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Fix footnote bodies

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This commit is contained in:
Brandon Dyck 2023-08-03 18:46:41 -06:00
parent ca9ce5723e
commit ff9ad5f107
13 changed files with 2723 additions and 2709 deletions
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24
edit-chapters.go
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@ -3,6 +3,7 @@
package main package main
import ( import (
"bytes"
"log" "log"
"os" "os"
"path/filepath" "path/filepath"
@ -44,24 +45,34 @@ var replacers = mapSlice(compile, [][2]string{
// Left double typographical quote // Left double typographical quote
{`"(\w|_\w)`, `“$1`}, {`"(\w|_\w)`, `“$1`},
// Right double typographical quote // Right double typographical quote
{`"`, `”`}, {`"`, `”`},
// Footnote superscripts
{`\[(\d+)\]`, `[^$1]`},
// Left single typographical quote // Left single typographical quote
{`([^\pL])'(\pL|_)`, `$1‘$2`}, {`([^\pL])'(\pL|_)`, `$1‘$2`},
{`(?m)^'`, `‘`}, {`(?m)^'`, `‘`},
// Right single typographical quote // Right single typographical quote
{`'`, `’`}, {`'`, `’`},
// Block quotes // Block quotes
{`(?m)^ +(\S)`, `> $1`}, {`(?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 { func run() error {
paths, err := filepath.Glob("original/*.markdown") paths, err := filepath.Glob("original/*.markdown")
if err != nil { if err != nil {
@ -72,10 +83,13 @@ func run() error {
if err != nil { if err != nil {
return err return err
} }
var edited = b var edited = b
for _, r := range replacers { for _, r := range replacers {
edited = r.re.ReplaceAll(edited, []byte(r.replacement)) edited = r.re.ReplaceAll(edited, []byte(r.replacement))
} }
edited = footnoteRE.ReplaceAllFunc(edited, replaceFootnote)
outpath := filepath.Join("edited", filepath.Base(path)) outpath := filepath.Join("edited", filepath.Base(path))
err = os.WriteFile(outpath, edited, 0666) err = os.WriteFile(outpath, edited, 0666)
if err != nil { if err != nil {

16
edited/01.markdown
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@ -506,7 +506,7 @@ decree, rendered by a jury in each individual case, upon such evidence,
and such law, as are satisfactory to their own understandings and and such law, as are satisfactory to their own understandings and
consciences, irrespective of all legislation of the government. consciences, irrespective of all legislation of the government.
[Footnote 1: To show that this supposition is not an extravagant one, it [^1]: To show that this supposition is not an extravagant one, it
may be mentioned that courts have repeatedly questioned jurors to may be mentioned that courts have repeatedly questioned jurors to
ascertain whether they were prejudiced _against the government_—that ascertain whether they were prejudiced _against the government_—that
is, whether they were in favor of, or opposed to, such laws of the is, whether they were in favor of, or opposed to, such laws of the
@ -567,21 +567,21 @@ maintain his laws, without regard to their injustice.
This example is sufficient to show that the very pith of the trial by 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 jury, as a safeguard to liberty, consists in the jurors being taken
indiscriminately from the whole people, and in their right to hold indiscriminately from the whole people, and in their right to hold
invalid all laws which they think unjust.] invalid all laws which they think unjust.
[Footnote 2: The executive has a qualified veto upon the passage of [^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, 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 upon the execution of any laws which he deems unconstitutional; because
his oath to support the constitution (as he understands it) forbids him his oath to support the constitution (as he understands it) forbids him
to execute any law that he deems unconstitutional.] to execute any law that he deems unconstitutional.
[Footnote 3: And if there be so much as a reasonable _doubt_ of the [^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 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 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 its laws _clearly_ within the limits of justice, if it would ask a jury
to enforce them.] to enforce them.
[Footnote 4: _Hallam_ says, “The relation established between a lord and [^4]: _Hallam_ says, “The relation established between a lord and
his vassal by the feudal tenure, far from containing principles of any his vassal by the feudal tenure, far from containing principles of any
servile and implicit obedience, permitted the compact to be dissolved in servile and implicit obedience, permitted the compact to be dissolved in
case of its violation by either party. This extended as much to the case of its violation by either party. This extended as much to the
@ -602,4 +602,4 @@ deemed inconsistent with the majesty of law. But ruder ages had ruder
sentiments. Force was necessary to repel force; and men accustomed to 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 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_, when it was resisted in defence of public freedom.”—_3 Middle Ages_,
240-2.] 240-2.

100
edited/02.markdown
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@ -893,11 +893,11 @@ 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 (or _or_, as the case may require) the Common Law of England, (as it was
at the time of Magna Carta, in 1215.) at the time of Magna Carta, in 1215.)
[Footnote 5: 1 Hume, Appendix 2.] [^5]: 1 Hume, Appendix 2.
[Footnote 6: Crabbe’s History of the English Law, 236.] [^6]: Crabbe’s History of the English Law, 236.
[Footnote 7: Coke says, “The king of England is armed with divers [^7]: Coke says, “The king of England is armed with divers
councils, one whereof is called _commune concilium_, (the common councils, one whereof is called _commune concilium_, (the common
council,) and that is the court of parliament, and so it is _legally_ council,) and that is the court of parliament, and so it is _legally_
called in writs and judicial proceedings _commune concilium regni called in writs and judicial proceedings _commune concilium regni
@ -909,22 +909,22 @@ concilium regis_, (the great council of the king;) * * Thirdly, (as
every man knoweth,) the king hath a privy council for matters of state. 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.” * * The fourth council of the king are his judges for law matters.”
_1 Coke’s Institutes, 110 a._] _1 Coke’s Institutes, 110 a._
[Footnote 8: The Great Charter of Henry III., (1216 and 1225,) confirmed [^8]: The Great Charter of Henry III., (1216 and 1225,) confirmed
by Edward I., (1297,) makes no provision whatever for, or mention of, a by Edward I., (1297,) makes no provision whatever for, or mention of, a
parliament, unless the provision, (Ch. 37,) that “Escuage, (a military parliament, unless the provision, (Ch. 37,) that “Escuage, (a military
contribution,) from henceforth shall be taken like as it was wont to be 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 in the time of King Henry our grandfather,” mean that a parliament shall
be summoned for that purpose.] be summoned for that purpose.
[Footnote 9: The Magna Carta of John, (Ch. 17 and 18,) defines those who [^9]: The Magna Carta of John, (Ch. 17 and 18,) defines those who
were entitled to be summoned to parliament, to wit, “The Archbishops, were entitled to be summoned to parliament, to wit, “The Archbishops,
Bishops, Abbots, Earls, and Great Barons of the Realm, * * and all 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 others who hold of us _in chief_.” Those who held land of the king _in
chief_ included none below the rank of knights.] chief_ included none below the rank of knights.
[Footnote 10: The parliaments of that time were, doubtless, such as [^10]: The parliaments of that time were, doubtless, such as
Carlyle describes them, when he says, “The parliament was at first a Carlyle describes them, when he says, “The parliament was at first a
most simple assemblage, quite cognate to the situation; that Red most simple assemblage, quite cognate to the situation; that Red
William, or whoever had taken on him the terrible task of being King of William, or whoever had taken on him the terrible task of being King of
@ -935,13 +935,13 @@ morning, in freer talk over Christmas cheer all evening, in some big
royal hall of Westminster, Winchester, or wherever it might be, with log royal hall of Westminster, Winchester, or wherever it might be, with log
fires, huge rounds of roast and boiled, not lacking malmsey and other fires, huge rounds of roast and boiled, not lacking malmsey and other
generous liquor, they took counsel concerning the arduous matters of the generous liquor, they took counsel concerning the arduous matters of the
kingdom.”] kingdom.”
