An Essay on the Trial by Jury
by Lysander Spooner · English · Gutenberg #32984 · 580,763 chars · public domain (US)
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Title: An Essay on the Trial by Jury
Author: Lysander Spooner
Release date: June 27, 2010 [eBook #32984]
Most recently updated: January 6, 2021
Language: English
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*** START OF THE PROJECT GUTENBERG EBOOK AN ESSAY ON THE TRIAL BY JURY ***
Produced by Susan Goble, Curtis Weyant, Graeme Mackreth
and the Online Distributed Proofreading Team at
https://www.pgdp.net
AN ESSAY
ON THE
TRIAL BY JURY.
BY LYSANDER SPOONER.
BOSTON:
JOHN P. JEWETT AND COMPANY.
CLEVELAND, OHIO:
JEWETT, PROCTOR & WORTHINGTON.
1852.
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 reëstablished.
CONTENTS.
PAGE
CHAPTER I. THE RIGHT OF JURIES TO JUDGE OF THE JUSTICE OF LAWS, 5
SECTION 1, 5
SECTION 2, 11
CHAPTER II. THE TRIAL BY JURY, AS DEFINED BY MAGNA CARTA, 20
SECTION 1. _The History of Magna Carta_, 20
SECTION 2. _The Language of Magna Carta_, 25
CHAPTER III. ADDITIONAL PROOFS OF THE RIGHTS AND DUTIES OF JURORS, 51
SECTION 1. _Weakness of the Regal Authority_, 51
SECTION 2. _The Ancient Common Law Juries were mere
Courts of Conscience_, 63
SECTION 3. _The Oaths of Jurors_, 85
SECTION 4. _The Right of Jurors to fix the Sentence_, 91
SECTION 5. _The Oaths of Judges_, 98
SECTION 6. _The Coronation Oath_, 102
CHAPTER IV. THE RIGHTS AND DUTIES OF JURIES IN CIVIL SUITS, 110
CHAPTER V. OBJECTIONS ANSWERED, 128
CHAPTER VI. JURIES OF THE PRESENT DAY ILLEGAL, 142
CHAPTER VII. ILLEGAL JUDGES, 157
CHAPTER VIII. THE FREE ADMINISTRATION OF JUSTICE, 172
CHAPTER IX. THE CRIMINAL INTENT, 178
CHAPTER X. MORAL CONSIDERATIONS FOR JURORS, 189
CHAPTER XI. AUTHORITY OF MAGNA CARTA, 192
CHAPTER XII. LIMITATIONS IMPOSED UPON THE MAJORITY BY
THE TRIAL BY JURY, 206
APPENDIX--TAXATION, 222
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 previous 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 as 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 determine their own liberties against the
government, instead of the government'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 practised 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 government 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
such 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? _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 case, 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? Or when 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. Besides, 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, it comes
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 _legal_ 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 a 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 _legal_ 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, (except 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,
and such law, as are satisfactory to their own understandings and
consciences, irrespective of all legislation of the government.
[Footnote 1: To show that this supposition is not an extravagant one, it
may be mentioned that courts have repeatedly questioned jurors to
ascertain whether they were prejudiced _against the government_--that
is, whether they were in favor of, or opposed to, such laws of the
government as were to be put in issue in the then pending trial. This
was done (in 1851) in the United States District Court for the District
of Massachusetts, by Peleg Sprague, the United States district judge, in
empanelling three several juries for the trials of Scott, Hayden, and
Morris, charged with having aided in the rescue of a fugitive slave from
the custody of the United States deputy marshal. This judge caused the
following question to be propounded to all the jurors separately; and
those who answered unfavorably for the purposes of the government, were
excluded from the panel.
"Do you hold any opinions upon the subject of the Fugitive Slave Law,
so called, which will induce you to refuse to convict a person
indicted under it, if the facts set forth in the indictment, _and
constituting the offence_, are proved against him, and the court
direct you that the law is constitutional?"
The reason of this question was, that "the Fugitive Slave Law, so
called," was so obnoxious to a large portion of the people, as to render
a conviction under it hopeless, if the jurors were taken
indiscriminately from among the people.
A similar question was soon afterwards propounded to the persons drawn
as jurors in the United States _Circuit_ Court for the District of
Massachusetts, by Benjamin R. Curtis one of the Justices of the Supreme
Court of the United States, in empanelling a jury for the trial of the
aforesaid Morris on the charge before mentioned; and those who did not
answer the question favorably for the government were again excluded
from the panel.
It has also been an habitual practice with the Supreme Court of
Massachusetts, in empanelling juries for the trial of _capital_
offences, to inquire of the persons drawn as jurors whether they had any
conscientious scruples against finding verdicts of guilty in such cases;
that is, whether they had any conscientious scruples against sustaining
the law prescribing death as the punishment of the crime to be tried;
and to exclude from the panel all who answered in the affirmative.
The only principle upon which these questions are asked, is this--that
no man shall be allowed to serve as juror, unless he be ready to enforce
any enactment of the government, however cruel or tyrannical it may be.
What is such a jury good for, as a protection against the tyranny of the
government? A jury like that is palpably nothing but a mere tool of
oppression in the hands of the government. A trial by such a jury is
really a trial by the government itself--and not a trial by the
country--because it is a trial only by men specially selected by the
government for their readiness to enforce its own tyrannical measures.
If that be the true principle of the trial by jury, the trial is utterly
worthless as a security to liberty. The Czar might, with perfect safety
to his authority, introduce the trial by jury into Russia, if he could
but be permitted to select his jurors from those who were ready to
maintain his laws, without regard to their injustice.
This example is sufficient to show that the very pith of the trial by
jury, as a safeguard to liberty, consists in the jurors being taken
indiscriminately from the whole people, and in their right to hold
invalid all laws which they think unjust.]
[Footnote 2: The executive has a qualified veto upon the passage of
laws, in most of our governments, and an absolute veto, in all of them,
upon the execution of any laws which he deems unconstitutional; because
his oath to support the constitution (as he understands it) forbids him
to execute any law that he deems unconstitutional.]
