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@ -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_.