +saints."--_18 Edward III._, st. 4. (1344.)] + +[Footnote 61: That the terms "_Law_" and "_Right_," as used in this +statute, mean the _common law_, is shown by the preamble, which declares +the motive of the statute to be that "_the Law of the Land, (the common +law,) which we (the king) by our oath are bound to maintain_," may be +the better kept, &c.] + +[Footnote 62: The following is a copy of the original: + + "_Forma Juramenti Regis Angliæ in Coronacione sua_: + + (Archiepiscopus Cantuariæ, ad quo de jure et consuetudine Ecclesiæ + Cantuariæ, antiqua et approbata, pertinet Reges Angliæ inungere et + coronare, die coronacionis Regis, anteque Rex coronetur, faciet Regi + Interrogationes subscriptas.) + + Si leges et consuetudines ab antiquis justis et Deo devotis Regibus + plebi Anglicano concessas, cum sacramenti confirmacione eidem plebi + concedere et servare (volueris:) Et præsertim leges et consuetudines + et libertates a glorioso Rege Edwardo clero populoque concessas? + + (Et respondeat Rex,) Concedo et servare volo, et sacramento + confirmare. + + Servabis Ecclesiæ Dei, Cleroque, et Populo, pacem ex integro et + concordiam in Deo secundum vires tuas? + + (Et respondeat Rex,) Servabo. + + Facies fieri in omnibus Judiciis tuis equam et rectam justiciam, et + discrecionem, in misericordia et veritate, secundum vires tuas? + + (Et respondeat Rex,) Faciam. + + Concedis justas, leges et consuetudines esse tenendas, et promittis + per te eas esse protegendas, et ad honorem Dei corroborandas, quas + vulgus elegit, secundum vires tuas? + + (Et respondeat Rex,) Concedo et promitto."] + +[Footnote 63: It would appear, from the text, that the Charter of +Liberties and the Charter of the Forest were sometimes called "_laws of +the land_."] + +[Footnote 64: As the ancient coronation oath, given in the text, has +come down from the Saxon times, the following remarks of Palgrave will +be pertinent, in connection with the oath, as illustrating the fact +that, in those times, no special authority attached to the laws of the +king: + +"The Imperial Witenagemot was not a legislative assembly, in the strict +sense of the term, for the whole Anglo-Saxon empire. Promulgating his +edicts amidst his peers and prelates, the king uses the language of +command; but the theoretical prerogative was modified by usage, and the +practice of the constitution required that the law should be accepted by +the legislatures (courts) of the several kingdoms. * * The 'Basileus' +speaks in the tone of prerogative: Edgar does not merely recommend, he +commands that the law shall be adopted by all the people, whether +English, Danes, or Britons, in every part of his empire. Let this +statute be observed, he continues, by Earl Oslac, and all the host who +dwell under his government, and let it be transmitted by writ to the +ealdormen of the other subordinate states. And yet, in defiance of this +positive injunction, the laws of Edgar were not accepted in Mercia until +the reign of Canute the Dane. It might be said that the course so +adopted may have been an exception to the general rule; but in the +scanty and imperfect annals of Anglo-Saxon legislation, we shall be able +to find so many examples of similar proceedings, _that this mode of +enactment must be considered as dictated by the constitution of the +empire_. Edward was the supreme lord of the Northumbrians, but more than +a century elapsed before they obeyed his decrees. The laws of the +glorious Athelstane had no effect in Kent, (county,) the dependent +appanage of his crown, until sanctioned by the _Witan_ of the _shire_ +(county court). And the power of Canute himself, the 'King of all +England,' does not seem to have compelled the Northumbrians to receive +his code, until the reign of the Confessor, when such acceptance became +a part of the compact upon the accession of a new earl. + +Legislation constituted but a small portion of the ordinary business +transacted by the Imperial Witenagemot. The wisdom of the assembly was +shown in avoiding unnecessary change. _Consisting principally of +traditionary usages and ancestorial customs, the law was upheld by +opinion. The people considered their jurisprudence as a part of their +inheritance._ Their privileges and their duties were closely conjoined; +_most frequently, the statutes themselves were only affirmances of +ancient customs, or declaratory enactments_. In the Anglo-Saxon +commonwealth, therefore, the legislative functions of the Witenagemot +were of far less importance than the other branches of its authority. * +* The members of the Witenagemot were the 'Pares Curiæ' (Peers of Court) +of the kingdom. How far, on these occasions, their opinion or their +equity controlled the power of the crown, cannot be ascertained. But the +form of inserting their names in the _'Testing Clause_' was retained +under the Anglo-Norman reigns; and the sovereign, who submitted his +Charter to the judgment of the _Proceres_, professed to be guided by the +opinion which they gave. As the '_Pares_' of the empire, the Witenagemot +decided the disputes between the great vassals of the crown. * * The +jurisdiction exercised in the Parliament of Edward I., when the barony +of a _Lord-Marcher_ became the subject of litigation, is entirely +analogous to the proceedings thus adopted by the great council of +Edward, the son of Alfred, the Anglo-Saxon king. + +In this assembly, the king, the prelates, the dukes, the ealdormen, and +the optimates passed judgment upon all great offenders. * * + +_The sovereign could not compel the obedience of the different nations +composing the Anglo-Saxon empire._ Hence, it became more necessary for +him to _conciliate their opinions_, if he solicited any service from a +vassal prince or a vassal state beyond the ordinary terms of the +compact; still more so, when he needed the support of a free burgh or +city. And we may view the assembly (the Witenagemot) as partaking of the +character of a political congress, in which the liegemen of the crown, +or the communities protected by the 'Basileus,' (sovereign,) were asked +or persuaded to relieve the exigences of the state, or to consider those +measures which might be required for the common weal. The sovereign was +compelled to parley with his dependents. + +It may be doubted whether any one member of the empire had power to +legislate for any other member. The Regulus of Cumbria was unaffected by +the vote of the Earl of East Angliæ, if he chose to stand out against +it. These dignitaries constituted a congress, in which the sovereign +could treat more conveniently and effectually with his vassals than by +separate negotiations. * * But the determinations of the Witan bound +those only who were present, or who concurred in the proposition; and a +vassal denying his assent to the grant, might assert that the engagement +which he had contracted with his superior did not involve any pecuniary +subsidy, but only rendered him liable to perform service in the +field."--_1 Palgrave's Rise and Progress of the English Commonwealth_, +637 to 642.] + +[Footnote 65: "It was the freemen in Germany, and the possessors of land +in England, who were _suitors_ (jurors) in the hundred court. These +ranks of men were the same. The alteration which had happened in +relation to property had invested the German freemen with land or +territory."] + +[Footnote 66: It would be wholly erroneous, I think, to infer from this +statement of Stuart, that either the "priests, princes, earls, or +_eorldormen_" exercised any authority over the jury in the trial of +causes, in the way of dictating the law to them. Henry's account of this +matter doubtless gives a much more accurate representation of the truth. +He says that _anciently_ + + "The meeting (the county court) was opened with a discourse by the + bishop, explaining, out of the Scriptures and ecclesiastical canons, + their several duties as good Christians and members of the church. + After this, the alderman, or one of his assessors, made a discourse + on the laws of the land, and the duties of good subjects and good + citizens. _When these preliminaries were over, they proceeded to try + and determine, first the causes of the church, next the pleas of the + crown, and last of all the controversies of private parties._"--3 + _Henry's History of Great Britain_, 348. + +This view is corroborated by Tyrrell's _Introduction to the History of +England_, p. 83-84, and by Spence's _Origin of the Laws and Political +Institutions of Modern Europe_, p. 447, and the note on the same page. +Also by a law of Canute to this effect, _In every county let there be +twice a year an assembly, whereat the bishop and the earl shall be +present, the one to instruct the people in divine, the other in human, +laws_.--_Wilkins_, p. 136.] + +[Footnote 67: There was no distinction between the civil and criminal +counts, as to the rights or powers of juries.] + + + + +CHAPTER IV. + +THE RIGHTS AND DUTIES OF JURIES IN CIVIL SUITS. + + +The evidence already given in the preceding chapters proves that the +rights and duties of jurors, in civil suits, were anciently the same as +in criminal ones; that the laws of the king were of no obligation upon +the consciences of the jurors, any further than the laws were seen by +them to be just; that very few laws were enacted applicable to civil +suits; that when a new law was enacted, the nature of it could have been +known to the jurors only by report, and was very likely not to be known +to them at all; that nearly all the law involved in civil suits was +_unwritten_; that there was _usually_ no one in attendance upon juries +who could possibly enlighten them, unless it were sheriffs, stewards, +and bailiffs, who were unquestionably too ignorant and untrustworthy to +instruct them authoritatively; that the jurors must therefore +necessarily have judged for themselves of the whole case; and that, _as +a general rule_, they could judge of it by no law but the law of nature, +or the principles of justice as they existed in their own minds. + +The ancient oath of jurors in civil suits, viz., that "_they would make +known the truth according to their consciences_," implies that the +jurors were above the authority of all legislation. The modern oath, in +England, viz., that they "_will well and truly try the issue between the +parties, and a true verdict give, according to the evidence_," implies +the same thing. If the laws of the king had been binding upon a jury, +they would have been sworn to try the cases _according to law_, or +according to the laws. + +The ancient writs, in civil suits, as given in Glanville, (within the +half century before Magna Carta,) to wit, "Summon twelve free and legal +men, (or sometimes twelve knights,) to be in court, _prepared upon their +oaths to declare whether A or B have the greater right to the land in +question_," indicate that the jurors judged of the whole matter on their +consciences only. + +The language of Magna Carta, already discussed, establishes the same +point; for, although some of the words, such as "outlawed," and +"exiled," would apply only to criminal cases, nearly the whole chapter +applies as well to civil as to criminal suits. For example, how could +the payment of a debt ever be enforced against an unwilling debtor, if +he could neither be "arrested, imprisoned, nor deprived of his +freehold," and if the king could neither "proceed against him, nor send +any one against him, by force or arms"? Yet Magna Carta as much forbids +that any of these things shall be done against a debtor, as against a +criminal, _except according to, or in execution of_, "_a judgment of his +peers, or the law of the land_,"--a provision which, it has been shown, +gave the jury the free and absolute right to give or withhold "judgment" +according to their consciences, irrespective of all legislation. + +The following provisions, in the Magna Carta of John, illustrate the +custom of referring the most important matters of a civil nature, even +where the king was a party, to the determination of the peers, or of +twelve men, acting by no rules but their own consciences. These examples +at least show that there is nothing improbable or unnatural in the idea +that juries should try all civil suits according to their own judgments, +independently of all laws of the king. + + _Chap. 65._ "If we have disseized or dispossessed the Welsh of any + lands, liberties, or other things, without the legal judgment of + their peers, they shall be immediately restored to them. And if any + dispute arises upon this head, the matter shall be determined in the + Marches,[68] _by the judgment of their peers_," &c. + + _Chap. 68._ "We shall treat with Alexander, king of Scots, concerning + the restoring of his sisters, and hostages, and rights and liberties, + in the same form and manner as we shall do to the rest of our barons + of England; unless by the engagements, which his father William, late + king of Scots, hath entered into with us, it ought to be otherwise; + _and this shall be left to the determination of his peers in our + court_." + + _Chap. 56._ "All evil customs concerning forests, warrens, and + foresters, warreners, sheriffs, and their officers, rivers and their + keepers, shall forthwith be inquired into in each county, _by twelve + knights of the same shire_, chosen by the most creditable persons in + the same county, _and upon oath_; and within forty days after the + said inquest, be utterly abolished, so as never to be restored." + +There is substantially the same reason why a jury _ought_ to judge of +the justice of laws, and hold all unjust laws invalid, in civil suits, +as in criminal ones. That reason is the necessity of guarding against +the tyranny of the government. Nearly the same oppressions can be +practised in civil suits as in criminal ones. For example, individuals +may be deprived of their liberty, and robbed of their property, by +judgments rendered in civil suits, as well as in criminal ones. If the +laws of the king were imperative upon a jury in civil suits, the king +might enact laws giving one man's property to another, or confiscating +it to the king himself, and authorizing civil suits to obtain possession +of it. Thus a man might be robbed of his property at the arbitrary +pleasure of the king. In fact, all the property of the kingdom would be +placed at the arbitrary disposal of the king, through the judgments of +juries in civil suits, if the laws of the king were imperative upon a +jury in such suits.[69] + +Furthermore, it would be absurd and inconsistent to make a jury +paramount to legislation in _criminal_ suits, and subordinate to it in +_civil_ suits; because an individual, by resisting the execution of a +_civil_ judgment, founded upon an unjust law, could give rise to a +_criminal_ suit, in which the jury would be bound to hold the same law +invalid. So that, if an unjust law were binding upon a jury in _civil_ +suits, a defendant, by resisting the execution of the judgment, could, +_in effect_, convert the civil action into a criminal one, in which the +jury would be paramount to the same legislation, to which, in the +_civil_ suit, they were subordinate. In other words, in the _criminal_ +suit, the jury would be obliged to justify the defendant in resisting a +law, which, in the _civil_ suit, they had said he was bound to submit +to. + +To make this point plain to the most common mind--suppose a law be +enacted that the property of A shall be given to B. B brings a civil +action to obtain possession of it. If the jury, in this _civil_ suit, +are bound to hold the law obligatory, they render a judgment in favor of +B, that he be put in possession of the property; _thereby declaring that +A is bound to submit to a law depriving him of his property_. But when +the execution of that judgment comes to be attempted--that is, when the +sheriff comes to take the property for the purpose of delivering it to +B--A acting, as he has a _natural_ right to do, in defence of his +property, resists and kills the sheriff. He is thereupon indicted for +murder. On this trial his plea is, that in killing the sheriff, he was +simply exercising his _natural_ right of defending his property against +an unjust law. The jury, not being bound, in a _criminal_ case, by the +authority of an unjust law, judge the act on its merits, and acquit the +defendant--thus declaring that he was _not_ bound to submit to the same +law which the jury, in the _civil_ suit, had, by their judgment, +declared that he _was_ bound to submit to. Here is a contradiction +between the two judgments. In the _civil_ suit, the law is declared to +be obligatory upon A; in the _criminal_ suit, the same law is declared +to be of no obligation. + +It would be a solecism and absurdity in government to allow such +consequences as these. Besides, it would be practically impossible to +maintain government on such principles; for no government could enforce +its _civil_ judgments, unless it could support them by _criminal_ ones, +in case of resistance. A jury must therefore be paramount to legislation +in both civil and criminal cases, or in neither. If they are paramount +in neither, they are no protection to liberty. If they are paramount in +both, then all legislation goes only for what it may chance to be worth +in the estimation of a jury. + +Another reason why Magna Carta makes the discretion and consciences of +juries paramount to all legislation in _civil_ suits, is, that if +legislation were binding upon a jury, the jurors--(by reason of their +being unable to read, as jurors in those days were, and also by reason +of many of the statutes being unwritten, or at least not so many copies +written as that juries could be supplied with them)--would have been +necessitated--at least in those courts in which the king's justices +sat--to take the word of those justices as to what the laws of the king +really were. In other words, they would have been necessitated _to take +the law from the court_, as jurors do now. + +Now there were two reasons why, as we may rationally suppose, the people +did not wish juries to take their law from the king's judges. One was, +that, at that day, the people probably had sense enough to see, (what +we, at this day, have not sense enough to see, although we have the +evidence of it every day before our eyes,) that those judges, being +dependent upon the legislative power, (the king,) being appointed by it, +paid by it, and removable by it at pleasure, would be mere tools of that +power, and would hold all its legislation obligatory, whether it were +just or unjust. This was one reason, doubtless, why Magna Carta made +juries, in civil suits, paramount to all instructions of the king's +judges. The reason was precisely the same as that for making them +paramount to all instructions of judges in criminal suits, viz., that +the people did not choose to subject their rights of property, and all +other rights involved in civil suits, to the operation of such laws as +the king might please to enact. It was seen that to allow the king's +judges to dictate the law to the jury would be equivalent to making the +legislation of the king imperative upon the jury. + +Another reason why the people did not wish juries, in civil suits, to +take their law from the king's judges, doubtless was, that, knowing the +dependence of the judges upon the king, and knowing that the king would, +of course, tolerate no judges who were not subservient to his will, they +necessarily inferred that the king's judges would be as corrupt, in the +administration of justice, as was the king himself, or as he wished them +to be. And how corrupt that was, may be inferred from the following +historical facts. + +Hume says: + + "It appears that the ancient kings of England put themselves entirely + upon the footing of the barbarous Eastern princes, whom no man must + approach without a present, who sell all their good offices, and who + intrude themselves into every business that they may have a pretence + for extorting money. Even justice was avowedly bought and sold; the + king's court itself, though the supreme judicature of the kingdom, + was open to none that brought not presents to the king; the bribes + given for expedition, delay, suspension, and doubtless for the + perversion of justice, were entered in the public registers of the + royal revenue, and remain as monuments of the perpetual iniquity and + tyranny of the times. The barons of the exchequer, for instance, the + first nobility of the kingdom, were not ashamed to insert, as an + article in their records, that the county of Norfolk paid a sum that + they might be fairly dealt with; the borough of Yarmouth, that the + king's charters, which they have for their liberties, might not be + violated; Richard, son of Gilbert, for the king's helping him to + recover his debt from the Jews; * * Serlo, son of Terlavaston, that + he might be permitted to make his defence, in case he were accused of + a certain homicide; Walter de Burton, for free law, if accused of + wounding another; Robert de Essart, for having an inquest to find + whether Roger, the butcher, and Wace and Humphrey, accused him of + robbery and theft out of envy and ill-will, or not; William Buhurst, + for having an inquest to find whether he were accused of the death of + one Godwin, out of ill-will, or for just cause. I have selected these + few instances from a great number of the like kind, which Madox had + selected from a still greater number, preserved in the ancient rolls + of the exchequer. + + Sometimes a party litigant offered the king a certain portion, a + half, a third, a fourth, payable out of the debts which he, as the + executor of justice, should assist in recovering. Theophania de + Westland agreed to pay the half of two hundred and twelve marks, that + she might recover that sum against James de Fughleston; Solomon, the + Jew, engaged to pay one mark out of every seven that he should + recover against Hugh de la Hose; Nicholas Morrel promised to pay + sixty pounds, that the Earl of Flanders might be distrained to pay + him three hundred and forty-three pounds, which the earl had taken + from him; and these sixty pounds were to be paid out of the first + money that Nicholas should recover from the earl."--_Hume, Appendix + 2._ + + "In the reign of Henry II., the best and most just of these (the + Norman) princes, * * Peter, of Blois, a judicious and even elegant + writer, of that age, gives a pathetic description of the _venality of + justice_, and the oppressions of the poor, * * and he scruples not to + complain to the king himself of these abuses. We may judge what the + case would be under the government of worse princes."--_Hume, + Appendix 2._ + +Carte says: + + "The crown exercised in those days an exorbitant and inconvenient + power, ordering the justices of the king's court, in suits about + lands, to turn out, put, and keep in possession, which of the + litigants they pleased; to send contradictory orders; and take large + sums of money from each; to respite proceedings; to direct sentences; + and the judges, acting by their commission, conceived themselves + bound to observe such orders, to the great delay, interruption, and + preventing of justice; at least, this was John's practice."--_Carte's + History of England_, vol. 1, p. 832. + +Hallam says: + + "But of all the abuses that deformed the Anglo-Saxon government, none + was so flagitious as the sale of judicial redress. The king, we are + often told, is the fountain of justice; but in those ages it was one + which gold alone could unseal. Men fined (paid fines) to have right + done them; to sue in a certain court; to implead a certain person; to + have restitution of land which they had recovered at law. From the + sale of that justice which every citizen has a right to demand, it + was an easy transition to withhold or deny it. Fines were received + for the king's help against the adverse suitor; that is, for + perversion of justice, or for delay. Sometimes they were paid by + opposite parties, and, of course, for opposite ends."--_2 Middle + Ages_, 438. + +In allusion to the provision of Magna Carta on this subject, Hallam +says: + + "A law which enacts that justice shall neither be sold, denied, nor + delayed, stamps with infamy that government under which it had become + necessary."--_2 Middle Ages_, 451. + +Lingard, speaking of the times of Henry II., (say 1184,) says: + + "It was universally understood that money possessed greater influence + than justice in the royal courts, and instances are on record, in + which one party has made the king a present to accelerate, and the + other by a more valuable offer has succeeded in retarding a decision. + * * But besides the fines paid to the sovereigns, _the judges often + exacted presents for themselves_, and loud complaints existed against + their venality and injustice."--_2 Lingard_, 231. + +In the narrative of "The costs and charges which I, Richard de Anesty, +bestowed in recovering the land of William, my uncle," (some fifty years +before Magna Carta,) are the following items: + + "To Ralph, the king's physician, I gave thirty-six marks and one + half; to the king an hundred marks; and to the queen one mark of + gold." The result is thus stated. "At last, thanks to our lord the + king, and by judgment of his court, my uncle's land was adjudged to + me."--_2 Palgrave's Rise and Progress of the English Commonwealth_, + p. 9 and 24. + +Palgrave also says: + + "The precious ore was cast into the scales of justice, even when held + by the most conscientious of our Anglo-Saxon kings. A single case + will exemplify the practices which prevailed. Alfric, the heir of + 'Aylwin, the black,' seeks to set aside the death-bed bequest, by + which his kinsman bestowed four rich and fertile manors upon St. + Benedict. Alfric, the claimant, was supported by extensive and + powerful connexions; and Abbot Alfwine, the defendant, was well aware + that there would be _danger_ in the discussion of the dispute in + public, or before the Folkmoot, (people's meeting, or county court); + or, in other words, that the Thanes of the shire would do their best + to give a judgment in favor of their compeer. The plea being removed + into the Royal Court, the abbot acted with that prudence which so + often calls forth the praises of the monastic scribe. He gladly + emptied twenty marks of gold into the sleeve of the Confessor, + (Edward,) and five marks of gold presented to Edith, the Fair, + encouraged her to aid the bishop, and to exercise her gentle + influence in his favor. Alfric, with equal wisdom, withdrew from + prosecuting the hopeless cause, in which his opponent might possess + an advocate in the royal judge, and a friend in the king's consort. + Both parties, therefore, found it desirable to come to an + agreement."--_1 Palgrave's Rise and Progress, &c._, p. 650. + +But Magna Carta has another provision for the trial of _civil_ suits, +that obviously had its origin in the corruption of the king's judges. +The provision is, that four knights, to be chosen in every county, by +the people of the county, shall sit with the king's judges, in the +Common Pleas, in jury trials, (assizes,) on the trial of three certain +kinds of suits, that were among the most important that were tried at +all. The reason for this provision undoubtedly was, that the corruption +and subserviency of the king's judges were so well known, that the +people would not even trust them to sit alone in a jury trial of any +considerable importance. The provision is this: + + _Chap. 22_, (of John's Charter.) "Common Pleas shall not follow our + court, but shall be holden in some certain place. Trials upon the + writ of _novel disseisin_, and of _Mort d'Ancester_, and of _Darrein + Presentment_, shall be taken but in their proper counties, and after + this manner: We, or, if we should be out of our realm, our chief + justiciary, shall send two justiciaries through every county four + times a year;[70] _who, with four knights chosen out of every shire, + by the people, shall hold the assizes_ (juries) _in the county, on + the day and at the place appointed_." + +It would be very unreasonable to suppose that the king's judges were +allowed to _dictate_ the law to the juries, when the people would not +even suffer them to sit alone in jury trials, but themselves chose four +men to sit with them, to keep them honest.[71] + +This practice of sending the king's judges into the counties to preside +at jury trials, was introduced by the Norman kings. Under the Saxons it +was not so. _No officer of the king was allowed to preside at a jury +trial; but only magistrates chosen by the people._[72] + +But the following chapter of John's charter, which immediately succeeds +the one just quoted, and refers to the same suits, affords very strong, +not to say conclusive, proof, that juries judged of the law in civil +suits--that is, _made the law_, so far as their deciding according to +their own notions of justice could make the law. + + _Chap. 23._ "And if, on the county day, the aforesaid assizes cannot + be taken, _so many knights and freeholders shall remain, of those who + shall have been present on said day, as that the judgments may be + rendered by them_, whether the business be more or less." + +The meaning of this chapter is, that so many of the _civil_ suits, as +could not be tried on the day when the king's justices were present, +should be tried afterwards, _by the four knights before mentioned, and +the freeholders, that is, the jury_. It must be admitted, of course, +that the juries, in these cases, judged the matters of law, as well as +fact, unless it be presumed that the _knights_ dictated the law to the +jury--a thing of which there is no evidence at all. + +As a final proof on this point, there is a statute enacted seventy years +after Magna Carta, which, although it is contrary to the common law, and +therefore void, is nevertheless good evidence, inasmuch as it contains +an acknowledgment, on the part of the king himself, that juries had a +right to judge of the whole matter, law and fact, in civil suits. The +provision is this: + + "It is ordained, that the justices assigned to take the assizes, + shall not compel the jurors to say precisely whether it be disseisin, + or not, so that they do show the truth of the deed, and seek aid of + the justices. But if they will, of their own accord, say that it is + disseisin, or not, their verdict shall be admitted at their own + peril."--_13 Edward I._, st. 1, ch. 3, sec. 2. (1285.) + +The question of "disseisin, or not," was a question of law, as well as +fact. This statute, therefore, admits that the law, as well as the fact, +was in the hands of the jury. The statute is nevertheless void, because +the king had no authority to give jurors a dispensation from the +obligation imposed upon them by their oaths and the "law of the land," +that they should "make known the truth according their (own) +consciences." This they were bound to do, and there was no power in the +king to absolve them from the duty. And the attempt of the king thus to +absolve them, and authorize them to throw the case into the hands of the +judges for decision, was simply an illegal and unconstitutional attempt +to overturn the "law of the land," which he was sworn to maintain, and +gather power into his own hands, through his judges. He had just as much +constitutional power to enact that the jurors should not be compelled to +declare the _facts_, but that they might leave _them_ to be determined +by the king's judges, as he had to enact that they should not be +compelled to declare the _law_, but might leave _it_ to be decided by +the king's judges. It was as much the legal duty of the jury to decide +the law as to decide the fact; and no law of the king could affect their +obligation to do either. And this statute is only one example of the +numberless contrivances and usurpations which have been resorted to, for +the purpose of destroying the original and genuine trial by jury. + +[Footnote 68: _Marches_, the limits, or boundaries, between England and +Wales.] + +[Footnote 69: That the kings would have had no scruples to enact laws +for the special purpose of plundering the people, by means of the +judgments of juries, if they could have got juries to acknowledge the +authority of their laws, is evident from the audacity with which they +plundered them, without any judgments of juries to authorize them. + +It is not necessary to occupy space here to give details as to these +robberies; but only some evidence of the general fact. + + Hallam says, that "For the first three reigns (of the Norman kings) * + * the intolerable exactions of tribute, the rapine of purveyance, the + iniquity of royal courts, are continually in the mouths of the + historians. 'God sees the wretched people,' says the Saxon + Chronicler, 'most unjustly oppressed; first they are despoiled of + their possessions, and then butchered.' This was a grievous year + (1124). Whoever had any property, lost it by heavy taxes and unjust + decrees."--_2 Middle Ages_, 435-6. + + "In the succeeding reign of _John_, all the rapacious exactions usual + to these Norman kings were not only redoubled, but mingled with + outrages of tyranny still more intolerable. * * + + "In 1207 John took a seventh of the movables of lay and spiritual + persons, all murmuring, but none daring to speak against + it."--_Ditto_, 446. + +In Hume's account of the extortions of those times, the following +paragraph occurs: + + "But the most barefaced acts of tyranny and oppression were practised + against the Jews, who were entirely out of the protection of the law, + and were abandoned to the immeasurable rapacity of the king and his + ministers. Besides many other indignities, to which they were + continually exposed, it appears that they were once all thrown into + prison, and the sum of 66,000 marks exacted for their liberty. At + another time, Isaac, the Jew, paid alone 5100 marks; Brun, 3000 + marks; Jurnet, 2000; Bennet, 500. At another, Licorica, widow of + David, the Jew of Oxford, was required to pay 6000 marks."--_Hume's + Hist. Eng., Appendix_ 2. + +Further accounts of the extortions and oppressions of the kings may be +found in Hume's History, Appendix 2, and in Hallam's Middle Ages, vol. +2, p. 435 to 446. + +By Magna Carta John bound himself to make restitution for some of the +spoliations he had committed upon individuals "_without the legal +judgment of their peers_."--_See Magna Carta of John_, ch. 60, 61, 65 +and 66. + +One of the great charges, on account of which the nation rose against +John, was, that he plundered individuals of their property, "_without +legal judgment of their peers_." Now it was evidently very weak and +short-sighted in John to expose himself to such charges, _if his laws +were really obligatory upon the peers_; because, in that case, he could +have enacted any laws that were necessary for his purpose, and then, by +civil suits, have brought the cases before juries for their "judgment," +and thus have accomplished all his robberies in a perfectly legal +manner. + +There would evidently have been no sense in these complaints, that he +deprived men of their property "_without legal judgment of their +peers_," if his laws had been binding upon the peers; because he could +then have made the same spoliations as well with the judgment of the +peers as without it. Taking the judgment of the peers in the matter, +would have been only a ridiculous and useless formality, if they were to +exercise no discretion or conscience of their own, independently of the +laws of the king. + +It may here be mentioned, in passing, that the same would be true in +criminal matters, if the king's laws were obligatory upon juries. + +As an illustration of what tyranny the kings would sometimes practise, +Hume says: + + "It appears from the Great Charter itself, that not only John, a + tyrannical prince, and Richard, a violent one, but their father + Henry, under whose reign the prevalence of gross abuses is the least + to be suspected, were accustomed, from their sole authority, without + process of law, to imprison, banish, and attaint the freemen of their + kingdom."--_Hume, Appendix_ 2. + +The provision, also, in the 64th chapter of Magna Carta, that "all +unjust and illegal fines, and all amercements, _imposed unjustly, and +contrary to the Law of the Land, shall be entirely forgiven_," &c.; and +the provision, in chapter 61, that the king "will cause full justice to +be administered" in regard to "all those things, of which any person +has, without legal judgment of his peers, been dispossessed or deprived, +either by King Henry, our father, or our brother, King Richard," +indicate the tyrannical practices that prevailed. + + We are told also that John himself "had dispossessed several great + men without any judgment of their peers, condemned others to cruel + deaths, * * insomuch that his tyrannical will stood instead of a + law."