Fix footnote bodies
This commit is contained in:
parent
ca9ce5723e
commit
ff9ad5f107
@ -3,6 +3,7 @@
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package main
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package main
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import (
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import (
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"bytes"
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"log"
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"log"
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"os"
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"os"
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"path/filepath"
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"path/filepath"
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@ -44,24 +45,34 @@ var replacers = mapSlice(compile, [][2]string{
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// Left double typographical quote
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// Left double typographical quote
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{`"(\w|_\w)`, `“$1`},
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{`"(\w|_\w)`, `“$1`},
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// Right double typographical quote
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// Right double typographical quote
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{`"`, `”`},
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{`"`, `”`},
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// Footnote superscripts
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{`\[(\d+)\]`, `[^$1]`},
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// Left single typographical quote
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// Left single typographical quote
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{`([^\pL])'(\pL|_)`, `$1‘$2`},
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{`([^\pL])'(\pL|_)`, `$1‘$2`},
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{`(?m)^'`, `‘`},
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{`(?m)^'`, `‘`},
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// Right single typographical quote
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// Right single typographical quote
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{`'`, `’`},
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{`'`, `’`},
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// Block quotes
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// Block quotes
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{`(?m)^ +(\S)`, `> $1`},
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{`(?m)^ +(\S)`, `> $1`},
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// Footnote superscript
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{`\[(\d+)\]`, `[^$1]`},
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})
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})
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var footnoteRE = regexp.MustCompile(`\[Footnote \d+: ([^\[\]]|(\[\^\d+\]))+\]`)
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var footnoteNumberRE = regexp.MustCompile(`\[Footnote (\d+):`)
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func replaceFootnote(src []byte) []byte {
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var formatted = footnoteNumberRE.ReplaceAll(src, []byte("[^$1]:"))
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// Indent footnote paragraphs.
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// This only works because footnotes are stacked at the end of each chapter.
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formatted = bytes.ReplaceAll(formatted, []byte("\n"), []byte("\n "))
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// Strip terminal "]".
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return formatted[:len(formatted)-1]
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}
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func run() error {
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func run() error {
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paths, err := filepath.Glob("original/*.markdown")
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paths, err := filepath.Glob("original/*.markdown")
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if err != nil {
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if err != nil {
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@ -72,10 +83,13 @@ func run() error {
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if err != nil {
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if err != nil {
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return err
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return err
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}
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}
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var edited = b
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var edited = b
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for _, r := range replacers {
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for _, r := range replacers {
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edited = r.re.ReplaceAll(edited, []byte(r.replacement))
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edited = r.re.ReplaceAll(edited, []byte(r.replacement))
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}
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}
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edited = footnoteRE.ReplaceAllFunc(edited, replaceFootnote)
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outpath := filepath.Join("edited", filepath.Base(path))
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outpath := filepath.Join("edited", filepath.Base(path))
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err = os.WriteFile(outpath, edited, 0666)
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err = os.WriteFile(outpath, edited, 0666)
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if err != nil {
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if err != nil {
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@ -506,100 +506,100 @@ decree, rendered by a jury in each individual case, upon such evidence,
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and such law, as are satisfactory to their own understandings and
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and such law, as are satisfactory to their own understandings and
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consciences, irrespective of all legislation of the government.
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consciences, irrespective of all legislation of the government.
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[Footnote 1: To show that this supposition is not an extravagant one, it
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[^1]: To show that this supposition is not an extravagant one, it
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may be mentioned that courts have repeatedly questioned jurors to
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may be mentioned that courts have repeatedly questioned jurors to
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ascertain whether they were prejudiced _against the government_—that
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ascertain whether they were prejudiced _against the government_—that
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is, whether they were in favor of, or opposed to, such laws of the
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is, whether they were in favor of, or opposed to, such laws of the
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government as were to be put in issue in the then pending trial. This
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government as were to be put in issue in the then pending trial. This
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was done (in 1851) in the United States District Court for the District
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was done (in 1851) in the United States District Court for the District
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of Massachusetts, by Peleg Sprague, the United States district judge, in
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of Massachusetts, by Peleg Sprague, the United States district judge, in
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empanelling three several juries for the trials of Scott, Hayden, and
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empanelling three several juries for the trials of Scott, Hayden, and
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Morris, charged with having aided in the rescue of a fugitive slave from
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Morris, charged with having aided in the rescue of a fugitive slave from
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the custody of the United States deputy marshal. This judge caused the
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the custody of the United States deputy marshal. This judge caused the
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following question to be propounded to all the jurors separately; and
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following question to be propounded to all the jurors separately; and
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those who answered unfavorably for the purposes of the government, were
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those who answered unfavorably for the purposes of the government, were
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excluded from the panel.
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excluded from the panel.
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> “Do you hold any opinions upon the subject of the Fugitive Slave Law,
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> so called, which will induce you to refuse to convict a person
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> indicted under it, if the facts set forth in the indictment, _and
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> constituting the offence_, are proved against him, and the court
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> direct you that the law is constitutional?”
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The reason of this question was, that “the Fugitive Slave Law, so
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called,” was so obnoxious to a large portion of the people, as to render
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a conviction under it hopeless, if the jurors were taken
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indiscriminately from among the people.
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A similar question was soon afterwards propounded to the persons drawn
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as jurors in the United States _Circuit_ Court for the District of
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Massachusetts, by Benjamin R. Curtis one of the Justices of the Supreme
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Court of the United States, in empanelling a jury for the trial of the
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aforesaid Morris on the charge before mentioned; and those who did not
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answer the question favorably for the government were again excluded
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from the panel.
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It has also been an habitual practice with the Supreme Court of
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Massachusetts, in empanelling juries for the trial of _capital_
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offences, to inquire of the persons drawn as jurors whether they had any
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conscientious scruples against finding verdicts of guilty in such cases;
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that is, whether they had any conscientious scruples against sustaining
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the law prescribing death as the punishment of the crime to be tried;
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and to exclude from the panel all who answered in the affirmative.
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The only principle upon which these questions are asked, is this—that
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no man shall be allowed to serve as juror, unless he be ready to enforce
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any enactment of the government, however cruel or tyrannical it may be.
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What is such a jury good for, as a protection against the tyranny of the
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government? A jury like that is palpably nothing but a mere tool of
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oppression in the hands of the government. A trial by such a jury is
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really a trial by the government itself—and not a trial by the
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country—because it is a trial only by men specially selected by the
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government for their readiness to enforce its own tyrannical measures.
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If that be the true principle of the trial by jury, the trial is utterly
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worthless as a security to liberty. The Czar might, with perfect safety
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to his authority, introduce the trial by jury into Russia, if he could
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but be permitted to select his jurors from those who were ready to
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maintain his laws, without regard to their injustice.
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This example is sufficient to show that the very pith of the trial by
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jury, as a safeguard to liberty, consists in the jurors being taken
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indiscriminately from the whole people, and in their right to hold
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invalid all laws which they think unjust.
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> “Do you hold any opinions upon the subject of the Fugitive Slave Law,
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[^2]: The executive has a qualified veto upon the passage of
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> so called, which will induce you to refuse to convict a person
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laws, in most of our governments, and an absolute veto, in all of them,
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> indicted under it, if the facts set forth in the indictment, _and
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upon the execution of any laws which he deems unconstitutional; because
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> constituting the offence_, are proved against him, and the court
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his oath to support the constitution (as he understands it) forbids him
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> direct you that the law is constitutional?”
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to execute any law that he deems unconstitutional.
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The reason of this question was, that “the Fugitive Slave Law, so
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[^3]: And if there be so much as a reasonable _doubt_ of the
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called,” was so obnoxious to a large portion of the people, as to render
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justice of the laws, the benefit of that doubt must be given to the
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a conviction under it hopeless, if the jurors were taken
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defendant, and not to the government. So that the government must keep
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indiscriminately from among the people.
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its laws _clearly_ within the limits of justice, if it would ask a jury
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to enforce them.
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A similar question was soon afterwards propounded to the persons drawn
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[^4]: _Hallam_ says, “The relation established between a lord and
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as jurors in the United States _Circuit_ Court for the District of
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his vassal by the feudal tenure, far from containing principles of any
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Massachusetts, by Benjamin R. Curtis one of the Justices of the Supreme
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servile and implicit obedience, permitted the compact to be dissolved in
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Court of the United States, in empanelling a jury for the trial of the
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case of its violation by either party. This extended as much to the
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aforesaid Morris on the charge before mentioned; and those who did not
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sovereign as to inferior lords. * * If a vassal was aggrieved, and if
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answer the question favorably for the government were again excluded
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justice was denied him, he sent a defiance, that is, a renunciation of
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from the panel.
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fealty to the king, and was entitled to enforce redress at the point of
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his sword. It then became a contest of strength as between two
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It has also been an habitual practice with the Supreme Court of
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independent potentates, and was terminated by treaty, advantageous or
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Massachusetts, in empanelling juries for the trial of _capital_
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otherwise, according to the fortune of war. * * There remained the
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offences, to inquire of the persons drawn as jurors whether they had any
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original principle, that allegiance depended conditionally upon good
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conscientious scruples against finding verdicts of guilty in such cases;
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treatment, and that an appeal might be _lawfully_ made to arms against
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that is, whether they had any conscientious scruples against sustaining
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an oppressive government. Nor was this, we may be sure, left for extreme
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the law prescribing death as the punishment of the crime to be tried;
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necessity, or thought to require a long-enduring forbearance. In modern
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and to exclude from the panel all who answered in the affirmative.
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times, a king, compelled by his subjects’ swords to abandon any
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pretension, would be supposed to have ceased to reign; and the express
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The only principle upon which these questions are asked, is this—that
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recognition of such a right as that of insurrection has been justly
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no man shall be allowed to serve as juror, unless he be ready to enforce
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deemed inconsistent with the majesty of law. But ruder ages had ruder
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any enactment of the government, however cruel or tyrannical it may be.
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sentiments. Force was necessary to repel force; and men accustomed to
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see the king’s authority defied by a private riot, were not much shocked
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What is such a jury good for, as a protection against the tyranny of the
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when it was resisted in defence of public freedom.”—_3 Middle Ages_,
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government? A jury like that is palpably nothing but a mere tool of
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240-2.
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oppression in the hands of the government. A trial by such a jury is
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really a trial by the government itself—and not a trial by the
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country—because it is a trial only by men specially selected by the
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government for their readiness to enforce its own tyrannical measures.
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If that be the true principle of the trial by jury, the trial is utterly
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worthless as a security to liberty. The Czar might, with perfect safety
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to his authority, introduce the trial by jury into Russia, if he could
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but be permitted to select his jurors from those who were ready to
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maintain his laws, without regard to their injustice.
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This example is sufficient to show that the very pith of the trial by
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jury, as a safeguard to liberty, consists in the jurors being taken
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indiscriminately from the whole people, and in their right to hold
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invalid all laws which they think unjust.]
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[Footnote 2: The executive has a qualified veto upon the passage of
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laws, in most of our governments, and an absolute veto, in all of them,
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upon the execution of any laws which he deems unconstitutional; because
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his oath to support the constitution (as he understands it) forbids him
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to execute any law that he deems unconstitutional.]
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[Footnote 3: And if there be so much as a reasonable _doubt_ of the
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justice of the laws, the benefit of that doubt must be given to the
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defendant, and not to the government. So that the government must keep
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its laws _clearly_ within the limits of justice, if it would ask a jury
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to enforce them.]
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[Footnote 4: _Hallam_ says, “The relation established between a lord and
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his vassal by the feudal tenure, far from containing principles of any
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servile and implicit obedience, permitted the compact to be dissolved in
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case of its violation by either party. This extended as much to the
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sovereign as to inferior lords. * * If a vassal was aggrieved, and if
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justice was denied him, he sent a defiance, that is, a renunciation of
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fealty to the king, and was entitled to enforce redress at the point of
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his sword. It then became a contest of strength as between two
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independent potentates, and was terminated by treaty, advantageous or
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otherwise, according to the fortune of war. * * There remained the
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original principle, that allegiance depended conditionally upon good
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treatment, and that an appeal might be _lawfully_ made to arms against
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an oppressive government. Nor was this, we may be sure, left for extreme
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necessity, or thought to require a long-enduring forbearance. In modern
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times, a king, compelled by his subjects’ swords to abandon any
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pretension, would be supposed to have ceased to reign; and the express
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recognition of such a right as that of insurrection has been justly
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deemed inconsistent with the majesty of law. But ruder ages had ruder
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sentiments. Force was necessary to repel force; and men accustomed to
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see the king’s authority defied by a private riot, were not much shocked
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when it was resisted in defence of public freedom.”—_3 Middle Ages_,
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240-2.]
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@ -893,496 +893,496 @@ according to (that is, in execution of) the sentence of his peers, _and_
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(or _or_, as the case may require) the Common Law of England, (as it was
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(or _or_, as the case may require) the Common Law of England, (as it was
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at the time of Magna Carta, in 1215.)
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at the time of Magna Carta, in 1215.)
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[Footnote 5: 1 Hume, Appendix 2.]
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[^5]: 1 Hume, Appendix 2.
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[Footnote 6: Crabbe’s History of the English Law, 236.]
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[^6]: Crabbe’s History of the English Law, 236.
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[Footnote 7: Coke says, “The king of England is armed with divers
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[^7]: Coke says, “The king of England is armed with divers
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councils, one whereof is called _commune concilium_, (the common
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councils, one whereof is called _commune concilium_, (the common
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council,) and that is the court of parliament, and so it is _legally_
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council,) and that is the court of parliament, and so it is _legally_
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called in writs and judicial proceedings _commune concilium regni
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called in writs and judicial proceedings _commune concilium regni
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Angliæ_, (the common council of the kingdom of England.) And another is
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Angliæ_, (the common council of the kingdom of England.) And another is
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called _magnum concilium_, (great council;) this is sometimes applied to
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called _magnum concilium_, (great council;) this is sometimes applied to
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the upper house of parliament, and sometimes, out of parliament time, to
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the upper house of parliament, and sometimes, out of parliament time, to
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the peers of the realm, lords of parliament, who are called _magnum
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the peers of the realm, lords of parliament, who are called _magnum
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concilium regis_, (the great council of the king;) * * Thirdly, (as
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concilium regis_, (the great council of the king;) * * Thirdly, (as
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every man knoweth,) the king hath a privy council for matters of state.
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every man knoweth,) the king hath a privy council for matters of state.
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* * The fourth council of the king are his judges for law matters.”
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* * The fourth council of the king are his judges for law matters.”
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_1 Coke’s Institutes, 110 a._]
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_1 Coke’s Institutes, 110 a._
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[Footnote 8: The Great Charter of Henry III., (1216 and 1225,) confirmed
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[^8]: The Great Charter of Henry III., (1216 and 1225,) confirmed
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by Edward I., (1297,) makes no provision whatever for, or mention of, a
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by Edward I., (1297,) makes no provision whatever for, or mention of, a
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parliament, unless the provision, (Ch. 37,) that “Escuage, (a military
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parliament, unless the provision, (Ch. 37,) that “Escuage, (a military
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contribution,) from henceforth shall be taken like as it was wont to be
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contribution,) from henceforth shall be taken like as it was wont to be
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in the time of King Henry our grandfather,” mean that a parliament shall
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in the time of King Henry our grandfather,” mean that a parliament shall
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be summoned for that purpose.]
