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Fix footnote bodies

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

188
edited/01.markdown
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@ -506,100 +506,100 @@ decree, rendered by a jury in each individual case, upon such evidence,
and such law, as are satisfactory to their own understandings and
consciences, irrespective of all legislation of the government.
[Footnote 1: To show that this supposition is not an extravagant one, it
may be mentioned that courts have repeatedly questioned jurors to
ascertain whether they were prejudiced _against the government_—that
is, whether they were in favor of, or opposed to, such laws of the
government as were to be put in issue in the then pending trial. This
was done (in 1851) in the United States District Court for the District
of Massachusetts, by Peleg Sprague, the United States district judge, in
empanelling three several juries for the trials of Scott, Hayden, and
Morris, charged with having aided in the rescue of a fugitive slave from
the custody of the United States deputy marshal. This judge caused the
following question to be propounded to all the jurors separately; and
those who answered unfavorably for the purposes of the government, were
excluded from the panel.
[^1]: To show that this supposition is not an extravagant one, it
may be mentioned that courts have repeatedly questioned jurors to
ascertain whether they were prejudiced _against the government_—that
is, whether they were in favor of, or opposed to, such laws of the
government as were to be put in issue in the then pending trial. This
was done (in 1851) in the United States District Court for the District
of Massachusetts, by Peleg Sprague, the United States district judge, in
empanelling three several juries for the trials of Scott, Hayden, and
Morris, charged with having aided in the rescue of a fugitive slave from
the custody of the United States deputy marshal. This judge caused the
following question to be propounded to all the jurors separately; and
those who answered unfavorably for the purposes of the government, were
excluded from the panel.
> “Do you hold any opinions upon the subject of the Fugitive Slave Law,
> so called, which will induce you to refuse to convict a person
> indicted under it, if the facts set forth in the indictment, _and
> constituting the offence_, are proved against him, and the court
> direct you that the law is constitutional?”
The reason of this question was, that “the Fugitive Slave Law, so
called,” was so obnoxious to a large portion of the people, as to render
a conviction under it hopeless, if the jurors were taken
indiscriminately from among the people.
A similar question was soon afterwards propounded to the persons drawn
as jurors in the United States _Circuit_ Court for the District of
Massachusetts, by Benjamin R. Curtis one of the Justices of the Supreme
Court of the United States, in empanelling a jury for the trial of the
aforesaid Morris on the charge before mentioned; and those who did not
answer the question favorably for the government were again excluded
from the panel.
It has also been an habitual practice with the Supreme Court of
Massachusetts, in empanelling juries for the trial of _capital_
offences, to inquire of the persons drawn as jurors whether they had any
conscientious scruples against finding verdicts of guilty in such cases;
that is, whether they had any conscientious scruples against sustaining
the law prescribing death as the punishment of the crime to be tried;
and to exclude from the panel all who answered in the affirmative.
The only principle upon which these questions are asked, is this—that
no man shall be allowed to serve as juror, unless he be ready to enforce
any enactment of the government, however cruel or tyrannical it may be.
What is such a jury good for, as a protection against the tyranny of the
government? A jury like that is palpably nothing but a mere tool of
oppression in the hands of the government. A trial by such a jury is
really a trial by the government itself—and not a trial by the
country—because it is a trial only by men specially selected by the
government for their readiness to enforce its own tyrannical measures.
If that be the true principle of the trial by jury, the trial is utterly
worthless as a security to liberty. The Czar might, with perfect safety
to his authority, introduce the trial by jury into Russia, if he could
but be permitted to select his jurors from those who were ready to
maintain his laws, without regard to their injustice.
This example is sufficient to show that the very pith of the trial by
jury, as a safeguard to liberty, consists in the jurors being taken
indiscriminately from the whole people, and in their right to hold
invalid all laws which they think unjust.
> “Do you hold any opinions upon the subject of the Fugitive Slave Law,
> so called, which will induce you to refuse to convict a person
> indicted under it, if the facts set forth in the indictment, _and
> constituting the offence_, are proved against him, and the court
> direct you that the law is constitutional?”
[^2]: The executive has a qualified veto upon the passage of
laws, in most of our governments, and an absolute veto, in all of them,
upon the execution of any laws which he deems unconstitutional; because
his oath to support the constitution (as he understands it) forbids him
to execute any law that he deems unconstitutional.
The reason of this question was, that “the Fugitive Slave Law, so
called,” was so obnoxious to a large portion of the people, as to render
a conviction under it hopeless, if the jurors were taken
indiscriminately from among the people.
[^3]: And if there be so much as a reasonable _doubt_ of the
justice of the laws, the benefit of that doubt must be given to the
defendant, and not to the government. So that the government must keep
its laws _clearly_ within the limits of justice, if it would ask a jury
to enforce them.
A similar question was soon afterwards propounded to the persons drawn
as jurors in the United States _Circuit_ Court for the District of
Massachusetts, by Benjamin R. Curtis one of the Justices of the Supreme
Court of the United States, in empanelling a jury for the trial of the
aforesaid Morris on the charge before mentioned; and those who did not
answer the question favorably for the government were again excluded
from the panel.
It has also been an habitual practice with the Supreme Court of
Massachusetts, in empanelling juries for the trial of _capital_
offences, to inquire of the persons drawn as jurors whether they had any
conscientious scruples against finding verdicts of guilty in such cases;
that is, whether they had any conscientious scruples against sustaining
the law prescribing death as the punishment of the crime to be tried;
and to exclude from the panel all who answered in the affirmative.
The only principle upon which these questions are asked, is this—that
no man shall be allowed to serve as juror, unless he be ready to enforce
any enactment of the government, however cruel or tyrannical it may be.
What is such a jury good for, as a protection against the tyranny of the
government? A jury like that is palpably nothing but a mere tool of
oppression in the hands of the government. A trial by such a jury is
really a trial by the government itself—and not a trial by the
country—because it is a trial only by men specially selected by the
government for their readiness to enforce its own tyrannical measures.
If that be the true principle of the trial by jury, the trial is utterly
worthless as a security to liberty. The Czar might, with perfect safety
to his authority, introduce the trial by jury into Russia, if he could
but be permitted to select his jurors from those who were ready to
maintain his laws, without regard to their injustice.
This example is sufficient to show that the very pith of the trial by
jury, as a safeguard to liberty, consists in the jurors being taken
indiscriminately from the whole people, and in their right to hold
invalid all laws which they think unjust.]
[Footnote 2: The executive has a qualified veto upon the passage of
laws, in most of our governments, and an absolute veto, in all of them,
upon the execution of any laws which he deems unconstitutional; because
his oath to support the constitution (as he understands it) forbids him
to execute any law that he deems unconstitutional.]
[Footnote 3: And if there be so much as a reasonable _doubt_ of the
justice of the laws, the benefit of that doubt must be given to the
defendant, and not to the government. So that the government must keep
its laws _clearly_ within the limits of justice, if it would ask a jury
to enforce them.]
[Footnote 4: _Hallam_ says, “The relation established between a lord and
his vassal by the feudal tenure, far from containing principles of any
servile and implicit obedience, permitted the compact to be dissolved in
case of its violation by either party. This extended as much to the
sovereign as to inferior lords. * * If a vassal was aggrieved, and if
justice was denied him, he sent a defiance, that is, a renunciation of
fealty to the king, and was entitled to enforce redress at the point of
his sword. It then became a contest of strength as between two
independent potentates, and was terminated by treaty, advantageous or
otherwise, according to the fortune of war. * * There remained the
original principle, that allegiance depended conditionally upon good
treatment, and that an appeal might be _lawfully_ made to arms against
an oppressive government. Nor was this, we may be sure, left for extreme
necessity, or thought to require a long-enduring forbearance. In modern
times, a king, compelled by his subjects’ swords to abandon any
pretension, would be supposed to have ceased to reign; and the express
recognition of such a right as that of insurrection has been justly
deemed inconsistent with the majesty of law. But ruder ages had ruder
sentiments. Force was necessary to repel force; and men accustomed to
see the king’s authority defied by a private riot, were not much shocked
when it was resisted in defence of public freedom.”—_3 Middle Ages_,
240-2.]
[^4]: _Hallam_ says, “The relation established between a lord and
his vassal by the feudal tenure, far from containing principles of any
servile and implicit obedience, permitted the compact to be dissolved in
case of its violation by either party. This extended as much to the
sovereign as to inferior lords. * * If a vassal was aggrieved, and if
justice was denied him, he sent a defiance, that is, a renunciation of
fealty to the king, and was entitled to enforce redress at the point of
his sword. It then became a contest of strength as between two
independent potentates, and was terminated by treaty, advantageous or
otherwise, according to the fortune of war. * * There remained the
original principle, that allegiance depended conditionally upon good
treatment, and that an appeal might be _lawfully_ made to arms against
an oppressive government. Nor was this, we may be sure, left for extreme
necessity, or thought to require a long-enduring forbearance. In modern
times, a king, compelled by his subjects’ swords to abandon any
pretension, would be supposed to have ceased to reign; and the express
recognition of such a right as that of insurrection has been justly
deemed inconsistent with the majesty of law. But ruder ages had ruder
sentiments. Force was necessary to repel force; and men accustomed to
see the king’s authority defied by a private riot, were not much shocked
when it was resisted in defence of public freedom.”—_3 Middle Ages_,
240-2.

986
edited/02.markdown
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@ -893,496 +893,496 @@ according to (that is, in execution of) the sentence of his peers, _and_
(or _or_, as the case may require) the Common Law of England, (as it was
at the time of Magna Carta, in 1215.)
[Footnote 5: 1 Hume, Appendix 2.]
[Footnote 6: Crabbe’s History of the English Law, 236.]