[Footnote 11: Hume, Appendix 2.] [^11]: Hume, Appendix 2.
[Footnote 12: This point will be more fully established hereafter.] [^12]: This point will be more fully established hereafter.
[Footnote 13: It is plain that the king and all his partisans looked [^13]: It is plain that the king and all his partisans looked
upon the charter as utterly prostrating the king’s legislative supremacy upon the charter as utterly prostrating the king’s legislative supremacy
before the discretion of juries. When the schedule of liberties demanded 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 by the barons was shown to him, (of which the trial by jury was the most
@ -975,19 +975,19 @@ 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 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 effectually stripped of power. _Yet the legislative power had not been
taken from him; but only the power to enforce his laws, unless juries taken from him; but only the power to enforce his laws, unless juries
should freely consent to their enforcement._] should freely consent to their enforcement._
[Footnote 14: The laws were, at that time, all written in Latin.] [^14]: The laws were, at that time, all written in Latin.
[Footnote 15: “No man shall be condemned at the king’s suit, either [^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 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,) 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 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 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 his peers, that is, equals, or according to the law of the land.”—_2
Coke’s Inst._, 46.] Coke’s Inst._, 46.
[Footnote 16: Perhaps the assertion in the text should be made with this [^16]: Perhaps the assertion in the text should be made with this
qualification—that the words “_per legem terræ_,” (according to the law qualification—that the words “_per legem terræ_,” (according to the law
of the land,) and the words “_per legale judicium parium suorum_,” of the land,) and the words “_per legale judicium parium suorum_,”
(according to the _legal_ judgment of his peers,) imply that the king, (according to the _legal_ judgment of his peers,) imply that the king,
@ -998,15 +998,15 @@ land authorizes, and no judgments of the peers, except _legal_ ones.
With this qualification, the assertion in the text is strictly With this qualification, the assertion in the text is strictly
correct—that there is nothing in the whole chapter that grants to the 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 king, or his judges, any _judicial_ power at all. The chapter only
describes and _limits_ his _executive_ power.] describes and _limits_ his _executive_ power.
[Footnote 17: See Blackstone’s Law Tracts, page 294, Oxford Edition.] [^17]: See Blackstone’s Law Tracts, page 294, Oxford Edition.
[Footnote 18: These Articles of the Charter are given in Blackstone’s [^18]: These Articles of the Charter are given in Blackstone’s
collection of Charters, and are also printed with the _Statutes of the collection of Charters, and are also printed with the _Statutes of the
Realm_. Also in Wilkins’ Laws of the Anglo-Saxons, p. 356.] Realm_. Also in Wilkins’ Laws of the Anglo-Saxons, p. 356.
[Footnote 19: Lingard says, “The words, ‘_We will not destroy him, nor [^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 will we go upon him, nor will we send upon him_,’ have been very
differently expounded by different legal authorities. Their real meaning differently expounded by different legal authorities. Their real meaning
may be learned from John himself, who the next year promised by his may be learned from John himself, who the next year promised by his
@ -1018,9 +1018,9 @@ 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, _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 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 secret enemies, without observing any form of law.”—3 Lingard, 47
note.] note.
[Footnote 20: “_Judgment, judicium._ * * The sentence of the law, [^20]: “_Judgment, judicium._ * * The sentence of the law,
pronounced by the court, upon the matter contained in the record.”—3 pronounced by the court, upon the matter contained in the record.”—3
_Blackstone_, 395. _Jacob’s Law Dictionary. Tomlin’s do._ _Blackstone_, 395. _Jacob’s Law Dictionary. Tomlin’s do._
@ -1064,23 +1064,23 @@ expressly ordained by law.”—_Blackstone’s Analysis of the Laws of
England, Book 4, Ch. 29, Sec. 1. Blackstone’s Law Tracts_, 126. England, Book 4, Ch. 29, Sec. 1. Blackstone’s Law Tracts_, 126.
Coke says, “_Judicium_ ... the judgment is the guide and direction of Coke says, “_Judicium_ ... the judgment is the guide and direction of
the execution.” 3 _Inst._ 210.] the execution.” 3 _Inst._ 210.
[Footnote 21: This precedent from Germany is good authority, because the [^21]: This precedent from Germany is good authority, because the
trial by jury was in use, in the northern nations of Europe generally, trial by jury was in use, in the northern nations of Europe generally,
long before Magna Carta, and probably from time immemorial; and the long before Magna Carta, and probably from time immemorial; and the
Saxons and Normans were familiar with it before they settled in Saxons and Normans were familiar with it before they settled in
England.] England.
[Footnote 22: _Beneficium_ was the legal name of an estate held by a [^22]: _Beneficium_ was the legal name of an estate held by a
feudal tenure. See Spelman’s Glossary.] feudal tenure. See Spelman’s Glossary.
[Footnote 23: _Contenement_ of a freeman was the means of living in the [^23]: _Contenement_ of a freeman was the means of living in the
condition of a freeman.] condition of a freeman.
[Footnote 24: _Waynage_ was a villein’s plough-tackle and carts.] [^24]: _Waynage_ was a villein’s plough-tackle and carts.
[Footnote 25: Tomlin says, “The ancient practice was, when any such fine [^25]: Tomlin says, “The ancient practice was, when any such fine
was imposed, to inquire by a jury _quantum inde regi dare valeat per was imposed, to inquire by a jury _quantum inde regi dare valeat per
annum, salva sustentatione sua et uxoris et liberorum suorum_, (how much 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, is he able to give to the king per annum, saving his own maintenance,
@ -1092,9 +1092,9 @@ as might amount to imprisonment for life. And this is the reason why
fines in the king’s courts are frequently denominated ransoms, because fines in the king’s courts are frequently denominated ransoms, because
the penalty must otherwise fall upon a man’s person, unless it be 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 redeemed or ransomed by a pecuniary fine.”—_Tomlin’s Law Dict., word
Fine._] Fine._
[Footnote 26: Because juries were to fix the sentence, it must not be [^26]: Because juries were to fix the sentence, it must not be
supposed that the king was _obliged_ to carry the sentence into supposed that the king was _obliged_ to carry the sentence into
execution; _but only that he could not go beyond the sentence_. He might execution; _but only that he could not go beyond the sentence_. He might
pardon, or he might acquit on grounds of law, notwithstanding the pardon, or he might acquit on grounds of law, notwithstanding the
@ -1103,9 +1103,9 @@ 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 the sentence of the peers; but only that he shall not punish _“unless
according to” that sentence_. He may acquit or pardon, notwithstanding according to” that sentence_. He may acquit or pardon, notwithstanding
their sentence or judgment; but he cannot punish, except according to their sentence or judgment; but he cannot punish, except according to
their judgment.] their judgment.
[Footnote 27: _The trial by battle_ was one in which the accused [^27]: _The trial by battle_ was one in which the accused
challenged his accuser to single combat, and staked the question of his 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 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 into England by the Normans, within one hundred and fifty years before
@ -1151,9 +1151,9 @@ 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 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 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 extinct at the time of Magna Carta; and there is no probability that it
was included in “_legem terræ_.”] was included in “_legem terræ_.”