[Footnote 3: And if there be so much as a reasonable _doubt_ of the
justice of the laws, the benefit of that doubt must be given to the
defendant, and not to the government. So that the government must keep
its laws _clearly_ within the limits of justice, if it would ask a jury
to enforce them.]
[Footnote 4: _Hallam_ says, "The relation established between a lord and
his vassal by the feudal tenure, far from containing principles of any
servile and implicit obedience, permitted the compact to be dissolved in
case of its violation by either party. This extended as much to the
sovereign as to inferior lords. * * If a vassal was aggrieved, and if
justice was denied him, he sent a defiance, that is, a renunciation of
fealty to the king, and was entitled to enforce redress at the point of
his sword. It then became a contest of strength as between two
independent potentates, and was terminated by treaty, advantageous or
otherwise, according to the fortune of war. * * There remained the
original principle, that allegiance depended conditionally upon good
treatment, and that an appeal might be _lawfully_ made to arms against
an oppressive government. Nor was this, we may be sure, left for extreme
necessity, or thought to require a long-enduring forbearance. In modern
times, a king, compelled by his subjects' swords to abandon any
pretension, would be supposed to have ceased to reign; and the express
recognition of such a right as that of insurrection has been justly
deemed inconsistent with the majesty of law. But ruder ages had ruder
sentiments. Force was necessary to repel force; and men accustomed to
see the king's authority defied by a private riot, were not much shocked
when it was resisted in defence of public freedom."--_3 Middle Ages_,
240-2.]
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."[5] Judges were in those days, and afterwards, such abject
servants of the king, that "we find that King Edward I. (1272 to 1307)
fined and imprisoned his judges, in the same manner as Alfred the Great,
among the Saxons, had done before him, by the sole exercise of his
authority."[6]
Parliament, so far as there was a parliament, was a mere _council_ of
the king.[7] It assembled only at the pleasure of the king; sat only
during his pleasure; and when sitting had no power, so far as _general_
legislation was concerned, beyond that of simply _advising_ the king.
The only legislation to which their assent was constitutionally
necessary, was demands for money and military services for
_extraordinary_ occasions. Even Magna Carta itself makes no provisions
whatever for any parliaments, except when the king should want means to
carry on war, or to meet some other _extraordinary_ necessity.[8] He had
no need of parliaments to raise taxes for the _ordinary_ purposes of
government; for his revenues from the rents of the crown lands and other
sources, were ample for all except extraordinary occasions. Parliaments,
too, when assembled, consisted only of bishops, barons, and other great
men of the kingdom, unless the king chose to invite others.[9] There was
no House of Commons at that time, and the people had no right to be
heard, unless as petitioners.[10]
Even when laws were made at the time of a parliament, they were made in
the name of the king alone. Sometimes it was inserted in the laws, that
they were made with the _consent_ or _advice_ of the bishops, barons,
and others assembled; but often this was omitted. Their consent or
advice was evidently a matter of no legal importance to the enactment or
validity of the laws, but only inserted, when inserted at all, with a
view of obtaining a more willing submission to them on the part of the
people. The style of enactment generally was, either "_The King wills
and commands_," or some other form significant of the sole legislative
authority of the king. The king could pass laws at any time when it
pleased him. The presence of a parliament was wholly unnecessary. Hume
says, "It is asserted by Sir Harry Spelman, as an undoubted fact, that,
during the reigns of the Norman princes, every order of the king, issued
with the consent of his privy council, had the full force of law."[11]
And other authorities abundantly corroborate this assertion.[12]
The king was, therefore, constitutionally the government; and the only
legal limitation upon his power seems to have been simply the _Common
Law_, usually called "_the law of the land_," which he was bound by oath
to maintain; (which oath had about the same practical value as similar
oaths have always had.) This "law of the land" seems not to have been
regarded at all by many of the kings, except so far as they found it
convenient to do so, or were constrained to observe it by the fear of
arousing resistance. But as all people are slow in making resistance,
oppression and usurpation often reached a great height; and, in the case
of John, they had become so intolerable as to enlist the nation almost
universally against him; and he was reduced to the necessity of
complying with any terms the barons saw fit to dictate to him.
It was under these circumstances, that the Great Charter of English
Liberties was granted. The barons of England, sustained by the common
people, having their king in their power, compelled him, as the price of
his throne, to pledge himself that he would punish no freeman for a
violation of any of his laws, unless with the consent of the peers--that
is, the equals--of the accused.
The question here arises, Whether the barons and people intended that
those peers (the jury) should be mere puppets in the hands of the king,
exercising no opinion of their own as to the intrinsic merits of the
accusations they should try, or the _justice_ of the laws they should be
called on to enforce? Whether those haughty and victorious barons, when
they had their tyrant king at their feet, gave back to him his throne,
with full power to enact any tyrannical laws he might please, reserving
only to a jury ("the country") the contemptible and servile privilege of
ascertaining, (under the dictation of the king, or his judges, as to the
laws of evidence), the simple _fact_ whether those laws had been
transgressed? Was this the only restraint, which, when they had all
power in their hands, they placed upon the tyranny of a king, whose
oppressions they had risen in arms to resist? Was it to obtain such a
charter as that, that the whole nation had united, as it were, like one
man, against their king? Was it on such a charter that they intended to
rely, for all future time, for the security of their liberties? No. They
were engaged in no such senseless work as that. On the contrary, when
they required him to renounce forever the power to punish any freeman,
unless by the consent of his peers, they intended those peers should
judge of, and try, the whole case on its merits, independently of all
arbitrary legislation, or judicial authority, on the part of the king.
In this way they took the liberties of each individual--and thus the
liberties of the whole people--entirely out of the hands of the king,
and out of the power of his laws, and placed them in the keeping of the
people themselves. And this it was that made the trial by jury the
palladium of their liberties.
