Fix footnote bodies
This commit is contained in:
parent
ca9ce5723e
commit
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@ -3,6 +3,7 @@
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package main
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import (
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"bytes"
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"log"
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"os"
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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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{`"(\w|_\w)`, `“$1`},
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// Right double typographical quote
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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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{`([^\pL])'(\pL|_)`, `$1‘$2`},
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{`(?m)^'`, `‘`},
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// Right single typographical quote
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{`'`, `’`},
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// Block quotes
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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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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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paths, err := filepath.Glob("original/*.markdown")
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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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return err
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}
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var edited = b
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for _, r := range replacers {
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edited = r.re.ReplaceAll(edited, []byte(r.replacement))
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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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err = os.WriteFile(outpath, edited, 0666)
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if err != nil {
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@ -506,7 +506,7 @@ 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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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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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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@ -567,21 +567,21 @@ 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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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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[^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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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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[^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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to enforce them.
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[Footnote 4: _Hallam_ says, “The relation established between a lord and
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[^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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@ -602,4 +602,4 @@ 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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240-2.
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@ -893,11 +893,11 @@ 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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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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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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@ -909,22 +909,22 @@ 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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* * 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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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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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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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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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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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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@ -935,13 +935,13 @@ 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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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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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
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[^13]: It is plain that the king and all his partisans looked
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upon the charter as utterly prostrating the king’s legislative supremacy
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before the discretion of juries. When the schedule of liberties demanded
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by the barons was shown to him, (of which the trial by jury was the most
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@ -975,19 +975,19 @@ These things show that the nature and effect of the charter were well
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understood by the king and his friends; that they all agreed that he was
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effectually stripped of power. _Yet the legislative power had not been
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taken from him; but only the power to enforce his laws, unless juries
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should freely consent to their enforcement._]
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should freely consent to their enforcement._
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[Footnote 14: The laws were, at that time, all written in Latin.]
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[^14]: The laws were, at that time, all written in Latin.
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[Footnote 15: “No man shall be condemned at the king’s suit, either
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[^15]: “No man shall be condemned at the king’s suit, either
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before the king in his bench, where pleas are _coram rege_, (before the
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king,) (and so are the words _nec super eum ibimus_, to be understood,)
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nor before any other commissioner or judge whatsoever, and so are the
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words _nec super eum mittemus_, to be understood, but by the judgment of
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his peers, that is, equals, or according to the law of the land.”—_2
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Coke’s Inst._, 46.]
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Coke’s Inst._, 46.
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[Footnote 16: Perhaps the assertion in the text should be made with this
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[^16]: Perhaps the assertion in the text should be made with this
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qualification—that the words “_per legem terræ_,” (according to the law
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of the land,) and the words “_per legale judicium parium suorum_,”
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(according to the _legal_ judgment of his peers,) imply that the king,
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@ -998,15 +998,15 @@ land authorizes, and no judgments of the peers, except _legal_ ones.
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With this qualification, the assertion in the text is strictly
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correct—that there is nothing in the whole chapter that grants to the
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king, or his judges, any _judicial_ power at all. The chapter only
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describes and _limits_ his _executive_ power.]
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describes and _limits_ his _executive_ power.
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[Footnote 17: See Blackstone’s Law Tracts, page 294, Oxford Edition.]
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[^17]: See Blackstone’s Law Tracts, page 294, Oxford Edition.
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[Footnote 18: These Articles of the Charter are given in Blackstone’s
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[^18]: These Articles of the Charter are given in Blackstone’s
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collection of Charters, and are also printed with the _Statutes of the
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Realm_. Also in Wilkins’ Laws of the Anglo-Saxons, p. 356.]
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Realm_. Also in Wilkins’ Laws of the Anglo-Saxons, p. 356.
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[Footnote 19: Lingard says, “The words, ‘_We will not destroy him, nor
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[^19]: Lingard says, “The words, ‘_We will not destroy him, nor
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will we go upon him, nor will we send upon him_,’ have been very
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differently expounded by different legal authorities. Their real meaning
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may be learned from John himself, who the next year promised by his
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@ -1018,9 +1018,9 @@ apud Drad. 11, app. no. 124. He had hitherto been in the habit of
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_going_ with an armed force, or _sending_ an armed force on the lands,
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and against the castles, of all whom he knew or suspected to be his
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secret enemies, without observing any form of law.”—3 Lingard, 47
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note.]
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note.
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[Footnote 20: “_Judgment, judicium._ * * The sentence of the law,
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[^20]: “_Judgment, judicium._ * * The sentence of the law,
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pronounced by the court, upon the matter contained in the record.”—3
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_Blackstone_, 395. _Jacob’s Law Dictionary. Tomlin’s do._
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@ -1064,23 +1064,23 @@ expressly ordained by law.”—_Blackstone’s Analysis of the Laws of
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England, Book 4, Ch. 29, Sec. 1. Blackstone’s Law Tracts_, 126.
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Coke says, “_Judicium_ ... the judgment is the guide and direction of
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the execution.” 3 _Inst._ 210.]
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the execution.” 3 _Inst._ 210.
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[Footnote 21: This precedent from Germany is good authority, because the
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[^21]: This precedent from Germany is good authority, because the
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trial by jury was in use, in the northern nations of Europe generally,
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long before Magna Carta, and probably from time immemorial; and the
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Saxons and Normans were familiar with it before they settled in
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England.]
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England.
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[Footnote 22: _Beneficium_ was the legal name of an estate held by a
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feudal tenure. See Spelman’s Glossary.]
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[^22]: _Beneficium_ was the legal name of an estate held by a
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feudal tenure. See Spelman’s Glossary.
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[Footnote 23: _Contenement_ of a freeman was the means of living in the
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condition of a freeman.]
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[^23]: _Contenement_ of a freeman was the means of living in the
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condition of a freeman.
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[Footnote 24: _Waynage_ was a villein’s plough-tackle and carts.]
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[^24]: _Waynage_ was a villein’s plough-tackle and carts.