--_Echard's History of England_, 106. + +Now all these things were very unnecessary and foolish, if his laws were +binding upon juries; because, in that case, he could have procured the +conviction of these men in a legal manner, and thus have saved the +necessity of such usurpation. In short, if the laws of the king had been +binding upon juries, there is no robbery, vengeance, or oppression, +which he could not have accomplished through the judgments of juries. +This consideration is sufficient, of itself, to prove that the laws of +the king were of no authority over a jury, in either civil or criminal +cases, unless the juries regarded the laws as just in themselves.] + +[Footnote 70: By the Magna Carta of Henry III. this is changed to once a +year.] + +[Footnote 71: From the provision of Magna Carta, cited in the text, it +must be inferred that there can be no legal trial by jury, in civil +cases, if only the king's justices preside; that, to make the trial +legal, there must be other persons, chosen by the people, to sit with +them; the object being to prevent the jury's being deceived by the +justices. I think we must also infer that the king's justices could sit +only in the three actions specially mentioned. We cannot go beyond the +letter of Magna Carta, in making innovations upon the common law, which +required all presiding officers in jury trials to be elected by the +people.] + +[Footnote 72: "The earls, sheriffs, and head-boroughs were annually +elected in the full folcmote, (people's meeting)."--_Introduction to +Gilbert's History of the Common Pleas_, p. 2, _note_. + +"It was the especial province of the earldomen or earl to attend the +shyre-meeting, (the county court,) twice a year, and there officiate as +the county judge in expounding the secular laws, as appears by the fifth +of Edgar's laws."--_Same_, p. 2, _note_. + +"Every ward had its proper alderman, who was _chosen_, and not imposed +by the prince."--_Same_, p. 4, _text_. + +"As the aldermen, or earls, were always _chosen_" (by the people) "from +among the greatest thanes, who in those times were generally more +addicted to arms than to letters, they were but ill-qualified for the +administration of justice, and performing the civil duties of their +office."--_3 Henry's History of Great Britain_, 343. + +"But none of these thanes were annually elected in the full folcmote, +(people's meeting,) _as the earls, sheriffs, and head-boroughs were_; +nor did King Alfred (as this author suggests) deprive the people of the +election of those last mentioned magistrates and nobles, much less did +he appoint them himself."--_Introd. to Gilbert's Hist. Com. Pleas_, p. +2, _note_. + +"The sheriff was usually not appointed by the lord, but elected by the +freeholders of the district."--_Political Dictionary_, word _Sheriff_. + +"Among the most remarkable of the Saxon laws we may reckon * * the +election of their magistrates by the people, originally even that of +their kings, till dear-bought experience evinced the convenience and +necessity of establishing an hereditary succession to the crown. But +that (the election) of all subordinate magistrates, their military +officers or heretochs, their sheriffs, their conservators of the peace, +their coroners, their portreeves, (since changed into mayors and +bailiffs,) and even their tithing-men and borsholders at the last, +continued, some, till the Norman conquest, others for two centuries +after, and some remain to this day."--_4 Blackstone_, 413. + +"The election of sheriffs was left to the people, _according to ancient +usage_."--_St. West._ 1, c. 27.--_Crabbe's History of English Law_, +181.] + + + + +CHAPTER V. + +OBJECTIONS ANSWERED + + +The following objections will be made to the doctrines and the evidence +presented in the preceding chapters. + +1. That it is a _maxim_ of the law, that the judges respond to the +question of law, and juries only to the question of fact. + +The answer to this objection is, that, since Magna Carta, judges have +had more than six centuries in which to invent and promulgate pretended +maxims to suit themselves; and this is one of them. Instead of +expressing the law, it expresses nothing but the ambitious and lawless +will of the judges themselves, and of those whose instruments they +are.[73] + +2. It will be asked, Of what use are the justices, if the jurors judge +both of law and fact? + +The answer is, that they are of use, 1. To assist and enlighten the +jurors, if they can, by their advice and information; such advice and +information to be received only for what they may chance to be worth in +the estimation of the jurors. 2. To do anything that may be necessary in +regard to granting appeals and new trials. + +3. It is said that it would be absurd that twelve ignorant men should +have power to judge of the law, while justices learned in the law should +be compelled to sit by and see the law decided erroneously. + +One answer to this objection is, that the powers of juries are not +granted to them on the supposition that they know the law better than +the justices; but on the ground that the justices are untrustworthy, +that they are exposed to bribes, are themselves fond of power and +authority, and are also the dependent and subservient creatures of the +legislature; and that to allow them to dictate the law, would not only +expose the rights of parties to be sold for money, but would be +equivalent to surrendering all the property, liberty, and rights of the +people, unreservedly into the hands of arbitrary power, (the +legislature,) to be disposed of at its pleasure. The powers of juries, +therefore, not only place a curb upon the powers of legislators and +judges, but imply also an imputation upon their integrity and +trustworthiness; and _these_ are the reasons why legislators and judges +have formerly entertained the intensest hatred of juries, and, so fast +as they could do it without alarming the people for their liberties, +have, by indirection, denied, undermined, and practically destroyed +their power. And it is only since all the real power of juries has been +destroyed, and they have become mere tools in the hands of legislators +and judges, that they have become favorites with them. + +Legislators and judges are necessarily exposed to all the temptations of +money, fame, and power, to induce them to disregard justice between +parties, and sell the rights, and violate the liberties of the people. +Jurors, on the other hand, are exposed to none of these temptations. +They are not liable to bribery, for they are unknown to the parties +until they come into the jury-box. They can rarely gain either fame, +power, or money, by giving erroneous decisions. Their offices are +temporary, and they know that when they shall have executed them, they +must return to the people, to hold all their own rights in life subject +to the liability of such judgments, by their successors, as they +themselves have given an example for. The laws of human nature do not +permit the supposition that twelve men, taken by lot from the mass of +the people, and acting under such circumstances, will _all_ prove +dishonest. It is a supposable case that they may not be sufficiently +enlightened to know and do their whole duty, in all cases whatsoever; +but that they should _all_ prove _dishonest_, is not within the range +of probability. A jury, therefore, insures to us--what no other court +does--that first and indispensable requisite in a judicial tribunal, +integrity. + +4. It is alleged that if juries are allowed to judge of the law, _they +decide the law absolutely; that their decision must necessarily stand, +be it right or wrong_; and that this power of absolute decision would be +dangerous in their hands, by reason of their ignorance of the law. + +One answer is, that this power, which juries have of _judging_ of the +law, is not a power of _absolute decision in all cases_. For example, it +is a power to declare imperatively that a man's property, liberty, or +life, shall _not_ be taken from him; but it is not a power to declare +imperatively that they _shall_ be taken from him. + +Magna Carta does not provide that the judgments of the peers _shall be +executed_; but only that _no other than their judgments_ shall ever be +executed, _so far as to take a party's goods, rights, or person, +thereon_. + +A judgment of the peers may be reviewed, and invalidated, and a new +trial granted. So that practically a jury has no absolute power to take +a party's goods, rights, or person. They have only an absolute veto upon +their being taken by the government. The government is not bound to do +everything that a jury may adjudge. It is only prohibited from doing +anything--(that is, from taking a party's goods, rights, or +person)--unless a jury have first adjudged it to be done. + +But it will, perhaps, be said, that if an erroneous judgment of one jury +should be reaffirmed by another, on a new trial, it must _then_ be +executed. But Magna Carta does not command even this--although it might, +perhaps, have been reasonably safe for it to have done so--for if two +juries unanimously affirm the same thing, after all the light and aid +that judges and lawyers can afford them, that fact probably furnishes as +strong a presumption in favor of the correctness of their opinion, as +can ordinarily be obtained in favor of a judgment, by any measures of a +practical character for the administration of justice. Still, there is +nothing in Magna Carta that _compels_ the execution of even a second +judgment of a jury. The only injunction of Magna Carta upon the +government, as to what it _shall do_, on this point, is that it shall +"do justice and right," without sale, denial, or delay. But this leaves +the government all power of determining what is justice and right, +except that it shall not consider anything as justice and right--so far +as to carry it into execution against the goods, rights, or person of a +party--unless it be something which a jury have sanctioned. + +If the government had no alternative but to execute all judgments of a +jury indiscriminately, the power of juries would unquestionably be +dangerous; for there is no doubt that they may sometimes give hasty and +erroneous judgments. But when it is considered that their judgments can +be reviewed, and new trials granted, this danger is, for all practical +purposes, obviated. + +If it be said that juries may _successively_ give erroneous judgments, +and that new trials cannot be granted indefinitely, the answer is, that +so far as Magna Carta is concerned, there is nothing to prevent the +granting of new trials indefinitely, if the judgments of juries are +contrary to "justice and right." So that Magna Carta does not _require_ +any judgment whatever to be executed--so far as to take a party's goods, +rights, or person, thereon--unless it be concurred in by both court and +jury. + +Nevertheless, we may, for the sake of the argument, suppose the +existence of a _practical_, if not _legal_, necessity, for executing +_some_ judgment or other, in cases where juries persist in disagreeing +with the courts. In such cases, the principle of Magna Carta +unquestionably is, that the uniform judgments of _successive_ juries +shall prevail over the opinion of the court. And the reason of this +principle is obvious, viz., that it is the will of the country, and not +the will of the court, or the government, that must determine what laws +shall be established and enforced; that the concurrent judgments of +successive juries, given in opposition to all the reasoning which judges +and lawyers can offer to the contrary, must necessarily be presumed to +be a truer exposition of the will of the country, than are the opinions +of the judges. + +But it may be said that, unless jurors submit to the control of the +court, in matters of law, they may disagree among themselves, and +_never_ come to any judgment; and thus justice fail to be done. + +Such a case is perhaps possible; but, if possible, it can occur but +rarely; because, although one jury may disagree, a succession of juries +are not likely to disagree--that is, _on matters of natural law, or +abstract justice_.[74] If such a thing should occur, it would almost +certainly be owing to the attempt of the court to mislead them. It is +hardly possible that any other cause should be adequate to produce such +an effect; because justice comes very near to being a self-evident +principle. The mind perceives it almost intuitively. If, in addition to +this, the court be uniformly on the side of justice, it is not a +reasonable supposition that a succession of juries should disagree about +it. If, therefore, a succession of juries do disagree on the law of any +case, the presumption is, not that justice fails of being done, but that +injustice is prevented--_that_ injustice, which would be done, if the +opinion of the court were suffered to control the jury. + +For the sake of the argument, however, it may be admitted to be possible +that justice should sometimes fail of being done through the +disagreements of jurors, notwithstanding all the light which judges and +lawyers can throw upon the question in issue. If it be asked what +provision the trial by jury makes for such cases, the answer is, _it +makes none; and justice must fail of being done, from the want of its +being made sufficiently intelligible_. + +Under the trial by jury, justice can never be done--that is, by a +judgment that shall take a party's goods, rights, or person--until that +justice can be made intelligible or perceptible to the minds of _all_ +the jurors; or, at least, until it obtain the voluntary assent of +all--an assent, which ought not to be given until the justice itself +shall have become perceptible to all. + +The principles of the trial by jury, then, are these: + +1. That, in criminal cases, the accused is presumed innocent. + +2. That, in civil cases, possession is presumptive proof of property; +or, in other words, every man is presumed to be the rightful proprietor +of whatever he has in his possession. + +3. That these presumptions shall be overcome, in a court of justice, +only by evidence, the sufficiency of which, and by law, the justice of +which, are satisfactory to the understanding and consciences of _all_ +the jurors. + +These are the bases on which the trial by jury places the property, +liberty, and rights of every individual. + +But some one will say, if these are the principles of the trial by jury, +then it is plain that justice must often fail to be done. Admitting, for +the sake of the argument, that this may be true, the compensation for it +is, that positive _injustice_ will also often fail to be done; whereas +otherwise it would be done frequently. The very precautions used to +prevent _injustice_ being done, may often have the effect to prevent +_justice_ being done. But are we, therefore, to take no precautions +against injustice? By no means, all will agree. The question then +arises--Does the trial by jury, _as here explained_, involve such +extreme and unnecessary precautions against injustice, as to interpose +unnecessary obstacles to the doing of justice? Men of different minds +may very likely answer this question differently, according as they have +more or less confidence in the wisdom and justice of legislators, the +integrity and independence of judges, and the intelligence of jurors. +This much, however, may be said in favor of these precautions, viz., +that the history of the past, as well as our constant present +experience, prove how much injustice may, and certainly will, be done, +systematically and continually, _for the want of these precautions_--that +is, while the law is authoritatively made and expounded by legislators and +judges. On the other hand, we have no such evidence of how much justice +may fail to be done, _by reason of these precautions_--that is, by reason +of the law being left to the judgments and consciences of jurors. We can +determine the former point--that is, how much positive injustice is done +under the first of these two systems--because the system is in full +operation; but we cannot determine how much justice would fail to be +done under the latter system, because we have, in modern times, had no +experience of the use of the precautions themselves. In ancient times, +when these precautions were _nominally_ in force, such was the tyranny of +kings, and such the poverty, ignorance, and the inability of concert and +resistance, on the part of the people, that the system had no full or fair +operation. It, nevertheless, under all these disadvantages, impressed +itself upon the understandings, and imbedded itself in the hearts, of the +people, so as no other system of civil liberty has ever done. + +But this view of the two systems compares only the injustice done, and +the justice omitted to be done, in the individual cases adjudged, +without looking beyond them. And some persons might, on first thought, +argue that, if justice failed of being done under the one system, +oftener than positive injustice were done under the other, the balance +was in favor of the latter system. But such a weighing of the two +systems against each other gives no true idea of their comparative +merits or demerits; for, possibly, in this view alone, the balance would +not be very great in favor of either. To compare, or rather to contrast, +the two, we must consider that, under the jury system, the failures to +do justice would be only rare and exceptional cases; and would be owing +either to the intrinsic difficulty of the questions, or to the fact that +the parties had transacted their business in a manner unintelligible to +the jury, and the effects would be confined to the individual or +individuals interested in the particular suits. No permanent law would +be established thereby destructive of the rights of the people in other +like cases. And the people at large would continue to enjoy all their +natural rights as before. But under the other system, whenever an unjust +law is enacted by the legislature, and the judge imposes it upon the +jury as authoritative, and they give a judgment in accordance therewith, +the authority of the law is thereby established, and the whole people +are thus brought under the yoke of that law; because they then +understand that the law will be enforced against them in future, if they +presume to exercise their rights, or refuse to comply with the +exactions of the law. In this manner all unjust laws are established, +and made operative against the rights of the people. + +The difference, then, between the two systems is this: Under the one +system, a jury, at distant intervals, would (not enforce any positive +injustice, but only) fail of enforcing justice, in a dark and difficult +case, or in consequence of the parties not having transacted their +business in a manner intelligible to a jury; and the plaintiff would +thus fail of obtaining what was rightfully due him. And there the matter +would end, _for evil_, though not for good; for thenceforth parties, +warned of the danger of losing their rights, would be careful to +transact their business in a more clear and intelligible manner. Under +the other system--the system of legislative and judicial +authority--positive injustice is not only done in every suit arising +under unjust laws,--that is, men's property, liberty, or lives are not +only unjustly taken on those particular judgments,--but the rights of +the whole people are struck down by the authority of the laws thus +enforced, and a wide-sweeping tyranny at once put in operation. + +But there is another ample and conclusive answer to the argument that +justice would often fail to be done, if jurors were allowed to be +governed by their own consciences, instead of the direction of the +justices, in matters of law. That answer is this: + +Legitimate government can be formed only by the voluntary association of +all who contribute to its support. As a voluntary association, it can +have for its objects only those things in which the members of the +association are _all agreed_. If, therefore, there be any _justice_, in +regard to which all the parties to the government _are not agreed_, the +objects of the association do not extend to it.[75] + +If any of the members wish more than this,--if they claim to have +acquired a more extended knowledge of justice than is common to all, and +wish to have their pretended discoveries carried into effect, in +reference to themselves,--they must either form a separate association +for that purpose, or be content to wait until they can make their views +intelligible to the people at large. They cannot claim or expect that +the whole people shall practise the folly of taking on trust their +pretended superior knowledge, and of committing blindly into their hands +all their own interests, liberties, and rights, to be disposed of on +principles, the justness of which the people themselves cannot +comprehend. + +A government of the whole, therefore, must necessarily confine itself to +the administration of such principles of law as _all_ the people, who +contribute to the support of the government, can comprehend and see the +justice of. And it can be confined within those limits only by allowing +the jurors, who represent all the parties to the compact, to judge of +the law, and the justice of the law, in all cases whatsoever. And if any +justice be left undone, under these circumstances, it is a justice for +which the nature of the association does not provide, which the +association does not undertake to do, and which, as an association, it +is under no obligation to do. + +The people at large, the unlearned and common people, have certainly an +indisputable right to associate for the establishment and maintenance of +such a government as _they themselves_ see the justice of, and feel the +need of, for the promotion of their own interests, and the safety of +their own rights, without at the same time surrendering all their +property, liberty, and rights into the hands of men, who, under the +pretence of a superior and incomprehensible knowledge of justice, may +dispose of such property, liberties, and rights, in a manner to suit +their own selfish and dishonest purposes. + +If a government were to be established and supported _solely_ by that +portion of the people who lay claim to superior knowledge, there would +be some consistency in their saying that the common people should not be +received as jurors, with power to judge of the justice of the laws. But +so long as the whole people (or all the male adults) are presumed to be +voluntary parties to the government, and voluntary contributors to its +support, there is no consistency in refusing to any one of them more +than to another the right to sit as juror, with full power to decide for +himself whether any law that is proposed to be enforced in any +particular case, be within the objects of the association. + +The conclusion, therefore, is, that, in a government formed by voluntary +association, or on the _theory_ of voluntary association, and voluntary +support, (as all the North American governments are,) no law can +rightfully be enforced by the association in its corporate capacity, +against the goods, rights, or person of any individual, except it be +such as _all_ the members of the association agree that it may enforce. +To enforce any other law, to the extent of taking a man's goods, rights, +or person, would be making _some_ of the parties to the association +accomplices in what they regard as acts of injustice. It would also be +making them consent to what they regard as the destruction of their own +rights. These are things which no legitimate system or theory of +government can require of any of the parties to it. + +The mode adopted, by the trial by jury, for ascertaining whether all the +parties to the government do approve of a particular law, is to take +twelve men at random from the whole people, and accept their unanimous +decision as representing the opinions of the whole. Even this mode is +not theoretically accurate; for theoretical accuracy would require that +every man, who was a party to the government, should individually give +his consent to the enforcement of every law in every separate case. But +such a thing would be impossible in practice. The consent of twelve men +is therefore taken instead; with the privilege of appeal, and (in case +of error found by the appeal court) a new trial, to guard against +possible mistakes. This system, it is assumed, will ascertain the sense +of the whole people--"the country"--with sufficient accuracy for all +practical purposes, and with as much accuracy as is practicable without +too great inconvenience and expense. + +5. Another objection that will perhaps be made to allowing jurors to +judge of the law, and the justice of the law, is, that the law would be +uncertain. + +If, by this objection, it be meant that the law would be uncertain to +the minds of the people at large, so that they would not know what the +juries would sanction and what condemn, and would not therefore know +practically what their own rights and liberties were under the law, the +objection is thoroughly baseless and false. No system of law that was +ever devised could be so entirely intelligible and certain to the minds +of the people at large as this. Compared with it, the complicated +systems of law that are compounded of the law of nature, of +constitutional grants, of innumerable and incessantly changing +legislative enactments, and of countless and contradictory judicial +decisions, with no uniform principle of reason or justice running +through them, are among the blindest of all the mazes in which +unsophisticated minds were ever bewildered and lost. The uncertainty of +the law under these systems has become a proverb. So great is this +uncertainty, that nearly all men, learned as well as unlearned, shun the +law as their enemy, instead of resorting to it for protection. They +usually go into courts of justice, so called, only as men go into +battle--when there is no alternative left for them. And even then they +go into them as men go into dark labyrinths and caverns--with no +knowledge of their own, but trusting wholly to their guides. Yet, less +fortunate than other adventurers, they can have little confidence even +in their guides, for the reason that the guides themselves know little +of the mazes they are threading. They know the mode and place of +entrance; but what they will meet with on their way, and what will be +the time, mode, place, or condition of their exit; whether they will +emerge into a prison, or not; whether _wholly_ naked and destitute, or +not; whether with their reputations left to them, or not; and whether in +time or eternity; experienced and honest guides rarely venture to +predict. Was there ever such fatuity as that of a nation of men madly +bent on building up such labyrinths as these, for no other purpose than +that of exposing all their rights of reputation, property, liberty, and +life, to the hazards of being lost in them, instead of being content to +live in the light of the open day of their own understandings? + +What honest, unsophisticated man ever found himself involved in a +lawsuit, that he did not desire, of all things, that his cause might be +judged of on principles of natural justice, as those principles were +understood by plain men like himself? He would then feel that he could +foresee the result. These plain men are the men who pay the taxes, and +support the government. Why should they not have such an administration +of justice as they desire, and can understand? + +If the jurors were to judge of the law, and the justice of the law, +there would be something like certainty in the administration of +justice, and in the popular knowledge of the law, and men would govern +themselves accordingly. There would be something like certainty, because +every man has himself something like definite and clear opinions, and +also knows something of the opinions of his neighbors, on matters of +justice. And he would know that no statute, unless it were so clearly +just as to command the unanimous assent of twelve men, who should be +taken at random from the whole community, could be enforced so as to +take from him his reputation, property, liberty, or life. What greater +certainty can men require or need, as to the laws under which they are +to live? If a statute were enacted by a legislature, a man, in order to +know what was its true interpretation, whether it were constitutional, +and whether it would be enforced, would not be under the necessity of +waiting for years until some suit had arisen and been carried through +all the stages of judicial proceeding, to a final decision. He would +need only to use his own reason as to its meaning and its justice, and +then talk with his neighbors on the same points. Unless he found them +nearly unanimous in their interpretation and approbation of it, he would +conclude that juries would not unite in enforcing it, and that it would +consequently be a dead letter. And he would be safe in coming to this +conclusion. + +There would be something like certainty in the administration of +justice, and in the popular knowledge of the law, for the further reason +that there would be little legislation, and men's rights would be left +to stand almost solely upon the law of nature, or what was once called +in England "the _common law_," (before so much legislation and +usurpation had become incorporated into the common law,)--in other +words, upon the principles of natural justice. + +Of the certainty of this law of nature, or the ancient English common +law, I may be excused for repeating here what I have said on another +occasion. + + "Natural law, so far from being uncertain, when compared with + statutory and constitutional law, is the only thing that gives any + certainty at all to a very large portion of our statutory and + constitutional law. The reason is this. The words in which statutes + and constitutions are written are susceptible of so many different + meanings,--meanings widely different from, often directly opposite + to, each other, in their bearing upon men's rights,--that, unless + there were some rule of interpretation for determining which of these + various and opposite meanings are the true ones, there could be no + certainty at all as to the meaning of the statutes and constitutions + themselves. Judges could make almost anything they should please out + of them. Hence the necessity of a rule of interpretation. _And this + rule is, that the language of statutes and constitutions shall be + construed, as nearly as possible, consistently with natural law._ + + The rule assumes, what is true, that natural law is a thing certain + in itself; also that it is capable of being learned. It assumes, + furthermore, that it actually is understood by the legislators and + judges who make and interpret the written law. Of necessity, + therefore, it assumes further, that they (the legislators and judges) + are _incompetent_ to make and interpret the _written_ law, unless + they previously understand the natural law applicable to the same + subject. It also assumes that the _people_ must understand the + natural law, before they can understand the written law. + + It is a principle perfectly familiar to lawyers, and one that must be + perfectly obvious to every other man that will reflect a moment, + that, as a general rule, _no one can know what the written law is, + until he knows what it ought to be_; that men are liable to be + constantly misled by the various and conflicting senses of the same + words, unless they perceive the true legal sense in which the words + _ought to be taken_. And this true legal sense is the sense that is + most nearly consistent with natural law of any that the words can be + made to bear, consistently with the laws of language, and + appropriately to the subjects to which they are applied. + + Though the words _contain_ the law, the _words_ themselves are not + the law. Were the words themselves the law, each single written law + would be liable to embrace many different laws, to wit, as many + different laws as there were different senses, and different + combinations of senses, in which each and all the words were capable + of being taken. + + Take, for example, the Constitution of the United States. By adopting + one or another sense of the single word "_free_," the whole + instrument is changed. Yet the word _free_ is capable of some ten or + twenty different senses. So that, by changing the sense of that + single word, some ten or twenty different constitutions could be made + out of the same written instrument. But there are, we will suppose, a + thousand other words in the constitution, each of which is capable of + from two to ten different senses. So that, by changing the sense of + only a single word at a time, several thousands of different + constitutions would be made. But this is not all. Variations could + also be made by changing the senses of two or more words at a time, + and these variations could be run through all the changes and + combinations of senses that these thousand words are capable of. We + see, then, that it is no more than a literal truth, that out of that + single instrument, as it now stands, without altering the location of + a single word, might be formed, by construction and interpretation, + more different constitutions than figures can well estimate. + + But each written law, in order to be a law, must be taken only in + some _one_ definite and distinct sense; and that definite and + distinct sense must be selected from the almost infinite variety of + senses which its words are capable of. How is this selection to be + made? It can be only by the aid of that perception of natural law, or + natural justice, which men naturally possess. + + Such, then, is the comparative certainty of the natural and the + written law. Nearly all the certainty there is in the latter, so far + as it relates to principles, is based upon, and derived from, the + still greater certainty of the former. In fact, nearly all the + uncertainty of the laws under which we live,--which are a mixture of + natural and written laws,--arises from the difficulty of construing, + or, rather, from the facility of misconstruing, the _written_ law; + while natural law has nearly or quite the same certainty as + mathematics. On this point, Sir William Jones, one of the most + learned judges that have ever lived, learned in Asiatic as well as + European law, says,--and the fact should be kept forever in mind, as + one of the most important of all truths:--"_It is pleasing to remark + the similarity, or, rather, the identity of those conclusions which + pure, unbiassed reason, in all ages and nations, seldom fails to + draw, in such juridical inquiries as are not fettered and manacled by + positive institutions._"[76] In short, the simple fact that the + written law must be interpreted by the natural, is, of itself, a + sufficient confession of the superior certainty of the latter. + + The written law, then, even where it can be construed consistently + with the natural, introduces labor and obscurity, instead of shutting + them out. And this must always be the case, because words do not + create ideas, but only recall them; and the same word may recall many + different ideas. For this reason, nearly all abstract principles can + be seen by the single mind more clearly than they can be expressed by + words to another. This is owing to the imperfection of language, and + the different senses, meanings, and shades of meaning, which + different individuals attach to the same words, in the same + circumstances.[77] + + Where the written law cannot be construed consistently with the + natural, there is no reason why it should ever be enacted at all. It + may, indeed, be sufficiently plain and certain to be easily + understood; but its certainty and plainness are but a poor + compensation for its injustice. Doubtless a law forbidding men to + drink water, on pain of death, might be made so intelligible as to + cut off all discussion as to its meaning; but would the + intelligibleness of such a law be any equivalent for the right to + drink water? The principle is the same in regard to all unjust laws. + Few persons could reasonably feel compensated for the arbitrary + destruction of their rights, by having the order for their + destruction made known beforehand, in terms so distinct and + unequivocal as to admit of neither mistake nor evasion. Yet this is + all the compensation that such laws offer. + + Whether, therefore, written laws correspond with, or differ from, the + natural, they are to be condemned. In the first case, they are + useless repetitions, introducing labor and obscurity. In the latter + case, they are positive violations of men's rights. + + There would be substantially the same reason in enacting mathematics + by statute, that there is in enacting natural law. Whenever the + natural law is sufficiently certain to all men's minds to justify its + being enacted, it is sufficiently certain to need no enactment. On + the other hand, until it be thus certain, there is danger of doing + injustice by enacting it; it should, therefore, be left open to be + discussed by anybody who may be disposed to question it, and to be + judged of by the proper tribunal, the judiciary.