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be summoned for that purpose.
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[Footnote 9: The Magna Carta of John, (Ch. 17 and 18,) defines those who
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[^9]: The Magna Carta of John, (Ch. 17 and 18,) defines those who
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were entitled to be summoned to parliament, to wit, “The Archbishops,
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were entitled to be summoned to parliament, to wit, “The Archbishops,
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Bishops, Abbots, Earls, and Great Barons of the Realm, * * and all
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Bishops, Abbots, Earls, and Great Barons of the Realm, * * and all
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others who hold of us _in chief_.” Those who held land of the king _in
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others who hold of us _in chief_.” Those who held land of the king _in
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chief_ included none below the rank of knights.]
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chief_ included none below the rank of knights.
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[Footnote 10: The parliaments of that time were, doubtless, such as
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[^10]: The parliaments of that time were, doubtless, such as
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Carlyle describes them, when he says, “The parliament was at first a
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Carlyle describes them, when he says, “The parliament was at first a
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most simple assemblage, quite cognate to the situation; that Red
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most simple assemblage, quite cognate to the situation; that Red
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William, or whoever had taken on him the terrible task of being King of
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William, or whoever had taken on him the terrible task of being King of
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England, was wont to invite, oftenest about Christmas time, his
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England, was wont to invite, oftenest about Christmas time, his
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subordinate Kinglets, Barons as he called them, to give him the pleasure
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subordinate Kinglets, Barons as he called them, to give him the pleasure
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of their company for a week or two; there, in earnest conference all
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of their company for a week or two; there, in earnest conference all
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morning, in freer talk over Christmas cheer all evening, in some big
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morning, in freer talk over Christmas cheer all evening, in some big
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royal hall of Westminster, Winchester, or wherever it might be, with log
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royal hall of Westminster, Winchester, or wherever it might be, with log
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fires, huge rounds of roast and boiled, not lacking malmsey and other
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fires, huge rounds of roast and boiled, not lacking malmsey and other
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generous liquor, they took counsel concerning the arduous matters of the
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generous liquor, they took counsel concerning the arduous matters of the
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kingdom.”]
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kingdom.”
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[Footnote 11: Hume, Appendix 2.]
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[^11]: Hume, Appendix 2.
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[Footnote 12: This point will be more fully established hereafter.]
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[^12]: This point will be more fully established hereafter.
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|
||||||
[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
|
||||||
important, because it was the only one that protected all the rest,)
|
important, because it was the only one that protected all the rest,)
|
||||||
“the king, falling into a violent passion, asked, _Why the barons did
|
“the king, falling into a violent passion, asked, _Why the barons did
|
||||||
not with these exactions demand his kingdom?_ * * _and with a solemn
|
not with these exactions demand his kingdom?_ * * _and with a solemn
|
||||||
oath protested, that he would never grant such liberties as would make
|
oath protested, that he would never grant such liberties as would make
|
||||||
himself a slave_.” * * But afterwards, “seeing himself deserted, and
|
himself a slave_.” * * But afterwards, “seeing himself deserted, and
|
||||||
fearing they would seize his castles, he sent the Earl of Pembroke and
|
fearing they would seize his castles, he sent the Earl of Pembroke and
|
||||||
other faithful messengers to them, to let them know _he would grant them
|
other faithful messengers to them, to let them know _he would grant them
|
||||||
the laws and liberties they desired_.” * * But after the charter had
|
the laws and liberties they desired_.” * * But after the charter had
|
||||||
been granted, “the king’s mercenary soldiers, desiring war more than
|
been granted, “the king’s mercenary soldiers, desiring war more than
|
||||||
peace, were by their leaders continually whispering in his ears, _that
|
peace, were by their leaders continually whispering in his ears, _that
|
||||||
he was now no longer king, but the scorn of other princes; and that it
|
he was now no longer king, but the scorn of other princes; and that it
|
||||||
was more eligible to be no king, than such a one as he_.” * * He applied
|
was more eligible to be no king, than such a one as he_.” * * He applied
|
||||||
“to the Pope, that he might by his apostolic authority make void what
|
“to the Pope, that he might by his apostolic authority make void what
|
||||||
the barons had done. * * At Rome he met with what success he could
|
the barons had done. * * At Rome he met with what success he could
|
||||||
desire, where all the transactions with the barons were fully
|
desire, where all the transactions with the barons were fully
|
||||||
represented to the Pope, and the Charter of Liberties shown to him, in
|
represented to the Pope, and the Charter of Liberties shown to him, in
|
||||||
writing; which, when he had carefully perused, he, with a furious look,
|
writing; which, when he had carefully perused, he, with a furious look,
|
||||||
cried out, _What! Do the barons of England endeavor to dethrone a king,
|
cried out, _What! Do the barons of England endeavor to dethrone a king,
|
||||||
who has taken upon him the Holy Cross, and is under the protection of
|
who has taken upon him the Holy Cross, and is under the protection of
|
||||||
the Apostolic See; and would they force him to transfer the dominions of
|
the Apostolic See; and would they force him to transfer the dominions of
|
||||||
the Roman Church to others? By St. Peter, this injury must not pass
|
the Roman Church to others? By St. Peter, this injury must not pass
|
||||||
unpunished._ Then debating the matter with the cardinals, he, by a
|
unpunished._ Then debating the matter with the cardinals, he, by a
|
||||||
definitive sentence, damned and cassated forever the Charter of
|
definitive sentence, damned and cassated forever the Charter of
|
||||||
Liberties, and sent the king a bull containing that sentence at
|
Liberties, and sent the king a bull containing that sentence at
|
||||||
large.”—_Echard’s History of England_, p. 106-7.
|
large.”—_Echard’s History of England_, p. 106-7.
|
||||||
|
|
||||||
These things show that the nature and effect of the charter were well
|
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,
|
||||||
before proceeding to any _executive_ action, will take notice of “the
|
before proceeding to any _executive_ action, will take notice of “the
|
||||||
law of the land,” and of the _legality_ of the judgment of the peers,
|
law of the land,” and of the _legality_ of the judgment of the peers,
|
||||||
and will _execute_ upon the prisoner nothing except what the law of the
|
and will _execute_ upon the prisoner nothing except what the law of the
|
||||||
land authorizes, and no judgments of the peers, except _legal_ ones.
|
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
|
||||||
letters patent ... nec super eos _per vim vel per arma_ ibimus, nisi per
|
letters patent ... nec super eos _per vim vel per arma_ ibimus, nisi per
|
||||||
legem regni nostri, vel per judicium parium suorum in curia nostra, (nor
|
legem regni nostri, vel per judicium parium suorum in curia nostra, (nor
|
||||||
will we go upon them _by force or by arms_, unless by the law of our
|
will we go upon them _by force or by arms_, unless by the law of our
|
||||||
kingdom, or the judgment of their peers in our court.) Pat. 16 Johan,
|
kingdom, or the judgment of their peers in our court.) Pat. 16 Johan,
|
||||||
apud Drad. 11, app. no. 124. He had hitherto been in the habit of
|
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._
|
||||||
|
|
||||||
“_Judgment_ is the decision or sentence of the law, given by a court of
|
“_Judgment_ is the decision or sentence of the law, given by a court of
|
||||||
justice or other competent tribunal, as the result of the proceedings
|
justice or other competent tribunal, as the result of the proceedings
|
||||||
instituted therein, for the redress of an injury.”—_Bouvier’s Law
|
instituted therein, for the redress of an injury.”—_Bouvier’s Law
|
||||||
Dict._
|
Dict._
|
||||||
|
|
||||||
“_Judgment, judicium._ * * Sentence of a judge against a criminal. * *
|
“_Judgment, judicium._ * * Sentence of a judge against a criminal. * *
|
||||||
Determination, decision in general.”—_Bailey’s Dict._
|
Determination, decision in general.”—_Bailey’s Dict._
|
||||||
|
|
||||||
“_Judgment._ * * In a legal sense, a sentence or decision pronounced by
|
“_Judgment._ * * In a legal sense, a sentence or decision pronounced by
|
||||||
authority of a king, or other power, either by their own mouth, or by
|
authority of a king, or other power, either by their own mouth, or by
|
||||||
that of their judges and officers, whom they appoint to administer
|
that of their judges and officers, whom they appoint to administer
|
||||||
justice in their stead.”—_Chambers’ Dict._
|
justice in their stead.”—_Chambers’ Dict._
|
||||||
|
|
||||||
“_Judgment._ * * In law, the sentence or doom pronounced in any case,
|
“_Judgment._ * * In law, the sentence or doom pronounced in any case,
|
||||||
civil or criminal, by the judge or court by which it is
|
civil or criminal, by the judge or court by which it is
|
||||||
tried.”—_Webster’s Dict._
|
tried.”—_Webster’s Dict._
|
||||||
|
|
||||||
Sometimes the punishment itself is called _judicium_, _judgment_; or,
|
Sometimes the punishment itself is called _judicium_, _judgment_; or,
|
||||||
rather, it was at the time of Magna Carta. For example, in a statute
|
rather, it was at the time of Magna Carta. For example, in a statute
|
||||||
passed fifty-one years after Magna Carta, it was said that a baker, for
|
passed fifty-one years after Magna Carta, it was said that a baker, for
|
||||||
default in the weight of his bread, “debeat amerciari vel subire
|
default in the weight of his bread, “debeat amerciari vel subire
|
||||||
_judicium_ pillorie;” that is, ought to be amerced, or suffer the
|
_judicium_ pillorie;” that is, ought to be amerced, or suffer the
|
||||||
punishment, or judgment, of the pillory. Also that a brewer, for
|
punishment, or judgment, of the pillory. Also that a brewer, for
|
||||||
“selling ale contrary to the assize,” “debeat amerciari, vel pati
|
“selling ale contrary to the assize,” “debeat amerciari, vel pati
|
||||||
_judicium_ tumbrelli”; that is, ought to be amerced, or suffer the
|
_judicium_ tumbrelli”; that is, ought to be amerced, or suffer the
|
||||||
punishment, or judgment, of the tumbrel.—51 _Henry_ 3, _St._ 6. (1266.)
|
punishment, or judgment, of the tumbrel.—51 _Henry_ 3, _St._ 6. (1266.)
|
||||||
|
|
||||||
Also the “_Statutes of uncertain date_,” (but supposed to be prior to
|
Also the “_Statutes of uncertain date_,” (but supposed to be prior to
|
||||||
Edward III., or 1326,) provide, in chapters 6, 7, and 10, for
|
Edward III., or 1326,) provide, in chapters 6, 7, and 10, for
|
||||||
“_judgment_ of the pillory.”—_See 1 Ruffhead’s Statutes_, 187, 188. 1
|
“_judgment_ of the pillory.”—_See 1 Ruffhead’s Statutes_, 187, 188. 1
|
||||||
_Statutes of the Realm_, 203.
|
_Statutes of the Realm_, 203.
|
||||||
|
|
||||||
Blackstone, in his chapter “Of _Judgment_, and its Consequences,” says,
|
Blackstone, in his chapter “Of _Judgment_, and its Consequences,” says,
|
||||||
|
|
||||||
“_Judgment_ (unless any matter be offered in arrest thereof) follows
|
“_Judgment_ (unless any matter be offered in arrest thereof) follows
|
||||||
upon conviction; being the pronouncing of that punishment which is
|
upon conviction; being the pronouncing of that punishment which is
|
||||||
expressly ordained by law.”—_Blackstone’s Analysis of the Laws of
|
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,
|
||||||
and that of his wife and children). And since the disuse of such
|
and that of his wife and children). And since the disuse of such
|
||||||
inquest, it is never usual to assess a larger fine than a man is able to
|
inquest, it is never usual to assess a larger fine than a man is able to
|
||||||
pay, without touching the implements of his livelihood; but to inflict
|
pay, without touching the implements of his livelihood; but to inflict
|
||||||
corporal punishment, or a limited imprisonment, instead of such a fine
|
corporal punishment, or a limited imprisonment, instead of such a fine
|
||||||
as might amount to imprisonment for life. And this is the reason why
|
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
|
||||||
sentence; but he could not punish beyond the extent of the sentence.
|
sentence; but he could not punish beyond the extent of the sentence.
|
||||||
Magna Carta does not prescribe that the king _shall punish_ according to
|
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
|
||||||
Magna Carta. It was not very often resorted to even by the Normans
|
Magna Carta. It was not very often resorted to even by the Normans
|
||||||
themselves; probably never by the Anglo-Saxons, unless in their
|
themselves; probably never by the Anglo-Saxons, unless in their
|
||||||
controversies with the Normans. It was strongly discouraged by some of
|
controversies with the Normans. It was strongly discouraged by some of
|
||||||
the Norman princes, particularly by Henry II., by whom the trial by jury
|
the Norman princes, particularly by Henry II., by whom the trial by jury
|
||||||
was especially favored. It is probable that the trial by battle, so far
|
was especially favored. It is probable that the trial by battle, so far
|
||||||
as it prevailed at all in England, was rather tolerated as a matter of
|
as it prevailed at all in England, was rather tolerated as a matter of
|
||||||
chivalry, than authorized as a matter of law. At any rate, it is not
|
chivalry, than authorized as a matter of law. At any rate, it is not
|
||||||
likely that it was included in the “_legem terræ_” of Magna Carta,
|
likely that it was included in the “_legem terræ_” of Magna Carta,
|
||||||
although such duels have occasionally occurred since that time, and
|
although such duels have occasionally occurred since that time, and
|
||||||
have, by some, been supposed to be lawful. I apprehend that nothing can
|
have, by some, been supposed to be lawful. I apprehend that nothing can
|
||||||
be properly said to be a part of _lex terræ_, unless it can be shown
|
be properly said to be a part of _lex terræ_, unless it can be shown
|
||||||
either to have been of Saxon origin, or to have been recognized by Magna
|
either to have been of Saxon origin, or to have been recognized by Magna
|
||||||
Carta.
|
Carta.
|
||||||
|
|
||||||
_The trial by ordeal_ was of various kinds. In one ordeal the accused
|
_The trial by ordeal_ was of various kinds. In one ordeal the accused
|
||||||
was required to take hot iron in his hand; in another to walk blindfold
|
was required to take hot iron in his hand; in another to walk blindfold
|
||||||
among red-hot ploughshares; in another to thrust his arm into boiling
|
among red-hot ploughshares; in another to thrust his arm into boiling
|
||||||
water; in another to be thrown, with his hands and feet bound, into cold
|
water; in another to be thrown, with his hands and feet bound, into cold
|
||||||
water; in another to swallow the _morsel of execration_; in the
|
water; in another to swallow the _morsel of execration_; in the
|
||||||
confidence that his guilt or innocence would be miraculously made known.
|
confidence that his guilt or innocence would be miraculously made known.