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[Footnote 25: Tomlin says, “The ancient practice was, when any such fine
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[^25]: Tomlin says, “The ancient practice was, when any such fine
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was imposed, to inquire by a jury _quantum inde regi dare valeat per
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annum, salva sustentatione sua et uxoris et liberorum suorum_, (how much
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is he able to give to the king per annum, saving his own maintenance,
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@ -1092,9 +1092,9 @@ as might amount to imprisonment for life. And this is the reason why
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fines in the king’s courts are frequently denominated ransoms, because
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the penalty must otherwise fall upon a man’s person, unless it be
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redeemed or ransomed by a pecuniary fine.”—_Tomlin’s Law Dict., word
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Fine._]
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Fine._
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[Footnote 26: Because juries were to fix the sentence, it must not be
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[^26]: Because juries were to fix the sentence, it must not be
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supposed that the king was _obliged_ to carry the sentence into
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execution; _but only that he could not go beyond the sentence_. He might
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pardon, or he might acquit on grounds of law, notwithstanding the
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@ -1103,9 +1103,9 @@ Magna Carta does not prescribe that the king _shall punish_ according to
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the sentence of the peers; but only that he shall not punish _“unless
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according to” that sentence_. He may acquit or pardon, notwithstanding
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their sentence or judgment; but he cannot punish, except according to
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their judgment.]
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their judgment.
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[Footnote 27: _The trial by battle_ was one in which the accused
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[^27]: _The trial by battle_ was one in which the accused
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challenged his accuser to single combat, and staked the question of his
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guilt or innocence on the result of the duel. This trial was introduced
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into England by the Normans, within one hundred and fifty years before
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@ -1151,9 +1151,9 @@ at the same time, and among a rude people, whose judicial proceedings
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would naturally be of the simplest kind. But if this trial really were
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any other than the trial by jury, it must have been nearly or quite
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extinct at the time of Magna Carta; and there is no probability that it
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was included in “_legem terræ_.”]
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was included in “_legem terræ_.”
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[Footnote 28: Coke attempts to show that there is a distinction between
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[^28]: Coke attempts to show that there is a distinction between
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amercements and fines—admitting that amercements must be fixed by one’s
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peers, but claiming that fines may be fixed by the government. (_2
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Inst._ 27, _8 Coke’s Reports_ 38.) But there seems to have been no
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@ -1227,11 +1227,11 @@ pillory; at the third time he shall be imprisoned and make _fine_; the
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fourth time he shall abjure the town. And this _judgment_ shall be given
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upon all manner of forestallers, and likewise upon them that have given
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them counsel, help, or favor.”—_1 Ruffhead’s Statutes_, 187, 188. _1
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Statutes of the Realm_, 203.]
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Statutes of the Realm_, 203.
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[Footnote 29: 1 Hume, Appendix, 1.]
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[^29]: 1 Hume, Appendix, 1.
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[Footnote 30: Blackstone says, “Our ancient Saxon laws nominally
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[^30]: Blackstone says, “Our ancient Saxon laws nominally
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punished theft with death, if above the value of twelve pence; but the
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criminal was permitted to redeem his life by a pecuniary ransom, as
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among their ancestors, the Germans, by a stated number of cattle. But in
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@ -1259,15 +1259,15 @@ by reason of murders and manslaughters, for misdemeanors, for
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disseisins, for recreancy, for breach of assize, for defaults, for
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non-appearance, for false judgment, and for not making suit, or hue and
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cry. To them may be added miscellaneous amercements, for trespasses of
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divers kinds.”—_1 Maddox’ History of the Exchequer_, 542.]
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divers kinds.”—_1 Maddox’ History of the Exchequer_, 542.
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[Footnote 31: Coke, in his exposition of the words _legem terræ_, gives
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[^31]: Coke, in his exposition of the words _legem terræ_, gives
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quite in detail the principles of the common law governing _arrests_;
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and takes it for granted that the words “_nisi per legem terræ_” are
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applicable to arrests, as well as to the indictment, &c.—2 _Inst._,
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51,52.]
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51,52.
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[Footnote 32: I cite the above extract from Mr. Hallam solely for the
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[^32]: I cite the above extract from Mr. Hallam solely for the
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sake of his authority for rendering the word _vel_ by _and_; and not by
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any means for the purpose of indorsing the opinion he suggests, that
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_legem terræ_ authorized “judgments by default or demurrer,” _without
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@ -1381,8 +1381,8 @@ lawful cause of action_.” This is true; but it does not follow that any
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cause of action, founded on _statute only_, is therefore a “_lawful_
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cause of action,” within the meaning of _legem terræ_, or the _Common
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Law_. Within the meaning of the _legem terræ_ of Magna Carta, nothing
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but a _common law_ cause of action is a “_lawful_” one.]
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but a _common law_ cause of action is a “_lawful_” one.
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[Footnote 33: Hallam says, “It appears as if the ordeal were permitted
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[^33]: Hallam says, “It appears as if the ordeal were permitted
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to persons already convicted by this verdict of a jury.”—_2 Middle
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Ages_, 446, _note_.]
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Ages_, 446, _note_.
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@ -1989,7 +1989,7 @@ ideas of right; because it was one part of the common law that juries
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should try all causes according to their own consciences, any
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legislation of the king to the contrary notwithstanding.[^64]
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[Footnote 34: Hale says:
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[^34]: Hale says:
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> “The trial by jury of twelve men was the usual trial among the
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> Normans, in most suits; especially in assizes, et juris utrum.”—_1
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@ -2003,19 +2003,19 @@ Crabbe says:
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> “It cannot be denied that the practice of submitting causes to the
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> decision of twelve men was universal among all the northern tribes
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> (of Europe) from the very remotest antiquity.”—_Crabbe’s History of
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> the English Law_, p. 32.]
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> the English Law_, p. 32.
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[Footnote 35: “The people, who in every general council or assembly
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[^35]: “The people, who in every general council or assembly
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could oppose and dethrone their sovereigns, were in little dread of
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their encroachments on their liberties; and kings, who found sufficient
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employment in keeping possession of their crowns, would not likely
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attack the more important privileges of their subjects.”]
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attack the more important privileges of their subjects.”
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[Footnote 36: This office was afterwards committed to sheriffs. But even
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[^36]: This office was afterwards committed to sheriffs. But even
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while the court was held by the lord, “_the Lord was not judge, but the
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Pares (peers) only_.”—_Gilbert on the Court of Exchequer_, 61-2.]
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Pares (peers) only_.”—_Gilbert on the Court of Exchequer_, 61-2.
