trial-by-jury-book/edited/02.markdown

# THE TRIAL BY JURY, AS DEFINED BY MAGNA CARTA


That the trial by jury is all that has been claimed for it in the
preceding chapter, is proved both by the history and the language of the
Great Charter of English Liberties, to which we are to look for a true
definition of the trial by jury, and of which the guaranty for that
trial is the vital, and most memorable, part.


## The History of Magna Carta

In order to judge of the object and meaning of that chapter of Magna
Carta which secures the trial by jury, it is to be borne in mind that,
at the time of Magna Carta, the king (with exceptions immaterial to this
discussion, but which will appear hereafter) was, constitutionally, the
entire government; the sole _legislative_, _judicial_, and executive
power of the nation. The executive and judicial officers were merely his
servants, appointed by him, and removable at his pleasure. In addition
to this, “the king himself often sat in his court, which always attended
his person. He there heard causes, and pronounced judgment; and though
he was assisted by the advice of other members, it is not to be imagined
that a decision could be obtained contrary to his inclination or
opinion.”[^5] Judges were in those days, and afterwards, such abject
servants of the king, that “we find that King Edward I. (1272 to 1307)
fined and imprisoned his judges, in the same manner as Alfred the Great,
among the Saxons, had done before him, by the sole exercise of his
authority.”[^6]

Parliament, so far as there was a parliament, was a mere _council_ of
the king.[^7] It assembled only at the pleasure of the king; sat only
during his pleasure; and when sitting had no power, so far as _general_
legislation was concerned, beyond that of simply _advising_ the king.
The only legislation to which their assent was constitutionally
necessary, was demands for money and military services for
_extraordinary_ occasions. Even Magna Carta itself makes no provisions
whatever for any parliaments, except when the king should want means to
carry on war, or to meet some other _extraordinary_ necessity.[^8] He had
no need of parliaments to raise taxes for the _ordinary_ purposes of
government; for his revenues from the rents of the crown lands and other
sources, were ample for all except extraordinary occasions. Parliaments,
too, when assembled, consisted only of bishops, barons, and other great
men of the kingdom, unless the king chose to invite others.[^9] There was
no House of Commons at that time, and the people had no right to be
heard, unless as petitioners.[^10]

Even when laws were made at the time of a parliament, they were made in
the name of the king alone. Sometimes it was inserted in the laws, that
they were made with the _consent_ or _advice_ of the bishops, barons,
and others assembled; but often this was omitted. Their consent or
advice was evidently a matter of no legal importance to the enactment or
validity of the laws, but only inserted, when inserted at all, with a
view of obtaining a more willing submission to them on the part of the
people. The style of enactment generally was, either “_The King wills
and commands_,” or some other form significant of the sole legislative
authority of the king. The king could pass laws at any time when it
pleased him. The presence of a parliament was wholly unnecessary. Hume
says, “It is asserted by Sir Harry Spelman, as an undoubted fact, that,
during the reigns of the Norman princes, every order of the king, issued
with the consent of his privy council, had the full force of law.”[^11]
And other authorities abundantly corroborate this assertion.[^12]

The king was, therefore, constitutionally the government; and the only
legal limitation upon his power seems to have been simply the _Common
Law_, usually called “_the law of the land_,” which he was bound by oath
to maintain; (which oath had about the same practical value as similar
oaths have always had.) This “law of the land” seems not to have been
regarded at all by many of the kings, except so far as they found it
convenient to do so, or were constrained to observe it by the fear of
arousing resistance. But as all people are slow in making resistance,
oppression and usurpation often reached a great height; and, in the case
of John, they had become so intolerable as to enlist the nation almost
universally against him; and he was reduced to the necessity of
complying with any terms the barons saw fit to dictate to him.

It was under these circumstances, that the Great Charter of English
Liberties was granted. The barons of England, sustained by the common
people, having their king in their power, compelled him, as the price of
his throne, to pledge himself that he would punish no freeman for a
violation of any of his laws, unless with the consent of the peers—that
is, the equals—of the accused.

The question here arises, Whether the barons and people intended that
those peers (the jury) should be mere puppets in the hands of the king,
exercising no opinion of their own as to the intrinsic merits of the
accusations they should try, or the _justice_ of the laws they should be
called on to enforce? Whether those haughty and victorious barons, when
they had their tyrant king at their feet, gave back to him his throne,
with full power to enact any tyrannical laws he might please, reserving
only to a jury (“the country”) the contemptible and servile privilege of
ascertaining, (under the dictation of the king, or his judges, as to the
laws of evidence), the simple _fact_ whether those laws had been
transgressed? Was this the only restraint, which, when they had all
power in their hands, they placed upon the tyranny of a king, whose
oppressions they had risen in arms to resist? Was it to obtain such a
charter as that, that the whole nation had united, as it were, like one
man, against their king? Was it on such a charter that they intended to
rely, for all future time, for the security of their liberties? No. They
were engaged in no such senseless work as that. On the contrary, when
they required him to renounce forever the power to punish any freeman,
unless by the consent of his peers, they intended those peers should
judge of, and try, the whole case on its merits, independently of all
arbitrary legislation, or judicial authority, on the part of the king.
In this way they took the liberties of each individual—and thus the
liberties of the whole people—entirely out of the hands of the king,
and out of the power of his laws, and placed them in the keeping of the
people themselves. And this it was that made the trial by jury the
palladium of their liberties.