The trial by jury, be it observed, was the only real barrier interposed
by them against absolute despotism. Could this trial, then, have been
such an entire farce as it necessarily must have been, if the jury had
had no power to judge of the justice of the laws the people were
required to obey? Did it not rather imply that the jury were to judge
independently and fearlessly as to everything involved in the charge,
and especially as to its intrinsic justice, and thereon give their
decision, (unbiased by any legislation of the king,) whether the accused
might be punished? The reason of the thing, no less than the historical
celebrity of the events, as securing the liberties of the people, and
the veneration with which the trial by jury has continued to be
regarded, notwithstanding its essence and vitality have been almost
entirely extracted from it in practice, would settle the question, if
other evidences had left the matter in doubt.
Besides, if his laws were to be authoritative with the jury, why should
John indignantly refuse, as at first he did, to grant the charter, (and
finally grant it only when brought to the last extremity,) on the ground
that it deprived him of all power, and left him only the name of a king?
_He_ evidently understood that the juries were to veto his laws, and
paralyze his power, at discretion, by forming their own opinions as to
the true character of the offences they were to try, and the laws they
were to be called on to enforce; and that "_the king wills and
commands_" was to have no weight with them contrary to their own
judgments of what was intrinsically right.[13]
The barons and people having obtained by the charter all the liberties
they had demanded of the king, it was further provided by the charter
itself that twenty-five barons should be appointed by the barons, out of
their number, to keep special vigilance in the kingdom to see that the
charter was observed, with authority to make war upon the king in case
of its violation. The king also, by the charter, so far absolved all the
people of the kingdom from their allegiance to him, as to authorize and
require them to swear to obey the twenty-five barons, in case they
should make war upon the king for infringement of the charter. It was
then thought by the barons and people, that something substantial had
been done for the security of their liberties.
This charter, in its most essential features, and without any abatement
as to the trial by jury, has since been confirmed more than thirty
times; and the people of England have always had a traditionary idea
that it was of some value as a guaranty against oppression. Yet that
idea has been an entire delusion, unless the jury have had the right to
judge of the justice of the laws they were called on to enforce.
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
utlagetur, aut exuletur, aut aliquo modo destruatur; nec super eum
ibimus, nec super eum mittemus, nisi per legale judicium parium
suorum, vel per legem terræ."[14]
The corresponding chapter in the Great Charter, granted by Henry III.,
(1225,) and confirmed by Edward I., (1297,) (which charter is now
considered the basis of the English laws and constitution,) is in nearly
the same words, as follows:
"Nullus liber homo capiatur, vel imprisonetur, aut disseisetur de
libero tenemento, vel libertatibus, vel liberis consuetudinibus suis,
aut utlagetur, aut exuletur, aut aliquo modo destruatur, nec super
eum ibimus, nec super eum mittemus, nisi per legale judicium parium
suorum, vel per legem terræ."
The most common translation of these words, at the present day, is as
follows:
"No freeman shall be arrested, or imprisoned, or deprived of his
freehold, or his liberties, or free customs, or outlawed, or exiled,
or in any manner destroyed, _nor will we (the king) pass upon him,
nor condemn him_, unless by the judgment of his peers, or the law of
the land."
"_Nec super eum ibimus, nec super eum mittemus._"
There has been much confusion and doubt as to the true meaning of the
words, "_nec super eum ibimus, nec super eum mittemus_." The more common
rendering has been, "_nor will we pass upon him, nor condemn him_." But
some have translated them to mean, "_nor will we pass upon him, nor
commit him to prison_." Coke gives still a different rendering, to the
effect that "No man shall be condemned at the king's suit, either before
the king in his bench, nor before any other commissioner or judge
whatsoever."[15]
But all these translations are clearly erroneous. In the first place,
"_nor will we pass upon him_,"--meaning thereby to decide upon his guilt
or innocence _judicially_--is not a correct rendering of the words,
"_nec super eum ibimus_." There is nothing whatever, in these latter
words, that indicates _judicial_ action or opinion at all. The words, in
their common signification, describe _physical_ action alone. And the
true translation of them, as will hereafter be seen, is, _"nor will we
proceed against him," executively_.
In the second place, the rendering, "_nor will we condemn him_," bears
little or no analogy to any common, or even uncommon, signification of
the words "_nec super eum mittemus_." There is nothing in these latter
words that indicates _judicial_ action or decision. Their common
signification, like that of the words _nec super eum ibimus_, describes
_physical_ action alone. "_Nor will we send upon (or against) him_,"
would be the most obvious translation, and, as we shall hereafter see,
such is the true translation.
But although these words describe _physical_ action, on the part of the
king, as distinguished from judicial, they nevertheless do not mean, as
one of the translations has it, "_nor will we commit him to prison_;"
for that would be a mere repetition of what had been already declared by
the words "_nec imprisonetur_." Besides, there is nothing about prisons
in the words "_nec super eum mittemus_;" nothing about sending _him_
anywhere; but only about sending (something or somebody) _upon_ him, or
_against_ him--that is, _executively_.
Coke's rendering is, if possible, the most absurd and gratuitous of all.
What is there in the words, "_nec super eum mittemus_" that can be made
to mean "_nor shall he be condemned before any other commissioner or
judge whatsoever_?" Clearly there is nothing. The whole rendering is a
sheer fabrication. And the whole object of it is to give color for the
exercise of a _judicial_ power, by the king, or his judges, which is
nowhere given them.
Neither the words, "_nec super eum ibimus, nec super eum mittemus_," nor
any other words in the whole chapter, authorize, provide for, describe,
or suggest, any _judicial_ action whatever, on the part either of the
king, or of his judges, or of anybody, _except the peers, or jury_.