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[Footnote 37: The opinion expressed in the text, that the Witan had no
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[^37]: The opinion expressed in the text, that the Witan had no
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legislative authority, is corroborated by the following authorities:
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“From the fact that the new laws passed by the king and the Witan were
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@ -2046,11 +2046,11 @@ county meetings, where they proclaimed the laws made by the king and his
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counsellors, which, being acknowledged and sworn to at these
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_folk-motes_ (meetings of the people) became, by their assent,
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completely binding on the whole nation.”—_Mackintosh’s Hist. of
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England_, _Ch._ 2. _45 Lardner’s Cab. Cyc._, 75.]
|
||||
England_, _Ch._ 2. _45 Lardner’s Cab. Cyc._, 75.
|
||||
|
||||
[Footnote 38: Page 31.]
|
||||
[^38]: Page 31.
|
||||
|
||||
[Footnote 39: Hallam says, “It was, however, to the county court that an
|
||||
[^39]: Hallam says, “It was, however, to the county court that an
|
||||
English freeman chiefly looked for the maintenance of his civil
|
||||
rights.”—_2 Middle Ages_, 392.
|
||||
|
||||
@ -2060,9 +2060,9 @@ in all questions of civil right.”—_Ditto_, 395.
|
||||
Also, “The liberties of these Anglo-Saxon thanes were chiefly secured,
|
||||
next to their swords and their free spirits, by the inestimable right of
|
||||
deciding civil and criminal suits in their own county courts.”—_Ditto_,
|
||||
399.]
|
||||
399.
|
||||
|
||||
[Footnote 40: “Alfred may, in one sense, be called the founder of these
|
||||
[^40]: “Alfred may, in one sense, be called the founder of these
|
||||
laws, (the Saxon,) for until his time they were an unwritten code, but
|
||||
he expressly says, ‘_that I, Alfred, collected the good laws of our
|
||||
forefathers into one code, and also I wrote them down_’—which is a
|
||||
@ -2117,13 +2117,13 @@ Blackstone_, 412.
|
||||
Confessor, confirmed and enlarged as they were by William the Conqueror;
|
||||
and this Constitution or Code of Laws is what even to this day are
|
||||
called ‘_The Common Law of the Land_.’”—_Introduction to Gilbert’s
|
||||
History of the Common Pleas_, p. 22, _note_.]
|
||||
History of the Common Pleas_, p. 22, _note_.
|
||||
|
||||
[Footnote 41: Not the conqueror of the English people, (as the friends
|
||||
[^41]: Not the conqueror of the English people, (as the friends
|
||||
of liberty maintain,) but only of Harold the usurper.—See _Hale’s
|
||||
History of the Common Law_, ch. 5.]
|
||||
History of the Common Law_, ch. 5.
|
||||
|
||||
[Footnote 42: For all these codes see Wilkins’ Laws of the Anglo-Saxons.
|
||||
[^42]: For all these codes see Wilkins’ Laws of the Anglo-Saxons.
|
||||
|
||||
“Being regulations adapted to existing institutions, the Anglo-Saxon
|
||||
statutes are concise and technical, alluding to the law which was then
|
||||
@ -2148,23 +2148,23 @@ inferred from the absence of direct evidence. Written laws were modified
|
||||
and controlled by customs of which no trace can be discovered, until
|
||||
after the lapse of centuries, although those usages must have been in
|
||||
constant vigor during the long interval of silence.”—_1 Palgrave’s Rise
|
||||
and Progress of the English Commonwealth_, 58-9.]
|
||||
and Progress of the English Commonwealth_, 58-9.
|
||||
|
||||
[Footnote 43: Rapin says, “The customs now practised in England are, for
|
||||
[^43]: Rapin says, “The customs now practised in England are, for
|
||||
the most part, the same as the Anglo-Saxons brought with them from
|
||||
Germany.”—_Rapin’s Dissertation on the Government of the Anglo-Saxons_,
|
||||
vol. 2, Oct. Ed., p. 198. See _Kelham’s Discourse before named_.]
|
||||
vol. 2, Oct. Ed., p. 198. See _Kelham’s Discourse before named_.
|
||||
|
||||
[Footnote 44: Hallam says, “The county of Sussex contains sixty-five
|
||||
[^44]: Hallam says, “The county of Sussex contains sixty-five
|
||||
(‘hundreds’); that of Dorset forty-three; while Yorkshire has only
|
||||
twenty-six; and Lancashire but six.”—_2 Middle Ages_, 391.]
|
||||
twenty-six; and Lancashire but six.”—_2 Middle Ages_, 391.
|
||||
|
||||
[Footnote 45: Excepting also matters pertaining to the collection of the
|
||||
[^45]: Excepting also matters pertaining to the collection of the
|
||||
revenue, which were determined in the king’s court of exchequer. But
|
||||
even in this court it was the law “_that none be amerced but by his
|
||||
peers_.”—_Mirror of Justices_, 49.]
|
||||
peers_.”—_Mirror of Justices_, 49.
|
||||
|
||||
[Footnote 46: “For the English laws, _although not written_, may, as it
|
||||
[^46]: “For the English laws, _although not written_, may, as it
|
||||
should seem, and that without any absurdity, be termed laws, (since this
|
||||
itself is law—that which pleases the prince has the force of law,) I
|
||||
mean those laws which it is evident were promulgated by the advice of
|
||||
@ -2174,12 +2174,12 @@ they should not be considered laws, then, unquestionably, writing would
|
||||
seem to confer more authority upon laws themselves, than either the
|
||||
equity of the persons constituting, or the reason of those framing
|
||||
them.”—_Glanville’s Preface_, p. 38. (Glanville was chief justice of
|
||||
Henry II., 1180.) _2 Turner’s History of the Anglo-Saxons_, 280.]
|
||||
Henry II., 1180.) _2 Turner’s History of the Anglo-Saxons_, 280.
|
||||
|
||||
[Footnote 47: Mackintosh’s History of England, ch. 3. Lardner’s Cabinet
|
||||
Cyclopædia, 266.]
|
||||
[^47]: Mackintosh’s History of England, ch. 3. Lardner’s Cabinet
|
||||
Cyclopædia, 266.