The trial by jury, be it observed, was the only real barrier interposed
by them against absolute despotism. Could this trial, then, have been
such an entire farce as it necessarily must have been, if the jury had
had no power to judge of the justice of the laws the people were
required to obey? Did it not rather imply that the jury were to judge
independently and fearlessly as to everything involved in the charge,
and especially as to its intrinsic justice, and thereon give their
decision, (unbiased by any legislation of the king,) whether the accused
might be punished? The reason of the thing, no less than the historical
celebrity of the events, as securing the liberties of the people, and
the veneration with which the trial by jury has continued to be
regarded, notwithstanding its essence and vitality have been almost
entirely extracted from it in practice, would settle the question, if
other evidences had left the matter in doubt.

Besides, if his laws were to be authoritative with the jury, why should
John indignantly refuse, as at first he did, to grant the charter, (and
finally grant it only when brought to the last extremity,) on the ground
that it deprived him of all power, and left him only the name of a king?
_He_ evidently understood that the juries were to veto his laws, and
paralyze his power, at discretion, by forming their own opinions as to
the true character of the offences they were to try, and the laws they
were to be called on to enforce; and that “_the king wills and
commands_” was to have no weight with them contrary to their own
judgments of what was intrinsically right.[^13]

The barons and people having obtained by the charter all the liberties
they had demanded of the king, it was further provided by the charter
itself that twenty-five barons should be appointed by the barons, out of
their number, to keep special vigilance in the kingdom to see that the
charter was observed, with authority to make war upon the king in case
of its violation. The king also, by the charter, so far absolved all the
people of the kingdom from their allegiance to him, as to authorize and
require them to swear to obey the twenty-five barons, in case they
should make war upon the king for infringement of the charter. It was
then thought by the barons and people, that something substantial had
been done for the security of their liberties.

This charter, in its most essential features, and without any abatement
as to the trial by jury, has since been confirmed more than thirty
times; and the people of England have always had a traditionary idea
that it was of some value as a guaranty against oppression. Yet that
idea has been an entire delusion, unless the jury have had the right to
judge of the justice of the laws they were called on to enforce.


## The Language of Magna Carta

The language of the Great Charter establishes the same point that is
established by its history, viz., that it is the right and duty of the
jury to judge of the justice of the laws.

The chapter guaranteeing the trial by jury is in these words:

> “Nullus liber homo capiatur, vel imprisonetur, aut disseisetur, aut
> utlagetur, aut exuletur, aut aliquo modo destruatur; nec super eum
> ibimus, nec super eum mittemus, nisi per legale judicium parium
> suorum, vel per legem terræ.”[^14]

The corresponding chapter in the Great Charter, granted by Henry III.,
(1225,) and confirmed by Edward I., (1297,) (which charter is now
considered the basis of the English laws and constitution,) is in nearly
the same words, as follows:

> “Nullus liber homo capiatur, vel imprisonetur, aut disseisetur de
> libero tenemento, vel libertatibus, vel liberis consuetudinibus suis,
> aut utlagetur, aut exuletur, aut aliquo modo destruatur, nec super
> eum ibimus, nec super eum mittemus, nisi per legale judicium parium
> suorum, vel per legem terræ.”

The most common translation of these words, at the present day, is as
follows:

> “No freeman shall be arrested, or imprisoned, or deprived of his
> freehold, or his liberties, or free customs, or outlawed, or exiled,
> or in any manner destroyed, _nor will we (the king) pass upon him,
> nor condemn him_, unless by the judgment of his peers, or the law of
> the land.”

> “_Nec super eum ibimus, nec super eum mittemus._”

There has been much confusion and doubt as to the true meaning of the
words, “_nec super eum ibimus, nec super eum mittemus_.” The more common
rendering has been, “_nor will we pass upon him, nor condemn him_.” But
some have translated them to mean, “_nor will we pass upon him, nor
commit him to prison_.” Coke gives still a different rendering, to the
effect that “No man shall be condemned at the king’s suit, either before
the king in his bench, nor before any other commissioner or judge
whatsoever.”[^15]

But all these translations are clearly erroneous. In the first place,
“_nor will we pass upon him_,”—meaning thereby to decide upon his guilt
or innocence _judicially_—is not a correct rendering of the words,
“_nec super eum ibimus_.” There is nothing whatever, in these latter
words, that indicates _judicial_ action or opinion at all. The words, in
their common signification, describe _physical_ action alone. And the
true translation of them, as will hereafter be seen, is, _“nor will we
proceed against him,” executively_.

In the second place, the rendering, “_nor will we condemn him_,” bears
little or no analogy to any common, or even uncommon, signification of
the words “_nec super eum mittemus_.” There is nothing in these latter
words that indicates _judicial_ action or decision. Their common
signification, like that of the words _nec super eum ibimus_, describes
_physical_ action alone. “_Nor will we send upon (or against) him_,”
would be the most obvious translation, and, as we shall hereafter see,
such is the true translation.

But although these words describe _physical_ action, on the part of the
king, as distinguished from judicial, they nevertheless do not mean, as
one of the translations has it, “_nor will we commit him to prison_;”
for that would be a mere repetition of what had been already declared by
the words “_nec imprisonetur_.” Besides, there is nothing about prisons
in the words “_nec super eum mittemus_;” nothing about sending _him_
anywhere; but only about sending (something or somebody) _upon_ him, or
_against_ him—that is, _executively_.