[Footnote 28: Coke attempts to show that there is a distinction between [^28]: Coke attempts to show that there is a distinction between
amercements and fines—admitting that amercements must be fixed by one’s amercements and fines—admitting that amercements must be fixed by one’s
peers, but claiming that fines may be fixed by the government. (_2 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 Inst._ 27, _8 Coke’s Reports_ 38.) But there seems to have been no
@ -1227,11 +1227,11 @@ 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 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 upon all manner of forestallers, and likewise upon them that have given
them counsel, help, or favor.”—_1 Ruffhead’s Statutes_, 187, 188. _1 them counsel, help, or favor.”—_1 Ruffhead’s Statutes_, 187, 188. _1
Statutes of the Realm_, 203.] Statutes of the Realm_, 203.
[Footnote 29: 1 Hume, Appendix, 1.] [^29]: 1 Hume, Appendix, 1.
[Footnote 30: Blackstone says, “Our ancient Saxon laws nominally [^30]: Blackstone says, “Our ancient Saxon laws nominally
punished theft with death, if above the value of twelve pence; but the 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 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 among their ancestors, the Germans, by a stated number of cattle. But in
@ -1259,15 +1259,15 @@ by reason of murders and manslaughters, for misdemeanors, for
disseisins, for recreancy, for breach of assize, for defaults, for disseisins, for recreancy, for breach of assize, for defaults, for
non-appearance, for false judgment, and for not making suit, or hue and non-appearance, for false judgment, and for not making suit, or hue and
cry. To them may be added miscellaneous amercements, for trespasses of cry. To them may be added miscellaneous amercements, for trespasses of
divers kinds.”—_1 Maddox’ History of the Exchequer_, 542.] divers kinds.”—_1 Maddox’ History of the Exchequer_, 542.
[Footnote 31: Coke, in his exposition of the words _legem terræ_, gives [^31]: Coke, in his exposition of the words _legem terræ_, gives
quite in detail the principles of the common law governing _arrests_; quite in detail the principles of the common law governing _arrests_;
and takes it for granted that the words “_nisi per legem terræ_” are 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._, applicable to arrests, as well as to the indictment, &c.—2 _Inst._,
51,52.] 51,52.
[Footnote 32: I cite the above extract from Mr. Hallam solely for the [^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 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 any means for the purpose of indorsing the opinion he suggests, that
_legem terræ_ authorized “judgments by default or demurrer,” _without _legem terræ_ authorized “judgments by default or demurrer,” _without
@ -1381,8 +1381,8 @@ 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, founded on _statute only_, is therefore a “_lawful_
cause of action,” within the meaning of _legem terræ_, or the _Common cause of action,” within the meaning of _legem terræ_, or the _Common
Law_. Within the meaning of the _legem terræ_ of Magna Carta, nothing Law_. Within the meaning of the _legem terræ_ of Magna Carta, nothing
but a _common law_ cause of action is a “_lawful_” one.] but a _common law_ cause of action is a “_lawful_” one.
[Footnote 33: Hallam says, “It appears as if the ordeal were permitted [^33]: Hallam says, “It appears as if the ordeal were permitted
to persons already convicted by this verdict of a jury.”—_2 Middle to persons already convicted by this verdict of a jury.”—_2 Middle
Ages_, 446, _note_.] Ages_, 446, _note_.

132
edited/03.markdown
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@ -1989,7 +1989,7 @@ ideas of right; because it was one part of the common law that juries
should try all causes according to their own consciences, any should try all causes according to their own consciences, any
legislation of the king to the contrary notwithstanding.[^64] legislation of the king to the contrary notwithstanding.[^64]
[Footnote 34: Hale says: [^34]: Hale says:
> “The trial by jury of twelve men was the usual trial among the > “The trial by jury of twelve men was the usual trial among the
> Normans, in most suits; especially in assizes, et juris utrum.”—_1 > Normans, in most suits; especially in assizes, et juris utrum.”—_1
@ -2003,19 +2003,19 @@ Crabbe says:
> “It cannot be denied that the practice of submitting causes to the > “It cannot be denied that the practice of submitting causes to the
> decision of twelve men was universal among all the northern tribes > decision of twelve men was universal among all the northern tribes
> (of Europe) from the very remotest antiquity.”—_Crabbe’s History of > (of Europe) from the very remotest antiquity.”—_Crabbe’s History of
> the English Law_, p. 32.] > the English Law_, p. 32.
[Footnote 35: “The people, who in every general council or assembly [^35]: “The people, who in every general council or assembly
could oppose and dethrone their sovereigns, were in little dread of could oppose and dethrone their sovereigns, were in little dread of
their encroachments on their liberties; and kings, who found sufficient their encroachments on their liberties; and kings, who found sufficient
employment in keeping possession of their crowns, would not likely employment in keeping possession of their crowns, would not likely
attack the more important privileges of their subjects.”] attack the more important privileges of their subjects.”
[Footnote 36: This office was afterwards committed to sheriffs. But even [^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 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.] Pares (peers) only_.”—_Gilbert on the Court of Exchequer_, 61-2.
[Footnote 37: The opinion expressed in the text, that the Witan had no [^37]: The opinion expressed in the text, that the Witan had no
legislative authority, is corroborated by the following authorities: legislative authority, is corroborated by the following authorities:
“From the fact that the new laws passed by the king and the Witan were “From the fact that the new laws passed by the king and the Witan were
@ -2046,11 +2046,11 @@ county meetings, where they proclaimed the laws made by the king and his
counsellors, which, being acknowledged and sworn to at these counsellors, which, being acknowledged and sworn to at these
_folk-motes_ (meetings of the people) became, by their assent, _folk-motes_ (meetings of the people) became, by their assent,
completely binding on the whole nation.”—_Mackintosh’s Hist. of completely binding on the whole nation.”—_Mackintosh’s Hist. of
England_, _Ch._ 2. _45 Lardner’s Cab. Cyc._, 75.] England_, _Ch._ 2. _45 Lardner’s Cab. Cyc._, 75.
[Footnote 38: Page 31.] [^38]: Page 31.
[Footnote 39: Hallam says, “It was, however, to the county court that an [^39]: Hallam says, “It was, however, to the county court that an
English freeman chiefly looked for the maintenance of his civil English freeman chiefly looked for the maintenance of his civil
rights.”—_2 Middle Ages_, 392. rights.”—_2 Middle Ages_, 392.
@ -2060,9 +2060,9 @@ in all questions of civil right.”—_Ditto_, 395.
Also, “The liberties of these Anglo-Saxon thanes were chiefly secured, Also, “The liberties of these Anglo-Saxon thanes were chiefly secured,
next to their swords and their free spirits, by the inestimable right of next to their swords and their free spirits, by the inestimable right of
deciding civil and criminal suits in their own county courts.”—_Ditto_, deciding civil and criminal suits in their own county courts.”—_Ditto_,
399.] 399.
[Footnote 40: “Alfred may, in one sense, be called the founder of these [^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 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 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 forefathers into one code, and also I wrote them down_’—which is a
@ -2117,13 +2117,13 @@ Blackstone_, 412.
Confessor, confirmed and enlarged as they were by William the Conqueror; 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 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 called ‘_The Common Law of the Land_.’”—_Introduction to Gilbert’s
History of the Common Pleas_, p. 22, _note_.] History of the Common Pleas_, p. 22, _note_.