There is nothing about the king's _judges_ at all. And there is nothing
whatever, in the whole chapter, _so far as relates to the action of the
king_, that describes or suggests anything but _executive_ action.[16]
But that all these translations are certainly erroneous, is proved by a
temporary charter, granted by John a short time previous to the Great
Charter, for the purpose of giving an opportunity for conference,
arbitration, and reconciliation between him and his barons. It was to
have force until the matters in controversy between them could be
submitted to the Pope, and to other persons to be chosen, some by the
king, and some by the barons. The words of the charter are as follows:
"Sciatis nos concessisse baronibus nostris qui contra nos sunt quod nec
eos nec homines suos capiemus, nec disseisiemus _nec super eos per vim
vel per arma ibimus_ nisi per legem regni nostri vel per judicium parium
suorum in curia nostra donec consideratio facta fuerit," &c., &c.
That is, "Know that we have granted to our barons who are opposed to us,
that we will neither arrest them nor their men, nor disseize them, _nor
will we proceed against them by force or by arms_, unless by the law of
our kingdom, or by the judgment of their peers in our court, until
consideration shall be had," &c., &c.
A copy of this charter is given in a note in Blackstone's Introduction
to the Charters.[17]
Mr. Christian speaks of this charter as settling the true meaning of the
corresponding clause of Magna Carta, on the principle that laws and
charters on the same subject are to be construed with reference to each
other. See _3 Christian's Blackstone_, 41, _note_.
The true meaning of the words, _nec super eum ibimus, nec super eum
mittemus_, is also proved by the "_Articles of the Great Charter of
Liberties_," demanded of the king by the barons, and agreed to by the
king, under seal, a few days before the date of the Charter, and from
which the Charter was framed.[18] Here the words used are these:
"Ne corpus liberi hominis capiatur nec imprisonetur nec disseisetur
nec utlagetur nec exuletur nec aliquo modo destruatur _nec rex eat
vel mittat super eum vi_ nisi per judicium parium suorum vel per
legem terræ."
That is, "The body of a freeman shall not be arrested, nor
imprisoned, nor disseized, nor outlawed, nor exiled, nor in any
manner destroyed, _nor shall the king proceed or send (any one)
against him_ WITH FORCE, unless by the judgment of his peers, or the
law of the land."
The true translation of the words _nec super eum ibimus, nec super eum
mittemus_, in Magna Carta, is thus made certain, as follows, "_nor will
we (the king) proceed against him, nor send (any one) against him_ WITH
FORCE OR ARMS."[19]
It is evident that the difference between the true and false
translations of the words, _nec super eum ibimus, nec super eum
mittemus_, is of the highest legal importance, inasmuch as the true
translation, _nor will we (the king) proceed against him, nor send (any
one) against him by force or arms_, represents the king only in an
_executive_ character, _carrying the judgment of the peers and "the law
of the land" into execution_; whereas the false translation, _nor will
we pass upon him, nor condemn him_, gives color for the exercise of a
_judicial_ power, on the part of the king, to which the king had no
right, but which, according to the true translation, belongs wholly to
the jury.
"_Per legale judicium parium suorum._"
The foregoing interpretation is corroborated, (if it were not already
too plain to be susceptible of corroboration,) by the true
interpretation of the phrase "_per legale judicium parium suorum_."
In giving this interpretation, I leave out, for the present, the word
_legale_, which will be defined afterwards.
The true meaning of the phrase, _per judicium parium suorum_, is,
_according to the sentence of his peers_. The word _judicium, judgment_,
has a technical meaning in the law, signifying the decree rendered in
the decision of a cause. In civil suits this decision is called a
_judgment_; in chancery proceedings it is called a _decree_; in criminal
actions it is called a _sentence_, or _judgment_, indifferently. Thus,
in a criminal suit, "a motion in arrest of _judgment_" means a motion in
arrest of _sentence_.[20]
In cases of sentence, therefore, in criminal suits, the words _sentence_
and _judgment_ are synonymous terms. They are, to this day, commonly
used in law books as synonymous terms. And the phrase _per judicium
parium suorum_, therefore, implies that the jury are to fix the
sentence.
The word _per_ means _according to_. Otherwise there is no sense in the
phrase _per judicium parium suorum_. There would be no sense in saying
that a king might imprison, disseize, outlaw, exile, or otherwise punish
a man, or proceed against him, or send any one against him, _by force or
arms, by_ a judgment of his peers; but there is sense in saying that the
king may imprison, disseize, and punish a man, or proceed against him,
or send any one against him, by force or arms, _according to_ a
judgment, or _sentence_, of his peers; because in that case the king
would be merely carrying the sentence or judgment of the peers into
execution.
The word _per_, in the phrase "_per_ judicium parium suorum," of course
means precisely what it does in the next phrase, "_per_ legem terræ;"
where it obviously means _according to_, and not _by_, as it is usually
translated. There would be no sense in saying that the king might
proceed against a man by force or arms, _by_ the law of the land; but
there is sense in saying that he may proceed against him, by force or
arms, _according to_ the law of the land; because the king would then be
acting only as an executive officer, carrying the law of the land into
execution. Indeed, the true meaning of the word _by_, as used in similar
cases now, always is _according to_; as, for example, when we say a
thing was done by the government, or by the executive, _by law_, we mean
only that it was done by them _according to law_; that is, that they
merely executed the law.
Or, if we say that the word _by_ signifies _by authority of_, the result
will still be the same; for nothing can be done _by authority of_ law,
except what the law itself authorizes or directs to be done; that is,
nothing can be done by authority of law, except simply to carry the law
itself into execution. So nothing could be done _by authority of_ the
sentence of the peers, or _by authority of_ "the law of the land,"
except what the sentence of the peers, or the law of the land,
themselves authorized or directed to be done; nothing, in short, but to
carry the sentence of the peers, or the law of the land, themselves into
execution.
Doing a thing _by_ law, or _according to_ law, is only carrying the law
into execution. And punishing a man _by_, or _according to_, the
sentence or judgment of his peers, is only carrying that sentence or
judgment into execution.
If these reasons could leave any doubt that the word _per_ is to be
translated _according to_, that doubt would be removed by the terms of
an antecedent guaranty for the trial by jury, granted by the Emperor
Conrad, of Germany,[21] two hundred years before Magna Carta. Blackstone
cites it as follows:--(_3 Blackstone_, 350.)