Coke’s rendering is, if possible, the most absurd and gratuitous of all.
What is there in the words, “_nec super eum mittemus_” that can be made
to mean “_nor shall he be condemned before any other commissioner or
judge whatsoever_?” Clearly there is nothing. The whole rendering is a
sheer fabrication. And the whole object of it is to give color for the
exercise of a _judicial_ power, by the king, or his judges, which is
nowhere given them.

Neither the words, “_nec super eum ibimus, nec super eum mittemus_,” nor
any other words in the whole chapter, authorize, provide for, describe,
or suggest, any _judicial_ action whatever, on the part either of the
king, or of his judges, or of anybody, _except the peers, or jury_.
There is nothing about the king’s _judges_ at all. And there is nothing
whatever, in the whole chapter, _so far as relates to the action of the
king_, that describes or suggests anything but _executive_ action.[^16]

But that all these translations are certainly erroneous, is proved by a
temporary charter, granted by John a short time previous to the Great
Charter, for the purpose of giving an opportunity for conference,
arbitration, and reconciliation between him and his barons. It was to
have force until the matters in controversy between them could be
submitted to the Pope, and to other persons to be chosen, some by the
king, and some by the barons. The words of the charter are as follows:

“Sciatis nos concessisse baronibus nostris qui contra nos sunt quod nec
eos nec homines suos capiemus, nec disseisiemus _nec super eos per vim
vel per arma ibimus_ nisi per legem regni nostri vel per judicium parium
suorum in curia nostra donec consideratio facta fuerit,” &c., &c.

That is, “Know that we have granted to our barons who are opposed to us,
that we will neither arrest them nor their men, nor disseize them, _nor
will we proceed against them by force or by arms_, unless by the law of
our kingdom, or by the judgment of their peers in our court, until
consideration shall be had,” &c., &c.

A copy of this charter is given in a note in Blackstone’s Introduction
to the Charters.[^17]

Mr. Christian speaks of this charter as settling the true meaning of the
corresponding clause of Magna Carta, on the principle that laws and
charters on the same subject are to be construed with reference to each
other. See _3 Christian’s Blackstone_, 41, _note_.

The true meaning of the words, _nec super eum ibimus, nec super eum
mittemus_, is also proved by the “_Articles of the Great Charter of
Liberties_,” demanded of the king by the barons, and agreed to by the
king, under seal, a few days before the date of the Charter, and from
which the Charter was framed.[^18] Here the words used are these:

> “Ne corpus liberi hominis capiatur nec imprisonetur nec disseisetur
> nec utlagetur nec exuletur nec aliquo modo destruatur _nec rex eat
> vel mittat super eum vi_ nisi per judicium parium suorum vel per
> legem terræ.”

> That is, “The body of a freeman shall not be arrested, nor
> imprisoned, nor disseized, nor outlawed, nor exiled, nor in any
> manner destroyed, _nor shall the king proceed or send (any one)
> against him_ WITH FORCE, unless by the judgment of his peers, or the
> law of the land.”

The true translation of the words _nec super eum ibimus, nec super eum
mittemus_, in Magna Carta, is thus made certain, as follows, “_nor will
we (the king) proceed against him, nor send (any one) against him_ WITH
FORCE OR ARMS.”[^19]

It is evident that the difference between the true and false
translations of the words, _nec super eum ibimus, nec super eum
mittemus_, is of the highest legal importance, inasmuch as the true
translation, _nor will we (the king) proceed against him, nor send (any
one) against him by force or arms_, represents the king only in an
_executive_ character, _carrying the judgment of the peers and “the law
of the land” into execution_; whereas the false translation, _nor will
we pass upon him, nor condemn him_, gives color for the exercise of a
_judicial_ power, on the part of the king, to which the king had no
right, but which, according to the true translation, belongs wholly to
the jury.

> “_Per legale judicium parium suorum._”

The foregoing interpretation is corroborated, (if it were not already
too plain to be susceptible of corroboration,) by the true
interpretation of the phrase “_per legale judicium parium suorum_.”

In giving this interpretation, I leave out, for the present, the word
_legale_, which will be defined afterwards.

The true meaning of the phrase, _per judicium parium suorum_, is,
_according to the sentence of his peers_. The word _judicium, judgment_,
has a technical meaning in the law, signifying the decree rendered in
the decision of a cause. In civil suits this decision is called a
_judgment_; in chancery proceedings it is called a _decree_; in criminal
actions it is called a _sentence_, or _judgment_, indifferently. Thus,
in a criminal suit, “a motion in arrest of _judgment_” means a motion in
arrest of _sentence_.[^20]

In cases of sentence, therefore, in criminal suits, the words _sentence_
and _judgment_ are synonymous terms. They are, to this day, commonly
used in law books as synonymous terms. And the phrase _per judicium
parium suorum_, therefore, implies that the jury are to fix the
sentence.

The word _per_ means _according to_. Otherwise there is no sense in the
phrase _per judicium parium suorum_. There would be no sense in saying
that a king might imprison, disseize, outlaw, exile, or otherwise punish
a man, or proceed against him, or send any one against him, _by force or
arms, by_ a judgment of his peers; but there is sense in saying that the
king may imprison, disseize, and punish a man, or proceed against him,
or send any one against him, by force or arms, _according to_ a
judgment, or _sentence_, of his peers; because in that case the king
would be merely carrying the sentence or judgment of the peers into
execution.

