An Essay on the Trial By Jury
by Lysander Spooner · English · Gutenberg #1201 · 569,140 chars · public domain (US)
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Title: An Essay on the Trial By Jury
Author: Lysander Spooner
Release date: February 1, 1998 [eBook #1201]
Most recently updated: April 2, 2015
Language: English
Other information and formats: www.gutenberg.org/ebooks/1201
*** START OF THE PROJECT GUTENBERG EBOOK AN ESSAY ON THE TRIAL BY JURY ***
Ver.04.29.93*END*
Scanner's Note: I have made two changes in this text. First I have
removed the footnotes to the end of each chapter and I have placed
note 9 at the end of chapter 6 noting that because of the ratification
of the XIX amendment to the Constitution for the United States,
August 20, 1920, women were fully enfranchised with all rights of
voting and jury service in all states of the Union. Other than the lack
of italics and bold in this text and the typos (may they be few) this is
the complete first edition text. Let me know of any mistakes you have
caught! My email address's for now is haradda@aol.com and
davidr@inconnect.com.
David Reed
An Essay on the Trial By Jury
By LYSANDER SPOONER
Entered according to Act of Congress, in the year 1852, by
LYSANDER SPOONER
In the Clerk's Office of the District Court of Massachusetts.
NOTICE TO ENGLISH PUBLISHERS
The author claims the copyright of this book in England, on
Common Law principles, without regard to acts of parliament; and
if the main principle of the book itself be true, viz., that no
legislation, in conflict with the Common Law, is of any validity,
his claim is a legal one. He forbids any one to reprint the book
without his consent.
Stereotyped by HOBART & ROBBINS;
New England Type and Stereotype Foundery,BOSTON.
NOTE
This volume, it is presumed by the author, gives what will
generally be considered satisfactory evidence, though not all the
evidence, of what the Common Law trial by jury really is. In a
future volume, if it should be called for, it is designed to
corroborate the grounds taken in this; give a concise view of the
English constitution; show the unconstitutional character of the
existing government in England, and the unconstitutional means
by which the trial by jury has been broken down in practice; prove
that, neither in England nor the United States, have legislatures
ever been invested by the people with any authority to impair the
powers, change the oaths, or (with few exceptions) abridge the
jurisdiction, of juries, or select jurors on any other than Common
Law principles; and, consequently, that, in both countries,
legislation is still constitutionally subordinate to the discretion and
consciences of Common Law juries, in all cases, both civil and
criminal, in which juries sit. The same volume will probably also
discuss several political and legal questions, which will naturally
assume importance if the trial by jury should be reestablished.
CONTENTS
CHAPTER I. THE RIGHT OF JURIES TO JUDGE OF THE
JUSTICE OF LAWS
SECTION 1.
SECTION 2.
CHAPTER II. THE TRIAL BY JURY, AS DEFINED BY
MAGNA CARTA
SECTION 1. The History Of Magna Carta
SECTION 2. The Language Of Magna Carta
CHAPTER III. ADDITIONAL PROOFS OF THE RIGHTS AND
DUTIES OF JURORS.
SECTION 1. Weakness of the Regal Authority
SECTION 2. The Ancient Common Law Juries Were Mere Courts
Of Conscience
SECTION 3. The Oaths of Jurors
SECTION 4. The Right Of Jurors To Fix The Sentence
SECTION 5. The Oaths Of Judges
SECTION 6. The Coronation Oath
CHAPTER IV. THE RIGHTS AND DUTIES OF JURIES IN
CIVIL SUITS
CHAPTER V. OBJECTIONS ANSWERED
CHAPTER VI. JURIES OF THE PRESENT DAY ILLEGAL
CHAPTER VII. ILLEGAL JUDGES
CHAPTER VIII. THE FREE ADMINISTRATION OF JUSTICE
CHAPTER IX. THE CRIMINAL INTENT
CHAPTER X. MORAL CONSIDERATIONS FOR JURORS
CHAPTER XI. AUTHORITY OF MAGNA CARTA
CHAPTER XII. LIMITATIONS IMPOSED UPON THE
MAJORITY BY THE TRIAL BY JURY
APPENDIX TAXATION
TRIAL BY JURY
CHAPTER I
THE RIGHT OF JURIES TO JUDGE OF THE JUSTICE OF LAWS
SECTION I.
FOR more than six hundred years that is, since Magna Carta, in
1215 there has been no clearer principle of English or American
constitutional law, than that, in criminal cases, it is not only the
right and duty of juries to judge what are the facts, what is the law,
and what was the moral intent of the accused; but that it is also
their right, and their primary and paramount duty, to judge of the
justice of the law, and to hold all laws invalid, that are, in their
opinion, unjust or oppressive, and all persons guiltless in violating,
or resisting the execution of, such laws.
Unless such be the right and duty of jurors, it is plain that, instead
of juries being a "palladium of liberty" a barrier against the tyranny
and oppression of the government they are really mere tools in its
hands, for carrying into execution any injustice and oppression it
may desire to have executed.
But for their right to judge of the law, and the justice of the law,
juries would be no protection to an accused person, even as to
matters of fact; for, if the government can dictate to a jury any law
whatever, in a criminal case, it can certainly dictate to them the
laws of evidence. That is, it can dictate what evidence is
admissible, and what inadmissible, and also what force or weight
is to be given to the evidence admitted. And if the government can
thus dictate to a jury the laws of evidence, it can not only make it
necessary for them to convict on a partial exhibition of the
evidence rightfully pertaining to the case, but it can even require
them to convict on any evidence whatever that it pleases to offer
them.
That the rights and duties of jurors must necessarily be such as are
here claimed for them, will be evident when it is considered what
the trial by jury is, and what is its object.
"The trial by jury," then, is a "trial by the country" that is, by the
people as distinguished from a trial by the government.
It was anciently called "trial per pais" that is, "trial by the
country." And now, in every criminal trial, the jury are told that the
accused "has, for trial, put himself upon the country; which
country you (the jury) are."
The object of this trial "by the country," or by the people, in
preference to a trial by the government, is to guard against every
species of oppression by the government. In order to effect this
end, it is indispensable that the people, or "the country," judge of
and determine their own liberties against the government; instead
of the government's judging of and determining its own powers
over the people. How is it possible that juries can do anything to
protect the liberties of the people against the government, if they
are not allowed to determine what those liberties are?
Any government, that is its own judge of, and determines
authoritatively for the people, what are its own powers over the
people, is an absolute government of course. It has all the powers
that it chooses to exercise. There is no other or at least no more
accurate definition of a despotism than this.
On the other hand, any people, that judge of, and determine
authoritatively for the government, what are their own liberties
against the government, of course retain all the liberties they wish
to enjoy. And this is freedom. At least, it is freedom to them;
because, although it may be theoretically imperfect, it,
nevertheless, corresponds to their highest notions of freedom.
To secure this right of the people to judge of their own liberties
against the government, the jurors are taken, (or must be, to make
them lawful jurors,} from the body of the people, by lot, or by
some process that precludes any previos knowledge, choice, or
selection of them, on the part of the government.
This is done to prevent the government's constituting a jury of its
own partisans or friends; in other words, to prevent the
government's packing a jury, with a view to maintain its own laws,
and accomplish its own purposes.
It is supposed that, if twelve men be taken, by lot, from the mass of
the people, without the possibility of any previous knowledge,
choice, or selection of them, on the part of the government, the
jury will be a fair epitome of "the country" at large, and not merely
of the party or faction that sustain the measures of the government;
that substantially all classes of opinions, prevailing among the
people, will be represented in the jury; and especially that the
opponents of the government, (if the government have any
opponents,) will be represented there, as well as its friends; that
the classes, who are oppressed by the laws of the government, (if
any are thus oppressed,) will have their representatives in the jury,
as well as those classes, who take sides with the oppressor that is,
with the government.
It is fairly presumable that such a tribunal will agree to no
conviction except such as substantially the whole country would
agree to, if they were present, taking part in the trial. A trial by
such a tribunal is, therefore, in effect, "a trial by the country." In its
results it probably comes as near to a trial by the whole country, as
any trial that it is practicable to have, without too great
inconvenience and expense. And. as unanimity is required for a
conviction, it follows that no one can be convicted, except for the
violation of such laws as substantially the whole country wish to
have maintained. The government can enforce none of its laws,
(by punishing offenders, through the verdicts of juries,) except
such as substantially the whole people wish to have enforced. The
government, therefore, consistently with the trial by jury, can
exercise no powers over the people, (or, what is the same thing,
over the accused person, who represents the rights of the people,)
except such a substantially the whole people of the country
consent that it may exercise. In such a trial, therefore, "the
country," or the people, judge of and dtermine their own liberties
against the government, instead of thegovernment's judging of and
determining its own powers over the people.
But all this "trial by the country" would be no trial at all "by the
country," but only a trial by the government, if the government
'could either declare who may, and who may not, be jurors, or
could dictate to the jury anything whatever, either of law or
evidence, that is of the essence of the trial.
If the government may decide who may, and who may not, be
jurors, it will of course select only its partisans, and those friendly
to its measures. It may not only prescribe who may, and who may
not, be eligible to be drawn as jurors; but it may also question each
person drawn as a juror, as to his sentiments in regard to the
particular law involved in each trial, before suffering him to be
sworn on the panel; and exclude him if he be found unfavorable to
the maintenance of such a law. [1]
So, also, if the government may dictate to the jury what laws they
are to enforce, it is no longer a " trial by the country," but a trial by
the government; because the jury then try the accused, not by any
standard of their own not by their own judgments of their rightful
liberties but by a standard. dictated to them by the government.
And the standard, thus dictated by the government, becomes the
measure of the people's liberties. If the government dictate the
standard of trial, it of course dictates the results of the trial. And
such a trial is no trial by the country, but only a trial by the
government; and in it the government determines what are its own
powers over the people, instead of the people's determining what
are their own liberties against the government. In short, if the jury
have no right to judge of the justice of a law of the government,
they plainly can do nothing to protect the people against the
oppressions of the government; for there are no oppressions which
the government may not authorize by law.
The jury are also to judge whether the laws are rightly expounded
to them by the court. Unless they judge on this point, they do
nothing to protect their liberties against the oppressions that are
capable of being practiced under cover of a corrupt exposition of
the laws. If the judiciary can authoritatively dictate to a jury any
exposition of the law, they can dictate to them the law itself, and
such laws as they please; because laws are, in practice, one thing
or another, according as they are expounded.
The jury must also judge whether there really be any such law, (be
it good or bad,) as the accused is charged with having transgressed.
Unless they judge on this point, the people are liable to have their
liberties taken from them by brute force, without any law at all.
The jury must also judge of the laws of evidence. If the
government can dictate to a jury the laws of evidence, it can not
only shut out any evidence it pleases, tending to vindicate the
accused, but it can require that any evidence whatever, that it
pleases to offer, be held as conclusive proof of any offence
whatever which the government chooses to allege.
It is manifest, therefore, that the jury must judge of and try the
whole case, and every part and parcel of the case, free of any
dictation or authority on the part of the government. They must
judge of the existence of the law; of the true exposition of the law;
of the justice of the law; and of the admissibility and weight of all
the evidence offered; otherwise the government will have
everything its own way; the jury will be mere puppets in the hands
of the government: and the trial will be, in reality, a trial by the
government, and not a "trial by the country." By such trials the
government will determine its own powers over the people, instead
of the people's determining their own liberties against the
government; and it will be an entire delusion to talk, as for
centuries we have done, of the trial by jury, as a "palladium of
liberty," or as any protection to the people against the oppression
and tyranny of the government.
The question, then, between trial by jury, as thus described, and
trial by the government, is simply a question between liberty and
despotism. The authority to judge what are the powers of the
government, and what the liberties of the people, must necessarily
be vested in one or the other of the parties themselves the
government, or the people; because there is no third party to whom
it can be entrusted. If the authority be vested in the government,
the governmnt is absolute, and the people have no liberties except
such as the government sees fit to indulge them with. If, on the
other hand, that authority be vested in the people, then the people
have all liberties, (as against the government,) except suc as
substantially the whole people (through a jury) choose to disclaim;
and the government can exercise no power except such as
substantially the whole people (through a jury) consent that it may
exercise.
SECTION II.
The force and. justice of the preceding argument cannot be evaded
by saying that the government is chosen by the people; that, in
theory, it represents the people; that it is designed to do the will of
the people; that its members are all sworn to observe the
fundamental or constitutional law instituted by the people; that its
acts are therefore entitled to be considered the acts of the people;
and that to allow a jury, representing the people, to invalidate the
acts of the' government, would therefore be arraying the people
against themselves.
There are two answers to such an argument.