[Footnote 41: Not the conqueror of the English people, (as the friends [^41]: Not the conqueror of the English people, (as the friends
of liberty maintain,) but only of Harold the usurper.—See _Hale’s of liberty maintain,) but only of Harold the usurper.—See _Hale’s
History of the Common Law_, ch. 5.] History of the Common Law_, ch. 5.
[Footnote 42: For all these codes see Wilkins’ Laws of the Anglo-Saxons. [^42]: For all these codes see Wilkins’ Laws of the Anglo-Saxons.
“Being regulations adapted to existing institutions, the Anglo-Saxon “Being regulations adapted to existing institutions, the Anglo-Saxon
statutes are concise and technical, alluding to the law which was then statutes are concise and technical, alluding to the law which was then
@ -2148,23 +2148,23 @@ inferred from the absence of direct evidence. Written laws were modified
and controlled by customs of which no trace can be discovered, until and controlled by customs of which no trace can be discovered, until
after the lapse of centuries, although those usages must have been in after the lapse of centuries, although those usages must have been in
constant vigor during the long interval of silence.”—_1 Palgrave’s Rise constant vigor during the long interval of silence.”—_1 Palgrave’s Rise
and Progress of the English Commonwealth_, 58-9.] and Progress of the English Commonwealth_, 58-9.
[Footnote 43: Rapin says, “The customs now practised in England are, for [^43]: Rapin says, “The customs now practised in England are, for
the most part, the same as the Anglo-Saxons brought with them from the most part, the same as the Anglo-Saxons brought with them from
Germany.”—_Rapin’s Dissertation on the Government of the Anglo-Saxons_, Germany.”—_Rapin’s Dissertation on the Government of the Anglo-Saxons_,
vol. 2, Oct. Ed., p. 198. See _Kelham’s Discourse before named_.] vol. 2, Oct. Ed., p. 198. See _Kelham’s Discourse before named_.
[Footnote 44: Hallam says, “The county of Sussex contains sixty-five [^44]: Hallam says, “The county of Sussex contains sixty-five
(‘hundreds’); that of Dorset forty-three; while Yorkshire has only (‘hundreds’); that of Dorset forty-three; while Yorkshire has only
twenty-six; and Lancashire but six.”—_2 Middle Ages_, 391.] twenty-six; and Lancashire but six.”—_2 Middle Ages_, 391.
[Footnote 45: Excepting also matters pertaining to the collection of the [^45]: Excepting also matters pertaining to the collection of the
revenue, which were determined in the king’s court of exchequer. But 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 even in this court it was the law “_that none be amerced but by his
peers_.”—_Mirror of Justices_, 49.] peers_.”—_Mirror of Justices_, 49.
[Footnote 46: “For the English laws, _although not written_, may, as it [^46]: “For the English laws, _although not written_, may, as it
should seem, and that without any absurdity, be termed laws, (since this 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 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 mean those laws which it is evident were promulgated by the advice of
@ -2174,12 +2174,12 @@ they should not be considered laws, then, unquestionably, writing would
seem to confer more authority upon laws themselves, than either the seem to confer more authority upon laws themselves, than either the
equity of the persons constituting, or the reason of those framing equity of the persons constituting, or the reason of those framing
them.”—_Glanville’s Preface_, p. 38. (Glanville was chief justice of them.”—_Glanville’s Preface_, p. 38. (Glanville was chief justice of
Henry II., 1180.) _2 Turner’s History of the Anglo-Saxons_, 280.] Henry II., 1180.) _2 Turner’s History of the Anglo-Saxons_, 280.
[Footnote 47: Mackintosh’s History of England, ch. 3. Lardner’s Cabinet [^47]: Mackintosh’s History of England, ch. 3. Lardner’s Cabinet
Cyclopædia, 266.] Cyclopædia, 266.
[Footnote 48: If the laws of the king were received as authoritative by [^48]: If the laws of the king were received as authoritative by
the juries, what occasion was there for his appointing special the juries, what occasion was there for his appointing special
commissioners for the trial of offences, without the intervention of a commissioners for the trial of offences, without the intervention of a
jury, as he frequently did, in manifest and acknowledged violation of jury, as he frequently did, in manifest and acknowledged violation of
@ -2187,18 +2187,18 @@ Magna Carta, and “the law of the land?” These appointments were
undoubtedly made for no other reason than that the juries were not undoubtedly made for no other reason than that the juries were not
sufficiently subservient, but judged according to their own notions of sufficiently subservient, but judged according to their own notions of
right, instead of the will of the king—whether the latter were right, instead of the will of the king—whether the latter were
expressed in his statutes, or by his judges.] expressed in his statutes, or by his judges.
[Footnote 49: Of course, Mr. Reeve means to be understood that, in the [^49]: Of course, Mr. Reeve means to be understood that, in the
hundred court, and court-leet, _the jurors were the judges_, as he hundred court, and court-leet, _the jurors were the judges_, as he
declares them to have been in the county court; otherwise the “bailiff” declares them to have been in the county court; otherwise the “bailiff”
or “steward” must have been judge.] or “steward” must have been judge.
[Footnote 50: The jurors were sometimes called “assessors,” because they [^50]: The jurors were sometimes called “assessors,” because they
assessed, or determined the amount of fines and amercements to be assessed, or determined the amount of fines and amercements to be
imposed.] imposed.
[Footnote 51: “The barons of the Hundred” were the freeholders. Hallam [^51]: “The barons of the Hundred” were the freeholders. Hallam
says: “The word _baro_, originally meaning only a man, was of very large says: “The word _baro_, originally meaning only a man, was of very large
significance, and is not unfrequently applied to common freeholders, as significance, and is not unfrequently applied to common freeholders, as
in the phrase _court-baron_.”—_3 Middle Ages_, 14-15. in the phrase _court-baron_.”—_3 Middle Ages_, 14-15.
@ -2206,13 +2206,13 @@ in the phrase _court-baron_.”—_3 Middle Ages_, 14-15.
_Blackstone_ says: “The _court-baron_ * * is a court of common law, and _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 it is the court of the barons, by which name the freeholders were
sometimes anciently called; for that it is held before the freeholders sometimes anciently called; for that it is held before the freeholders
who owe suit and service to the manor.”—_3 Blackstone_, 33.] who owe suit and service to the manor.”—_3 Blackstone_, 33.
[Footnote 52: The ancient jury courts kept no records, because those who [^52]: The ancient jury courts kept no records, because those who
composed the courts could neither make nor read records. Their decisions composed the courts could neither make nor read records. Their decisions
were preserved by the memories of the jurors and other persons present.] were preserved by the memories of the jurors and other persons present.
[Footnote 53: Stuart says: [^53]: Stuart says:
“The courts, or civil arrangements, which were modelled in Germany, “The courts, or civil arrangements, which were modelled in Germany,
preserved the independence of the people; and having followed the Saxons preserved the independence of the people; and having followed the Saxons
@ -2489,11 +2489,11 @@ provision of our ancestors in settling the distribution of justice in a
method so well calculated for cheapness, expedition, and ease. By the method so well calculated for cheapness, expedition, and ease. By the
constitution which they established, all trivial debts, and injuries of constitution which they established, all trivial debts, and injuries of
small consequence, were to be recovered or redressed in every man’s own small consequence, were to be recovered or redressed in every man’s own
county, hundred, or perhaps parish.”—_3 Blackstone_, 59.] county, hundred, or perhaps parish.”—_3 Blackstone_, 59.
[Footnote 54: 1 Blackstone, 63-67.] [^54]: 1 Blackstone, 63-67.