[78] + + It is not necessary that legislators should enact natural law in + order that it may be known to the _people_, because that would be + presuming that the legislators already understand it better than the + people,--a fact of which I am not aware that they have ever + heretofore given any very satisfactory evidence. The same sources of + knowledge on the subject are open to the people that are open to the + legislators, and the people must be presumed to know it as well as + they. + + The objections made to natural law, on the ground of obscurity, are + wholly unfounded. It is true, it must be learned, like any other + science; but it is equally true that it is very easily learned. + Although as illimitable in its applications as the infinite relations + of men to each other, it is, nevertheless, made up of simple + elementary principles, of the truth and justice of which every + ordinary mind has an almost intuitive perception. _It is the science + of justice_,--and almost all men have the same perceptions of what + constitutes justice, or of what justice requires, when they + understand alike the facts from which their inferences are to be + drawn. Men living in contact with each other, and having intercourse + together, _cannot avoid_ learning natural law, to a very great + extent, even if they would. The dealings of men with men, their + separate possessions, and their individual wants, are continually + forcing upon their minds the questions,--Is this act just? or is it + unjust? Is this thing mine? or is it his? And these are questions of + natural law; questions, which, in regard to the great mass of cases, + are answered alike by the human mind everywhere. + + Children learn many principles of natural law at a very early age. + For example: they learn that when one child has picked up an apple or + a flower, it is his, and that his associates must not take it from + him against his will. They also learn that if he voluntarily exchange + his apple or flower with a playmate, for some other article of + desire, he has thereby surrendered his right to it, and must not + reclaim it. These are fundamental principles of natural law, which + govern most of the greatest interests of individuals and society; yet + children learn them earlier than they learn that three and three are + six, or five and five, ten. Talk of enacting natural law by statute, + that it may be known! It would hardly be extravagant to say, that, in + nine cases in ten, men learn it before they have learned the language + by which we describe it. Nevertheless, numerous treatises are written + on it, as on other sciences. The decisions of courts, containing + their opinions upon the almost endless variety of cases that have + come before them, are reported; and these reports are condensed, + codified, and digested, so as to give, in a small compass, the facts, + and the opinions of the courts as to the law resulting from them. And + these treatises, codes, and digests are open to be read of all men. + And a man has the same excuse for being ignorant of arithmetic, or + any other science, that he has for being ignorant of natural law. He + can learn it as well, if he will, without its being enacted, as he + could if it were. + + If our governments would but themselves adhere to natural law, there + would be little occasion to complain of the ignorance of the people + in regard to it. The popular ignorance of law is attributable mainly + to the innovations that have been made upon natural law by + legislation; whereby our system has become an incongruous mixture of + natural and statute law, with no uniform principle pervading it. To + learn such a system,--if system it can be called, and if learned it + can be,--is a matter of very similar difficulty to what it would be + to learn a system of mathematics, which should consist of the + mathematics of nature, interspersed with such other mathematics as + might be created by legislation, in violation of all the natural + principles of numbers and quantities. + + But whether the difficulties of learning natural law be greater or + less than here represented, they exist in the nature of things, and + cannot be removed. Legislation, instead of removing, only increases + them. This it does by innovating upon natural truths and principles, + and introducing jargon and contradiction, in the place of order, + analogy, consistency, and uniformity. + + Further than this; legislation does not even profess to remove the + obscurity of natural law. That is no part of its object. It only + professes to substitute something arbitrary in the place of natural + law. Legislators generally have the sense to see that legislation + will not make natural law any clearer than it is. Neither is it the + object of legislation to establish the authority of natural law. + Legislators have the sense to see that they can add nothing to the + authority of natural law, and that it will stand on its own + authority, unless they overturn it. + + The whole object of legislation, excepting that legislation which + merely makes regulations, and provides instrumentalities for carrying + other laws into effect, is to overturn natural law, and substitute + for it the arbitrary will of power. In other words, the whole object + of it is to destroy men's rights. At least, such is its only effect; + and its designs must be inferred from its effect. Taking all the + statutes in the country, there probably is not one in a + hundred,--except the auxiliary ones just mentioned,--that does not + violate natural law; that does not invade some right or other. + + Yet the advocates of arbitrary legislation are continually practising + the fraud of pretending that unless the legislature _make_ the laws, + the laws will not be known. The whole object of the fraud is to + secure to the government the authority of making laws that never + ought to be known." + +In addition to the authority already cited, of Sir William Jones, as to +the certainty of natural law, and the uniformity of men's opinions in +regard to it, I may add the following: + + "There is that great simplicity and plainness in the Common Law, that + Lord Coke has gone so far as to assert, (and Lord Bacon nearly + seconds him in observing,) that 'he never knew two questions arise + merely upon common law; but that they were mostly owing to statutes + ill-penned and overladen with provisos.'"--_3 Eunomus_, 157-8. + +If it still be said that juries would disagree, as to what was natural +justice, and that one jury would decide one way, and another jury +another; the answer is, that such a thing is hardly credible, as that +twelve men, taken at random from the people at large, should +_unanimously_ decide a question of natural justice one way, and that +twelve other men, selected in the same manner, should _unanimously_ +decide the same question the other way, _unless they were misled by the +justices_. If, however, such things should sometimes happen, from any +cause whatever, the remedy is by appeal, and new trial. + +[Footnote 73: Judges do not even live up to that part of their own +maxim, which requires jurors to try the matter of fact. By dictating to +them the laws of evidence,--that is, by dictating what evidence they may +hear, and what they may not hear, and also by dictating to them rules +for weighing such evidence as they permit them to hear,--they of +necessity dictate the conclusion to which they shall arrive. And thus +the court really tries the question of fact, as well as the question of +law, in every cause. It is clearly impossible, in the nature of things, +for a jury to try a question of fact, without trying every question of +law on which the fact depends.] + +[Footnote 74: Most disagreements of juries are on matters of fact, which +are admitted to be within their province. We have little or no evidence +of their disagreements on matters of natural justice. The disagreements +of _courts_ on matters of law, afford little or no evidence that juries +would also disagree on matters of law--that is, _of justice_; because +the disagreements of courts are generally on matters of _legislation_, +and not on those principles of abstract justice, by which juries would +be governed, and in regard to which the minds of men are nearly +unanimous.] + +[Footnote 75: This is the principle of all voluntary associations +whatsoever. No voluntary association was ever formed, and in the nature +of things there never can be one formed, for the accomplishment of any +objects except those in which all the parties to the association are +agreed. Government, therefore, must be kept within these limits, or it +is no longer a voluntary association of all who contribute to its +support, but a mere tyranny established by a part over the rest. + +All, or nearly all, voluntary associations give to a majority, or to +some other portion of the members less than the whole, the right to use +some _limited_ discretion as to the means to be used to accomplish the +ends in view; but _the ends themselves to be accomplished_ are always +precisely defined, and are such as every member necessarily agrees to, +else he would not voluntarily join the association. + +Justice is the object of government, and those who support the +government, must be agreed as to the justice to be executed by it, or +they cannot rightfully unite in maintaining the government itself.] + +[Footnote 76: Jones on Bailments, 133.] + +[Footnote 77: Kent, describing the difficulty of construing the written +law, says: + +"Such is the imperfection of language, and the want of technical skill +in the makers of the law, that statutes often give occasion to the most +perplexing and distressing doubts and discussions, arising from the +ambiguity that attends them. It requires great experience, as well as +the command of a perspicuous diction, to frame a law in such clear and +precise terms, as to secure it from ambiguous expressions, and from all +doubts and criticisms upon its meaning."--_Kent_, 460. + +The following extract from a speech of Lord Brougham, in the House of +Lords, confesses the same difficulty: + +"There was another subject, well worthy of the consideration of +government during the recess,--the expediency, _or rather the absolute +necessity_, of some arrangement for the preparation of bills, not merely +private, but public bills, _in order that legislation might be +consistent and systematic, and that the courts might not have so large a +portion of their time occupied in endeavoring to construe acts of +Parliament, in many cases unconstruable, and in most cases difficult to +be construed_."--_Law Reporter_, 1848, p. 525.] + +[Footnote 78: This condemnation of written laws must, of course, be +understood as applying only to cases where principles and rights are +involved, and not as condemning any governmental arrangements, or +instrumentalities, that are consistent with natural right, and which +must be agreed upon for the purpose of carrying natural law into effect. +These things may be varied, as expediency may dictate, so only that they +be allowed to infringe no principle of justice. And they must, of +course, be written, because they do not exist as fixed principles, or +laws in nature.] + + + + +CHAPTER VI. + +JURIES OF THE PRESENT DAY ILLEGAL. + + +It may probably be safely asserted that there are, at this day, no legal +juries, either in England or America. And if there are no legal juries, +there is, of course, no legal trial, nor "judgment," by jury. + +In saying that there are probably no legal juries, I mean that there are +probably no juries appointed in conformity with the principles of the +_common law_. + +The term _jury_ is a technical one, derived from the common law; and +when the American constitutions provide for the trial by jury, they +provide for the _common law_ trial by jury; and not merely for any trial +by jury that the government itself may chance to invent, and call by +that name. It is the _thing_, and not merely the _name_, that is +guarantied. Any legislation, therefore, that infringes any _essential +principle_ of the _common law_, in the selection of jurors, is +unconstitutional; and the juries selected in accordance with such +legislation are, of course, illegal, and their judgments void. + +It will also be shown, in a subsequent chapter,[79] that since Magna +Carta, the legislative power in England (whether king or parliament) has +never had any constitutional authority to infringe, by legislation, any +essential principle of the common law in the selection of jurors. All +such legislation is as much unconstitutional and void, as though it +abolished the trial by jury altogether. In reality it does abolish it. + +What, then, are the _essential principles_ of the common law, +controlling the selection of jurors? + +They are two. + +1. That _all_ the freemen, or adult male members of the state, shall be +eligible as jurors.[80] + +Any legislation which requires the selection of jurors to be made from a +less number of freemen than the whole, makes the jury selected an +illegal one. + +If a part only of the freemen, or members of the state, are eligible as +jurors, the jury no longer represent "the country," but only a part of +"the country." + +If the selection of jurors can be restricted to any less number of +freemen than the whole, it can be restricted to a very small proportion +of the whole; and thus the government be taken out of the hands of "the +country," or the whole people, and be thrown into the hands of a few. + +That, at common law, the whole body of freemen were eligible as jurors +is sufficiently proved, not only by the reason of the thing, but by the +following evidence: + +1. Everybody must be presumed eligible, until the contrary be shown. We +have no evidence, that I am aware of, of a prior date to Magna Carta, to +_disprove_ that all freemen were eligible as jurors, unless it be the +law of Ethelred, which requires that they be elderly[81] men. Since no +specific age is given, it is probable, I think, that this statute meant +nothing more than that they be more than twenty-one years old. If it +meant anything more, it was probably contrary to the common law, and +therefore void. + +2. Since Magna Carta, we have evidence showing quite conclusively that +all freemen, above the age of twenty-one years, were eligible as jurors. + +The _Mirror of Justices_, (written within a century after Magna Carta,) +in the section "_Of Judges_"--that is, _jurors_--says: + + "All those who are not forbidden by law may be judges (jurors). To + women it is forbidden by law that they be judges; and thence it is, + that feme coverts are exempted to do suit in inferior courts. On the + other part, a villein cannot be a judge, by reason of the two + estates, which are repugnants; persons attainted of false judgments + cannot be judges, nor infants, nor any under the age of twenty-one + years, nor infected persons, nor idiots, nor madmen, nor deaf, nor + dumb, nor parties in the pleas, nor men excommunicated by the bishop, + nor criminal persons. * * And those who are not of the Christian + faith cannot be judges, nor those who are out of the king's + allegiance."--_Mirror of Justices_, 59-60. + +In the section "_Of Inferior Courts_," it is said: + + "From the first assemblies came consistories, which we now call + courts, and that in divers places, and in divers manners; whereof the + sheriffs held one monthly, or every five weeks, according to the + greatness or largeness of the shires. And these courts are called + county courts, _where the judgment is by the suitors_, if there be no + writ, and is by warrant of jurisdiction ordinary. The other inferior + courts are the courts of every lord of the fee, to the likeness of + the hundred courts. * * There are other inferior courts which the + bailiffs hold in every hundred, from three weeks to three weeks, _by + the suitors of the freeholders of the hundred. All the tenants within + the fees are bounden to do their suit there_, and that not for the + service of their persons, but for the service of their fees. But + women, infants within the age of twenty-one years, deaf, dumb, + idiots, those who are indicted or appealed of mortal felony, before + they be acquitted, diseased persons, and excommunicated persons are + exempted from doing suit."--_Mirror of Justices_, 50-51. + +In the section "_Of the Sheriff's Turns_," it is said: + + "The sheriffs by ancient ordinances hold several meetings twice in + the year in every hundred; _where all the freeholders within the + hundred_ are bound to appear for the service of their fees."--_Mirror + of Justices_, 50. + +The following statute was passed by Edward I., seventy years after Magna +Carta: + + "Forasmuch also as sheriffs, hundreders, and bailiffs of liberties, + have used to grieve those which be placed under them, putting in + assizes and juries men diseased and decrepit, and having continual or + sudden disease; and men also that dwelled not in the country at the + time of the summons; and summon also an unreasonable number of + jurors, for to extort money from some of them, for letting them go + in peace, and so the assizes and juries pass many times by poor men, + and the rich abide at home by reason of their bribes; it is ordained + that from henceforth in one assize no more shall be summoned than + four and twenty; and old men above three score and ten years, being + continually sick, or being diseased at the time of the summons, or + not dwelling in that country, shall not be put in juries of petit + assizes."--_St. 13 Edward I._, ch. 38. (1285.) + +Although this command to the sheriffs and other officers, not to summon, +as jurors, those who, from age and disease, were physically incapable of +performing the duties, may not, of itself, afford any absolute or legal +implication, by which we can determine precisely who were, and who were +not, eligible as jurors at common law, yet the exceptions here made +nevertheless carry a seeming confession with them that, at common law, +all male adults were eligible as jurors. + +But the main principle of the feudal system itself shows that _all_ the +full and free adult male members of the state--that is, all who were +free born, and had not lost their civil rights by crime, or +otherwise--_must_, at common law, have been eligible as jurors. What was +that principle? It was, that the state rested for support upon the land, +and not upon taxation levied upon the people personally. The lands of +the country were considered the property of the state, and were made to +support the state _in this way_. A portion of them was set apart to the +king, the rents of which went to pay his personal and official +expenditures, not including the maintenance of armies, or the +administration of justice. War and the administration of justice were +provided for in the following manner. The freemen, or the freeborn adult +male members of the state--who had not forfeited their political +rights--were entitled to land _of right_, (until all the land was taken +up,) on condition of their rendering certain military and civil services +to the state. The military services consisted in serving personally as +soldiers, or contributing an equivalent in horses, provisions, or other +military supplies. The civil services consisted, among other things, in +serving as jurors (and, it would appear, as witnesses) in the courts of +justice. For these services they received no compensation other than +the use of their lands. In this way the state was sustained; and the +king had no power to levy additional burdens or taxes upon the people. +The persons holding lands on these terms were called _freeholders_--in +later times _freemen_--meaning free and full members of the state. + +Now, as the principle of the system was that the freeholders held their +lands of the state, on the condition of rendering these military and +civil services as _rents_ for their lands, the principle implies that +_all_ the freeholders were liable to these rents, and were therefore +eligible as jurors. Indeed, I do not know that it has ever been doubted +that, at common law, _all_ the freeholders were eligible as jurors. If +all had not been eligible, we unquestionably should have had abundant +evidence of the exceptions. And if anybody, at this day, allege any +exceptions, the burden will be on him to prove them. The presumption +clearly is that _all_ were eligible. + +The first invasion, which I find made, by the English statutes, upon +this common law principle, was made in 1285, seventy years after Magna +Carta. It was then enacted as follows: + + "Nor shall any be put in assizes or juries, though they ought to be + taken in their own shire, that hold a tenement of less than the value + of _twenty shillings yearly_. And if such assizes and juries be taken + out of the shire, no one shall be placed in them who holds a tenement + of less value than forty shillings yearly at the least, except such + as be witnesses in deeds or other writings, whose presence is + necessary, so that they be able to travel."--_St. 13 Edward I._, ch. + 38. (1285.) + +The next invasion of the common law, in this particular, was made in +1414, about two hundred years after Magna Carta, when it was enacted: + + "That no person shall be admitted to pass in any inquest upon trial + of the death of a man, nor in any inquest betwixt party and party in + plea real, nor in plea personal, whereof the debt or the damage + declared amount to forty marks, if the same person have not lands or + tenements of the yearly value of _forty shillings above all charges + of the same_."--_2 Henry V._, st. 2, ch. 3. (1414.) + +Other statutes on this subject of the property qualifications of jurors, +are given in the note.[82] + +From these statutes it will be seen that, since 1285, seventy years +after Magna Carta, the common law right of all free British subjects to +eligibility as jurors has been abolished, and the qualifications of +jurors have been made a subject of arbitrary legislation. In other +words, the government has usurped the authority of _selecting_ the +jurors that were to sit in judgment upon its own acts. This is +destroying the vital principle of the trial by jury itself, which is +that the legislation of the government shall be subjected to the +judgment of a tribunal, taken indiscriminately from the whole people, +without any choice by the government, and over which the government can +exercise no control. If the government can select the jurors, it will, +of course, select those whom it supposes will be favorable to its +enactments. And an exclusion of _any_ of the freemen from eligibility is +a _selection_ of those not excluded. + +It will be seen, from the statutes cited, that the most absolute +authority over the jury box--that is, over the right of the people to +sit in juries--has been usurped by the government; that the +qualifications of jurors have been repeatedly changed, and made to vary +from a freehold of _ten shillings yearly_, to one of "_twenty pounds by +the year at least above reprises_." They have also been made different, +in the counties of Southampton, Surrey, and Sussex, from what they were +in the other counties; different in Wales from what they were in +England; and different in the city of London, and in the county of +Middlesex, from what they were in any other part of the kingdom. + +But this is not all. The government has not only assumed arbitrarily to +classify the people, on the basis of property, but it has even assumed +to give to some of its judges entire and absolute personal discretion in +the selection of the jurors to be impanelled in criminal cases, as the +following statutes show. + + "Be it also ordained and enacted by the same authority, that all + panels hereafter to be returned, which be not at the suit of any + party, that shall be made and put in afore any justice of gaol + delivery or justices of peace in their open sessions _to inquire for + the king, shall hereafter be reformed by additions and taking out of + names of persons by discretion of the same justices before whom such + panel shall be returned; and the same justices shall hereafter + command the sheriff, or his ministers in his absence, to put other + persons in the same panel by their discretions; and that panel so + hereafter to be made, to be good and lawful_. This act to endure only + to the next Parliament."--_11 Henry VII._, ch. 24, sec. 6. (1495.) + +This act was continued in force by 1 Henry VIII., ch. 11, (1509,) to the +end of the then next Parliament. + +It was reënacted, and made perpetual, by 3 Henry VIII., ch. 12. (1511.) + +_These acts gave unlimited authority to the king's justices to pack +juries at their discretion; and abolished the last vestige of the common +law right of the people to sit as jurors, and judge of their own +liberties, in the courts to which the acts applied._ + +Yet, as matters of law, these statutes were no more clear violations of +the common law, the fundamental and paramount "law of the land," than +were those statutes which affixed the property qualifications before +named; because, if the king, or the government, can select the jurors on +the ground of property, it can select them on any other ground +whatever. + +Any infringement or restriction of the common law right of the whole +body of the freemen of the kingdom to eligibility as jurors, was legally +an abolition of the trial by jury itself. The juries no longer +represented "the country," but only a part of the country; that part, +too, on whose favor the government chose to rely for the maintenance of +its power, and which it therefore saw fit to select as being the most +reliable instruments for its purposes of oppression towards the rest. +And the selection was made on the same principle, on which tyrannical +governments generally select their supporters, viz., that of +conciliating those who would be most dangerous as enemies, and most +powerful as friends--that is, the wealthy.[83] + +These restrictions, or indeed any one of them, of the right of +eligibility as jurors, was, in principle, a complete abolition of the +English constitution; or, at least, of its most vital and valuable part. +It was, in principle, an assertion of a right, on the part of the +government, to _select_ the individuals who were to determine the +authority of its own laws, and the extent of its own powers. It was, +therefore, _in effect_, the assertion of a right, on the part of the +government itself, to determine its own powers, and the authority of its +own legislation, over the people; and a denial of all right, on the part +of the people, to judge of or determine their own liberties against the +government. It was, therefore, in reality, a declaration of entire +absolutism on the part of the government. It was an act as purely +despotic, _in principle_, as would have been the express abolition of +all juries whatsoever. By "the law of the land," which the kings were +sworn to maintain, every free adult male British subject was eligible to +the jury box, with full power to exercise his own judgment as to the +authority and obligation of every statute of the king, which might come +before him. But the principle of these statutes (fixing the +qualifications of jurors) is, that nobody is to sit in judgment upon the +acts or legislation of the king, or the government, except those whom +the government itself shall select for that purpose. A more complete +subversion of the essential principles of the English constitution could +not be devised. + +The juries of England are illegal for another reason, viz., that the +statutes cited require the jurors (except in London and a few other +places) to be _freeholders_. All the other free British subjects are +excluded; whereas, at common law, all such subjects are eligible to sit +in juries, whether they be freeholders or not. + +It is true, the ancient common law required the jurors to be +freeholders; but the term _freeholder_ no longer expresses the same idea +that it did in the ancient common law; because no land is now holden in +England on the same principle, or by the same tenure, as that on which +all the land was held in the early times of the common law. + +As has heretofore been mentioned, in the early times of the common law +the land was considered the property of the state; and was all holden by +the _tenants_, so called, (that is, _holders_,) on the condition of +their rendering certain military and civil services to the state, (or to +the king as the representative of the state,) under the name of _rents_. +Those who held lands on these terms were called free _tenants_, that is, +_free holders_--meaning free persons, or members of the state, holding +lands--to distinguish them from villeins, or serfs, who were not members +of the state, but held their lands by a more servile tenure, and also to +distinguish them from persons of foreign birth, outlaws, and all other +persons, who were not members of the state. + +Every freeborn adult male Englishman (who had not lost his civil rights +by crime or otherwise) was entitled to land of _right_; that is, by +virtue of his civil freedom, or membership of the body politic. Every +member of the state was therefore a freeholder; and every freeholder was +a member of the state. And the members of the state were therefore +called freeholders. But what is material to be observed, is, that a +man's right to land was an incident to his _civil freedom_; not his +civil freedom an incident to his right to land. He was a freeholder +because he was a _freeborn_ member of the state; and not a freeborn +member of the state because he was a freeholder; for this last would be +an absurdity. + +As the tenures of lands changed, the term _freeholder_ lost its original +significance, and no longer described a man who held land of the state +by virtue of his civil freedom, but only one who held it in +fee-simple--that is, free of any liability to military or civil +services. But the government, in fixing the qualifications of jurors, +has adhered to the term _freeholder_ after that term has ceased to +express the _thing_ originally designated by it. + +The principle, then, of the common law, was, that every freeman, or +freeborn male Englishman, of adult age, &c., was eligible to sit in +juries, by virtue of his civil freedom, or his being a member of the +state, or body politic. But the principle of the present English +statutes is, that a man shall have a right to sit in juries because he +owns lands in fee-simple. At the common law a man was _born_ to the +right to sit in juries. By the present statutes he _buys_ that right +when he buys his land. And thus this, the greatest of all the political +rights of an Englishman, has become a mere article of merchandise; a +thing that is bought and sold in the market for what it will bring. + +Of course, there can be no legality in such juries as these; but only in +juries to which every free or natural born adult male Englishman is +eligible. + +The second essential principle of the common law, controlling the +selection of jurors, is, that when the selection of the actual jurors +comes to be made, (from the whole body of male adults,) that selection +shall be made in some mode that excludes the possibility of choice _on +the part of the government_. + +Of course, this principle forbids the selection to be made _by any +officer of the government_. + +There seem to have been at least three modes of selecting the jurors, at +the common law. 1. By lot.[84] 2. Two knights, or other freeholders, +were appointed, (probably by the sheriff,) to select the jurors. 3. By +the sheriff, bailiff, or other person, who held the court, or rather +acted as its ministerial officer. Probably the latter mode may have been +the most common, although there may be some doubt on this point. + +At the common law the sheriffs, bailiffs, and other officers _were +chosen by the people, instead of being appointed by the king_. (_4 +Blackstone_, 413. _Introduction to Gilbert's History of the Common +Pleas_, p. 2, _note_, and p. 4.) This has been shown in a former +chapter.[85] At common law, therefore, jurors selected by these officers +were legally selected, so far as the principle now under discussion is +concerned; that is, they were not selected by any officer who was +dependent on the government. + +But in the year 1315, one hundred years after Magna Carta, the choice of +sheriffs was taken from the people, and it was enacted: + + "That the sheriffs shall henceforth be assigned by the chancellor, + treasurer, barons of the exchequer, and by the justices. And in the + absence of the chancellor, by the treasurer, barons and + justices."--_9 Edward II._, st. 2. (1315.) + +These officers, who appointed the sheriffs, were themselves appointed by +the king, and held their offices during his pleasure. Their appointment +of sheriffs was, therefore, equivalent to an appointment by the king +himself. And the sheriffs, thus appointed, held their offices only +during the pleasure of the king, and were of course mere tools of the +king; and their selection of jurors was really a selection by the king +himself. In this manner the king usurped the selection of the jurors who +were to sit in judgment upon his own laws. + +Here, then, was another usurpation, by which the common law trial by +jury was destroyed, so far as related to the county courts, in which the +sheriffs presided, and which were the most important courts of the +kingdom. From this cause alone, if there were no other, there has not +been a legal jury in a _county_ court in England, for more than five +hundred years. + +In nearly or quite all the States of the United States the juries are +illegal, for one or the other of the same reasons that make the juries +in England illegal. + +In order that the juries in the United States may be legal--that is, in +accordance with the principles of the common law--it is necessary that +every adult male member of the state should have his name in the jury +box, or be eligible as a juror. Yet this is the case in hardly a single +state. + +In New Jersey, Maryland, North Carolina, Tennessee, and Mississippi, the +jurors are required to be _freeholders_. But this requirement is +illegal, for the reason that the term _freeholder_, in this country, has +no meaning analogous to the meaning it had in the ancient common law. + +In Arkansas, Missouri, Indiana, and Alabama, jurors are required to be +"freeholders or householders." Each of these requirements is illegal. + +In Florida, they are required to be "householders." + +In Connecticut, Maine, Ohio, and Georgia, jurors are required to have +the qualifications of "electors." + +In Virginia, they are required to have a property qualification of one +hundred dollars. + +In Maine, Massachusetts, Vermont, Connecticut, New York, Ohio, Indiana, +Michigan, and Wisconsin, certain civil authorities of the towns, cities, +and counties are authorized to select, once in one, two, or three years, +a certain number of the people--a small number compared with the +whole--from whom jurors are to be taken when wanted; thus disfranchising +all except the few thus selected. + +In Maine and Vermont, the inhabitants, by vote in town meeting, have a +veto upon the jurors selected by the authorities of the town. + +In Massachusetts, the inhabitants, by vote in town meeting, can strike +out any names inserted by the authorities, and insert others; thus +making jurors elective by the people, and, of course, representatives +only of a majority of the people. + +In Illinois, the jurors are selected, for each term of court, by the +county commissioners. + +In North Carolina, "_the courts of pleas and quarter sessions_ * * shall +select the names of such persons only as are freeholders, and as are +well qualified to act as jurors, &c.; thus giving the courts power to +pack the juries."