[Footnote 7: Coke says, “The king of England is armed with divers
councils, one whereof is called _commune concilium_, (the common
council,) and that is the court of parliament, and so it is _legally_
called in writs and judicial proceedings _commune concilium regni
Angliæ_, (the common council of the kingdom of England.) And another is
called _magnum concilium_, (great council;) this is sometimes applied to
the upper house of parliament, and sometimes, out of parliament time, to
the peers of the realm, lords of parliament, who are called _magnum
concilium regis_, (the great council of the king;) * * Thirdly, (as
every man knoweth,) the king hath a privy council for matters of state.
* * The fourth council of the king are his judges for law matters.”
_1 Coke’s Institutes, 110 a._]
[Footnote 8: The Great Charter of Henry III., (1216 and 1225,) confirmed
by Edward I., (1297,) makes no provision whatever for, or mention of, a
parliament, unless the provision, (Ch. 37,) that “Escuage, (a military
contribution,) from henceforth shall be taken like as it was wont to be
in the time of King Henry our grandfather,” mean that a parliament shall
be summoned for that purpose.]
[Footnote 9: The Magna Carta of John, (Ch. 17 and 18,) defines those who
were entitled to be summoned to parliament, to wit, “The Archbishops,
Bishops, Abbots, Earls, and Great Barons of the Realm, * * and all
others who hold of us _in chief_.” Those who held land of the king _in
chief_ included none below the rank of knights.]
[Footnote 10: The parliaments of that time were, doubtless, such as
Carlyle describes them, when he says, “The parliament was at first a
most simple assemblage, quite cognate to the situation; that Red
William, or whoever had taken on him the terrible task of being King of
England, was wont to invite, oftenest about Christmas time, his
subordinate Kinglets, Barons as he called them, to give him the pleasure
of their company for a week or two; there, in earnest conference all
morning, in freer talk over Christmas cheer all evening, in some big
royal hall of Westminster, Winchester, or wherever it might be, with log
fires, huge rounds of roast and boiled, not lacking malmsey and other
generous liquor, they took counsel concerning the arduous matters of the
kingdom.”]
[Footnote 11: Hume, Appendix 2.]
[Footnote 12: This point will be more fully established hereafter.]
[Footnote 13: It is plain that the king and all his partisans looked
upon the charter as utterly prostrating the king’s legislative supremacy
before the discretion of juries. When the schedule of liberties demanded
by the barons was shown to him, (of which the trial by jury was the most
important, because it was the only one that protected all the rest,)
“the king, falling into a violent passion, asked, _Why the barons did
not with these exactions demand his kingdom?_ * * _and with a solemn
oath protested, that he would never grant such liberties as would make
himself a slave_.” * * But afterwards, “seeing himself deserted, and
fearing they would seize his castles, he sent the Earl of Pembroke and
other faithful messengers to them, to let them know _he would grant them
the laws and liberties they desired_.” * * But after the charter had
been granted, “the king’s mercenary soldiers, desiring war more than
peace, were by their leaders continually whispering in his ears, _that
he was now no longer king, but the scorn of other princes; and that it
was more eligible to be no king, than such a one as he_.” * * He applied
“to the Pope, that he might by his apostolic authority make void what
the barons had done. * * At Rome he met with what success he could
desire, where all the transactions with the barons were fully
represented to the Pope, and the Charter of Liberties shown to him, in
writing; which, when he had carefully perused, he, with a furious look,
cried out, _What! Do the barons of England endeavor to dethrone a king,
who has taken upon him the Holy Cross, and is under the protection of
the Apostolic See; and would they force him to transfer the dominions of
the Roman Church to others? By St. Peter, this injury must not pass
unpunished._ Then debating the matter with the cardinals, he, by a
definitive sentence, damned and cassated forever the Charter of
Liberties, and sent the king a bull containing that sentence at
large.”—_Echard’s History of England_, p. 106-7.
These things show that the nature and effect of the charter were well
understood by the king and his friends; that they all agreed that he was
effectually stripped of power. _Yet the legislative power had not been
taken from him; but only the power to enforce his laws, unless juries
should freely consent to their enforcement._]
[Footnote 14: The laws were, at that time, all written in Latin.]
[Footnote 15: “No man shall be condemned at the king’s suit, either
before the king in his bench, where pleas are _coram rege_, (before the
king,) (and so are the words _nec super eum ibimus_, to be understood,)
nor before any other commissioner or judge whatsoever, and so are the
words _nec super eum mittemus_, to be understood, but by the judgment of
his peers, that is, equals, or according to the law of the land.”—_2
Coke’s Inst._, 46.]
[Footnote 16: Perhaps the assertion in the text should be made with this
qualification—that the words “_per legem terræ_,” (according to the law
of the land,) and the words “_per legale judicium parium suorum_,”
(according to the _legal_ judgment of his peers,) imply that the king,
before proceeding to any _executive_ action, will take notice of “the
law of the land,” and of the _legality_ of the judgment of the peers,
and will _execute_ upon the prisoner nothing except what the law of the
land authorizes, and no judgments of the peers, except _legal_ ones.
With this qualification, the assertion in the text is strictly
correct—that there is nothing in the whole chapter that grants to the
king, or his judges, any _judicial_ power at all. The chapter only
describes and _limits_ his _executive_ power.]
[Footnote 17: See Blackstone’s Law Tracts, page 294, Oxford Edition.]
[Footnote 18: These Articles of the Charter are given in Blackstone’s
collection of Charters, and are also printed with the _Statutes of the
Realm_. Also in Wilkins’ Laws of the Anglo-Saxons, p. 356.]
[Footnote 19: Lingard says, “The words, ‘_We will not destroy him, nor
will we go upon him, nor will we send upon him_,’ have been very
differently expounded by different legal authorities. Their real meaning
may be learned from John himself, who the next year promised by his
letters patent ... nec super eos _per vim vel per arma_ ibimus, nisi per
legem regni nostri, vel per judicium parium suorum in curia nostra, (nor
will we go upon them _by force or by arms_, unless by the law of our
kingdom, or the judgment of their peers in our court.) Pat. 16 Johan,
apud Drad. 11, app. no. 124. He had hitherto been in the habit of
_going_ with an armed force, or _sending_ an armed force on the lands,
and against the castles, of all whom he knew or suspected to be his
secret enemies, without observing any form of law.”—3 Lingard, 47
note.]
[Footnote 20: “_Judgment, judicium._ * * The sentence of the law,
pronounced by the court, upon the matter contained in the record.”—3
_Blackstone_, 395. _Jacob’s Law Dictionary. Tomlin’s do._
“_Judgment_ is the decision or sentence of the law, given by a court of
justice or other competent tribunal, as the result of the proceedings
instituted therein, for the redress of an injury.”—_Bouvier’s Law
Dict._
“_Judgment, judicium._ * * Sentence of a judge against a criminal. * *
Determination, decision in general.”—_Bailey’s Dict._
“_Judgment._ * * In a legal sense, a sentence or decision pronounced by
authority of a king, or other power, either by their own mouth, or by
that of their judges and officers, whom they appoint to administer
justice in their stead.”—_Chambers’ Dict._
“_Judgment._ * * In law, the sentence or doom pronounced in any case,
civil or criminal, by the judge or court by which it is
tried.”—_Webster’s Dict._
Sometimes the punishment itself is called _judicium_, _judgment_; or,
rather, it was at the time of Magna Carta. For example, in a statute
passed fifty-one years after Magna Carta, it was said that a baker, for
default in the weight of his bread, “debeat amerciari vel subire
_judicium_ pillorie;” that is, ought to be amerced, or suffer the
punishment, or judgment, of the pillory. Also that a brewer, for
“selling ale contrary to the assize,” “debeat amerciari, vel pati
_judicium_ tumbrelli”; that is, ought to be amerced, or suffer the
punishment, or judgment, of the tumbrel.—51 _Henry_ 3, _St._ 6. (1266.)
Also the “_Statutes of uncertain date_,” (but supposed to be prior to
Edward III., or 1326,) provide, in chapters 6, 7, and 10, for
“_judgment_ of the pillory.”—_See 1 Ruffhead’s Statutes_, 187, 188. 1
_Statutes of the Realm_, 203.
Blackstone, in his chapter “Of _Judgment_, and its Consequences,” says,
“_Judgment_ (unless any matter be offered in arrest thereof) follows
upon conviction; being the pronouncing of that punishment which is
expressly ordained by law.”—_Blackstone’s Analysis of the Laws of
England, Book 4, Ch. 29, Sec. 1. Blackstone’s Law Tracts_, 126.
Coke says, “_Judicium_ ... the judgment is the guide and direction of
the execution.” 3 _Inst._ 210.]
[Footnote 21: This precedent from Germany is good authority, because the
trial by jury was in use, in the northern nations of Europe generally,
long before Magna Carta, and probably from time immemorial; and the
Saxons and Normans were familiar with it before they settled in
England.]
[Footnote 22: _Beneficium_ was the legal name of an estate held by a
feudal tenure. See Spelman’s Glossary.]
[Footnote 23: _Contenement_ of a freeman was the means of living in the
condition of a freeman.]
[Footnote 24: _Waynage_ was a villein’s plough-tackle and carts.]
[Footnote 25: Tomlin says, “The ancient practice was, when any such fine
was imposed, to inquire by a jury _quantum inde regi dare valeat per
annum, salva sustentatione sua et uxoris et liberorum suorum_, (how much
is he able to give to the king per annum, saving his own maintenance,
and that of his wife and children). And since the disuse of such
inquest, it is never usual to assess a larger fine than a man is able to
pay, without touching the implements of his livelihood; but to inflict
corporal punishment, or a limited imprisonment, instead of such a fine
as might amount to imprisonment for life. And this is the reason why
fines in the king’s courts are frequently denominated ransoms, because
the penalty must otherwise fall upon a man’s person, unless it be
redeemed or ransomed by a pecuniary fine.”—_Tomlin’s Law Dict., word
Fine._]
[Footnote 26: Because juries were to fix the sentence, it must not be
supposed that the king was _obliged_ to carry the sentence into
execution; _but only that he could not go beyond the sentence_. He might
pardon, or he might acquit on grounds of law, notwithstanding the
sentence; but he could not punish beyond the extent of the sentence.