[Footnote 55: This quaint and curious book (Smith’s Commonwealth of [^55]: This quaint and curious book (Smith’s Commonwealth of
England) describes the _minutiæ_ of trials, giving in detail the mode of England) describes the _minutiæ_ of trials, giving in detail the mode of
impanelling the jury, and then the conduct of the lawyers, witnesses, impanelling the jury, and then the conduct of the lawyers, witnesses,
and court. I give the following extracts, _tending to show that the and court. I give the following extracts, _tending to show that the
@ -2560,9 +2560,9 @@ same point:
> lord. And for judge one lord sitteth, who is constable of England for > lord. And for judge one lord sitteth, who is constable of England for
> that day. The judgment once given, he breaketh his staff, and > that day. The judgment once given, he breaketh his staff, and
> abdicateth his office. In the rest there is no difference from that > abdicateth his office. In the rest there is no difference from that
> above written,” (that is, in the case of a freeman.)—p. 98.] > 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 [^56]: “The present form of the jurors’ oath is that they shall
‘give a true verdict _according to the evidence_.’ At what time this ‘give a true verdict _according to the evidence_.’ At what time this
form was introduced is uncertain; but for several centuries after the form was introduced is uncertain; but for several centuries after the
Conquest, the jurors, _both in civil and criminal cases_, were sworn Conquest, the jurors, _both in civil and criminal cases_, were sworn
@ -2570,13 +2570,13 @@ 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 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 was accurately termed _veredictum_, or verdict, that is, ‘a thing truly
said’; whereas the phrase ‘true verdict’ in the modern oath is not an said’; whereas the phrase ‘true verdict’ in the modern oath is not an
accurate expression.”—_Political Dictionary_, word _Jury_.] accurate expression.”—_Political Dictionary_, word _Jury_.
[Footnote 57: Of course, there can be no legal trial by jury, in either [^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 civil or criminal cases, where the jury are sworn to try the cases
“_according to law_.”] “_according to law_.”
[Footnote 58: _Coke_, as late as 1588, admits that amercements must be [^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, 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 wholly without success, as it seems to me, to show a difference between
fines and amercements. The statutes are very numerous, running through fines and amercements. The statutes are very numerous, running through
@ -2585,12 +2585,12 @@ 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. common punishments of offences, and as if they all meant the same thing.
If, however, any technical difference could be made out between them, If, however, any technical difference could be made out between them,
there is clearly none in principle; and the word amercement, as used in there is clearly none in principle; and the word amercement, as used in
Magna Carta, must be taken in its most comprehensive sense.] Magna Carta, must be taken in its most comprehensive sense.
[Footnote 59: “_Common right_” was the common law. _1 Coke’s Inst._ 142 [^59]: “_Common right_” was the common law. _1 Coke’s Inst._ 142
a. 2 _do._ 55, 6.] a. 2 _do._ 55, 6.
[Footnote 60: The oath of the justices is in these words: [^60]: The oath of the justices is in these words:
“Ye shall swear, that well and lawfully ye shall serve our lord the king “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 _and his people_, in the office of justice, and that lawfully ye shall
@ -2629,15 +2629,15 @@ 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 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, 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 thereof to be done as shall please him, as God you help and all
saints.”—_18 Edward III._, st. 4. (1344.)] saints.”—_18 Edward III._, st. 4. (1344.)
[Footnote 61: That the terms “_Law_” and “_Right_,” as used in this [^61]: That the terms “_Law_” and “_Right_,” as used in this
statute, mean the _common law_, is shown by the preamble, which declares 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 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 law,) which we (the king) by our oath are bound to maintain_,” may be
the better kept, &c.] the better kept, &c.
[Footnote 62: The following is a copy of the original: [^62]: The following is a copy of the original:
> “_Forma Juramenti Regis Angliæ in Coronacione sua_: > “_Forma Juramenti Regis Angliæ in Coronacione sua_:
@ -2668,13 +2668,13 @@ the better kept, &c.]
> per te eas esse protegendas, et ad honorem Dei corroborandas, quas > per te eas esse protegendas, et ad honorem Dei corroborandas, quas
> vulgus elegit, secundum vires tuas? > vulgus elegit, secundum vires tuas?
> (Et respondeat Rex,) Concedo et promitto.”] > (Et respondeat Rex,) Concedo et promitto.”
[Footnote 63: It would appear, from the text, that the Charter of [^63]: It would appear, from the text, that the Charter of
Liberties and the Charter of the Forest were sometimes called “_laws of Liberties and the Charter of the Forest were sometimes called “_laws of
the land_.”] the land_.”
[Footnote 64: As the ancient coronation oath, given in the text, has [^64]: As the ancient coronation oath, given in the text, has
come down from the Saxon times, the following remarks of Palgrave will come down from the Saxon times, the following remarks of Palgrave will
be pertinent, in connection with the oath, as illustrating the fact be pertinent, in connection with the oath, as illustrating the fact
that, in those times, no special authority attached to the laws of the that, in those times, no special authority attached to the laws of the
@ -2756,15 +2756,15 @@ vassal denying his assent to the grant, might assert that the engagement
which he had contracted with his superior did not involve any pecuniary which he had contracted with his superior did not involve any pecuniary
subsidy, but only rendered him liable to perform service in the subsidy, but only rendered him liable to perform service in the
field.”—_1 Palgrave’s Rise and Progress of the English Commonwealth_, field.”—_1 Palgrave’s Rise and Progress of the English Commonwealth_,
637 to 642.] 637 to 642.
[Footnote 65: “It was the freemen in Germany, and the possessors of land [^65]: “It was the freemen in Germany, and the possessors of land
in England, who were _suitors_ (jurors) in the hundred court. These in England, who were _suitors_ (jurors) in the hundred court. These
ranks of men were the same. The alteration which had happened in ranks of men were the same. The alteration which had happened in
relation to property had invested the German freemen with land or relation to property had invested the German freemen with land or
territory.”] territory.”
[Footnote 66: It would be wholly erroneous, I think, to infer from this [^66]: It would be wholly erroneous, I think, to infer from this
statement of Stuart, that either the “priests, princes, earls, or statement of Stuart, that either the “priests, princes, earls, or
_eorldormen_” exercised any authority over the jury in the trial of _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 causes, in the way of dictating the law to them. Henry’s account of this
@ -2787,7 +2787,7 @@ 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 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 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, present, the one to instruct the people in divine, the other in human,
laws_.—_Wilkins_, p. 136.] laws_.—_Wilkins_, p. 136.
[Footnote 67: There was no distinction between the civil and criminal [^67]: There was no distinction between the civil and criminal
counts, as to the rights or powers of juries.] counts, as to the rights or powers of juries.

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@ -391,10 +391,10 @@ obligation to do either. And this statute is only one example of the
numberless contrivances and usurpations which have been resorted to, for numberless contrivances and usurpations which have been resorted to, for
the purpose of destroying the original and genuine trial by jury. the purpose of destroying the original and genuine trial by jury.
[Footnote 68: _Marches_, the limits, or boundaries, between England and [^68]: _Marches_, the limits, or boundaries, between England and
Wales.] Wales.
[Footnote 69: That the kings would have had no scruples to enact laws [^69]: That the kings would have had no scruples to enact laws
for the special purpose of plundering the people, by means of the for the special purpose of plundering the people, by means of the
judgments of juries, if they could have got juries to acknowledge 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 authority of their laws, is evident from the audacity with which they
@ -497,12 +497,12 @@ binding upon juries, there is no robbery, vengeance, or oppression,
which he could not have accomplished through the judgments of juries. which he could not have accomplished through the judgments of juries.