--(_Revised Statutes_, 147.) + +In Arkansas, too, "It shall be the duty of the _county court_ of each +county * * to make out and cause to be delivered to the sheriff a list +of not less than sixteen, nor more than twenty-three persons, qualified +to serve as _grand_ jurors;" and the sheriff is to summon such persons +to serve as _grand_ jurors. + +In Tennessee, also, the jurors are to be selected by the _county +courts_. + +In Georgia, the jurors are to be selected by "the justices of the +inferior courts of each county, together with the sheriff and clerk, or +a majority of them." + +In Alabama, "the sheriff, judge of the county court, and clerks of the +circuit and county courts," or "a majority of" them, select the jurors. + +In Virginia, the jurors are selected by the sheriffs; but the sheriffs +are appointed by the governor of the state, and that is enough to make +the juries illegal. Probably the same objection lies against the +legality of the juries in some other states. + +How jurors are appointed, and what are their qualifications, in New +Hampshire, Rhode Island, Pennsylvania, Delaware, South Carolina, +Kentucky, Iowa, Texas, and California, I know not. There is little doubt +that there is some valid objection to them, of the kinds already +suggested, in all these states. + +In regard to jurors in the courts of the United States, it is enacted, +by act of Congress: + + "That jurors to serve in the courts of the United States, in each + state respectively, shall have the like qualifications, and be + entitled to the like exemptions, as jurors of the highest court of + law of such state now have and are entitled to, and shall hereafter, + from time to time, have and be entitled to, and shall be designated + by ballot, lot, or otherwise, according to the mode of forming such + juries now practised and hereafter to be practised therein, in so far + as such mode may be practicable by the courts of the United States, + or the officers thereof; and for this purpose, the said courts shall + have power to make all necessary rules and regulations for conforming + the designation and empanelling of jurors, in substance, to the laws + and usages now in force in such state; and, further, shall have + power, by rule or order, from time to time, to conform the same to + any change in these respects which may be hereafter adopted by the + legislatures of the respective states for the state courts."--_St._ + 1840, ch. 47, _Statutes at Large_, vol. 5, p. 394. + +In this corrupt and lawless manner, Congress, instead of taking care to +preserve the trial by jury, so far as they might, by providing for the +appointment of legal juries--incomparably the most important of all our +judicial tribunals, and the only ones on which the least reliance can be +placed for the preservation of liberty--have given the selection of them +over entirely to the control of an indefinite number of state +legislatures, and thus authorized each state legislature to adapt the +juries of the United States to the maintenance of any and every system +of tyranny that may prevail in such state. + +Congress have as much constitutional right to give over all the +functions of the United States government into the hands of the state +legislatures, to be exercised within each state in such manner as the +legislature of such state shall please to exercise them, as they have to +thus give up to these legislatures the selection of juries for the +courts of the United States. + +There has, probably, never been a legal jury, nor a legal trial by jury, +in a single court of the United States, since the adoption of the +constitution. + +These facts show how much reliance can be placed in written +constitutions, to control the action of the government, and preserve the +liberties of the people. + +If the real trial by jury had been preserved in the courts of the United +States--that is, if we had had legal juries, and the jurors had known +their rights--it is hardly probable that one tenth of the past +legislation of Congress would ever have been enacted, or, at least, +that, if enacted, it could have been enforced. + +Probably the best mode of appointing jurors would be this: Let the names +of _all_ the adult male members of the state, in each township, be kept +in a jury box, by the officers of the township; and when a court is to +be held for a county or other district, let the officers of a sufficient +number of townships be required (without seeing the names) to draw out a +name from their boxes respectively, to be returned to the court as a +juror. This mode of appointment would guard against collusion and +selection; and juries so appointed would be likely to be a fair epitome +of "the country." + +[Footnote 79: On the English Constitution.] + +[Footnote 80: Although all the freemen are legally eligible as jurors, +any one may nevertheless be challenged and set aside, at the trial, for +any special _personal_ disqualification; such as mental or physical +inability to perform the duties; having been convicted, or being under +charge, of crime; interest, bias, &c. But it is clear that the common +law allows none of these points to be determined by the court, but only +by "_triers_."] + +[Footnote 81: What was the precise meaning of the Saxon word, which I +have here called _elderly_, I do not know. In the Latin translations it +is rendered by _seniores_, which may perhaps mean simply those who have +attained their majority.] + +[Footnote 82: In 1483 it was enacted, by a statute entitled "Of what +credit and estate those jurors must be which shall be impanelled in the +Sheriff's Turn." + + "That no bailiff nor other officer from henceforth return or impanel + any such person in any shire of England, to be taken or put in or + upon any inquiry in any of the said Turns, but such as be of good + name and fame, and having lands and tenements of freehold within the + same shires, to the yearly value of _twenty shillings_ at the least, + or else lands and tenements holden by custom of manor, commonly + called _copy-hold_, within the said shires, to the yearly value of + twenty-six shillings eight pence over all charges at the least."--_1 + Richard III._, ch. 4. (1483.) + + In 1486 it was enacted, "That the justices of the peace of every + shire of this realm for the time being may take, by their discretion, + an inquest, whereof every man shall have lands and tenements to the + yearly value of _forty shillings_ at the least, to inquire of the + concealments of others," &c., &c.--_3 Henry VII._, ch. 1 (1486.) + +A statute passed in 1494, in regard to jurors in the city of London, +enacts: + + "That no person nor persons hereafter be impanelled, summoned, or + sworn in any jury or inquest in courts within the same city, (of + London,) except he be of lands, tenements, or goods and chattels, to + the value of _forty marks_;[86] and that no person or persons + hereafter be impanelled, summoned, nor sworn in any jury or inquest + in any court within the said city, for lands or tenements, or action + personal, wherein the debt or damage amounteth to the sum of forty + marks, or above, except he be in lands, tenements, goods, or + chattels, to the value of _one hundred marks_."--_11 Henry VII._, ch. + 21. (1494.) + +The statute _4 Henry VIII._, ch. 3, sec. 4, (1512) requires jurors in +London to have "_goods_ to the value of one hundred marks." + + In 1494 it was enacted that "It shall be lawful to every sheriff of + the counties of _Southampton_, _Surrey_, _and Sussex_, to impanel and + summons twenty-four lawful men of such, inhabiting within the + precinct of his or their turns, as owe suit to the same turn, whereof + every one hath lands or freehold to the yearly value of _ten_ + shillings, or copy-hold lands to the yearly value of _thirteen + shillings four pence_, above all charges within any of the said + counties, or men of less livelihood, if there be not so many there, + notwithstanding the statute of _1 Richard III._, ch. 4. To endure to + the next parliament."--_11 Henry VII._, ch. 26. (1494.) + +This statute was continued in force by _19 Henry VII._, ch. 16. (1503.) + + In 1531 it was enacted, "That every person or persons, being the + king's natural subject born, which either by the name of citizen, or + of a freeman, or any other name, doth enjoy and use the liberties and + privileges of any city, borough, or town corporate, where he dwelleth + and maketh his abode, being worth in _movable goods and substance_ to + the clear value of _forty pounds_, be henceforth admitted in trials + of murders and felonies in every sessions and gaol delivery, to be + kept and holden in and for the liberty of such cities, boroughs, and + towns corporate, albeit they have no freehold; any act, statute, use, + custom, or ordinance to the contrary hereof notwithstanding."--_23 + Henry VIII._, ch. 13. (1531.) + + In 1585 it was enacted, "That in all cases where any jurors to be + returned for trial of any issue or issues joined in any of the + Queen's majesty's courts of King's Bench, Common Pleas, and the + Exchequer, or before justices of assize, by the laws of this realm + now in force, ought to have estate of freehold in lands, tenements, + or hereditaments, of the clear yearly value of _forty shillings_, + that in every such case the jurors that shall be returned from and + after the end of this present session of parliament, shall every of + them have estate of freehold in lands, tenements, or hereditaments, + to the clear yearly value of _four pounds_ at the least."--_27 + Elizabeth_, ch. 6. (1585.) + + In 1664-5 it was enacted, "That all jurors (other than strangers upon + trials _per medietatem linguæ_) who are to be returned for the trials + of issues joined in any of (his) majesty's courts of king's bench, + common pleas, or the exchequer, or before justices of assize, or nisi + prius, oyer and terminer, gaol delivery, or general or quarter + sessions of the peace, from and after the twentieth day of April, + which shall be in the year of our Lord one thousand six hundred and + sixty-five, in any county of this realm of England, shall every of + them thon have, in their own name, or in trust for them, within the + same county, _twenty pounds by the year_, at least, above reprises, + in their own or their wives' right, of freehold lands, or of ancient + demesne, or of rents in fee, fee-tail, or for life. And that in every + county within the dominion of Wales every such juror shall then have, + within the same, _eight pounds by the year_, at the least, above + reprises, in manner aforesaid. All which persons having such estate + as aforesaid are hereby enabled and made liable to be returned and + serve as jurors for the trial of issues before the justices + aforesaid, any law or statute to the contrary in any wise + notwithstanding."--_16 and 17 Charles II._, ch. 3. (1664-5.) + +By a statute passed in 1692, jurors in England are to have landed +estates of the value of _ten pounds a year_; and jurors in Wales to have +similar estates of the realm of _six pounds a year_.--_4 and 5 William +and Mary_, ch. 24, sec. 14. (1692.) + +By the same statute, (sec. 18,) persons may be returned to serve upon +the _tales_ in any county of England, who shall have, within the same +county, _five pounds by the year_, above reprises, in the manner +aforesaid. + +By _St_. 3 _George II_., ch. 25, sec. 19, 20, no one is to be a juror in +London, who shall not be "an householder within the said city, and have +lands, tenements, or personal estate, to the value of _one hundred +pounds_." + +By another statute, applicable only to the county of _Middlesex_, it is +enacted, + + "That all leaseholders, upon leases where the improved rents or value + shall amount to _fifty pounds or upwards per annum_, over and above + all ground rents or other reservations payable by virtue of the said + leases, shall be liable and obliged to serve upon juries when they + shall be legally summoned for that purpose."--_4 George II._, ch. 7, + sec. 3. (1731.)] + +[Footnote 83: Suppose these statutes, instead of disfranchising all +whose freeholds were of less than the standard value fixed by the +statutes, had disfranchised all whose freeholds were of greater value +than the same standard--would anybody ever have doubted that such +legislation was inconsistent with the English constitution; or that it +amounted to an entire abolition of the trial by jury? Certainly not. Yet +it was as clearly inconsistent with the common law, or the English +constitution, to disfranchise those whose freeholds fell below any +arbitrary standard fixed by the government, as it would have been to +disfranchise all whose freeholds rose above that standard.] + +[Footnote 84: _Lingard_ says: "These compurgators or jurors * * were +sometimes * * _drawn by lot_."--_1 Lingard's History of England_, p. +300.] + +[Footnote 85: Chapter 4, p. 120, note.] + +[Footnote 86: A mark was thirteen shillings and four pence.] + + + + +CHAPTER VII. + +ILLEGAL JUDGES. + + +It is a principle of Magna Carta, and therefore of the trial by jury, +(for all parts of Magna Carta must be construed together,) that no judge +or other officer _appointed by the king_, shall preside in jury trials, +_in criminal cases_, or "pleas of the crown." + +This provision is contained in the great charters of both John and +Henry, and is second in importance only to the provision guaranteeing +the trial by jury, of which it is really a part. Consequently, without +the observance of this prohibition, there can be no genuine or +_legal_--that is, _common law_--trial by jury. + +At the common law, all officers who held jury trials, whether in civil +or criminal cases, were chosen by the people.[87] + +But previous to Magna Carta, the kings had adopted the practice of +sending officers of their own appointment, called justices, into the +counties, to hold jury trials in some cases; and Magna Carta authorizes +this practice to be continued so far as it relates to _three_ kinds of +_civil_ actions, to wit: "novel disseisin, mort de ancestor, and darrein +presentment;"[88] but specially forbids its being extended to criminal +cases, or pleas of the crown. + +This prohibition is in these words: + + "Nullus vicecomes, constabularius, coronator, _vel alii balivi + nostri_, teneant placita coronæ nostræ." (No sheriff, constable, + coroner, _or other our bailiffs_, shall hold pleas of our + crown.)--_John's Charter_, ch. 53. _Henry's ditto_, ch. 17. + +Some persons seem to have supposed that this was a prohibition merely +upon officers _bearing the specific names of_ "_sheriffs, constables, +coroners and bailiffs_," to hold criminal trials. But such is not the +meaning. If it were, the _name_ could be changed, and the _thing_ +retained; and thus the prohibition be evaded. The prohibition applies +(as will presently be seen) to all officers of the king whatsoever; and +it sets up a distinction between officers _of the king_, ("_our_ +bailiffs,") and officers chosen by the people. + +The prohibition upon the king's _justices_ sitting in criminal trials, +is included in the words "_vel alii balivi nostri_," (or other our +bailiffs.) The word _bailiff_ was anciently a sort of general name for +_judicial officers_ and persons employed in and about the administration +of justice. In modern times its use, as applied to the higher grades of +judicial officers, has been superseded by other words; and it therefore +now, more generally, if not universally, signifies an executive or +police officer, _a servant of courts_, rather than one whose functions +are purely judicial. + +The word is a French word, brought into England by the Normans. + + Coke says, "_Baylife_ is a French word, and signifies an officer + concerned in the administration of justice of a certain province; and + because a sheriff hath an office concerning the administration of + justice within his county, or bailiwick, therefore he called his + county _baliva sua_, (his bailiwick.) + + "I have heard great question made what the true exposition of this + word _balivus_ is. In the statute of Magna Carta, cap. 28, the letter + of that statute is, _nullus balivus de cætero ponat aliquem ad legem + manifestam nec ad juramentum simplici loquela sua sine testibus + fidelibus ad hoc inductis_." (No bailiff from henceforth shall put + any one to his open law, nor to an oath (of self-exculpation) upon + his own simple accusation, or complaint, without faithful witnesses + brought in for the same.) "And some have said that _balivus_ in this + statute signifieth _any judge_; for the law must be waged and made + before the judge. And this statute (say they) extends to _the courts + of common pleas_, _king's bench_, &c., for they must bring with them + _fideles testes_, (faithful witnesses,) &c., _and so hath been the + usage to this day_."--_1 Coke's Inst._, 168 b. + +Coke makes various references, in his margin to Bracton, Fleta, and +other authorities, which I have not examined, but which, I presume, +support the opinion expressed in this quotation. + +Coke also, in another place, under the head of the chapter just cited +from Magna Carta, that "_no bailiff shall put any man to his open law_," +&c., gives the following commentary upon it, from the _Mirror of +Justices_, from which it appears that in the time of Edward I., (1272 to +1307,) this word _balivus_ was understood to include _all judicial_, as +well as all other, officers of the king. + + The Mirror says: "The point which forbiddeth that no _bailiff_ put a + freeman to his oath without suit, is to be understood in this + manner,--_that no justice, no minister of the king_, nor other + steward, nor bailiff, have power to make a freeman make oath, (of + self-exculpation,) _without the king's command_,[89] nor receive any + plaint, without witnesses present who testify the plaint to be + true."--_Mirror of Justices_, ch. 5, sec. 2, p. 257. + +Coke quotes this commentary, (in the original French,) and then endorses +it in these words: + + "By this it appeareth, that under this word _balivus_, in this act, + is comprehended _every justice, minister of the king_, steward, and + bailiff."--2 _Inst._, 44. + +Coke also, in his commentary upon this very chapter of Magna Carta, that +provides that "_no sheriff, constable, coroner, or other our bailiffs, +shall hold pleas of our crown_," expresses the opinion that it "_is a +general law_," (that is, applicable to all officers of the king,) "by +reason of the words _vel alii balivi nostri_, (or other our bailiffs,) +_under which words are comprehended all judges or justices of any courts +of justice_." And he cites a decision in the king's bench, in the 17th +year of Edward I., (1289,) as authority; which decision he calls "a +notable and leading judgment."--_2 Inst._, 30--1. + +And yet Coke, in flat contradiction of this decision, which he quotes +with such emphasis and approbation, and in flat contradiction also of +the definition he repeatedly gives of the word _balivus_, showing that +it embraced _all ministers of the king whatsoever_, whether high or low, +judicial or executive, fabricates an entirely gratuitous interpretation +of this chapter of Magna Carta, and pretends that after all it only +required that _felonies_ should be tried before the king's _justices, on +account of their superior learning_; and that it permitted all lesser +offences to be tried before inferior officers, (meaning of course the +_king's_ inferior officers.)--_2 Inst._, 30. + +And thus this chapter of Magna Carta, which, according to his own +definition of the word _balivus_, applies to all officers of the king; +and which, according to the common and true definition of the term +"pleas of the crown," applies to all criminal cases without distinction, +and which, therefore, forbids any officer or minister of the king to +preside in a jury trial in any criminal case whatsoever, he coolly and +gratuitously interprets into a mere senseless provision for simply +restricting the discretion of the king in giving _names_ to his own +officers who should preside at the trials of particular offences; as if +the king, who made and unmade all his officers by a word, could not +defeat the whole object of the prohibition, by appointing such +individuals as he pleased, to try such causes as he pleased, and calling +them by such names as he pleased, _if he were but permitted to appoint +and name such officers at all_; and as if it were of the least +importance what _name_ an officer bore, whom the king might appoint to a +particular duty.[90] + +Coke evidently gives this interpretation solely because, as he was +giving a general commentary on Magna Carta, he was bound to give some +interpretation or other to every chapter of it; and for this chapter he +could invent, or fabricate, (for it is a sheer fabrication,) no +interpretation better suited to his purpose than this. It seems never to +have entered his mind, (or if it did, he intended that it should never +enter the mind of anybody else,) that the object of the chapter could be +to deprive the king of the power of putting his creatures into criminal +courts, to pack, cheat, and browbeat juries, and thus maintain his +authority by procuring the conviction of those who should transgress his +laws, or incur his displeasure. + +This example of Coke tends to show how utterly blind, or how utterly +corrupt, English judges, (dependent upon the crown and the legislature), +have been in regard to everything in Magna Carta, that went to secure +the liberties of the people, or limit the power of the government. + +Coke's interpretation of this chapter of Magna Carta is of a piece with +his absurd and gratuitous interpretation of the words "_nec super eum +ibimus, nec super eum mittemus_," which was pointed out in a former +article, and by which he attempted to give a _judicial_ power to the +king and his judges, where Magna Carta had given it only to a jury. It +is also of a piece with his pretence that there was a difference +between _fine_ and _amercement_, and that _fines_ might be imposed by +the king, and that juries were required only for fixing _amercements_. + +These are some of the innumerable frauds by which the English people +have been cheated out of the trial by jury. + +_Ex uno disce omnes._ From one judge learn the characters of all.[91] + +I give in the note additional and abundant authorities for the meaning +ascribed to the word _bailiff_. The importance of the principle involved +will be a sufficient excuse for such an accumulation of authorities as +would otherwise be tedious and perhaps unnecessary.[92] + +The foregoing interpretation of the chapter of Magna Carta now under +discussion, is corroborated by another chapter of Magna Carta, which +specially provides that the king's justices shall "go through every +county" to "take the assizes" (hold jury trials) in three kinds of +_civil_ actions, to wit, "novel disseisin, mort de ancestor, and darrein +presentment;" but makes no mention whatever of their holding jury trials +in _criminal_ cases,--an omission wholly unlikely to be made, if it +were designed they should attend the trial of such causes. Besides, the +chapter here spoken of (in John's charter) does not allow these justices +to sit _alone_ in jury trials, even in _civil_ actions; but provides +that four knights, chosen by the county, shall sit with them to keep +them honest. When the king's justices were known to be so corrupt and +servile that the people would not even trust them to sit alone, in jury +trials, in _civil_ actions, how preposterous is it to suppose that they +would not only suffer them to sit, but to sit alone, in _criminal_ ones. + +It is entirely incredible that Magna Carta, which makes such careful +provision in regard to the king's justices sitting in civil actions, +should make no provision whatever as to their sitting in _criminal_ +trials, if they were to be allowed to sit in them at all. Yet Magna +Carta has no provision whatever on the subject.[93] + +But what would appear to make this matter absolutely certain is, that +unless the prohibition that "no bailiff, &c., _of ours_ shall hold pleas +of our crown," apply to all officers of the king, justices as well as +others, it would be wholly nugatory for any practical or useful purpose, +because the prohibition could be evaded by the king, at any time, by +simply changing the titles of his officers. Instead of calling them +"sheriffs, coroners, constables and bailiffs," he could call them +"_justices_," or anything else he pleased; and this prohibition, so +important to the liberty of the people, would then be entirely defeated. +The king also could make and unmake "justices" at his pleasure; and if +he could appoint any officers whatever to preside over juries in +criminal trials, he could appoint any tool that he might at any time +find adapted to his purpose. It was as easy to make justices of Jeffreys +and Scroggs, as of any other material; and to have prohibited all the +king's officers, _except his justices_, from presiding in criminal +trials, would therefore have been mere fool's play. + +We can all perhaps form some idea, though few of us will be likely to +form any adequate idea, of what a different thing the trial by jury +would have been _in practice_, and of what would have been the +difference to the liberties of England, for five hundred years last +past, had this prohibition of Magna Carta, upon the king's officers +sitting in the trial of criminal cases, been observed. + +The principle of this chapter of Magna Carta, as applicable to the +governments of the United States of America, forbids that any officer +appointed either by the executive or _legislative_ power, or dependent +upon them for their salaries, or responsible to them by impeachment, +should preside over a jury in criminal trials. To have the trial a legal +(that is, a _common law_) and true trial by jury, the presiding officers +must be chosen by the people, and be entirely free from all dependence +upon, and all accountability to, the executive and legislative branches +of the government.[94] + +[Footnote 87: The proofs of this principle of the common law have +already been given on page 120, _note_. + +There is much confusion and contradiction among authors as to the manner +in which sheriffs and other officers were appointed; some maintaining +that they were appointed by the king, others that they were elected by +the people. I imagine that both these opinions are correct, and that +several of the king's officers bore the same official names as those +chosen by the people; and that this is the cause of the confusion that +has arisen on the subject. + +It seems to be a perfectly well established fact that, at common law, +several magistrates, bearing the names of aldermen, sheriffs, stewards, +coroners and bailiffs, were chosen by the people; and yet it appears, +from Magna Carta itself, that some of the _king's_ officers (of whom he +must have had many) were also called "sheriffs, constables, coroners, +and bailiffs." + +But Magna Carta, in various instances, speaks of sheriffs and bailiffs +as "_our_ sheriffs and bailiffs;" thus apparently intending to recognize +the distinction between officers _of the king_, bearing those names, and +other officers, bearing the same official names, but chosen by the +people. Thus it says that "no sheriff or bailiff _of ours_, or any other +(officer), shall take horses or carts of any freeman for carriage, +unless with the consent of the freeman himself."--_John's Charter_, ch. +36. + +In a kingdom subdivided into so many counties, hundreds, tithings, +manors, cities and boroughs, each having a judicial or police +organization of its own, it is evident that many of the officers must +have been chosen by the people, else the government could not have +maintained its popular character. On the other hand, it is evident that +the king, the executive power of the nation, must have had large numbers +of officers of his own in every part of the kingdom. And it is perfectly +natural that these different sets of officers should, in many instances, +bear the same official names; and, consequently that the king, when +speaking of his own officers, as distinguished from those chosen by the +people, should call them "our sheriffs, bailiffs," &c., as he does in +Magna Carta. + +I apprehend that inattention to these considerations has been the cause +of all the confusion of ideas that has arisen on this subject,--a +confusion very evident in the following paragraph from Dunham, which may +be given as an illustration of that which is exhibited by others on the +same points. + + "Subordinate to the ealdormen were the _gerefas_, the sheriffs, or + reeves, _of whom there were several in every shire, or county_. + _There was one in every borough, as a judge._ There was one at every + gate, who witnessed purchases outside the walls; and there was one, + higher than either,--the high sheriff,--who was probably the reeve of + the shire. This last _appears_ to have been appointed by the king. + Their functions were to execute the decrees of the king, or + ealdormen, to arrest prisoners, to require bail for their appearance + at the sessions, to collect fines or penalties levied by the court of + the shire, to preserve the public peace, _and to preside in a + subordinate tribunal of their own_."--_Dunham's Middle Ages_, sec. 2, + B. 2, ch. 1. 57 _Lardner's Cab. Cyc._, p. 41. + +The confusion of _duties_ attributed to these officers indicates clearly +enough that different officers, bearing, the same official names, must +have had different duties, and have derived their authority from +different sources,--to wit, the king, and the people.] + +[Footnote 88: _Darrein presentment_ was an inquest to discover who +presented the last person to a church; _mort de ancestor_, whether the +last possessor was seized of land in demesne of his own fee; and _novel +disseisin_, whether the claimant had been unjustly disseized of his +freehold.] + +[Footnote 89: He has no power to do it, _either with, or without, the +king's command_. The prohibition is absolute, containing no such +qualification as is here interpolated, viz., "_without the king's +command_." If it could be done _with_ the king's command, the king would +be invested with arbitrary power in the matter.] + +[Footnote 90: The absurdity of this doctrine of Coke is made more +apparent by the fact that, at that time, the "justices" and other +persons appointed by the king to hold courts were not only dependent +upon the king for their offices, and removable at his pleasure, _but +that the usual custom was, not to appoint them with any view to +permanency, but only to give them special commissions for trying a +single cause, or for holding a single term of a court, or for making a +single circuit; which, being done, their commissions expired_. The king, +therefore, could, _and undoubtedly did, appoint any individual he +pleased, to try any cause he pleased, with a special view to the +verdicts he desired to obtain in the particular cases_. + +This custom of commissioning particular persons to hold jury trials, in +_criminal_ cases, (and probably also in _civil_ ones,) was of course a +usurpation upon the common law, but had been practised more or less from +the time of William the Conqueror. Palgrave says: + + "The frequent absence of William from his insular dominions + occasioned another mode of administration, _which ultimately produced + still greater changes in the law_. It was the practice of appointing + justiciars to represent the king's person, to hold his court, to + decide his pleas, to dispense justice on his behalf, to command the + military levies, and to act as conservators of the peace in the + king's name.[95] ... The justices who were assigned in the name of + the sovereign, and whose powers were revocable at his pleasure, + derived their authority merely from their grant.... Some of those + judges were usually deputed for the purpose of relieving the king + from the burden of his judicial functions.... The number as well as + the variety of names of the justices appearing in the early + chirographs of 'Concords,' leave reason for doubting whether, + anterior to the reign of Henry III., (1216 to 1272,) _a court, whose + members were changing at almost every session, can be said to have + been permanently constituted. It seems more probable that the + individuals who composed the tribunal were selected as suited the + pleasure of the sovereign, and the convenience of the clerks and + barons_; and the history of our legal administration will be much + simplified, if we consider all those courts which were afterwards + denominated the Exchequer, the King's Bench, the Common Pleas, and + the Chancery, _as being originally committees, selected by the king + when occasion required_, out of a large body, for the despatch of + peculiar branches of business, _and which committees, by degrees, + assumed an independent and permanent existence_.... Justices + itinerant, who, despatched throughout the land, decided the 'Pleas of + the Crown,' may be obscurely traced in the reign of the Conqueror; + _not, perhaps, appointed with much regularity, but despatched upon + peculiar occasions and emergencies_."--_1 Palgrave's Rise and + Progress_, &c., p. 289 to 293. + +The following statute, passed in 1354, (139 years after Magna Carta,) +shows that even after this usurpation of appointing "justices" of his +own, to try criminal cases, had probably become somewhat established in +practice, in defiance of Magna Carta, the king was in the habit of +granting special commissions to still other persons, (especially to +sheriffs,--_his_ sheriffs, no doubt,) to try particular cases: + + "Because that the people of the realm have suffered many evils and + mischiefs, for that sheriffs of divers counties, by virtue of + commissions and general writs granted to them at their own suit, for + their singular profit to gain of the people, have made and taken + divers inquests to cause to indict the people at their will, and have + taken fine and ransom of them to their own use, and have delivered + them; whereas such persons indicted were not brought before the + king's justices to have their deliverance, it is accorded and + established, for to eschew all such evils and mischiefs, that such + commissions and writs before this time made shall be utterly + repealed, and that from henceforth no such commissions shall be + granted."--_St. 28 Edward III._, ch. 9, (1354.) + +How silly to suppose that the illegality of these commissions to try +criminal cases, could have been avoided by simply granting them to +persons under the title of "_justices_," instead of granting them to +"_sheriffs_." The statute was evidently a cheat, or at least designed as +such, inasmuch as it virtually asserts the right of the king to appoint +his tools, under the name of "justices," to try criminal cases, while it +_disavows_ his right to appoint them under the name of "sheriffs." + + Millar says: "When the king's bench came to have its usual residence + at Westminster, the sovereign was induced to _grant special + commissions, for trying particular crimes_, in such parts of the + country as were found most convenient; and this practice was + _gradually_ modelled into a regular appointment of certain + commissioners, empowered, at stated seasons, to perform circuits over + the kingdom, and to hold courts in particular towns, for the trial of + all sorts of crimes. These judges of the circuit, however, _never + obtained an ordinary jurisdiction, but continued, on every occasion, + to derive their authority from two special commissions_: that of + _oyer and terminer_, by which they were appointed to hear and + determine all treasons, felonies and misdemeanors, within certain + districts; and that of _gaol delivery_, by which they were directed + to try every prisoner confined in the gaols of the several towns + falling under their inspection."--_Millar's Hist. View of Eng. Gov._, + vol. 2, ch. 7, p. 282. + +The following extract from Gilbert shows to what lengths of usurpation +the kings would sometimes go, in their attempts to get the judicial +power out of the hands of the people, and entrust it to instruments of +their own choosing: + + "From the time of the _Saxons_," (that is, from the commencement of + the reign of William the Conqueror,) "till the reign of Edward the + first, (1272 to 1307,) the several county courts and sheriffs courts + did decline in their interest and authority. The methods by which + they were broken were two-fold. _First, by granting commissions to + the sheriffs by writ of_ JUSTICIES, _whereby the sheriff had a + particular jurisdiction granted him to be judge of a particular + cause, independent of the suitors of the county court_," (that is, + without a jury;) "_and these commissions were after the Norman form, + by which (according to which) all power of judicature was immediately + derived from the king_."