Magna Carta does not prescribe that the king _shall punish_ according to
the sentence of the peers; but only that he shall not punish _“unless
according to” that sentence_. He may acquit or pardon, notwithstanding
their sentence or judgment; but he cannot punish, except according to
their judgment.]
[Footnote 27: _The trial by battle_ was one in which the accused
challenged his accuser to single combat, and staked the question of his
guilt or innocence on the result of the duel. This trial was introduced
into England by the Normans, within one hundred and fifty years before
Magna Carta. It was not very often resorted to even by the Normans
themselves; probably never by the Anglo-Saxons, unless in their
controversies with the Normans. It was strongly discouraged by some of
the Norman princes, particularly by Henry II., by whom the trial by jury
was especially favored. It is probable that the trial by battle, so far
as it prevailed at all in England, was rather tolerated as a matter of
chivalry, than authorized as a matter of law. At any rate, it is not
likely that it was included in the “_legem terræ_” of Magna Carta,
although such duels have occasionally occurred since that time, and
have, by some, been supposed to be lawful. I apprehend that nothing can
be properly said to be a part of _lex terræ_, unless it can be shown
either to have been of Saxon origin, or to have been recognized by Magna
Carta.
_The trial by ordeal_ was of various kinds. In one ordeal the accused
was required to take hot iron in his hand; in another to walk blindfold
among red-hot ploughshares; in another to thrust his arm into boiling
water; in another to be thrown, with his hands and feet bound, into cold
water; in another to swallow the _morsel of execration_; in the
confidence that his guilt or innocence would be miraculously made known.
This mode of trial was nearly extinct at the time of Magna Carta, and it
is not likely that it was included in “_legem terræ_,” as that term is
used in that instrument. This idea is corroborated by the fact that the
trial by ordeal was specially prohibited only four years after Magna
Carta, “by act of Parliament in 3 Henry III., according to Sir Edward
Coke, or rather by an order of the king in council.”—_3 Blackstone_
345, _note_.
I apprehend that this trial was never forced upon accused persons, but
was only allowed to them, _as an appeal to God_, from the judgment of a
jury.[^33]
_The trial by compurgators_ was one in which, if the accused could bring
twelve of his neighbors, who would make oath that they believed him
innocent, he was held to be so. It is probable that this trial was
really the trial by jury, or was allowed as an appeal from a jury. It is
wholly improbable that two different modes of trial, so nearly
resembling each other as this and the trial by jury do, should prevail
at the same time, and among a rude people, whose judicial proceedings
would naturally be of the simplest kind. But if this trial really were
any other than the trial by jury, it must have been nearly or quite
extinct at the time of Magna Carta; and there is no probability that it
was included in “_legem terræ_.”]
[Footnote 28: Coke attempts to show that there is a distinction between
amercements and fines—admitting that amercements must be fixed by one’s
peers, but claiming that fines may be fixed by the government. (_2
Inst._ 27, _8 Coke’s Reports_ 38.) But there seems to have been no
ground whatever for supposing that any such distinction existed at the
time of Magna Carta. If there were any such distinction in the time of
Coke, it had doubtless grown up within the four centuries that had
elapsed since Magna Carta, and is to be set down as one of the
numberless inventions of government for getting rid of the restraints of
Magna Carta, and for taking men out of the protection of their peers,
and subjecting them to such punishments as the government chooses to
inflict.
The first statute of Westminster, passed sixty years after Magna Carta,
treats the fine and amercement as synonymous, as follows:
“Forasmuch as _the common fine and amercement_ of the whole county in
Eyre of the justices for false judgments, or for other trespass, is
unjustly assessed by sheriffs and baretors in the shires, * * it is
provided, and the king wills, that from henceforth such sums shall be
assessed before the justices in Eyre, afore their departure, _by the
oath of knights and other honest men_,” &c.—_3 Edward I., Ch._ 18.
(1275.)
And in many other statutes passed after Magna Carta, the terms _fine_
and _amercement_ seem to be used indifferently, in prescribing the
punishment for offences. As late as 1461, (246 years after Magna Carta,)
the statute _1 Edward IV., Ch._ 2, speaks of “_fines, ransoms, and
amerciaments_” as being levied upon criminals, as if they were the
common punishments of offences.
_St._ 2 and 3 _Philip and Mary, Ch._ 8, uses the terms, “_fines,
forfeitures, and amerciaments_” five times. (1555.)
_St. 5 Elizabeth, Ch._ 13, _Sec._ 10, uses the terms “_fines,
forfeitures, and amerciaments_.”
That amercements were fines, or pecuniary punishments, inflicted for
offences, is proved by the following statutes, (all supposed to have
been passed within one hundred and fifteen years after Magna Carta,)
which speak of amercements as a species of “_judgment_,” or punishment,
and as being inflicted for the same offences as other “judgments.”
Thus one statute declares that a baker, for default in the weight of his
bread, “ought to be _amerced_, or suffer the _judgment_ of the pillory;”
and that a brewer, for “selling ale contrary to the assize,” “ought to
be _amerced_, or suffer the _judgment_ of the tumbrel.”—_51 Henry III.,
St._ 6. (1266.)
Among the “_Statutes of Uncertain Date_,” but supposed to be prior to
Edward III., (1326,) are the following:
_Chap._ 6 provides that “if a brewer break the assize, (fixing the price
of ale,) the first, second, and third time, he shall be _amerced_; but
the fourth time he shall suffer _judgment_ of the pillory without
redemption.”
_Chap._ 7 provides that “a butcher that selleth swine’s flesh measled,
or flesh dead of the murrain, or that buyeth flesh of Jews, and selleth
the same unto Christians, after he shall be convict thereof, for the
first time he shall be grievously _amerced_; the second time he shall
suffer _judgment_ of the pillory; and the third time he shall be
imprisoned and make _fine_; and the fourth time he shall forswear the
town.”
_Chap. 10_, a statute against _forestalling_, provides that,
“He that is convict thereof, the first time shall be _amerced_, and
shall lose the thing so bought, and that according to the custom of the
town; he that is convicted the second time shall have _judgment_ of the
pillory; at the third time he shall be imprisoned and make _fine_; the
fourth time he shall abjure the town. And this _judgment_ shall be given
upon all manner of forestallers, and likewise upon them that have given
them counsel, help, or favor.”—_1 Ruffhead’s Statutes_, 187, 188. _1
Statutes of the Realm_, 203.]
[Footnote 29: 1 Hume, Appendix, 1.]
[Footnote 30: Blackstone says, “Our ancient Saxon laws nominally
punished theft with death, if above the value of twelve pence; but the
criminal was permitted to redeem his life by a pecuniary ransom, as
among their ancestors, the Germans, by a stated number of cattle. But in
the ninth year of Henry the First, (1109,) this power of redemption was
taken away, and all persons guilty of larceny above the value of twelve
pence were directed to be hanged, which law continues in force to this
day.”—_4 Blackstone_, 238.
I give this statement of Blackstone, because the latter clause may seem
to militate with the idea, which the former clause corroborates, viz.,
that at the time of Magna Carta, fines were the usual punishments of
offences. But I think there is no probability that a law so unreasonable
in itself, (unreasonable even after making all allowance for the
difference in the value of money,) and so contrary to immemorial custom,
could or did obtain any general or speedy acquiescence among a people
who cared little for the authority of kings.
Maddox, writing of the period from William the Conqueror to John, says:
“The amercements in criminal and common pleas, which were wont to be
imposed during this first period and afterwards, were of so many several
sorts, that it is not easy to place them under distinct heads. Let them,
for method’s sake, be reduced to the heads following: Amercements for or
by reason of murders and manslaughters, for misdemeanors, for
disseisins, for recreancy, for breach of assize, for defaults, for
non-appearance, for false judgment, and for not making suit, or hue and
cry. To them may be added miscellaneous amercements, for trespasses of
divers kinds.”—_1 Maddox’ History of the Exchequer_, 542.]
[Footnote 31: Coke, in his exposition of the words _legem terræ_, gives
quite in detail the principles of the common law governing _arrests_;
and takes it for granted that the words “_nisi per legem terræ_” are
applicable to arrests, as well as to the indictment, &c.—2 _Inst._,
51,52.]
[Footnote 32: I cite the above extract from Mr. Hallam solely for the
sake of his authority for rendering the word _vel_ by _and_; and not by
any means for the purpose of indorsing the opinion he suggests, that
_legem terræ_ authorized “judgments by default or demurrer,” _without
the intervention of a jury_. He seems to imagine that _lex terræ_, the
common law, at the time of Magna Carta, included everything, even to the
practice of courts, that is, _at this day_, called by the name of
_Common Law_; whereas much of what is _now_ called Common Law has grown
up, by usurpation, since the time of Magna Carta, in palpable violation
of the authority of that charter. He says, “Certainly there are many
legal procedures, besides _trial_ by jury, through which a party’s goods
or person may be taken.” Of course there are _now_ many such ways, in
which a party’s goods or person _are_ taken, besides by the judgment of
a jury; but the question is, whether such takings are not in violation
of Magna Carta.
He seems to think that, in cases of “judgment by default or demurrer,”
there is no need of a jury, and thence to infer that _legem terræ_ may
not have required a jury in those cases. But this opinion is founded on
the erroneous idea that juries are required only for determining
contested _facts_, and not for judging of the law. In case of default,
the plaintiff must present a _prima facie_ case before he is entitled to
a judgment; and Magna Carta, (supposing it to require a jury trial in
civil cases, as Mr. Hallam assumes that it does,) as much requires that
this _prima facie_ case, both law and fact, be made out to the
satisfaction of a jury, as it does that a contested case shall be.