|
||||
|
||||
[Footnote 48: If the laws of the king were received as authoritative by
|
||||
[^48]: If the laws of the king were received as authoritative by
|
||||
the juries, what occasion was there for his appointing special
|
||||
commissioners for the trial of offences, without the intervention of a
|
||||
jury, as he frequently did, in manifest and acknowledged violation of
|
||||
@ -2187,18 +2187,18 @@ Magna Carta, and “the law of the land?” These appointments were
|
||||
undoubtedly made for no other reason than that the juries were not
|
||||
sufficiently subservient, but judged according to their own notions of
|
||||
right, instead of the will of the king—whether the latter were
|
||||
expressed in his statutes, or by his judges.]
|
||||
expressed in his statutes, or by his judges.
|
||||
|
||||
[Footnote 49: Of course, Mr. Reeve means to be understood that, in the
|
||||
[^49]: Of course, Mr. Reeve means to be understood that, in the
|
||||
hundred court, and court-leet, _the jurors were the judges_, as he
|
||||
declares them to have been in the county court; otherwise the “bailiff”
|
||||
or “steward” must have been judge.]
|
||||
or “steward” must have been judge.
|
||||
|
||||
[Footnote 50: The jurors were sometimes called “assessors,” because they
|
||||
[^50]: The jurors were sometimes called “assessors,” because they
|
||||
assessed, or determined the amount of fines and amercements to be
|
||||
imposed.]
|
||||
imposed.
|
||||
|
||||
[Footnote 51: “The barons of the Hundred” were the freeholders. Hallam
|
||||
[^51]: “The barons of the Hundred” were the freeholders. Hallam
|
||||
says: “The word _baro_, originally meaning only a man, was of very large
|
||||
significance, and is not unfrequently applied to common freeholders, as
|
||||
in the phrase _court-baron_.”—_3 Middle Ages_, 14-15.
|
||||
@ -2206,13 +2206,13 @@ in the phrase _court-baron_.”—_3 Middle Ages_, 14-15.
|
||||
_Blackstone_ says: “The _court-baron_ * * is a court of common law, and
|
||||
it is the court of the barons, by which name the freeholders were
|
||||
sometimes anciently called; for that it is held before the freeholders
|
||||
who owe suit and service to the manor.”—_3 Blackstone_, 33.]
|
||||
who owe suit and service to the manor.”—_3 Blackstone_, 33.
|
||||
|
||||
[Footnote 52: The ancient jury courts kept no records, because those who
|
||||
[^52]: The ancient jury courts kept no records, because those who
|
||||
composed the courts could neither make nor read records. Their decisions
|
||||
were preserved by the memories of the jurors and other persons present.]
|
||||
were preserved by the memories of the jurors and other persons present.
|
||||
|
||||
[Footnote 53: Stuart says:
|
||||
[^53]: Stuart says:
|
||||
|
||||
“The courts, or civil arrangements, which were modelled in Germany,
|
||||
preserved the independence of the people; and having followed the Saxons
|
||||
@ -2489,11 +2489,11 @@ provision of our ancestors in settling the distribution of justice in a
|
||||
method so well calculated for cheapness, expedition, and ease. By the
|
||||
constitution which they established, all trivial debts, and injuries of
|
||||
small consequence, were to be recovered or redressed in every man’s own
|
||||
county, hundred, or perhaps parish.”—_3 Blackstone_, 59.]
|
||||
county, hundred, or perhaps parish.”—_3 Blackstone_, 59.
|
||||
|
||||
[Footnote 54: 1 Blackstone, 63-67.]
|
||||
[^54]: 1 Blackstone, 63-67.
|
||||
|
||||
[Footnote 55: This quaint and curious book (Smith’s Commonwealth of
|
||||
[^55]: This quaint and curious book (Smith’s Commonwealth of
|
||||
England) describes the _minutiæ_ of trials, giving in detail the mode of
|
||||
impanelling the jury, and then the conduct of the lawyers, witnesses,
|
||||
and court. I give the following extracts, _tending to show that the
|
||||
@ -2560,9 +2560,9 @@ same point:
|
||||
> lord. And for judge one lord sitteth, who is constable of England for
|
||||
> that day. The judgment once given, he breaketh his staff, and
|
||||
> abdicateth his office. In the rest there is no difference from that
|
||||
> above written,” (that is, in the case of a freeman.)—p. 98.]
|
||||
> above written,” (that is, in the case of a freeman.)—p. 98.
|
||||
|
||||
[Footnote 56: “The present form of the jurors’ oath is that they shall
|
||||
[^56]: “The present form of the jurors’ oath is that they shall
|
||||
‘give a true verdict _according to the evidence_.’ At what time this
|
||||
form was introduced is uncertain; but for several centuries after the
|
||||
Conquest, the jurors, _both in civil and criminal cases_, were sworn
|
||||
@ -2570,13 +2570,13 @@ merely to _speak the truth_. (Glanville, lib. 2, cap. 17; Bracton, lib.
|
||||
3, cap. 22; lib. 4, p. 287, 291; Britton, p. 135.) Hence their decision
|
||||
was accurately termed _veredictum_, or verdict, that is, ‘a thing truly
|
||||
said’; whereas the phrase ‘true verdict’ in the modern oath is not an
|
||||
accurate expression.”—_Political Dictionary_, word _Jury_.]
|
||||
accurate expression.”—_Political Dictionary_, word _Jury_.
|
||||
|
||||
[Footnote 57: Of course, there can be no legal trial by jury, in either
|
||||
[^57]: Of course, there can be no legal trial by jury, in either
|
||||
civil or criminal cases, where the jury are sworn to try the cases
|
||||
“_according to law_.”]
|
||||
“_according to law_.”
|
||||
|
||||
[Footnote 58: _Coke_, as late as 1588, admits that amercements must be
|
||||
[^58]: _Coke_, as late as 1588, admits that amercements must be
|
||||
fixed by the peers (8 Coke’s Rep. 38, 2 Inst. 27); but he attempts,
|
||||
wholly without success, as it seems to me, to show a difference between
|
||||
fines and amercements. The statutes are very numerous, running through
|
||||
@ -2585,12 +2585,12 @@ which fines, ransoms, and amercements are spoken of as if they were the
|
||||
common punishments of offences, and as if they all meant the same thing.
|
||||
If, however, any technical difference could be made out between them,
|
||||
there is clearly none in principle; and the word amercement, as used in
|
||||
Magna Carta, must be taken in its most comprehensive sense.]
|
||||
Magna Carta, must be taken in its most comprehensive sense.
|
||||
|
||||
[Footnote 59: “_Common right_” was the common law. _1 Coke’s Inst._ 142
|
||||
a. 2 _do._ 55, 6.]