--_Gilbert on the Court of Chancery_, p. 1. + +The several authorities now given show that it was the custom of the +_Norman_ kings, not only to appoint persons to sit as judges in jury +trials, in criminal cases, but that they also commissioned individuals +to sit in singular and particular cases, as occasion required; and that +they therefore readily _could_, and naturally _would_, and therefore +undoubtedly _did_, commission individuals with a special view to their +adaptation or capacity to procure such judgments as the kings desired. + +The extract from Gilbert suggests also the usurpation of the _Norman_ +kings, in their assumption that _they_, (and _not the people_, as by the +_common law_,) were the fountains of justice. It was only by virtue of +this illegal assumption that they could claim to appoint their tools to +hold courts. + +All these things show how perfectly lawless and arbitrary the kings were +both before and after Magna Carta, and how necessary to liberty was the +principle of Magna Carta and the common law, that no person appointed by +the king should hold jury trials in criminal cases.] + +[Footnote 91: The opinions and decisions of judges and courts are +undeserving of the least reliance, (beyond the intrinsic merit of the +arguments offered to sustain them,) and are unworthy even to be quoted +as evidence of the law, _when those opinions or decisions are favorable +to the power of the government, or unfavorable to the liberties of the +people_. The only reasons that their opinions, _when in favor of +liberty_, are entitled to any confidence, are, first, that all +presumptions of law are in favor of liberty; and, second, that the +admissions of all men, the innocent and the criminal alike, _when made +against their own interests_, are entitled to be received as true, +because it is contrary to human nature for a man to confess anything but +truth against himself. + +More solemn farces, or more gross impostures, were never practised upon +mankind, than are all, or very nearly all, those oracular responses by +which courts assume to determine that certain statutes, in restraint of +individual liberty, are within the constitutional power of the +government, and are therefore valid and binding upon the people. + +The reason why these courts are so intensely servile and corrupt, is, +that they are not only parts of, but the veriest creatures of, the very +governments whose oppressions they are thus seeking to uphold. They +receive their offices and salaries from, and are impeachable and +removable by, the very governments upon whose acts they affect to sit in +judgment. Of course, no one with his eyes open ever places himself in a +position so incompatible with the liberty of declaring his honest +opinion, unless he do it with the intention of becoming a mere +instrument in the hands of the government for the execution of all its +oppressions. + +As proof of this, look at the judicial history of England for the last +five hundred years, and of America from its settlement. In all that time +(so far as I know, or presume) no bench of judges, (probably not even +any single judge,) dependent upon the legislature that passed the +statute, has ever declared a single _penal_ statute invalid, on account +of its being in conflict either with the common law, which the judges in +England have been sworn to preserve, or with the written constitutions, +(recognizing men's natural rights,) which the American judges were under +oath to maintain. Every oppression, every atrocity even, that has ever +been enacted in either country, by the legislative power, in the shape +of a criminal law, (or, indeed, in almost any other shape,) has been as +sure of a sanction from the judiciary that was dependent upon, and +impeachable by, the legislature that enacted the law, as if there were a +physical necessity that the legislative enactment and the judicial +sanction should go together. Practically speaking, the sum of their +decisions, all and singular, has been, that there are no limits to the +power of the government, and that the people have no rights except what +the government pleases to allow to them. + +It is extreme folly for a people to allow such dependent, servile, and +perjured creatures to sit either in civil or criminal trials; but to +allow them to sit in criminal trials, and judge of the people's +liberties, is not merely fatuity,--it is suicide.] + +[Footnote 92: Coke, speaking of the word _bailiffs_, as used in the +statute of 1 _Westminster_, ch. 35, (1275,) says: + + "Here _bailiffs_ are taken for the _judges of the court_, as + manifestly appeareth hereby."--2 _Inst._, 229. + +Coke also says, "It is a maxim in law, _aliquis non debet esse judex in +propria causa_, (no one ought to be judge in his own cause;) and +therefore a fine levied before the _baylifes of Salop_ was reversed, +because one of the _baylifes_ was party to the fine, _quia non potest +esse judex et pars_," (because one cannot be _judge_ and party.)--_1 +Inst._, 141 a. + +In the statute of Gloucester, ch. 11 and 12, (1278,) "the mayor and +_bailiffs_ of London (undoubtedly chosen by the people, or at any rate +not appointed by the king) are manifestly spoken of as _judges_, or +magistrates, holding _jury_ trials, as follows: + + _Ch. II._ "It is provided, also, that if any man lease his tenement + in the city of London, for a term of years, and he to whom the + freehold belongeth causeth himself to be impleaded by collusion, and + maketh default after default, or cometh into court and giveth it up, + for to make the termor (lessee) lose his term, (lease,) and the + demandant hath his suit, so that the termor may recover by writ of + covenant; _the mayor and bailiffs may inquire by a good inquest_, + (_jury_,) in the presence of the termor and the demandant, whether + the demandant moved his plea upon good right that he had, or by + collusion, or fraud, to make the termor lose his term; and if it be + found by the inquest (jury) that the demandant moved his plea upon + good right that he had, the judgment shall be given forthwith; and if + it be found by the inquest (jury) that he impleaded him (self) by + fraud, to put the termor from his term, then shall the termor enjoy + his term, and the execution of judgment for the demandant shall be + suspended until the term be expired."--_6 Edward I._, ch. 11, (1278.) + + Coke, in his commentary on this chapter, calls this court of "the + mayor and _bailiffs_" of London, "_the court of the hustings, the + greatest and highest court in London;_" and adds, "other cities have + the like court, and so called, as York, Lincoln, Winchester, &c. Here + the city of London is named; but it appeareth by that which hath been + said out of Fleta, that this act extends to such cities and boroughs + privileged,--that is, such as have such privilege to hold plea as + London hath."--_2 Inst._, 322. + +The 12th chapter of the same statute is in the following words, which +plainly recognize the fact that "the mayor and _bailiffs_ of London" are +judicial officers holding courts in London. + + "It is provided, also, that if a man, impleaded for a tenement in the + same city, (London,) doth vouch a foreigner to warranty, that he + shall come into the chancery, and have a writ to summon his warrantor + at a certain day before the justices of the bench, _and another writ + to the mayor and bailiffs of London, that they shall surcease_ + (suspend proceedings) _in the matter that is before them by writ_, + until the plea of the warrantee be determined before the justices of + the bench; and when the plea at the bench shall be determined, then + shall he that is vouched be commanded to go into the city," (that is, + before "the mayor and _bailiffs'_" court,) "to answer unto the chief + plea; and a writ shall be awarded at the suit of the demandant by the + justices _unto the mayor and bailiffs, that they shall proceed in the + plea_," &c.--_6 Edward I._, ch. 12, (1278.) + +Coke, in his commentary on this chapter, also speaks repeatedly of "the +mayor and _bailiffs_" _as judges holding courts_; and also speaks of +this chapter as applicable not only to "the citie of London, specially +named for the cause aforesaid, but extended by equity to all other +privileged places," (that is, privileged to have a court of "mayor and +_bailiffs_,") "where foreign voucher is made, as to Chester, Durham, +Salop," &c.--_2 Inst._, 325-7. + +BAILIE.--In Scotch law, a municipal magistrate, corresponding with the +English _alderman_.[96]--_Burrill's Law Dictionary_. + +BAILIFFE.--_Baillif._ Fr. A bailiff: a ministerial officer with duties +similar to those of a sheriff.... _The judge of a court._ A municipal +magistrate, &c.--_Burrill's Law Dict._ + +BAILIFF.... The word _bailiff_ is of Norman origin, and was applied in +England, at an early period, (after the example, it is said, of the +French,) to the chief magistrates of counties, or shires, such as the +alderman, the reeve, or sheriff, and also of inferior jurisdictions, +such as hundreds and wapentakes.--_Spelman, voc. Balivus; 1 Bl. Com._, +344. _See Bailli_, _Ballivus_. The Latin _ballivus_ occurs, indeed, in +the laws of Edward the Confessor, but Spelman thinks it was introduced +by a later hand. _Balliva_ (bailiwick) was the word formed from +_ballivus_, to denote the extent of territory comprised within a +bailiff's jurisdiction; and _bailiwick_ is still retained in writs and +other proceedings, as the name of a sheriff's county.--_1 Bl. Com._, +344. _See Balliva._ _The office of bailiff was at first strictly, though +not exclusively, a judicial one._ In France, the word had the sense of +what Spelman calls _justitia tutelaris_. _Ballivus_ occurs frequently in +the _Regiam Majestatem_, in the sense of a _judge_.--_Spelman._ In its +sense of a _deputy_, it was formerly applied, in England, to those +officers who, by virtue of a deputation, either from the sheriff or the +lords of private jurisdictions, exercised within the hundred, or +whatever might be the limits of their bailiwick, certain _judicial_ and +ministerial functions. With the disuse of private and local +jurisdictions, the meaning of the term became commonly restricted to +such persons as were deputed by the sheriff to assist him in the merely +ministerial portion of his duty; such as the summoning of juries, and +the execution of writs.--_Brande._ ... The word _bailiff_ is also +applied in England to the chief magistrates of certain towns and +jurisdictions, to the keepers of castles, forests and other places, and +to the stewards or agents of lords of manors.--_Burrill's Law Dict._ + +"BAILIFF, (from the Lat. _ballivus_; Fr. _baillif_, i.e., _Præfectus +provinciæ_,) signifies an officer appointed for the administration of +justice within a certain district. The office, as well as the name, +appears to have been derived from the French," &c.,--_Brewster's +Encyclopedia._ + +Millar says, "The French monarchs, about this period, were not content +with the power of receiving appeals from the several courts of their +barons. An expedient was devised of sending royal _bailiffs_ into +different parts of the kingdom, with a commission to take cognizance of +all those causes in which the sovereign was interested, and in reality +for the purpose of abridging and limiting the subordinate jurisdiction +of the neighboring feudal superiors. By an edict of Phillip Augustus, in +the year 1190, those _bailiffs_ were appointed in all the principal +towns of the kingdom."--_Millar's Hist. View of the Eng. Gov._, vol. +ii., ch. 3, p. 126. + + "BAILIFF-_office_.--Magistrates who formerly administered justice in + the parliaments or courts of France, answering to the English + sheriffs, as mentioned by Bracton."--_Bouvier's Law Dict._ + + "There be several officers called _bailiffs_, whose offices and + employments seem quite different from each other.... The chief + magistrate, in divers ancient corporations, are called _bailiffs_, as + in Ipswich, Yarmouth, Colchester, &c. There are, likewise, officers + of the forest, who are termed bailiffs."--_1 Bacon's Abridgment_, + 498-9. + + "BAILIFF signifies a keeper or superintendent, and is directly + derived from the French word _bailli_, which appears to come from the + word _balivus_, and that from _bagalus_, a Latin word signifying + generally a governor, tutor, or superintendent.... The French word + _bailli_ is thus explained by Richelet, (_Dictionaire_, &c.:) + _Bailli._--_He who in a province has the superintendence of justice, + who is the ordinary judge of the nobles_, who is their head for the + _ban_ and _arriere ban_,[97] and who maintains the right and property + of others against those who attack them.... All the various officers + who are called by this name, though differing as to the nature of + their employments, seem to have some kind of superintendence + intrusted to them by their superior."--_Political Dictionary._ + +"BAILIFF, _balivus_. From the French word _bayliff_, that is, _præfectus +provinciæ_, and as the name, so the office itself was answerable to that +of France, where there were eight parliaments, which were high courts +from whence there lay no appeal, and within the precincts of the several +parts of that kingdom which belonged to each parliament, _there were +several provinces to which justice was administered by certain officers +called bailiffs_; and in England we have several counties in which +justice hath been, and still is, in small suits, administered to the +inhabitants by the officer whom we now call _sheriff_, or _viscount_; +(one of which names descends from the Saxons, the other from the +Normans.) And, though the sheriff is not called _bailiff_, yet it was +probable that was one of his names also, because the county is often +called _balliva_; as in the return of a writ, where the person is not +arrested, the sheriff saith, _infra-nominatus_, _A.B. non est inventus +in balliva mea_, &c.; (the within named A.B. is not found in my +bailiwick, &c.) And in the statute of Magna Carta, ch. 28, and 14 Ed. 3, +ch. 9, the word _bailiff_ seems to comprise as well sheriffs, as +bailiffs of hundreds. + +"_Bailies_, in Scotland, are magistrates of burghs, possessed of certain +jurisdictions, having the same power within their territory as sheriffs +in the county.... + +"As England is divided into counties, so every county is divided into +hundreds; within which, in ancient times, the people had justice +administered to them by the several officers of every hundred, which +were the _bailiffs_. And it appears by Bracton, (_lib. 3, tract_. 2, ch. +34,) that _bailiffs_ of hundreds might anciently hold plea of appeal and +approvers; but since that time the hundred courts, except certain +franchises, are swallowed in the county courts; and now the _bailiff's_ +name and office is grown into contempt, they being generally officers to +serve writs, &c., within their liberties; though, in other respects, the +name is still in good esteem, for the chief magistrates in divers towns +are called _bailiffs_; and sometimes the persons to whom the king's +castles are committed are termed _bailiffs_, as the _bailiff_ of Dover +Castle, &c. + +"Of the ordinary _bailiffs_ there are several sorts, viz., _bailiffs_ of +liberties; sheriffs' _bailiffs_; _bailiffs_ of lords of manors; +_bailiffs_ of husbandry, &c.... + +"_Bailiffs_ of liberties or franchises are to be sworn to take +distresses, truly impanel jurors, make returns by indenture between them +and sheriffs, &c.... + +"_Bailiffs of courts baron_ summon those courts, and execute the process +thereof.... + +"Besides these, there are also _bailiffs of the forest_ ..."--_Jacob's +Law Dict. Tomlin's do._ + +"BAILIWICK, _balliva_,--is not only taken for the county, but signifies +generally that liberty which is exempted from the sheriff of the county, +over which the lord of the liberty appointeth a _bailiff_, with such +powers within his precinct as an under-sheriff exerciseth under the +sheriff of the county; such as the _bailiff_ of Westminster."--_Jacob's +Law Dict. Tomlin's do._ + +"_A bailiff of a Leet, Court-baron, Manor, Balivus Letæ, Baronis, +Manerii._--He is one that is appointed by the lord, or his steward, +within every manor, to do such offices as appertain thereunto, as to +summon the court, warn the tenants and resiants; also, to summon the +Leet and Homage, levy fines, and make distresses, &c., of which you may +read at large in _Kitchen's Court-leet and Court-baron_."--_A Law +Dictionary, anonymous_, (_in Suffolk Law Library_.) + +"BAILIFF.--In England an officer appointed by the sheriff. Bailiffs are +either special, and appointed, for their adroitness, to arrest persons; +or bailiffs of hundreds, who collect fines, summon juries, attend the +assizes, and execute writs and processes. _The sheriff in England is the +king's bailiff...._ + +"_The office of bailiff formerly was high and honorable in England, and +officers under that title on the continent are still invested with +important functions._"--_Webster._ + +"BAILLI, (Scotland.)--An alderman; a magistrate who is second in rank in +a royal burgh."--_Worcester._ + +"_Baili, or Bailiff._--(Sorte d'officier de justice.) A bailiff; a sort +of magistrate."--_Boyer's French Dict._ + +"By some opinions, a _bailiff_, in Magna Carta, ch. 28, signifies _any +judge_."--_Cunningham's Law Dict._ + +"BAILIFF.--In the court of the Greek emperors there was a grand +_bajulos_, first tutor of the emperor's children. The superintendent of +foreign merchants seems also to have been called _bajulos_; and, as he +was appointed by the Venetians, this title (balio) was transferred to +the Venetian ambassador. From Greece, the official _bajulos_ +(_ballivus_, _bailli_, in France; _bailiff_, in England,) was introduced +into the south of Europe, and denoted a superintendent; hence the eight +_ballivi_ of the knights of St. John, which constitute its supreme +council. In France, the royal bailiffs were commanders of the militia, +administrators or stewards of the domains, _and judges of their +districts_. In the course of time, only the first duty remained to the +bailiff; hence he was _bailli d'épée_, _and laws were administered in +his name by a lawyer, as his deputy, lieutenant de robe_. The +seigniories, with which high courts were connected, employed bailiffs, +who thus constituted, almost everywhere, _the lowest order of judges_. +From the courts of the nobility, the appellation passed to the royal +courts; from thence to the parliaments. In the greater bailiwicks of +cities of importance, Henry II. established a collegial constitution +under the name of _presidial courts_.... _The name of bailiff was +introduced into England with William I._ The counties were also called +_bailiwicks_, (_ballivæ_,) while the subdivisions were called +_hundreds_; but, as the courts of the hundreds have long since ceased, +the English bailiffs are only a kind of subordinate officers of justice, +like the French _huissiers_. These correspond very nearly to the +officers called _constables_ in the United States. Every sheriff has +some of them under him, for whom he is answerable. In some cities the +highest municipal officer yet bears this name, as the high bailiff of +Westminster. In London, the Lord Mayor is at the same time bailiff, +(which title he bore before the present became usual,) _and administers, +in this quality, the criminal jurisdiction of the city, in the court of +old Bailey_, where there are, annually, eight sittings of the court, for +the city of London and the county of Middlesex. _Usually, the recorder +of London supplies his place as judge._ In some instances the term +_bailiff_, in England, is applied to the chief magistrates of towns, or +to the commanders of particular castles, as that of Dover. The term +_baillie_, in Scotland, is applied to a judicial police-officer, having +powers very similar to those of justices of peace in the United +States."--_Encyclopædia Americana._] + +[Footnote 93: Perhaps it may be said (and such, it has already been +seen, is the opinion of Coke and others) that the chapter of Magna +Carta, that "no _bailiff_ from henceforth shall put any man to his open +law, (put him on trial,) nor to an oath (that is, an oath of +self-exculpation) upon his (the bailiff's) own accusation or testimony, +without credible witnesses brought in to prove the charge," _is itself_ +a "provision in regard to the king's justices sitting in criminal +trials," and therefore implies that _they are to sit_ in such trials. + +But, although the word _bailiff_ includes all _judicial_, as well as +other, officers, and would therefore in this case apply to the king's +justices, if they were to sit in criminal trials; yet this particular +chapter of Magna Carta evidently does not contemplate "_bailiffs_" while +acting in their _judicial_ capacity, (for they were not allowed to sit +in criminal trials at all,) but only in the character of _witnesses_; +and that the meaning of the chapter is, that the simple testimony +(simplici loquela) of "no bailiff," (of whatever kind,) unsupported by +other and "credible witnesses," shall be sufficient to put any man on +trial, or to his oath of self-exculpation.[98] + +It will be noticed that the words of this chapter are _not_, "no bailiff +_of ours_,"--that is, _of the king_,--as in some other chapters of Magna +Carta; but simply "no bailiff," &c. The prohibition, therefore, applies +to all "bailiffs,"--to those chosen by the people, as well as those +appointed by the king. And the prohibition is obviously founded upon the +idea (a very sound one in that age certainly, and probably also in this) +that public officers (whether appointed by king or people) have +generally, or at least frequently, too many interests and animosities +against accused persons, to make it safe to convict any man on their +testimony alone. + +The idea of Coke and others, that the object of this chapter was simply +to forbid _magistrates_ to put a man on trial, when there were no +witnesses against him, but only the simple accusation or testimony of +the magistrates themselves, before whom he was to be tried, is +preposterous; for that would be equivalent to supposing that magistrates +acted in the triple character of judge, jury and witnesses, _in the same +trial_; and that, therefore, _in such cases_, they needed to be +prohibited from condemning a man on their own accusation or testimony +alone. But such a provision would have been unnecessary and senseless, +for two reasons; first, because the bailiffs or magistrates had no power +to "hold pleas of the crown," still less to try or condemn a man; that +power resting wholly with the juries; second, because if bailiffs or +magistrates could try and condemn a man, without a jury, the prohibition +upon their doing so upon their own accusation or testimony alone, would +give no additional protection to the accused, so long as these same +bailiffs or magistrates were allowed to decide what weight should be +given, _both to their own testimony and that of other witnesses_; for, +if they wished to convict, they would of course decide that any +testimony, however frivolous or irrelevant, _in addition to their own_, +was sufficient. Certainly a magistrate could always procure witnesses +enough to testify to something or other, which _he himself_ could decide +to be corroborative of his own testimony. And thus the prohibition would +be defeated in fact, though observed in form.] + +[Footnote 94: In this chapter I have called the justices "_presiding_ +officers," solely for the want of a better term. They are not +"_presiding_ officers," in the sense of having any authority over the +jury; but are only assistants to, and teachers and servants of, the +jury. The foreman of the jury is properly the "presiding officer," so +far as there is such an officer at all. The sheriff has no authority +except over other persons than the jury.] + +[Footnote 95: In this extract, Palgrave seems to assume that the king +himself had a right to sit as judge, in _jury_ trials, in the _county_ +courts, in both civil and criminal cases. I apprehend he had no such +power at the _common law_, but only to sit in the trial of appeals, and +in the trial of peers, and of civil suits in which peers were parties, +and possibly in the courts of ancient demesne.] + +[Footnote 96: _Alderman_ was a title anciently given to various +_judicial_ officers, as the Alderman of all England, Alderman of the +King, Alderman of the County, Alderman of the City or Borough, Alderman +of the Hundred or Wapentake. These were all _judicial_ officers. See Law +Dictionaries.] + +[Footnote 97: "_Ban and arriere ban_, a proclamation, whereby all that +hold lands of the crown, (except some privileged officers and citizens,) +are summoned to meet at a certain place in order to serve the king in +his wars, either personally, or by proxy."--_Boyer._] + +[Footnote 98: At the common law, parties, in both civil and criminal +cases, were allowed to swear in their own behalf; and it will be so +again, if the true trial by jury should be reëstablished.] + + + + +CHAPTER VIII. + +THE FREE ADMINISTRATION OF JUSTICE. + + +The free administration of justice was a principle of the common law; +and it must necessarily be a part of every system of government which is +not designed to be an engine in the hands of the rich for the oppression +of the poor. + +In saying that the free administration of justice was a principle of the +common law, I mean only that parties were subjected to no costs for +jurors, witnesses, writs, or other necessaries for the trial, +_preliminary to the trial itself_. Consequently, no one could lose the +benefit of a trial, for the want of means to defray expenses. _But after +the trial_, the plaintiff or defendant was liable to be amerced, (by the +jury, of course,) for having troubled the court with the prosecution or +defence of an unjust suit.[99] But it is not likely that the losing +party was subjected to an amercement as a matter of course, but only in +those cases where the injustice of his cause was so evident as to make +him inexcusable in bringing it before the courts. + +All the freeholders were required to attend the courts, that they might +serve as jurors and witnesses, and do any other service that could +legally be required of them; and their attendance was paid for by the +state. In other words, their attendance and service at the courts were +part of the rents which they paid the state for their lands. + +The freeholders, who were thus required always to attend the courts, +were doubtless the only witnesses who were _usually_ required in _civil_ +causes. This was owing to the fact that, in those days, when the people +at large could neither write nor read, few contracts were put in +writing. The expedient adopted for proving contracts, was that of making +them in the presence of witnesses, who could afterwards testify to the +transactions. Most contracts in regard to lands were made at the courts, +in the presence of the freeholders there assembled.[100] + +In the king's courts it was specially provided by Magna Carta that +"justice and right" should not be "sold;" that is, that the king should +take nothing from the parties for administering justice. + +The oath of a party to the justice of his cause was all that was +necessary to entitle him to the benefit of the courts free of all +expense; (except the risk of being amerced after the trial, in case the +jury should think he deserved it.[101]) + +_This principle of the free administration of justice connects itself +necessarily with the trial by jury, because a jury could not rightfully +give judgment against any man, in either a civil or criminal case, if +they had any reason to suppose he had been unable to procure his +witnesses._ + +The true trial by jury would also compel the free administration of +justice from another necessity, viz., that of preventing private +quarrels; because, unless the government enforced a man's rights and +redressed his wrongs, _free of expense to him_, a jury would be bound to +protect him in taking the law into his own hands. A man has a natural +right to enforce his own rights and redress his own wrongs. If one man +owe another a debt, and refuse to pay it, the creditor has a natural +right to seize sufficient property of the debtor, wherever he can find +it, to satisfy the debt. If one man commit a trespass upon the person, +property or character of another, the injured party has a natural right, +either to chastise the aggressor, or to take compensation for the injury +out of his property. But as the government is an impartial party as +between these individuals, it is more likely to do _exact_ justice +between them than the injured individual himself would do. The +government, also, having more power at its command, is likely to right a +man's wrongs more peacefully than the injured party himself could do it. +If, therefore, the government will do the work of enforcing a man's +rights, and redressing his wrongs, _promptly, and free of expense to +him_, he is under a moral obligation to leave the work in the hands of +the government; but not otherwise. When the government forbids him to +enforce his own rights or redress his own wrongs, and deprives him of +all means of obtaining justice, except on the condition of his employing +the government to obtain it for him, _and of paying the government for +doing it_, the government becomes itself the protector and accomplice of +the wrong-doer. If the government will forbid a man to protect his own +rights, it is bound to do it for him, _free of expense to him_. And so +long as government refuses to do this, juries, if they knew their +duties, would protect a man in defending his own rights. + +Under the prevailing system, probably one half of the community are +virtually deprived of all protection for their rights, except what the +criminal law affords them. Courts of justice, for all civil suits, are +as effectually shut against them, as though it were done by bolts and +bars. Being forbidden to maintain their own rights by force,--as, for +instance, to compel the payment of debts,--and being unable to pay the +expenses of civil suits, they have no alternative but submission to many +acts of injustice, against which the government is bound either to +protect them, _free of expense_, or allow them to protect themselves. + +There would be the same reason in compelling a party to pay the judge +and jury for their services, that there is in compelling him to pay the +witnesses, or any other _necessary_ charges.[102] + +This compelling parties to pay the expenses of civil suits is one of the +many cases in which government is false to the fundamental principles on +which free government is based. What is the object of government, but to +protect men's rights? On what principle does a man pay his taxes to the +government, except on that of contributing his proportion towards the +necessary cost of protecting the rights of all? Yet, when his own rights +are actually invaded, the government, which he contributes to support, +instead of fulfilling its implied contract, becomes his enemy, and not +only refuses to protect his rights, (except at his own cost,) but even +forbids him to do it himself. + +All free government is founded on the theory of voluntary association; +and on the theory that all the parties to it _voluntarily_ pay their +taxes for its support, on the condition of receiving protection in +return. But the idea that any _poor_ man would voluntarily pay taxes to +build up a government, which will neither protect his rights, (except at +a cost which he cannot meet,) nor suffer himself to protect them by such +means as may be in his power, is absurd. + +Under the prevailing system, a large portion of the lawsuits determined +in courts, are mere contests of purses rather than of rights. And a +jury, sworn to decide causes "according to the evidence" produced, are +quite likely, _for aught they themselves can know_, to be deciding +merely the comparative length of the parties' purses, rather than the +intrinsic strength of their respective rights. Jurors ought to refuse to +decide a cause at all, except upon the assurance that all the evidence, +necessary to a full knowledge of the cause, is produced. This assurance +they can seldom have, unless the government itself produces all the +witnesses the parties desire. + +In criminal cases, the atrocity of accusing a man of crime, and then +condemning him unless he prove his innocence at his own charges, is so +evident that a jury could rarely, if ever, be justified in convicting a +man under such circumstances. + +But the free administration of justice is not only indispensable to the +maintenance of right between man and man; it would also promote +simplicity and stability in the laws. The mania for legislation would +be, in an important degree, restrained, if the government were compelled +to pay the expenses of all the suits that grew out of it. + +The free administration of justice would diminish and nearly extinguish +another great evil,--that of malicious _civil_ suits. It is an old +saying, that "_multi litigant in foro, non ut aliquid lucrentur, sed ut +vexant alios_." (Many litigate in court, not that they may gain +anything, but that they may harass others.) Many men, from motives of +revenge and oppression, are willing to spend their own money in +prosecuting a groundless suit, if they can thereby compel their victims, +who are less able than themselves to bear the loss, to spend money in +the defence. Under the prevailing system, in which the parties pay the +expenses of their suits, nothing but money is necessary to enable any +malicious man to commence and prosecute a groundless suit, to the +terror, injury, and perhaps ruin, of another man. In this way, a court +of justice, into which none but a conscientious _plaintiff_ certainly +should ever be allowed to enter, becomes an arena into which any rich +and revengeful oppressor may drag any man poorer than himself, and +harass, terrify, and impoverish him, to almost any extent. It is a +scandal and an outrage, that government should suffer itself to be made +an instrument, in this way, for the gratification of private malice. We +might nearly as well have no courts of justice, as to throw them open, +as we do, for such flagitious uses. Yet the evil probably admits of no +remedy except a free administration of justice. Under a free system, +plaintiffs could rarely be influenced by motives of this kind; because +they could put their victim to little or no expense, _neither pending +the suit_, (which it is the object of the oppressor to do,) nor at its +termination. Besides, if the ancient common law practice should be +adopted, of amercing a party for troubling the courts with groundless +suits, the prosecutor himself would, in the end, be likely to be amerced +by the jury, in such a manner as to make courts of justice a very +unprofitable place for a man to go to seek revenge. + +In estimating the evils of this kind, resulting from the present system, +we are to consider that they are not, by any means, confined to the +actual suits in which this kind of oppression is practised; but we are +to include all those cases in which the fear of such oppression is used +as a weapon to compel men into a surrender of their rights. + +[Footnote 99: _2 Sullivan Lectures_, 234-5. _3 Blackstone_, 274-5, 376. +Sullivan says that both plaintiffs and defendants were liable to +amercement. Blackstone speaks of plaintiffs being liable, without saying +whether defendants were so or not. What the rule really was I do not +know. There would seem to be some reason in allowing defendants to +defend themselves, _at their own charges_, without exposing themselves +to amercement in case of failure.] + +[Footnote 100: When any other witnesses than freeholders were required +in a civil suit, I am not aware of the manner in which their attendance +was procured; but it was doubtless done at the expense either of the +state or of the witnesses themselves. And it was doubtless the same in +criminal cases.] + +[Footnote 101: "All claims were established in the first stage by the +oath of the plaintiff, except when otherwise specially directed by the +law. The oath, by which any claim was supported, was called the +fore-oath, or 'Præjuramentum,' and it was the foundation of his suit. +One of the cases which did not require this initiatory confirmation, was +when cattle could be tracked into another man's land, and then the +foot-mark stood for the fore-oath."