One answer is, that, in a representative government, there is no
absurdity or contradiction, nor any arraying of the people against
themselves, in requiring that the statutes or enactments of the
government shall pass the ordeal of any number of separate
tribunals, before it shall be determined that they are to have the
force of laws. Our American constitutions have provided five of
these separate tribunals, to wit, representatives, senate,
executive,[2] jury, and judges; and have made it necessary that
each enactment shall pass the ordeal of all these separate tribunals,
before its authority can be established by the punishment of those
who choose to transgress it. And there is no more absurdity or
inconsistency in making a jury one of these several tribunals, than
there is in making the representatives, or the senate, or the
executive, or the judges, one of them. There is no more absurdity
in giving a jury a veto upon the laws, than there is in giving a veto
to each of these other tribunals. The people are no more arrayed
against themselves, when a jury puts its veto upon a statute, which
the other tribunals have sanctioned, than they are when the same
veto is exercised by the representatives, the senate, the executive,
or the judges.
But another answer to the argument that the people are arrayed
against themselves, when a jury hold an enactment of the
government invalid, is, that the government, and all the
departments of the government, are merely the servants and agents
of the people; not invested with arbitrary or absolute authority to
bind the people, but required to submit all their enactments to the
judgment of a tribunal more fairly representing the whole people,
before they carry them into execution, by punishing any individual
for transgressing them. If the government were not thus required to
submit their enactments to the judgment of "the country," before
executing them upon individuals if, in other words, the people
had reserved to themselves no veto upon the acts of the
government, the government, instead of being a mere servant and
agent of the people, would be an absolute despot over the people.
It would have all power in its own hands; because the power to
punish carries all other powers with it. A power that can, of itself,
and by its own authority, punish disobedience, can compel
obedience and submission, and is above all responsibility for the
character of its laws. In short, it is a despotism.
And it is of no consequence to inquire how a government came by
this power to punish, whether by prescription, by inheritance, by
usurpation. or by delegation from the people's If it have now but
got it, the government is absolute.
It is plain, therefore, that if the people have invested the
government with power to make laws that absolutely bind the
people, and to punish the people for transgressing those laws, the
people have surrendered their liberties unreservedly into the hands
of the government.
It is of no avail to say, in answer to this view of the ease, that in
surrendering their liberties into the hands of the government, the
people took an oath from the government, that it would exercise its
power within certain constitutional limits; for when did oaths ever
restrain a government that was otherwise unrestrained? Orwhen
did a government fail to determine that all its acts were within the
constitutional and authorized limits of its power, if it were
permitted to determine that question for itself?
Neither is it of any avail to say, that, if the government abuse its
power, and enact unjust and oppressive laws, the government may
be changed by the influence of discussion, and the exercise of the
right of suffrage. Discussion can do nothing to prevent the
enactment, or procure the repeal, of unjust laws, unless it be
understood that, the discussion is to be followed by resistance.
Tyrants care nothing for discussions that are to end only in
discussion. Discussions, which do not interfere with the
enforcement of their laws, are but idle wind to them. Suffrage is
equally powerless and unreliable. It can be exercised only
periodically; and the tyranny must at least be borne until the time
for suffrage comes. Be sides, when the suffrage is exercised, it
gives no guaranty for the repeal of existing laws that are
oppressive, and no security against the enactment of new ones that
are equally so. The second body of legislators are liable and likely
to be just as tyrannical as the first. If it be said that the second
body may be chosen for their integrity, the answer is, that the first
were chosen for that very reason, and yet proved tyrants. The
second will be exposed to the same temptations as the first, and
will be just as likely to prove tyrannical. Who ever heard that
succeeding legislatures were, on the whole, more honest than those
that preceded them? What is there in the nature of men or things to
make them so? If it be said that the first body were chosen from
motives of injustice, that fact proves that there is a portion of
society who desire to establish injustice; and if they were powerful
or artful enough to procure the election of their instruments to
compose the first legislature, they will be likely to be powerful or
artful enough to procure the election of the same or similar
instruments to compose the second. The right of suffrage,
therefore, and even a change of legislators, guarantees no change
of legislation certainly no change for the better. Even if a change
for the better actually comes, t cmes too late, because it comes
only after more or less injustice has been irreparably done.
But, at best, the right of suffrage can be exercised only
periodically; and between the periods the legislators are wholly
irresponsible. No despot was ever more entirely irresponsible than
are republican legislators during the period for which they are
chosen. They can neither, be removed from their office, nor called
to account while in their office, nor punished after they leave their
office, be their tyranny what it may. Moreover, the judicial and
executive departments of the government are equally irresponsible
to the people, and are only responsible, (by impeachment, and
dependence for their salaries), to these irresponsible legislators.
This dependence of the judiciary and executive upon the
legislature is a guaranty that they will always sanction and execute
its laws, whether just or unjust. Thus the legislators hold the whole
power of the government in their hands, and are at the same time
utterly irresponsible for the manner in which they use it.
If, now, this government, (the three branches thus really united in
one), can determine the validity of, and enforce, its own laws, it is,
for the time being, entirely absolute, and wholly irresponsible to
the people.
But this is not all. These legislators, and this government, so
irresponsible while in power, can perpetuate their power at
pleasure, if they can determine what legislation is authoritative
upon the people, and can enforce obedience to it, for they can not
only declare their power perpetual, but they can enforce
submission to all legislation that is necessary to secure its
perpetuity. They can, for example, prohibit all discussion of the
rightfulness of their authority; forbid the use of the suffrage;
prevent the election of any successors; disarm, plunder, imprison,
and even kill all who refuse submission. If, therefore, the
government (all departments united) be absolute for a day that is,
if it can, for a day, enforce obedience to its own laws it can, in
that day, secure its power for all time like the queen, who wished
to reign but for a day, but in that day caused the king, her husband,
to be slain, and usurped his throne.
Nor will it avail to say that such acts would be unconstitutional,
and that unconstitutional acts may be lawfully resisted; for
everything a government pleases to do will, of course, be
determined to be constitutional, if the government itself be
permitted to determine the question of the constitutionality of its
own acts. Those who are capable of tyranny, are capable of perjury
to sustain it.
The conclusion, therefore, is, that any government, that can, for a
day, enforce its own laws, without appealing to the people, (or to a
tribunal fairly representing the people,) for their consent, is, in
theory, an absolute government, irresponsible to the people, and
can perpetuate its power at pleasure.
The trial by jury is based upon a recognition of this principle, and
therefore forbids the government to execute any of its laws, by
punishing violators, in any case whatever, without first getting the
consent of "the country," or the people, through a jury. In this way,
the people, at all times, hold their liberties in their own hands, and
never surrender them, even for a moment, into the hands of the
government.
The trial by jury, then, gives to any and every individual the
liberty, at any time, to disregard or resist any law whatever of the
government, if he be willing to submit to the decision of a jury, the
questions, whether the law be intrinsically just and obligatory? and
whether his conduct, in disregarding or resisting it, were right in
itself? And any law, which does not, in such trial, obtain the
unanimous sanction of twelve men, taken at random from the
people, and judging according to the standard of justice in their
own minds, free from all dictation and authority of the
government, may be transgressed and resisted with impunity, by
whomsoever pleases to transgress or resist it.[3]
The trial by jury authorizes all this, or it is a sham and a hoax,
utterly worthless for protecting the people against oppression. If it
do not authorize an individual to resist the first and least act of
injustice or tyranny, on the part of the government, it does not
authorize him to resist the last and the greatest. If it do not
authorize individuals to nip tyranny in the bud, it does not
authorize them to cut it down when its branches are filled with the
ripe fruits of plunder and oppression.
Those who deny the right of a jury to protect an individual in
resisting an unjust law of the government, deny him all defence
whatsoever against oppression. The right of revolution, which
tyrants, in mockery, accord to mankind, is no legal right under a
government; it is only a natural right to overturn a government.
The government itself never acknowledges this right. And the right
is practically established only when and because the government,
no longer exists to call it in question. The right, therefore, can be
exercised with impunity, only when it is exercised victoriously. All
unsuccessful attempts at revolution, however justifiable in
themselves, are punished as treason, if the government be
permitted to judge of the treason. The government itself never
admits the injustice of its laws, as a legal defence for those who
have attempted a revolution, and failed. The right of revolution,
therefore, is right of no practical value, except for those who are
stronger than the government. So long, therefore, as the
oppressions of a government are kept within such limits as simply
not to exasperate against it a power greater than its own, the right
of revolution cannot be appealed to, and is therefore inapplicable
to the case. This affords a wide field for tyranny; and, if a jury
cannot here intervene, the oppressed are utterly defenceless.
It is manifest that the only security against the tyranny of the
government lies in forcible resistance to the execution of the
injustice; because the injustice will certainly be executed, unless it
be forcibly resisted. And if it be but suffered to be executed, it
must then be borne; for the government never makes
compensation for its own wrongs.
Since, then, this forcible resistance to the injustice of the
government is the only possible means of preserving liberty, it is
indispensable to all legal liberty that this resistance should be
legalized. It is perfectly self-evident that where there is no legal
right to resist the oppression of the government, there can be no
lgal liberty. And here it is all-important to notice, that, practically
speaking, there can be no legal right to resist the oppressions of the
government, unless there be some legal tribunal, other than the
government, and wholly independent of, and above, the
government, to judge between the government and those who
resist its oppressions; in other words, to judge what laws of the
government are to be obeyed, and what may be resisted and held
for nought. The only tribunal known to our laws, for this purpose,
is a jury. If a jury have not the right to judge between the
government and those who disobey its laws, and resist its
oppressions, the government is absolute, and the people, legally
speaking are slaves. Like many other slaves they may have
sufficient courage and strength to keep their masters somewhat in
check; but they are nevertheless known to the law only as slaves.
That this right of resistance was recognized as a common law
right, when the ancient and genuine trial by jury was in force, is
not only proved by the nature of the trial itself, but is
acknowledged by history. [4]
This right of resistance is recognized by the constitution of the
United States, as a strictly legal and constitutional right. It is so
recognized, first by the provision that "the trial of all crimes,
except in cases of impeachment, shall be by jury" that is, by the
country and not by the government; secondly, by the provision
that "the right of the people to keep and bear arms shall not be
infringed." This constitutional security for "the right to keep and
bear arms," implies the right to use them as much as a
constitutional security for the right to buy and keep food would
have implied the right to eat it. The constitution, therefore, takes it
for granted that
the people will judge of the conduct of the government, and that,
as they have the right, they will also have the sense, to use arms,
whenever the necessity of the case justifies it. And it is a sufficient
and legal defence for a person accused of using arms against the
government, if he can show, to the satisfaction of a jury, or even
any one of a jury, that the law he resisted was an unjust one.
In the American State constitutions also, this right of resistance to
the oppressions of the government is recognized, in various ways,
as a natural, legal, and constitutional right. In the first place, it is
so recognized by provisions establishing the trial by jury; thus
requiring that accused persons shall be tried by "the country,"
instead of the government. In the second place, it is recognized by
many of them, as, for example, those of Massachusetts, Maine,
Vermont, Connecticut, Pennsylvania, Ohio, Indiana, Michigan,
Kentucky, Tennessee, Arkansas, Mississippi, Alabama, and
Florida, by provisions expressly declaring that the people shall
have the right to bear arms. In many of them also, as, for example,
those of Maine, New Hampshire, Vermont, Massachusetts, New
Jersey, Pennsylvania, Delaware, Ohio, Indiana, Illinois, Florida,
Iowa, and Arkansas, by provisions, in their bills of rights, declaring
that men have a natural, inherent, and inalienable right of
"defending their lives and liberties." This, of course, means that
they have a right to defend them against any injustice on the part
of the government, and not merely on the part of private
individuals; because the object of all bills of rights is to assert the
rights of individuals and the people, as against the government,
and not as against private persons. It would be a matter of
ridiculous supererogation to assert, in a constitution of
government, the natural right of men to defend their lives and
liberties against private trespassers.
Many of these bills of rights also assert the natural right of all men
to protect their property that is, to protect it against the
government. It would be unnecessary and silly indeed to assert, in
a constitution of government, the natural right of individuals to
protect their property against thieves and robbers.
The constitutions of New Hampshire and Tennessee also declare
that "The doctrine of non-resistance against arbitrary power and
oppression is absurd, slavish, and destructive of the good and
happiness of mankind."
The legal effect of these constitutional recognitions of the right of
individuals to defend their property, liberties, and lives, ' against
the government, is to legalize resistance to all injustice and
oppression, of every name and nature whatsoever, on the part of
the government.