|
||||
[^59]: “_Common right_” was the common law. _1 Coke’s Inst._ 142
|
||||
a. 2 _do._ 55, 6.
|
||||
|
||||
[Footnote 60: The oath of the justices is in these words:
|
||||
[^60]: The oath of the justices is in these words:
|
||||
|
||||
“Ye shall swear, that well and lawfully ye shall serve our lord the king
|
||||
_and his people_, in the office of justice, and that lawfully ye shall
|
||||
@ -2629,15 +2629,15 @@ his crown, with all things where ye may reasonably do the same. And in
|
||||
case ye be from henceforth found in default in any of the points
|
||||
aforesaid, ye shall be at the king’s will of body, lands, and goods,
|
||||
thereof to be done as shall please him, as God you help and all
|
||||
saints.”—_18 Edward III._, st. 4. (1344.)]
|
||||
saints.”—_18 Edward III._, st. 4. (1344.)
|
||||
|
||||
[Footnote 61: That the terms “_Law_” and “_Right_,” as used in this
|
||||
[^61]: That the terms “_Law_” and “_Right_,” as used in this
|
||||
statute, mean the _common law_, is shown by the preamble, which declares
|
||||
the motive of the statute to be that “_the Law of the Land, (the common
|
||||
law,) which we (the king) by our oath are bound to maintain_,” may be
|
||||
the better kept, &c.]
|
||||
the better kept, &c.
|
||||
|
||||
[Footnote 62: The following is a copy of the original:
|
||||
[^62]: The following is a copy of the original:
|
||||
|
||||
> “_Forma Juramenti Regis Angliæ in Coronacione sua_:
|
||||
|
||||
@ -2668,13 +2668,13 @@ the better kept, &c.]
|
||||
> per te eas esse protegendas, et ad honorem Dei corroborandas, quas
|
||||
> vulgus elegit, secundum vires tuas?
|
||||
|
||||
> (Et respondeat Rex,) Concedo et promitto.”]
|
||||
> (Et respondeat Rex,) Concedo et promitto.”
|
||||
|
||||
[Footnote 63: It would appear, from the text, that the Charter of
|
||||
[^63]: It would appear, from the text, that the Charter of
|
||||
Liberties and the Charter of the Forest were sometimes called “_laws of
|
||||
the land_.”]
|
||||
the land_.”
|
||||
|
||||
[Footnote 64: As the ancient coronation oath, given in the text, has
|
||||
[^64]: As the ancient coronation oath, given in the text, has
|
||||
come down from the Saxon times, the following remarks of Palgrave will
|
||||
be pertinent, in connection with the oath, as illustrating the fact
|
||||
that, in those times, no special authority attached to the laws of the
|
||||
@ -2756,15 +2756,15 @@ vassal denying his assent to the grant, might assert that the engagement
|
||||
which he had contracted with his superior did not involve any pecuniary
|
||||
subsidy, but only rendered him liable to perform service in the
|
||||
field.”—_1 Palgrave’s Rise and Progress of the English Commonwealth_,
|
||||
637 to 642.]
|
||||
637 to 642.
|
||||
|
||||
[Footnote 65: “It was the freemen in Germany, and the possessors of land
|
||||
[^65]: “It was the freemen in Germany, and the possessors of land
|
||||
in England, who were _suitors_ (jurors) in the hundred court. These
|
||||
ranks of men were the same. The alteration which had happened in
|
||||
relation to property had invested the German freemen with land or
|
||||
territory.”]
|
||||
territory.”
|
||||
|
||||
[Footnote 66: It would be wholly erroneous, I think, to infer from this
|
||||
[^66]: It would be wholly erroneous, I think, to infer from this
|
||||
statement of Stuart, that either the “priests, princes, earls, or
|
||||
_eorldormen_” exercised any authority over the jury in the trial of
|
||||
causes, in the way of dictating the law to them. Henry’s account of this
|
||||
@ -2787,7 +2787,7 @@ Institutions of Modern Europe_, p. 447, and the note on the same page.
|
||||
Also by a law of Canute to this effect, _In every county let there be
|
||||
twice a year an assembly, whereat the bishop and the earl shall be
|
||||
present, the one to instruct the people in divine, the other in human,
|
||||
laws_.—_Wilkins_, p. 136.]
|
||||
laws_.—_Wilkins_, p. 136.
|
||||
|
||||
[Footnote 67: There was no distinction between the civil and criminal
|
||||
counts, as to the rights or powers of juries.]
|
||||
[^67]: There was no distinction between the civil and criminal
|
||||
counts, as to the rights or powers of juries.
|
||||
|
@ -391,10 +391,10 @@ obligation to do either. And this statute is only one example of the
|
||||
numberless contrivances and usurpations which have been resorted to, for
|
||||
the purpose of destroying the original and genuine trial by jury.
|
||||
|
||||
[Footnote 68: _Marches_, the limits, or boundaries, between England and
|
||||
Wales.]
|
||||
[^68]: _Marches_, the limits, or boundaries, between England and
|
||||
Wales.
|
||||
|
||||
[Footnote 69: That the kings would have had no scruples to enact laws
|
||||
[^69]: That the kings would have had no scruples to enact laws
|
||||
for the special purpose of plundering the people, by means of the
|
||||
judgments of juries, if they could have got juries to acknowledge the
|
||||
authority of their laws, is evident from the audacity with which they
|
||||
@ -497,12 +497,12 @@ binding upon juries, there is no robbery, vengeance, or oppression,
|
||||
which he could not have accomplished through the judgments of juries.
|
||||
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.]
|
||||
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.]
|
||||
[^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
|
||||
[^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
|
||||
@ -511,9 +511,9 @@ justices. I think we must also infer that the king’s justices could sit
|
||||
only in the three actions specially mentioned. We cannot go beyond the
|
||||
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.]
|
||||
people.
|
||||
|
||||
[Footnote 72: “The earls, sheriffs, and head-boroughs were annually
|
||||
[^72]: “The earls, sheriffs, and head-boroughs were annually
|
||||
elected in the full folcmote, (people’s meeting).”—_Introduction to
|
||||
Gilbert’s History of the Common Pleas_, p. 2, _note_.
|
||||
|
||||
@ -554,4 +554,4 @@ after, and some remain to this day.”—_4 Blackstone_, 413.