--_2 Palgrave's Rise and Progress_, +&c., 114.] + +[Footnote 102: Among the necessary expenses of suits, should be reckoned +reasonable compensation to counsel, for they are nearly or quite as +important to the administration of justice, as are judges, jurors, or +witnesses; and the universal practice of employing them, both on the +part of governments and of private persons, shows that their importance +is generally understood. As a mere matter of economy, too, it would be +wise for the government to pay them, rather than they should not be +employed; because they collect and arrange the testimony and the law +beforehand, so as to be able to present the whole case to the court and +jury intelligibly, and in a short space of time. Whereas, if they were +not employed, the court and jury would be under the necessity either of +spending much more time than now in the investigation of causes, or of +despatching them in haste, and with little regard to justice. They would +be very likely to do the latter, thus defeating the whole object of the +people in establishing courts. + +To prevent the abuse of this right, it should perhaps be left +discretionary with the jury in each case to determine whether the +counsel should receive any pay--and, if any, how much--from the +government.] + + + + +CHAPTER IX. + +THE CRIMINAL INTENT. + + +It is a maxim of the common law that there can be no crime without a +criminal intent. And it is a perfectly clear principle, although one +which judges have in a great measure overthrown in practice, that +_jurors_ are to judge of the moral intent of an accused person, and hold +him guiltless, whatever his act, unless they find him to have acted with +a criminal intent; that is, with a design to do what he knew to be +criminal. + +This principle is clear, because the question for a jury to determine +is, whether the accused be _guilty_, or _not guilty_. _Guilt_ is a +personal quality of the actor,--not _necessarily_ involved in the act, +but depending also upon the intent or motive with which the act was +done. Consequently, the jury must find that he acted from a criminal +motive, before they can declare him _guilty_. + +There is no moral justice in, nor any political necessity for, punishing +a man for any act whatever that he may have committed, if he have done +it without any criminal intent. There can be no _moral justice_ in +punishing for such an act, because, there having been no _criminal +motive_, there can have been no other motive which justice can take +cognizance of, as demanding or justifying punishment. There can be no +_political necessity_ for punishing, to warn against similar acts in +future, because, if one man have injured another, however +unintentionally, he is liable, and justly liable, to a _civil_ suit for +damages; and in this suit he will be compelled to make compensation for +the injury, notwithstanding his innocence of any intention to injure. He +must bear the consequences of his own act, instead of throwing them upon +another, however innocent he may have been of any intention to do +wrong. And the damages he will have to pay will be a sufficient warning +to him not to do the like act again. + +If it be alleged that there are crimes against the public, (as treason, +for example, or any other resistance to government,) for which private +persons can recover no damages, and that there is a political necessity +for punishing for such offences, even though the party acted +conscientiously, the answer is,--the government must bear with all +resistance that is not so clearly wrong as to give evidence of criminal +intent. In other words, the government, in all its acts, must keep +itself so _clearly_ within the limits of justice, as that twelve men, +taken at random, will all agree that it is in the right, or it must +incur the risk of resistance, without any power to punish it. This is +the mode in which the trial by jury operates to prevent the government +from falling into the hands of a party, or a faction, and to keep it +within such limits as _all_, or substantially _all_, the people are +agreed that it may occupy. + +This necessity for a criminal intent, to justify conviction, is proved +by the issue which the jury are to try, and the verdict they are to +pronounce. The "issue" they are to try is, "_guilty_" or "_not guilty_." +And those are the terms they are required to use in rendering their +verdicts. But it is a plain falsehood to say that a man is "_guilty_," +unless he have done an act which he knew to be criminal. + +This necessity for a criminal intent--in other words, for _guilt_--as a +preliminary to conviction, makes it impossible that a man can be +rightfully convicted for an act that is intrinsically innocent, though +forbidden by the government; because guilt is an intrinsic quality of +actions and motives, and not one that can be imparted to them by +arbitrary legislation. All the efforts of the government, therefore, to +"_make offences by statute_," out of acts that are not criminal by +nature, must necessarily be ineffectual, unless a jury will declare a +man "_guilty_" for an act that is really innocent. + +The corruption of judges, in their attempts to uphold the arbitrary +authority of the government, by procuring the conviction of individuals +for acts innocent in themselves, and forbidden only by some tyrannical +statute, and the commission of which therefore indicates no criminal +intent, is very apparent. + +To accomplish this object, they have in modern times held it to be +unnecessary that indictments should charge, as by the common law they +were required to do, that an act was done "_wickedly_," "_feloniously_," +"_with malice aforethought_," or in any other manner that implied a +criminal intent, without which there can be no criminality; but that it +is sufficient to charge simply that it was done "_contrary to the form +of the statute in such case made and provided_." This form of indictment +proceeds plainly upon the assumption that the government is absolute, +and that it has authority to prohibit any act it pleases, however +innocent in its nature the act may be. Judges have been driven to the +alternative of either sanctioning this new form of indictment, (which +they never had any constitutional right to sanction,) or of seeing the +authority of many of the statutes of the government fall to the ground; +because the acts forbidden by the statutes were so plainly innocent in +their nature, that even the government itself had not the face to allege +that the commission of them implied or indicated any criminal intent. + +To get rid of the necessity of showing a criminal intent, and thereby +further to enslave the people, by reducing them to the necessity of a +blind, unreasoning submission to the arbitrary will of the government, +and of a surrender of all right, on their own part, to judge what are +their constitutional and natural rights and liberties, courts have +invented another idea, which they have incorporated among the pretended +_maxims_, upon which they act in criminal trials, viz., that "_ignorance +of the law excuses no one_." As if it were in the nature of things +possible that there could be an excuse more absolute and complete. What +else than ignorance of the law is it that excuses persons under the +years of discretion, and men of imbecile minds? What else than ignorance +of the law is it that excuses judges themselves for all their erroneous +decisions? Nothing. They are every day committing errors, which would be +crimes, but for their ignorance of the law. And yet these same judges, +who claim to be _learned_ in the law, and who yet could not hold their +offices for a day, but for the allowance which the law makes for their +ignorance, are continually asserting it to be a "maxim" that "ignorance +of the law excuses no one;" (by which, of course, they really mean that +it excuses no one but themselves; and especially that it excuses no +_unlearned_ man, who comes before them charged with crime.) + +This preposterous doctrine, that "ignorance of the law excuses no one," +is asserted by courts because it is an indispensable one to the +maintenance of absolute power in the government. It is indispensable for +this purpose, because, if it be once admitted that the people _have_ any +rights and liberties which the government cannot lawfully take from +them, then the question arises in regard to every statute of the +government, whether it be law, or not; that is, whether it infringe, or +not, the rights and liberties of the people. Of this question every man +must of course judge according to the light in his own mind. And no man +can be convicted unless the jury find, not only that the statute is +_law_,--that it does _not_ infringe the rights and liberties of the +people,--but also that it was so clearly law, so clearly consistent with +the rights and liberties of the people, as that the individual himself, +who transgressed it, _knew it to be so_, and therefore had no moral +excuse for transgressing it. Governments see that if ignorance of the +law were allowed to excuse a man for any act whatever, it must excuse +him for transgressing all statutes whatsoever, which he himself thinks +inconsistent with his rights and liberties. But such a doctrine would of +course be inconsistent with the maintenance of arbitrary power by the +government; and hence governments will not allow the plea, although they +will not confess their true reasons for disallowing it. + +The only reasons, (if they deserve the name of reasons), that I ever +knew given for the doctrine that ignorance of the law excuses no one, +are these: + + 1. "The reason for the maxim is that of necessity. It prevails, 'not + that all men know the law, but because it is an excuse which every + man will make, and no man can tell how to confute him.'--_Selden_, + (as quoted in the 2d edition of _Starkie on Slander_, Prelim. Disc., + p. 140, note.)"--_Law Magazine_, (_London_,) vol. 27, p. 97. + +This reason impliedly admits that ignorance of the law is, +_intrinsically_, an ample and sufficient excuse for a crime; and that +the excuse ought to be allowed, if the fact of ignorance could but be +ascertained. But it asserts that this fact is incapable of being +ascertained, and that therefore there is a necessity for punishing the +ignorant and the knowing--that is, the innocent and the guilty--without +discrimination. + +This reason is worthy of the doctrine it is used to uphold; as if a plea +of ignorance, any more than any other plea, must necessarily be believed +simply because it is urged; and as if it were not a common and every-day +practice of courts and juries, in both civil and criminal cases, to +determine the mental capacity of individuals; as, for example, to +determine whether they are of sufficient mental capacity to make +reasonable contracts; whether they are lunatic; whether they are +_compotes mentis_, "of sound mind and memory," &c. &c. And there is +obviously no more difficulty in a jury's determining whether an accused +person knew the law in a criminal case, than there is in determining any +of these other questions that are continually determined in regard to a +man's mental capacity. For the question to be settled by the jury is not +whether the accused person knew the particular _penalty_ attached to his +act, (for at common law no one knew what penalty a _jury_ would attach +to an offence,) but whether he knew that his act was _intrinsically +criminal_. If it were _intrinsically criminal_, it was criminal at +common law. If it was not intrinsically criminal, it was not criminal at +common law. (At least, such was the general principle of the common law. +There may have been exceptions in practice, owing to the fact that the +opinions of men, as to what was intrinsically criminal, may not have +been in all cases correct.) + +A jury, then, in judging whether an accused person knew his act to be +illegal, were bound first to use their own judgments, as to whether the +act were _intrinsically_ criminal. If their own judgments told them the +act was _intrinsically_ and _clearly_ criminal, they would naturally and +reasonably infer that the accused also understood that it was +intrinsically criminal, (and consequently illegal,) unless it should +appear that he was either below themselves in the scale of intellect, or +had had less opportunities of knowing what acts were criminal. In +short, they would judge, from any and every means they might have of +judging; and if they had any reasonable doubt that he knew his act to be +criminal in itself, they would be bound to acquit him. + +The second reason that has been offered for the doctrine that ignorance +of the law excuses no one, is this: + + "Ignorance of the municipal law of the kingdom, or of the penalty + thereby inflicted on offenders, doth not excuse any that is of the + age of discretion and compos mentis, from the penalty of the breach + of it; because every person, of the age of discretion and compos + mentis, _is bound to know the law_, and presumed to do so. + _Ignorantia eorum, quæ quis scire tenetur non excusat_." (Ignorance + of those things which every one is bound to know, does not + excuse.)--_1 Hale's Pleas of the Crown_, 42. _Doctor and Student, + Dialog. 2_, ch. 46. _Law Magazine_, (_London_,) vol. 27, p. 97. + +The sum of this reason is, that ignorance of the law excuses no one, +(who is of the age of discretion and is compos mentis,) because every +such person "_is bound to know the law_." But this is giving no reason +at all for the doctrine, since saying that a man "is bound to know the +law," is only saying, _in another form_, that "ignorance of the law does +not excuse him." There is no difference at all in the two ideas. To say, +therefore, that "ignorance of the law excuses no one, _because_ every +one is bound to know the law," is only equivalent to saying that +"ignorance of the law excuses no one, _because_ ignorance of the law +excuses no one." It is merely reässerting the doctrine, without giving +any reason at all. + +And yet these reasons, which are really no reasons at all, are the only +ones, so far as I know, that have ever been offered for this absurd and +brutal doctrine. + +The idea suggested, that "the age of discretion" determines the guilt of +a person,--that there is a particular age, prior to which _all_ persons +alike should be held incapable of knowing _any_ crime, and subsequent to +which _all_ persons alike should be held capable of knowing _all_ +crimes,--is another of this most ridiculous nest of ideas. All mankind +acquire their knowledge of crimes, as they do of other things, +_gradually_. Some they learn at an early age; others not till a later +one. One individual acquires a knowledge of crimes, as he does of +arithmetic, at an earlier age than others do. And to apply the same +presumption to all, on the ground of age alone, is not only gross +injustice, but gross folly. A universal presumption might, with nearly +or quite as much reason, be founded upon weight, or height, as upon +age.[103] + +This doctrine, that "ignorance of the law excuses no one," is constantly +repeated in the form that "every one is bound to know the law." The +doctrine is true in civil matters, especially in contracts, so far as +this: that no man, who has the _ordinary_ capacity to make reasonable +contracts, can escape the consequences of his own agreement, on the +ground that he did not know the law applicable to it. When a man makes a +contract, he gives the other party rights; and he must of necessity +judge for himself, and take his own risk, as to what those rights +are,--otherwise the contract would not be binding, and men could not +make contracts that would convey rights to each other. Besides, the +capacity to make reasonable contracts, _implies and includes_ a +capacity to form a reasonable judgment as to the law applicable to them. +But in _criminal_ matters, where the question is one of punishment, or +not; where no second party has acquired any right to have the crime +punished, unless it were committed with criminal intent, (but only to +have it compensated for by damages in a civil suit;) and when the +criminal intent is the only moral justification for the punishment, the +principle does not apply, and a man is bound to know the law _only as +well as he reasonably may_. The criminal law requires neither +impossibilities nor extraordinaries of any one. It requires only +thoughtfulness and a good conscience. It requires only that a man fairly +and properly use the judgment he possesses, and the means he has of +learning his duty. It requires of him only the same care to know his +duty in regard to the law, that he is morally bound to use in other +matters of equal importance. _And this care it does require of him._ Any +ignorance of the law, therefore, that is unnecessary, or that arises +from indifference or disregard of one's duty, is no excuse. An accused +person, therefore, may be rightfully held responsible for such a +knowledge of the law as is common to men in general, having no greater +natural capacities than himself, and no greater opportunities for +learning the law. And he can rightfully be held to no greater knowledge +of the law than this. To hold him responsible for a greater knowledge of +the law than is common to mankind, when other things are equal, would be +gross injustice and cruelty. The mass of mankind can give but little of +their attention to acquiring a knowledge of the law. Their other duties +in life forbid it. Of course, they cannot investigate abstruse or +difficult questions. All that can rightfully be required of each of +them, then, is that he exercise such a candid and conscientious judgment +as it is common for mankind generally to exercise in such matters. If he +have done this, it would be monstrous to punish him criminally for his +errors; errors not of conscience, but only of judgment. It would also be +contrary to the first principles of a free government (that is, a +government formed by voluntary association) to punish men in such cases, +because it would be absurd to suppose that any man would voluntarily +assist to establish or support a government that would punish himself +for acts which he himself did not know to be crimes. But a man may +reasonably unite with his fellow-men to maintain a government to punish +those acts which he himself considers criminal, and may reasonably +acquiesce in his own liability to be punished for such acts. As those +are the only grounds on which any one can be supposed to render any +voluntary support to a government, it follows that a government formed +by voluntary association, and of course having no powers except such as +_all_ the associates have consented that it may have, can have no power +to punish a man for acts which he did not himself know to be criminal. + +The safety of society, which is the only object of the criminal law, +requires only that those acts _which are understood by mankind at large +to be intrinsically criminal_, should be punished as crimes. The +remaining few (if there are any) may safely be left to go unpunished. +Nor does the safety of society require that any individuals, other than +those who have sufficient mental capacity to understand that their acts +are criminal, should be criminally punished. All others may safely be +left to their liability, under the _civil_ law, to compensate for their +unintentional wrongs. + +The only real object of this absurd and atrocious doctrine, that +"ignorance of the law (that is, of crime) excuses no one," and that +"every one is bound to know the _criminal_ law," (that is, bound to know +what is a crime,) is to maintain an entirely arbitrary authority on the +part of the government, and to deny to the people all right to judge for +themselves what their own rights and liberties are. In other words, the +whole object of the doctrine is to deny to the people themselves all +right to judge what statutes and other acts of the government are +consistent or inconsistent with their own rights and liberties; and thus +to reduce the people to the condition of mere slaves to a despotic +power, such as the people themselves would never have voluntarily +established, and the justice of whose laws the people themselves cannot +understand. + +Under the true trial by jury all tyranny of this kind would be +abolished. A jury would not only judge what acts were really criminal, +but they would judge of the mental capacity of an accused person, and of +his opportunities for understanding the true character of his conduct. +In short, they would judge of his moral intent from all the +circumstances of the case, and acquit him, if they had any reasonable +doubt that he knew that he was committing a crime.[104] + +[Footnote 103: This presumption, founded upon age alone, is as absurd in +civil matters as in criminal. What can be more entirely ludicrous than +the idea that all men (not manifestly imbecile) become mentally +competent to make all contracts whatsoever on the day they become +twenty-one years of age?--and that, previous to that day, no man becomes +competent to make any contract whatever, except for the present supply +of the most obvious wants of nature? In reason, a man's _legal_ +competency to make _binding_ contracts, in any and every case whatever, +depends wholly upon his _mental_ capacity to make _reasonable_ contracts +in each particular case. It of course requires more capacity to make a +reasonable contract in some cases than in others. It requires, for +example, more capacity to make a reasonable contract in the purchase of +a large estate, than in the purchase of a pair of shoes. But the mental +capacity to make a reasonable contract, in any particular case, is, in +reason, the only legal criterion of the legal competency to make a +binding contract in that case. The age, whether more or less than +twenty-one years, is of no legal consequence whatever, except that it is +entitled to some consideration as _evidence of capacity_. + +It may be mentioned, in this connection, that the rules that prevail, +that every man is entitled to freedom from parental authority at +twenty-one years of age, and no one before that age, are of the same +class of absurdities with those that have been mentioned. The only +ground on which a parent is ever entitled to exercise authority over his +child, is that the child is incapable of taking reasonable care of +himself. The child would be entitled to his freedom from his birth, if +he were at that time capable of taking reasonable care of himself. Some +become capable of taking care of themselves at an earlier age than +others. And whenever any one becomes capable of taking reasonable care +of himself, and not until then, he is entitled to his freedom, be his +age more or less. + +These principles would prevail under the true trial by jury, the jury +being the judges of the capacity of every individual whose capacity +should be called in question.] + +[Footnote 104: In contrast to the doctrines of the text, it may be +proper to present more distinctly the doctrines that are maintained by +judges, and that prevail in courts of justice. + +Of course, no judge, either of the present day, or perhaps within the +last five hundred years, has admitted the right of a jury to judge of +the _justice_ of a law, or to hold any law invalid for its injustice. +Every judge asserts the power of the government to punish for acts that +are intrinsically innocent, and which therefore involve or evince no +criminal intent. To accommodate the administration of law to this +principle, all judges, so far as I am aware, hold it to be unnecessary +that an indictment should charge, or that a jury should find, that an +act was done with a criminal intent, except in those cases where the act +is _malum in se_,--criminal in itself. In all other cases, so far as I +am aware, they hold it sufficient that the indictment charge, and +consequently that the jury find, simply that the act was done "contrary +to the form of the statute in such case made and provided;" in other +words, contrary to the orders of the government. + +All these doctrines prevail universally among judges, and are, I think, +uniformly practised upon in courts of justice; and they plainly involve +the most absolute despotism on the part of the government. + +But there is still another doctrine that extensively, and perhaps most +generally, prevails in practice, although judges are not agreed in +regard to its soundness. It is this: that it is not even necessary that +the jury should see or know, _for themselves_, what the law _is_ that is +charged to have been violated; nor to see or know, _for themselves_, +that the act charged was in violation of any law whatever;--but that it +is sufficient that they be simply _told by the judge_ that any act +whatever, charged in an indictment, is in violation of law, and that +they are then bound blindly to receive the declaration as true, and +convict a man accordingly, if they find that he has done the act +charged. + +This doctrine is adopted by many among the most eminent judges, and the +reasons for it are thus given by Lord Mansfield: + + "They (the jury) do not know, and are not presumed to know, the law. + They are not sworn to decide the law;[105] they are not required to + do it.... The jury ought not to assume the jurisdiction of law. They + do not know, and are not presumed to know, anything of the matter. + They do not understand the language in which it is conceived, or the + meaning of the terms. They have no rule to go by but their passions + and wishes."--_3 Term Rep._, 428, note. + +What is this but saying that the people, who are supposed to be +represented in juries, and who institute and support the government, (of +course for the protection of their own rights and liberties, _as they +understand them_, for plainly no other motive can be attributed to +them,) are really the slaves of a despotic power, whose arbitrary +commands even they are not supposed competent to understand, but for the +transgression of which they are nevertheless to be punished as +criminals? + +This is plainly the sum of the doctrine, because the jury are the peers +(equals) of the accused, and are therefore supposed to know the law as +well as he does, and as well as it is known by the people at large. If +_they_ (the jury) are not presumed to know the law, neither the accused +nor the people at large can be presumed to know it. Hence, it follows +that one principle of the _true_ trial by jury is, that no accused +person shall be held responsible for any other or greater knowledge of +the law than is common to his political equals, who will generally be +men of nearly similar condition in life. But the doctrine of Mansfield +is, that the body of the people, from whom jurors are taken, are +responsible to a law, _which it is agreed they cannot understand_. What +is this but despotism?--and not merely despotism, but insult and +oppression of the intensest kind? + +This doctrine of Mansfield is the doctrine of all who deny the right of +juries to judge of the law, although all may not choose to express it in +so blunt and unambiguous terms. But the doctrine evidently admits of no +other interpretation or defence.] + +[Footnote 105: This declaration of Mansfield, that juries in England +"are not sworn to decide the law" in criminal cases, is a plain +falsehood. They are sworn to try the whole case at issue between the +king and the prisoner, and that includes the law as well as the fact. +See _juror's oath_, page 86.] + + + + +CHAPTER X. + +MORAL CONSIDERATIONS FOR JURORS. + + +The trial by jury must, if possible, be construed to be such that a man +can rightfully sit in a jury, and unite with his fellows in giving +judgment. But no man can rightfully do this, unless he hold in his own +hand alone a veto upon any judgment or sentence whatever to be rendered +by the jury against a defendant, which veto he must be permitted to use +according to his own discretion and conscience, and not bound to use +according to the dictation of either legislatures or judges. + +The prevalent idea, that a juror may, at the mere dictation of a +legislature or a judge, and without the concurrence of his own +conscience or understanding, declare a man "_guilty_," and thus in +effect license the government to punish him; and that the legislature or +the judge, and not himself, has in that case all the moral +responsibility for the correctness of the principles on which the +judgment was rendered, is one of the many gross impostures by which it +could hardly have been supposed that any sane man could ever have been +deluded, but which governments have nevertheless succeeded in inducing +the people at large to receive and act upon. + +As a moral proposition, it is perfectly self-evident that, unless juries +have all the legal rights that have been claimed for them in the +preceding chapters,--that is, the rights of judging what the law is, +whether the law be a just one, what evidence is admissible, what weight +the evidence is entitled to, whether an act were done with a criminal +intent, and the right also to _limit_ the sentence, free of all +dictation from any quarter,--they have no _moral_ right to sit in the +trial at all, and cannot do so without making themselves accomplices in +any injustice that they may have reason to believe may result from +their verdict. It is absurd to say that they have no moral +responsibility for the use that may be made of their verdict by the +government, when they have reason to suppose it will be used for +purposes of injustice. + +It is, for instance, manifestly absurd to say that jurors have no moral +responsibility for the enforcement of an unjust law, when they consent +to render a verdict of _guilty_ for the transgression of it; which +verdict they know, or have good reason to believe, will be used by the +government as a justification for inflicting a penalty. + +It is absurd, also, to say that jurors have no moral responsibility for +a punishment inflicted upon a man _against law_, when, at the dictation +of a judge as to what the law is, they have consented to render a +verdict against their own opinions of the law. + +It is absurd, too, to say that jurors have no moral responsibility for +the conviction and punishment of an innocent man, when they consent to +render a verdict against him on the strength of evidence, or laws of +evidence, dictated to them by the court, if any evidence or laws of +evidence have been excluded, which _they_ (the jurors) think ought to +have been admitted in his defence. + +It is absurd to say that jurors have no moral responsibility for +rendering a verdict of "_guilty_" against a man, for an act which he did +not know to be a crime, and in the commission of which, therefore, he +could have had no criminal intent, in obedience to the instructions of +courts that "ignorance of the law (that is, of crime) excuses no one." + +It is absurd, also, to say that jurors have no moral responsibility for +any cruel or unreasonable _sentence_ that may be inflicted even upon a +_guilty_ man, when they consent to render a verdict which they have +reason to believe will be used by the government as a justification for +the infliction of such sentence. + +The consequence is, that jurors must have the whole case in their hands, +and judge of law, evidence, and sentence, or they incur the moral +responsibility of accomplices in any injustice which they have reason to +believe will be done by the government on the authority of their +verdict. + +The same principles apply to civil cases as to criminal. If a jury +consent, at the dictation of the court, as to either law or evidence, to +render a verdict, on the strength of which they have reason to believe +that a man's property will be taken from him and given to another, +against their own notions of justice, they make themselves morally +responsible for the wrong. + +Every man, therefore, ought to refuse to sit in a jury, and to take the +oath of a juror, unless the form of the oath be such as to allow him to +use his own judgment, on every part of the case, free of all dictation +whatsoever, and to hold in his own hand a veto upon any verdict that can +be rendered against a defendant, and any sentence that can be inflicted +upon him, even if he be guilty. + +Of course, no man can rightfully take an oath as juror, to try a case +"according to law," (if by law be meant anything other than his own +ideas of justice,) nor "according to the law and the evidence, _as they +shall be given him_." Nor can he rightfully take an oath even to try a +case "_according to the evidence_," because in all cases he may have +good reason to believe that a party has been unable to produce all the +evidence legitimately entitled to be received. The only oath which it +would seem that a man can rightfully take as juror, in either a civil or +criminal case, is, that he "will try the case _according to his +conscience_." Of course, the form may admit of variation, but this +should be the substance. Such, we have seen, were the ancient common law +oaths. + + + + +CHAPTER XI. + +AUTHORITY OF MAGNA CARTA. + + +Probably no political compact between king and people was ever entered +into in a manner to settle more authoritatively the fundamental law of a +nation, than was Magna Carta. Probably no people were ever more united +and resolute in demanding from their king a definite and unambiguous +acknowledgment of their rights and liberties, than were the English at +that time. Probably no king was ever more completely stripped of all +power to maintain his throne, and at the same time resist the demands of +his people, than was John on the 15th day of June, 1215. Probably no +king ever consented, more deliberately or explicitly, to hold his throne +subject to specific and enumerated limitations upon his power, than did +John when he put his seal to the Great Charter of the Liberties of +England. And if any political compact between king and people was ever +valid to settle the liberties of the people, or to limit the power of +the crown, that compact is now to be found in Magna Carta. If, +therefore, the constitutional authority of Magna Carta had rested solely +upon the compact of John with his people, that authority would have been +entitled to stand forever as the supreme law of the land, unless revoked +by the will of the people themselves. + +But the authority of Magna Carta does not rest alone upon the compact +with _John_. When, in the next year, (1216,) his son, Henry III., came +to the throne, the charter was ratified by him, and again in 1217, and +again in 1225, in substantially the same form, and especially without +allowing any new powers, legislative, judicial, or executive, to the +king or his judges, and without detracting in the least from the powers +of the jury. And from the latter date to this, the charter has remained +unchanged. + +In the course of two hundred years the charter was confirmed by Henry +and his successors more than thirty times. And although they were guilty +of numerous and almost continual breaches of it, and were constantly +seeking to evade it, yet such were the spirit, vigilance and courage of +the nation, that the kings held their thrones only on the condition of +their renewed and solemn promises of observance. And it was not until +1429, (as will be more fully shown hereafter,) when a truce between +themselves, and a formal combination against the mass of the people, had +been entered into, by the king, the nobility, and the "_forty shilling +freeholders_," (a class whom Mackintosh designates as "_a few +freeholders then accounted wealthy_,"[106]) by the exclusion of all +others than such freeholders from all voice in the election of knights +to represent the counties in the House of Commons, that a repetition of +these confirmations of Magna Carta ceased to be demanded and +obtained.[107] + +The terms and the formalities of some of these "confirmations" make them +worthy of insertion at length. + +Hume thus describes one which took place in the 38th year of Henry III. +(1253): + + "But as they (the barons) had experienced his (the king's) frequent + breach of promise, they required that he should ratify the Great + Charter in a manner still more authentic and solemn than any which he + had hitherto employed. All the prelates and abbots were assembled. + They held burning tapers in their hands. The Great Charter was read + before them. They denounced the sentence of excommunication against + every one who should thenceforth violate that fundamental law. They + threw their tapers on the ground, and exclaimed, _May the soul of + every one who incurs this sentence so stink and corrupt in hell!_ The + king bore a part in this ceremony, and subjoined, 'So help me God! I + will keep all these articles inviolate, as I am a man, as I am a + Christian, as I am a knight, and as I am a king crowned and + anointed.'"