As for a demurrer, the jury must try a demurrer (having the advice and
assistance of the court, of course) as much as any other matter of law
arising in a case.
Mr. Hallam evidently thinks there is no use for a jury, except where
there is a “_trial_”—meaning thereby a contest on matters of _fact_.
His language is, that “there are many legal procedures, besides _trial_
by jury, through which a party’s goods or person may be taken.” Now
Magna Carta says nothing of _trial_ by jury; but only of the _judgment_,
or sentence, of a jury. It is only _by inference_ that we come to the
conclusion that there must be a _trial_ by jury. Since the jury alone
can give the _judgment_, or _sentence_, we _infer_ that they must _try_
the case; because otherwise they would be incompetent, and would have no
moral right, to give _judgment_. They must, therefore, examine the
grounds, (both of law and fact,) or rather _try_ the grounds, of every
action whatsoever, whether it be decided on “default, demurrer,” or
otherwise, and render their judgment, or sentence, thereon, before any
judgment can be a legal one, on which “to take a party’s goods or
person.” In short, the principle of Magna Carta is, that no judgment can
be valid _against a party’s goods or person_, (not even a judgment for
costs,) except a judgment rendered by a jury. Of course a jury must try
every question, both of law and fact, that is involved in the rendering
of that judgment. They are to have the assistance and advice of the
judges, so far as they desire them; but the judgment itself must be
theirs, and not the judgment of the court.
As to “process of attachment for contempt,” it is of course lawful for a
judge, in his character of a peace officer, to issue a warrant for the
arrest of a man guilty of a contempt, as he would for the arrest of any
other offender, and hold him to bail, (or, in default of bail, commit
him to prison,) to answer for his offence before a jury. Or he may order
him into custody without a warrant when the offence is committed in the
judge’s presence. But there is no reason why a judge should have the
power of _punishing_ for contempt, any more than for any other offence.
And it is one of the most dangerous powers a judge can have, because it
gives him absolute authority in a court of justice, and enables him to
tyrannize as he pleases over parties, counsel, witnesses, and jurors. If
a judge have power to punish for contempt, and to determine for himself
what is a contempt, the whole administration of justice (or injustice,
if he choose to make it so) is in his hands. And all the rights of
jurors, witnesses, counsel, and parties, are held subject to his
pleasure, and can be exercised only agreeably to his will. He can of
course control the entire proceedings in, and consequently the decision
of, every cause, by restraining and punishing every one, whether party,
counsel, witness, or juror, who presumes to offer anything contrary to
his pleasure.
This arbitrary power, which has been usurped and exercised by judges to
punish for contempt, has undoubtedly had much to do in subduing counsel
into those servile, obsequious, and cowardly habits, which so
universally prevail among them, and which have not only cost so many
clients their rights, but have also cost the people so many of their
liberties.
If any _summary_ punishment for contempt be ever necessary, (as it
probably is not,) beyond exclusion for the time being from the
court-room, (which should be done, not as a punishment, but for
self-protection, and the preservation of order,) the judgment for it
should be given by the jury, (where the trial is before a jury,) and not
by the court, for the jury, and not the court, are really the judges.
For the same reason, exclusion from the court-room should be ordered
only by the jury, in cases when the trial is before a jury, because
they, being the real judges and triers of the cause, are entitled, if
anybody, to the control of the court-room. In appeal courts, where no
juries sit, it may be necessary—not as a punishment, but for
self-protection, and the maintenance of order—that the court should
exercise the power of excluding a person, for the time being, from the
court-room; but there is no reason why they should proceed to sentence
him as a criminal, without his being tried by a jury.
If the people wish to have their rights respected and protected in
courts of justice, it is manifestly of the last importance that they
jealously guard the liberty of parties, counsel, witnesses, and jurors,
against all arbitrary power on the part of the court.
Certainly Mr. Hallam may very well say that “one may doubt whether these
(the several cases he has mentioned) were in contemplation of the
framers of Magna Carta”—that is, as exceptions to the rule requiring
that all judgments, that are to be enforced “_against a party’s goods or
person_,” be rendered by a jury.
Again, Mr. Hallam says, if the word _vel_ be rendered by _and_, “the
meaning will be, that no person shall be disseized, &c., _except upon a
lawful cause of action_.” This is true; but it does not follow that any
cause of action, founded on _statute only_, is therefore a “_lawful_
cause of action,” within the meaning of _legem terræ_, or the _Common
Law_. Within the meaning of the _legem terræ_ of Magna Carta, nothing
but a _common law_ cause of action is a “_lawful_” one.]
[Footnote 33: Hallam says, “It appears as if the ordeal were permitted
to persons already convicted by this verdict of a jury.”—_2 Middle
Ages_, 446, _note_.]
[^5]: 1 Hume, Appendix 2.
[^6]: Crabbe’s History of the English Law, 236.
[^7]: Coke says, “The king of England is armed with divers
councils, one whereof is called _commune concilium_, (the common
council,) and that is the court of parliament, and so it is _legally_
called in writs and judicial proceedings _commune concilium regni
Angliæ_, (the common council of the kingdom of England.) And another is
called _magnum concilium_, (great council;) this is sometimes applied to
the upper house of parliament, and sometimes, out of parliament time, to
the peers of the realm, lords of parliament, who are called _magnum
concilium regis_, (the great council of the king;) * * Thirdly, (as
every man knoweth,) the king hath a privy council for matters of state.
* * The fourth council of the king are his judges for law matters.”
_1 Coke’s Institutes, 110 a._
[^8]: The Great Charter of Henry III., (1216 and 1225,) confirmed
by Edward I., (1297,) makes no provision whatever for, or mention of, a
parliament, unless the provision, (Ch. 37,) that “Escuage, (a military
contribution,) from henceforth shall be taken like as it was wont to be
in the time of King Henry our grandfather,” mean that a parliament shall
be summoned for that purpose.
[^9]: The Magna Carta of John, (Ch. 17 and 18,) defines those who
were entitled to be summoned to parliament, to wit, “The Archbishops,
Bishops, Abbots, Earls, and Great Barons of the Realm, * * and all
others who hold of us _in chief_.” Those who held land of the king _in
chief_ included none below the rank of knights.
[^10]: The parliaments of that time were, doubtless, such as
Carlyle describes them, when he says, “The parliament was at first a
most simple assemblage, quite cognate to the situation; that Red
William, or whoever had taken on him the terrible task of being King of
England, was wont to invite, oftenest about Christmas time, his
subordinate Kinglets, Barons as he called them, to give him the pleasure
of their company for a week or two; there, in earnest conference all
morning, in freer talk over Christmas cheer all evening, in some big
royal hall of Westminster, Winchester, or wherever it might be, with log
fires, huge rounds of roast and boiled, not lacking malmsey and other
generous liquor, they took counsel concerning the arduous matters of the
kingdom.”
[^11]: Hume, Appendix 2.
[^12]: This point will be more fully established hereafter.
[^13]: It is plain that the king and all his partisans looked
upon the charter as utterly prostrating the king’s legislative supremacy
before the discretion of juries. When the schedule of liberties demanded
by the barons was shown to him, (of which the trial by jury was the most
important, because it was the only one that protected all the rest,)
“the king, falling into a violent passion, asked, _Why the barons did
not with these exactions demand his kingdom?_ * * _and with a solemn
oath protested, that he would never grant such liberties as would make
himself a slave_.” * * But afterwards, “seeing himself deserted, and
fearing they would seize his castles, he sent the Earl of Pembroke and
other faithful messengers to them, to let them know _he would grant them
the laws and liberties they desired_.” * * But after the charter had
been granted, “the king’s mercenary soldiers, desiring war more than
peace, were by their leaders continually whispering in his ears, _that
he was now no longer king, but the scorn of other princes; and that it
was more eligible to be no king, than such a one as he_.” * * He applied
“to the Pope, that he might by his apostolic authority make void what
the barons had done. * * At Rome he met with what success he could
desire, where all the transactions with the barons were fully
represented to the Pope, and the Charter of Liberties shown to him, in
writing; which, when he had carefully perused, he, with a furious look,
cried out, _What! Do the barons of England endeavor to dethrone a king,
who has taken upon him the Holy Cross, and is under the protection of
the Apostolic See; and would they force him to transfer the dominions of
the Roman Church to others? By St. Peter, this injury must not pass
unpunished._ Then debating the matter with the cardinals, he, by a
definitive sentence, damned and cassated forever the Charter of
Liberties, and sent the king a bull containing that sentence at
large.”—_Echard’s History of England_, p. 106-7.
These things show that the nature and effect of the charter were well
understood by the king and his friends; that they all agreed that he was
effectually stripped of power. _Yet the legislative power had not been
taken from him; but only the power to enforce his laws, unless juries
should freely consent to their enforcement._
[^14]: The laws were, at that time, all written in Latin.
[^15]: “No man shall be condemned at the king’s suit, either
before the king in his bench, where pleas are _coram rege_, (before the
king,) (and so are the words _nec super eum ibimus_, to be understood,)
nor before any other commissioner or judge whatsoever, and so are the
words _nec super eum mittemus_, to be understood, but by the judgment of
his peers, that is, equals, or according to the law of the land.”—_2
Coke’s Inst._, 46.
[^16]: Perhaps the assertion in the text should be made with this
qualification—that the words “_per legem terræ_,” (according to the law
of the land,) and the words “_per legale judicium parium suorum_,”
(according to the _legal_ judgment of his peers,) imply that the king,
before proceeding to any _executive_ action, will take notice of “the
law of the land,” and of the _legality_ of the judgment of the peers,
and will _execute_ upon the prisoner nothing except what the law of the
land authorizes, and no judgments of the peers, except _legal_ ones.