|
||||
|
||||
“The election of sheriffs was left to the people, _according to ancient
|
||||
usage_.”—_St. West._ 1, c. 27.—_Crabbe’s History of English Law_,
|
||||
181.]
|
||||
181.
|
||||
|
@ -678,7 +678,7 @@ decide the same question the other way, _unless they were misled by the
|
||||
justices_. If, however, such things should sometimes happen, from any
|
||||
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
|
||||
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
|
||||
@ -687,9 +687,9 @@ necessity dictate the conclusion to which they shall arrive. And thus
|
||||
the court really tries the question of fact, as well as the question of
|
||||
law, in every cause. It is clearly impossible, in the nature of things,
|
||||
for a jury to try a question of fact, without trying every question of
|
||||
law on which the fact depends.]
|
||||
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
|
||||
of their disagreements on matters of natural justice. The disagreements
|
||||
of _courts_ on matters of law, afford little or no evidence that juries
|
||||
@ -697,9 +697,9 @@ would also disagree on matters of law—that is, _of justice_; because
|
||||
the disagreements of courts are generally on matters of _legislation_,
|
||||
and not on those principles of abstract justice, by which juries would
|
||||
be governed, and in regard to which the minds of men are nearly
|
||||
unanimous.]
|
||||
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
|
||||
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
|
||||
@ -716,11 +716,11 @@ 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.]
|
||||
they cannot rightfully unite in maintaining the government itself.
|
||||
|
||||
[Footnote 76: Jones on Bailments, 133.]
|
||||
[^76]: Jones on Bailments, 133.
|
||||
|
||||
[Footnote 77: Kent, describing the difficulty of construing the written
|
||||
[^77]: Kent, describing the difficulty of construing the written
|
||||
law, says:
|
||||
|
||||
“Such is the imperfection of language, and the want of technical skill
|
||||
@ -741,9 +741,9 @@ private, but public bills, _in order that legislation might be
|
||||
consistent and systematic, and that the courts might not have so large a
|
||||
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.]
|
||||
be construed_.”—_Law Reporter_, 1848, p. 525.
|
||||
|
||||
[Footnote 78: This condemnation of written laws must, of course, be
|
||||
[^78]: This condemnation of written laws must, of course, be
|
||||
understood as applying only to cases where principles and rights are
|
||||
involved, and not as condemning any governmental arrangements, or
|
||||
instrumentalities, that are consistent with natural right, and which
|
||||
@ -751,4 +751,4 @@ must be agreed upon for the purpose of carrying natural law into effect.
|
||||
These things may be varied, as expediency may dictate, so only that they
|
||||
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.]
|
||||
laws in nature.
|
||||
|
@ -533,22 +533,22 @@ juror. This mode of appointment would guard against collusion and
|
||||
selection; and juries so appointed would be likely to be a fair epitome
|
||||
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 special _personal_ disqualification; such as mental or physical
|
||||
inability to perform the duties; having been convicted, or being under
|
||||
charge, of crime; interest, bias, &c. But it is clear that the common
|
||||
law allows none of these points to be determined by the court, but only
|
||||
by “_triers_.”]
|
||||
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
|
||||
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
|
||||
Sheriff’s Turn.”
|
||||
|
||||
@ -665,9 +665,9 @@ enacted,
|
||||
> 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.)]
|
||||
> sec. 3. (1731.)
|
||||
|
||||
[Footnote 83: Suppose these statutes, instead of disfranchising all
|
||||
[^83]: Suppose these statutes, instead of disfranchising all
|
||||
whose freeholds were of less than the standard value fixed by the
|
||||
statutes, had disfranchised all whose freeholds were of greater value
|
||||
than the same standard—would anybody ever have doubted that such
|
||||
@ -676,12 +676,12 @@ amounted to an entire abolition of the trial by jury? Certainly not. Yet
|
||||
it was as clearly inconsistent with the common law, or the English
|
||||
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.]
|
||||
disfranchise all whose freeholds rose above that standard.
|
||||
|
||||
[Footnote 84: _Lingard_ says: “These compurgators or jurors * * were
|
||||
[^84]: _Lingard_ says: “These compurgators or jurors * * were
|
||||
sometimes * * _drawn by lot_.”—_1 Lingard’s History of England_, p.
|
||||
300.]
|
||||
300.
|
||||
|
||||
[Footnote 85: Chapter 4, p. 120, note.]
|
||||
[^85]: Chapter 4, p. 120, note.
|
||||
|
||||
[Footnote 86: A mark was thirteen shillings and four pence.]
|
||||
[^86]: A mark was thirteen shillings and four pence.
|
||||
|
@ -227,7 +227,7 @@ must be chosen by the people, and be entirely free from all dependence
|
||||
upon, and all accountability to, the executive and legislative branches
|
||||
of the government.[^94]
|
||||
|
||||
[Footnote 87: The proofs of this principle of the common law have
|
||||
[^87]: The proofs of this principle of the common law have
|
||||
already been given on page 120, _note_.
|
||||
|
||||
There is much confusion and contradiction among authors as to the manner
|
||||
@ -289,21 +289,21 @@ same points.
|
||||
The confusion of _duties_ attributed to these officers indicates clearly
|
||||
enough that different officers, bearing, the same official names, must
|
||||
have had different duties, and have derived their authority from
|
||||
different sources,—to wit, the king, and the people.]
|
||||
different sources,—to wit, the king, and the people.
|
||||
|
||||
[Footnote 88: _Darrein presentment_ was an inquest to discover who
|
||||
[^88]: _Darrein presentment_ was an inquest to discover who
|
||||
presented the last person to a church; _mort de ancestor_, whether the
|
||||
last possessor was seized of land in demesne of his own fee; and _novel
|
||||
disseisin_, whether the claimant had been unjustly disseized of his
|
||||
freehold.]
|
||||
freehold.
|
||||
|
||||
[Footnote 89: He has no power to do it, _either with, or without, the
|
||||
[^89]: He has no power to do it, _either with, or without, the
|
||||
king’s command_. The prohibition is absolute, containing no such
|
||||
qualification as is here interpolated, viz., “_without the king’s
|
||||
command_.” If it could be done _with_ the king’s command, the king would
|
||||
be invested with arbitrary power in the matter.]
|
||||
be invested with arbitrary power in the matter.