|
||||||
This mode of trial was nearly extinct at the time of Magna Carta, and it
|
This mode of trial was nearly extinct at the time of Magna Carta, and it
|
||||||
is not likely that it was included in “_legem terræ_,” as that term is
|
is not likely that it was included in “_legem terræ_,” as that term is
|
||||||
used in that instrument. This idea is corroborated by the fact that the
|
used in that instrument. This idea is corroborated by the fact that the
|
||||||
trial by ordeal was specially prohibited only four years after Magna
|
trial by ordeal was specially prohibited only four years after Magna
|
||||||
Carta, “by act of Parliament in 3 Henry III., according to Sir Edward
|
Carta, “by act of Parliament in 3 Henry III., according to Sir Edward
|
||||||
Coke, or rather by an order of the king in council.”—_3 Blackstone_
|
Coke, or rather by an order of the king in council.”—_3 Blackstone_
|
||||||
345, _note_.
|
345, _note_.
|
||||||
|
|
||||||
I apprehend that this trial was never forced upon accused persons, but
|
I apprehend that this trial was never forced upon accused persons, but
|
||||||
was only allowed to them, _as an appeal to God_, from the judgment of a
|
was only allowed to them, _as an appeal to God_, from the judgment of a
|
||||||
jury.[^33]
|
jury.[^33]
|
||||||
|
|
||||||
_The trial by compurgators_ was one in which, if the accused could bring
|
_The trial by compurgators_ was one in which, if the accused could bring
|
||||||
twelve of his neighbors, who would make oath that they believed him
|
twelve of his neighbors, who would make oath that they believed him
|
||||||
innocent, he was held to be so. It is probable that this trial was
|
innocent, he was held to be so. It is probable that this trial was
|
||||||
really the trial by jury, or was allowed as an appeal from a jury. It is
|
really the trial by jury, or was allowed as an appeal from a jury. It is
|
||||||
wholly improbable that two different modes of trial, so nearly
|
wholly improbable that two different modes of trial, so nearly
|
||||||
resembling each other as this and the trial by jury do, should prevail
|
resembling each other as this and the trial by jury do, should prevail
|
||||||
at the same time, and among a rude people, whose judicial proceedings
|
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
|
||||||
ground whatever for supposing that any such distinction existed at the
|
ground whatever for supposing that any such distinction existed at the
|
||||||
time of Magna Carta. If there were any such distinction in the time of
|
time of Magna Carta. If there were any such distinction in the time of
|
||||||
Coke, it had doubtless grown up within the four centuries that had
|
Coke, it had doubtless grown up within the four centuries that had
|
||||||
elapsed since Magna Carta, and is to be set down as one of the
|
elapsed since Magna Carta, and is to be set down as one of the
|
||||||
numberless inventions of government for getting rid of the restraints of
|
numberless inventions of government for getting rid of the restraints of
|
||||||
Magna Carta, and for taking men out of the protection of their peers,
|
Magna Carta, and for taking men out of the protection of their peers,
|
||||||
and subjecting them to such punishments as the government chooses to
|
and subjecting them to such punishments as the government chooses to
|
||||||
inflict.
|
inflict.
|
||||||
|
|
||||||
The first statute of Westminster, passed sixty years after Magna Carta,
|
The first statute of Westminster, passed sixty years after Magna Carta,
|
||||||
treats the fine and amercement as synonymous, as follows:
|
treats the fine and amercement as synonymous, as follows:
|
||||||
|
|
||||||
“Forasmuch as _the common fine and amercement_ of the whole county in
|
“Forasmuch as _the common fine and amercement_ of the whole county in
|
||||||
Eyre of the justices for false judgments, or for other trespass, is
|
Eyre of the justices for false judgments, or for other trespass, is
|
||||||
unjustly assessed by sheriffs and baretors in the shires, * * it is
|
unjustly assessed by sheriffs and baretors in the shires, * * it is
|
||||||
provided, and the king wills, that from henceforth such sums shall be
|
provided, and the king wills, that from henceforth such sums shall be
|
||||||
assessed before the justices in Eyre, afore their departure, _by the
|
assessed before the justices in Eyre, afore their departure, _by the
|
||||||
oath of knights and other honest men_,” &c.—_3 Edward I., Ch._ 18.
|
oath of knights and other honest men_,” &c.—_3 Edward I., Ch._ 18.
|
||||||
(1275.)
|
(1275.)
|
||||||
|
|
||||||
And in many other statutes passed after Magna Carta, the terms _fine_
|
And in many other statutes passed after Magna Carta, the terms _fine_
|
||||||
and _amercement_ seem to be used indifferently, in prescribing the
|
and _amercement_ seem to be used indifferently, in prescribing the
|
||||||
punishment for offences. As late as 1461, (246 years after Magna Carta,)
|
punishment for offences. As late as 1461, (246 years after Magna Carta,)
|
||||||
the statute _1 Edward IV., Ch._ 2, speaks of “_fines, ransoms, and
|
the statute _1 Edward IV., Ch._ 2, speaks of “_fines, ransoms, and
|
||||||
amerciaments_” as being levied upon criminals, as if they were the
|
amerciaments_” as being levied upon criminals, as if they were the
|
||||||
common punishments of offences.
|
common punishments of offences.
|
||||||
|
|
||||||
_St._ 2 and 3 _Philip and Mary, Ch._ 8, uses the terms, “_fines,
|
_St._ 2 and 3 _Philip and Mary, Ch._ 8, uses the terms, “_fines,
|
||||||
forfeitures, and amerciaments_” five times. (1555.)
|
forfeitures, and amerciaments_” five times. (1555.)
|
||||||
|
|
||||||
_St. 5 Elizabeth, Ch._ 13, _Sec._ 10, uses the terms “_fines,
|
_St. 5 Elizabeth, Ch._ 13, _Sec._ 10, uses the terms “_fines,
|
||||||
forfeitures, and amerciaments_.”
|
forfeitures, and amerciaments_.”
|
||||||
|
|
||||||
That amercements were fines, or pecuniary punishments, inflicted for
|
That amercements were fines, or pecuniary punishments, inflicted for
|
||||||
offences, is proved by the following statutes, (all supposed to have
|
offences, is proved by the following statutes, (all supposed to have
|
||||||
been passed within one hundred and fifteen years after Magna Carta,)
|
been passed within one hundred and fifteen years after Magna Carta,)
|
||||||
which speak of amercements as a species of “_judgment_,” or punishment,
|
which speak of amercements as a species of “_judgment_,” or punishment,
|
||||||
and as being inflicted for the same offences as other “judgments.”
|
and as being inflicted for the same offences as other “judgments.”
|
||||||
|
|
||||||
Thus one statute declares that a baker, for default in the weight of his
|
Thus one statute declares that a baker, for default in the weight of his
|
||||||
bread, “ought to be _amerced_, or suffer the _judgment_ of the pillory;”
|
bread, “ought to be _amerced_, or suffer the _judgment_ of the pillory;”
|
||||||
and that a brewer, for “selling ale contrary to the assize,” “ought to
|
and that a brewer, for “selling ale contrary to the assize,” “ought to
|
||||||
be _amerced_, or suffer the _judgment_ of the tumbrel.”—_51 Henry III.,
|
be _amerced_, or suffer the _judgment_ of the tumbrel.”—_51 Henry III.,
|
||||||
St._ 6. (1266.)
|
St._ 6. (1266.)
|
||||||
|
|
||||||
Among the “_Statutes of Uncertain Date_,” but supposed to be prior to
|
Among the “_Statutes of Uncertain Date_,” but supposed to be prior to
|
||||||
Edward III., (1326,) are the following:
|
Edward III., (1326,) are the following:
|
||||||
|
|
||||||
_Chap._ 6 provides that “if a brewer break the assize, (fixing the price
|
_Chap._ 6 provides that “if a brewer break the assize, (fixing the price
|
||||||
of ale,) the first, second, and third time, he shall be _amerced_; but
|
of ale,) the first, second, and third time, he shall be _amerced_; but
|
||||||
the fourth time he shall suffer _judgment_ of the pillory without
|
the fourth time he shall suffer _judgment_ of the pillory without
|
||||||
redemption.”
|
redemption.”
|
||||||
|
|
||||||
_Chap._ 7 provides that “a butcher that selleth swine’s flesh measled,
|
_Chap._ 7 provides that “a butcher that selleth swine’s flesh measled,
|
||||||
or flesh dead of the murrain, or that buyeth flesh of Jews, and selleth
|
or flesh dead of the murrain, or that buyeth flesh of Jews, and selleth
|
||||||
the same unto Christians, after he shall be convict thereof, for the
|
the same unto Christians, after he shall be convict thereof, for the
|
||||||
first time he shall be grievously _amerced_; the second time he shall
|
first time he shall be grievously _amerced_; the second time he shall
|
||||||
suffer _judgment_ of the pillory; and the third time he shall be
|
suffer _judgment_ of the pillory; and the third time he shall be
|
||||||
imprisoned and make _fine_; and the fourth time he shall forswear the
|
imprisoned and make _fine_; and the fourth time he shall forswear the
|
||||||
town.”
|
town.”
|
||||||
|
|
||||||
_Chap. 10_, a statute against _forestalling_, provides that,
|
_Chap. 10_, a statute against _forestalling_, provides that,
|
||||||
|
|
||||||
“He that is convict thereof, the first time shall be _amerced_, and
|
“He that is convict thereof, the first time shall be _amerced_, and
|
||||||
shall lose the thing so bought, and that according to the custom of the
|
shall lose the thing so bought, and that according to the custom of the
|
||||||
town; he that is convicted the second time shall have _judgment_ of the
|
town; he that is convicted the second time shall have _judgment_ of the
|
||||||
pillory; at the third time he shall be imprisoned and make _fine_; the
|
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
|
||||||
the ninth year of Henry the First, (1109,) this power of redemption was
|
the ninth year of Henry the First, (1109,) this power of redemption was
|
||||||
taken away, and all persons guilty of larceny above the value of twelve
|
taken away, and all persons guilty of larceny above the value of twelve
|
||||||
pence were directed to be hanged, which law continues in force to this
|
pence were directed to be hanged, which law continues in force to this
|
||||||
day.”—_4 Blackstone_, 238.
|
day.”—_4 Blackstone_, 238.
|
||||||
|
|
||||||
I give this statement of Blackstone, because the latter clause may seem
|
I give this statement of Blackstone, because the latter clause may seem
|
||||||
to militate with the idea, which the former clause corroborates, viz.,
|
to militate with the idea, which the former clause corroborates, viz.,
|
||||||
that at the time of Magna Carta, fines were the usual punishments of
|
that at the time of Magna Carta, fines were the usual punishments of
|
||||||
offences. But I think there is no probability that a law so unreasonable
|
offences. But I think there is no probability that a law so unreasonable
|
||||||
in itself, (unreasonable even after making all allowance for the
|
in itself, (unreasonable even after making all allowance for the
|
||||||
difference in the value of money,) and so contrary to immemorial custom,
|
difference in the value of money,) and so contrary to immemorial custom,
|
||||||
could or did obtain any general or speedy acquiescence among a people
|
could or did obtain any general or speedy acquiescence among a people
|
||||||
who cared little for the authority of kings.
|
who cared little for the authority of kings.
|
||||||
|
|
||||||
Maddox, writing of the period from William the Conqueror to John, says:
|
Maddox, writing of the period from William the Conqueror to John, says:
|
||||||
|
|
||||||
“The amercements in criminal and common pleas, which were wont to be
|
“The amercements in criminal and common pleas, which were wont to be
|
||||||
imposed during this first period and afterwards, were of so many several
|
imposed during this first period and afterwards, were of so many several
|
||||||
sorts, that it is not easy to place them under distinct heads. Let them,
|
sorts, that it is not easy to place them under distinct heads. Let them,
|
||||||
for method’s sake, be reduced to the heads following: Amercements for or
|
for method’s sake, be reduced to the heads following: Amercements for or
|
||||||
by reason of murders and manslaughters, for misdemeanors, for
|
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
|
||||||
the intervention of a jury_. He seems to imagine that _lex terræ_, the
|
the intervention of a jury_. He seems to imagine that _lex terræ_, the
|
||||||
common law, at the time of Magna Carta, included everything, even to the
|
common law, at the time of Magna Carta, included everything, even to the
|
||||||
practice of courts, that is, _at this day_, called by the name of
|
practice of courts, that is, _at this day_, called by the name of
|
||||||
_Common Law_; whereas much of what is _now_ called Common Law has grown
|
_Common Law_; whereas much of what is _now_ called Common Law has grown
|
||||||
up, by usurpation, since the time of Magna Carta, in palpable violation
|
up, by usurpation, since the time of Magna Carta, in palpable violation
|
||||||
of the authority of that charter. He says, “Certainly there are many
|
of the authority of that charter. He says, “Certainly there are many
|
||||||
legal procedures, besides _trial_ by jury, through which a party’s goods
|
legal procedures, besides _trial_ by jury, through which a party’s goods
|
||||||
or person may be taken.” Of course there are _now_ many such ways, in
|
or person may be taken.” Of course there are _now_ many such ways, in
|
||||||
which a party’s goods or person _are_ taken, besides by the judgment of
|
which a party’s goods or person _are_ taken, besides by the judgment of
|
||||||
a jury; but the question is, whether such takings are not in violation
|
a jury; but the question is, whether such takings are not in violation
|
||||||
of Magna Carta.
|
of Magna Carta.
|
||||||
|
|
||||||
He seems to think that, in cases of “judgment by default or demurrer,”
|
He seems to think that, in cases of “judgment by default or demurrer,”
|
||||||
there is no need of a jury, and thence to infer that _legem terræ_ may
|
there is no need of a jury, and thence to infer that _legem terræ_ may
|
||||||
not have required a jury in those cases. But this opinion is founded on
|
not have required a jury in those cases. But this opinion is founded on
|
||||||
the erroneous idea that juries are required only for determining
|
the erroneous idea that juries are required only for determining
|
||||||
contested _facts_, and not for judging of the law. In case of default,
|
contested _facts_, and not for judging of the law. In case of default,
|
||||||
the plaintiff must present a _prima facie_ case before he is entitled to
|
the plaintiff must present a _prima facie_ case before he is entitled to
|
||||||
a judgment; and Magna Carta, (supposing it to require a jury trial in
|
a judgment; and Magna Carta, (supposing it to require a jury trial in
|
||||||
civil cases, as Mr. Hallam assumes that it does,) as much requires that
|
civil cases, as Mr. Hallam assumes that it does,) as much requires that
|
||||||
this _prima facie_ case, both law and fact, be made out to the
|
this _prima facie_ case, both law and fact, be made out to the
|
||||||
satisfaction of a jury, as it does that a contested case shall be.
|
satisfaction of a jury, as it does that a contested case shall be.
|
||||||
|
|
||||||
As for a demurrer, the jury must try a demurrer (having the advice and
|
As for a demurrer, the jury must try a demurrer (having the advice and
|
||||||
assistance of the court, of course) as much as any other matter of law
|
assistance of the court, of course) as much as any other matter of law
|
||||||
arising in a case.
|
arising in a case.
|
||||||
|
|
||||||
Mr. Hallam evidently thinks there is no use for a jury, except where
|
Mr. Hallam evidently thinks there is no use for a jury, except where
|
||||||
there is a “_trial_”—meaning thereby a contest on matters of _fact_.