The word _per_, in the phrase “_per_ judicium parium suorum,” of course
means precisely what it does in the next phrase, “_per_ legem terræ;”
where it obviously means _according to_, and not _by_, as it is usually
translated. There would be no sense in saying that the king might
proceed against a man by force or arms, _by_ the law of the land; but
there is sense in saying that he may proceed against him, by force or
arms, _according to_ the law of the land; because the king would then be
acting only as an executive officer, carrying the law of the land into
execution. Indeed, the true meaning of the word _by_, as used in similar
cases now, always is _according to_; as, for example, when we say a
thing was done by the government, or by the executive, _by law_, we mean
only that it was done by them _according to law_; that is, that they
merely executed the law.

Or, if we say that the word _by_ signifies _by authority of_, the result
will still be the same; for nothing can be done _by authority of_ law,
except what the law itself authorizes or directs to be done; that is,
nothing can be done by authority of law, except simply to carry the law
itself into execution. So nothing could be done _by authority of_ the
sentence of the peers, or _by authority of_ “the law of the land,”
except what the sentence of the peers, or the law of the land,
themselves authorized or directed to be done; nothing, in short, but to
carry the sentence of the peers, or the law of the land, themselves into
execution.

Doing a thing _by_ law, or _according to_ law, is only carrying the law
into execution. And punishing a man _by_, or _according to_, the
sentence or judgment of his peers, is only carrying that sentence or
judgment into execution.

If these reasons could leave any doubt that the word _per_ is to be
translated _according to_, that doubt would be removed by the terms of
an antecedent guaranty for the trial by jury, granted by the Emperor
Conrad, of Germany,[^21] two hundred years before Magna Carta. Blackstone
cites it as follows:—(_3 Blackstone_, 350.)

“Nemo beneficium suum perdat, nisi _secundum_ consuetudinem antecessorum
nostrorum, et judicium parium suorum.” That is, No one shall lose his
estate,[^22] unless _according to_ (“_secundum_”) the custom (or law) of
our ancestors, and (_according to_) the sentence (or judgment) of his
peers.

The evidence is therefore conclusive that the phrase _per judicium
parium suorum_ means _according to the sentence of his peers_; thus
implying that the jury, and not the government, are to fix the sentence.

If any additional proof were wanted that juries were to fix the
sentence, it would be found in the following provisions of Magna Carta,
viz.:

> “A freeman shall not be amerced for a small crime, (_delicto_,) but
> according to the degree of the crime; and for a great crime in
> proportion to the magnitude of it, saving to him his
> _contenement_;[^23] and after the same manner a merchant, saving to
> him his merchandise. And a villein shall be amerced after the same
> manner, saving to him his waynage,[^24] if he fall under our mercy;
> _and none of the aforesaid amercements shall be imposed, (or
> assessed, ponatur,) but by the oath of honest men of the
> neighborhood. Earls and Barons shall not be amerced but by their
> peers_, and according to the degree of their crime.”[^25]

Pecuniary punishments were the most common punishments at that day, and
the foregoing provisions of Magna Carta show that the amount of those
punishments was to be fixed by the jury.

Fines went to the king, and were a source of revenue; and if the amounts
of the fines had been left to be fixed by the king, he would have had a
pecuniary temptation to impose unreasonable and oppressive ones. So,
also, in regard to other punishments than fines. If it were left to the
king to fix the punishment, he might often have motives to inflict cruel
and oppressive ones. As it was the object of the trial by jury to
protect the people against all possible oppression from the king, it was
necessary that the jury, and not the king, should fix the
punishments.[^26]

“_Legale._”

The word “_legale_,” in the phrase “_per legale judicium parium
suorum_,” doubtless means two things. 1. That the sentence must be given
in a legal manner; that is, by the legal number of jurors, legally
empanelled and sworn to try the cause; and that they give their judgment
or sentence after a legal trial, both in form and substance, has been
had. 2. That the sentence shall be for a legal cause or offence. If,
therefore, a jury should convict and sentence a man, either without
giving him a legal trial, or for an act that was not really and legally
criminal, the sentence itself would not be legal; and consequently this
clause forbids the king to carry such a sentence into execution; for the
clause guarantees that he will execute no judgment or sentence, except
it be _legale judicium_, a legal sentence. Whether a sentence be a legal
one, would have to be ascertained by the king or his judges, on appeal,
or might be judged of informally by the king himself.

The word “_legale_” clearly did not mean that the _judicium parium
suorum_ (judgment of his peers) should be a sentence which any law (of
the king) should _require_ the peers to pronounce; for in that case the
sentence would not be the sentence of the peers, but only the sentence
of the law, (that is, of the king); and the peers would be only a
mouthpiece of the law, (that is, of the king,) in uttering it.

> “_Per legem terræ._”

One other phrase remains to be explained, viz., “_per legem terræ_,”
“_by the law of the land_.”