With this qualification, the assertion in the text is strictly
correct—that there is nothing in the whole chapter that grants to the
king, or his judges, any _judicial_ power at all. The chapter only
describes and _limits_ his _executive_ power.
[^17]: See Blackstone’s Law Tracts, page 294, Oxford Edition.
[^18]: These Articles of the Charter are given in Blackstone’s
collection of Charters, and are also printed with the _Statutes of the
Realm_. Also in Wilkins’ Laws of the Anglo-Saxons, p. 356.
[^19]: Lingard says, “The words, ‘_We will not destroy him, nor
will we go upon him, nor will we send upon him_,’ have been very
differently expounded by different legal authorities. Their real meaning
may be learned from John himself, who the next year promised by his
letters patent ... nec super eos _per vim vel per arma_ ibimus, nisi per
legem regni nostri, vel per judicium parium suorum in curia nostra, (nor
will we go upon them _by force or by arms_, unless by the law of our
kingdom, or the judgment of their peers in our court.) Pat. 16 Johan,
apud Drad. 11, app. no. 124. He had hitherto been in the habit of
_going_ with an armed force, or _sending_ an armed force on the lands,
and against the castles, of all whom he knew or suspected to be his
secret enemies, without observing any form of law.”—3 Lingard, 47
note.
[^20]: “_Judgment, judicium._ * * The sentence of the law,
pronounced by the court, upon the matter contained in the record.”—3
_Blackstone_, 395. _Jacob’s Law Dictionary. Tomlin’s do._
“_Judgment_ is the decision or sentence of the law, given by a court of
justice or other competent tribunal, as the result of the proceedings
instituted therein, for the redress of an injury.”—_Bouvier’s Law
Dict._
“_Judgment, judicium._ * * Sentence of a judge against a criminal. * *
Determination, decision in general.”—_Bailey’s Dict._
“_Judgment._ * * In a legal sense, a sentence or decision pronounced by
authority of a king, or other power, either by their own mouth, or by
that of their judges and officers, whom they appoint to administer
justice in their stead.”—_Chambers’ Dict._
“_Judgment._ * * In law, the sentence or doom pronounced in any case,
civil or criminal, by the judge or court by which it is
tried.”—_Webster’s Dict._
Sometimes the punishment itself is called _judicium_, _judgment_; or,
rather, it was at the time of Magna Carta. For example, in a statute
passed fifty-one years after Magna Carta, it was said that a baker, for
default in the weight of his bread, “debeat amerciari vel subire
_judicium_ pillorie;” that is, ought to be amerced, or suffer the
punishment, or judgment, of the pillory. Also that a brewer, for
“selling ale contrary to the assize,” “debeat amerciari, vel pati
_judicium_ tumbrelli”; that is, ought to be amerced, or suffer the
punishment, or judgment, of the tumbrel.—51 _Henry_ 3, _St._ 6. (1266.)
Also the “_Statutes of uncertain date_,” (but supposed to be prior to
Edward III., or 1326,) provide, in chapters 6, 7, and 10, for
“_judgment_ of the pillory.”—_See 1 Ruffhead’s Statutes_, 187, 188. 1
_Statutes of the Realm_, 203.
Blackstone, in his chapter “Of _Judgment_, and its Consequences,” says,
“_Judgment_ (unless any matter be offered in arrest thereof) follows
upon conviction; being the pronouncing of that punishment which is
expressly ordained by law.”—_Blackstone’s Analysis of the Laws of
England, Book 4, Ch. 29, Sec. 1. Blackstone’s Law Tracts_, 126.
Coke says, “_Judicium_ ... the judgment is the guide and direction of
the execution.” 3 _Inst._ 210.
[^21]: This precedent from Germany is good authority, because the
trial by jury was in use, in the northern nations of Europe generally,
long before Magna Carta, and probably from time immemorial; and the
Saxons and Normans were familiar with it before they settled in
England.
[^22]: _Beneficium_ was the legal name of an estate held by a
feudal tenure. See Spelman’s Glossary.
[^23]: _Contenement_ of a freeman was the means of living in the
condition of a freeman.
[^24]: _Waynage_ was a villein’s plough-tackle and carts.
[^25]: Tomlin says, “The ancient practice was, when any such fine
was imposed, to inquire by a jury _quantum inde regi dare valeat per
annum, salva sustentatione sua et uxoris et liberorum suorum_, (how much
is he able to give to the king per annum, saving his own maintenance,
and that of his wife and children). And since the disuse of such
inquest, it is never usual to assess a larger fine than a man is able to
pay, without touching the implements of his livelihood; but to inflict
corporal punishment, or a limited imprisonment, instead of such a fine
as might amount to imprisonment for life. And this is the reason why
fines in the king’s courts are frequently denominated ransoms, because
the penalty must otherwise fall upon a man’s person, unless it be
redeemed or ransomed by a pecuniary fine.”—_Tomlin’s Law Dict., word
Fine._
[^26]: Because juries were to fix the sentence, it must not be
supposed that the king was _obliged_ to carry the sentence into
execution; _but only that he could not go beyond the sentence_. He might
pardon, or he might acquit on grounds of law, notwithstanding the
sentence; but he could not punish beyond the extent of the sentence.
Magna Carta does not prescribe that the king _shall punish_ according to
the sentence of the peers; but only that he shall not punish _“unless
according to” that sentence_. He may acquit or pardon, notwithstanding
their sentence or judgment; but he cannot punish, except according to
their judgment.
[^27]: _The trial by battle_ was one in which the accused
challenged his accuser to single combat, and staked the question of his
guilt or innocence on the result of the duel. This trial was introduced
into England by the Normans, within one hundred and fifty years before
Magna Carta. It was not very often resorted to even by the Normans
themselves; probably never by the Anglo-Saxons, unless in their
controversies with the Normans. It was strongly discouraged by some of
the Norman princes, particularly by Henry II., by whom the trial by jury
was especially favored. It is probable that the trial by battle, so far
as it prevailed at all in England, was rather tolerated as a matter of
chivalry, than authorized as a matter of law. At any rate, it is not
likely that it was included in the “_legem terræ_” of Magna Carta,
although such duels have occasionally occurred since that time, and
have, by some, been supposed to be lawful. I apprehend that nothing can
be properly said to be a part of _lex terræ_, unless it can be shown
either to have been of Saxon origin, or to have been recognized by Magna
Carta.
_The trial by ordeal_ was of various kinds. In one ordeal the accused
was required to take hot iron in his hand; in another to walk blindfold
among red-hot ploughshares; in another to thrust his arm into boiling
water; in another to be thrown, with his hands and feet bound, into cold
water; in another to swallow the _morsel of execration_; in the
confidence that his guilt or innocence would be miraculously made known.
This mode of trial was nearly extinct at the time of Magna Carta, and it
is not likely that it was included in “_legem terræ_,” as that term is
used in that instrument. This idea is corroborated by the fact that the
trial by ordeal was specially prohibited only four years after Magna
Carta, “by act of Parliament in 3 Henry III., according to Sir Edward
Coke, or rather by an order of the king in council.”—_3 Blackstone_
345, _note_.
I apprehend that this trial was never forced upon accused persons, but
was only allowed to them, _as an appeal to God_, from the judgment of a
jury.[^33]
_The trial by compurgators_ was one in which, if the accused could bring
twelve of his neighbors, who would make oath that they believed him
innocent, he was held to be so. It is probable that this trial was
really the trial by jury, or was allowed as an appeal from a jury. It is
wholly improbable that two different modes of trial, so nearly
resembling each other as this and the trial by jury do, should prevail
at the same time, and among a rude people, whose judicial proceedings
would naturally be of the simplest kind. But if this trial really were
any other than the trial by jury, it must have been nearly or quite
extinct at the time of Magna Carta; and there is no probability that it
was included in “_legem terræ_.”
[^28]: Coke attempts to show that there is a distinction between
amercements and fines—admitting that amercements must be fixed by one’s
peers, but claiming that fines may be fixed by the government. (_2
Inst._ 27, _8 Coke’s Reports_ 38.) But there seems to have been no
ground whatever for supposing that any such distinction existed at the
time of Magna Carta. If there were any such distinction in the time of
Coke, it had doubtless grown up within the four centuries that had
elapsed since Magna Carta, and is to be set down as one of the
numberless inventions of government for getting rid of the restraints of
Magna Carta, and for taking men out of the protection of their peers,
and subjecting them to such punishments as the government chooses to
inflict.
The first statute of Westminster, passed sixty years after Magna Carta,
treats the fine and amercement as synonymous, as follows:
“Forasmuch as _the common fine and amercement_ of the whole county in
Eyre of the justices for false judgments, or for other trespass, is
unjustly assessed by sheriffs and baretors in the shires, * * it is
provided, and the king wills, that from henceforth such sums shall be
assessed before the justices in Eyre, afore their departure, _by the
oath of knights and other honest men_,” &c.—_3 Edward I., Ch._ 18.
(1275.)
And in many other statutes passed after Magna Carta, the terms _fine_
and _amercement_ seem to be used indifferently, in prescribing the
punishment for offences. As late as 1461, (246 years after Magna Carta,)
the statute _1 Edward IV., Ch._ 2, speaks of “_fines, ransoms, and
amerciaments_” as being levied upon criminals, as if they were the
common punishments of offences.
_St._ 2 and 3 _Philip and Mary, Ch._ 8, uses the terms, “_fines,
forfeitures, and amerciaments_” five times. (1555.)
_St. 5 Elizabeth, Ch._ 13, _Sec._ 10, uses the terms “_fines,
forfeitures, and amerciaments_.”
That amercements were fines, or pecuniary punishments, inflicted for
offences, is proved by the following statutes, (all supposed to have
been passed within one hundred and fifteen years after Magna Carta,)
which speak of amercements as a species of “_judgment_,” or punishment,
and as being inflicted for the same offences as other “judgments.”