|
there is a “_trial_”—meaning thereby a contest on matters of _fact_.
|
||||||
His language is, that “there are many legal procedures, besides _trial_
|
His language is, that “there are many legal procedures, besides _trial_
|
||||||
by jury, through which a party’s goods or person may be taken.” Now
|
by jury, through which a party’s goods or person may be taken.” Now
|
||||||
Magna Carta says nothing of _trial_ by jury; but only of the _judgment_,
|
Magna Carta says nothing of _trial_ by jury; but only of the _judgment_,
|
||||||
or sentence, of a jury. It is only _by inference_ that we come to the
|
or sentence, of a jury. It is only _by inference_ that we come to the
|
||||||
conclusion that there must be a _trial_ by jury. Since the jury alone
|
conclusion that there must be a _trial_ by jury. Since the jury alone
|
||||||
can give the _judgment_, or _sentence_, we _infer_ that they must _try_
|
can give the _judgment_, or _sentence_, we _infer_ that they must _try_
|
||||||
the case; because otherwise they would be incompetent, and would have no
|
the case; because otherwise they would be incompetent, and would have no
|
||||||
moral right, to give _judgment_. They must, therefore, examine the
|
moral right, to give _judgment_. They must, therefore, examine the
|
||||||
grounds, (both of law and fact,) or rather _try_ the grounds, of every
|
grounds, (both of law and fact,) or rather _try_ the grounds, of every
|
||||||
action whatsoever, whether it be decided on “default, demurrer,” or
|
action whatsoever, whether it be decided on “default, demurrer,” or
|
||||||
otherwise, and render their judgment, or sentence, thereon, before any
|
otherwise, and render their judgment, or sentence, thereon, before any
|
||||||
judgment can be a legal one, on which “to take a party’s goods or
|
judgment can be a legal one, on which “to take a party’s goods or
|
||||||
person.” In short, the principle of Magna Carta is, that no judgment can
|
person.” In short, the principle of Magna Carta is, that no judgment can
|
||||||
be valid _against a party’s goods or person_, (not even a judgment for
|
be valid _against a party’s goods or person_, (not even a judgment for
|
||||||
costs,) except a judgment rendered by a jury. Of course a jury must try
|
costs,) except a judgment rendered by a jury. Of course a jury must try
|
||||||
every question, both of law and fact, that is involved in the rendering
|
every question, both of law and fact, that is involved in the rendering
|
||||||
of that judgment. They are to have the assistance and advice of the
|
of that judgment. They are to have the assistance and advice of the
|
||||||
judges, so far as they desire them; but the judgment itself must be
|
judges, so far as they desire them; but the judgment itself must be
|
||||||
theirs, and not the judgment of the court.
|
theirs, and not the judgment of the court.
|
||||||
|
|
||||||
As to “process of attachment for contempt,” it is of course lawful for a
|
As to “process of attachment for contempt,” it is of course lawful for a
|
||||||
judge, in his character of a peace officer, to issue a warrant for the
|
judge, in his character of a peace officer, to issue a warrant for the
|
||||||
arrest of a man guilty of a contempt, as he would for the arrest of any
|
arrest of a man guilty of a contempt, as he would for the arrest of any
|
||||||
other offender, and hold him to bail, (or, in default of bail, commit
|
other offender, and hold him to bail, (or, in default of bail, commit
|
||||||
him to prison,) to answer for his offence before a jury. Or he may order
|
him to prison,) to answer for his offence before a jury. Or he may order
|
||||||
him into custody without a warrant when the offence is committed in the
|
him into custody without a warrant when the offence is committed in the
|
||||||
judge’s presence. But there is no reason why a judge should have the
|
judge’s presence. But there is no reason why a judge should have the
|
||||||
power of _punishing_ for contempt, any more than for any other offence.
|
power of _punishing_ for contempt, any more than for any other offence.
|
||||||
And it is one of the most dangerous powers a judge can have, because it
|
And it is one of the most dangerous powers a judge can have, because it
|
||||||
gives him absolute authority in a court of justice, and enables him to
|
gives him absolute authority in a court of justice, and enables him to
|
||||||
tyrannize as he pleases over parties, counsel, witnesses, and jurors. If
|
tyrannize as he pleases over parties, counsel, witnesses, and jurors. If
|
||||||
a judge have power to punish for contempt, and to determine for himself
|
a judge have power to punish for contempt, and to determine for himself
|
||||||
what is a contempt, the whole administration of justice (or injustice,
|
what is a contempt, the whole administration of justice (or injustice,
|
||||||
if he choose to make it so) is in his hands. And all the rights of
|
if he choose to make it so) is in his hands. And all the rights of
|
||||||
jurors, witnesses, counsel, and parties, are held subject to his
|
jurors, witnesses, counsel, and parties, are held subject to his
|
||||||
pleasure, and can be exercised only agreeably to his will. He can of
|
pleasure, and can be exercised only agreeably to his will. He can of
|
||||||
course control the entire proceedings in, and consequently the decision
|
course control the entire proceedings in, and consequently the decision
|
||||||
of, every cause, by restraining and punishing every one, whether party,
|
of, every cause, by restraining and punishing every one, whether party,
|
||||||
counsel, witness, or juror, who presumes to offer anything contrary to
|
counsel, witness, or juror, who presumes to offer anything contrary to
|
||||||
his pleasure.
|
his pleasure.
|
||||||
|
|
||||||
This arbitrary power, which has been usurped and exercised by judges to
|
This arbitrary power, which has been usurped and exercised by judges to
|
||||||
punish for contempt, has undoubtedly had much to do in subduing counsel
|
punish for contempt, has undoubtedly had much to do in subduing counsel
|
||||||
into those servile, obsequious, and cowardly habits, which so
|
into those servile, obsequious, and cowardly habits, which so
|
||||||
universally prevail among them, and which have not only cost so many
|
universally prevail among them, and which have not only cost so many
|
||||||
clients their rights, but have also cost the people so many of their
|
clients their rights, but have also cost the people so many of their
|
||||||
liberties.
|
liberties.
|
||||||
|
|
||||||
If any _summary_ punishment for contempt be ever necessary, (as it
|
If any _summary_ punishment for contempt be ever necessary, (as it
|
||||||
probably is not,) beyond exclusion for the time being from the
|
probably is not,) beyond exclusion for the time being from the
|
||||||
court-room, (which should be done, not as a punishment, but for
|
court-room, (which should be done, not as a punishment, but for
|
||||||
self-protection, and the preservation of order,) the judgment for it
|
self-protection, and the preservation of order,) the judgment for it
|
||||||
should be given by the jury, (where the trial is before a jury,) and not
|
should be given by the jury, (where the trial is before a jury,) and not
|
||||||
by the court, for the jury, and not the court, are really the judges.
|
by the court, for the jury, and not the court, are really the judges.
|
||||||
For the same reason, exclusion from the court-room should be ordered
|
For the same reason, exclusion from the court-room should be ordered
|
||||||
only by the jury, in cases when the trial is before a jury, because
|
only by the jury, in cases when the trial is before a jury, because
|
||||||
they, being the real judges and triers of the cause, are entitled, if
|
they, being the real judges and triers of the cause, are entitled, if
|
||||||
anybody, to the control of the court-room. In appeal courts, where no
|
anybody, to the control of the court-room. In appeal courts, where no
|
||||||
juries sit, it may be necessary—not as a punishment, but for
|
juries sit, it may be necessary—not as a punishment, but for
|
||||||
self-protection, and the maintenance of order—that the court should
|
self-protection, and the maintenance of order—that the court should
|
||||||
exercise the power of excluding a person, for the time being, from the
|
exercise the power of excluding a person, for the time being, from the
|
||||||
court-room; but there is no reason why they should proceed to sentence
|
court-room; but there is no reason why they should proceed to sentence
|
||||||
him as a criminal, without his being tried by a jury.
|
him as a criminal, without his being tried by a jury.
|
||||||
|
|
||||||
If the people wish to have their rights respected and protected in
|
If the people wish to have their rights respected and protected in
|
||||||
courts of justice, it is manifestly of the last importance that they
|
courts of justice, it is manifestly of the last importance that they
|
||||||
jealously guard the liberty of parties, counsel, witnesses, and jurors,
|
jealously guard the liberty of parties, counsel, witnesses, and jurors,
|
||||||
against all arbitrary power on the part of the court.
|
against all arbitrary power on the part of the court.
|
||||||
|
|
||||||
Certainly Mr. Hallam may very well say that “one may doubt whether these
|
Certainly Mr. Hallam may very well say that “one may doubt whether these
|
||||||
(the several cases he has mentioned) were in contemplation of the
|
(the several cases he has mentioned) were in contemplation of the
|
||||||
framers of Magna Carta”—that is, as exceptions to the rule requiring
|
framers of Magna Carta”—that is, as exceptions to the rule requiring
|
||||||
that all judgments, that are to be enforced “_against a party’s goods or
|
that all judgments, that are to be enforced “_against a party’s goods or
|
||||||
person_,” be rendered by a jury.
|
person_,” be rendered by a jury.
|
||||||
|
|
||||||
Again, Mr. Hallam says, if the word _vel_ be rendered by _and_, “the
|
Again, Mr. Hallam says, if the word _vel_ be rendered by _and_, “the
|
||||||
meaning will be, that no person shall be disseized, &c., _except upon a
|
meaning will be, that no person shall be disseized, &c., _except upon a
|
||||||
lawful cause of action_.” This is true; but it does not follow that any
|
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_.
|
||||||
|
|||||||
1604
edited/03.markdown
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File diff suppressed because it is too large
Load Diff
@ -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
|
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
|
||||||
plundered them, without any judgments of juries to authorize them.
|
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
|
[^70]: By the Magna Carta of Henry III. this is changed to once a
|
||||||
robberies; but only some evidence of the general fact.
|
year.
|
||||||
|
|
||||||
> Hallam says, that “For the first three reigns (of the Norman kings) *
|
[^71]: From the provision of Magna Carta, cited in the text, it
|
||||||
> * the intolerable exactions of tribute, the rapine of purveyance, the
|
must be inferred that there can be no legal trial by jury, in civil
|
||||||
> iniquity of royal courts, are continually in the mouths of the
|
cases, if only the king’s justices preside; that, to make the trial
|
||||||
> historians. ‘God sees the wretched people,’ says the Saxon
|
legal, there must be other persons, chosen by the people, to sit with
|
||||||
> Chronicler, ‘most unjustly oppressed; first they are despoiled of
|
them; the object being to prevent the jury’s being deceived by the
|
||||||
> their possessions, and then butchered.’ This was a grievous year
|
justices. I think we must also infer that the king’s justices could sit
|
||||||
> (1124). Whoever had any property, lost it by heavy taxes and unjust
|
only in the three actions specially mentioned. We cannot go beyond the
|
||||||
> decrees.”—_2 Middle Ages_, 435-6.
|
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
|
[^72]: “The earls, sheriffs, and head-boroughs were annually
|
||||||
> to these Norman kings were not only redoubled, but mingled with
|
elected in the full folcmote, (people’s meeting).”—_Introduction to
|
||||||
> outrages of tyranny still more intolerable. * *
|
Gilbert’s History of the Common Pleas_, p. 2, _note_.
|
||||||
|
|
||||||
> “In 1207 John took a seventh of the movables of lay and spiritual
|
“It was the especial province of the earldomen or earl to attend the
|
||||||
> persons, all murmuring, but none daring to speak against
|
shyre-meeting, (the county court,) twice a year, and there officiate as
|
||||||
> it.”—_Ditto_, 446.
|
the county judge in expounding the secular laws, as appears by the fifth
|
||||||
|
of Edgar’s laws.”—_Same_, p. 2, _note_.
|
||||||
In Hume’s account of the extortions of those times, the following
|
|
||||||
paragraph occurs:
|
“Every ward had its proper alderman, who was _chosen_, and not imposed
|
||||||
|
by the prince.”—_Same_, p. 4, _text_.
|
||||||
> “But the most barefaced acts of tyranny and oppression were practised
|
|
||||||
> against the Jews, who were entirely out of the protection of the law,
|
“As the aldermen, or earls, were always _chosen_” (by the people) “from
|
||||||
> and were abandoned to the immeasurable rapacity of the king and his
|
among the greatest thanes, who in those times were generally more
|
||||||
> ministers. Besides many other indignities, to which they were
|
addicted to arms than to letters, they were but ill-qualified for the
|
||||||
> continually exposed, it appears that they were once all thrown into
|
administration of justice, and performing the civil duties of their
|
||||||
> prison, and the sum of 66,000 marks exacted for their liberty. At
|
office.”—_3 Henry’s History of Great Britain_, 343.
|
||||||
> another time, Isaac, the Jew, paid alone 5100 marks; Brun, 3000
|
|
||||||
> marks; Jurnet, 2000; Bennet, 500. At another, Licorica, widow of
|
“But none of these thanes were annually elected in the full folcmote,
|
||||||
> David, the Jew of Oxford, was required to pay 6000 marks.”—_Hume’s
|
(people’s meeting,) _as the earls, sheriffs, and head-boroughs were_;
|
||||||
> Hist. Eng., Appendix_ 2.
|
nor did King Alfred (as this author suggests) deprive the people of the
|
||||||
|
election of those last mentioned magistrates and nobles, much less did
|
||||||
Further accounts of the extortions and oppressions of the kings may be
|
he appoint them himself.”—_Introd. to Gilbert’s Hist. Com. Pleas_, p.
|
||||||
found in Hume’s History, Appendix 2, and in Hallam’s Middle Ages, vol.
|
2, _note_.
|
||||||
2, p. 435 to 446.
|
|
||||||
|
“The sheriff was usually not appointed by the lord, but elected by the
|
||||||
By Magna Carta John bound himself to make restitution for some of the
|
freeholders of the district.”—_Political Dictionary_, word _Sheriff_.
|
||||||
spoliations he had committed upon individuals “_without the legal
|
|
||||||
judgment of their peers_.”—_See Magna Carta of John_, ch. 60, 61, 65
|
“Among the most remarkable of the Saxon laws we may reckon * * the
|
||||||
and 66.
|
election of their magistrates by the people, originally even that of
|
||||||
|
their kings, till dear-bought experience evinced the convenience and
|
||||||
One of the great charges, on account of which the nation rose against
|
necessity of establishing an hereditary succession to the crown. But
|
||||||
John, was, that he plundered individuals of their property, “_without
|
that (the election) of all subordinate magistrates, their military
|
||||||
legal judgment of their peers_.” Now it was evidently very weak and
|
officers or heretochs, their sheriffs, their conservators of the peace,
|
||||||
short-sighted in John to expose himself to such charges, _if his laws
|
their coroners, their portreeves, (since changed into mayors and
|
||||||
were really obligatory upon the peers_; because, in that case, he could
|
bailiffs,) and even their tithing-men and borsholders at the last,
|
||||||
have enacted any laws that were necessary for his purpose, and then, by
|
continued, some, till the Norman conquest, others for two centuries
|
||||||
civil suits, have brought the cases before juries for their “judgment,”
|
after, and some remain to this day.”—_4 Blackstone_, 413.
|
||||||
and thus have accomplished all his robberies in a perfectly legal
|
|
||||||
manner.