All writers agree that this means the _common law_. Thus, Sir Matthew
Hale says:

> “The common law is sometimes called, by way of eminence, _lex terræ_,
> as in the statute of _Magna Carta_, chap. 29, where certainly the
> common law is principally intended by those words, _aut per legem
> terræ_; as appears by the exposition thereof in several subsequent
> statutes; and particularly in the statute of 28 Edward III., chap. 3,
> which is but an exposition and explanation of that statute. Sometimes
> it is called _lex Angliæ_, as in the statute of Merton, cap. 9,
> “_Nolumus leges Angliæ mutari_,” &c., (We will that the laws of
> England be not changed). Sometimes it is called _lex et consuetudo
> regni_ (the law and custom of the kingdom); as in all commissions of
> oyer and terminer; and in the statutes of 18 Edward I., cap.—, and
> _de quo warranto_, and divers others. But most commonly it is called
> the Common Law, or the Common Law of England; as in the statute
> _Articuli super Chartas_, cap. 15, in the statute 25 Edward III.,
> cap. 5, (4,) and infinite more records and statutes.”—1 _Hale’s
> History of the Common Law_, 128.

This common law, or “law of the land,” _the king was sworn to maintain_.
This fact is recognized by a statute made at Westminster, in 1346, by
Edward III., which commences in this manner:

> “Edward, by the Grace of God, &c., &c., to the Sheriff of Stafford,
> Greeting: Because that by divers complaints made to us, we have
> perceived that _the law of the land, which we by oath are bound to
> maintain_,” &c.—_St. 20 Edward III._

The foregoing authorities are cited to show to the unprofessional
reader, what is well known to the profession, that _legem terræ, the law
of the land_, mentioned in Magna Carta, was the common, ancient,
fundamental law of the land, which the kings were bound by oath to
observe; _and that it did not include any statutes or laws enacted by
the king himself, the legislative power of the nation_.

If the term _legem terræ_ had included laws enacted by the king himself,
the whole chapter of Magna Carta, now under discussion, would have
amounted to nothing as a protection to liberty; because it would have
imposed no restraint whatever upon the power of the king. The king could
make laws at any time, and such ones as he pleased. He could, therefore,
have done anything he pleased, _by the law of the land_, as well as in
any other way, if his own laws had been “_the law of the land_.” If his
own laws had been “the law of the land,” within the meaning of that term
as used in Magna Carta, this chapter of Magna Carta would have been
sheer nonsense, inasmuch as the whole purport of it would have been
simply that “no man shall be arrested, imprisoned, or deprived of his
freehold, or his liberties, or free customs, or outlawed, or exiled, or
in any manner destroyed (by the king); nor shall the king proceed
against him, nor send any one against him with force and arms, unless by
the judgment of his peers, _or unless the king shall please to do so_.”

This chapter of Magna Carta would, therefore, have imposed not the
slightest restraint upon the power of the king, or afforded the
slightest protection to the liberties of the people, if the laws of the
king had been embraced in the term _legem terræ_. But if _legem terræ_
was the common law, which the king was sworn to maintain, then a real
restriction was laid upon his power, and a real guaranty given to the
people for their liberties.

Such, then, being the meaning of _legem terræ_, the fact is established
that Magna Carta took an accused person entirely out of the hands of the
legislative power, that is, of the king; and placed him in the power and
under the protection of his peers, and the common law alone; that, in
short, Magna Carta suffered no man to be punished for violating any
enactment of the legislative power, unless the peers or equals of the
accused freely consented to it, or the common law authorized it; that
the legislative power, _of itself_, was wholly incompetent to _require_
the conviction or punishment of a man for any offence whatever.

_Whether Magna Carta allowed of any other trial than by jury._

The question here arises, whether “_legem terræ_” did not allow of some
other mode of trial than that by jury.

The answer is, that, at the time of Magna Carta, it is not probable,
(for the reasons given in the note,) that _legem terræ_ authorized, in
criminal cases, any other trial than the trial by jury; but, if it did,
it certainly authorized none but the trial by battle, the trial by
ordeal, and the trial by compurgators. These were the only modes of
trial, except by jury, that had been known in England, in criminal
cases, for some centuries previous to Magna Carta. All of them had
become nearly extinct at the time of Magna Carta, and it is not probable
that they were included in “_legem terræ_” as that term is used in that
instrument. But if they were included in it, they have now been long
obsolete, and were such as neither this nor any future age will ever
return to.[^27] For all practical purposes of the present day,
therefore, it may be asserted that Magna Carta allows no trial whatever
but trial by jury.

_Whether Magna Carta allowed sentence to be fixed otherwise than by the
jury._

Still another question arises on the words _legem terræ_, viz., whether,
in cases where the question of guilt was determined by the jury, the
amount of _punishment_ may not have been fixed by _legem terræ_, the
Common Law, instead of its being fixed by the jury.

I think we have no evidence whatever that, at the time of Magna Carta,
or indeed at any other time, _lex terræ_, the common law, fixed the
punishment in cases where the question of guilt was tried by a jury; or,
indeed, that it did in any other case. Doubtless certain punishments
were common and usual for certain offences; but I do not think it can be
shown that the _common law_, the _lex terræ_, which the king was sworn
to maintain, required any one specific punishment, or any precise amount
of punishment, for any one specific offence. If such a thing be claimed,
it must be shown, for it cannot be presumed. In fact, the contrary must
be presumed, because, in the nature of things, the amount of punishment
proper to be inflicted in any particular case, is a matter requiring the
exercise of discretion at the time, in order to adapt it to the moral
quality of the offence, which is different in each case, varying with
the mental and moral constitutions of the offenders, and the
circumstances of temptation or provocation. And Magna Carta recognizes
this principle distinctly, as has before been shown, in providing that
freemen, merchants, and villeins, “shall not be amerced for a small
crime, but according to the degree of the crime; and for a great crime
in proportion to the magnitude of it;” and that “none of the aforesaid
amercements shall be imposed (or assessed) but by the oaths of honest
men of the neighborhood;” and that “earls and barons shall not be
amerced but by their peers, and according to the quality of the
offence.”