This consideration is sufficient, of itself, to prove that the laws of 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 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.] 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 [^70]: By the Magna Carta of Henry III. this is changed to once a
year.] year.
[Footnote 71: From the provision of Magna Carta, cited in the text, it [^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 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 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 legal, there must be other persons, chosen by the people, to sit with
@ -511,9 +511,9 @@ 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 only in the three actions specially mentioned. We cannot go beyond the
letter of Magna Carta, in making innovations upon the common law, which letter of Magna Carta, in making innovations upon the common law, which
required all presiding officers in jury trials to be elected by the required all presiding officers in jury trials to be elected by the
people.] people.
[Footnote 72: “The earls, sheriffs, and head-boroughs were annually [^72]: “The earls, sheriffs, and head-boroughs were annually
elected in the full folcmote, (people’s meeting).”—_Introduction to elected in the full folcmote, (people’s meeting).”—_Introduction to
Gilbert’s History of the Common Pleas_, p. 2, _note_. Gilbert’s History of the Common Pleas_, p. 2, _note_.
@ -554,4 +554,4 @@ after, and some remain to this day.”—_4 Blackstone_, 413.
“The election of sheriffs was left to the people, _according to ancient “The election of sheriffs was left to the people, _according to ancient
usage_.”—_St. West._ 1, c. 27.—_Crabbe’s History of English Law_, usage_.”—_St. West._ 1, c. 27.—_Crabbe’s History of English Law_,
181.] 181.

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@ -678,7 +678,7 @@ decide the same question the other way, _unless they were misled by the
justices_. If, however, such things should sometimes happen, from any justices_. If, however, such things should sometimes happen, from any
cause whatever, the remedy is by appeal, and new trial. cause whatever, the remedy is by appeal, and new trial.
[Footnote 73: Judges do not even live up to that part of their own [^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 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 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 hear, and what they may not hear, and also by dictating to them rules
@ -687,9 +687,9 @@ 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 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, 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 for a jury to try a question of fact, without trying every question of
law on which the fact depends.] law on which the fact depends.
[Footnote 74: Most disagreements of juries are on matters of fact, which [^74]: Most disagreements of juries are on matters of fact, which
are admitted to be within their province. We have little or no evidence are admitted to be within their province. We have little or no evidence
of their disagreements on matters of natural justice. The disagreements of their disagreements on matters of natural justice. The disagreements
of _courts_ on matters of law, afford little or no evidence that juries of _courts_ on matters of law, afford little or no evidence that juries
@ -697,9 +697,9 @@ would also disagree on matters of law—that is, _of justice_; because
the disagreements of courts are generally on matters of _legislation_, the disagreements of courts are generally on matters of _legislation_,
and not on those principles of abstract justice, by which juries would 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 be governed, and in regard to which the minds of men are nearly
unanimous.] unanimous.
[Footnote 75: This is the principle of all voluntary associations [^75]: This is the principle of all voluntary associations
whatsoever. No voluntary association was ever formed, and in the nature whatsoever. No voluntary association was ever formed, and in the nature
of things there never can be one formed, for the accomplishment of any 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 objects except those in which all the parties to the association are
@ -716,11 +716,11 @@ else he would not voluntarily join the association.
Justice is the object of government, and those who support the 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 government, must be agreed as to the justice to be executed by it, or
they cannot rightfully unite in maintaining the government itself.] they cannot rightfully unite in maintaining the government itself.
[Footnote 76: Jones on Bailments, 133.] [^76]: Jones on Bailments, 133.
[Footnote 77: Kent, describing the difficulty of construing the written [^77]: Kent, describing the difficulty of construing the written
law, says: law, says:
“Such is the imperfection of language, and the want of technical skill “Such is the imperfection of language, and the want of technical skill
@ -741,9 +741,9 @@ private, but public bills, _in order that legislation might be
consistent and systematic, and that the courts might not have so large a consistent and systematic, and that the courts might not have so large a
portion of their time occupied in endeavoring to construe acts of portion of their time occupied in endeavoring to construe acts of
Parliament, in many cases unconstruable, and in most cases difficult to Parliament, in many cases unconstruable, and in most cases difficult to
be construed_.”—_Law Reporter_, 1848, p. 525.] be construed_.”—_Law Reporter_, 1848, p. 525.
[Footnote 78: This condemnation of written laws must, of course, be [^78]: This condemnation of written laws must, of course, be
understood as applying only to cases where principles and rights are understood as applying only to cases where principles and rights are
involved, and not as condemning any governmental arrangements, or involved, and not as condemning any governmental arrangements, or
instrumentalities, that are consistent with natural right, and which instrumentalities, that are consistent with natural right, and which
@ -751,4 +751,4 @@ 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 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 be allowed to infringe no principle of justice. And they must, of
course, be written, because they do not exist as fixed principles, or course, be written, because they do not exist as fixed principles, or
laws in nature.] laws in nature.

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@ -533,22 +533,22 @@ juror. This mode of appointment would guard against collusion and
selection; and juries so appointed would be likely to be a fair epitome selection; and juries so appointed would be likely to be a fair epitome
of “the country.” 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, [^80]: Although all the freemen are legally eligible as jurors,
any one may nevertheless be challenged and set aside, at the trial, for any one may nevertheless be challenged and set aside, at the trial, for
any special _personal_ disqualification; such as mental or physical any special _personal_ disqualification; such as mental or physical
inability to perform the duties; having been convicted, or being under inability to perform the duties; having been convicted, or being under
charge, of crime; interest, bias, &c. But it is clear that the common 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 law allows none of these points to be determined by the court, but only
by “_triers_.”] by “_triers_.”
[Footnote 81: What was the precise meaning of the Saxon word, which I [^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 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 is rendered by _seniores_, which may perhaps mean simply those who have
attained their majority.] attained their majority.
[Footnote 82: In 1483 it was enacted, by a statute entitled “Of what [^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 credit and estate those jurors must be which shall be impanelled in the
Sheriff’s Turn.” Sheriff’s Turn.”
@ -665,9 +665,9 @@ enacted,
> all ground rents or other reservations payable by virtue of the said > all ground rents or other reservations payable by virtue of the said
> leases, shall be liable and obliged to serve upon juries when they > leases, shall be liable and obliged to serve upon juries when they
> shall be legally summoned for that purpose.”—_4 George II._, ch. 7, > shall be legally summoned for that purpose.”—_4 George II._, ch. 7,
> sec. 3. (1731.)] > sec. 3. (1731.)
[Footnote 83: Suppose these statutes, instead of disfranchising all [^83]: Suppose these statutes, instead of disfranchising all
whose freeholds were of less than the standard value fixed by the whose freeholds were of less than the standard value fixed by the
statutes, had disfranchised all whose freeholds were of greater value statutes, had disfranchised all whose freeholds were of greater value
than the same standard—would anybody ever have doubted that such than the same standard—would anybody ever have doubted that such
@ -676,12 +676,12 @@ 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 it was as clearly inconsistent with the common law, or the English
constitution, to disfranchise those whose freeholds fell below any constitution, to disfranchise those whose freeholds fell below any
arbitrary standard fixed by the government, as it would have been to arbitrary standard fixed by the government, as it would have been to
disfranchise all whose freeholds rose above that standard.] disfranchise all whose freeholds rose above that standard.