"Nemo beneficium suum perdat, nisi _secundum_ consuetudinem antecessorum
nostrorum, et judicium parium suorum." That is, No one shall lose his
estate,[22] unless _according to_ ("_secundum_") the custom (or law) of
our ancestors, and (_according to_) the sentence (or judgment) of his
peers.
The evidence is therefore conclusive that the phrase _per judicium
parium suorum_ means _according to the sentence of his peers_; thus
implying that the jury, and not the government, are to fix the sentence.
If any additional proof were wanted that juries were to fix the
sentence, it would be found in the following provisions of Magna Carta,
viz.:
"A freeman shall not be amerced for a small crime, (_delicto_,) but
according to the degree of the crime; and for a great crime in
proportion to the magnitude of it, saving to him his
_contenement_;[23] and after the same manner a merchant, saving to
him his merchandise. And a villein shall be amerced after the same
manner, saving to him his waynage,[24] if he fall under our mercy;
_and none of the aforesaid amercements shall be imposed, (or
assessed, ponatur,) but by the oath of honest men of the
neighborhood. Earls and Barons shall not be amerced but by their
peers_, and according to the degree of their crime."[25]
Pecuniary punishments were the most common punishments at that day, and
the foregoing provisions of Magna Carta show that the amount of those
punishments was to be fixed by the jury.
Fines went to the king, and were a source of revenue; and if the amounts
of the fines had been left to be fixed by the king, he would have had a
pecuniary temptation to impose unreasonable and oppressive ones. So,
also, in regard to other punishments than fines. If it were left to the
king to fix the punishment, he might often have motives to inflict cruel
and oppressive ones. As it was the object of the trial by jury to
protect the people against all possible oppression from the king, it was
necessary that the jury, and not the king, should fix the
punishments.[26]
"_Legale._"
The word "_legale_," in the phrase "_per legale judicium parium
suorum_," doubtless means two things. 1. That the sentence must be given
in a legal manner; that is, by the legal number of jurors, legally
empanelled and sworn to try the cause; and that they give their judgment
or sentence after a legal trial, both in form and substance, has been
had. 2. That the sentence shall be for a legal cause or offence. If,
therefore, a jury should convict and sentence a man, either without
giving him a legal trial, or for an act that was not really and legally
criminal, the sentence itself would not be legal; and consequently this
clause forbids the king to carry such a sentence into execution; for the
clause guarantees that he will execute no judgment or sentence, except
it be _legale judicium_, a legal sentence. Whether a sentence be a legal
one, would have to be ascertained by the king or his judges, on appeal,
or might be judged of informally by the king himself.
The word "_legale_" clearly did not mean that the _judicium parium
suorum_ (judgment of his peers) should be a sentence which any law (of
the king) should _require_ the peers to pronounce; for in that case the
sentence would not be the sentence of the peers, but only the sentence
of the law, (that is, of the king); and the peers would be only a
mouthpiece of the law, (that is, of the king,) in uttering it.
"_Per legem terræ._"
One other phrase remains to be explained, viz., "_per legem terræ_,"
"_by the law of the land_."
All writers agree that this means the _common law_. Thus, Sir Matthew
Hale says:
"The common law is sometimes called, by way of eminence, _lex terræ_,
as in the statute of _Magna Carta_, chap. 29, where certainly the
common law is principally intended by those words, _aut per legem
terræ_; as appears by the exposition thereof in several subsequent
statutes; and particularly in the statute of 28 Edward III., chap. 3,
which is but an exposition and explanation of that statute. Sometimes
it is called _lex Angliæ_, as in the statute of Merton, cap. 9,
"_Nolumus leges Angliæ mutari_," &c., (We will that the laws of
England be not changed). Sometimes it is called _lex et consuetudo
regni_ (the law and custom of the kingdom); as in all commissions of
oyer and terminer; and in the statutes of 18 Edward I., cap.--, and
_de quo warranto_, and divers others. But most commonly it is called
the Common Law, or the Common Law of England; as in the statute
_Articuli super Chartas_, cap. 15, in the statute 25 Edward III.,
cap. 5, (4,) and infinite more records and statutes."--1 _Hale's
History of the Common Law_, 128.
This common law, or "law of the land," _the king was sworn to maintain_.
This fact is recognized by a statute made at Westminster, in 1346, by
Edward III., which commences in this manner:
"Edward, by the Grace of God, &c., &c., to the Sheriff of Stafford,
Greeting: Because that by divers complaints made to us, we have
perceived that _the law of the land, which we by oath are bound to
maintain_," &c.--_St. 20 Edward III._
The foregoing authorities are cited to show to the unprofessional
reader, what is well known to the profession, that _legem terræ, the law
of the land_, mentioned in Magna Carta, was the common, ancient,
fundamental law of the land, which the kings were bound by oath to
observe; _and that it did not include any statutes or laws enacted by
the king himself, the legislative power of the nation_.
If the term _legem terræ_ had included laws enacted by the king himself,
the whole chapter of Magna Carta, now under discussion, would have
amounted to nothing as a protection to liberty; because it would have
imposed no restraint whatever upon the power of the king. The king could
make laws at any time, and such ones as he pleased. He could, therefore,
have done anything he pleased, _by the law of the land_, as well as in
any other way, if his own laws had been "_the law of the land_." If his
own laws had been "the law of the land," within the meaning of that term
as used in Magna Carta, this chapter of Magna Carta would have been
sheer nonsense, inasmuch as the whole purport of it would have been
simply that "no man shall be arrested, imprisoned, or deprived of his
freehold, or his liberties, or free customs, or outlawed, or exiled, or
in any manner destroyed (by the king); nor shall the king proceed
against him, nor send any one against him with force and arms, unless by
the judgment of his peers, _or unless the king shall please to do so_."
This chapter of Magna Carta would, therefore, have imposed not the
slightest restraint upon the power of the king, or afforded the
slightest protection to the liberties of the people, if the laws of the
king had been embraced in the term _legem terræ_. But if _legem terræ_
was the common law, which the king was sworn to maintain, then a real
restriction was laid upon his power, and a real guaranty given to the
people for their liberties.