But for this right of resistance, on the part of the people, all
governments would become tyrannical to a degree of which few
people are aware. Constitutions are utterly worthless to restrain the
tyranny of governments, unless it be understood that the people
will, by force, compel the government to keep within the
constitutional limits. Practically speaking, no government knows
any limits to its power, except the endurance of the people. But
that the people are stronger than the government, and will resist in
extreme cases, our governments would be little or nothing else
than organized systems of plunder and oppression. All, or nearly
all, the advantage there is in fixing any constitutional limits to the
power of a government, is simply to give notice to the government
of the point at which it will meet with resistance. If the people are
then as good as their word, they may keep the government within
the bounds they have set for it; otherwise it will disregard them as
is proved by the example of all our American governments, in
which the constitutions have all become obsolete, at the moment
of their adoption, for nearly or quite all purposes except the
appointment of officers, who at once become practically absolute,
except so far as they are restrained by the fear of popular
resistance.
The bounds set to the power of the government, by the trial by
jury, as will hereafter be shown, are these that the government
shall never touch the property, person, or natural or civil rights of
an individual, against his consent, {xcept for the purpose of
bringing them before a jury for trial,) unless in pursuance and
execution of a judgment, or decree, rendered by a jury in each
individual case, upon such evidence, nd such law, as are
satisfactory to their own understandings and consciences,
irrespective of all legislation of the government.
[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 eases; that is, whether they had any conscientious scruples
against sustaining the law prescribing death as the punishment of
the crime to be trick; 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.
[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.
[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.
[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 Age, 240-2.
CHAPTER II. 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.
SECTION I
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."[1] 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."[2]
Parliament, so far as there was a parliament, was a mere council of
the king.[3] 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.[4] 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.[5] There
was no House of Commons at that time, and the people had no
right to be heard, unless as petitioners.[6]
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."[7] And other authorities abundantly corroborate this
assertion.[8]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 Englsh
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 powers 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 itwas that made the trial b 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.[9]
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-fie 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.
SECTION II.
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
utlagetor, aut exuletur, aut aliquo modo destruatur; nec super eum
ibimus, nec super eum mittemus, nisi per legale judicium parium
suorum, vel per legem terrae."[10]
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 terrae."
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, neo super eum mittemus."
The more common rendering has been, "nor wilt 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." [11]
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 fabricatin. 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.[12]
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 Charter.[13]
Mr. Christian speaks of this charter as settling the true meaning of
the corresponding clause of Magna Carta, on the principle tat laws
and charters on the same subject are to be construed with reference
to each other. See 3 Christin'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. [14]
Here the words used are these:
"Ne corpus liberi hominis capiatur nec imprisonetur nec
disseisetur nec ut1agetur nec exuletur nec aliquo modo destruatur
nec rex eat vel mittat super eun vi nisi per judicium pariurn
suorum vel per legem terrae."
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. [15]
It is evident that the difference between the true and false
translations of the words, nec super eum ibius, 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 of arms, represents the king only in
an executive character, carrying the judgment of the peers and "the
law of the land" into execution; where as 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 th 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 eers. 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 proceedngs 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. [16]
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 jndicium 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 paruim 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
terrae;" 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 setence 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, [17] two hundred years before
Magna Carta. Blackstone cites it as follows: (3 Blackstone, 350.)
"Nemo beneficium suum perdat, nisi secundum consuetu-dinem
antecessorum nostrorum, et judicium parium suorum." That is, No
one shall lose his estate, [18] 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
parian suorum means according to the sentence of his peers; thus
implying hat 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;
[19] and after the same manner a merchant, saving to him his
merchandise. And a villein shall be amerced after the same
manner, aving to him his waynage, [20] 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." [21]
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. [22]
"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 terrae."
One other phrase remains to be explained, viz., "per legem terrae,"
"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
terrae,as in the statute of Magna Carta,chap. 29, where certainly
the common law is principally intended by those words, aut per
legem terrae;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 Angliae,as in the statute of
Merton, cap. 9, "olurnus leqes Angliae 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 fo 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 terrae, 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 terraehad 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 woold have been sheer nonsense,
inasmuch as the whole purpot 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 againist him with force and arms, unless by
the judgment of his peers, or uness 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 theterm legem terrae. But if legem
terrae 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 terrae, 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 terrae 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 terrae 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 knownin 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 terrae," 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. [23]
For all practical puposes 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 terrae, 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 terrae, 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 terrae, 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 terrae,
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 on 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 "earl 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 rial, 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 shout 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. [25]
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 One, 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. [26]
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. [27]
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 terrae."
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
is material for us 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 punishmnts 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 terrae
did authorize.
But here the question arises, What then did legem terrae" 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 terrae 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 terrae, 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 nd 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 terrae 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 gettin 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 terra, or the common law.
Beyond the points now given, we hardly know anything, probably
nothing with certainty, as to what the "legem terran" 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 terrae," the common law. The trial
by peers was a part of legem terrae, and we have seen that the
peers must necessarily have governed the whole proceedings at the
tria1. 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 terrae, or common law, governing these other
proceedings, was somewhat similar to the common law principle,
on the same points, at the present day. Such seem to be the
opinions of Coke, who says that the phrase nisi per legem terrae
means unless by due process of law. Thus, he says: "Nisi per legem
terrae. But by the law of the land.
For the true sense and exposition of these words, see the statute f
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 terrae
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." 8t. 95 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 imprisond, nor disinherited,
nor put to death, without being brought in answer by due process
of law." 8t. 28 Aboard 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." 8t. 42 Edward IIL, Ch. 3. (1368.)
The foregoing interpretation of the words nisi per legem terrae
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, 6T6; 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." [28]
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 terrae 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 parian
suorun, vel per legem terrae, (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 terra;. 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 terrae, occurs.
Blackstone's Charters, p. 42 (41.) And the word vel is so frequently
used for et, that I amnot 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 interpretatios; but I do not offer it with much
confidence." 2 Hallam's Middle Ages, Ch. 8, Part 2, p. 449,
note." [29]
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 laud (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 upn, 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 Cart,
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.)
[1] Hume, Appendix 2,
[2] Crabbe's History of the English Law, 236.
[3] 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 comanche concilium regni
Anglicae, (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;) [4] 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.
[4] 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.
[5]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.
[6] 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."
[7] Hume, Appendix 2.
[8] This point will be more fully established hereafter.
[9] 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.
[10] The laws were, at that time, all written in Latin.
[11]"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.
[12] Perhaps the assertion in the text should be made with this
qualification that the words "per legem terrae," (according to the
law of the land,) and the words "per legale judiciun 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.
[13] See Blackstone'a Law Tracts, page 294, Oxford Edition
[14] 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. 350.
[15] 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.
[16] "Judgment, judicium. * * The sentence of the law,
pronounced by the court, upon the matter contained in the record."
8 Blackstone, 895. 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 andofficers, whom they appoint, to
administer justice in their stead." Chambers' Dict.
"Judgment. * * In law, the sentence or doom pronounced in any
case, civil orcriminal, 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 Rughead'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 f 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.
[17] 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.
[18] Beneficium was the legal name of an estate held by a feudal
tenure. See Spelman's Glossary.
[19]] Contenement of a freeman was the means of living in the
condition of a freeman.
[20] Waynage was a villein's plough-tackle and carts.
[21] 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 libe- rorum 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.
[22] 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, not
withstanding 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.
[23] The trial by battle was one in which the accused challenged
his accuser to single combat, and staked tbe 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 terrae" 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 terrae, 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 terrae," 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 Blacks,one 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. [24]
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 diferent 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 terrae."
[24] Hallam says, "It appears as if the ordeal were permitted to
persons already convicted by the verdict of a jury." 2 Middle
Ages, 446, note.
[25] 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 frown 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 punishments 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 Cart,) 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
measeled, 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 Ruffheads Statutes,
187, 188. 1 Statutes of the Realm, 203.
[26] 1 Hume, Appendix, l.
[27] 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. Bit 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 off 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 punishment of offenses. 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 and 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 amercement 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 methods' 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.
[28] Coke, in his exposition of the words legem terrae, gives quite
in detail the principles of the common law governing arrests, and
takes it for granted that the words "nisi per legem terre" are
applicable to arrests, as well as to the indictment, &c. 2 inst., 51,
52.
[29] 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 terrae authorized "judgments by default or demurrer,*'
without the intervention of a jury. He seems to imagine that lex
terrae, 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 terrae 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 plaintif 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 eases he has mentioned) were in
contemplation of the framers of Magna Carta " that is, as
exceptions to the rule requiring that all judgmcnts, 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 terrae, , or
the Common Law., Within the meaning of the legem terrae, of
Magna Carta, nothing but a common law, cause of action is a
"lawful", one.
CHAPTER III. ADDITIONAL PROOFS OF THE RIGHTS AND
DUTIES OF JURORS
If any evidence, extraneous to the history and language of Magna
Carta, were needed. to prove that, by that chapter which
guaranties the trial by jury, all was meant that has now been
ascribed to it, and that the legislation of the king was to be of
no authority with the jury beyond what they chose to allow to it,
and that the juries were to limit the punishments to be inflicted,
we should find that evidence in various sources, such as the laws,
customs, and characters of their ancestors on the continent, and
of the northern Europeans generally; in the legislation and customs
that immediately succeeded Magna Carta; in the oaths that have
at different times been administered to jurors, &c;., &c;. This
evidence can be exhibited here but partially. To give it all would
require too much space and labor
SECTION I
Weakness of the Regal Authority.
Hughes, in his preface to his translation of Horne's "Mirror of
Justices," (a book written in the time of Edward I, 1272 to
1307,) giving a concise view of the laws of England generally,
says:
"Although in the Saxon's time I find the usual words of the acts
then to have been edictum, (edict,) constitutio, (statute,)
little mention being made of the commons, yet I further find
that, tum demum Leges vim et vigorem habuerunt, cum fuerunt
non modo institutae sed firmatae approbatione communitatis." (The
laws had force and vigor only when they were not only enacted,
but confirmed by the approval of the community.)
The Mirror of Justices itself also says, (ch. 1, sec. 3,) in
speaking "Of the first Constitutions of the Ancient King."
"Many ordinances were made by many kings, until the time of the
king that now is (Edward I.); the which ordinances were abused,
or not used by many, nor very current, because they were not put
in writing, and certainly published." Mirror of Justices, p. 6.
Hallam says:
"The Franks, Lombards, and Saxons seem alike to have been
jealous of judicial authority; and averse to surrendering what concerned
every man's private right, out of the hands of his neighbors and
equals." 1 Middle Ages, 271.
The "judicial authority," here spoken of, was the authority of
the kings, (who at that time united the office of both
legislators and judges,), and not of a separate department of
government, called the judiciary, like what has existed in more
modern times. [1]
Hume says:
"The government of the Germans, and that of all the northern
nations, who established themselves on the ruins of Rome, was
always extremely free; and those fierce people, accustomed to
independence and inured to arms, were more guided by
persuasion, than authority, in the submission which they paid to their
princes. The military despotism, which had taken place n the
Roman empire, and which, previously to the irruption of those
conquerors, had sunk the genius of men, and destroyed every noble
principle of science and virtue, was unable to resist the
vigorous efforts of a free people, and Europe, as from a new
epoch, rekindled her ancient spirit, and shook off the base
servitude to arbitrary will and authority under which she had so
long labored. The free constitutions then established, however
impaired by the encroachments of succeeding princes, still
preserve an air of independence and legal administration, which
distinguished the European nations; and if that part of the globe
maintain sentiments of liberty, honor, equity, and valor,
superior to the rest of mankind, it owes these advantages chiefly
to the seeds implanted by those generous barbarians.
"The Saxons, who subdued Britain, as they enjoyed great liberty
in their own country, obstinately retained that invaluable
possession in their new settlement; and they imported into this
island the same principles of independence, which they had
inherited from their ancestors. The chieftains, ( for such they
were, more than kings or princes,) who commanded them in those
military expeditions, still possessed a very limited authority;
and as the Saxons exterminated, rather than subdued the ancient
inhabitants, they were, indeed, transplanted into a new
territory, but preserved unaltered all their civil and military
insfitutions. The language was pure Saxon; even the names of
places, which often remain while the tongue entirely changes,
were almost all affixed by the conquerors; the manners and
customs were wholly German; and the same picture of a fierce and
bold liberty, which is drawn by the masterly pen of Tacitus, will
suit those founders of the English government. The king, so far
from being invested with arbitrary power, was only considered as
the first among the citizens; his authority depended more on his
personal qualities than on his station; he was even so far on a
level with the people, that a stated price was fixed for his
head, and a legal fine was levied upon his murderer, which though
proportionate to his station, and superior to that paid for the
life of a subject, was a sensible mark of his subordination to
the community." 1 Hume, Appendix, l.
Stuart says:
"The Saxons brought along with them into Britain their own
customs, language, and civil institutions. Free in Germany, they
renounced not their independence, when they had conquered.