[Footnote 84: _Lingard_ says: “These compurgators or jurors * * were [^84]: _Lingard_ says: “These compurgators or jurors * * were
sometimes * * _drawn by lot_.”—_1 Lingard’s History of England_, p. sometimes * * _drawn by lot_.”—_1 Lingard’s History of England_, p.
300.] 300.
[Footnote 85: Chapter 4, p. 120, note.] [^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.

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@ -227,7 +227,7 @@ must be chosen by the people, and be entirely free from all dependence
upon, and all accountability to, the executive and legislative branches upon, and all accountability to, the executive and legislative branches
of the government.[^94] of the government.[^94]
[Footnote 87: The proofs of this principle of the common law have [^87]: The proofs of this principle of the common law have
already been given on page 120, _note_. already been given on page 120, _note_.
There is much confusion and contradiction among authors as to the manner There is much confusion and contradiction among authors as to the manner
@ -289,21 +289,21 @@ same points.
The confusion of _duties_ attributed to these officers indicates clearly The confusion of _duties_ attributed to these officers indicates clearly
enough that different officers, bearing, the same official names, must enough that different officers, bearing, the same official names, must
have had different duties, and have derived their authority from have had different duties, and have derived their authority from
different sources,—to wit, the king, and the people.] different sources,—to wit, the king, and the people.
[Footnote 88: _Darrein presentment_ was an inquest to discover who [^88]: _Darrein presentment_ was an inquest to discover who
presented the last person to a church; _mort de ancestor_, whether the 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 last possessor was seized of land in demesne of his own fee; and _novel
disseisin_, whether the claimant had been unjustly disseized of his disseisin_, whether the claimant had been unjustly disseized of his
freehold.] freehold.
[Footnote 89: He has no power to do it, _either with, or without, the [^89]: He has no power to do it, _either with, or without, the
king’s command_. The prohibition is absolute, containing no such king’s command_. The prohibition is absolute, containing no such
qualification as is here interpolated, viz., “_without the king’s qualification as is here interpolated, viz., “_without the king’s
command_.” If it could be done _with_ the king’s command, the king would command_.” If it could be done _with_ the king’s command, the king would
be invested with arbitrary power in the matter.] be invested with arbitrary power in the matter.
[Footnote 90: The absurdity of this doctrine of Coke is made more [^90]: The absurdity of this doctrine of Coke is made more
apparent by the fact that, at that time, the “justices” and other apparent by the fact that, at that time, the “justices” and other
persons appointed by the king to hold courts were not only dependent persons appointed by the king to hold courts were not only dependent
upon the king for their offices, and removable at his pleasure, _but upon the king for their offices, and removable at his pleasure, _but
@ -430,9 +430,9 @@ hold courts.
All these things show how perfectly lawless and arbitrary the kings were 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 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 principle of Magna Carta and the common law, that no person appointed by
the king should hold jury trials in criminal cases.] the king should hold jury trials in criminal cases.
[Footnote 91: The opinions and decisions of judges and courts are [^91]: The opinions and decisions of judges and courts are
undeserving of the least reliance, (beyond the intrinsic merit of the undeserving of the least reliance, (beyond the intrinsic merit of the
arguments offered to sustain them,) and are unworthy even to be quoted arguments offered to sustain them,) and are unworthy even to be quoted
as evidence of the law, _when those opinions or decisions are favorable as evidence of the law, _when those opinions or decisions are favorable
@ -484,9 +484,9 @@ the government pleases to allow to them.
It is extreme folly for a people to allow such dependent, servile, and 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 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 allow them to sit in criminal trials, and judge of the people’s
liberties, is not merely fatuity,—it is suicide.] liberties, is not merely fatuity,—it is suicide.
[Footnote 92: Coke, speaking of the word _bailiffs_, as used in the [^92]: Coke, speaking of the word _bailiffs_, as used in the
statute of 1 _Westminster_, ch. 35, (1275,) says: statute of 1 _Westminster_, ch. 35, (1275,) says:
> “Here _bailiffs_ are taken for the _judges of the court_, as > “Here _bailiffs_ are taken for the _judges of the court_, as
@ -754,9 +754,9 @@ _bailiff_, in England, is applied to the chief magistrates of towns, or
to the commanders of particular castles, as that of Dover. The term to the commanders of particular castles, as that of Dover. The term
_baillie_, in Scotland, is applied to a judicial police-officer, having _baillie_, in Scotland, is applied to a judicial police-officer, having
powers very similar to those of justices of peace in the United powers very similar to those of justices of peace in the United
States.”—_Encyclopædia Americana._] States.”—_Encyclopædia Americana._
[Footnote 93: Perhaps it may be said (and such, it has already been [^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 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 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 law, (put him on trial,) nor to an oath (that is, an oath of
@ -809,34 +809,34 @@ testimony, however frivolous or irrelevant, _in addition to their own_,
was sufficient. Certainly a magistrate could always procure witnesses was sufficient. Certainly a magistrate could always procure witnesses
enough to testify to something or other, which _he himself_ could decide enough to testify to something or other, which _he himself_ could decide
to be corroborative of his own testimony. And thus the prohibition would to be corroborative of his own testimony. And thus the prohibition would
be defeated in fact, though observed in form.] be defeated in fact, though observed in form.
[Footnote 94: In this chapter I have called the justices “_presiding_ [^94]: In this chapter I have called the justices “_presiding_
officers,” solely for the want of a better term. They are not officers,” solely for the want of a better term. They are not
“_presiding_ officers,” in the sense of having any authority over the “_presiding_ officers,” in the sense of having any authority over the
jury; but are only assistants to, and teachers and servants of, 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 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 far as there is such an officer at all. The sheriff has no authority
except over other persons than the jury.] except over other persons than the jury.
[Footnote 95: In this extract, Palgrave seems to assume that the king [^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_ 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 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 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, in the trial of peers, and of civil suits in which peers were parties,
and possibly in the courts of ancient demesne.] and possibly in the courts of ancient demesne.
[Footnote 96: _Alderman_ was a title anciently given to various [^96]: _Alderman_ was a title anciently given to various
_judicial_ officers, as the Alderman of all England, Alderman of the _judicial_ officers, as the Alderman of all England, Alderman of the
King, Alderman of the County, Alderman of the City or Borough, Alderman King, Alderman of the County, Alderman of the City or Borough, Alderman
of the Hundred or Wapentake. These were all _judicial_ officers. See Law of the Hundred or Wapentake. These were all _judicial_ officers. See Law
Dictionaries.] Dictionaries.
[Footnote 97: “_Ban and arriere ban_, a proclamation, whereby all that [^97]: “_Ban and arriere ban_, a proclamation, whereby all that
hold lands of the crown, (except some privileged officers and citizens,) 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 are summoned to meet at a certain place in order to serve the king in
his wars, either personally, or by proxy.”—_Boyer._] his wars, either personally, or by proxy.”—_Boyer._
[Footnote 98: At the common law, parties, in both civil and criminal [^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 cases, were allowed to swear in their own behalf; and it will be so
again, if the true trial by jury should be reëstablished.] again, if the true trial by jury should be reëstablished.

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@ -168,30 +168,30 @@ 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 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. as a weapon to compel men into a surrender of their rights.
[Footnote 99: _2 Sullivan Lectures_, 234-5. _3 Blackstone_, 274-5, 376. [^99]: _2 Sullivan Lectures_, 234-5. _3 Blackstone_, 274-5, 376.
