diff --git a/edit-chapters.go b/edit-chapters.go index 4d2cd42..a234655 100644 --- a/edit-chapters.go +++ b/edit-chapters.go @@ -3,6 +3,7 @@ package main import ( + "bytes" "log" "os" "path/filepath" @@ -44,24 +45,34 @@ var replacers = mapSlice(compile, [][2]string{ // 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`}, + + // Footnote superscript + {`\[(\d+)\]`, `[^$1]`}, }) +var footnoteRE = regexp.MustCompile(`\[Footnote \d+: ([^\[\]]|(\[\^\d+\]))+\]`) +var footnoteNumberRE = regexp.MustCompile(`\[Footnote (\d+):`) + +func replaceFootnote(src []byte) []byte { + var formatted = footnoteNumberRE.ReplaceAll(src, []byte("[^$1]:")) + // Indent footnote paragraphs. + // This only works because footnotes are stacked at the end of each chapter. + formatted = bytes.ReplaceAll(formatted, []byte("\n"), []byte("\n ")) + // Strip terminal "]". + return formatted[:len(formatted)-1] +} + func run() error { paths, err := filepath.Glob("original/*.markdown") if err != nil { @@ -72,10 +83,13 @@ func run() error { if err != nil { return err } + var edited = b for _, r := range replacers { edited = r.re.ReplaceAll(edited, []byte(r.replacement)) } + edited = footnoteRE.ReplaceAllFunc(edited, replaceFootnote) + outpath := filepath.Join("edited", filepath.Base(path)) err = os.WriteFile(outpath, edited, 0666) if err != nil { diff --git a/edited/01.markdown b/edited/01.markdown index ad210e6..6465a38 100644 --- a/edited/01.markdown +++ b/edited/01.markdown @@ -506,100 +506,100 @@ 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. +[^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. -> “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?” +[^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. -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. +[^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. -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.] +[^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 index 64cfa73..32ca203 100644 --- a/edited/02.markdown +++ b/edited/02.markdown @@ -893,496 +893,496 @@ 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_.] +[^5]: 1 Hume, Appendix 2. + +[^6]: Crabbe’s History of the English Law, 236. + +[^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._ + +[^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. + +[^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. + +[^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.” + +[^11]: Hume, Appendix 2. + +[^12]: This point will be more fully established hereafter. + +[^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._ + +[^14]: The laws were, at that time, all written in Latin. + +[^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. + +[^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. + +[^17]: See Blackstone’s Law Tracts, page 294, Oxford Edition. + +[^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. + +[^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. + +[^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. + +[^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. + +[^22]: _Beneficium_ was the legal name of an estate held by a + feudal tenure. See Spelman’s Glossary. + +[^23]: _Contenement_ of a freeman was the means of living in the + condition of a freeman. + +[^24]: _Waynage_ was a villein’s plough-tackle and carts. + +[^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._ + +[^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. + +[^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_.” + +[^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. + +[^29]: 1 Hume, Appendix, 1. + +[^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. + +[^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. + +[^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. + +[^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 index 46f096b..26df065 100644 --- a/edited/03.markdown +++ b/edited/03.markdown @@ -1989,805 +1989,805 @@ 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.] +[^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. + +[^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.” + +[^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. + +[^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. + +[^38]: Page 31. + +[^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. + +[^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_. + +[^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. + +[^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. + +[^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_. + +[^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. + +[^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. + +[^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. + +[^47]: Mackintosh’s History of England, ch. 3. Lardner’s Cabinet + Cyclopædia, 266. + +[^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. + +[^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. + +[^50]: The jurors were sometimes called “assessors,” because they + assessed, or determined the amount of fines and amercements to be + imposed. + +[^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. + +[^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. + +[^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. + +[^54]: 1 Blackstone, 63-67. + +[^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. + +[^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_. + +[^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_.” + +[^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. + +[^59]: “_Common right_” was the common law. _1 Coke’s Inst._ 142 + a. 2 _do._ 55, 6. + +[^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.) + +[^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. + +[^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.” + +[^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_.” + +[^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. + +[^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.” + +[^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. + +[^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 index d3c6982..3f6d3ec 100644 --- a/edited/04.markdown +++ b/edited/04.markdown @@ -391,167 +391,167 @@ 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.] +[^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. +[^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. -It is not necessary to occupy space here to give details as to these -robberies; but only some evidence of the general fact. +[^70]: By the Magna Carta of Henry III. this is changed to once a + year. -> 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. +[^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. -> “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.] +[^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 index 1db3132..c976da7 100644 --- a/edited/05.markdown +++ b/edited/05.markdown @@ -678,77 +678,77 @@ 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.] +[^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.] +[^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. +[^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. -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. +[^76]: Jones on Bailments, 133. -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.] +[^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 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.] +[^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 index 3287755..de5e17a 100644 --- a/edited/06.markdown +++ b/edited/06.markdown @@ -533,155 +533,155 @@ 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.] +[^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_.”] +[^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.] +[^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.” +[^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.) -> “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.) +[^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. -> 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.) +[^84]: _Lingard_ says: “These compurgators or jurors * * were + sometimes * * _drawn by lot_.”—_1 Lingard’s History of England_, p. + 300. -A statute passed in 1494, in regard to jurors in the city of London, -enacts: +[^85]: Chapter 4, p. 120, note. -> “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.] +[^86]: A mark was thirteen shillings and four pence. diff --git a/edited/07.markdown b/edited/07.markdown index 980a209..cfffe37 100644 --- a/edited/07.markdown +++ b/edited/07.markdown @@ -227,616 +227,616 @@ 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.] +[^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. + +[^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. + +[^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. + +[^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. + +[^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. + +[^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._ + +[^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. + +[^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. + +[^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. + +[^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. + +[^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._ + +[^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 index 2cae924..6290e40 100644 --- a/edited/08.markdown +++ b/edited/08.markdown @@ -168,46 +168,46 @@ 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.] +[^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.] +[^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.] +[^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.] +[^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 index 595804c..43dfe31 100644 --- a/edited/09.markdown +++ b/edited/09.markdown @@ -312,118 +312,118 @@ 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_. +[^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. -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. +[^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. -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.] +[^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/11.markdown b/edited/11.markdown index 2f6c31d..3770bf9 100644 --- a/edited/11.markdown +++ b/edited/11.markdown @@ -469,159 +469,159 @@ An old book, called “English Liberties,” says: > 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.] +[^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_.] +[^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.] +[^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. +[^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. -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. +[^110]: Under the head of “_John._” -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. +[^111]: _4 Blackstone_, 349-50. -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. +[^112]: _3 Blackstone_, 379. -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. +[^113]: _Hume_, ch. 2. -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. +[^114]: Page 203, 5th edition, 1721. -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. +[^115]: St. 1 _William and Mary_, ch. 6, (1688.) -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.] +[^116]: 4 _Inst._, 36. diff --git a/edited/12.markdown b/edited/12.markdown index 148d287..8a51f08 100644 --- a/edited/12.markdown +++ b/edited/12.markdown @@ -564,5 +564,5 @@ 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.] +[^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 index 6796d13..49beb3b 100644 --- a/edited/appendix.markdown +++ b/edited/appendix.markdown @@ -96,30 +96,30 @@ By what force, fraud, and conspiracy, on the part of kings, nobles, and 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.] +[^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.