Thus one statute declares that a baker, for default in the weight of his
bread, “ought to be _amerced_, or suffer the _judgment_ of the pillory;”
and that a brewer, for “selling ale contrary to the assize,” “ought to
be _amerced_, or suffer the _judgment_ of the tumbrel.”—_51 Henry III.,
St._ 6. (1266.)
Among the “_Statutes of Uncertain Date_,” but supposed to be prior to
Edward III., (1326,) are the following:
_Chap._ 6 provides that “if a brewer break the assize, (fixing the price
of ale,) the first, second, and third time, he shall be _amerced_; but
the fourth time he shall suffer _judgment_ of the pillory without
redemption.”
_Chap._ 7 provides that “a butcher that selleth swine’s flesh measled,
or flesh dead of the murrain, or that buyeth flesh of Jews, and selleth
the same unto Christians, after he shall be convict thereof, for the
first time he shall be grievously _amerced_; the second time he shall
suffer _judgment_ of the pillory; and the third time he shall be
imprisoned and make _fine_; and the fourth time he shall forswear the
town.”
_Chap. 10_, a statute against _forestalling_, provides that,
“He that is convict thereof, the first time shall be _amerced_, and
shall lose the thing so bought, and that according to the custom of the
town; he that is convicted the second time shall have _judgment_ of the
pillory; at the third time he shall be imprisoned and make _fine_; the
fourth time he shall abjure the town. And this _judgment_ shall be given
upon all manner of forestallers, and likewise upon them that have given
them counsel, help, or favor.”—_1 Ruffhead’s Statutes_, 187, 188. _1
Statutes of the Realm_, 203.
[^29]: 1 Hume, Appendix, 1.
[^30]: Blackstone says, “Our ancient Saxon laws nominally
punished theft with death, if above the value of twelve pence; but the
criminal was permitted to redeem his life by a pecuniary ransom, as
among their ancestors, the Germans, by a stated number of cattle. But in
the ninth year of Henry the First, (1109,) this power of redemption was
taken away, and all persons guilty of larceny above the value of twelve
pence were directed to be hanged, which law continues in force to this
day.”—_4 Blackstone_, 238.
I give this statement of Blackstone, because the latter clause may seem
to militate with the idea, which the former clause corroborates, viz.,
that at the time of Magna Carta, fines were the usual punishments of
offences. But I think there is no probability that a law so unreasonable
in itself, (unreasonable even after making all allowance for the
difference in the value of money,) and so contrary to immemorial custom,
could or did obtain any general or speedy acquiescence among a people
who cared little for the authority of kings.
Maddox, writing of the period from William the Conqueror to John, says:
“The amercements in criminal and common pleas, which were wont to be
imposed during this first period and afterwards, were of so many several
sorts, that it is not easy to place them under distinct heads. Let them,
for method’s sake, be reduced to the heads following: Amercements for or
by reason of murders and manslaughters, for misdemeanors, for
disseisins, for recreancy, for breach of assize, for defaults, for
non-appearance, for false judgment, and for not making suit, or hue and
cry. To them may be added miscellaneous amercements, for trespasses of
divers kinds.”—_1 Maddox’ History of the Exchequer_, 542.
[^31]: Coke, in his exposition of the words _legem terræ_, gives
quite in detail the principles of the common law governing _arrests_;
and takes it for granted that the words “_nisi per legem terræ_” are
applicable to arrests, as well as to the indictment, &c.—2 _Inst._,
51,52.
[^32]: I cite the above extract from Mr. Hallam solely for the
sake of his authority for rendering the word _vel_ by _and_; and not by
any means for the purpose of indorsing the opinion he suggests, that
_legem terræ_ authorized “judgments by default or demurrer,” _without
the intervention of a jury_. He seems to imagine that _lex terræ_, the
common law, at the time of Magna Carta, included everything, even to the
practice of courts, that is, _at this day_, called by the name of
_Common Law_; whereas much of what is _now_ called Common Law has grown
up, by usurpation, since the time of Magna Carta, in palpable violation
of the authority of that charter. He says, “Certainly there are many
legal procedures, besides _trial_ by jury, through which a party’s goods
or person may be taken.” Of course there are _now_ many such ways, in
which a party’s goods or person _are_ taken, besides by the judgment of
a jury; but the question is, whether such takings are not in violation
of Magna Carta.
He seems to think that, in cases of “judgment by default or demurrer,”
there is no need of a jury, and thence to infer that _legem terræ_ may
not have required a jury in those cases. But this opinion is founded on
the erroneous idea that juries are required only for determining
contested _facts_, and not for judging of the law. In case of default,
the plaintiff must present a _prima facie_ case before he is entitled to
a judgment; and Magna Carta, (supposing it to require a jury trial in
civil cases, as Mr. Hallam assumes that it does,) as much requires that
this _prima facie_ case, both law and fact, be made out to the
satisfaction of a jury, as it does that a contested case shall be.
As for a demurrer, the jury must try a demurrer (having the advice and
assistance of the court, of course) as much as any other matter of law
arising in a case.
Mr. Hallam evidently thinks there is no use for a jury, except where
there is a “_trial_”—meaning thereby a contest on matters of _fact_.
His language is, that “there are many legal procedures, besides _trial_
by jury, through which a party’s goods or person may be taken.” Now
Magna Carta says nothing of _trial_ by jury; but only of the _judgment_,
or sentence, of a jury. It is only _by inference_ that we come to the
conclusion that there must be a _trial_ by jury. Since the jury alone
can give the _judgment_, or _sentence_, we _infer_ that they must _try_
the case; because otherwise they would be incompetent, and would have no
moral right, to give _judgment_. They must, therefore, examine the
grounds, (both of law and fact,) or rather _try_ the grounds, of every
action whatsoever, whether it be decided on “default, demurrer,” or
otherwise, and render their judgment, or sentence, thereon, before any
judgment can be a legal one, on which “to take a party’s goods or
person.” In short, the principle of Magna Carta is, that no judgment can
be valid _against a party’s goods or person_, (not even a judgment for
costs,) except a judgment rendered by a jury. Of course a jury must try
every question, both of law and fact, that is involved in the rendering
of that judgment. They are to have the assistance and advice of the
judges, so far as they desire them; but the judgment itself must be
theirs, and not the judgment of the court.
As to “process of attachment for contempt,” it is of course lawful for a
judge, in his character of a peace officer, to issue a warrant for the
arrest of a man guilty of a contempt, as he would for the arrest of any
other offender, and hold him to bail, (or, in default of bail, commit
him to prison,) to answer for his offence before a jury. Or he may order
him into custody without a warrant when the offence is committed in the
judge’s presence. But there is no reason why a judge should have the
power of _punishing_ for contempt, any more than for any other offence.
And it is one of the most dangerous powers a judge can have, because it
gives him absolute authority in a court of justice, and enables him to
tyrannize as he pleases over parties, counsel, witnesses, and jurors. If
a judge have power to punish for contempt, and to determine for himself
what is a contempt, the whole administration of justice (or injustice,
if he choose to make it so) is in his hands. And all the rights of
jurors, witnesses, counsel, and parties, are held subject to his
pleasure, and can be exercised only agreeably to his will. He can of
course control the entire proceedings in, and consequently the decision
of, every cause, by restraining and punishing every one, whether party,
counsel, witness, or juror, who presumes to offer anything contrary to
his pleasure.
This arbitrary power, which has been usurped and exercised by judges to
punish for contempt, has undoubtedly had much to do in subduing counsel
into those servile, obsequious, and cowardly habits, which so
universally prevail among them, and which have not only cost so many
clients their rights, but have also cost the people so many of their
liberties.
If any _summary_ punishment for contempt be ever necessary, (as it
probably is not,) beyond exclusion for the time being from the
court-room, (which should be done, not as a punishment, but for
self-protection, and the preservation of order,) the judgment for it
should be given by the jury, (where the trial is before a jury,) and not
by the court, for the jury, and not the court, are really the judges.
For the same reason, exclusion from the court-room should be ordered
only by the jury, in cases when the trial is before a jury, because
they, being the real judges and triers of the cause, are entitled, if
anybody, to the control of the court-room. In appeal courts, where no
juries sit, it may be necessary—not as a punishment, but for
self-protection, and the maintenance of order—that the court should
exercise the power of excluding a person, for the time being, from the
court-room; but there is no reason why they should proceed to sentence
him as a criminal, without his being tried by a jury.
If the people wish to have their rights respected and protected in
courts of justice, it is manifestly of the last importance that they
jealously guard the liberty of parties, counsel, witnesses, and jurors,
against all arbitrary power on the part of the court.
Certainly Mr. Hallam may very well say that “one may doubt whether these
(the several cases he has mentioned) were in contemplation of the
framers of Magna Carta”—that is, as exceptions to the rule requiring
that all judgments, that are to be enforced “_against a party’s goods or
person_,” be rendered by a jury.
Again, Mr. Hallam says, if the word _vel_ be rendered by _and_, “the
meaning will be, that no person shall be disseized, &c., _except upon a
lawful cause of action_.” This is true; but it does not follow that any
cause of action, founded on _statute only_, is therefore a “_lawful_
cause of action,” within the meaning of _legem terræ_, or the _Common
Law_. Within the meaning of the _legem terræ_ of Magna Carta, nothing
but a _common law_ cause of action is a “_lawful_” one.
[^33]: Hallam says, “It appears as if the ordeal were permitted
to persons already convicted by this verdict of a jury.”—_2 Middle
Ages_, 446, _note_.

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@ -391,167 +391,167 @@ obligation to do either. And this statute is only one example of the
numberless contrivances and usurpations which have been resorted to, for
the purpose of destroying the original and genuine trial by jury.