|
||||
|
||||
[Footnote 90: The absurdity of this doctrine of Coke is made more
|
||||
[^90]: The absurdity of this doctrine of Coke is made more
|
||||
apparent by the fact that, at that time, the “justices” and other
|
||||
persons appointed by the king to hold courts were not only dependent
|
||||
upon the king for their offices, and removable at his pleasure, _but
|
||||
@ -430,9 +430,9 @@ hold courts.
|
||||
All these things show how perfectly lawless and arbitrary the kings were
|
||||
both before and after Magna Carta, and how necessary to liberty was the
|
||||
principle of Magna Carta and the common law, that no person appointed by
|
||||
the king should hold jury trials in criminal cases.]
|
||||
the king should hold jury trials in criminal cases.
|
||||
|
||||
[Footnote 91: The opinions and decisions of judges and courts are
|
||||
[^91]: The opinions and decisions of judges and courts are
|
||||
undeserving of the least reliance, (beyond the intrinsic merit of the
|
||||
arguments offered to sustain them,) and are unworthy even to be quoted
|
||||
as evidence of the law, _when those opinions or decisions are favorable
|
||||
@ -484,9 +484,9 @@ the government pleases to allow to them.
|
||||
It is extreme folly for a people to allow such dependent, servile, and
|
||||
perjured creatures to sit either in civil or criminal trials; but to
|
||||
allow them to sit in criminal trials, and judge of the people’s
|
||||
liberties, is not merely fatuity,—it is suicide.]
|
||||
liberties, is not merely fatuity,—it is suicide.
|
||||
|
||||
[Footnote 92: Coke, speaking of the word _bailiffs_, as used in the
|
||||
[^92]: Coke, speaking of the word _bailiffs_, as used in the
|
||||
statute of 1 _Westminster_, ch. 35, (1275,) says:
|
||||
|
||||
> “Here _bailiffs_ are taken for the _judges of the court_, as
|
||||
@ -754,9 +754,9 @@ _bailiff_, in England, is applied to the chief magistrates of towns, or
|
||||
to the commanders of particular castles, as that of Dover. The term
|
||||
_baillie_, in Scotland, is applied to a judicial police-officer, having
|
||||
powers very similar to those of justices of peace in the United
|
||||
States.”—_Encyclopædia Americana._]
|
||||
States.”—_Encyclopædia Americana._
|
||||
|
||||
[Footnote 93: Perhaps it may be said (and such, it has already been
|
||||
[^93]: Perhaps it may be said (and such, it has already been
|
||||
seen, is the opinion of Coke and others) that the chapter of Magna
|
||||
Carta, that “no _bailiff_ from henceforth shall put any man to his open
|
||||
law, (put him on trial,) nor to an oath (that is, an oath of
|
||||
@ -809,34 +809,34 @@ testimony, however frivolous or irrelevant, _in addition to their own_,
|
||||
was sufficient. Certainly a magistrate could always procure witnesses
|
||||
enough to testify to something or other, which _he himself_ could decide
|
||||
to be corroborative of his own testimony. And thus the prohibition would
|
||||
be defeated in fact, though observed in form.]
|
||||
be defeated in fact, though observed in form.
|
||||
|
||||
[Footnote 94: In this chapter I have called the justices “_presiding_
|
||||
[^94]: In this chapter I have called the justices “_presiding_
|
||||
officers,” solely for the want of a better term. They are not
|
||||
“_presiding_ officers,” in the sense of having any authority over the
|
||||
jury; but are only assistants to, and teachers and servants of, the
|
||||
jury. The foreman of the jury is properly the “presiding officer,” so
|
||||
far as there is such an officer at all. The sheriff has no authority
|
||||
except over other persons than the jury.]
|
||||
except over other persons than the jury.
|
||||
|
||||
[Footnote 95: In this extract, Palgrave seems to assume that the king
|
||||
[^95]: In this extract, Palgrave seems to assume that the king
|
||||
himself had a right to sit as judge, in _jury_ trials, in the _county_
|
||||
courts, in both civil and criminal cases. I apprehend he had no such
|
||||
power at the _common law_, but only to sit in the trial of appeals, and
|
||||
in the trial of peers, and of civil suits in which peers were parties,
|
||||
and possibly in the courts of ancient demesne.]
|
||||
and possibly in the courts of ancient demesne.
|
||||
|
||||
[Footnote 96: _Alderman_ was a title anciently given to various
|
||||
[^96]: _Alderman_ was a title anciently given to various
|
||||
_judicial_ officers, as the Alderman of all England, Alderman of the
|
||||
King, Alderman of the County, Alderman of the City or Borough, Alderman
|
||||
of the Hundred or Wapentake. These were all _judicial_ officers. See Law
|
||||
Dictionaries.]
|
||||
Dictionaries.
|
||||
|
||||
[Footnote 97: “_Ban and arriere ban_, a proclamation, whereby all that
|
||||
[^97]: “_Ban and arriere ban_, a proclamation, whereby all that
|
||||
hold lands of the crown, (except some privileged officers and citizens,)
|
||||
are summoned to meet at a certain place in order to serve the king in
|
||||
his wars, either personally, or by proxy.”—_Boyer._]
|
||||
his wars, either personally, or by proxy.”—_Boyer._
|
||||
|
||||
[Footnote 98: At the common law, parties, in both civil and criminal
|
||||
[^98]: At the common law, parties, in both civil and criminal
|
||||
cases, were allowed to swear in their own behalf; and it will be so
|
||||
again, if the true trial by jury should be reëstablished.]
|
||||
again, if the true trial by jury should be reëstablished.
|
||||
|
@ -168,30 +168,30 @@ actual suits in which this kind of oppression is practised; but we are
|
||||
to include all those cases in which the fear of such oppression is used
|
||||
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
|
||||
amercement. Blackstone speaks of plaintiffs being liable, without saying
|
||||
whether defendants were so or not. What the rule really was I do not
|
||||
know. There would seem to be some reason in allowing defendants to
|
||||
defend themselves, _at their own charges_, without exposing themselves
|
||||
to amercement in case of failure.]
|
||||
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
|
||||
was procured; but it was doubtless done at the expense either of the
|
||||
state or of the witnesses themselves. And it was doubtless the same in
|
||||
criminal cases.]
|
||||
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
|
||||
law. The oath, by which any claim was supported, was called the
|
||||
fore-oath, or ‘Præjuramentum,’ and it was the foundation of his suit.