Proud from victory, and with their swords in their hands, would
they surrender their liberties to a private man? Would temporary
laders, limited in their powers, and unprovided in resources,
ever think to usurp an authority over warriors, who considered
themselves as their equals, were impatient of control, and
attached with devoted zeal to their privileges? Or, would they
find leisure to form resolutions, or opportunities to put them in
practice, amidst the tumult and confusion of those fierce and
bloody wars, which their nations first waged with the Britons,
and then engaged in among themselves? Sufficiently flattered in
leading the armies of their countrymen, the ambition of
commanders could as little suggest such designs, as the liberty
of the people could submit to them. The conquerors of Britain
retained their independence; and this island saw itself again in
that free state in which the Roman arms had discovered it.
"The same firmness of character, and generosity of manners,
which, in general, distinguished the Germans, were possessed in
an eminent degree by the Saxons; and while we endeavor to unfold
their political institutions, we must perpetually turn our
observation to that masterly picture in which the Roman historian
has described these nations. In the woods of Germany shall we
find the principles which directed the state of land, in the
different kingdoms of Europe; and there shall we find the
foundation of those ranks of men, and of those civil
arrangements, which the barbarians everywhere established; and
which the English alone have had the good fortune, or the spirit,
to preserve." Stuart on the Constitution of england, p. 59 - 61.
"Kings they (the Germans) respected as the first magistrates of
the state; but the authority possessed by them was narrow and
limited." Ditto, p. 134.
"Did he, (the king,) at any time, relax his activity and martial
ardor, did he employ his abilities to the prejudice of his
nation, or fancy he was superior to the laws; the same power
which raised him to honor, humbled and degraded him. The
customs and councils of his country pointed out to him his
duty; and if he infringed on the former, or disobeyed the latter,
a fierce people set aside his authority.
"His long hair was the only ornament he affected, and to be
foremost to attack an enemy was his chief distinction.
Engaged in every hazardous expedition, he was a stranger to
repose; and, rivalled by half the heroes of his tribe, he could
obtain little power. Anxious and watchful for the public
interest, he felt every moment his dependence, and gave
proofs of his suhmission.
"He attended the general assembly of his nation, and was allowed
the privilege to harangue it first; but the arts of persuasion,
though known and respected by a rude people, were unequally
opposed to the prejudices and passions of men." Ditto, p. 135 - 6.
"The authority of a Saxon mnarch was not more considerable. The
Saxons submitted not to the arbitrary rule of princes. They
administered an oath to their sovereigns, which bound them to
aeknowledge the laws, and to defend the rights of the church and
people; and if they forgot this obligation, they forfeited their
office. In both countries, a price was affixed on kings, a fine
expiated their murder, as well as that of the meanest citizen;
and the smallest violation of ancient usage,or the least step
towards tyranny, was always dangerous, and often fatal to them."
Ditto, p. 189-40.
"They were not allowed to impose taxes on the kingdom." Ditto,
p. 146.
"Like the German monarchs, they deliberated in the general
assembly of the nation; but their legislative authority was not
much respected; and their assent was considered in no better
light than as a form. This, however, was their chief prerogative;
and they employed it to acquire an ascendant in the state. To art
and insinuation they turned, as their only resource, and
flattered a people whom they could not awe; but address, and the
abilities to persuade, were a weak compensation for the absence
of real power.
"They declared war, it is said, and made peace. In both cases,
however, they acted as the instruments of the state, and put in
execution the resolutions which its councils had decreed. If,
indeed, an enemy had invaded the kingdoms, and its glory and its
safety were concerned, the great lords took the field at the call
of their sovereign. But had a sovereign declared war against a
neighboring state, without requiring their advice, or if he meant
to revenge by arms an insult offered to him by a subject, a
haughty and independent nobility refused their assistance. These
they considered as the quarrels of the king, and not of the
nation; and in all such emergencies he could only be assisted by
his retainers and dependents." Ditto, p. 147 8.
"Nor must we imagine that the Saxon, any more than the German
monarchs, succeeded each other in a lineal descent, [2] or that
they disposed of the crown at their pleasure. In both countries,
the free election of the people filled the throne; and their
choice was the only rule by which princes reigned. The
succession, accordingly, of their kings was often broken and
interrupted, and their depositions were frequent and groundless.
The will of a prince whom they had long respected, and the favor
they naturally transferred to his descendant, made them often
advance him to the royal dignity; but the crown of his ancestor
he cnsidered as the gift of the people, and neither expected nor
claimed it as a right." Ditto, p. 151 3.
In Germany "It was the business of the great to command in war,
and in peace they distributed justice.
"The princes in Germany were earls in England. The great
contended in both countries in the number of their retainers, and
in that splendor and magnificence which are so alluring to a rude
people; and though they joined to set bounds to regal power, they
were often animated against each other with the fiercest hatred.
To a proud and impatient nobility it seemed little and unsuiting
to give or accept compositions for the injuries they committed or
received; and their vassals adopting their resentment and
passions, war and bloodshed alone could terminate their quarrels.
What necessarily resulted from their situation in society, was
continued as a privilege; and the great, in both countries, made
war, of their private authority, on their enemies. The Saxon
earls even carried their arms against their sovereigns; and,
surrounded with retainers, or secure in fortresses and castles,
they despised their resentment, and defied their power.
"The judges of the people, they presided in both countries in
courts of law. [3] The particular districts over which they
exerted their authority were marked out in Germany by the council
of the state; and in England their jurisdiction extended over the
fiefs and other territories they possessed. All causes, both
civil and criminal, were tried before them; and they judged,
except in cases of the utmost importance, without appeal. They
were even allowed to grant pardon to criminals, and to correct by
their clemency the rigors of justice. Nor did the sovereign
exercise any authority in their lands. In these his officers
formed no courts, and his writ was disregarded.
"They had officers, as well as the king, who collected their
revenues, and added to their greatness; and the inhabitants of
their lands they distinguished by the name of subjects.
"But to attend the general assembly of their nation was the chief
prerogative of the German and Saxon princes; and as they
consulted the interest of their country, and eliberated
concerning matters of state, so in the king's court, of which
also they were members, they assisted to pronounce judgment in
the complaints and appeals which were lodged in it." Ditto, p.
158 to 165.
Henry says:
"Nothing can be more evident than this important truth; that our
Anglo-Saxon kings were not absolute monarchs; but that their
powers and prerogatives were limited by the laws and customs of
the country. Our Saxon ancestors had been governed by limited
monarchs in their native seats on the continent; and there is not
the least appearance or probability that they relinquished their
liberties, and submitted to absolute government in their new
settlements in this island. It is not to be imagined that men,
whose reigning passion was the love of liberty, would willingly
resign it; and their new sovereigns, who had been their
fellow-soldiers, had certainly no power to compel them to such a
resignation." 3 Henry's History of Great Britain, 358.
Mackintosh says:"The Saxon chiefs, who were called. kings,
originally acquired power by the same natural causes which have
gradually, and everywhere, raised a few men above their fellows.
They were, doubtless, more experienced, more skillful, more
brave, or more beautiful, than those who followed them. * * A
king was powerful in war by the lustre of his arms, and the
obvious necessity of obedience. His influence in peace fluctuated
with his personal character. In the progress of usage his power
became more fixed and more limited. * * It would be very
unreasonable to suppose that the northern Germans who had
conquered England, had so far changed their characteristic habits
from the age of Tacitus, that the victors became slaves, and that
their generals were converted into tyrants." Mackintosh's Hist.
of England, Ch. 2. 45 Lardner's Cab. Cyc., 73-4.
Rapin, in his discourse on the "Origin and Nature of the English
Constitution," says:
"There are but two things the Saxons did not think proper to
trust their kings with; for being of like passions with other
men, they might very possibly abuse them; namely, the power of
changing the laws enacted by consent of king and people; and the
power of raising taxes at pleasure.From these two articles sprung
numberless branches concerning the liberty and property of the
subject, which the king cannot touch, without breaking the
constitution, and they are the distinguishing character of the
English monarchy. The prerogatives of the crown, and the rights
and privileges of the people, flowing from the two fore-mentioned
articles, are the ground of all the laws that from time to time
have been made by unanimous consent of king and people. The
English government consists in the strict union of the king's
prerogatives with the people's liberties. * * But when kings
arose, as some there were, that aimed at absolute power, by
changing the old, and making new laws, at pleasure; by imposing
illegal taxes on the people; this excellent government being, in
a manner, dissolved by these destructive measures, confusion and
civil wars ensued, which some very wrongfully ascribe to the
fickle and restless temper of the English." Rapin's Preface to
his History of England.
Hallam says that among the Saxons, "the royal authority was
weak." 2 Middle Ages, 403.
But although the king himself had so little authority, that it
cannot be supposed for a moment that his laws were regarded as
imperative by the people, it has nevertheless been claimed, in
modern times, by some who seem determined to find or make a
precedent for the present legislative authority of parliament,
that his laws were authoritative, when assented to by the Witena
- gemote, or assembly of wise men that is, the bishops and
barons. But this assembly evidently had no legislative power ,
whatever. The king would occasionally invite the bishops and
barons to meet him for consultation on public affairs, simply as
a council, and not as a legislative body. Such as saw fit to
attend, did so. If they were agreed upon what ought to be done,
the king would pass a law accordingly, and the barons and bishops
would then return and inform the people orally what laws had been
passed, and use their influence with them to induce them to
conform to the law of the king, and the recommendation of the
council. ' And the people no doubt were much more likely to
accept a law of the king, if it had been approved by this
council, than if it had not. But it was still only a law of the
king, which they obeyed or disregarded according to their own
notions of expediency. The numbers who usually attended this
council were too small to admit of the supposition that they had
any legislative authority whatever, to impose laws upon the
people against their will.
Lingard says:
"It was necessary that the king should obtain the assent of these
(the members o the Witena-gemotes) to all legislative enactments;
because, without their acquiescence and support, it was
impossible to carry them into execution. To many charters (laws)
we have the signatures of the Witan. They seldom exceed thirty in
number; they never amount to sixty." 1 Lingard; 486.
It is ridiculous to suppose that the assent of such an assembly
gave any authority to the laws of the king, or had any influence
in securing obedience to them, otherwise than by way of
persuasion. If this body had had any real legislative authority,
such as is accorded to legislative bodies of the present day,
they would have made themselves at once the most conspicuous
portion of the government, and would have left behind them
abundant evidence of their power, instead of the evidence simply
of their assent to a few laws passed by the king.
More than this. If this body had had any real legislative
authority, they would have constituted an aristocracy, having, in
conjunction with the king, absolute power over the people.
Assembling voluntarily, merely on the invitation of the king;
deputed by nobody but themselves; representing nobody but
themselves; responsible to nobody but themselves; their
legislative authority, if they had had any, would of necessity
have made the government the government of an aristocracy
merely, and the people slaves, of course. And this would
necessarily have been the picture that history would have
given us of the Anglo-Saxon government, and of Anglo-Saxon
liberty.
The fact that the people had no representation in this assembly,
and the further fact that, through their juries alone, they
nevertheless maintained that noble freedom, the very tradition of
which (after the substance of the thing itself has ceased to
exist) has constituted the greatest pride and glory of the nation
to this day, prove that this assembly exercised no authority
which juries of the people acknowledged, except at their own
discretion. [4]
There is not a more palpable truth, in the history of the
Anglo-Saxon government, than that stated in the Introduction to
Gilbert's History of the Common Pleas, [5] viz.. "that the
County aud Hundred Courts," (to which should have been added
the other courts in which juries sat, the courts-baron and
court-leet,) "in those times were the real and only Parliaments
of the kingdom." And why were they the real and only parliaments
of the kingdom? Solely because, as will be hereafter shown, the
juries in those courts tried causes on their intrinsic merits,
according to their own ideas of justice, irrespective of the laws
agreed upon by kings, priests, and barons; and whatever
principles they uniformly, or perhaps generally, enforced, and
none others, became practically the law of the land as matter of
course. [6]
Finally, on this point. Conclusive proof that the legislation of
the king was of little or no authority, is found in the fact that
the kings enacted so few laws. If their laws had been received as
authoritative, in the manner that legislative enactments are at
this day, they would have been making laws continually. Yet the
codes of the most celebrated kings are very small, and were
little more than compilations of immemorial customs. The code of
Alfred would not fill twelve pages of the statute book of
Massachusetts, and was little or nothing else than a compilation
of the laws of Moses, and the Saxon customs, evidently collected
from considerations of convenience, rather than enacted on the
principle of authority. The code of Edward the Confessor would
not fill twenty pages of the statute book of Massachusetts, and,
says Blackstone, "seems to have been no more than a new edition,
or fresh promulgation of Alfred's code, or dome-book, with such
additions and improvements as the experience of a century and a
half suggested." 1 Blackstone, 66. [7]
The Code of Wiliiam the Conqueror [8] would fill less than seven
pages of the statute book of Massachusetts; and most of the laws
contained in it are taken from the laws of the preceding kings,
and especially of Edward the Confessor (whose laws William
swore to observe); but few of his own being added.