[Footnote 68: _Marches_, the limits, or boundaries, between England and
Wales.]
[^68]: _Marches_, the limits, or boundaries, between England and
Wales.
[Footnote 69: That the kings would have had no scruples to enact laws
for the special purpose of plundering the people, by means of the
judgments of juries, if they could have got juries to acknowledge the
authority of their laws, is evident from the audacity with which they
plundered them, without any judgments of juries to authorize them.
[^69]: That the kings would have had no scruples to enact laws
for the special purpose of plundering the people, by means of the
judgments of juries, if they could have got juries to acknowledge the
authority of their laws, is evident from the audacity with which they
plundered them, without any judgments of juries to authorize them.
It is not necessary to occupy space here to give details as to these
robberies; but only some evidence of the general fact.
> Hallam says, that “For the first three reigns (of the Norman kings) *
> * the intolerable exactions of tribute, the rapine of purveyance, the
> iniquity of royal courts, are continually in the mouths of the
> historians. ‘God sees the wretched people,’ says the Saxon
> Chronicler, ‘most unjustly oppressed; first they are despoiled of
> their possessions, and then butchered.’ This was a grievous year
> (1124). Whoever had any property, lost it by heavy taxes and unjust
> decrees.”—_2 Middle Ages_, 435-6.
> “In the succeeding reign of _John_, all the rapacious exactions usual
> to these Norman kings were not only redoubled, but mingled with
> outrages of tyranny still more intolerable. * *
> “In 1207 John took a seventh of the movables of lay and spiritual
> persons, all murmuring, but none daring to speak against
> it.”—_Ditto_, 446.
In Hume’s account of the extortions of those times, the following
paragraph occurs:
> “But the most barefaced acts of tyranny and oppression were practised
> against the Jews, who were entirely out of the protection of the law,
> and were abandoned to the immeasurable rapacity of the king and his
> ministers. Besides many other indignities, to which they were
> continually exposed, it appears that they were once all thrown into
> prison, and the sum of 66,000 marks exacted for their liberty. At
> another time, Isaac, the Jew, paid alone 5100 marks; Brun, 3000
> marks; Jurnet, 2000; Bennet, 500. At another, Licorica, widow of
> David, the Jew of Oxford, was required to pay 6000 marks.”—_Hume’s
> Hist. Eng., Appendix_ 2.
Further accounts of the extortions and oppressions of the kings may be
found in Hume’s History, Appendix 2, and in Hallam’s Middle Ages, vol.
2, p. 435 to 446.
By Magna Carta John bound himself to make restitution for some of the
spoliations he had committed upon individuals “_without the legal
judgment of their peers_.”—_See Magna Carta of John_, ch. 60, 61, 65
and 66.
One of the great charges, on account of which the nation rose against
John, was, that he plundered individuals of their property, “_without
legal judgment of their peers_.” Now it was evidently very weak and
short-sighted in John to expose himself to such charges, _if his laws
were really obligatory upon the peers_; because, in that case, he could
have enacted any laws that were necessary for his purpose, and then, by
civil suits, have brought the cases before juries for their “judgment,”
and thus have accomplished all his robberies in a perfectly legal
manner.
There would evidently have been no sense in these complaints, that he
deprived men of their property “_without legal judgment of their
peers_,” if his laws had been binding upon the peers; because he could
then have made the same spoliations as well with the judgment of the
peers as without it. Taking the judgment of the peers in the matter,
would have been only a ridiculous and useless formality, if they were to
exercise no discretion or conscience of their own, independently of the
laws of the king.
It may here be mentioned, in passing, that the same would be true in
criminal matters, if the king’s laws were obligatory upon juries.
As an illustration of what tyranny the kings would sometimes practise,
Hume says:
> “It appears from the Great Charter itself, that not only John, a
> tyrannical prince, and Richard, a violent one, but their father
> Henry, under whose reign the prevalence of gross abuses is the least
> to be suspected, were accustomed, from their sole authority, without
> process of law, to imprison, banish, and attaint the freemen of their
> kingdom.”—_Hume, Appendix_ 2.
The provision, also, in the 64th chapter of Magna Carta, that “all
unjust and illegal fines, and all amercements, _imposed unjustly, and
contrary to the Law of the Land, shall be entirely forgiven_,” &c.; and
the provision, in chapter 61, that the king “will cause full justice to
be administered” in regard to “all those things, of which any person
has, without legal judgment of his peers, been dispossessed or deprived,
either by King Henry, our father, or our brother, King Richard,”
indicate the tyrannical practices that prevailed.
> We are told also that John himself “had dispossessed several great
> men without any judgment of their peers, condemned others to cruel
> deaths, * * insomuch that his tyrannical will stood instead of a
> law.”—_Echard’s History of England_, 106.
Now all these things were very unnecessary and foolish, if his laws were
binding upon juries; because, in that case, he could have procured the
conviction of these men in a legal manner, and thus have saved the
necessity of such usurpation. In short, if the laws of the king had been
binding upon juries, there is no robbery, vengeance, or oppression,
which he could not have accomplished through the judgments of juries.
This consideration is sufficient, of itself, to prove that the laws of
the king were of no authority over a jury, in either civil or criminal
cases, unless the juries regarded the laws as just in themselves.
It is not necessary to occupy space here to give details as to these
robberies; but only some evidence of the general fact.
[^70]: By the Magna Carta of Henry III. this is changed to once a
year.
> Hallam says, that “For the first three reigns (of the Norman kings) *
> * the intolerable exactions of tribute, the rapine of purveyance, the
> iniquity of royal courts, are continually in the mouths of the
> historians. ‘God sees the wretched people,’ says the Saxon
> Chronicler, ‘most unjustly oppressed; first they are despoiled of
> their possessions, and then butchered.’ This was a grievous year
> (1124). Whoever had any property, lost it by heavy taxes and unjust
> decrees.”—_2 Middle Ages_, 435-6.
[^71]: From the provision of Magna Carta, cited in the text, it
must be inferred that there can be no legal trial by jury, in civil
cases, if only the king’s justices preside; that, to make the trial
legal, there must be other persons, chosen by the people, to sit with
them; the object being to prevent the jury’s being deceived by the
justices. I think we must also infer that the king’s justices could sit
only in the three actions specially mentioned. We cannot go beyond the
letter of Magna Carta, in making innovations upon the common law, which
required all presiding officers in jury trials to be elected by the
people.
> “In the succeeding reign of _John_, all the rapacious exactions usual
> to these Norman kings were not only redoubled, but mingled with
> outrages of tyranny still more intolerable. * *
> “In 1207 John took a seventh of the movables of lay and spiritual
> persons, all murmuring, but none daring to speak against
> it.”—_Ditto_, 446.
In Hume’s account of the extortions of those times, the following
paragraph occurs:
> “But the most barefaced acts of tyranny and oppression were practised
> against the Jews, who were entirely out of the protection of the law,
> and were abandoned to the immeasurable rapacity of the king and his
> ministers. Besides many other indignities, to which they were
> continually exposed, it appears that they were once all thrown into
> prison, and the sum of 66,000 marks exacted for their liberty. At
> another time, Isaac, the Jew, paid alone 5100 marks; Brun, 3000
> marks; Jurnet, 2000; Bennet, 500. At another, Licorica, widow of
> David, the Jew of Oxford, was required to pay 6000 marks.”—_Hume’s
> Hist. Eng., Appendix_ 2.
Further accounts of the extortions and oppressions of the kings may be
found in Hume’s History, Appendix 2, and in Hallam’s Middle Ages, vol.
2, p. 435 to 446.
By Magna Carta John bound himself to make restitution for some of the
spoliations he had committed upon individuals “_without the legal
judgment of their peers_.”—_See Magna Carta of John_, ch. 60, 61, 65
and 66.
One of the great charges, on account of which the nation rose against
John, was, that he plundered individuals of their property, “_without
legal judgment of their peers_.” Now it was evidently very weak and
short-sighted in John to expose himself to such charges, _if his laws
were really obligatory upon the peers_; because, in that case, he could
have enacted any laws that were necessary for his purpose, and then, by
civil suits, have brought the cases before juries for their “judgment,”
and thus have accomplished all his robberies in a perfectly legal
manner.
There would evidently have been no sense in these complaints, that he
deprived men of their property “_without legal judgment of their
peers_,” if his laws had been binding upon the peers; because he could
then have made the same spoliations as well with the judgment of the
peers as without it. Taking the judgment of the peers in the matter,
would have been only a ridiculous and useless formality, if they were to
exercise no discretion or conscience of their own, independently of the
laws of the king.
It may here be mentioned, in passing, that the same would be true in
criminal matters, if the king’s laws were obligatory upon juries.
As an illustration of what tyranny the kings would sometimes practise,
Hume says:
> “It appears from the Great Charter itself, that not only John, a
> tyrannical prince, and Richard, a violent one, but their father
> Henry, under whose reign the prevalence of gross abuses is the least
> to be suspected, were accustomed, from their sole authority, without
> process of law, to imprison, banish, and attaint the freemen of their
> kingdom.”—_Hume, Appendix_ 2.
The provision, also, in the 64th chapter of Magna Carta, that “all
unjust and illegal fines, and all amercements, _imposed unjustly, and
contrary to the Law of the Land, shall be entirely forgiven_,” &c.; and
the provision, in chapter 61, that the king “will cause full justice to
be administered” in regard to “all those things, of which any person
has, without legal judgment of his peers, been dispossessed or deprived,
either by King Henry, our father, or our brother, King Richard,”
indicate the tyrannical practices that prevailed.
> We are told also that John himself “had dispossessed several great
> men without any judgment of their peers, condemned others to cruel
> deaths, * * insomuch that his tyrannical will stood instead of a
> law.”—_Echard’s History of England_, 106.