All this implies that the moral quality of the offence was to be judged
of at the trial, and that the punishment was to be fixed by the
discretion of the peers, or jury, and not by any such unvarying rule as
a common law rule would be.

I think, therefore, it must be conceded that, in all cases, tried by a
jury, Magna Carta intended that the punishment should be fixed by the
jury, and not by the common law, for these several reasons.

1. It is uncertain whether the _common law_ fixed the punishment of any
offence whatever.

2. The words “_per judicium parium suorum_,” _according to the sentence
of his peers_, imply that the jury fixed the sentence in _some_ cases
tried by them; and if they fixed the sentence in some cases, it must be
presumed they did in all, unless the contrary be clearly shown.

3. The express provisions of Magna Carta, before adverted to, that no
amercements, or fines, should be imposed upon freemen, merchants, or
villeins, “but by the oath of honest men of the neighborhood,” and
“according to the degree of the crime,” and that “earls and barons
should not be amerced but by their peers, and according to the quality
of the offence,” _proves_ that, at least, there was no common law fixing
the amount of _fines_, or, if there were, that it was to be no longer in
force. And if there was no common law fixing the amount of _fines_, or
if it was to be no longer in force, it is reasonable to infer, (in the
absence of all evidence to the contrary,) either that the common law did
not fix the amount of any other punishment, or that it was to be no
longer in force for that purpose.[^28]

Under the Saxon laws, fines, payable to the injured party, seem to have
been the common punishments for all offences. Even murder was punishable
by a fine payable to the relatives of the deceased. The murder of the
king even was punishable by fine. When a criminal was unable to pay his
fine, his relatives often paid it for him. But if it were not paid, he
was put out of the protection of the law, and the injured parties, (or,
in the case of murder, the kindred of the deceased,) were allowed to
inflict such punishment as they pleased. And if the relatives of the
criminal protected him, it was lawful to take vengeance on them also.
Afterwards the custom grew up of exacting fines also to the king as a
punishment for offences.[^29] And this latter was, doubtless, the usual
punishment at the time of Magna Carta, as is evidenced by the fact that
for many years immediately following Magna Carta, nearly or quite all
statutes that prescribed any punishment at all, prescribed that the
offender should “be grievously amerced,” or “pay a great fine to the
king,” or a “grievous ransom,”—with the alternative in some cases
(perhaps _understood_ in all) of imprisonment, banishment, or outlawry,
in case of non-payment.[^30]

Judging, therefore, from the special provisions in Magna Carta,
requiring _fines_, or amercements, to be imposed only by juries,
(without mentioning any other punishments;) judging, also, from the
statutes which immediately followed Magna Carta, it is probable that the
Saxon custom of punishing all, or nearly all, offences by _fines_, (with
the alternative to the criminal of being imprisoned, banished, or
outlawed, and exposed to private vengeance, in case of non-payment,)
continued until the time of Magna Carta; and that in providing expressly
that _fines_ should be fixed by the juries, Magna Carta provided for
nearly or quite all the punishments that were expected to be inflicted;
that if there were to be any others, they were to be fixed by the
juries; and consequently that nothing was left to be fixed by “_legem
terræ_.”

But whether the common law fixed the punishment of any offences, or not,
is a matter of little or no practical importance at this day; because we
have no idea of going back to any common law punishments of six hundred
years ago, if, indeed, there were any such at that time. It is enough
for us to know—_and this is what it is material for us to know_—that
the jury fixed the punishments, in all cases, unless they were fixed by
the _common law_; that Magna Carta allowed no punishments to be
prescribed by statute—that is, by the legislative power—nor in any
other manner by the king, or his judges, in any case whatever; and,
consequently, that all statutes prescribing particular punishments for
particular offences, or giving the king’s judges any authority to fix
punishments, were void.

If the power to fix punishments had been left in the hands of the king,
it would have given him a power of oppression, which was liable to be
greatly abused; which there was no occasion to leave with him; and which
would have been incongruous with the whole object of this chapter of
Magna Carta; which object was to take all discretionary or arbitrary
power over individuals entirely out of the hands of the king, and his
laws, and entrust it only to the common law, and the peers, or
jury—that is, the people.

_What lex terræ did authorize._

But here the question arises, What then did “_legem terræ_” authorize
the king, (that is, the government,) to do in the case of an accused
person, if it neither authorized any other trial than that by jury, nor
any other punishments than those fixed by juries?

The answer is, that, owing to the darkness of history on the point, it
is probably wholly impossible, at this day, to state, _with any
certainty or precision_, anything whatever that the _legem terræ_ of
Magna Carta did authorize the king, (that is, the government,) to do,
(if, indeed, it authorized him to do anything,) in the case of
criminals, _other than to have them tried and sentenced by their peers,
for common law crimes_; and to carry that sentence into execution.