Such, then, being the meaning of _legem terræ_, the fact is established
that Magna Carta took an accused person entirely out of the hands of the
legislative power, that is, of the king; and placed him in the power and
under the protection of his peers, and the common law alone; that, in
short, Magna Carta suffered no man to be punished for violating any
enactment of the legislative power, unless the peers or equals of the
accused freely consented to it, or the common law authorized it; that
the legislative power, _of itself_, was wholly incompetent to _require_
the conviction or punishment of a man for any offence whatever.
_Whether Magna Carta allowed of any other trial than by jury._
The question here arises, whether "_legem terræ_" did not allow of some
other mode of trial than that by jury.
The answer is, that, at the time of Magna Carta, it is not probable,
(for the reasons given in the note,) that _legem terræ_ authorized, in
criminal cases, any other trial than the trial by jury; but, if it did,
it certainly authorized none but the trial by battle, the trial by
ordeal, and the trial by compurgators. These were the only modes of
trial, except by jury, that had been known in England, in criminal
cases, for some centuries previous to Magna Carta. All of them had
become nearly extinct at the time of Magna Carta, and it is not probable
that they were included in "_legem terræ_" as that term is used in that
instrument. But if they were included in it, they have now been long
obsolete, and were such as neither this nor any future age will ever
return to.[27] For all practical purposes of the present day,
therefore, it may be asserted that Magna Carta allows no trial whatever
but trial by jury.
_Whether Magna Carta allowed sentence to be fixed otherwise than by the
jury._
Still another question arises on the words _legem terræ_, viz., whether,
in cases where the question of guilt was determined by the jury, the
amount of _punishment_ may not have been fixed by _legem terræ_, the
Common Law, instead of its being fixed by the jury.
I think we have no evidence whatever that, at the time of Magna Carta,
or indeed at any other time, _lex terræ_, the common law, fixed the
punishment in cases where the question of guilt was tried by a jury; or,
indeed, that it did in any other case. Doubtless certain punishments
were common and usual for certain offences; but I do not think it can be
shown that the _common law_, the _lex terræ_, which the king was sworn
to maintain, required any one specific punishment, or any precise amount
of punishment, for any one specific offence. If such a thing be claimed,
it must be shown, for it cannot be presumed. In fact, the contrary must
be presumed, because, in the nature of things, the amount of punishment
proper to be inflicted in any particular case, is a matter requiring the
exercise of discretion at the time, in order to adapt it to the moral
quality of the offence, which is different in each case, varying with
the mental and moral constitutions of the offenders, and the
circumstances of temptation or provocation. And Magna Carta recognizes
this principle distinctly, as has before been shown, in providing that
freemen, merchants, and villeins, "shall not be amerced for a small
crime, but according to the degree of the crime; and for a great crime
in proportion to the magnitude of it;" and that "none of the aforesaid
amercements shall be imposed (or assessed) but by the oaths of honest
men of the neighborhood;" and that "earls and barons shall not be
amerced but by their peers, and according to the quality of the
offence."
All this implies that the moral quality of the offence was to be judged
of at the trial, and that the punishment was to be fixed by the
discretion of the peers, or jury, and not by any such unvarying rule as
a common law rule would be.
I think, therefore, it must be conceded that, in all cases, tried by a
jury, Magna Carta intended that the punishment should be fixed by the
jury, and not by the common law, for these several reasons.
1. It is uncertain whether the _common law_ fixed the punishment of any
offence whatever.
2. The words "_per judicium parium suorum_," _according to the sentence
of his peers_, imply that the jury fixed the sentence in _some_ cases
tried by them; and if they fixed the sentence in some cases, it must be
presumed they did in all, unless the contrary be clearly shown.
3. The express provisions of Magna Carta, before adverted to, that no
amercements, or fines, should be imposed upon freemen, merchants, or
villeins, "but by the oath of honest men of the neighborhood," and
"according to the degree of the crime," and that "earls and barons
should not be amerced but by their peers, and according to the quality
of the offence," _proves_ that, at least, there was no common law fixing
the amount of _fines_, or, if there were, that it was to be no longer in
force. And if there was no common law fixing the amount of _fines_, or
if it was to be no longer in force, it is reasonable to infer, (in the
absence of all evidence to the contrary,) either that the common law did
not fix the amount of any other punishment, or that it was to be no
longer in force for that purpose.[28]
Under the Saxon laws, fines, payable to the injured party, seem to have
been the common punishments for all offences. Even murder was punishable
by a fine payable to the relatives of the deceased. The murder of the
king even was punishable by fine. When a criminal was unable to pay his
fine, his relatives often paid it for him. But if it were not paid, he
was put out of the protection of the law, and the injured parties, (or,
in the case of murder, the kindred of the deceased,) were allowed to
inflict such punishment as they pleased. And if the relatives of the
criminal protected him, it was lawful to take vengeance on them also.
Afterwards the custom grew up of exacting fines also to the king as a
punishment for offences.[29] And this latter was, doubtless, the usual
punishment at the time of Magna Carta, as is evidenced by the fact that
for many years immediately following Magna Carta, nearly or quite all
statutes that prescribed any punishment at all, prescribed that the
offender should "be grievously amerced," or "pay a great fine to the
king," or a "grievous ransom,"--with the alternative in some cases
(perhaps _understood_ in all) of imprisonment, banishment, or outlawry,
in case of non-payment.[30]
Judging, therefore, from the special provisions in Magna Carta,
requiring _fines_, or amercements, to be imposed only by juries,
(without mentioning any other punishments;) judging, also, from the
statutes which immediately followed Magna Carta, it is probable that the
Saxon custom of punishing all, or nearly all, offences by _fines_, (with
the alternative to the criminal of being imprisoned, banished, or
outlawed, and exposed to private vengeance, in case of non-payment,)
continued until the time of Magna Carta; and that in providing expressly
that _fines_ should be fixed by the juries, Magna Carta provided for
nearly or quite all the punishments that were expected to be inflicted;
that if there were to be any others, they were to be fixed by the
juries; and consequently that nothing was left to be fixed by "_legem
terræ_."