|
“The election of sheriffs was left to the people, _according to ancient
|
||||||
|
usage_.”—_St. West._ 1, c. 27.—_Crabbe’s History of English Law_,
|
||||||
There would evidently have been no sense in these complaints, that he
|
181.
|
||||||
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.]
|
|
||||||
|
|||||||
@ -678,77 +678,77 @@ decide the same question the other way, _unless they were misled by the
|
|||||||
justices_. If, however, such things should sometimes happen, from any
|
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
|
||||||
for weighing such evidence as they permit them to hear,—they of
|
for weighing such evidence as they permit them to hear,—they of
|
||||||
necessity dictate the conclusion to which they shall arrive. And thus
|
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
|
||||||
would also disagree on matters of law—that is, _of justice_; because
|
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
|
||||||
agreed. Government, therefore, must be kept within these limits, or it
|
agreed. Government, therefore, must be kept within these limits, or it
|
||||||
is no longer a voluntary association of all who contribute to its
|
is no longer a voluntary association of all who contribute to its
|
||||||
support, but a mere tyranny established by a part over the rest.
|
support, but a mere tyranny established by a part over the rest.
|
||||||
|
|
||||||
|
All, or nearly all, voluntary associations give to a majority, or to
|
||||||
|
some other portion of the members less than the whole, the right to use
|
||||||
|
some _limited_ discretion as to the means to be used to accomplish the
|
||||||
|
ends in view; but _the ends themselves to be accomplished_ are always
|
||||||
|
precisely defined, and are such as every member necessarily agrees to,
|
||||||
|
else he would not voluntarily join the association.
|
||||||
|
|
||||||
|
Justice is the object of government, and those who support the
|
||||||
|
government, must be agreed as to the justice to be executed by it, or
|
||||||
|
they cannot rightfully unite in maintaining the government itself.
|
||||||
|
|
||||||
All, or nearly all, voluntary associations give to a majority, or to
|
[^76]: Jones on Bailments, 133.
|
||||||
some other portion of the members less than the whole, the right to use
|
|
||||||
some _limited_ discretion as to the means to be used to accomplish the
|
|
||||||
ends in view; but _the ends themselves to be accomplished_ are always
|
|
||||||
precisely defined, and are such as every member necessarily agrees to,
|
|
||||||
else he would not voluntarily join the association.
|
|
||||||
|
|
||||||
Justice is the object of government, and those who support the
|
[^77]: Kent, describing the difficulty of construing the written
|
||||||
government, must be agreed as to the justice to be executed by it, or
|
law, says:
|
||||||
they cannot rightfully unite in maintaining the government itself.]
|
|
||||||
|
“Such is the imperfection of language, and the want of technical skill
|
||||||
|
in the makers of the law, that statutes often give occasion to the most
|
||||||
|
perplexing and distressing doubts and discussions, arising from the
|
||||||
|
ambiguity that attends them. It requires great experience, as well as
|
||||||
|
the command of a perspicuous diction, to frame a law in such clear and
|
||||||
|
precise terms, as to secure it from ambiguous expressions, and from all
|
||||||
|
doubts and criticisms upon its meaning.”—_Kent_, 460.
|
||||||
|
|
||||||
|
The following extract from a speech of Lord Brougham, in the House of
|
||||||
|
Lords, confesses the same difficulty:
|
||||||
|
|
||||||
|
“There was another subject, well worthy of the consideration of
|
||||||
|
government during the recess,—the expediency, _or rather the absolute
|
||||||
|
necessity_, of some arrangement for the preparation of bills, not merely
|
||||||
|
private, but public bills, _in order that legislation might be
|
||||||
|
consistent and systematic, and that the courts might not have so large a
|
||||||
|
portion of their time occupied in endeavoring to construe acts of
|
||||||
|
Parliament, in many cases unconstruable, and in most cases difficult to
|
||||||
|
be construed_.”—_Law Reporter_, 1848, p. 525.
|
||||||
|
|
||||||
[Footnote 76: Jones on Bailments, 133.]
|
[^78]: This condemnation of written laws must, of course, be
|
||||||
|
understood as applying only to cases where principles and rights are
|
||||||
[Footnote 77: Kent, describing the difficulty of construing the written
|
involved, and not as condemning any governmental arrangements, or
|
||||||
law, says:
|
instrumentalities, that are consistent with natural right, and which
|
||||||
|
must be agreed upon for the purpose of carrying natural law into effect.
|
||||||
“Such is the imperfection of language, and the want of technical skill
|
These things may be varied, as expediency may dictate, so only that they
|
||||||
in the makers of the law, that statutes often give occasion to the most
|
be allowed to infringe no principle of justice. And they must, of
|
||||||
perplexing and distressing doubts and discussions, arising from the
|
course, be written, because they do not exist as fixed principles, or
|
||||||
ambiguity that attends them. It requires great experience, as well as
|
laws in nature.
|
||||||
the command of a perspicuous diction, to frame a law in such clear and
|
|
||||||
precise terms, as to secure it from ambiguous expressions, and from all
|
|
||||||
doubts and criticisms upon its meaning.”—_Kent_, 460.
|
|
||||||
|
|
||||||
The following extract from a speech of Lord Brougham, in the House of
|
|
||||||
Lords, confesses the same difficulty:
|
|
||||||
|
|
||||||
“There was another subject, well worthy of the consideration of
|
|
||||||
government during the recess,—the expediency, _or rather the absolute
|
|
||||||
necessity_, of some arrangement for the preparation of bills, not merely
|
|
||||||
private, but public bills, _in order that legislation might be
|
|
||||||
consistent and systematic, and that the courts might not have so large a
|
|
||||||
portion of their time occupied in endeavoring to construe acts of
|
|
||||||
Parliament, in many cases unconstruable, and in most cases difficult to
|
|
||||||
be construed_.”—_Law Reporter_, 1848, p. 525.]
|
|
||||||
|
|
||||||
[Footnote 78: This condemnation of written laws must, of course, be
|
|
||||||
understood as applying only to cases where principles and rights are
|
|
||||||
involved, and not as condemning any governmental arrangements, or
|
|
||||||
instrumentalities, that are consistent with natural right, and which
|
|
||||||
must be agreed upon for the purpose of carrying natural law into effect.
|
|
||||||
These things may be varied, as expediency may dictate, so only that they
|
|
||||||
be allowed to infringe no principle of justice. And they must, of
|
|
||||||
course, be written, because they do not exist as fixed principles, or
|
|
||||||
laws in nature.]
|
|
||||||
|
|||||||
@ -533,155 +533,155 @@ juror. This mode of appointment would guard against collusion and
|
|||||||
selection; and juries so appointed would be likely to be a fair epitome
|
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.”
|
||||||
|
|
||||||
|
> “That no bailiff nor other officer from henceforth return or impanel
|
||||||
|
> any such person in any shire of England, to be taken or put in or
|
||||||
|
> upon any inquiry in any of the said Turns, but such as be of good
|
||||||
|
> name and fame, and having lands and tenements of freehold within the
|
||||||
|
> same shires, to the yearly value of _twenty shillings_ at the least,
|
||||||
|
> or else lands and tenements holden by custom of manor, commonly
|
||||||
|
> called _copy-hold_, within the said shires, to the yearly value of
|
||||||
|
> twenty-six shillings eight pence over all charges at the least.”—_1
|
||||||
|
> Richard III._, ch. 4. (1483.)
|
||||||
|
|
||||||
|
> In 1486 it was enacted, “That the justices of the peace of every
|
||||||
|
> shire of this realm for the time being may take, by their discretion,
|
||||||
|
> an inquest, whereof every man shall have lands and tenements to the
|
||||||
|
> yearly value of _forty shillings_ at the least, to inquire of the
|
||||||
|
> concealments of others,” &c., &c.—_3 Henry VII._, ch. 1 (1486.)
|
||||||
|
|
||||||
|
A statute passed in 1494, in regard to jurors in the city of London,
|
||||||
|
enacts:
|
||||||
|
|
||||||
|
> “That no person nor persons hereafter be impanelled, summoned, or
|
||||||
|
> sworn in any jury or inquest in courts within the same city, (of
|
||||||
|
> London,) except he be of lands, tenements, or goods and chattels, to
|
||||||
|
> the value of _forty marks_;[^86] and that no person or persons
|
||||||
|
> hereafter be impanelled, summoned, nor sworn in any jury or inquest
|
||||||
|
> in any court within the said city, for lands or tenements, or action
|
||||||
|
> personal, wherein the debt or damage amounteth to the sum of forty
|
||||||
|
> marks, or above, except he be in lands, tenements, goods, or
|
||||||
|
> chattels, to the value of _one hundred marks_.”—_11 Henry VII._, ch.
|
||||||
|
> 21. (1494.)
|
||||||
|
|
||||||
|
The statute _4 Henry VIII._, ch. 3, sec. 4, (1512) requires jurors in
|
||||||
|
London to have “_goods_ to the value of one hundred marks.”
|
||||||
|
|
||||||
|
> In 1494 it was enacted that “It shall be lawful to every sheriff of
|
||||||
|
> the counties of _Southampton_, _Surrey_, _and Sussex_, to impanel and
|
||||||
|
> summons twenty-four lawful men of such, inhabiting within the
|
||||||
|
> precinct of his or their turns, as owe suit to the same turn, whereof
|
||||||
|
> every one hath lands or freehold to the yearly value of _ten_
|
||||||
|
> shillings, or copy-hold lands to the yearly value of _thirteen
|
||||||
|
> shillings four pence_, above all charges within any of the said
|
||||||
|
> counties, or men of less livelihood, if there be not so many there,
|
||||||
|
> notwithstanding the statute of _1 Richard III._, ch. 4. To endure to
|
||||||
|
> the next parliament.”—_11 Henry VII._, ch. 26. (1494.)
|
||||||
|
|
||||||
|
This statute was continued in force by _19 Henry VII._, ch. 16. (1503.)
|
||||||
|
|
||||||
|
> In 1531 it was enacted, “That every person or persons, being the
|
||||||
|
> king’s natural subject born, which either by the name of citizen, or
|
||||||
|
> of a freeman, or any other name, doth enjoy and use the liberties and
|
||||||
|
> privileges of any city, borough, or town corporate, where he dwelleth
|
||||||
|
> and maketh his abode, being worth in _movable goods and substance_ to
|
||||||
|
> the clear value of _forty pounds_, be henceforth admitted in trials
|
||||||
|
> of murders and felonies in every sessions and gaol delivery, to be
|
||||||
|
> kept and holden in and for the liberty of such cities, boroughs, and
|
||||||
|
> towns corporate, albeit they have no freehold; any act, statute, use,
|
||||||
|
> custom, or ordinance to the contrary hereof notwithstanding.”—_23
|
||||||
|
> Henry VIII._, ch. 13. (1531.)
|
||||||
|
|
||||||
|
> In 1585 it was enacted, “That in all cases where any jurors to be
|
||||||
|
> returned for trial of any issue or issues joined in any of the
|
||||||
|
> Queen’s majesty’s courts of King’s Bench, Common Pleas, and the
|
||||||
|
> Exchequer, or before justices of assize, by the laws of this realm
|
||||||
|
> now in force, ought to have estate of freehold in lands, tenements,
|
||||||
|
> or hereditaments, of the clear yearly value of _forty shillings_,
|
||||||
|
> that in every such case the jurors that shall be returned from and
|
||||||
|
> after the end of this present session of parliament, shall every of
|
||||||
|
> them have estate of freehold in lands, tenements, or hereditaments,
|
||||||
|
> to the clear yearly value of _four pounds_ at the least.”—_27
|
||||||
|
> Elizabeth_, ch. 6. (1585.)
|
||||||
|
|
||||||
|
> In 1664-5 it was enacted, “That all jurors (other than strangers upon
|
||||||
|
> trials _per medietatem linguæ_) who are to be returned for the trials
|
||||||
|
> of issues joined in any of (his) majesty’s courts of king’s bench,
|
||||||
|
> common pleas, or the exchequer, or before justices of assize, or nisi
|
||||||
|
> prius, oyer and terminer, gaol delivery, or general or quarter
|
||||||
|
> sessions of the peace, from and after the twentieth day of April,
|
||||||
|
> which shall be in the year of our Lord one thousand six hundred and
|
||||||
|
> sixty-five, in any county of this realm of England, shall every of
|
||||||
|
> them thon have, in their own name, or in trust for them, within the
|
||||||
|
> same county, _twenty pounds by the year_, at least, above reprises,
|
||||||
|
> in their own or their wives’ right, of freehold lands, or of ancient
|
||||||
|
> demesne, or of rents in fee, fee-tail, or for life. And that in every
|
||||||
|
> county within the dominion of Wales every such juror shall then have,
|
||||||
|
> within the same, _eight pounds by the year_, at the least, above
|
||||||
|
> reprises, in manner aforesaid. All which persons having such estate
|
||||||
|
> as aforesaid are hereby enabled and made liable to be returned and
|
||||||
|
> serve as jurors for the trial of issues before the justices
|
||||||
|
> aforesaid, any law or statute to the contrary in any wise
|
||||||
|
> notwithstanding.”—_16 and 17 Charles II._, ch. 3. (1664-5.)
|
||||||
|
|
||||||
|
By a statute passed in 1692, jurors in England are to have landed
|
||||||
|
estates of the value of _ten pounds a year_; and jurors in Wales to have
|
||||||
|
similar estates of the realm of _six pounds a year_.—_4 and 5 William
|
||||||
|
and Mary_, ch. 24, sec. 14. (1692.)
|
||||||
|
|
||||||
|
By the same statute, (sec. 18,) persons may be returned to serve upon
|
||||||
|
the _tales_ in any county of England, who shall have, within the same
|
||||||
|
county, _five pounds by the year_, above reprises, in the manner
|
||||||
|
aforesaid.
|
||||||
|
|
||||||
|
By _St_. 3 _George II_., ch. 25, sec. 19, 20, no one is to be a juror in
|
||||||
|
London, who shall not be “an householder within the said city, and have
|
||||||
|
lands, tenements, or personal estate, to the value of _one hundred
|
||||||
|
pounds_.”
|
||||||
|
|
||||||
|
By another statute, applicable only to the county of _Middlesex_, it is
|
||||||
|
enacted,
|
||||||
|
|
||||||
|
> “That all leaseholders, upon leases where the improved rents or value
|
||||||
|
> shall amount to _fifty pounds or upwards per annum_, over and above
|
||||||
|
> all ground rents or other reservations payable by virtue of the said
|
||||||
|
> leases, shall be liable and obliged to serve upon juries when they
|
||||||
|
> shall be legally summoned for that purpose.”—_4 George II._, ch. 7,
|
||||||
|
> sec. 3. (1731.)