The trial by jury was a part of _legem terræ_, and we have the means of
knowing what the trial by jury was. The fact that the jury were to fix
the sentence, implies that they were to _try_ the accused; otherwise
they could not know what sentence, or whether any sentence, ought to be
inflicted upon him. Hence it follows that the jury were to judge of
everything involved in the trial; that is, they were to judge of the
nature of the offence, of the admissibility and weight of testimony, and
of everything else whatsoever that was of the essence of the trial. If
anything whatever could be dictated to them, either of law or evidence,
the sentence would not be theirs, but would be dictated to them by the
power that dictated to them the law or evidence. The trial and sentence,
then, were wholly in the hands of the jury.

We also have sufficient evidence of the nature of the oath administered
to jurors in criminal cases. It was simply, that _they would neither
convict the innocent, nor acquit the guilty_. This was the oath in the
Saxon times, and probably continued to be until Magna Carta.

We also know that, in case of _conviction_, the sentence of the jury was
not necessarily final; that the accused had the right of appeal to the
king and his judges, and to demand either a new trial, or an acquittal,
if the trial or conviction had been against law.

So much, therefore, of the _legem terræ_ of Magna Carta, we know with
reasonable certainty.

We also know that Magna Carta provides that “No bailiff (_balivus_)
shall hereafter put any man to his law, (put him on trial,) on his
single testimony, without credible witnesses brought to support it.”
Coke thinks “that under this word _balivus_, in this act, is
comprehended every justice, minister of the king, steward of the king,
steward and bailiff.” (2 Inst. 44.) And in support of this idea he
quotes from a very ancient law book, called the Mirror of Justices,
written in the time of Edward I., within a century after Magna Carta.
But whether this were really a common law principle, or whether the
provision grew out of that jealousy of the government which, at the time
of Magna Carta, had reached its height, cannot perhaps now be
determined.

We also know that, by Magna Carta, amercements, or fines, could not be
imposed to the ruin of the criminal; that, in the case of a freeman, his
_contenement_, or means of subsisting in the condition of a freeman,
must be saved to him; that, in the case of a merchant, his merchandise
must be spared; and in the case of a villein, his _waynage_, or
plough-tackle and carts. This also is likely to have been a principle of
the common law, inasmuch as, in that rude age, when the means of getting
employment as laborers were not what they are now, the man and his
family would probably have been liable to starvation, if these means of
subsistence had been taken from him.

We also know, _generally_, that, at the time of Magna Carta, _all acts
intrinsically criminal_, all trespasses against persons and property,
were crimes, according to _lex terræ_, or the common law.

Beyond the points now given, we hardly know anything, probably nothing
_with certainty_, as to what the “_legem terræ_” of _Magna Carta_ did
authorize, in regard to crimes. There is hardly anything extant that can
give us any real light on the subject.

It would seem, however, that there were, even at that day, some common
law principles governing arrests; and some common law forms and rules as
to holding a man for trial, (by bail or imprisonment;) putting him on
trial, such as by indictment or complaint; summoning and empanelling
jurors, &c., &c. Whatever these common law principles were, Magna Carta
requires them to be observed; for Magna Carta provides for the whole
proceedings, commencing with the arrest, (“no freeman shall be
_arrested_,” &c.,) and ending with the execution of the sentence. And it
provides that nothing shall be done, by the government, from beginning
to end, unless according to the sentence of the peers, or “_legem
terræ_,” the common law. The trial by peers was a part of _legem terræ_,
and we have seen that the peers must necessarily have governed the whole
proceedings at the trial. But all the proceedings for arresting the man,
and bringing him to trial, must have been had before the case could come
under the cognizance of the peers, and they must, therefore, have been
governed by other rules than the discretion of the peers. We may
_conjecture_, although we cannot perhaps know with much certainty, that
the _lex terræ_, or common law, governing these other proceedings, was
somewhat similar to the common law principles, on the same points, at
the present day. Such seem to be the opinions of Coke, who says that the
phrase _nisi per legem terræ_ means _unless by due process of law_.

Thus, he says:

“_Nisi per legem terræ. But by the law of the land._ For the true sense
and exposition of these words, see the statute of 37 Edw. III., cap. 8,
where the words, _by the law of the land_, are rendered _without due
process of law_; for there it is said, though it be contained in the
Great Charter, that no man be taken, imprisoned, or put out of his
freehold, _without process of the law; that is, by indictment or
presentment of good and lawful men, where such deeds be done in due
manner, or by writ original of the common law_.

“Without being brought in to answer but by due process of the common
law.

“No man be put to answer without presentment before justices, or thing
of record, or by due process, or by writ original, _according to the old
law of the land_.”—_2 Inst._ 50.

The foregoing interpretations of the words _nisi per legem terræ_ are
corroborated by the following statutes, enacted in the next century
after Magna Carta.

“That no man, from henceforth, shall be attached by any accusation, nor
forejudged of life or limb, nor his land, tenements, goods, nor
chattels, seized into the king’s hands, against the form of the Great
Charter, _and the law of the land_.”—_St. 5 Edward III., Ch._ 9.
(1331.)

“Whereas it is contained in the Great Charter of the franchises of
England, that none shall be imprisoned, nor put out of his freehold, nor
of his franchises, nor free customs, _unless it be by the law of the
land_; it is accorded, assented, and established, that from henceforth
none shall be taken by petition, or suggestion made to our lord the
king, or to his council, _unless it be by indictment or presentment of
good and lawful people of the same neighborhood where such deeds be done
in due manner, or by process made by writ original at the common law_;
nor that none be put out of his franchises, nor of his freehold, _unless
he be duly brought into answer, and forejudged of the same by the course
of the law_; and if anything be done against the same, it shall be
redressed and holden for none.”—_St. 25 Edward III., Ch._ 4. (1350.)