But whether the common law fixed the punishment of any offences, or not,
is a matter of little or no practical importance at this day; because we
have no idea of going back to any common law punishments of six hundred
years ago, if, indeed, there were any such at that time. It is enough
for us to know--_and this is what it is material for us to know_--that
the jury fixed the punishments, in all cases, unless they were fixed by
the _common law_; that Magna Carta allowed no punishments to be
prescribed by statute--that is, by the legislative power--nor in any
other manner by the king, or his judges, in any case whatever; and,
consequently, that all statutes prescribing particular punishments for
particular offences, or giving the king's judges any authority to fix
punishments, were void.
If the power to fix punishments had been left in the hands of the king,
it would have given him a power of oppression, which was liable to be
greatly abused; which there was no occasion to leave with him; and which
would have been incongruous with the whole object of this chapter of
Magna Carta; which object was to take all discretionary or arbitrary
power over individuals entirely out of the hands of the king, and his
laws, and entrust it only to the common law, and the peers, or
jury--that is, the people.
_What lex terræ did authorize._
But here the question arises, What then did "_legem terræ_" authorize
the king, (that is, the government,) to do in the case of an accused
person, if it neither authorized any other trial than that by jury, nor
any other punishments than those fixed by juries?
The answer is, that, owing to the darkness of history on the point, it
is probably wholly impossible, at this day, to state, _with any
certainty or precision_, anything whatever that the _legem terræ_ of
Magna Carta did authorize the king, (that is, the government,) to do,
(if, indeed, it authorized him to do anything,) in the case of
criminals, _other than to have them tried and sentenced by their peers,
for common law crimes_; and to carry that sentence into execution.
The trial by jury was a part of _legem terræ_, and we have the means of
knowing what the trial by jury was. The fact that the jury were to fix
the sentence, implies that they were to _try_ the accused; otherwise
they could not know what sentence, or whether any sentence, ought to be
inflicted upon him. Hence it follows that the jury were to judge of
everything involved in the trial; that is, they were to judge of the
nature of the offence, of the admissibility and weight of testimony, and
of everything else whatsoever that was of the essence of the trial. If
anything whatever could be dictated to them, either of law or evidence,
the sentence would not be theirs, but would be dictated to them by the
power that dictated to them the law or evidence. The trial and sentence,
then, were wholly in the hands of the jury.
We also have sufficient evidence of the nature of the oath administered
to jurors in criminal cases. It was simply, that _they would neither
convict the innocent, nor acquit the guilty_. This was the oath in the
Saxon times, and probably continued to be until Magna Carta.
We also know that, in case of _conviction_, the sentence of the jury was
not necessarily final; that the accused had the right of appeal to the
king and his judges, and to demand either a new trial, or an acquittal,
if the trial or conviction had been against law.
So much, therefore, of the _legem terræ_ of Magna Carta, we know with
reasonable certainty.
We also know that Magna Carta provides that "No bailiff (_balivus_)
shall hereafter put any man to his law, (put him on trial,) on his
single testimony, without credible witnesses brought to support it."
Coke thinks "that under this word _balivus_, in this act, is
comprehended every justice, minister of the king, steward of the king,
steward and bailiff." (2 Inst. 44.) And in support of this idea he
quotes from a very ancient law book, called the Mirror of Justices,
written in the time of Edward I., within a century after Magna Carta.
But whether this were really a common law principle, or whether the
provision grew out of that jealousy of the government which, at the time
of Magna Carta, had reached its height, cannot perhaps now be
determined.
We also know that, by Magna Carta, amercements, or fines, could not be
imposed to the ruin of the criminal; that, in the case of a freeman, his
_contenement_, or means of subsisting in the condition of a freeman,
must be saved to him; that, in the case of a merchant, his merchandise
must be spared; and in the case of a villein, his _waynage_, or
plough-tackle and carts. This also is likely to have been a principle of
the common law, inasmuch as, in that rude age, when the means of getting
employment as laborers were not what they are now, the man and his
family would probably have been liable to starvation, if these means of
subsistence had been taken from him.
We also know, _generally_, that, at the time of Magna Carta, _all acts
intrinsically criminal_, all trespasses against persons and property,
were crimes, according to _lex terræ_, or the common law.
Beyond the points now given, we hardly know anything, probably nothing
_with certainty_, as to what the "_legem terræ_" of _Magna Carta_ did
authorize, in regard to crimes. There is hardly anything extant that can
give us any real light on the subject.
It would seem, however, that there were, even at that day, some common
law principles governing arrests; and some common law forms and rules as
to holding a man for trial, (by bail or imprisonment;) putting him on
trial, such as by indictment or complaint; summoning and empanelling
jurors, &c., &c. Whatever these common law principles were, Magna Carta
requires them to be observed; for Magna Carta provides for the whole
proceedings, commencing with the arrest, ("no freeman shall be
_arrested_," &c.,) and ending with the execution of the sentence. And it
provides that nothing shall be done, by the government, from beginning
to end, unless according to the sentence of the peers, or "_legem
terræ_," the common law. The trial by peers was a part of _legem terræ_,
and we have seen that the peers must necessarily have governed the whole
proceedings at the trial. But all the proceedings for arresting the man,
and bringing him to trial, must have been had before the case could come
under the cognizance of the peers, and they must, therefore, have been
governed by other rules than the discretion of the peers. We may
_conjecture_, although we cannot perhaps know with much certainty, that
the _lex terræ_, or common law, governing these other proceedings, was
somewhat similar to the common law principles, on the same points, at
the present day. Such seem to be the opinions of Coke, who says that the
phrase _nisi per legem terræ_ means _unless by due process of law_.