The codes of the other Saxon and Norman kings were, as a general
rule, less voluminous even than these that have been named; and
probably did not exceed them in originality. [9] The Norman
princes, from William the Conqueror to John, I think without
exception, bound themselves, and, in order to mqintain their
thrones, were obliged to bind themselves, to observe the ancient
laws and customs, in other words; the "lex terrae," or "common
law" of the kingdom. Even Magna Carta contains hardly anything
other than this same "common law," with some new securities for
its observance.
How is this abstinence from legislation, on the part of the
ancient kings, to be accounted for, except on the supposition
that the people would accept, and juries enforce, few or no new
laws enacted by their kings? Plainly it can be accounted. for in
no ether way. In fact, all history informs us that anciently the
attempts of the kings to introduce or establish new laws, met
with determined resistance from the people, and generally
resulted in failure "Nolumus Leges Angliae mutari" (we will that
the laws of England be not changed,) was a determined principle
with the Anglo-Saxons, from which they seldom departed, up to
the time of Magna Carta, and indeed until long after. [10]
SECTION II
The Ancient Common Law Juries were mere Courts of
Conscience.
But it is in the administration of justice, or of law, that the
freedom or subjection of a people is tested. If this
administration be in accordance with the arbitrary will of the
legislator that is, if his will, as it appears in his statutes,
be the highest rule of decision known to the judicial tribunals,
the government is a despotism, and the people are slaves. If, on
the other hand, the rule of decision be these principles of
natural equity and justice, which constitute, or at least are
embodied in, the general conscience of mankind, the people are
free in just so far as that conscience is enlightened.
That the authority of the king was of little weight with the
judicial tribunals, must necessarily be inferred from the fact
already stated, that his authority over the people was but weak.
If the authority of his laws had been paramount in the judicial
tribunals, it would have been paramount with the people, of
course; because they would have had no alternative but
submission. The fact, then, that his laws were not authoritative
with the people, is proof that they were not authoritative with
the tribunals in other words, that they were not, as matter of
course, enforced by the tribunals.
But we have additional evidence that, up to the time of Magna
Carta, the laws of the king were not binding upon the judicial
tribunals; and if they were not binding before that time, they
certainly were not afterwards, as has already been shown from
Magna Carta itself. It is manifest from all the accounts we have
of the courts in which juries sat, prior to Magna Carta, such as
the court-baron, the hundred court, the court-leet, and the
county court, that they were mere courts of conscience, and that
the juries were the judges, deciding causes according to their
own notions of equity, and not according to any laws of the king,
unless they thought them just.
These courts, it must be considered, were very numerous, and held
very frequent sessions. There were probably seven, eight, or nine
hundred courts a month, in the kingdom; the object being, as
Blackstone says, "To bring justice home to every man's door." (3
Blackstone, 80.) The number of the county courts, of course,
corresponded to the number of counties, (36.) The court-leet was
the criminal court for a district less than a county. The hundred
court was the court for one of those districts anciently called a
hundred, because, at the time of their first organization for
judicial purposes, they comprised, (as is supposed) but a hundred
families. [11] The court-baron was the court for a single manor,
and there was a court for every manor in the kingdom. All these
courts were holden as often as once in three or five weeks; the
county court once a month. The king's judges were present at none
of these courts; the only officers in attendance being sheriffs
bailiff's, and stewards, merely ministerial, and not judicial,
officers; doubtless incompetent, and, if not incompetent,
untrustworthy, for giving the juries any reliable information in
matters of law, beyond what was already known to the jurors
themselves.
And yet these were the courts, in which was done all the judicial
business, both civil and criminal, of the nation, except appeals,
and some of the more important and difficult cases. [12] It is
plain that the juries, in these courts, must, of necessity, have
been the sole judges of all matters of law whatsoever; because
there was no one present, but sheriffs, bailiffs, and stewards,
to give them any instructions; and surely it will not be pretended
that the jurors were bound to take their law from such sources
as these.
In the second place, it is manifest that the principles of law,
by which the juries determined causes, were, as a general rule,
nothing else than their own ideas of natural equity, and not any
laws of the king; because but few laws were enacted, and many of
those were not written, but only agreed upon in council. [13] Of
those that werewritten, few copies only were made, (printing
being then unknown,) and not enough to supply a11, or any
considerable number, of these numerous courts. Beside and
beyond all this, few or none of the jurors could have read the laws, if
they had been written; because few or none of the common people
could, at thattime, read. Not only were the common people unable
to read their own language, but, at the time of Magna Carta, the
laws were written in Latin, a language that could be read by few
persons except the priests, who were also the lawyers of the
nation. Mackintosh says, "the first act of the House of Commons
composed and recorded in the English tongue," was in 1415, two
centuries after Magna Carta. [14]. Up to this time, and for some
seventy years later, the laws were generally written either in Latin
or French; both languages incapable of being read by the common
people, as well Normans as Saxons; and one of them, the Latin,
not only incapable of being read by them, but of beingeven
understood when it was heard by them.
To suppose that the people were bound to obey, and juries to
enforce, laws, many of which were unwritten, none of which they
could read, and the larger part of which (those written in Latin)
they could not translate, or understand when they heard them
read, is equivalent to supposing the nation sunk in the most
degrading slavery, instead of enjoying a liberty of their own
choosing.
Their knowledge of the laws passed by the king was, of course,
derived only from oral information; and the good laws,"as some of
them were called, in contradistinction to others those which
the people at large esteemed to be good laws were doubtless
enforced by the juries, and the others, as a general thing,
disregarded. [15]
That such was the nature of judicial proceedings, and of the
power of juries, up to the time of Magna Carta, is further shown
by the following authorities.
"The sheriff's and bailiffs caused the free tenants of their
bailiwics to meet at their counties and hundreds; at which
justice was so done, that every one so judged his neighbor by
such judgment as a man could not elsewhere receive in the like
cases, until such times as the customs of the realm were put in
writing, and certainly published.
"And although a freeman commonly was not to serve (as a juror or
judge) without his assent, nevertheless it was assented unto that
free tenants should meet together in the counties and hundreds,
and lords courts, if they were not specially exempted to do such
suits, and there judged their neighbors." Mirror of Justices,
p. 7, 8.
Gilbert, in his treatise on the Constitution of England, says:
"In the county courts, if the debt was above forty shillings,
there issued a justicies (a commission) to the sheriff, to enable
him to hold such a plea, where the suitors (jurors) are judges of
the law and fact." Gilbert's Cases in Law and Equity, &c;.,
&c;., 456.
All the ancient writs, given in Glanville, for summoning jurors,
indicate that the jurors judged of everything, on their
consciences only. The writs are in this form:
"Summon twelve free and legal men (or sometimes twelve
knights)
to be in court, prepared upon their oaths to declare whether A or
B have the greater right to the land {or other thing) in
question." See Writs in Beames' Glanville, p. 54 to 70, and 233
306 to 832.
Crabbe, speaking of the time of Henry I., (1100 to 1135,)
recognizes the fact that the jurors were the judges. He says:
"By one law, every one was to be tried by his peers, who were of
the same neighborhood as himself. * *By another law, the judges,
for so the jury were called, were to be chosen by the party
impleaded, after the manner of the Danish nem-bas; by which,
probably, is to be understood that the defendant had the liberty
of taking exceptions to, or challenging the jury, as it was
afterwards called." Crabbe's History of the English Law, p. 55.
Reeve says:
"The great court for civil business was the county court; held
once every four weeks. Here the sheriff presided; but the suitors
of the court, as they were called, that is, the freemen or
landholders of the county, were the judges; and the sheriff was
to execute the judgment.
"The hundred court was held before some bailiff; the leet before
the lord of the manor's steward.[16]
"Out of the county court was derived an inferior court of civil
jurisdiction, called the court-baron. This was held from three
weeks to three weeks, and was in every respect like the county
court;" (that is, the jurors were judges in it;) "only the lord
to whom this franchise was granted, or his steward presided
instead of the sheriff;" 1 Reeve's History of the English Law,
p. T.,
Chief Baron Gilbert says:
"Besides the tenants of the king, which held per baroniam, (by
the right of a baron,) and did suit and service (served as
judges) at his own court; and the burghers and tenants in ancient
demesne, that did suit and service (served as jurors or judges)
in their own court in person), and in the king's by proxy, there
was also a set of freeholders, that did suit aud service (served
as jurors) at the county court. These were such as anciently held
of the lord of the county, and by the escheats of earldoms had
fallen to the king; or such as were granted out by service to
hold of the king, but with particular reservation to do suit and
service (serve as jurors) before the kng's bailiff; because it
was necessary the sheriff, or bailiff of the king, should have
suitors (jurors) at the county court, that the business might be
despatched. These suitors are the pares (peers) of the county
court, and indeed the judges of it; as the pares (peers) were the
judges in every court-baron; and therefore the king's bailiff
having a court before him, there must be pares or judges, for the
sheriff himself is not a judge; and though the style of the court
is Curia prima Comitatus E. C. Milit.' vicecom' Comitat' praed'
Tent' apud B., &c;. (First Court of the county, E. C. knight,
sheriff of the aforesaid county, held at B., &c;.); by which it
appears that the court was the s1ieriff's; yet, by the old feudal
constititions, the lord was not judge, but the pares (peers)
only; so that, even in a justicies, which was a commission to the
sheriff to hold plea of more than was allowed hy the natural
jurisdiction of a county court, the pares (peers, jurors) only
were judges, and not the sheriff; because it was to hold plea in
the same manner as they used to do in that (the lord's) court."
Gilbert on the Court of Exchequer, ch. 5. 61- 2.
"It is a distinguishing feature of the feudal system, to make
civil jurisdiction necessarily, and criminal jurisdiction
ordinarily, coextensive with tenure; and accordingly there is
inseparably incident to every manor a court-baron (curia
baronum), being a court in which the freeholders of the manor are
the sole judges, but in which the lord, by himself or more
commonly by his steward, presides." Political Dictionary, word
Manor.
The same work, speaking of the county court, says: "The judges
were the freeholders who did suit to the court." See word Courts.
"In the case of freeholders attending as suitors, the county
court or court-baron., (as in the case of the ancient tenants per
baroniam attending Parliament,) the suitors are the judges of the
court, both for law and for fact, and the sheriff or the under
sheriff in the county court, and the lord or his steward in the
court-baron, are only presiding officers, with no judicial
authority." Political Dictionary, word Suit.
"Court, (curtis, curia aula); the space enclosed by the walls of
a feudal residence, in which the followers of a lord used to
assemble in the middle ages, to administer justice, and decide
respecting affairs of common interest, &c;. It was next used for
those who stood in immediate connexion with the lord and master,
the pares curiae, (peers of the court,) the limited portion of
the general assembly, to which was entrusted the pronouncing of
judgment," &c;. Encyclopedia Americana, word Court.
"In court-barons or county courts the steward was not judge, but
the pares (peers, jurors); nor was the speaker in the House of
Lords judge, but the barons only." Gilbert on the Court of
Rxchequer, ch. 3, p. 42.
Crabbe, speaking of the Saxon times, says:
"The sheriff presided at the hundred court, * * and sometimes sat
in the place of the alderman (earl) in the county court."
Crabbe, 23.
The sheriff afterwards became the sole presiding officer of the
county court.
Sir Thomas Smith, Secretary of State to queen Elizabeth, writing
more than three hundred years after Magna Carta, in describing
the difference between the Civil Law and the English Law, says:
"Judex is of us called Judge, but our fashion is so divers, that
they which give the deadly stroke, and either condemn or acquit
the man for guilty or not guilty, are not called judges, but the
twele men. And the same order as well in civil matters and
pecuniary, as in matters criminal." Smith's Commonwealth of
England, ch. 9, p. 53, Edition of 1621.
Court-Leet. "That the leet is the most ancient court in the land
for criminal matters, (the court-baron being of no less antiquity
in civil,) has been pronounced by the highest legal authority. *
* Lord Mansfield states that this court was coeval with the
establishment of the Saxons here, and its activity marked very
visibly both among the Saxons and Danes. * * The leet is a court
of record for the cognizance of criminal matters, or pleas of the
crown; and necessarily belongs to the king; though a subject,
usually the lord of the manor, may be, and is, entitled to the
profits, consisting of the essoign pence, fines, and amerciaments
"It is held before the steward, or was, in ancient times, before
the bailiff, of the lord." Tomline's Law Dict., word
Court-Leet.