--_Hume_, ch. 12. See also _Blackstone's Introd. to the + Charters. Black. Law Tracts_, Oxford ed., p. 332. _Mackintosh's Hist. + of Eng._, ch. 3. _Lardner's Cab. Cyc._, vol. 45, p. 233-4. + +The following is the form of "the sentence of excommunication" referred +to by Hume: + + "_The Sentence of Curse, Given by the Bishops, against the Breakers + of the Charters._ + + "The year of our Lord a thousand two hundred and fifty-three, the + third day of May, in the great Hall of the King at Westminster, _in + the presence, and by the assent, of the Lord Henry, by the Grace of + God King of England_, and the Lords Richard, Earl of Cornwall, his + brother, Roger (Bigot) Earl of Norfolk and Suffolk, marshal of + England, Humphrey, Earl of Hereford, Henry, Earl of Oxford, John, + Earl of Warwick, and other estates of the Realm of England: We, + Boniface, by the mercy of God Archbishop of Canterbury, Primate of + all England, F. of London, H. of Ely, S. of Worcester, E. of Lincoln, + W. of Norwich, P. of Hereford, W. of Salisbury, W. of Durham, R. of + Exeter, M. of Carlisle, W. of Bath, E. of Rochester, T. of Saint + David's, Bishops, apparelled in Pontificals, with tapers burning, + against the breakers of the Church's Liberties, and of the Liberties + or free customs of the Realm of England, and especially of those + which are contained in the Charter of the Common Liberties of the + Realm, and the Charter of the Forest, have solemnly denounced the + sentence of Excommunication in this form. By the authority of + Almighty God, the Father, the Son, and the Holy Ghost, and of the + glorious Mother of God, and perpetual Virgin Mary, of the blessed + Apostles Peter and Paul, and of all apostles, of the blessed Thomas, + Archbishop and Martyr, and of all martyrs, of blessed Edward of + England, and of all Confessors and virgins, and of all the saints of + heaven: We excommunicate, accurse, and from the thresholds + (liminibus) of our Holy Mother the Church, We sequester, all those + that hereafter willingly and maliciously deprive or spoil the Church + of her right: And all those that by any craft or wiliness do violate, + break, diminish, or change the Church's Liberties, or the ancient + approved customs of the Realm, and especially the Liberties and free + Customs contained in the Charters of the Common Liberties, and of the + Forest, conceded by our Lord the King, to Archbishops, Bishops, and + other Prelates of England; and likewise to the Earls, Barons, + Knights, and other Freeholders of the Realm: And all that secretly, + or openly, by deed, word, or counsel, _do make statutes, or observe + them being made_, and that bring in Customs, or keep them when they + be brought in, against the said Liberties, or any of them, the + Writers and Counsellors of said statutes, and the Executors of them, + and all those that shall presume to judge according to them. All and + every which persons before mentioned, that wittingly shall commit + anything of the premises, let them well know that they incur the + aforesaid sentence, _ipso facto_, (i.e., upon the deed being done.) + And those that ignorantly do so, and be admonished, except they + reform themselves within fifteen days after the time of the + admonition, and make full satisfaction for that they have done, at + the will of the ordinary, shall be from that time forth included in + the same sentence. And with the same sentence we burden all those + that presume to perturb the peace of our sovereign Lord the King, and + of the Realm. To the perpetual memory of which thing, We, the + aforesaid Prelates, have put our seals to these presents."--_Statutes + of the Realm_, vol. 1, p. 6. _Ruffhead's Statutes_, vol. 1, p. 20. + +One of the Confirmations of the Charters, by Edward I., was by statute, +in the 25th year of his reign, (1297,) in the following terms. The +statute is usually entitled "_Confirmatio Cartarum_," (Confirmation of +the Charters.) + + _Ch. 1._ "Edward, by the Grace of God, King of England, Lord of + Ireland, and Duke of Guyan, To all those that these presents shall + hear or see, Greeting. Know ye, that We, to the honor of God, and of + Holy Church, and to the profit of our Realm, have granted, for us and + our heirs, that the Charter of Liberties, and the Charter of the + Forest, which were made by common assent of all the Realm, in the + time of King Henry our Father, shall be kept in every point without + breach. And we will that the same Charters shall be sent under our + seal, as well to our justices of the Forest, as to others, and to all + Sheriffs of shires, and to all our other officers, and to all our + cities throughout the Realm, together with our writs, in the which it + shall be contained, that they cause the aforesaid Charters to be + published, and to declare to the people that We have confirmed them + at all points; and to our Justices, Sheriffs, Mayors, and other + ministers, which under us have the Laws of our Land to guide, that + they allow the same Charters, in all their points, in pleas before + them, and in judgment; that is, to wit, the Great Charter as the + Common Law, and the Charter of the Forest for the wealth of our + Realm. + + _Ch. 2._ "And we will that if any judgment be given from henceforth + contrary to the points of the charters aforesaid by the justices, or + by any others our ministers that hold plea before them, against the + points of the Charters, it shall be undone and holden for naught. + + _Ch. 3._ "And we will, that the same Charters shall be sent, under + our seal, to Cathedral Churches throughout our Realm, there to + remain, and shall be read before the people two times in the year. + + _Ch. 4._ "And that all Archbishops and Bishops shall pronounce the + sentence of excommunication against all those that by word, deed, or + counsel, do contrary to the foresaid charters, or that in any point + break or undo them. And that the said Curses be twice a year + denounced and published by the prelates aforesaid. And if the same + prelates, or any of them, be remiss in the denunciation of the said + sentences, the Archbishops of Canterbury and York, for the time + being, shall compel and distrain them to make the denunciation in the + form aforesaid."--_St. 25 Edward I._, (1297.) _Statutes of the + Realm_, vol. 1, p. 123. + +It is unnecessary to repeat the terms of the various confirmations, most +of which were less formal than those that have been given, though of +course equally authoritative. Most of them are brief, and in the form of +a simple statute, or promise, to the effect that "The Great Charter, and +the Charter of the Forest, shall be firmly kept and maintained in all +points." They are to be found printed with the other statutes of the +realm. One of them, after having "again granted, renewed and confirmed" +the charters, requires as follows: + + "That the Charters be delivered to every sheriff of England under the + king's seal, to be read four times in the year before the people in + the full county," (that is, at the county court,) "that is, to wit, + the next county (court) after the feast of Saint Michael, and the + next county (court) after Christmas, and at the next county (court) + after Easter, and at the next county (court) after the feast of Saint + John."--_28 Edward I._, ch. 1, (1300.) + + Lingard says, "The Charter was ratified four times by Henry III., + twice by Edward I., fifteen times by Edward III., seven times by + Richard II., six times by Henry IV., and once by Henry V.;" making + thirty-five times in all.--_3 Lingard_, 50, note, Philad. ed. + +Coke says Magna Carta was confirmed thirty-two times.--Preface_ to_ 2 +_Inst_., p. 6. + + Lingard calls these "thirty-five successive ratifications" of the + charter, "a sufficient proof how much its provisions were abhorred + by the sovereign, and how highly they were prized by the nation."--_3 + Lingard_, 50. + + Mackintosh says, "For almost five centuries (that is, until 1688) it + (Magna Carta) was appealed to as the decisive authority on behalf of + the people, though commonly so far only as the necessities of each + case demanded."--_Mackintosh's Hist. of Eng._ ch. 3. _45 Lardner's + Cab. Cyc._, 221. + +Coke, who has labored so hard to overthrow the most vital principles of +Magna Carta, and who, therefore, ought to be considered good authority +when he speaks in its favor,[108] says: + + "It is called Magna Carta, not that it is great in quantity, for + there be many voluminous charters commonly passed, specially in these + later times, longer than this is; nor comparatively in respect that + it is greater than _Charta de Foresta_, but in respect of the great + importance and weightiness of the matter, as hereafter shall appear; + and likewise for the same cause _Charta de Foresta_; and both of them + are called _Magnæ Chartæ Libertatum Angliæ_, (The Great Charters of + the Liberties of England.) ... + + "And it is also called _Charta Libertatum regni_, (Charter of the + Liberties of the kingdom;) and upon great reason it is so called of + the effect, _quia liberos facit_, (because it makes men free.) + Sometime for the same cause (it is called) _communis libertas_, + (common liberty,) and _le chartre des franchises_, (the charter of + franchises.) ... + + "It was for the most part declaratory of the principal grounds of the + fundamental laws of England, and for the residue it is additional to + supply some defects of the common law.... + + "Also, by the said act of 25 Edward I., (called _Confirmatio + Chartarum_,) it is adjudged in parliament that the Great Charter and + the Charter of the Forest shall be taken as the common law.... + + "They (Magna Carta and Carta de Foresta) were, for the most part, but + declarations of the ancient common laws of England, to the + observation and keeping whereof, the king was bound and sworn. + + "After the making of Magna Charta, and Charta de Foresta, divers + learned men in the laws, that I may use the words of the record, kept + schools of the law in the city of London, and taught such as resorted + to them the laws of the realm, taking their foundation of Magna + Charta and Charta de Foresta. + + "And the said two charters have been confirmed, established, and + commanded to be put in execution by thirty-two several acts of + parliament in all. + + "This appeareth partly by that which hath been said, for that it hath + so often been confirmed by the wise providence of so many acts of + parliament. + + "And albeit judgments in the king's courts are of high regard in law, + and _judicia_ (judgments) are accounted as _jurisdicta_, (the speech + of the law itself,) yet it is provided by act of parliament, that if + any judgment be given contrary to any of the points of the Great + Charter and Charta de Foresta, by the justices, or by any other of + the king's ministers, &c., it shall be undone, and holden for naught. + + "And that both the said charters shall be sent under the great seal + to all cathedral churches throughout the realm, there to remain, and + shall be read to the people twice every year. + + "The highest and most binding laws are the statutes which are + established by parliament; and by authority of that highest court it + is enacted (only to show their tender care of Magna Carta and Carta + de Foresta) that if any statute be made contrary to the Great + Charter, or the Charter of the Forest, that shall be holden for none; + by which words all former statutes made against either of those + charters are now repealed; and the nobles and great officers were to + be sworn to the observation of Magna Charta and Charta de Foresta. + + "_Magna fuit quondam magnæ reverentia chartæ._" (Great was formerly + the reverence for Magna Carta.)--_Coke's Proem to 2 Inst._, p. 1 to + 7. + +Coke also says, "All pretence of prerogative against Magna Charta is +taken away."--_2 Inst._, 36. + +He also says, "That after this parliament (_52 Henry_ III., in 1267) +neither Magna Carta nor Carta de Foresta was ever attempted to be +impugned or questioned."--_2 Inst._, 102.[109] + +To give all the evidence of the authority of Magna Carta, it would be +necessary to give the constitutional history of England since the year +1215. This history would show that Magna Carta, although continually +violated and evaded, was still acknowledged as law by the government, +and was held up by the people as the great standard and proof of their +rights and liberties. It would show also that the judicial tribunals, +_whenever it suited their purposes to do so_, were in the habit of +referring to Magna Carta as authority, in the same manner, and with the +same real or pretended veneration, with which American courts now refer +to the constitution of the United States, or the constitutions of the +states. And, what is equally to the point, it would show that these same +tribunals, the mere tools of kings and parliaments, would resort to the +same artifices of assumption, _precedent_, construction, and false +interpretation, to evade the requirements of Magna Carta, and to +emasculate it of all its power for the preservation of liberty, that are +resorted to by American courts to accomplish the same work on our +American constitutions. + +I take it for granted, therefore, that if the authority of Magna Carta +had rested simply upon its character as a _compact_ between the king and +the people, it would have been forever binding upon the king, (that is, +upon the government, for the king was the government,) in his +legislative, judicial, and executive character; and that there was no +_constitutional_ possibility of his escaping from its restraints, unless +the people themselves should freely discharge him from them. + +But the authority of Magna Carta does not rest, either wholly or mainly, +upon its character as a compact. For centuries before the charter was +granted, its main principles constituted "the Law of the Land,"--the +fundamental and constitutional law of the realm, which the kings were +sworn to maintain. And the principal benefit of the charter was, that it +contained a _written_ description and acknowledgment, by the king +himself, of what the constitutional law of the kingdom was, which his +coronation oath bound him to observe. Previous to Magna Carta, this +constitutional law rested mainly in precedents, customs, and the +memories of the people. And if the king could but make one innovation +upon this law, without arousing resistance, and being compelled to +retreat from his usurpation, he would cite that innovation as a +precedent for another act of the same kind; next, assert a custom; and, +finally, raise a controversy as to what the Law of the Land really was. +The great object of the barons and people, in demanding from the king a +written description and acknowledgment of the Law of the Land, was to +put an end to all disputes of this kind, and to put it out of the power +of the king to plead any misunderstanding of the constitutional law of +the kingdom. And the charter, no doubt, accomplished very much in this +way. After Magna Carta, it required much more audacity, cunning, or +strength, on the part of the king, than it had before, to invade the +people's liberties with impunity. Still, Magna Carta, like all other +written constitutions, proved inadequate to the full accomplishment of +its purpose; for when did a parchment ever have power adequately to +restrain a government, that had either cunning to evade its +requirements, or strength to overcome those who attempted its defence? +The work of usurpation, therefore, though seriously checked, still went +on, to a great extent, after Magna Carta. Innovations upon the Law of +the Land are still made by the government. One innovation was cited as a +precedent; precedents made customs; and customs became laws, so far as +practice was concerned; until the government, composed of the king, the +high functionaries of the church, the nobility, a House of Commons +representing the "forty shilling freeholders," and a dependent and +servile judiciary, all acting in conspiracy against the mass of the +people, became practically absolute, as it is at this day. + +As proof that Magna Carta embraced little else than what was previously +recognized as the common law, or Law of the Land, I repeat some +authorities that have been already cited. + + Crabbe says, "It is admitted on all hands that it (Magna Carta) + contains nothing but what was confirmatory of the common law and the + ancient usages of the realm; and is, properly speaking, only an + enlargement of the charter of Henry I. and his + successors."--_Crabbe's Hist. of the Eng. Law_, p. 127. + + Blackstone says, "It is agreed by all our historians that the Great + Charter of King John was, for the most part, compiled from the + ancient customs of the realm, or the laws of Edward the Confessor; by + which they mean the old common law which was established under our + Saxon princes."--_Blackstone's Introd. to the Charters._ See + _Blackstone's Law Tracts_, Oxford ed., p. 289. + + Coke says, "The common law is the most general and ancient law of + the realm.... The common law appeareth in the statute of _Magna + Carta_, and other ancient statutes, (which for the most part are + affirmations of the common law,) in the original writs, in judicial + records, and in our books of terms and years."--_1 Inst._, 115 b. + + Coke also says, "It (Magna Carta) was for the most part declaratory + of the principal grounds of the fundamental laws of England, and for + the residue it was additional to supply some defects of the common + law.... They (Magna Carta and Carta de Foresta) were, for the most + part, but declarations of the ancient common laws of England, _to the + observation and keeping whereof the king was bound and + sworn_."--_Preface to 2 Inst._, p. 3 and 5. + + Hume says, "We may now, from the tenor of this charter, (Magna + Carta,) conjecture what those laws were of King Edward, (the + Confessor,) which the English nation during so many generations still + desired, with such an obstinate perseverance, to have recalled and + established. They were chiefly these latter articles of Magna Carta; + and the barons who, at the beginning of these commotions, demanded + the revival of the Saxon laws, undoubtedly thought that they had + sufficiently satisfied the people, by procuring them this concession, + which comprehended the principal objects to which they had so long + aspired."--_Hume_, ch. 11. + +Edward the First confessed that the Great Charter was substantially +identical with the common law, as far as it went, when he commanded his +justices to allow "the Great Charter as the Common Law," "in pleas +before them, and in judgment," as has been already cited in this +chapter.--_25 Edward_ I., ch. 1, (1297.) + +In conclusion of this chapter, it may be safely asserted that the +veneration, attachment, and pride, which the English nation, for more +than six centuries, have felt towards Magna Carta, are in their nature +among the most irrefragable of all proofs that it was the fundamental +law of the land, and constitutionally binding upon the government; for, +otherwise, it would have been, in their eyes, an unimportant and +worthless thing. What those sentiments were I will use the words of +others to describe,--the words, too, of men, who, like all modern +authors who have written on the same topic, had utterly inadequate ideas +of the true character of the instrument on which they lavished their +eulogiums. + +Hume, speaking of the Great Charter and the Charter of the Forest, as +they were confirmed by Henry III., in 1217, says: + + "Thus these famous charters were brought nearly to the shape in which + they have ever since stood; and they were, during many generations, + the peculiar favorites of the English nation, and esteemed the most + sacred rampart to national liberty and independence. As they secured + the rights of all orders of men, they were anxiously defended by all, + and became the basis, in a manner, of the English monarchy, and a + kind of original contract, which both limited the authority of the + king and ensured the conditional allegiance of his subjects. Though + often violated, they were still claimed by the nobility and people; + and, as no precedents were supposed valid that infringed them, they + rather acquired than lost authority, from the frequent attempts made + against them in several ages, by regal and arbitrary power."--_Hume_, + ch. 12. + + Mackintosh says, "It was understood by the simplest of the unlettered + age for whom it was intended. It was remembered by them.... For + almost five centuries it was appealed to as the decisive authority on + behalf of the people.... To have produced it, to have preserved it, + to have matured it, constitute the immortal claim of England on the + esteem of mankind. Her Bacons and Shakspeares, her Miltons and + Newtons, with all the truth which they have revealed, and all the + generous virtues which they have inspired, are of inferior value when + compared with the subjection of men and their rulers to the + principles of justice; if, indeed, it be not more true that these + mighty spirits could not have been formed except under equal laws, + nor roused to full activity without the influence of that spirit + which the Great Charter breathed over their + forefathers."--_Mackintosh's Hist. of Eng._, ch. 3.[110] + +Of the Great Charter, the trial by jury is the vital part, and the only +part that places the liberties of the people in their own keeping. Of +this Blackstone says: + + "The trial by jury, or the country, _per patriam_, is also that trial + by the peers of every Englishman, which, as the grand bulwark of his + liberties, is secured to him by the Great Charter; _nullus liber homo + capiatur, vel imprisonetur, aut exuletur, aut aliquo modo destruatur, + nisi per legale judicium parium suorum, vel per legem terrae...._ + + The liberties of England cannot but subsist so long as this palladium + remains sacred and inviolate, not only from all open attacks, which + none will be so hardy as to make, but also from all secret + machinations which may sap and undermine it."[111] + + "The trial by jury ever has been, and I trust ever will be, looked + upon as the glory of the English law.... It is the most transcendent + privilege which any subject can enjoy or wish for, that he cannot be + affected in his property, his liberty, or his person, but by the + unanimous consent of twelve of his neighbors and equals."[112] + + Hume calls the trial by jury "An institution admirable in itself, and + the best calculated for the preservation of liberty and the + administration of justice, that ever was devised by the wit of + man."[113] + +An old book, called "English Liberties," says: + + "English Parliaments have all along been most zealous for preserving + this great Jewel of Liberty, trials by juries having no less than + fifty-eight several times, since the Norman Conquest, been + established and confirmed by the legislative power, no one privilege + besides having been ever so often remembered in parliament."[114] + +[Footnote 106: _Mackintosh's Hist. of Eng._, ch. 3. _45 Lardner's Cab. +Cyc._, 354.] + +[Footnote 107: "_Forty shilling freeholders_" were those "people +dwelling and resident in the same counties, whereof every one of them +shall have free land or tenement to the value of forty shillings by the +year at the least above all charges." By statute _8 Henry_ 6, ch. 7, +(1429,) these freeholders only were allowed to vote for members of +Parliament from the _counties_.] + +[Footnote 108: He probably speaks in its favor only to blind the eyes of +the people to the frauds he has attempted upon its true meaning.] + +[Footnote 109: It will be noticed that Coke calls these confirmations of +the charter "acts of parliament," instead of acts of the king alone. +This needs explanation. + +It was one of Coke's ridiculous pretences, that laws anciently enacted +by the king, at the request, or with the consent, or by the advice, of +his parliament, was "an act of parliament," instead of the act of the +king. And in the extracts cited, he carries this idea so far as to +pretend that the various confirmations of the Great Charter were "acts +of parliament," instead of the acts of the kings. He might as well have +pretended that the original grant of the Charter was an "act of +parliament;" because it was not only granted at the request, and with +the consent, and by the advice, but on the compulsion even, of those who +commonly constituted his parliaments. Yet this did not make the grant of +the charter "an act of parliament." It was simply an act of the king. + +The object of Coke, in this pretence, was to furnish some color for the +palpable falsehood that the legislative authority, which parliament was +trying to assume in his own day, and which it finally succeeded in +obtaining, had a precedent in the ancient constitution of the kingdom. + +There would be as much reason in saying that, because the ancient kings +were in the habit of passing laws in special answer to the _petitions_ +of their subjects, therefore those _petitioners_ were a part of the +legislative power of the kingdom. + +One great objection to this argument of Coke, for the legislative +authority of the ancient parliaments, is that a very large--probably +much the larger--number of legislative acts were done _without_ the +advice, consent, request, or even presence, of a parliament. Not only +were many formal statutes passed without any mention of the consent or +advice of parliament, but a simple order of the king in council, or a +simple proclamation, writ, or letter under seal, issued by his command, +had the same force as what Coke calls "an act of parliament." And this +practice continued, to a considerable extent at least, down to Coke's +own time. + +The kings were always in the habit of consulting their parliaments, more +or less, in regard to matters of legislation,--not because their consent +was constitutionally necessary, but in order to make influence in favor +of their laws, and thus induce the people to observe them, and the +juries to enforce them. + +The general duties of the ancient parliaments were not legislative, but +judicial, as will be shown more fully hereafter. The _people_ were not +represented in the parliaments at the time of Magna Carta, but only the +archbishops, bishops, earls, barons, and knights; so that little or +nothing would have been gained for liberty by Coke's idea that +parliament had a legislative power. He would only have substituted an +aristocracy for a king. Even after the Commons were represented in +parliament, they for some centuries appeared only as _petitioners_, +except in the matter of taxation, when their _consent_ was asked. And +almost the only source of their influence on legislation was this: that +they would sometimes refuse their consent to the taxation, unless the +king would pass such laws as they petitioned for; or, as would seem to +have been much more frequently the case, unless he would abolish such +laws and practices as they remonstrated against. + +The _influence_ or power of parliament, and especially of the Commons, +in the general legislation of the country, was a thing of slow growth, +having its origin in a device of the king to get money contrary to law, +(as will be seen in the next volume,) and not at all a part of the +constitution of the kingdom, nor having its foundation in the consent of +the people. The power, _as at present exercised_, was not fully +established until 1688, (near five hundred years after Magna Carta,) +when the House of Commons (falsely so called) had acquired such +influence as the representative, _not of the people, but of the wealth, +of the nation_, that they compelled the king to discard the oath fixed +by the constitution of the kingdom; (which oath has been already given +in a former chapter,(page 101) and was, in substance, to preserve and +execute the Common Law, the Law of the Land,--or, in the words of the +oath, "_the just laws and customs which the common people had chosen_;") +and to swear that he would "govern the people of this kingdom of +England, and the dominions thereto belonging, _according to the statutes +in parliament agreed on_, and the laws and customs of the same."[115] + +The passage and enforcement of this statute, and the assumption of this +oath by the king, were plain violations of the English constitution, +inasmuch as they abolished, so far as such an oath could abolish, the +legislative power of the king, and also "those just laws and customs +which the common people (through their juries) had chosen," and +substituted the will of parliament in their stead. + +Coke was a great advocate for the legislative power of parliament, as a +means of restraining the power of the king. As he denied all power to +_juries_ to decide upon the obligation of laws, and as he held that the +legislative power was "_so transcendent and absolute as (that) it cannot +be confined, either for causes or persons, within any bounds_,"[116] he +was perhaps honest in holding that it was safer to trust this terrific +power in the hands of parliament, than in the hands of the king. His +error consisted in holding that either the king or parliament had any +such power, or that they had any power at all to pass laws that should +be binding upon a jury. + +These declarations of Coke, that the charter was confirmed by thirty-two +"acts of parliament," have a mischievous bearing in another respect. +They tend to weaken the authority of the charter, by conveying the +impression that the charter itself might be _abolished_ by "act of +parliament." Coke himself admits that it could not be revoked or +rescinded by the _king_; for he says, "All pretence of prerogative +against Magna Carta is taken away." (_2 Inst._, 36.) + +He knew perfectly well, and the whole English nation knew, that the +_king_ could not lawfully infringe Magna Carta. Magna Carta, therefore, +made it impossible that absolute power could ever be practically +established in England, _in the hands of the king_. Hence, as Coke was +an advocate for absolute power,--that is, for a legislative power "so +transcendent and absolute as (that) it cannot be confined, either for +causes or persons, within any bounds,"--there was no alternative for him +but to vest this absolute power in parliament. Had he not vested it in +parliament, he would have been obliged to abjure it altogether, and to +confess that the people, _through their juries_, had the right to judge +of the obligation of all legislation whatsoever; in other words, that +they had the right to confine the government within the limits of "those +just laws and customs which the common people (acting as jurors) had +chosen." True to his instincts, as a judge, and as a tyrant, he assumed +that this absolute power was vested in the hands of parliament. + +But the truth was that, as by the English constitution parliament had no +authority at all for _general_ legislation, it could no more confirm, +than it could abolish, Magna Carta. + +These thirty-two confirmations of Magna Carta, which Coke speaks of as +"acts of parliament," were merely acts of the king. The parliaments, +indeed, by refusing to grant him money, except on that condition, and +otherwise, had contributed to oblige him to make the confirmations; just +as they had helped to oblige him by arms to grant the charter in the +first place. But the confirmations themselves were nevertheless +constitutionally, as well as formally, the acts of the king alone.] + +[Footnote 110: Under the head of "_John._"] + +[Footnote 111: _4 Blackstone_, 349-50.] + +[Footnote 112: _3 Blackstone_, 379.] + +[Footnote 113: _Hume_, ch. 2.] + +[Footnote 114: Page 203, 5th edition, 1721.] + +[Footnote 115: St. 1 _William and Mary_, ch. 6, (1688.)] + +[Footnote 116: 4 _Inst._, 36.] + + + + +CHAPTER XII. + +LIMITATIONS IMPOSED UPON THE MAJORITY BY THE TRIAL BY JURY. + + +The principal objection, that will be made to the doctrine of this +essay, is, that under it, a jury would paralyze the power of the +majority, and veto all legislation that was not in accordance with the +will of the whole, or nearly the whole, people. + +The answer to this objection is, that the limitation, which would be +thus imposed upon the legislative power, (whether that power be vested +in the majority, or minority, of the people,) is the crowning merit of +the trial by jury. It has other merits; but, though important in +themselves, they are utterly insignificant and worthless in comparison +with this. + +It is this power of vetoing all partial and oppressive legislation, and +of restricting the government to the maintenance of such laws as the +_whole_, or substantially the whole, people _are agreed in_, that makes +the trial by jury "the palladium of liberty." Without this power it +would never have deserved that name. + +The will, or the pretended will, of the majority, is the last lurking +place of tyranny at the present day. The dogma, that certain individuals +and families have a divine appointment to govern the rest of mankind, is +fast giving place to the one that the larger number have a right to +govern the smaller; a dogma, which may, or may not, be less oppressive +in its practical operation, but which certainly is no less false or +tyrannical in principle, than the one it is so rapidly supplanting. +Obviously there is nothing in the nature of majorities, that insures +justice at their hands. They have the same passions as minorities, and +they have no qualities whatever that should be expected to prevent them +from practising the same tyranny as minorities, if they think it will +be for their interest to do so. + +There is no particle of truth in the notion that the majority have a +_right_ to rule, or to exercise arbitrary power over, the minority, +simply because the former are more numerous than the latter. Two men +have no more natural right to rule one, than one has to rule two. Any +single man, or any body of men, many or few, have a natural right to +maintain justice for themselves, and for any others who may need their +assistance, against the injustice of any and all other men, without +regard to their numbers; and majorities have no right to do any more +than this. The relative numbers of the opposing parties have nothing to +do with the question of right. And no more tyrannical principle was ever +avowed, than that the will of the majority ought to have the force of +law, without regard to its justice; or, what is the same thing, that the +will of the majority ought always to be presumed to be in accordance +with justice. Such a doctrine is only another form of the doctrine that +might makes right. + +When _two_ men meet _one_ upon the highway, or in the wilderness, have +they a right to dispose of his life, liberty, or property at their +pleasure, simply because they are the more numerous party? Or is he +bound to submit to lose his life, liberty, or property, if they demand +it, merely because he is the less numerous party? Or, because they are +more numerous than he, is he bound to presume that they are governed +only by superior wisdom, and the principles of justice, and by no +selfish passion that can lead them to do him a wrong? Yet this is the +principle, which it is claimed should govern men in all their civil +relations to each other. Mankind fall in company with each other on the +highway or in the wilderness of life, and it is claimed that the more +numerous party, simply by virtue of their superior numbers, have the +right arbitrarily to dispose of the life, liberty, and property of the +minority; and that the minority are bound, by reason of their inferior +numbers, to practise abject submission, and consent to hold their +natural rights,--any, all, or none, as the case may be,--at the mere +will and pleasure of the majority; as if all a man's natural rights +expired, or were suspended by the operation of a paramount law, the +moment he came into the presence of superior numbers. + +If such be the true nature of the relations men hold to each other in +this world, it puts an end to all such things as crimes, unless they be +perpetrated upon those who are equal or superior, in number, to the +actors. All acts committed against persons _inferior_ in number to the +aggressors, become but the exercise of rightful authority. And +consistency with their own principles requires that all governments, +founded on the will of the majority, should recognize this plea as a +sufficient justification for all crimes whatsoever. + +If it be said that the majority should be allowed to rule, not because +they are stronger than the minority, but because their superior numbers +furnish a _probability_ that they are in the right; one answer is, that +the lives, liberties, and properties of men are too valuable to them, +and the natural presumptions are too strong in their favor, to justify +the destruction of them by their fellow-men on a mere balancing of +probabilities, _or on any ground whatever short of certainty beyond a +reasonable doubt_. This last is the moral rule universally recognized to +be binding upon single individuals. And in the forum of conscience the +same rule is equally binding upon governments, for governments are mere +associations of individuals. This is the rule on which the trial by jury +is based. And it is plainly the only rule that ought to induce a man to +submit his rights to the adjudication of his fellow-men, or dissuade him +from a forcible defence of them. + +Another answer is, that if two opposing parties could be supposed to +have no personal interests or passions involved, to warp their +judgments, or corrupt their motives, the fact that one of the parties +was more numerous than the other, (a fact that leaves the comparative +intellectual competency of the two parties entirely out of +consideration,) might, perhaps, furnish a slight, but at best only a +very slight, probability that such party was on the side of justice. But +when it is considered that the parties are liable to differ in their +intellectual capacities, and that one, or the other, or both, are +undoubtedly under the influence of such passions as rivalry, hatred, +avarice, and ambition,--passions that are nearly certain to pervert +their judgments, and very likely to corrupt their motives,--all +probabilities founded upon a mere numerical majority, in one party, or +the other, vanish at once; and the decision of the majority becomes, to +all practical purposes, a mere decision of chance. And to dispose of +men's properties, liberties, and lives, by the mere process of +enumerating such parties, is not only as palpable gambling as was ever +practised, but it is also the most atrocious that was ever practised, +except