|
||||
One of the cases which did not require this initiatory confirmation, was
|
||||
when cattle could be tracked into another man’s land, and then the
|
||||
foot-mark stood for the fore-oath.”—_2 Palgrave’s Rise and Progress_,
|
||||
&c., 114.]
|
||||
&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
|
||||
important to the administration of justice, as are judges, jurors, or
|
||||
witnesses; and the universal practice of employing them, both on the
|
||||
@ -210,4 +210,4 @@ people in establishing courts.
|
||||
To prevent the abuse of this right, it should perhaps be left
|
||||
discretionary with the jury in each case to determine whether the
|
||||
counsel should receive any pay—and, if any, how much—from the
|
||||
government.]
|
||||
government.
|
||||
|
@ -312,7 +312,7 @@ In short, they would judge of his moral intent from all the
|
||||
circumstances of the case, and acquit him, if they had any reasonable
|
||||
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
|
||||
the idea that all men (not manifestly imbecile) become mentally
|
||||
competent to make all contracts whatsoever on the day they become
|
||||
@ -346,9 +346,9 @@ age more or less.
|
||||
|
||||
These principles would prevail under the true trial by jury, the jury
|
||||
being the judges of the capacity of every individual whose capacity
|
||||
should be called in question.]
|
||||
should be called in question.
|
||||
|
||||
[Footnote 104: In contrast to the doctrines of the text, it may be
|
||||
[^104]: In contrast to the doctrines of the text, it may be
|
||||
proper to present more distinctly the doctrines that are maintained by
|
||||
judges, and that prevail in courts of justice.
|
||||
|
||||
@ -420,10 +420,10 @@ oppression of the intensest kind?
|
||||
This doctrine of Mansfield is the doctrine of all who deny the right of
|
||||
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.]
|
||||
other interpretation or defence.
|
||||
|
||||
[Footnote 105: This declaration of Mansfield, that juries in England
|
||||
[^105]: This declaration of Mansfield, that juries in England
|
||||
“are not sworn to decide the law” in criminal cases, is a plain
|
||||
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.]
|
||||
See _juror’s oath_, page 86.
|
||||
|
@ -469,20 +469,20 @@ An old book, called “English Liberties,” says:
|
||||
> established and confirmed by the legislative power, no one privilege
|
||||
> besides having been ever so often remembered in parliament.”[^114]
|
||||
|
||||
[Footnote 106: _Mackintosh’s Hist. of Eng._, ch. 3. _45 Lardner’s Cab.
|
||||
Cyc._, 354.]
|
||||
[^106]: _Mackintosh’s Hist. of Eng._, ch. 3. _45 Lardner’s Cab.
|
||||
Cyc._, 354.
|
||||
|
||||
[Footnote 107: “_Forty shilling freeholders_” were those “people
|
||||
[^107]: “_Forty shilling freeholders_” were those “people
|
||||
dwelling and resident in the same counties, whereof every one of them
|
||||
shall have free land or tenement to the value of forty shillings by the
|
||||
year at the least above all charges.” By statute _8 Henry_ 6, ch. 7,
|
||||
(1429,) these freeholders only were allowed to vote for members of
|
||||
Parliament from the _counties_.]
|
||||
Parliament from the _counties_.
|
||||
|
||||
[Footnote 108: He probably speaks in its favor only to blind the eyes of
|
||||
the people to the frauds he has attempted upon its true meaning.]
|
||||
[^108]: He probably speaks in its favor only to blind the eyes of
|
||||
the people to the frauds he has attempted upon its true meaning.
|
||||
|
||||
[Footnote 109: It will be noticed that Coke calls these confirmations of
|
||||
[^109]: It will be noticed that Coke calls these confirmations of
|
||||
the charter “acts of parliament,” instead of acts of the king alone.
|
||||
This needs explanation.
|
||||
|
||||
@ -610,18 +610,18 @@ indeed, by refusing to grant him money, except on that condition, and
|
||||
otherwise, had contributed to oblige him to make the confirmations; just
|
||||
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.]
|
||||
constitutionally, as well as formally, the acts of the king alone.
|
||||
|
||||
[Footnote 110: Under the head of “_John._”]
|
||||
[^110]: Under the head of “_John._”
|
||||
|
||||
[Footnote 111: _4 Blackstone_, 349-50.]
|
||||
[^111]: _4 Blackstone_, 349-50.
|
||||
|
||||
[Footnote 112: _3 Blackstone_, 379.]
|
||||
[^112]: _3 Blackstone_, 379.
|
||||
|
||||
[Footnote 113: _Hume_, ch. 2.]
|
||||
[^113]: _Hume_, ch. 2.
|
||||
|
||||
[Footnote 114: Page 203, 5th edition, 1721.]
|
||||
[^114]: Page 203, 5th edition, 1721.
|
||||
|
||||
[Footnote 115: St. 1 _William and Mary_, ch. 6, (1688.)]
|
||||
[^115]: St. 1 _William and Mary_, ch. 6, (1688.)
|
||||
|
||||
[Footnote 116: 4 _Inst._, 36.]
|
||||
[^116]: 4 _Inst._, 36.
|
||||
|
@ -564,5 +564,5 @@ natural justice, instead of being, as it now is, a great battle, in
|
||||
which avarice and ambition are constantly fighting for and obtaining
|
||||
advantages over the natural rights of mankind.
|
||||
|
||||
[Footnote 117: Such as restraints upon banking, upon the rates of
|
||||
interest, upon traffic with foreigners, &c., &c.]
|
||||
[^117]: Such as restraints upon banking, upon the rates of
|
||||
interest, upon traffic with foreigners, &c., &c.
|
||||
|
@ -96,7 +96,7 @@ By what force, fraud, and conspiracy, on the part of kings, nobles, and
|
||||
England, it is designed to show more fully in the next volume, if it
|
||||
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,
|
||||
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
|
||||
@ -122,4 +122,4 @@ trial by the country would fall with it, because the government, if it
|
||||
could tax people without their consent, would, of course, take enough of
|
||||
their money to enable it to employ all the force necessary for
|
||||
sustaining its own tribunals, (in the place of juries,) and carrying
|
||||
their decrees into execution.]
|
||||
their decrees into execution.
|
||||
|
Loading…
Reference in New Issue
Block a user