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@ -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.