|
||||||
|
|
||||||
> “That no bailiff nor other officer from henceforth return or impanel
|
[^83]: Suppose these statutes, instead of disfranchising all
|
||||||
> any such person in any shire of England, to be taken or put in or
|
whose freeholds were of less than the standard value fixed by the
|
||||||
> upon any inquiry in any of the said Turns, but such as be of good
|
statutes, had disfranchised all whose freeholds were of greater value
|
||||||
> name and fame, and having lands and tenements of freehold within the
|
than the same standard—would anybody ever have doubted that such
|
||||||
> same shires, to the yearly value of _twenty shillings_ at the least,
|
legislation was inconsistent with the English constitution; or that it
|
||||||
> or else lands and tenements holden by custom of manor, commonly
|
amounted to an entire abolition of the trial by jury? Certainly not. Yet
|
||||||
> called _copy-hold_, within the said shires, to the yearly value of
|
it was as clearly inconsistent with the common law, or the English
|
||||||
> twenty-six shillings eight pence over all charges at the least.”—_1
|
constitution, to disfranchise those whose freeholds fell below any
|
||||||
> Richard III._, ch. 4. (1483.)
|
arbitrary standard fixed by the government, as it would have been to
|
||||||
|
disfranchise all whose freeholds rose above that standard.
|
||||||
|
|
||||||
> In 1486 it was enacted, “That the justices of the peace of every
|
[^84]: _Lingard_ says: “These compurgators or jurors * * were
|
||||||
> shire of this realm for the time being may take, by their discretion,
|
sometimes * * _drawn by lot_.”—_1 Lingard’s History of England_, p.
|
||||||
> an inquest, whereof every man shall have lands and tenements to the
|
300.
|
||||||
> yearly value of _forty shillings_ at the least, to inquire of the
|
|
||||||
> concealments of others,” &c., &c.—_3 Henry VII._, ch. 1 (1486.)
|
|
||||||
|
|
||||||
A statute passed in 1494, in regard to jurors in the city of London,
|
[^85]: Chapter 4, p. 120, note.
|
||||||
enacts:
|
|
||||||
|
|
||||||
> “That no person nor persons hereafter be impanelled, summoned, or
|
[^86]: A mark was thirteen shillings and four pence.
|
||||||
> sworn in any jury or inquest in courts within the same city, (of
|
|
||||||
> London,) except he be of lands, tenements, or goods and chattels, to
|
|
||||||
> the value of _forty marks_;[^86] and that no person or persons
|
|
||||||
> hereafter be impanelled, summoned, nor sworn in any jury or inquest
|
|
||||||
> in any court within the said city, for lands or tenements, or action
|
|
||||||
> personal, wherein the debt or damage amounteth to the sum of forty
|
|
||||||
> marks, or above, except he be in lands, tenements, goods, or
|
|
||||||
> chattels, to the value of _one hundred marks_.”—_11 Henry VII._, ch.
|
|
||||||
> 21. (1494.)
|
|
||||||
|
|
||||||
The statute _4 Henry VIII._, ch. 3, sec. 4, (1512) requires jurors in
|
|
||||||
London to have “_goods_ to the value of one hundred marks.”
|
|
||||||
|
|
||||||
> In 1494 it was enacted that “It shall be lawful to every sheriff of
|
|
||||||
> the counties of _Southampton_, _Surrey_, _and Sussex_, to impanel and
|
|
||||||
> summons twenty-four lawful men of such, inhabiting within the
|
|
||||||
> precinct of his or their turns, as owe suit to the same turn, whereof
|
|
||||||
> every one hath lands or freehold to the yearly value of _ten_
|
|
||||||
> shillings, or copy-hold lands to the yearly value of _thirteen
|
|
||||||
> shillings four pence_, above all charges within any of the said
|
|
||||||
> counties, or men of less livelihood, if there be not so many there,
|
|
||||||
> notwithstanding the statute of _1 Richard III._, ch. 4. To endure to
|
|
||||||
> the next parliament.”—_11 Henry VII._, ch. 26. (1494.)
|
|
||||||
|
|
||||||
This statute was continued in force by _19 Henry VII._, ch. 16. (1503.)
|
|
||||||
|
|
||||||
> In 1531 it was enacted, “That every person or persons, being the
|
|
||||||
> king’s natural subject born, which either by the name of citizen, or
|
|
||||||
> of a freeman, or any other name, doth enjoy and use the liberties and
|
|
||||||
> privileges of any city, borough, or town corporate, where he dwelleth
|
|
||||||
> and maketh his abode, being worth in _movable goods and substance_ to
|
|
||||||
> the clear value of _forty pounds_, be henceforth admitted in trials
|
|
||||||
> of murders and felonies in every sessions and gaol delivery, to be
|
|
||||||
> kept and holden in and for the liberty of such cities, boroughs, and
|
|
||||||
> towns corporate, albeit they have no freehold; any act, statute, use,
|
|
||||||
> custom, or ordinance to the contrary hereof notwithstanding.”—_23
|
|
||||||
> Henry VIII._, ch. 13. (1531.)
|
|
||||||
|
|
||||||
> In 1585 it was enacted, “That in all cases where any jurors to be
|
|
||||||
> returned for trial of any issue or issues joined in any of the
|
|
||||||
> Queen’s majesty’s courts of King’s Bench, Common Pleas, and the
|
|
||||||
> Exchequer, or before justices of assize, by the laws of this realm
|
|
||||||
> now in force, ought to have estate of freehold in lands, tenements,
|
|
||||||
> or hereditaments, of the clear yearly value of _forty shillings_,
|
|
||||||
> that in every such case the jurors that shall be returned from and
|
|
||||||
> after the end of this present session of parliament, shall every of
|
|
||||||
> them have estate of freehold in lands, tenements, or hereditaments,
|
|
||||||
> to the clear yearly value of _four pounds_ at the least.”—_27
|
|
||||||
> Elizabeth_, ch. 6. (1585.)
|
|
||||||
|
|
||||||
> In 1664-5 it was enacted, “That all jurors (other than strangers upon
|
|
||||||
> trials _per medietatem linguæ_) who are to be returned for the trials
|
|
||||||
> of issues joined in any of (his) majesty’s courts of king’s bench,
|
|
||||||
> common pleas, or the exchequer, or before justices of assize, or nisi
|
|
||||||
> prius, oyer and terminer, gaol delivery, or general or quarter
|
|
||||||
> sessions of the peace, from and after the twentieth day of April,
|
|
||||||
> which shall be in the year of our Lord one thousand six hundred and
|
|
||||||
> sixty-five, in any county of this realm of England, shall every of
|
|
||||||
> them thon have, in their own name, or in trust for them, within the
|
|
||||||
> same county, _twenty pounds by the year_, at least, above reprises,
|
|
||||||
> in their own or their wives’ right, of freehold lands, or of ancient
|
|
||||||
> demesne, or of rents in fee, fee-tail, or for life. And that in every
|
|
||||||
> county within the dominion of Wales every such juror shall then have,
|
|
||||||
> within the same, _eight pounds by the year_, at the least, above
|
|
||||||
> reprises, in manner aforesaid. All which persons having such estate
|
|
||||||
> as aforesaid are hereby enabled and made liable to be returned and
|
|
||||||
> serve as jurors for the trial of issues before the justices
|
|
||||||
> aforesaid, any law or statute to the contrary in any wise
|
|
||||||
> notwithstanding.”—_16 and 17 Charles II._, ch. 3. (1664-5.)
|
|
||||||
|
|
||||||
By a statute passed in 1692, jurors in England are to have landed
|
|
||||||
estates of the value of _ten pounds a year_; and jurors in Wales to have
|
|
||||||
similar estates of the realm of _six pounds a year_.—_4 and 5 William
|
|
||||||
and Mary_, ch. 24, sec. 14. (1692.)
|
|
||||||
|
|
||||||
By the same statute, (sec. 18,) persons may be returned to serve upon
|
|
||||||
the _tales_ in any county of England, who shall have, within the same
|
|
||||||
county, _five pounds by the year_, above reprises, in the manner
|
|
||||||
aforesaid.
|
|
||||||
|
|
||||||
By _St_. 3 _George II_., ch. 25, sec. 19, 20, no one is to be a juror in
|
|
||||||
London, who shall not be “an householder within the said city, and have
|
|
||||||
lands, tenements, or personal estate, to the value of _one hundred
|
|
||||||
pounds_.”
|
|
||||||
|
|
||||||
By another statute, applicable only to the county of _Middlesex_, it is
|
|
||||||
enacted,
|
|
||||||
|
|
||||||
> “That all leaseholders, upon leases where the improved rents or value
|
|
||||||
> shall amount to _fifty pounds or upwards per annum_, over and above
|
|
||||||
> all ground rents or other reservations payable by virtue of the said
|
|
||||||
> leases, shall be liable and obliged to serve upon juries when they
|
|
||||||
> shall be legally summoned for that purpose.”—_4 George II._, ch. 7,
|
|
||||||
> sec. 3. (1731.)]
|
|
||||||
|
|
||||||
[Footnote 83: Suppose these statutes, instead of disfranchising all
|
|
||||||
whose freeholds were of less than the standard value fixed by the
|
|
||||||
statutes, had disfranchised all whose freeholds were of greater value
|
|
||||||
than the same standard—would anybody ever have doubted that such
|
|
||||||
legislation was inconsistent with the English constitution; or that it
|
|
||||||
amounted to an entire abolition of the trial by jury? Certainly not. Yet
|
|
||||||
it was as clearly inconsistent with the common law, or the English
|
|
||||||
constitution, to disfranchise those whose freeholds fell below any
|
|
||||||
arbitrary standard fixed by the government, as it would have been to
|
|
||||||
disfranchise all whose freeholds rose above that standard.]
|
|
||||||
|
|
||||||
[Footnote 84: _Lingard_ says: “These compurgators or jurors * * were
|
|
||||||
sometimes * * _drawn by lot_.”—_1 Lingard’s History of England_, p.
|
|
||||||
300.]
|
|
||||||
|
|
||||||
[Footnote 85: Chapter 4, p. 120, note.]
|
|
||||||
|
|
||||||
[Footnote 86: A mark was thirteen shillings and four pence.]
|
|
||||||
|
|||||||
1226
edited/07.markdown
1226
edited/07.markdown
File diff suppressed because it is too large
Load Diff
@ -168,46 +168,46 @@ actual suits in which this kind of oppression is practised; but we are
|
|||||||
to include all those cases in which the fear of such oppression is used
|
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
|
||||||
part of governments and of private persons, shows that their importance
|
part of governments and of private persons, shows that their importance
|
||||||
is generally understood. As a mere matter of economy, too, it would be
|
is generally understood. As a mere matter of economy, too, it would be
|
||||||
wise for the government to pay them, rather than they should not be
|
wise for the government to pay them, rather than they should not be
|
||||||
employed; because they collect and arrange the testimony and the law
|
employed; because they collect and arrange the testimony and the law
|
||||||
beforehand, so as to be able to present the whole case to the court and
|
beforehand, so as to be able to present the whole case to the court and
|
||||||
jury intelligibly, and in a short space of time. Whereas, if they were
|
jury intelligibly, and in a short space of time. Whereas, if they were
|
||||||
not employed, the court and jury would be under the necessity either of
|
not employed, the court and jury would be under the necessity either of
|
||||||
spending much more time than now in the investigation of causes, or of
|
spending much more time than now in the investigation of causes, or of
|
||||||
despatching them in haste, and with little regard to justice. They would
|
despatching them in haste, and with little regard to justice. They would
|
||||||
be very likely to do the latter, thus defeating the whole object of the
|
be very likely to do the latter, thus defeating the whole object of the
|
||||||
people in establishing courts.
|
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.
|
||||||
|
|||||||
@ -312,118 +312,118 @@ In short, they would judge of his moral intent from all the
|
|||||||
circumstances of the case, and acquit him, if they had any reasonable
|
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
|
||||||
twenty-one years of age?—and that, previous to that day, no man becomes
|
twenty-one years of age?—and that, previous to that day, no man becomes
|
||||||
competent to make any contract whatever, except for the present supply
|
competent to make any contract whatever, except for the present supply
|
||||||
of the most obvious wants of nature? In reason, a man’s _legal_
|
of the most obvious wants of nature? In reason, a man’s _legal_
|
||||||
competency to make _binding_ contracts, in any and every case whatever,
|
competency to make _binding_ contracts, in any and every case whatever,
|
||||||
depends wholly upon his _mental_ capacity to make _reasonable_ contracts
|
depends wholly upon his _mental_ capacity to make _reasonable_ contracts
|
||||||
in each particular case. It of course requires more capacity to make a
|
in each particular case. It of course requires more capacity to make a
|
||||||
reasonable contract in some cases than in others. It requires, for
|
reasonable contract in some cases than in others. It requires, for
|
||||||
example, more capacity to make a reasonable contract in the purchase of
|
example, more capacity to make a reasonable contract in the purchase of
|
||||||
a large estate, than in the purchase of a pair of shoes. But the mental
|
a large estate, than in the purchase of a pair of shoes. But the mental
|
||||||
capacity to make a reasonable contract, in any particular case, is, in
|
capacity to make a reasonable contract, in any particular case, is, in
|
||||||
reason, the only legal criterion of the legal competency to make a
|
reason, the only legal criterion of the legal competency to make a
|
||||||
binding contract in that case. The age, whether more or less than
|
binding contract in that case. The age, whether more or less than
|
||||||
twenty-one years, is of no legal consequence whatever, except that it is
|
twenty-one years, is of no legal consequence whatever, except that it is
|
||||||
entitled to some consideration as _evidence of capacity_.
|
entitled to some consideration as _evidence of capacity_.
|
||||||
|
|
||||||
|
It may be mentioned, in this connection, that the rules that prevail,
|
||||||
|
that every man is entitled to freedom from parental authority at
|
||||||
|
twenty-one years of age, and no one before that age, are of the same
|
||||||
|
class of absurdities with those that have been mentioned. The only
|
||||||
|
ground on which a parent is ever entitled to exercise authority over his
|
||||||
|
child, is that the child is incapable of taking reasonable care of
|
||||||
|
himself. The child would be entitled to his freedom from his birth, if
|
||||||
|
he were at that time capable of taking reasonable care of himself. Some
|
||||||
|
become capable of taking care of themselves at an earlier age than
|
||||||
|
others. And whenever any one becomes capable of taking reasonable care
|
||||||
|
of himself, and not until then, he is entitled to his freedom, be his
|
||||||
|
age more or less.
|
||||||
|
|
||||||
|
These principles would prevail under the true trial by jury, the jury
|
||||||
|
being the judges of the capacity of every individual whose capacity
|
||||||
|
should be called in question.
|
||||||
|
|
||||||
It may be mentioned, in this connection, that the rules that prevail,
|
[^104]: In contrast to the doctrines of the text, it may be
|
||||||
that every man is entitled to freedom from parental authority at
|
proper to present more distinctly the doctrines that are maintained by
|
||||||
twenty-one years of age, and no one before that age, are of the same
|
judges, and that prevail in courts of justice.
|
||||||
class of absurdities with those that have been mentioned. The only
|
|
||||||
ground on which a parent is ever entitled to exercise authority over his
|
Of course, no judge, either of the present day, or perhaps within the
|
||||||
child, is that the child is incapable of taking reasonable care of
|
last five hundred years, has admitted the right of a jury to judge of
|
||||||
himself. The child would be entitled to his freedom from his birth, if
|
the _justice_ of a law, or to hold any law invalid for its injustice.