Of course the jury were the judges in this court, where only a
"steward" or "bailiff" of a manor presided.
"No cause of consequence was determined without the king's writ;
for even in the county courts, of the debts, which were above
forty shillings, there issued a Justicies (commission) to the
sheriff, to enable him to hold such plea, where the suitors are
judges of the law and fact." Gilbert's History of the Common
Pleas, Introduction, p. 19.
"This position" (that " the matter of law was decided by the
King's Justices, but the matter of fact by the pares ") "is wholly
incompatible with the common law, for the Jurata ( jury)
were the sole judges both of the law and the fact." Gilbert's
History of the Common Pleas, p. 70, note.
"We come now to the challenge: and of old the suitors in court,
who were judge, could not he challenged; nor by the feudal law
could the pares be even challenged. Pares qui ordinariam
jurisdictionem habent recusari non possunt; (the peers who have
ordinary jurisdiction cannot be rejected;) "but those suitors who
are judges of the court, could not be challenged; and the reason
is, that there are several qualifications required by the writ,
viz., that they be liberos et legales homines de vincineto (free
and legal men of the neighborhood) of the place laid in the
declaration," &c;., &c;. Ditto, p.93.
"Ad questionem juris non respondent Juratores." (To the question
of law the jurors do not answer.) "The Annotist says, that this
is indeed a maxim in the Civil-Law Jurisprudence, but it does not
bind an English jury, for by the common law of theland the jury
are the judges as well of the matter of law, as of the fact, with
this difference only, that the [a Saxon word] or judge on the
bench is to give them no assistance in determining the matter of
fact, but if they have any doubt among themselves relating to
matter of law, they may then request him to explain it to them,
which when he hath done, and they are thus become well
informed, they, and they only, become competent judges of the
matter of law. And this is the province of the judge on the bench,
namely, to show, or teach the law, but not to take upon him the
trial of the delinquent, either in matter of fact or in matter of law."
(Here various Saxon laws are quoted.) "In neither of these
fundamental laws is there the least word, hint, or idea, that the
earl or alderman (that is to say, the Prepositus (presiding
officer) of the court, which is tantamount to the judge on the
bench) is to take upon him to judge the delinquent in any sense
whatever, the sole purport of his office is to teach the secular
or worldly law." Ditto, p. 57, note.
"The administration of justice was carefully provided for; it was
not the caprice of their lord, but the sentence of their peers,
that they obeyed. Each was the judge of his equals, and each by
his equals was judged." Introd. to Gilbert on Tenures, p. 12.
Hallam says:
"A respectable class of free socagers, having, in general, full
rights of alienating their lands, and holding them probably at
a small certain rent from the lord of the manor, frequently
occur in Domes-day Book. * * They undoubtedly were suitors
to the court-baron of the lord, to whose soc, or right of
justice, they belonged. They where consequently judges in civil
causes, determined before the manorial tribunal." 2 Middle
Ages, 481.
Stephens adopts as correct the following quotations from Blackstone:
"The Court-Baron is a court incident to every manor in the kingdom,
to be holden by the steward within the said manor." * *
It "is a court of common law, and it is the court before the
freeholders who owe suit and service to the manor," (are bound to
serve as jurors in the courts of the manor,) "the steward being
rather the registrar than the judge. * * The freeholders' court
was composed of the lord's tenants, who were the pares(equals) of
each other, and were bound by their feudal tenure to assist their
lord in the dispensation of domestic justice. This was formerly
held every three weeks; and its most important business was to
etermine, by writ of right, all controversies relating to the right
of lands within the manor." 3 Stephens' Commentaries, 392 3.
3 Blackstone, 32-33.
"A Hundred Court is only a larger court-baron, being held for all
the inhabitants of a particular hundred, instead of a manor. The
free suitors ( jurors) are here also the judges, and the steward
the register." 3 Stephens, 394. 3 Blackstone, 33.
"The County Court is a court incident to the jurisdiction of the
sheriff. * * The freeholders of the county are the real judges in
this court, and the sheriff is the ministerial officer." 3
Stephens, 395 6. 3 Blackstone, 35-6.
Blackstone describes these courts, as courts "wherein injuries
were redressed in an easy and expeditious manner, by the suffrage
of neighbors and friends." 3 Blackstone, 30.
"When we read of a certain number of freemen chosen by the
parties to decide in a dispute all bound by oath to vote in
foro conscientia and that their decision, not the will of the
judge presiding, ended the suit, we at once perceive that a great
improvement has been made in the old form of compurgation an
improvement which impartial observation can have no hesitation
to pronounce as identical in its main features with the trial by
jury." Dunham's Middle Ages, Sec. 2, B. 2, Ch. 1. 57 Lardner's
Cab. Cyc., 60.
"The bishop and the earl or, in his absence, the gerefa,
(sheriff,) and sometimes both the earl and the gerefa, presided
at the schyre-mote (county court); the gerefa (sheriff) usually
alone presided at the mote (meeting or court) of the hundred. In
the cities and towns which were not within any peculiar
jurisdiction, there was held, at regular stated intervals, a
burgh mote, (borough court,) for the administration of justice,
at which a gerefa, or a magistrate appointed by the king,
presided." Spence's Origin of the Laws and Political
Institutions of Modern Europe, p. 444.
"The right of the plaintiff and defendant, and of the prosecutor
and criminal, to challenge the judices, (judges.) or assessors,
[17] appointed to try the cause in civil matters, and to decide
upon the guilt or innocence of the accused in criminal matters,
is recognized in the treatise called the Laws of Henry the First;
but I cannot discover, from the Anglo-Saxon laws or histories,
that before the Conquest the parties had any general right of
challege; indeed, had such right existed, the injunctions to all
persons standing in the situation of judges (jurors) to do right
according to their conscience, would scarcely have been so
frequently and anxiously repeated." Spence, 456.
Hale says:
"The administration of the common justice of the kingdom seems
to be wholly dispensed in the county courts, hundred courts, and
courts-baron; except some of the greater crimes reformed by the
laws of King Henry I., and that part thereof which was sometimes
taken up by the Justitiarius Angliae.
This doubtless bred great inconvenience, uncertainty, and variety
in the laws, viz.:
"First, by the ignorance of the judges, which were the
freeholders of the county.* *
"Thirdly, a third inconvenience was, that all the business of any
moment was carried by parties and factions. For the freeholders
being generally the judges, and conversing one among another, and
being as it were the chief judges, not only of the fact, but of
the law; every man that had a suit there, sped according as he
could make parties." 1 Hale's History of the Common Law, p.
246.
"In all these tribunals," (county court, hundred court, &c;..)
"the judges were the free tenants, owing suit to the court, and
afterwards called its peers." 1 Lingard's History of England,
488.
Henry calls the twelve jurors "assessors," and says:
"These assessors, who were in reality judges, took a solemn oath,
that they would faithfully discharge the duties of their office,
and not suffer an innocent man to be condemned, nor any guilty
person to be acquitted." 3 Henry's History of Great Britain,
346.
Tyrre11 says:
"Alfred cantoned his kingdom, first into Trihings and Lathes, as
they are still called in Kent and other places, consisting of
three or four Hundreds; in which, the freeholders being judges,
such causes were brought as could not be determined in the
Hundred court." Tyrrell's Introduction to the History of
England, p. 80.
Of the Hundred Court he says:
"In this court anciently, one of the principal inhabitants,
called the alderman, together with the barons of the Hundred [18]
id est the freeholders was judge." Ditto, p. 80.
Also he says:
"By a law of Edward the Elder, 'Every sheriff shall convene the
people once a month, and do equal right to all, putting an end to
controversies at times appointed.'" Ditto, p. 86.
A statute, emphatically termed the ' Grand Assize,' enabled the
defendant, if he thought proper, to abide by the testimony of the
twelve good and lawful knights, chosen by four others of the
vicinage, and whose oaths gave a final decision to the contested
claim,." 1 Palgrave's Rise and Progress of the English
Commonwealth, 261.
"From the moment when the crown became accustomed to the
'Inquest,' a restraint was imposed upon every branch of the
prerogative. The king could never be informed of his rights, but
through the medium of the people. Every 'extent' by which he
claimed the profits and advantages resulting from the casualties
of tenure, every process by which he repressed the usurpations of
the baronage, depended upon the 'good men and true' who were
impaneled to 'pass' between the subject and the sovereign; and
the thunder of the Exchequer at Westminster might be silenced by
the honesty, the firmness, or the obstinacy, of one sturdy knight
or yeoman in the distant shire.
Taxation was controlled in the same manner by the voice of those
who were most liable to oppression. * * A jury was impaneled to
adjudge the proportion due to the sovereign; and this course was
not essentially varied, even after the right of granting aids to
the crown was fully acknowledged to be vested in the parliament
of the realm. The people taxed themselves; and the collection of
the grants was checked and controlled, and, perhaps, in many
instances evaded, by these virtual representatives of the
community.
The principle of the jury was, therefore, not confined to its
mere application as a mode of trying contested facts, whether in
civil or criminal cases; and, both in its form and in its
consequences, it had a very material influence upon the general
constitution of the realm. * *The main-spring of the machinery of
remedial justice existed in the franchise of the lower and lowest
orders of the political hierarchy. Without the suffrage of the
yeoman, the burgess, and the churl, the sovereign could not
exercise the most important and most essential function of
royalty; from them he received the power of life and death; he
could not wield the sword of justice until the humblest of his
subjects placed the weapon in his hand." 1 Palgrave's Rise and
Progress of the English Constitution, 274 7.
Coke says,
"The court of the county is no court of record, [19]
and the suitors are the judges thereof." 4 Inst.) 266.
Also, "The court of the Hundred is no court of record, and the
suitors be thereof judges." 4 Inst., 267.
Also, "The court-baron is a court incident to every manor, and is
not of record, and the suitors be thereof judges." 4 Inst.,
268.
Also, "The court of ancient demesne is in the nature of a
court-baron, wherein the suitors are judges, and is no court of
record." 4 Inst., 269.
Millar says,
"Some authors have thought that jurymen were originally
compurgators, called by a defendant to swear that they
believed him innocent of the facts with which he was charged. . .
But . . . compurgators were merely witnesses; jurymen were, in
reality, judges. The former were called to confirm the oath of
the party by swearing, according to their belief, that he had
told the truth, (in his oath of purgation;) the latter were
appointed to try, by witnesses, and by all other means of proof,
whether he was innocent or guilty. Juries were accustomed to
ascertain the truth of facts, by the defendant's oath of
purgation, together with that of his compurgators. . . Both of
them (jurymen and compurgators) were obliged to swear that they
would tell truth.
According to the simple idea of our forefathers, guilt or innocence
was regarded as a mere matter of fact; and it was thought that no
man, who knew the real circumstances of a case, could be at a
loss to determine whether the culprit ought to be condemned or
acquitted." 1 Millar's Hist. View of Eng. Gov., ch. 12, p. 332 - 4.
Also, "The same form of procedure, which took place in the
administration of justice among the vassals of a barony, was
gradually extended to the courts eld in the trading towns."
Same, p. 335.
Also, "The same regulation, concerning the distribution of
justice by the intervention of juries, . . .were introduced into
the baron courts of the king, as into those of the nobility, or
such of his subjects as retained their allodial property."
Same, p. 337.
Also, "This tribunal" (the aula regis, or king's court, afterwards
divided into the courts of King's Bench, Common Pleas,
and Exchequer) "was properly the ordinary baron-court of the
king; and, being in the same circumstances with the baron courts
of the nobility, it was under the same necessity of trying causes
by the intervention of a jury." Same, vol. 2, p. 292.
Speaking of the times of Edward the First, (1272 to 1307,) Millar
says:
"What is called the petty jury was therefore introduced into
these tribunals, (the King's Bench, the Common Pleas, and the
Exhequer,) as well as into their anxiliary courts employed to
distribute justice in the circuits; and was thus rendered
essentially necessary in determining causes of every sort,
whether civil, criminal, or fiscal." Same, vol. 2, p. 293-4.
Also, "That this form of trial (by jury) obtained universally in
all the feudal governments, as well as in that of Eng-1and, there
can be no reason to doubt. In France, in Germany, and in other
European countries, where we have any accounts of the
constitution and procedure of the feudal courts, it appears that
lawsuits of every sort concerning the freemen or vassals of a
barony, were determined by the pares curiae (peers of the court;)
and that the judge took little more upon him than to regulate the
method of proceeding, or to declare the verdict of the jury."
Same, vol. 1, ch. 12, p. 329.