“That no man, of what estate or condition that he be, shall be put out
of land or tenement, nor taken, nor imprisoned, nor disinherited, nor
put to death, without being brought in answer _by due process of
law_.”—_St. 28 Edward III., Ch._ 3. (1354.)

“That no man be put to answer without presentment before justices, or
matter of record, or by due process and writ original, according to the
_old law of the land_. And if anything from henceforth be done to the
contrary, it shall be void in law, and holden for error.”—_St. 42
Edward III., Ch._ 3. (1368.)

The foregoing interpretation of the words _nisi per legem terræ_—that
is, _by due process of law_—including indictment, &c., has been adopted
as the true one by modern writers and courts; as, for example, by Kent,
(2 _Comm._ 13,) Story, (3 _Comm._ 661,) and the Supreme Court of New
York, (19 _Wendell_, 676; 4 _Hill_, 146.)

The fifth amendment to the constitution of the United States seems to
have been framed on the same idea, inasmuch as it provides that “no
person shall be deprived of life, liberty, or property, _without due
process of law_.”[^31]

_Whether the word_ VEL _should be rendered by_ OR, _or by_ AND.

Having thus given the meanings, or rather the applications, which the
words _vel per legem terræ_ will reasonably, and perhaps must
necessarily, bear, it is proper to suggest, that it has been supposed by
some that the word _vel_, instead of being rendered by _or_, as it
usually is, ought to be rendered by _and_, inasmuch as the word _vel_ is
often used for _et_, and the whole phrase _nisi per judicium parium
suorum, vel per legem terræ_, (which would then read, unless by the
sentence of his peers, _and_ the law of the land,) would convey a more
intelligible and harmonious meaning than it otherwise does.

Blackstone suggests that this may be the true reading. (_Charters_, p.
41.) Also Mr. Hallam, who says:

> “Nisi per legale judicium parium suorum, _vel_ per legem terræ.
> Several explanations have been offered of the alternative clause;
> which some have referred to judgment by default, or demurrer; others
> to the process of attachment for contempt. Certainly there are many
> legal procedures besides trial by jury, through which a party’s goods
> or person may be taken. But one may doubt whether these were in
> contemplation of the framers of Magna Carta. In an entry of the
> Charter of 1217 by a contemporary hand, preserved in the Town-clerk’s
> office in London, called Liber Custumarum et Regum antiquarum, a
> various reading, _et_ per legem terræ, occurs. _Blackstone’s
> Charters_, p. 42 (41.) And the word _vel_ is so frequently used for
> _et_, that I am not wholly free from a suspicion that it was so
> intended in this place. The meaning will be, that no person shall be
> disseized, &c., except upon a lawful cause of action, found by the
> verdict of a jury. This really seems as good as any of the
> disjunctive interpretations; but I do not offer it with much
> confidence.”—2 _Hallam’s Middle Ages, Ch._ 8, _Part_ 2, p. 449,
> _note_.[^32]

The idea that the word _vel_ should be rendered by _and_, is
corroborated, if not absolutely confirmed, by the following passage in
Blackstone, which has before been cited. Speaking of the trial by jury,
as established by Magna Carta, he calls it,

> “A privilege which is couched in almost the same words with that of
> the Emperor Conrad two hundred years before: ‘nemo beneficium suum
> perdat, nisi secundum consuetudinem antecessorum nostrorum, _et_
> judicium parium suorum.’” (No one shall lose his estate unless
> according to the custom of our ancestors, and the judgment of his
> peers.)—_3 Blackstone_, 350.

If the word _vel_ be rendered by _and_, (as I think it must be, at least
in some cases,) this chapter of Magna Carta will then read that no
freeman shall be arrested or punished, “unless according to the sentence
of his peers, _and_ the law of the land.”

The difference between this reading and the other is important. In the
one case, there would be, at first view, some color of ground for saying
that a man might be punished in either of two ways, viz., according to
the sentence of his peers, _or_ according to the law of the land. In the
other case, it requires both the sentence of his peers _and_ the law of
the land (common law) to authorize his punishment.

If this latter reading be adopted, the provision would seem to exclude
all trials except trial by jury, and all causes of action except those
of the _common law_.

But I apprehend the word vel must be rendered both by _and_, and by
_or_; that in cases of a _judgment_, it should be rendered by _and_, so
as to require the concurrence both of “the judgment of the peers _and_
the law of the land,” to authorize the king to make execution upon a
party’s goods or person; but that in cases of arrest and imprisonment,
simply for the purpose of bringing a man to trial, _vel_ should be
rendered by or, because there can have been no judgment of a jury in
such a case, and “the law of the land” must therefore necessarily be the
only guide to, and restraint upon, the king. If this guide and restraint
were taken away, the king would be invested with an arbitrary and most
dangerous power in making arrests, and confining in prison, under
pretence of an intention to bring to trial.

Having thus examined the language of this chapter of Magna Carta, so far
as it relates to criminal cases, its legal import may be stated as
follows, viz.:

No freeman shall be arrested, or imprisoned, or deprived of his
freehold, or his liberties, or free customs, or be outlawed, or exiled,
or in any manner destroyed, (harmed,) nor will we (the king) proceed
against him, nor send any one against him, by force or arms, unless
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_.]