|
||||||
he were at that time capable of taking reasonable care of himself. Some
|
Every judge asserts the power of the government to punish for acts that
|
||||||
become capable of taking care of themselves at an earlier age than
|
are intrinsically innocent, and which therefore involve or evince no
|
||||||
others. And whenever any one becomes capable of taking reasonable care
|
criminal intent. To accommodate the administration of law to this
|
||||||
of himself, and not until then, he is entitled to his freedom, be his
|
principle, all judges, so far as I am aware, hold it to be unnecessary
|
||||||
age more or less.
|
that an indictment should charge, or that a jury should find, that an
|
||||||
|
act was done with a criminal intent, except in those cases where the act
|
||||||
|
is _malum in se_,—criminal in itself. In all other cases, so far as I
|
||||||
|
am aware, they hold it sufficient that the indictment charge, and
|
||||||
|
consequently that the jury find, simply that the act was done “contrary
|
||||||
|
to the form of the statute in such case made and provided;” in other
|
||||||
|
words, contrary to the orders of the government.
|
||||||
|
|
||||||
|
All these doctrines prevail universally among judges, and are, I think,
|
||||||
|
uniformly practised upon in courts of justice; and they plainly involve
|
||||||
|
the most absolute despotism on the part of the government.
|
||||||
|
|
||||||
|
But there is still another doctrine that extensively, and perhaps most
|
||||||
|
generally, prevails in practice, although judges are not agreed in
|
||||||
|
regard to its soundness. It is this: that it is not even necessary that
|
||||||
|
the jury should see or know, _for themselves_, what the law _is_ that is
|
||||||
|
charged to have been violated; nor to see or know, _for themselves_,
|
||||||
|
that the act charged was in violation of any law whatever;—but that it
|
||||||
|
is sufficient that they be simply _told by the judge_ that any act
|
||||||
|
whatever, charged in an indictment, is in violation of law, and that
|
||||||
|
they are then bound blindly to receive the declaration as true, and
|
||||||
|
convict a man accordingly, if they find that he has done the act
|
||||||
|
charged.
|
||||||
|
|
||||||
|
This doctrine is adopted by many among the most eminent judges, and the
|
||||||
|
reasons for it are thus given by Lord Mansfield:
|
||||||
|
|
||||||
|
> “They (the jury) do not know, and are not presumed to know, the law.
|
||||||
|
> They are not sworn to decide the law;[^105] they are not required to
|
||||||
|
> do it.... The jury ought not to assume the jurisdiction of law. They
|
||||||
|
> do not know, and are not presumed to know, anything of the matter.
|
||||||
|
> They do not understand the language in which it is conceived, or the
|
||||||
|
> meaning of the terms. They have no rule to go by but their passions
|
||||||
|
> and wishes.”—_3 Term Rep._, 428, note.
|
||||||
|
|
||||||
|
What is this but saying that the people, who are supposed to be
|
||||||
|
represented in juries, and who institute and support the government, (of
|
||||||
|
course for the protection of their own rights and liberties, _as they
|
||||||
|
understand them_, for plainly no other motive can be attributed to
|
||||||
|
them,) are really the slaves of a despotic power, whose arbitrary
|
||||||
|
commands even they are not supposed competent to understand, but for the
|
||||||
|
transgression of which they are nevertheless to be punished as
|
||||||
|
criminals?
|
||||||
|
|
||||||
|
This is plainly the sum of the doctrine, because the jury are the peers
|
||||||
|
(equals) of the accused, and are therefore supposed to know the law as
|
||||||
|
well as he does, and as well as it is known by the people at large. If
|
||||||
|
_they_ (the jury) are not presumed to know the law, neither the accused
|
||||||
|
nor the people at large can be presumed to know it. Hence, it follows
|
||||||
|
that one principle of the _true_ trial by jury is, that no accused
|
||||||
|
person shall be held responsible for any other or greater knowledge of
|
||||||
|
the law than is common to his political equals, who will generally be
|
||||||
|
men of nearly similar condition in life. But the doctrine of Mansfield
|
||||||
|
is, that the body of the people, from whom jurors are taken, are
|
||||||
|
responsible to a law, _which it is agreed they cannot understand_. What
|
||||||
|
is this but despotism?—and not merely despotism, but insult and
|
||||||
|
oppression of the intensest kind?
|
||||||
|
|
||||||
|
This doctrine of Mansfield is the doctrine of all who deny the right of
|
||||||
|
juries to judge of the law, although all may not choose to express it in
|
||||||
|
so blunt and unambiguous terms. But the doctrine evidently admits of no
|
||||||
|
other interpretation or defence.
|
||||||
|
|
||||||
These principles would prevail under the true trial by jury, the jury
|
[^105]: This declaration of Mansfield, that juries in England
|
||||||
being the judges of the capacity of every individual whose capacity
|
“are not sworn to decide the law” in criminal cases, is a plain
|
||||||
should be called in question.]
|
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.
|
||||||
[Footnote 104: In contrast to the doctrines of the text, it may be
|
See _juror’s oath_, page 86.
|
||||||
proper to present more distinctly the doctrines that are maintained by
|
|
||||||
judges, and that prevail in courts of justice.
|
|
||||||
|
|
||||||
Of course, no judge, either of the present day, or perhaps within the
|
|
||||||
last five hundred years, has admitted the right of a jury to judge of
|
|
||||||
the _justice_ of a law, or to hold any law invalid for its injustice.
|
|
||||||
Every judge asserts the power of the government to punish for acts that
|
|
||||||
are intrinsically innocent, and which therefore involve or evince no
|
|
||||||
criminal intent. To accommodate the administration of law to this
|
|
||||||
principle, all judges, so far as I am aware, hold it to be unnecessary
|
|
||||||
that an indictment should charge, or that a jury should find, that an
|
|
||||||
act was done with a criminal intent, except in those cases where the act
|
|
||||||
is _malum in se_,—criminal in itself. In all other cases, so far as I
|
|
||||||
am aware, they hold it sufficient that the indictment charge, and
|
|
||||||
consequently that the jury find, simply that the act was done “contrary
|
|
||||||
to the form of the statute in such case made and provided;” in other
|
|
||||||
words, contrary to the orders of the government.
|
|
||||||
|
|
||||||
All these doctrines prevail universally among judges, and are, I think,
|
|
||||||
uniformly practised upon in courts of justice; and they plainly involve
|
|
||||||
the most absolute despotism on the part of the government.
|
|
||||||
|
|
||||||
But there is still another doctrine that extensively, and perhaps most
|
|
||||||
generally, prevails in practice, although judges are not agreed in
|
|
||||||
regard to its soundness. It is this: that it is not even necessary that
|
|
||||||
the jury should see or know, _for themselves_, what the law _is_ that is
|
|
||||||
charged to have been violated; nor to see or know, _for themselves_,
|
|
||||||
that the act charged was in violation of any law whatever;—but that it
|
|
||||||
is sufficient that they be simply _told by the judge_ that any act
|
|
||||||
whatever, charged in an indictment, is in violation of law, and that
|
|
||||||
they are then bound blindly to receive the declaration as true, and
|
|
||||||
convict a man accordingly, if they find that he has done the act
|
|
||||||
charged.
|
|
||||||
|
|
||||||
This doctrine is adopted by many among the most eminent judges, and the
|
|
||||||
reasons for it are thus given by Lord Mansfield:
|
|
||||||
|
|
||||||
> “They (the jury) do not know, and are not presumed to know, the law.
|
|
||||||
> They are not sworn to decide the law;[^105] they are not required to
|
|
||||||
> do it.... The jury ought not to assume the jurisdiction of law. They
|
|
||||||
> do not know, and are not presumed to know, anything of the matter.
|
|
||||||
> They do not understand the language in which it is conceived, or the
|
|
||||||
> meaning of the terms. They have no rule to go by but their passions
|
|
||||||
> and wishes.”—_3 Term Rep._, 428, note.
|
|
||||||
|
|
||||||
What is this but saying that the people, who are supposed to be
|
|
||||||
represented in juries, and who institute and support the government, (of
|
|
||||||
course for the protection of their own rights and liberties, _as they
|
|
||||||
understand them_, for plainly no other motive can be attributed to
|
|
||||||
them,) are really the slaves of a despotic power, whose arbitrary
|
|
||||||
commands even they are not supposed competent to understand, but for the
|
|
||||||
transgression of which they are nevertheless to be punished as
|
|
||||||
criminals?
|
|
||||||
|
|
||||||
This is plainly the sum of the doctrine, because the jury are the peers
|
|
||||||
(equals) of the accused, and are therefore supposed to know the law as
|
|
||||||
well as he does, and as well as it is known by the people at large. If
|
|
||||||
_they_ (the jury) are not presumed to know the law, neither the accused
|
|
||||||
nor the people at large can be presumed to know it. Hence, it follows
|
|
||||||
that one principle of the _true_ trial by jury is, that no accused
|
|
||||||
person shall be held responsible for any other or greater knowledge of
|
|
||||||
the law than is common to his political equals, who will generally be
|
|
||||||
men of nearly similar condition in life. But the doctrine of Mansfield
|
|
||||||
is, that the body of the people, from whom jurors are taken, are
|
|
||||||
responsible to a law, _which it is agreed they cannot understand_. What
|
|
||||||
is this but despotism?—and not merely despotism, but insult and
|
|
||||||
oppression of the intensest kind?
|
|
||||||
|
|
||||||
This doctrine of Mansfield is the doctrine of all who deny the right of
|
|
||||||
juries to judge of the law, although all may not choose to express it in
|
|
||||||
so blunt and unambiguous terms. But the doctrine evidently admits of no
|
|
||||||
other interpretation or defence.]
|
|
||||||
|
|
||||||
[Footnote 105: This declaration of Mansfield, that juries in England
|
|
||||||
“are not sworn to decide the law” in criminal cases, is a plain
|
|
||||||
falsehood. They are sworn to try the whole case at issue between the
|
|
||||||
king and the prisoner, and that includes the law as well as the fact.
|
|
||||||
See _juror’s oath_, page 86.]
|
|
||||||
|
|||||||
@ -469,159 +469,159 @@ 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.
|
||||||
|
|
||||||
|
It was one of Coke’s ridiculous pretences, that laws anciently enacted
|
||||||
|
by the king, at the request, or with the consent, or by the advice, of
|
||||||
|
his parliament, was “an act of parliament,” instead of the act of the
|
||||||
|
king. And in the extracts cited, he carries this idea so far as to
|
||||||
|
pretend that the various confirmations of the Great Charter were “acts
|
||||||
|
of parliament,” instead of the acts of the kings. He might as well have
|
||||||
|
pretended that the original grant of the Charter was an “act of
|
||||||
|
parliament;” because it was not only granted at the request, and with
|
||||||
|
the consent, and by the advice, but on the compulsion even, of those who
|
||||||
|
commonly constituted his parliaments. Yet this did not make the grant of
|
||||||
|
the charter “an act of parliament.” It was simply an act of the king.
|
||||||
|
|
||||||
|
The object of Coke, in this pretence, was to furnish some color for the
|
||||||
|
palpable falsehood that the legislative authority, which parliament was
|
||||||
|
trying to assume in his own day, and which it finally succeeded in
|
||||||
|
obtaining, had a precedent in the ancient constitution of the kingdom.
|
||||||
|
|
||||||
|
There would be as much reason in saying that, because the ancient kings
|
||||||
|
were in the habit of passing laws in special answer to the _petitions_
|
||||||
|
of their subjects, therefore those _petitioners_ were a part of the
|
||||||
|
legislative power of the kingdom.
|
||||||
|
|
||||||
|
One great objection to this argument of Coke, for the legislative
|
||||||
|
authority of the ancient parliaments, is that a very large—probably
|
||||||
|
much the larger—number of legislative acts were done _without_ the
|
||||||
|
advice, consent, request, or even presence, of a parliament. Not only
|
||||||
|
were many formal statutes passed without any mention of the consent or
|
||||||
|
advice of parliament, but a simple order of the king in council, or a
|
||||||
|
simple proclamation, writ, or letter under seal, issued by his command,
|
||||||
|
had the same force as what Coke calls “an act of parliament.” And this
|
||||||
|
practice continued, to a considerable extent at least, down to Coke’s
|
||||||
|
own time.
|
||||||
|
|
||||||
|
The kings were always in the habit of consulting their parliaments, more
|
||||||
|
or less, in regard to matters of legislation,—not because their consent
|
||||||
|
was constitutionally necessary, but in order to make influence in favor
|
||||||
|
of their laws, and thus induce the people to observe them, and the
|
||||||
|
juries to enforce them.
|
||||||
|
|
||||||
|
The general duties of the ancient parliaments were not legislative, but
|
||||||
|
judicial, as will be shown more fully hereafter. The _people_ were not
|
||||||
|
represented in the parliaments at the time of Magna Carta, but only the
|
||||||
|
archbishops, bishops, earls, barons, and knights; so that little or
|
||||||
|
nothing would have been gained for liberty by Coke’s idea that
|
||||||
|
parliament had a legislative power. He would only have substituted an
|
||||||
|
aristocracy for a king. Even after the Commons were represented in
|
||||||
|
parliament, they for some centuries appeared only as _petitioners_,
|
||||||
|
except in the matter of taxation, when their _consent_ was asked. And
|
||||||
|
almost the only source of their influence on legislation was this: that
|
||||||
|
they would sometimes refuse their consent to the taxation, unless the
|
||||||
|
king would pass such laws as they petitioned for; or, as would seem to
|
||||||
|
have been much more frequently the case, unless he would abolish such
|
||||||
|
laws and practices as they remonstrated against.
|
||||||
|
|
||||||
|
The _influence_ or power of parliament, and especially of the Commons,
|
||||||
|
in the general legislation of the country, was a thing of slow growth,
|
||||||
|
having its origin in a device of the king to get money contrary to law,
|
||||||
|
(as will be seen in the next volume,) and not at all a part of the
|
||||||
|
constitution of the kingdom, nor having its foundation in the consent of
|
||||||
|
the people. The power, _as at present exercised_, was not fully
|
||||||
|
established until 1688, (near five hundred years after Magna Carta,)
|
||||||
|
when the House of Commons (falsely so called) had acquired such
|
||||||
|
influence as the representative, _not of the people, but of the wealth,
|
||||||
|
of the nation_, that they compelled the king to discard the oath fixed
|
||||||
|
by the constitution of the kingdom; (which oath has been already given
|
||||||
|
in a former chapter,(page 101) and was, in substance, to preserve and
|
||||||
|
execute the Common Law, the Law of the Land,—or, in the words of the
|
||||||
|
oath, “_the just laws and customs which the common people had chosen_;”)
|
||||||
|
and to swear that he would “govern the people of this kingdom of
|
||||||
|
England, and the dominions thereto belonging, _according to the statutes
|
||||||
|
in parliament agreed on_, and the laws and customs of the same.”[^115]
|
||||||
|
|
||||||
|
The passage and enforcement of this statute, and the assumption of this
|
||||||
|
oath by the king, were plain violations of the English constitution,
|
||||||
|
inasmuch as they abolished, so far as such an oath could abolish, the
|
||||||
|
legislative power of the king, and also “those just laws and customs
|
||||||
|
which the common people (through their juries) had chosen,” and
|
||||||
|
substituted the will of parliament in their stead.