in matters of government. And where government is instituted on +this principle, (as in the United States, for example,) the nation is at +once converted into one great gambling establishment; where all the +rights of men are the stakes; a few bold bad men throw the dice--(dice +loaded with all the hopes, fears, interests, and passions which rage in +the breasts of ambitious and desperate men,)--and all the people, from +the interests they have depending, become enlisted, excited, agitated, +and generally corrupted, by the hazards of the game. + +The trial by jury disavows the majority principle altogether; and +proceeds upon the ground that every man should be presumed to be +entitled to life, liberty, and such property as he has in his +possession; and that the government should lay its hand upon none of +them, (except for the purpose of bringing them before a tribunal for +adjudication,) unless it be first ascertained, _beyond a reasonable +doubt_, in every individual case, that justice requires it. + +To ascertain whether there be such reasonable doubt, it takes twelve men +_by lot_ from the whole body of mature men. If any of these twelve are +proved to be under the influence of any _special_ interest or passion, +that may either pervert their judgments, or corrupt their motives, they +are set aside as unsuitable for the performance of a duty requiring such +absolute impartiality and integrity; and others substituted in their +stead. When the utmost practicable impartiality is attained on the part +of the whole twelve, they are sworn to the observance of justice; and +their unanimous concurrence is then held to be necessary to remove that +reasonable doubt, which, unremoved, would forbid the government to lay +its hand on its victim. + +Such is the caution which the trial by jury both practises and +inculcates, against the violation of justice, on the part of the +government, towards the humblest individual, in the smallest matter +affecting his civil rights, his property, liberty, or life. And such is +the contrast, which the trial by jury presents, to that gambler's and +robber's rule, that the majority have a right, by virtue of their +superior numbers, and without regard to justice, to dispose at pleasure +of the property and persons of all bodies of men less numerous than +themselves. + +The difference, in short, between the two systems, is this. The trial by +jury protects person and property, inviolate to their possessors, from +the hand of the law, unless _justice, beyond a reasonable doubt_, +require them to be taken. The majority principle takes person and +property from their possessors, at the mere arbitrary will of a +majority, who are liable and likely to be influenced, in taking them, by +motives of oppression, avarice, and ambition. + +If the relative numbers of opposing parties afforded sufficient evidence +of the comparative justice of their claims, the government should carry +the principle into its courts of justice; and instead of referring +controversies to impartial and disinterested men,--to judges and jurors, +sworn to do justice, and bound patiently to hear and weigh all the +evidence and arguments that can be offered on either side,--it should +simply _count_ the plaintiffs and defendants in each case, (where there +were more than one of either,) and then give the case to the majority; +after ample opportunity had been given to the plaintiffs and defendants +to reason with, flatter, cheat, threaten, and bribe each other, by way +of inducing them to change sides. Such a process would be just as +rational in courts of justice, as in halls of legislation; for it is of +no importance to a man, who has his rights taken from him, whether it be +done by a legislative enactment, or a judicial decision. + +In legislation, the people are all arranged as plaintiffs and defendants +in their own causes; (those who are in favor of a particular law, +standing as plaintiffs, and those who are opposed to the same law, +standing as defendants); and to allow these causes to be decided by +majorities, is plainly as absurd as it would be to allow judicial +decisions to be determined by the relative number of plaintiffs and +defendants. + +If this mode of decision were introduced into courts of justice, we +should see a parallel, and only a parallel, to that system of +legislation which we witness daily. We should see large bodies of men +conspiring to bring perfectly groundless suits, against other bodies of +men, for large sums of money, and to carry them by sheer force of +numbers; just as we now continually see large bodies of men conspiring +to carry, by mere force of numbers, some scheme of legislation that +will, directly or indirectly, take money out of other men's pockets, and +put it into their own. And we should also see distinct bodies of men, +parties in separate suits, combining and agreeing all to appear and be +counted as plaintiffs or defendants in each other's suits, for the +purpose of ekeing out the necessary majority; just as we now see +distinct bodies of men, interested in separate schemes of ambition or +plunder, conspiring to carry through a batch of legislative enactments, +that shall accomplish their several purposes. + +This system of combination and conspiracy would go on, until at length +whole states and a whole nation would become divided into two great +litigating parties, each party composed of several smaller bodies, +having their separate suits, but all confederating for the purpose of +making up the necessary majority in each case. The individuals composing +each of these two great parties, would at length become so accustomed to +acting together, and so well acquainted with each others' schemes, and +so mutually dependent upon each others' fidelity for success, that they +would become organized as permanent associations; bound together by that +kind of honor that prevails among thieves; and pledged by all their +interests, sympathies, and animosities, to mutual fidelity, and to +unceasing hostility to their opponents; and exerting all their arts and +all their resources of threats, injuries, promises, and bribes, to drive +or seduce from the other party enough to enable their own to retain or +acquire such a majority as would be necessary to gain their own suits, +and defeat the suits of their opponents. All the wealth and talent of +the country would become enlisted in the service of these rival +associations; and both would at length become so compact, so well +organized, so powerful, and yet always so much in need of recruits, +that a private person would be nearly or quite unable to obtain justice +in the most paltry suit with his neighbor, except on the condition of +joining one of these great litigating associations, who would agree to +carry through his cause, on condition of his assisting them to carry +through all the others, good and bad, which they had already undertaken. +If he refused this, they would threaten to make a similar offer to his +antagonist, and suffer their whole numbers to be counted against him. + +Now this picture is no caricature, but a true and honest likeness. And +such a system of administering justice, would be no more false, absurd, +or atrocious, than that system of working by majorities, which seeks to +accomplish, by legislation, the same ends which, in the case supposed, +would be accomplished by judicial decisions. + +Again, the doctrine that the minority ought to submit to the will of the +majority, proceeds, not upon the principle that government is formed by +voluntary association, and for an _agreed purpose_, on the part of all +who contribute to its support, but upon the presumption that all +government must be practically a state of war and plunder between +opposing parties; and that, in order to save blood, and prevent mutual +extermination, the parties come to an agreement that they will count +their respective numbers periodically, and the one party shall then be +permitted quietly to rule and plunder, (restrained only by their own +discretion,) and the other submit quietly to be ruled and plundered, +until the time of the next enumeration. + +Such an agreement may possibly be wiser than unceasing and deadly +conflict; it nevertheless partakes too much of the ludicrous to deserve +to be seriously considered as an expedient for the maintenance of civil +society. It would certainly seem that mankind might agree upon a +cessation of hostilities, upon more rational and equitable terms than +that of unconditional submission on the part of the less numerous body. +Unconditional submission is usually the last act of one who confesses +himself subdued and enslaved. How any one ever came to imagine that +condition to be one of freedom, has never been explained. And as for the +system being adapted to the maintenance of justice among men, it is a +mystery that any human mind could ever have been visited with an +insanity wild enough to originate the idea. + +If it be said that other corporations, than governments, surrender their +affairs into the hands of the majority, the answer is, that they allow +majorities to determine only trifling matters, that are in their nature +mere questions of discretion, and where there is no natural presumption +of justice or right on one side rather than the other. They _never_ +surrender to the majority the power to dispose of, or, what is +practically the same thing, to _determine_, the _rights_ of any +individual member. The _rights_ of every member are determined by the +written compact, to which all the members have voluntarily agreed. + +For example. A banking corporation allows a majority to determine such +questions of discretion as whether the note of A or of B shall be +discounted; whether notes shall be discounted on one, two, or six days +in the week; how many hours in a day their banking-house shall be kept +open; how many clerks shall be employed; what salaries they shall +receive, and such like matters, which are in their nature mere subjects +of discretion, and where there are no natural presumptions of justice or +right in favor of one course over the other. But no banking corporation +allows a majority, or any other number of its members less than the +whole, to divert the funds of the corporation to any other purpose than +the one to which _every member_ of the corporation has legally agreed +that they may be devoted; nor to take the stock of one member and give +it to another; nor to distribute the dividends among the stockholders +otherwise than to each one the proportion which he has agreed to accept, +and all the others have agreed that he shall receive. Nor does any +banking corporation allow a majority to impose taxes upon the members +for the payment of the corporate expenses, except in such proportions as +_every member_ has consented that they may be imposed. All these +questions, involving the _rights_ of the members as against each other, +are fixed by the articles of the association,--that is, by the agreement +to which _every member_ has personally assented. + +What is also specially to be noticed, and what constitutes a vital +difference between the banking corporation and the political +corporation, or government, is, that in case of controversy among the +members of the banking corporation, as to the _rights_ of any member, +the question is determined, not by any number, either majority, or +minority, of the corporation itself, _but by persons out of the +corporation_; by twelve men acting as jurors, or by other tribunals of +justice, of which no member of the corporation is allowed to be a part. +But in the case of the political corporation, controversies among the +parties to it, as to the rights of individual members, must of necessity +be settled by members of the corporation itself, because there are no +persons out of the corporation to whom the question can be referred. + +Since, then, all questions as to the _rights_ of the members of the +political corporation, must be determined by members of the corporation +itself, the trial by jury says that no man's _rights_,--neither his +right to his life, his liberty, nor his property,--shall be determined +by any such standard as the mere will and pleasure of majorities; but +only by the unanimous verdict of a tribunal fairly representing the +whole people,--that is, a tribunal of twelve men, taken, at random from +the whole body, and ascertained to be as impartial as the nature of the +case will admit, _and sworn to the observance of justice_. Such is the +difference in the two kinds of corporations; and the custom of managing +by majorities the mere discretionary matters of business corporations, +(the majority having no power to determine the _rights_ of any member,) +furnishes no analogy to the practice, adopted by political corporations, +of disposing of all the _rights_ of their members by the arbitrary will +of majorities. + +But further. The doctrine that the majority have a _right_ to rule, +proceeds upon the principle that minorities have no _rights_ in the +government; for certainly the minority cannot be said to have any +_rights_ in a government, so long as the majority alone determine what +their rights shall be. They hold everything, or nothing, as the case may +be, at the mere will of the majority. + +It is indispensable to a "_free_ government," (in the political sense of +that term,) that the minority, the weaker party, have a veto upon the +acts of the majority. Political liberty is liberty for the _weaker +party_ in a nation. It is only the weaker party that lose their +liberties, when a government becomes oppressive. The stronger party, in +all governments, are free by virtue of their superior strength. They +never oppress themselves. + +Legislation is the work of this stronger party; and if, in addition to +the sole power of legislating, they have the sole power of determining +what legislation shall be enforced, they have all power in their hands, +and the weaker party are the subjects of an absolute government. + +Unless the weaker party have a veto, either upon the making, or the +enforcement of laws, they have no power whatever in the government, and +can of course have no liberties except such as the stronger party, in +their arbitrary discretion, see fit to permit them to enjoy. + +In England and the United States, the trial by jury is the only +institution that gives the weaker party any veto upon the power of the +stronger. Consequently it is the only institution, that gives them any +effective voice in the government, or any guaranty against oppression. + +Suffrage, however free, is of no avail for this purpose; because the +suffrage of the minority is overborne by the suffrage of the majority, +and is thus rendered powerless for purposes of legislation. The +responsibility of officers can be made of no avail, because they are +responsible only to the majority. The minority, therefore, are wholly +without rights in the government, wholly at the mercy of the majority, +unless, through the trial by jury, they have a veto upon such +legislation as they think unjust. + +Government is established for the protection of the weak against the +strong. This is the principal, if not the sole, motive for the +establishment of all legitimate government. Laws, that are sufficient +for the protection of the weaker party, are of course sufficient for the +protection of the stronger party; because the strong can certainly need +no more protection than the weak. It is, therefore, right that the +weaker party should be represented in the tribunal which is finally to +determine what legislation may be enforced; and that no legislation +shall be enforced against their consent. They being presumed to be +competent judges of what kind of legislation makes for their safety, and +what for their injury, it must be presumed that any legislation, which +_they_ object to enforcing, tends to their oppression, and not to their +security. + +There is still another reason why the weaker party, or the minority, +should have a veto upon all legislation which they disapprove. _That +reason is, that that is the only means by which the government can be +kept within the limits of the contract, compact, or constitution, by +which the whole people agree to establish government._ If the majority +were allowed to interpret the compact for themselves, and enforce it +according to their own interpretation, they would, of course, make it +authorize them to do whatever they wish to do. + +The theory of free government is that it is formed by the voluntary +contract of the people individually with each other. This is the theory, +(although it is not, as it ought to be, the fact,) in all the +governments in the United States, as also in the government of England. +The theory assumes that each man, who is a party to the government, and +contributes to its support, has individually and freely consented to it. +Otherwise the government would have no right to tax him for its +support,--for taxation without consent is robbery. This theory, then, +necessarily supposes that this government, which is formed by the free +consent of all, has no powers except such as _all_ the parties to it +have individually agreed that it shall have; and especially that it has +no power to pass any _laws_, except such as _all_ the parties have +agreed that it may pass. + +This theory supposes that there may be certain laws that will be +beneficial to _all_,--so beneficial that _all_ consent to be taxed for +their maintenance. For the maintenance of these specific laws, in which +all are interested, all associate. And they associate for the +maintenance of those laws _only_, in which _all_ are interested. It +would be absurd to suppose that all would associate, and consent to be +taxed, for purposes which were beneficial only to a part; and especially +for purposes that were injurious to any. A government of the whole, +therefore, can have no powers except such as _all_ the parties consent +that it may have. It can do nothing except what _all_ have consented +that it may do. And if any portion of the people,--no matter how large +their number, if it be less than the whole,--desire a government for any +purposes other than those that are common to all, and desired by all, +they must form a separate association for those purposes. They have no +right,--by perverting this government of the whole, to the +accomplishment of purposes desired only by a part,--to compel any one to +contribute to purposes that are either useless or injurious to himself. + +Such being the principles on which the government is formed, the +question arises, how shall this government, when formed, be kept within +the limits of the contract by which it was established? How shall this +government, instituted by the whole people, agreed to by the whole +people, supported by the contributions of the whole people, be confined +to the accomplishment of those purposes alone, which the whole people +desire? How shall it be preserved from degenerating into a mere +government for the benefit of a part only of those who established, and +who support it? How shall it be prevented from even injuring a part of +its own members, for the aggrandizement of the rest? Its laws must be, +(or at least now are,) passed, and most of its other acts performed, by +mere agents,--agents chosen by a part of the people, and not by the +whole. How can these agents be restrained from seeking their own +interests, and the interests of those who elected them, at the expense +of the rights of the remainder of the people, by the passage and +enforcement of laws that shall be partial, unequal, and unjust in their +operation? That is the great question. And the trial by jury answers it. +And how does the trial by jury answer it? It answers it, as has already +been shown throughout this volume, by saying that these mere agents and +attorneys, who are chosen by a part only of the people, and are liable +to be influenced by partial and unequal purposes, shall not have +unlimited authority in the enactment and enforcement of laws; that they +shall not exercise _all_ the functions of government. It says that they +shall never exercise that ultimate power of compelling obedience to the +laws by punishing for disobedience, or of executing the laws against the +person or property of any man, without first getting the consent of the +people, through a tribunal that may fairly be presumed to represent the +whole, or substantially the whole, people. It says that if the power to +make laws, and the power also to enforce them, were committed to these +agents, they would have all power,--would be absolute masters of the +people, and could deprive them of their rights at pleasure. It says, +therefore, that the people themselves will hold a veto upon the +enforcement of any and every law, which these agents may enact, and that +whenever the occasion arises for them to give or withhold their +consent,--inasmuch as the whole people cannot assemble, or devote the +time and attention necessary to the investigation of each case,--twelve +of their number shall be taken by lot, or otherwise at random, from the +whole body; that they shall not be chosen by majorities, (the same +majorities that elected the agents who enacted the laws to be put in +issue,) nor by any interested or suspected party; that they shall not be +appointed by, or be in any way dependent upon, those who enacted the +law; that their opinions, whether for or against the law that is in +issue, shall not be inquired of beforehand; and that if these twelve men +give their consent to the enforcement of the law, their consent shall +stand for the consent of the whole. + +This is the mode, which the trial by jury provides, for keeping the +government within the limits designed by the whole people, who have +associated for its establishment. And it is the only mode, provided +either by the English or American constitutions, for the accomplishment +of that object. + +But it will, perhaps, be said that if the minority can defeat the will +of the majority, then the minority _rule_ the majority. But this is not +true in any unjust sense. The minority enact no laws of their own. They +simply refuse their assent to such laws of the majority as they do not +approve. The minority assume no authority over the majority; they simply +defend themselves. They do not interfere with the right of the majority +to seek their own happiness in their own way, so long as they (the +majority) do not interfere with the minority. They claim simply not to +be oppressed, and not to be compelled to assist in doing anything which +they do not approve. They say to the majority, "We will unite with you, +if you desire it, for the accomplishment of all those purposes, in +which we have a common interest with you. You can certainly expect us to +do nothing more. If you do not choose to associate with us on those +terms, there must be two separate associations. You must associate for +the accomplishment of your purposes; we for the accomplishment of ours." + +In this case, the minority assume no authority over the majority; they +simply refuse to surrender their own liberties into the hands of the +majority. They propose a union; but decline submission. The majority are +still at liberty to refuse the connection, and to seek their own +happiness in their own way, except that they cannot be gratified in +their desire to become absolute masters of the minority. + +But, it may be asked, how can the minority be trusted to enforce even +such legislation as is equal and just? The answer is, that they are as +reliable for that purpose as are the majority; they are as much presumed +to have associated, and are as likely to have associated, for that +object, as are the majority; and they have as much interest in such +legislation as have the majority. They have even more interest in it; +for, being the weaker party, they must rely on it for their +security,--having no other security on which they can rely. Hence their +consent to the establishment of government, and to the _taxation_ +required for its support, is _presumed_, (although it ought not to be +presumed,) without any express consent being given. This presumption of +their consent to be taxed for the maintenance of laws, would be absurd, +if they could not themselves be trusted to act in good faith in +enforcing those laws. And hence they cannot be presumed to have +consented to be taxed for the maintenance of any laws, except such as +they are themselves ready to aid in enforcing. It is therefore unjust to +tax them, unless they are eligible to seats in a jury, with power to +judge of the justice of the laws. Taxing them for the support of the +laws, on the assumption that they are in favor of the laws, and at the +same time refusing them the right, as jurors, to judge of the justice of +the laws, on the assumption that they are opposed to the laws, are flat +contradictions. + +But, it will be asked, what motive have the majority, when they have +all power in their own hands, to submit their will to the veto of the +minority? + +One answer is, that they have the motive of justice. It would be +_unjust_ to compel the minority to contribute, by taxation, to the +support of any laws which they did not approve. + +Another answer is, that if the stronger party wish to use their power +only for purposes of justice, they have no occasion to fear the veto of +the weaker party; for the latter have as strong motives for the +maintenance of _just_ government, as have the former. + +Another answer is, that if the stronger party use their power +_unjustly_, they will hold it by an uncertain tenure, especially in a +community where knowledge is diffused; for knowledge will enable the +weaker party to make itself in time the stronger party. It also enables +the weaker party, even while it remains the weaker party, perpetually to +annoy, alarm, and injure their oppressors. Unjust power,--or rather +power that is _grossly_ unjust, and that is known to be so by the +minority,--can be sustained only at the expense of standing armies, and +all the other machinery of force; for the oppressed party are always +ready to risk their lives for purposes of vengeance, and the acquisition +of their rights, whenever there is any tolerable chance of success. +Peace, safety, and quiet for all, can be enjoyed only under laws that +obtain the consent of all. Hence tyrants frequently yield to the demands +of justice from those weaker than themselves, as a means of buying peace +and safety. + +Still another answer is, that those who are in the majority on one law, +will be in the minority on another. All, therefore, need the benefit of +the veto, at some time or other, to protect themselves from injustice. + +That the limits, within which legislation would, by this process, be +confined, would be exceedingly narrow, in comparison with those it at +present occupies, there can be no doubt. All monopolies, all special +privileges, all sumptuary laws, all restraints upon any traffic, +bargain, or contract, that was naturally lawful,[117] all restraints +upon men's natural rights, the whole catalogue of _mala prohibita_, and +all taxation to which the taxed parties had not individually, severally, +and freely consented, would be at an end; because all such legislation +implies a violation of the rights of a greater or less minority. This +minority would disregard, trample upon, or resist, the execution of such +legislation, and then throw themselves upon a jury of the whole people +for justification and protection. In this way all legislation would be +nullified, except the legislation of that general nature which +impartially protected the rights, and subserved the interests, of all. +The only legislation that could be sustained, would probably be such as +tended directly to the maintenance of justice and liberty; such, for +example, as should contribute to the enforcement of contracts, the +protection of property, and the prevention and punishment of acts +intrinsically criminal. In short, government in practice would be +brought to the necessity of a strict adherence to natural law, and +natural justice, instead of being, as it now is, a great battle, in +which avarice and ambition are constantly fighting for and obtaining +advantages over the natural rights of mankind. + +[Footnote 117: Such as restraints upon banking, upon the rates of +interest, upon traffic with foreigners, &c., &c.] + + + + +APPENDIX. + +TAXATION. + + +It was a principle of the Common Law, as it is of the law of nature, and +of common sense, that no man can be taxed without his personal consent. +The Common Law knew nothing of that system, which now prevails in +England, of _assuming_ a man's own consent to be taxed, because some +pretended representative, whom he never authorized to act for him, has +taken it upon himself to consent that he may be taxed. That is one of +the many frauds on the Common Law, and the English constitution, which +have been introduced since Magna Carta. Having finally established +itself in England, it has been stupidly and servilely copied and +submitted to in the United States. + +If the trial by jury were reëstablished, the Common Law principle of +taxation would be reëstablished with it; for it is not to be supposed +that juries would enforce a tax upon an individual which he had never +agreed to pay. Taxation without consent is as plainly robbery, when +enforced against one man, as when enforced against millions; and it is +not to be imagined that juries could be blind to so self-evident a +principle. Taking a man's money without his consent, is also as much +robbery, when it is done by millions of men, acting in concert, and +calling themselves a government, as when it is done by a single +individual, acting on his own responsibility, and calling himself a +highwayman. Neither the numbers engaged in the act, nor the different +characters they assume as a cover for the act, alter the nature of the +act itself. + +If the government can take a man's money without his consent, there is +no limit to the additional tyranny it may practise upon him; for, with +his money, it can hire soldiers to stand over him, keep him in +subjection, plunder him at discretion, and kill him if he resists. And +governments always will do this, as they everywhere and always have done +it, except where the Common Law principle has been established. It is +therefore a first principle, a very _sine qua non_ of political freedom, +that a man can be taxed only by his personal consent. And the +establishment of this principle, with _trial by jury_, insures freedom +of course; because: 1. No man would pay his money unless he had first +contracted for such a government as he was willing to support; and, 2. +Unless the government then kept itself within the terms of its contract, +juries would not enforce the payment of the tax. Besides, the agreement +to be taxed would probably be entered into but for a year at a time. If, +in that year, the government proved itself either inefficient or +tyrannical, to any serious degree, the contract would not be renewed. +The dissatisfied parties, if sufficiently numerous for a new +organization, would form themselves into a separate association for +mutual protection. If not sufficiently numerous for that purpose, those +who were conscientious would forego all governmental protection, rather +than contribute to the support of a government which they deemed unjust. + +All legitimate government is a mutual insurance company, voluntarily +agreed upon by the parties to it, for the protection of their rights +against wrong-doers. In its voluntary character it is precisely similar +to an association for mutual protection against fire or shipwreck. +Before a man will join an association for these latter purposes, and pay +the premium for being insured, he will, if he be a man of sense, look at +the articles of the association; see what the company promises to do; +what it is likely to do; and what are the rates of insurance. If he be +satisfied on all these points, he will become a member, pay his premium +for a year, and then hold the company to its contract. If the conduct of +the company prove unsatisfactory, he will let his policy expire at the +end of the year for which he has paid; will decline to pay any further +premiums, and either seek insurance elsewhere, or take his own risk +without any insurance. And as men act in the insurance of their ships +and dwellings, they would act in the insurance of their properties, +liberties and lives, in the political association, or government. + +The political insurance company, or government, have no more right, in +nature or reason, to _assume_ a man's consent to be protected by them, +and to be taxed for that protection, when he has given no actual +consent, than a fire or marine insurance company have to assume a man's +consent to be protected by them, and to pay the premium, when his actual +consent has never been given. To take a man's property without his +consent is robbery; and to assume his consent, where no actual consent +is given, makes the taking none the less robbery. If it did, the +highwayman has the same right to assume a man's consent to part with his +purse, that any other man, or body of men, can have. And his assumption +would afford as much moral justification for his robbery as does a like +assumption, on the part of the government, for taking a man's property +without his consent. The government's pretence of protecting him, as an +equivalent for the taxation, affords no justification. It is for himself +to decide whether he desires such protection as the government offers +him. If he do not desire it, or do not bargain for it, the government +has no more right than any other insurance company to impose it upon +him, or make him pay for it. + +Trial by the country, and no taxation without consent, were the two +pillars of English liberty, (when England had any liberty,) and the +first principles of the Common Law. They mutually sustain each other; +and neither can stand without the other. Without both, no people have +any guaranty for their freedom; with both, no people can be otherwise +than free.[118] + +By what force, fraud, and conspiracy, on the part of kings, nobles, and +"a few wealthy freeholders," these pillars have been prostrated in +England, it is designed to show more fully in the next volume, if it +should be necessary. + +[Footnote 118: Trial by the country, and no taxation without consent, +mutually sustain each other, and can be sustained only by each other, +for these reasons: 1. Juries would refuse to enforce a tax against a man +who had never agreed to pay it. They would also protect men in forcibly +resisting the collection of taxes to which they had never consented. +Otherwise the jurors would authorize the government to tax themselves +without their consent,--a thing which no jury would be likely to do. In +these two ways, then, trial by the country would sustain the principle +of no taxation without consent. 2. On the other hand, the principle of +no taxation without consent would sustain the trial by the country, +because men in general would not consent to be taxed for the support of +a government under which trial by the country was not secured. Thus +these two principles mutually sustain each other. + +But, if either of these principles were broken down, the other would +fall with it, and for these reasons: 1. If trial by the country were +broken down, the principle of no taxation without consent would fall +with it, because the government would then be _able_ to tax the people +without their consent, inasmuch as the legal tribunals would be mere +tools of the government, and would enforce such taxation, and punish men +for resisting such taxation, as the government ordered. 2. On the other +hand, if the principle of no taxation without consent were broken down, +trial by the country would fall with it, because the government, if it +could tax people without their consent, would, of course, take enough of +their money to enable it to employ all the force necessary for +sustaining its own tribunals, (in the place of juries,) and carrying +their decrees into execution.] + + + + + +End of Project Gutenberg's An Essay on the Trial by Jury, by Lysander Spooner + +*** END OF THIS PROJECT GUTENBERG EBOOK AN ESSAY ON THE TRIAL BY JURY *** + +***** This file should be named 32984-8.txt or 32984-8.zip ***** +This and all associated files of various formats will be found in: + https://www.gutenberg.org/3/2/9/8/32984/ + +Produced by Susan Goble, Curtis Weyant, Graeme Mackreth +and the Online Distributed Proofreading Team at +https://www.pgdp.net + + +Updated editions will replace the previous one--the old editions +will be renamed. + +Creating the works from public domain print editions means that no +one owns a United States copyright in these works, so the Foundation +(and you!) can copy and distribute it in the United States without +permission and without paying copyright royalties. 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