Now all these things were very unnecessary and foolish, if his laws were
binding upon juries; because, in that case, he could have procured the
conviction of these men in a legal manner, and thus have saved the
necessity of such usurpation. In short, if the laws of the king had been
binding upon juries, there is no robbery, vengeance, or oppression,
which he could not have accomplished through the judgments of juries.
This consideration is sufficient, of itself, to prove that the laws of
the king were of no authority over a jury, in either civil or criminal
cases, unless the juries regarded the laws as just in themselves.]
[Footnote 70: By the Magna Carta of Henry III. this is changed to once a
year.]
[Footnote 71: From the provision of Magna Carta, cited in the text, it
must be inferred that there can be no legal trial by jury, in civil
cases, if only the king’s justices preside; that, to make the trial
legal, there must be other persons, chosen by the people, to sit with
them; the object being to prevent the jury’s being deceived by the
justices. I think we must also infer that the king’s justices could sit
only in the three actions specially mentioned. We cannot go beyond the
letter of Magna Carta, in making innovations upon the common law, which
required all presiding officers in jury trials to be elected by the
people.]
[Footnote 72: “The earls, sheriffs, and head-boroughs were annually
elected in the full folcmote, (people’s meeting).”—_Introduction to
Gilbert’s History of the Common Pleas_, p. 2, _note_.
“It was the especial province of the earldomen or earl to attend the
shyre-meeting, (the county court,) twice a year, and there officiate as
the county judge in expounding the secular laws, as appears by the fifth
of Edgar’s laws.”—_Same_, p. 2, _note_.
“Every ward had its proper alderman, who was _chosen_, and not imposed
by the prince.”—_Same_, p. 4, _text_.
“As the aldermen, or earls, were always _chosen_” (by the people) “from
among the greatest thanes, who in those times were generally more
addicted to arms than to letters, they were but ill-qualified for the
administration of justice, and performing the civil duties of their
office.”—_3 Henry’s History of Great Britain_, 343.
“But none of these thanes were annually elected in the full folcmote,
(people’s meeting,) _as the earls, sheriffs, and head-boroughs were_;
nor did King Alfred (as this author suggests) deprive the people of the
election of those last mentioned magistrates and nobles, much less did
he appoint them himself.”—_Introd. to Gilbert’s Hist. Com. Pleas_, p.
2, _note_.
“The sheriff was usually not appointed by the lord, but elected by the
freeholders of the district.”—_Political Dictionary_, word _Sheriff_.
“Among the most remarkable of the Saxon laws we may reckon * * the
election of their magistrates by the people, originally even that of
their kings, till dear-bought experience evinced the convenience and
necessity of establishing an hereditary succession to the crown. But
that (the election) of all subordinate magistrates, their military
officers or heretochs, their sheriffs, their conservators of the peace,
their coroners, their portreeves, (since changed into mayors and
bailiffs,) and even their tithing-men and borsholders at the last,
continued, some, till the Norman conquest, others for two centuries
after, and some remain to this day.”—_4 Blackstone_, 413.
“The election of sheriffs was left to the people, _according to ancient
usage_.”—_St. West._ 1, c. 27.—_Crabbe’s History of English Law_,
181.]
[^72]: “The earls, sheriffs, and head-boroughs were annually
elected in the full folcmote, (people’s meeting).”—_Introduction to
Gilbert’s History of the Common Pleas_, p. 2, _note_.
“It was the especial province of the earldomen or earl to attend the
shyre-meeting, (the county court,) twice a year, and there officiate as
the county judge in expounding the secular laws, as appears by the fifth
of Edgar’s laws.”—_Same_, p. 2, _note_.
“Every ward had its proper alderman, who was _chosen_, and not imposed
by the prince.”—_Same_, p. 4, _text_.
“As the aldermen, or earls, were always _chosen_” (by the people) “from
among the greatest thanes, who in those times were generally more
addicted to arms than to letters, they were but ill-qualified for the
administration of justice, and performing the civil duties of their
office.”—_3 Henry’s History of Great Britain_, 343.
“But none of these thanes were annually elected in the full folcmote,
(people’s meeting,) _as the earls, sheriffs, and head-boroughs were_;
nor did King Alfred (as this author suggests) deprive the people of the
election of those last mentioned magistrates and nobles, much less did
he appoint them himself.”—_Introd. to Gilbert’s Hist. Com. Pleas_, p.
2, _note_.
“The sheriff was usually not appointed by the lord, but elected by the
freeholders of the district.”—_Political Dictionary_, word _Sheriff_.
“Among the most remarkable of the Saxon laws we may reckon * * the
election of their magistrates by the people, originally even that of
their kings, till dear-bought experience evinced the convenience and
necessity of establishing an hereditary succession to the crown. But
that (the election) of all subordinate magistrates, their military
officers or heretochs, their sheriffs, their conservators of the peace,
their coroners, their portreeves, (since changed into mayors and
bailiffs,) and even their tithing-men and borsholders at the last,
continued, some, till the Norman conquest, others for two centuries
after, and some remain to this day.”—_4 Blackstone_, 413.
“The election of sheriffs was left to the people, _according to ancient
usage_.”—_St. West._ 1, c. 27.—_Crabbe’s History of English Law_,
181.

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@ -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
cause whatever, the remedy is by appeal, and new trial.
[Footnote 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
for weighing such evidence as they permit them to hear,—they of
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.]
[^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
for weighing such evidence as they permit them to hear,—they of
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.
[Footnote 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
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.]
[^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
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.
[Footnote 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
agreed. Government, therefore, must be kept within these limits, or it
is no longer a voluntary association of all who contribute to its
support, but a mere tyranny established by a part over the rest.
[^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
agreed. Government, therefore, must be kept within these limits, or it
is no longer a voluntary association of all who contribute to its
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
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.
[^76]: Jones on Bailments, 133.
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.]
[^77]: Kent, describing the difficulty of construing the written
law, says:
“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.]
[Footnote 77: Kent, describing the difficulty of construing the written
law, says:
“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 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.]
[^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.

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@ -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
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,
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_.”]
[^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_.”
[Footnote 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.]
[^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.
[Footnote 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.”
[^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.”
> “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
> 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.)
[^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.
> 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.)
[^84]: _Lingard_ says: “These compurgators or jurors * * were
sometimes * * _drawn by lot_.”—_1 Lingard’s History of England_, p.
300.
A statute passed in 1494, in regard to jurors in the city of London,
enacts:
[^85]: Chapter 4, p. 120, note.
> “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.)]
[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.]
[^86]: A mark was thirteen shillings and four pence.

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@ -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
as a weapon to compel men into a surrender of their rights.
[Footnote 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.]
[^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.
[Footnote 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.]
[^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.
[Footnote 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.]
[^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.
[Footnote 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
part of governments and of private persons, shows that their importance
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
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
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
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
be very likely to do the latter, thus defeating the whole object of the
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.]
[^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
part of governments and of private persons, shows that their importance
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
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
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
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
be very likely to do the latter, thus defeating the whole object of the
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.

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@ -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
doubt that he knew that he was committing a crime.[^104]
[Footnote 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
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
of the most obvious wants of nature? In reason, a man’s _legal_
competency to make _binding_ contracts, in any and every case whatever,
depends wholly upon his _mental_ capacity to make _reasonable_ contracts
in each particular case. It of course requires more capacity to make a
reasonable contract in some cases than in others. It requires, for
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
capacity to make a reasonable contract, in any particular case, is, in
reason, the only legal criterion of the legal competency to make a
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
entitled to some consideration as _evidence of capacity_.
[^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
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
of the most obvious wants of nature? In reason, a man’s _legal_
competency to make _binding_ contracts, in any and every case whatever,
depends wholly upon his _mental_ capacity to make _reasonable_ contracts
in each particular case. It of course requires more capacity to make a
reasonable contract in some cases than in others. It requires, for
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
capacity to make a reasonable contract, in any particular case, is, in
reason, the only legal criterion of the legal competency to make a
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
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,
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.
[^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.
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.
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.]
[Footnote 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.
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.]
[^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.

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@ -469,159 +469,159 @@ 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
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_.]
[^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_.
[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
the charter “acts of parliament,” instead of acts of the king alone.
This needs explanation.
[^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.
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
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.
[^110]: Under the head of “_John._”
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.
[^111]: _4 Blackstone_, 349-50.
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.
[^112]: _3 Blackstone_, 379.
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.
[^113]: _Hume_, ch. 2.
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.
[^114]: Page 203, 5th edition, 1721.
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.
[^115]: St. 1 _William and Mary_, ch. 6, (1688.)
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.]
[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.]
[^116]: 4 _Inst._, 36.

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@ -564,5 +564,5 @@ natural justice, instead of being, as it now is, a great battle, in
which avarice and ambition are constantly fighting for and obtaining
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.

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@ -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
should be necessary.
[Footnote 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
resisting the collection of taxes to which they had never consented.
Otherwise the jurors would authorize the government to tax themselves
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
of no taxation without consent. 2. On the other hand, the principle of
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
a government under which trial by the country was not secured. Thus
these two principles mutually sustain each other.
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
broken down, the principle of no taxation without consent would fall
with it, because the government would then be _able_ to tax the people
without their consent, inasmuch as the legal tribunals would be mere
tools of the government, and would enforce such taxation, and punish men
for resisting such taxation, as the government ordered. 2. On the other
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
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.]
[^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
resisting the collection of taxes to which they had never consented.
Otherwise the jurors would authorize the government to tax themselves
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
of no taxation without consent. 2. On the other hand, the principle of
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
a government under which trial by the country was not secured. Thus
these two principles mutually sustain each other.
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
broken down, the principle of no taxation without consent would fall
with it, because the government would then be _able_ to tax the people
without their consent, inasmuch as the legal tribunals would be mere
tools of the government, and would enforce such taxation, and punish men
for resisting such taxation, as the government ordered. 2. On the other
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
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.