Also, "Among the Gothic nations of modern Europe, the custom of
deciding lawsuits by a jury seems to have prevailed universally;
first in the allodial courts of the county, or of the hundred,
and afterwards in the baron-courts of every feudal superior."
Same, vol. 2, p. 296.
Palgrave says that in Germany "The Graff (gerefa, sheriff) placed
himself in the seat of judgment, and gave the charge to the
assembled free Echevins, warning them to pronounce judgment
according to right and justice." 2 Palgrave, 147.
Also, that, in Germany, "The Echevins were composed of the
villanage, somewhat obscured in their functions by the learning
of the grave civilian who was associated to them, and somewhat
limited by the encroachments of modern feudality; but they were
still substantially the judges of the court." Same, 148.
Palgrave also says, "Scotland, in like manner, had the laws of
Burlaw, or Birlaw, which were made and determined by the
neighbors, elected by common consent, in the Burlaw or Birlaw
courts, wherein knowledge was taken of complaints between
neighbor and neighbor, which men, so chosen, were judges and
arbitrators, and called Birlaw men." 1 Palgrave's Rise, &c;.,
p. 80.
But, in order to understand the common law trial by jury, as it
existed prior to Magna Carta, and as it, was guaranteed. by that
instrument, it is perhaps indispensable to understand more fully
the nature of the courts in which juries sat, and the extent of
the powers exercised by juries in those courts. I therefore give
in a note extended extracts, on these points, from Stuart on the
Constitution of England, and from Blackstone's Commentaries.
[20]
That all these courts were mere courts of conscience, in which
the juries were sole judges, administering justice according to
their own ideas of it, is not only shown by the extracts already
given, but is explicitly acknowledged in the following one, in
which the modern "courts of conscience" are compared with the
ancient hundred and county courts, and the preference given to
the latter, on the ground that the duties of the jurors in the
one case, and of the commissioners in the other, are the same,
and that the consciences of a jury are a safer and purer
tribunal than the consciences of individuals specially appointed,
and holding permanent offices.
"But there is one species of courts constituted by act of
Parliament, in the city of London, and other trading and populous
districts, which, in their proceedings, so vary from the course
of the common law, that they deserve a more particular
consideration. I mean the court of requests, or courts of
conscience, for the recovery of small debts. The first of these
was established in London so early as the reign of Henry VIII.,
by an act of their common council; which, however, was certainly
insufficient for that purpose, and illegal, till confirmed by
statute 3 Jac. I., ch. 15, which has since been explained and
amended by statute 14 Geo. II., ch. 10. The constitution is this:
two aldermen and four commoners sit twice a week to hear all
causes of debt not exceeding the value of forty shillings; which
they examine in a summary way, by the oath of the parties or
other witnesses, and make such order therein as is consonant to
equity and good conscience.i * * * Divers trading towns and
other districts have obtained acts of Parliament, for
establishing in them courts of conscience upon nearly the same
plan as that in the city of London.
"The anxious desire that has been shown to obtain these several
acts, proves clearly that the nation, ingeneral, is truly
sensible of the great inconvenience arising from the disuse of
the ancient county and hundred courts, wherein causes of this
small value were always formerly decided with very little trouble
and expense to the parties. But it is to be feared that the
general remedy, which of late hath been principally applied to
this inconvenience, (the erecting these new jurisdictions,) may
itself be attended in time with very ill consequences; as the
method of proceeding therein is entirely in derogation of the
common law; and their large discretionary powers create a petty
tyranny in a set of standing commissioners; and as the disuse of
the trial by jury may tend to estrange the minds of the people
from that valuable prerogative of Englishmen, which has already
been more than sufficiently excluded in many instances. How
much rather is it to be wished that the proceedings in the county
and hundred courts could be again revived, without burdening
the freeholders with too frequent and tedious attendances; and
at the same time removing the delays that have insensibly crept
into their proceedings, and the power that either party has of
transferring at pleasure their suits to the courts at Westminster!
And we may, with satisfaction, observe, that this experiment has
been actually tried, and has succeeded in the populous county of
Middlesex, which might serve as an example for others. For by
statute 23 Geo. II., ch. 33, it is enacted:
1. That a special county court shall be held at least once in a
month, in every hundred of the county of Middlesex, by the county
clerk.
2. That twelve freeholders of that hundred, qualified to serve on
juries, and struck by the sheriff, shall be summoned to appear at
such court by rotation; so as none shall be summoned oftener than
once a year.
3. That in all causes not exceeding the value of forty shillings,
the county clerk and twelve suitors (jurors) shll proceed in a
summary way, examining the parties and witnesses on oath,
without the formal process anciently used; and shall make
such order therein as they shall judge agreeable to conscience."
3 Blackstone, 81 83.
What are these but courts of conscience? And yet Blackstone tells
us they are a revival of the ancient hundred and county courts.
And what does this fact prove, but that the ancient common law
courts, in which juries sat, were mere courts of conscience?
It is perfectly evident that in all these courts the jurors were
the judges, and determined all questions of law for themselves;
because the only alternative to that supposition is, that the
jurors took their law from sheriffs, bailiffs, and stewards, of
which there is not the least evidence in history, nor the least
probability in reason. It is evident, also, that they judged
independently of the laws of the king, for the reasons before
given, viz., that the authority of the king was held in very,
little esteem; and, secondly, that the laws of the king (not
being printed, and the people being unable to read them if they
had been printed) must have been in a great measure unknown to
them, and could have been received by them only on the authority
of the sheriff, bailiff; or steward. If laws were to be received
by them on the authority of these officers, the latter would have
imposed such laws upon the people as they pleased.
These courts, that have now been described, were continued in
full power long after Magna Carta, no alteration being made in
them by that instrument, nor in the mode of administering justice
in them.
There is no evidence whatever, so far as I am aware, that the
juries had any less power in the courts held by the king's
justices, than in those held by sheriffs, bailiff, and stewards;
and there is no probability whatever that they had. All the
difference between the former courts and the latter undoubtedly
was, that, in the former, the juries had the benefit of the
advice and assistance of the justices, which would, of course, be
considered valuable in difficult cases, on account of the
justices being regarded as more learned, not only in the laws of
the king, but also in the common law, or "law of the land."
The conclusion, therefore, I think, inevitably must be, that
neither the laws of the king, nor the instructions of his
justices, had any authority over jurors beyond what the latter
saw fit to accord to them. And this view is confirmed by this
remark of Hallam, the truth of which all will acknowledge:
"The rules of legal decision, among a rude people, are always
very simple; not serving much to guide, far less to control the
feelings of natural equity." 2 Middle Ages, ch. 8, part 2, p. 465.
It is evident that it was in this way, by the free and concurrent
judgments of juries, approving and enforcing certain laws and
rules of conduct, corresponding to their notions of right and
justice, that the laws and customs, which, for the most part,
made up the common law, and were called, at that day, "the
good laws, and good customs," and "the law of the land," were
established. How otherwise could they ever have become
established, as Blackstone says they were, "by long and
immemorial usage, and by their universal reception throughout
the kingdom,"- 1 Blackstone,63-67., when, as the Mirror says,
"justice was so done, that every one so judged his neighbor, by
such judgment as a man could not elsewhere receive in the like
cases, until such times as the customs of the realm, were put in
writing and certainly published?"
The fact that, in that dark age, so many of the principles of
natural equity, as those then embraced in the Common Law,
should have been so uniformly recognized and enforced by juries,
as to have become established by general consent as "the law
of the land;" and the further fact that this "law of the land" was
held so sacred that even the king could not lawfully infringe or
alter it, but was required to swear to maintain it, are beautiful
and impressive illustrations of the troth that men's minds, even
in the comparative infancy of other knowledge, have clear and
coincident ideas of the elementary principles, and the paramount
obligation, of justice. The same facts also prove that the common
mind, and the general, or, perhaps, rather, the universal
conscience, as developed in the untrammeled judgments of juries,
may be safely relied upon for the preservation of individual rights
in civil society; and that there is no necessity or excuse for that
deluge of arbitrary legislation, with which the present age is
overwhelmed, under the pretext that unless laws be made, the
law will not be known; a pretext, by the way, almost universally
used for overturning, instead of establishing, the principles of
justice.
SECTION III. The Oaths of Jurors.
The oaths that have been administered to jurors, in England, and
which are their legal guide to their duty, all (so far as I have
ascertained them) corroborate the idea that the jurors are to try
all cases on their intrinsic merits, independently of any laws
that they deem unjust or oppressive. It is probable that an oath
was never administered to a jury in England, either in a civil or
criminal case, to try it according to law.
The earliest oath that I have found prescribed by law to be
administered to jurors is in the laws of Ethelred, (about the
year 1015,) which require that the jurors "shall swear, with their
hands upon a holy thing, that they will condemn no man that is
innocent, nor acquit any that is guilty." 4 Blackstone, 302.
2 Turner's History of the Anglo-Saxons, 155 Wilkins' Laws of the
Anglo-Saxons, 117. Spelman's Glossary, word Jurata.
Blackstone assumes that this was the oath of the grand jury
4 Blackstone, 302); but there was but one jury at the time this
oath was ordained. The institution of two juries, grand and petit,
took place after the Norman Conquest.
Hume, speaking of the administration of justice in the time of
Alfred, says that, in every hundred,
"Twelve freeholders were chosen, who, having sworn,
together with the hundreder, or presiding magistrate of that
division, to administer impartial justice, proceeded to
the examination of that cause which was submitted to their
jurisdiction." Hume, ch. 2.
By a law of Henry II., in 1164, it was directed that the sheriff
"faciet jurare duodecim legales homines de vicineto seu de
villa, quod inde veritatem secundum conscientiam suam
manifestabunt," (shall make twelve, legal men from the
neighborhood to swear that they will make known the truth
according to their conscience.) Crabbe's History of the
English Law, 119. 1 Reeves, 87. Wilkins, 321 323.
Glanville, who wrote within the half century previous to
Magna Carta, says;
"Each of the knights summoned far this purpose (as jurors)
ought to swear that he will neither utter that which is false, nor
knowingly conceal the truth." Beames' Glanville, 65.
Reeve calls the trial by jury "the trial by twelve men sworn
to speak the truth." 1 Reeve's History of the English Law, 87.
Henry says that the jurors "took a solemn oath, that they
would faithfully discharge the duties of their office, and not
suffer an innocent man to be condemned, nor any guilty person
to be acquitted." 3 Henry's Hist. of Great Britain, 346.
The Mirror of Justices, (written within a century after
Magna Carta,) in the chapter on the abuses of the Common
law, says:"It is abuse to use the words, to their knowledge,
in their oaths, to make the jurors speak upon thoughts, since
the chief words of their oaths be that they speak the truth." p.
249.
Smith, writing in the time of Elizabeth, says that, in civil suits,
the jury "be sworn to declare the truth of that issue according to
the evidence, and their conscience." Smith's Commonwealth
of England. edition of 1621, p. 73.
In criminal trials, he says:
"The clerk giveth the juror an oath to go uprightly betwixt the
prince and the prisoner." Ditto, p. 90. [24]
Hale says:
"Then twelve, and no less, of such as are indifferent and are
returned upon the principal panel, or the tales, are sworn to try
the same according to the evidence." 2 Hale's History of the
Common Law, 141.
It appears from Blackstone that, even at this day, neither in
civil nor criminal cases, are jurors in England sworn to try causes
according to law. He says tht in civil suits the jury are "Sworn well
and truly to try the issue between the parties; and a true verdict to
give according to the evidence." 3 Blackstone, 365.
"The issue" to be tried is whether A owes B anything and if so,
how much? or whether A has in his possession anything that
belongs to B; or whether A has wronged B, and ought to make
compensation; and if so, how much?
No statute passed by a legislature, simply as a legislature, can alter
either of these "issues" in hardly any conceivable case, perhaps in
none. No unjust law could ever alter them in any. They are all
mere questions of natural justice, which legislatures have no power to
alter, and with which they have no right to interfere, further than to
provide for having them settled by the most competent and impartial
tribunal that it is practicable to have, and then for having all just decisions
enforced. And any tribunal, whether judge or jury, that attempts to
try these issues, has no more moral right to be swerved from the
line of justice, by the will of a legislature, than by the will of any other
body of men whatever. And this oath does not require or permit a jury to
be so swerved.
In criminal cases, Blackstone says the oath of the jury in England
is:
"Well and truly to try, and true deliverance make, between our
sovereign lord, the king, and the prisoner whom they have in
charge, and a true verdict to give according to the evidence." 4
Blackstone, 355.
"The issue" to be tried, in a criminal case, is "guilty," or "not
guilty." The laws passed by a legislature can rarely, if ever, have anything
to do with this issue. "Guilt" is an intrinsic quality of actions, and can
neither be created, destroyed, nor changed by legislation. And no tribunal
that attempts to try this issue can have any moral right to declare a man
guilty, for an act that is intrinsically innocent, at the bidding of a
legislature, any more than at the bidding of anybody else. And this
oath does not require or permit a jury to do so.