|
||||||
|
|
||||||
|
Coke was a great advocate for the legislative power of parliament, as a
|
||||||
|
means of restraining the power of the king. As he denied all power to
|
||||||
|
_juries_ to decide upon the obligation of laws, and as he held that the
|
||||||
|
legislative power was “_so transcendent and absolute as (that) it cannot
|
||||||
|
be confined, either for causes or persons, within any bounds_,”[^116] he
|
||||||
|
was perhaps honest in holding that it was safer to trust this terrific
|
||||||
|
power in the hands of parliament, than in the hands of the king. His
|
||||||
|
error consisted in holding that either the king or parliament had any
|
||||||
|
such power, or that they had any power at all to pass laws that should
|
||||||
|
be binding upon a jury.
|
||||||
|
|
||||||
|
These declarations of Coke, that the charter was confirmed by thirty-two
|
||||||
|
“acts of parliament,” have a mischievous bearing in another respect.
|
||||||
|
They tend to weaken the authority of the charter, by conveying the
|
||||||
|
impression that the charter itself might be _abolished_ by “act of
|
||||||
|
parliament.” Coke himself admits that it could not be revoked or
|
||||||
|
rescinded by the _king_; for he says, “All pretence of prerogative
|
||||||
|
against Magna Carta is taken away.” (_2 Inst._, 36.)
|
||||||
|
|
||||||
|
He knew perfectly well, and the whole English nation knew, that the
|
||||||
|
_king_ could not lawfully infringe Magna Carta. Magna Carta, therefore,
|
||||||
|
made it impossible that absolute power could ever be practically
|
||||||
|
established in England, _in the hands of the king_. Hence, as Coke was
|
||||||
|
an advocate for absolute power,—that is, for a legislative power “so
|
||||||
|
transcendent and absolute as (that) it cannot be confined, either for
|
||||||
|
causes or persons, within any bounds,”—there was no alternative for him
|
||||||
|
but to vest this absolute power in parliament. Had he not vested it in
|
||||||
|
parliament, he would have been obliged to abjure it altogether, and to
|
||||||
|
confess that the people, _through their juries_, had the right to judge
|
||||||
|
of the obligation of all legislation whatsoever; in other words, that
|
||||||
|
they had the right to confine the government within the limits of “those
|
||||||
|
just laws and customs which the common people (acting as jurors) had
|
||||||
|
chosen.” True to his instincts, as a judge, and as a tyrant, he assumed
|
||||||
|
that this absolute power was vested in the hands of parliament.
|
||||||
|
|
||||||
|
But the truth was that, as by the English constitution parliament had no
|
||||||
|
authority at all for _general_ legislation, it could no more confirm,
|
||||||
|
than it could abolish, Magna Carta.
|
||||||
|
|
||||||
|
These thirty-two confirmations of Magna Carta, which Coke speaks of as
|
||||||
|
“acts of parliament,” were merely acts of the king. The parliaments,
|
||||||
|
indeed, by refusing to grant him money, except on that condition, and
|
||||||
|
otherwise, had contributed to oblige him to make the confirmations; just
|
||||||
|
as they had helped to oblige him by arms to grant the charter in the
|
||||||
|
first place. But the confirmations themselves were nevertheless
|
||||||
|
constitutionally, as well as formally, the acts of the king alone.
|
||||||
|
|
||||||
It was one of Coke’s ridiculous pretences, that laws anciently enacted
|
[^110]: Under the head of “_John._”
|
||||||
by the king, at the request, or with the consent, or by the advice, of
|
|
||||||
his parliament, was “an act of parliament,” instead of the act of the
|
|
||||||
king. And in the extracts cited, he carries this idea so far as to
|
|
||||||
pretend that the various confirmations of the Great Charter were “acts
|
|
||||||
of parliament,” instead of the acts of the kings. He might as well have
|
|
||||||
pretended that the original grant of the Charter was an “act of
|
|
||||||
parliament;” because it was not only granted at the request, and with
|
|
||||||
the consent, and by the advice, but on the compulsion even, of those who
|
|
||||||
commonly constituted his parliaments. Yet this did not make the grant of
|
|
||||||
the charter “an act of parliament.” It was simply an act of the king.
|
|
||||||
|
|
||||||
The object of Coke, in this pretence, was to furnish some color for the
|
[^111]: _4 Blackstone_, 349-50.
|
||||||
palpable falsehood that the legislative authority, which parliament was
|
|
||||||
trying to assume in his own day, and which it finally succeeded in
|
|
||||||
obtaining, had a precedent in the ancient constitution of the kingdom.
|
|
||||||
|
|
||||||
There would be as much reason in saying that, because the ancient kings
|
[^112]: _3 Blackstone_, 379.
|
||||||
were in the habit of passing laws in special answer to the _petitions_
|
|
||||||
of their subjects, therefore those _petitioners_ were a part of the
|
|
||||||
legislative power of the kingdom.
|
|
||||||
|
|
||||||
One great objection to this argument of Coke, for the legislative
|
[^113]: _Hume_, ch. 2.
|
||||||
authority of the ancient parliaments, is that a very large—probably
|
|
||||||
much the larger—number of legislative acts were done _without_ the
|
|
||||||
advice, consent, request, or even presence, of a parliament. Not only
|
|
||||||
were many formal statutes passed without any mention of the consent or
|
|
||||||
advice of parliament, but a simple order of the king in council, or a
|
|
||||||
simple proclamation, writ, or letter under seal, issued by his command,
|
|
||||||
had the same force as what Coke calls “an act of parliament.” And this
|
|
||||||
practice continued, to a considerable extent at least, down to Coke’s
|
|
||||||
own time.
|
|
||||||
|
|
||||||
The kings were always in the habit of consulting their parliaments, more
|
[^114]: Page 203, 5th edition, 1721.
|
||||||
or less, in regard to matters of legislation,—not because their consent
|
|
||||||
was constitutionally necessary, but in order to make influence in favor
|
|
||||||
of their laws, and thus induce the people to observe them, and the
|
|
||||||
juries to enforce them.
|
|
||||||
|
|
||||||
The general duties of the ancient parliaments were not legislative, but
|
[^115]: St. 1 _William and Mary_, ch. 6, (1688.)
|
||||||
judicial, as will be shown more fully hereafter. The _people_ were not
|
|
||||||
represented in the parliaments at the time of Magna Carta, but only the
|
|
||||||
archbishops, bishops, earls, barons, and knights; so that little or
|
|
||||||
nothing would have been gained for liberty by Coke’s idea that
|
|
||||||
parliament had a legislative power. He would only have substituted an
|
|
||||||
aristocracy for a king. Even after the Commons were represented in
|
|
||||||
parliament, they for some centuries appeared only as _petitioners_,
|
|
||||||
except in the matter of taxation, when their _consent_ was asked. And
|
|
||||||
almost the only source of their influence on legislation was this: that
|
|
||||||
they would sometimes refuse their consent to the taxation, unless the
|
|
||||||
king would pass such laws as they petitioned for; or, as would seem to
|
|
||||||
have been much more frequently the case, unless he would abolish such
|
|
||||||
laws and practices as they remonstrated against.
|
|
||||||
|
|
||||||
The _influence_ or power of parliament, and especially of the Commons,
|
[^116]: 4 _Inst._, 36.
|
||||||
in the general legislation of the country, was a thing of slow growth,
|
|
||||||
having its origin in a device of the king to get money contrary to law,
|
|
||||||
(as will be seen in the next volume,) and not at all a part of the
|
|
||||||
constitution of the kingdom, nor having its foundation in the consent of
|
|
||||||
the people. The power, _as at present exercised_, was not fully
|
|
||||||
established until 1688, (near five hundred years after Magna Carta,)
|
|
||||||
when the House of Commons (falsely so called) had acquired such
|
|
||||||
influence as the representative, _not of the people, but of the wealth,
|
|
||||||
of the nation_, that they compelled the king to discard the oath fixed
|
|
||||||
by the constitution of the kingdom; (which oath has been already given
|
|
||||||
in a former chapter,(page 101) and was, in substance, to preserve and
|
|
||||||
execute the Common Law, the Law of the Land,—or, in the words of the
|
|
||||||
oath, “_the just laws and customs which the common people had chosen_;”)
|
|
||||||
and to swear that he would “govern the people of this kingdom of
|
|
||||||
England, and the dominions thereto belonging, _according to the statutes
|
|
||||||
in parliament agreed on_, and the laws and customs of the same.”[^115]
|
|
||||||
|
|
||||||
The passage and enforcement of this statute, and the assumption of this
|
|
||||||
oath by the king, were plain violations of the English constitution,
|
|
||||||
inasmuch as they abolished, so far as such an oath could abolish, the
|
|
||||||
legislative power of the king, and also “those just laws and customs
|
|
||||||
which the common people (through their juries) had chosen,” and
|
|
||||||
substituted the will of parliament in their stead.
|
|
||||||
|
|
||||||
Coke was a great advocate for the legislative power of parliament, as a
|
|
||||||
means of restraining the power of the king. As he denied all power to
|
|
||||||
_juries_ to decide upon the obligation of laws, and as he held that the
|
|
||||||
legislative power was “_so transcendent and absolute as (that) it cannot
|
|
||||||
be confined, either for causes or persons, within any bounds_,”[^116] he
|
|
||||||
was perhaps honest in holding that it was safer to trust this terrific
|
|
||||||
power in the hands of parliament, than in the hands of the king. His
|
|
||||||
error consisted in holding that either the king or parliament had any
|
|
||||||
such power, or that they had any power at all to pass laws that should
|
|
||||||
be binding upon a jury.
|
|
||||||
|
|
||||||
These declarations of Coke, that the charter was confirmed by thirty-two
|
|
||||||
“acts of parliament,” have a mischievous bearing in another respect.
|
|
||||||
They tend to weaken the authority of the charter, by conveying the
|
|
||||||
impression that the charter itself might be _abolished_ by “act of
|
|
||||||
parliament.” Coke himself admits that it could not be revoked or
|
|
||||||
rescinded by the _king_; for he says, “All pretence of prerogative
|
|
||||||
against Magna Carta is taken away.” (_2 Inst._, 36.)
|
|
||||||
|
|
||||||
He knew perfectly well, and the whole English nation knew, that the
|
|
||||||
_king_ could not lawfully infringe Magna Carta. Magna Carta, therefore,
|
|
||||||
made it impossible that absolute power could ever be practically
|
|
||||||
established in England, _in the hands of the king_. Hence, as Coke was
|
|
||||||
an advocate for absolute power,—that is, for a legislative power “so
|
|
||||||
transcendent and absolute as (that) it cannot be confined, either for
|
|
||||||
causes or persons, within any bounds,”—there was no alternative for him
|
|
||||||
but to vest this absolute power in parliament. Had he not vested it in
|
|
||||||
parliament, he would have been obliged to abjure it altogether, and to
|
|
||||||
confess that the people, _through their juries_, had the right to judge
|
|
||||||
of the obligation of all legislation whatsoever; in other words, that
|
|
||||||
they had the right to confine the government within the limits of “those
|
|
||||||
just laws and customs which the common people (acting as jurors) had
|
|
||||||
chosen.” True to his instincts, as a judge, and as a tyrant, he assumed
|
|
||||||
that this absolute power was vested in the hands of parliament.
|
|
||||||
|
|
||||||
But the truth was that, as by the English constitution parliament had no
|
|
||||||
authority at all for _general_ legislation, it could no more confirm,
|
|
||||||
than it could abolish, Magna Carta.
|
|
||||||
|
|
||||||
These thirty-two confirmations of Magna Carta, which Coke speaks of as
|
|
||||||
“acts of parliament,” were merely acts of the king. The parliaments,
|
|
||||||
indeed, by refusing to grant him money, except on that condition, and
|
|
||||||
otherwise, had contributed to oblige him to make the confirmations; just
|
|
||||||
as they had helped to oblige him by arms to grant the charter in the
|
|
||||||
first place. But the confirmations themselves were nevertheless
|
|
||||||
constitutionally, as well as formally, the acts of the king alone.]
|
|
||||||
|
|
||||||
[Footnote 110: Under the head of “_John._”]
|
|
||||||
|
|
||||||
[Footnote 111: _4 Blackstone_, 349-50.]
|
|
||||||
|
|
||||||
[Footnote 112: _3 Blackstone_, 379.]
|
|
||||||
|
|
||||||
[Footnote 113: _Hume_, ch. 2.]
|
|
||||||
|
|
||||||
[Footnote 114: Page 203, 5th edition, 1721.]
|
|
||||||
|
|
||||||
[Footnote 115: St. 1 _William and Mary_, ch. 6, (1688.)]
|
|
||||||
|
|
||||||
[Footnote 116: 4 _Inst._, 36.]
|
|
||||||
|
|||||||
@ -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.
|
||||||
|
|||||||
@ -96,30 +96,30 @@ By what force, fraud, and conspiracy, on the part of kings, nobles, and
|
|||||||
England, it is designed to show more fully in the next volume, if it
|
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
|
||||||
resisting the collection of taxes to which they had never consented.
|
resisting the collection of taxes to which they had never consented.
|
||||||
Otherwise the jurors would authorize the government to tax themselves
|
Otherwise the jurors would authorize the government to tax themselves
|
||||||
without their consent,—a thing which no jury would be likely to do. In
|
without their consent,—a thing which no jury would be likely to do. In
|
||||||
these two ways, then, trial by the country would sustain the principle
|
these two ways, then, trial by the country would sustain the principle
|
||||||
of no taxation without consent. 2. On the other hand, the principle of
|
of no taxation without consent. 2. On the other hand, the principle of
|
||||||
no taxation without consent would sustain the trial by the country,
|
no taxation without consent would sustain the trial by the country,
|
||||||
because men in general would not consent to be taxed for the support of
|
because men in general would not consent to be taxed for the support of
|
||||||
a government under which trial by the country was not secured. Thus
|
a government under which trial by the country was not secured. Thus
|
||||||
these two principles mutually sustain each other.
|
these two principles mutually sustain each other.
|
||||||
|
|
||||||
But, if either of these principles were broken down, the other would
|
But, if either of these principles were broken down, the other would
|
||||||
fall with it, and for these reasons: 1. If trial by the country were
|
fall with it, and for these reasons: 1. If trial by the country were
|
||||||
broken down, the principle of no taxation without consent would fall
|
broken down, the principle of no taxation without consent would fall
|
||||||
with it, because the government would then be _able_ to tax the people
|
with it, because the government would then be _able_ to tax the people
|
||||||
without their consent, inasmuch as the legal tribunals would be mere
|
without their consent, inasmuch as the legal tribunals would be mere
|
||||||
tools of the government, and would enforce such taxation, and punish men
|
tools of the government, and would enforce such taxation, and punish men
|
||||||
for resisting such taxation, as the government ordered. 2. On the other
|
for resisting such taxation, as the government ordered. 2. On the other
|
||||||
hand, if the principle of no taxation without consent were broken down,
|
hand, if the principle of no taxation without consent were broken down,
|
||||||
trial by the country would fall with it, because the government, if it
|
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.
|
||||||
|
|||||||
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Reference in New Issue
Block a user