Sullivan says that both plaintiffs and defendants were liable to Sullivan says that both plaintiffs and defendants were liable to
amercement. Blackstone speaks of plaintiffs being liable, without saying amercement. Blackstone speaks of plaintiffs being liable, without saying
whether defendants were so or not. What the rule really was I do not 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 know. There would seem to be some reason in allowing defendants to
defend themselves, _at their own charges_, without exposing themselves defend themselves, _at their own charges_, without exposing themselves
to amercement in case of failure.] to amercement in case of failure.
[Footnote 100: When any other witnesses than freeholders were required [^100]: When any other witnesses than freeholders were required
in a civil suit, I am not aware of the manner in which their attendance 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 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 state or of the witnesses themselves. And it was doubtless the same in
criminal cases.] criminal cases.
[Footnote 101: “All claims were established in the first stage by the [^101]: “All claims were established in the first stage by the
oath of the plaintiff, except when otherwise specially directed 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 law. The oath, by which any claim was supported, was called the
fore-oath, or ‘Præjuramentum,’ and it was the foundation of his suit. fore-oath, or ‘Præjuramentum,’ and it was the foundation of his suit.
One of the cases which did not require this initiatory confirmation, was 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 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_, foot-mark stood for the fore-oath.”—_2 Palgrave’s Rise and Progress_,
&c., 114.] &c., 114.
[Footnote 102: Among the necessary expenses of suits, should be reckoned [^102]: Among the necessary expenses of suits, should be reckoned
reasonable compensation to counsel, for they are nearly or quite as reasonable compensation to counsel, for they are nearly or quite as
important to the administration of justice, as are judges, jurors, or important to the administration of justice, as are judges, jurors, or
witnesses; and the universal practice of employing them, both on the witnesses; and the universal practice of employing them, both on the
@ -210,4 +210,4 @@ people in establishing courts.
To prevent the abuse of this right, it should perhaps be left To prevent the abuse of this right, it should perhaps be left
discretionary with the jury in each case to determine whether the discretionary with the jury in each case to determine whether the
counsel should receive any pay—and, if any, how much—from the counsel should receive any pay—and, if any, how much—from the
government.] government.

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@ -312,7 +312,7 @@ In short, they would judge of his moral intent from all the
circumstances of the case, and acquit him, if they had any reasonable circumstances of the case, and acquit him, if they had any reasonable
doubt that he knew that he was committing a crime.[^104] doubt that he knew that he was committing a crime.[^104]
[Footnote 103: This presumption, founded upon age alone, is as absurd in [^103]: This presumption, founded upon age alone, is as absurd in
civil matters as in criminal. What can be more entirely ludicrous than civil matters as in criminal. What can be more entirely ludicrous than
the idea that all men (not manifestly imbecile) become mentally the idea that all men (not manifestly imbecile) become mentally
competent to make all contracts whatsoever on the day they become competent to make all contracts whatsoever on the day they become
@ -346,9 +346,9 @@ age more or less.
These principles would prevail under the true trial by jury, the jury These principles would prevail under the true trial by jury, the jury
being the judges of the capacity of every individual whose capacity being the judges of the capacity of every individual whose capacity
should be called in question.] should be called in question.
[Footnote 104: In contrast to the doctrines of the text, it may be [^104]: In contrast to the doctrines of the text, it may be
proper to present more distinctly the doctrines that are maintained by proper to present more distinctly the doctrines that are maintained by
judges, and that prevail in courts of justice. judges, and that prevail in courts of justice.
@ -420,10 +420,10 @@ oppression of the intensest kind?
This doctrine of Mansfield is the doctrine of all who deny the right of 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 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 so blunt and unambiguous terms. But the doctrine evidently admits of no
other interpretation or defence.] other interpretation or defence.
[Footnote 105: This declaration of Mansfield, that juries in England [^105]: This declaration of Mansfield, that juries in England
“are not sworn to decide the law” in criminal cases, is a plain “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 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. king and the prisoner, and that includes the law as well as the fact.
See _juror’s oath_, page 86.] See _juror’s oath_, page 86.

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@ -469,20 +469,20 @@ An old book, called “English Liberties,” says:
> established and confirmed by the legislative power, no one privilege > established and confirmed by the legislative power, no one privilege
> besides having been ever so often remembered in parliament.”[^114] > besides having been ever so often remembered in parliament.”[^114]
[Footnote 106: _Mackintosh’s Hist. of Eng._, ch. 3. _45 Lardner’s Cab. [^106]: _Mackintosh’s Hist. of Eng._, ch. 3. _45 Lardner’s Cab.
Cyc._, 354.] Cyc._, 354.
[Footnote 107: “_Forty shilling freeholders_” were those “people [^107]: “_Forty shilling freeholders_” were those “people
dwelling and resident in the same counties, whereof every one of them 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 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, 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 (1429,) these freeholders only were allowed to vote for members of
Parliament from the _counties_.] Parliament from the _counties_.
[Footnote 108: He probably speaks in its favor only to blind the eyes of [^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.] the people to the frauds he has attempted upon its true meaning.
[Footnote 109: It will be noticed that Coke calls these confirmations of [^109]: It will be noticed that Coke calls these confirmations of
the charter “acts of parliament,” instead of acts of the king alone. the charter “acts of parliament,” instead of acts of the king alone.
This needs explanation. This needs explanation.
@ -610,18 +610,18 @@ indeed, by refusing to grant him money, except on that condition, and
otherwise, had contributed to oblige him to make the confirmations; just 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 as they had helped to oblige him by arms to grant the charter in the
first place. But the confirmations themselves were nevertheless first place. But the confirmations themselves were nevertheless
constitutionally, as well as formally, the acts of the king alone.] constitutionally, as well as formally, the acts of the king alone.
[Footnote 110: Under the head of “_John._”] [^110]: Under the head of “_John._”
[Footnote 111: _4 Blackstone_, 349-50.] [^111]: _4 Blackstone_, 349-50.
[Footnote 112: _3 Blackstone_, 379.] [^112]: _3 Blackstone_, 379.
[Footnote 113: _Hume_, ch. 2.] [^113]: _Hume_, ch. 2.
[Footnote 114: Page 203, 5th edition, 1721.] [^114]: Page 203, 5th edition, 1721.
[Footnote 115: St. 1 _William and Mary_, ch. 6, (1688.)] [^115]: St. 1 _William and Mary_, ch. 6, (1688.)
[Footnote 116: 4 _Inst._, 36.] [^116]: 4 _Inst._, 36.

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@ -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 which avarice and ambition are constantly fighting for and obtaining
advantages over the natural rights of mankind. advantages over the natural rights of mankind.
[Footnote 117: Such as restraints upon banking, upon the rates of [^117]: Such as restraints upon banking, upon the rates of
interest, upon traffic with foreigners, &c., &c.] interest, upon traffic with foreigners, &c., &c.

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@ -96,7 +96,7 @@ 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 England, it is designed to show more fully in the next volume, if it
should be necessary. should be necessary.
[Footnote 118: Trial by the country, and no taxation without consent, [^118]: Trial by the country, and no taxation without consent,
mutually sustain each other, and can be sustained only by each other, 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 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 who had never agreed to pay it. They would also protect men in forcibly
@ -122,4 +122,4 @@ 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 could tax people without their consent, would, of course, take enough of
their money to enable it to employ all the force necessary for their money to enable it to employ all the force necessary for
sustaining its own tribunals, (in the place of juries,) and carrying sustaining its own tribunals, (in the place of juries,) and carrying
their decrees into execution.] their decrees into execution.