The words, "according to the evidence," have doubtless been
introduced into the above oaths in modern times. They are unquestionably in
violation of the Common Law, and of Magna Carta, if by them be
meant such evidence only as the government sees fit ft allow to go to the
jury. If the government can dictate the evidence, and require the jury to
decide according to that evidence, it necessarily dictates the conclusion to
which they must arrive. In that case the trial is really a trial by the
government, and not by the jury. The jury cannot try an issue, unless they
determine what evidence shall be admitted. The ancient oaths, it will be
observed, say nothing about "according to the evidence." They obviously
take it for granted that the jury try the whole case; and of course that they
decide what evidence shall be admitted. It would be intrinsically an
immoral and criminal act for a jury to declare a man guilty, or to declare
that one man owed. money to another, unless all the evidence were
admitted, which they thought ought to be admitted, for ascertaining the truth.
[25]
Grand Jury. If jurors are bound to enforce all laws passed by the
legislature, it is a very remarkable fact than the oath of grand juries does not
require them to be governed by the laws in finding indictments. There
have been various forms of oath administered to grand jurors; but by none of
them that I recollect ever to have seen, except those of the States of
Connecticut and Vermont, are they sworn to present men according to law.
The English form, as given in the essay on Grand Juries, written
near two hundred years ago, and supposed to have been written by Lord
Somers, is as follows:
"You shall diligently inquire, and true presentment make, of all
such articles, matters, and things, as shall be given you in charge,
and of all other matters and things as shall come to your knowledge
touching this present service. The king's council, your fellows, and your own,
you shall keep secret. You shall present no person for hatred or malice;
neither shall you leave any one unpresented for favor, or affection,
for love or gain, or any hopes thereof; but in all things you shall present the
truth, the whole truth, and nothing but the truth, to the best of your
knowledge. So help you God."
This form of oath is doubtless quite ancient, for the essay says "our
ancestors appointed" it. See Essay, p. 33 34.
On the obligations of this oath, the essay says:"If it be asked how,
or in what manner, the (grand) juries shall inquire, the answer
is ready, according to the best of their understandings. They only,
not the judges, are sworn to search diligently to find out all treasons,
&c;., within their charge, and they must and ought to use their own
discretion in the way and manner of their inquiry. No directions
can legally be imposed upon there by any court or judges; an honest
jury will thankfully accept good advice from judges, as their assistants;
but they are bound by their oaths to present the truth, the whole truth,
and nothing but the truth, to the best of their own, not the judge's,
knowledge. Neither can they, without breach of that oath, resign
their consciences, or blindly submit to the dictates of others; and
therefore ought to receive or reject such advices, as they judge them
good or bad. * *Nothing can be more plain and express than the
words of the oath are to this purpose. The jurors need not search the
law books, nor tumble over heaps of old records, for the explanation
of them. Our greatest lawyers may from hence learn more certainly
our ancient law in this case, than from all the books in their studies.
The language wherein the oath is penned is known and understood by
every man, and the words in it have the same signification as they have
wheresoever else they are used. The judges, without assuming to
themselves a legislative power, cannot put a new sense upon them,
other than according to their genuine, common meaning. They cannot
magisterially impose their opinions upon the jury, and make them
forsake the direct words of their oath, to pursue their glosses. The
grand inquest are bound to observe alike strictly every part of their
oath, and to use all just and proper ways which may enable them to
perform it; otherwise it were to say, that after men had sworn to
inquire diligently after the truth, according to the best of their
knowledge, they were bound to forsake all the natural and proper
means which their understandings suggest for the discovery of it,
if it be commanded by the judges." Lord Somers' Essay on Grand
Juries, p. 88.
What is here said so plainly and forcibly of the oath and obligations of
grand juries, is equally applicable to the oath and obligations of
petit juries. In both cases the simple oaths of the jurors, and not the
instructions of the judges, nor the statutes of kings nor legislatures,
are their legal guides to their duties. [26]
SECTION IV. The Right of Juries to fix the Sentence.
The nature of the common law courts existing prior to Magna
Carta, such as the county courts, the hundred courts, the court-leet,
and the court-baron, all prove, what has already been proved from
Magna Carta, that, in jury trials, the juries fixed the sentence;
because, in those courts, there was no one but the jury who could fix it,
unless it were the sheriff, bailiff, or steward; and no one will pretend that
it was fixed by them. The juries unquestionably gave the "judgment"
in both civil and criminal cases.
That the juries were to fix the sentence under Magna Carta, is also
shown by statutes subsequent to Magna Carta. A statute passed
fifty-one years after Magna Carta, says that a baker, for default in
the weight of his bread, "debeat amerciari vel subire judicium pilloae,"
that is, "ought to be amerced, or suffer the sentence of the pillory."
And that a brewer, for "selling ale, contrary to the assize," "debeat
amerciari, vel pati judicium tumbrelli;" that is, "ought to be
amerced, or suffer judgment of the tumbrel." 51 Henry III., st. 6. (1266.)
If the king (the legislative power) had had authority to fix the
punishments of these offences imperatively, he would naturally
have said these offenders shall be amerced, and shall suffer
judgment of the pillory and tumbrel, instead of thus simply
expressing the opinion that they ought to be punished in that manner.
The statute of Westminster, passed sixty years after Magna Carta,
provides that,"No city, borough, nor town, nor any man, be amerced,
without reasonable cause, and according to the quantity of the trespass;
that is to say, every freeman saving his freehold, a merchant saving
his merchandise, a villein his waynage, and that by his or their
peers." 3 Edward I., ch. 6. (1275.)
The same statute (ch. 18) provides further, that,"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 sheriff's and baretors in the shires, so that the sum is many
times increased, and the parcels otherwise assessed than they ought to
be, to the damage of the people, which be many times paid to the sheriffs
and baretors, which do not acquit the payers; 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, upon all such as ought to pay; and the justices
shall cause the parcels to be put into their estreats, which shall be
delivered up unto the exchequer, and not the whole sum." St. 3 Edward I.,
ch. 18, (1275.) [27]
The following statute, passed in 1341, one hundred and twenty-five
years after Magna Carta, providing for the trial of peers of the realm,
and the king's ministers, contains a recognition of the principle of
Magna Carta, that the jury are to fix the sentence.
"Whereas before this time the peers of the land have been arrested
and imprisoned, and their temporalities, lands, and teneiments,
goods and cattels, asseized in the king's hands, and some put to
death without judgment of their peers: It is accorded and assented,
that no peer of the land, officer, nor other, because of his office,
nor of things touching his office, nor by other cause, shall be
brought in judgment to lose his temporalities, lands, tenements,
goods and cattels, nor to be arrested, nor imprisoned, outlawed,
exiled, nor forejudged, nor put to answer, nor be judged, but by
award (sentence) of the said peers in Parliament." 15 Edward III.,
st. 1, sec. 2.
Section 4, of the same statute provides,
"That in every Parliament, at the third day of every Parliament.
the king shall take in his hands the offices of all the ministers
aforesaid," (that is, "the chancellor, treasurer, barons, and
chancellor of the exchequer, the justices of the one bench and of
the other, justices assigned in the country, steward and chamberlain
of the king's house, keeper of the privy seal, treasurer of the
wardrobe, controllers, and they that be chief deputed to abide nigh
the king's son, Duke of Cornwall,") "and so they shall abide four
or five days; except the offices of justices of the one place or the
other, justices assigned, barons of exchequer; so always that they
and all other ministers be put to answer to every complaint; and if
default be found in any of the said ministers, by complaint or other
manner, and of that attainted in Parliament, he shall be punished
by judgment of the peers, and put out of his office, and another
convenient put in his place. And upon the same our said sovereign
lord the king shall do (cause) to be pronounced and made execution
without delay, according to the judgment (sentence) of the said peers
in the Parliament."
Here is an admission that the peers were to fix the sentence, or
judgment, and the king promises to make execution "according to"
that sentence.
And this appears to be the law, under which peers of the realm
and the great officers of the crown were tried and sentenced, for
four hundred years after its passage, and, for aught I know, until this
day.
The first case given in Hargrave's collection of English State
Trials, is that of Alexander Nevil, Archbishop of York, Robert
Vere Duke of Ireland; Michael de la Pole, Earl of Suffolk, and
Robert Tresilian, Lord Chief Justice of England, with several
others, convicted of treason, before "the Lords of Parliament," in
1388. The sentences in these cases were adjudged by the "Lords
of Parliament," in the following terms, as they are reported.
"Wherefore the said Lords of Parliament, there present, as judges
in Parliament, in this case, by assent of the king, pronounced their
sentence, and did adjudge the said archbishop, duke, and earl, with
Robert Tresilian, so appealed, as aforesaid, to be guilty, and
convicted of treason, and to be drawn and hanged, as traitors and
enemies to the king and kingdom; and that their heirs should be
disinherited forever, and their lands and tenements, goods and
chattels, forfeited to the king, and that the temporalities of the
Archbishop of York should be taken into the king's hands."
Also, in the same case, Sir John Holt, Sir William Burgh, Sir John
Cary, Sir Roger Fulthorpe, and John Locton, "were by the lords
temporal, by the assent of the king, adjudged to be drawn and
hanged, as traitors, their heirs disinherited, and their lands and
tenements, goods and chattels, to be forfeited to the king."
Also, in the same case, John Blake, "of council for the king," and
Thomas Uske, under sheriff of Middlesex, having been convicted
of treason, "The lords awarded, by assent of the king, that they
should both be hanged and drawn as traitors, as open enemies to
the king and kingdom, and their heirs disinherited forever, and
their lands and tenements, goods and chattels, forfeited to the king."
Also, "Simon Burleigh, the king's chamberlain," being convicted
of treason, "by joint consent of the king and the lords, sentence
was pronounced against the said Simon Burleigh, that he should be
drawn from the town to Tyburn, and there be hanged till he be
dead, and then have his head struck from his body."
Also, "John Beauchamp, steward of the household to the king,
James Beroverse, and John Salisbury; knights, gentlemen of the
privy chamber, were in like manner condemned." 1 Hargrave's
State Trials, first case.
Here the sentences were all fixed by the peers, with the assent of
the king. But that the king should be consulted, and his assent
obtained to the sentence pronounced by the peers, does not imply
any deficiency of power on their part to fix the sentence
independently of the king. There are obvious reasons why they
might choose to consult the king, and obtain his approbation of the
sentence they were about to impose, without supposing any legal
necessity for their so doing.
So far as we can gather from the reports of state trials, peers of the
realm were usually sentenced by those who tried them, with the
assent of the king. But in some instances no mention is made of
the assent of the king, as in the case of "Lionel, Earl of Middlesex,
Lord High Treasurer of England," in 1624, (four hundred years
after Magna Carta,) where the sentence was as follows:
"This High Court of Parliament doth adjudge, that Lionel, Earl of
Middlesex, now Lord Treasurer of England, shall lose all his
offices which he holds in this kingdom, and shall, hereafter, be
made incapable of any office, place, or employment in the state
and commonwealth. That he shall be imprisoned in the tower of
London, during the king's pleasure. That he shall pay unto our
sovereign lord the king a fine of 50,000 pounds. That he shall
never sit in Parliament any more, and that he shall never come
within the verge of the court." 2 Howell's Stale Trials, 1250.
Here was a peer of the realm, and a minister of the king, of the
highest grade; and if it were ever necessary to obtain the assent of
the king to sentences pronounced by the peers, it would unquestionably
have been obtained in this instance, and his assent would have appeared
in the sentence.
Lord Bacon was sentenced by the House of Lords, (l620,) no
mention being made of the assent of the king. The sentence is in
these words:
"And, therefore, this High Court doth adjudge, That the Lord
Viscount St. Albans, Lord Chancellor of England, shall undergo
fine and ransom of 40,000 pounds. That he shall be imprisoned
in the tower during the king's pleasure. That he shall forever be
incapable of any office, place, or employment in the state or
commonwealth. That he shall never sit in Parliament, nor come
within the verge of the court."
And when it was demanded of him, before sentence, whether it
were his hand that was subscribed to his confession, and whether
he would stand to it; he made the following answer, which implies
that the lords were the ones to determine his sentence. "My lords,
it is my act, my hand, my heart. I beseech your lordships to be
merciful to a broken reed." 1 Hargrave's State Trials, 886 7.
The sentence against Charles the First, (1648,) after reciting
the grounds of his condemnation, concludes in this form:
"For all which treasons and crimes, this court doth adjudge,
that he, the said Charles S
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