Thus, he says:
"_Nisi per legem terræ. But by the law of the land._ For the true sense
and exposition of these words, see the statute of 37 Edw. III., cap. 8,
where the words, _by the law of the land_, are rendered _without due
process of law_; for there it is said, though it be contained in the
Great Charter, that no man be taken, imprisoned, or put out of his
freehold, _without process of the law; that is, by indictment or
presentment of good and lawful men, where such deeds be done in due
manner, or by writ original of the common law_.
"Without being brought in to answer but by due process of the common
law.
"No man be put to answer without presentment before justices, or thing
of record, or by due process, or by writ original, _according to the old
law of the land_."--_2 Inst._ 50.
The foregoing interpretations of the words _nisi per legem terræ_ are
corroborated by the following statutes, enacted in the next century
after Magna Carta.
"That no man, from henceforth, shall be attached by any accusation, nor
forejudged of life or limb, nor his land, tenements, goods, nor
chattels, seized into the king's hands, against the form of the Great
Charter, _and the law of the land_."--_St. 5 Edward III., Ch._ 9.
(1331.)
"Whereas it is contained in the Great Charter of the franchises of
England, that none shall be imprisoned, nor put out of his freehold, nor
of his franchises, nor free customs, _unless it be by the law of the
land_; it is accorded, assented, and established, that from henceforth
none shall be taken by petition, or suggestion made to our lord the
king, or to his council, _unless it be by indictment or presentment of
good and lawful people of the same neighborhood where such deeds be done
in due manner, or by process made by writ original at the common law_;
nor that none be put out of his franchises, nor of his freehold, _unless
he be duly brought into answer, and forejudged of the same by the course
of the law_; and if anything be done against the same, it shall be
redressed and holden for none."--_St. 25 Edward III., Ch._ 4. (1350.)
"That no man, of what estate or condition that he be, shall be put out
of land or tenement, nor taken, nor imprisoned, nor disinherited, nor
put to death, without being brought in answer _by due process of
law_."--_St. 28 Edward III., Ch._ 3. (1354.)
"That no man be put to answer without presentment before justices, or
matter of record, or by due process and writ original, according to the
_old law of the land_. And if anything from henceforth be done to the
contrary, it shall be void in law, and holden for error."--_St. 42
Edward III., Ch._ 3. (1368.)
The foregoing interpretation of the words _nisi per legem terræ_--that
is, _by due process of law_--including indictment, &c., has been adopted
as the true one by modern writers and courts; as, for example, by Kent,
(2 _Comm._ 13,) Story, (3 _Comm._ 661,) and the Supreme Court of New
York, (19 _Wendell_, 676; 4 _Hill_, 146.)
The fifth amendment to the constitution of the United States seems to
have been framed on the same idea, inasmuch as it provides that "no
person shall be deprived of life, liberty, or property, _without due
process of law_."[31]
_Whether the word_ VEL _should be rendered by_ OR, _or by_ AND.
Having thus given the meanings, or rather the applications, which the
words _vel per legem terræ_ will reasonably, and perhaps must
necessarily, bear, it is proper to suggest, that it has been supposed by
some that the word _vel_, instead of being rendered by _or_, as it
usually is, ought to be rendered by _and_, inasmuch as the word _vel_ is
often used for _et_, and the whole phrase _nisi per judicium parium
suorum, vel per legem terræ_, (which would then read, unless by the
sentence of his peers, _and_ the law of the land,) would convey a more
intelligible and harmonious meaning than it otherwise does.
Blackstone suggests that this may be the true reading. (_Charters_, p.
41.) Also Mr. Hallam, who says:
"Nisi per legale judicium parium suorum, _vel_ per legem terræ.
Several explanations have been offered of the alternative clause;
which some have referred to judgment by default, or demurrer; others
to the process of attachment for contempt. Certainly there are many
legal procedures besides trial by jury, through which a party's goods
or person may be taken. But one may doubt whether these were in
contemplation of the framers of Magna Carta. In an entry of the
Charter of 1217 by a contemporary hand, preserved in the Town-clerk's
office in London, called Liber Custumarum et Regum antiquarum, a
various reading, _et_ per legem terræ, occurs. _Blackstone's
Charters_, p. 42 (41.) And the word _vel_ is so frequently used for
_et_, that I am not wholly free from a suspicion that it was so
intended in this place. The meaning will be, that no person shall be
disseized, &c., except upon a lawful cause of action, found by the
verdict of a jury. This really seems as good as any of the
disjunctive interpretations; but I do not offer it with much
confidence."--2 _Hallam's Middle Ages, Ch._ 8, _Part_ 2, p. 449,
_note_.[32]
The idea that the word _vel_ should be rendered by _and_, is
corroborated, if not absolutely confirmed, by the following passage in
Blackstone, which has before been cited. Speaking of the trial by jury,
as established by Magna Carta, he calls it,
"A privilege which is couched in almost the same words with that of
the Emperor Conrad two hundred years before: 'nemo beneficium suum
perdat, nisi secundum consuetudinem antecessorum nostrorum, _et_
judicium parium suorum.'" (No one shall lose his estate unless
according to the custom of our ancestors, and the judgment of his
peers.)--_3 Blackstone_, 350.
If the word _vel_ be rendered by _and_, (as I think it must be, at least
in some cases,) this chapter of Magna Carta will then read that no
freeman shall be arrested or punished, "unless according to the sentence
of his peers, _and_ the law of the land."
The difference between this reading and the other is important. In the
one case, there would be, at first view, some color of ground for saying
that a man might be punished in either of two ways, viz., according to
the sentence of his peers, _or_ according to the law of the land. In the
other case, it requires both the sentence of his peers _and_ the law of
the land (common law) to authorize his punishment.
If this latter reading be adopted, the provision would seem to exclude
all trials except trial by jury, and all causes of action except those
of the _common law_.
But I apprehend the word vel must be rendered both by _and_, and by
_or_; that in cases of a _judgment_, it should be rendered by _and_, so
as to require the concurrence both of "the judgment of the peers _and_
the law of the land," to authorize the king to make execution upon a
party's goods or person; but that in cases of arrest and imprisonment,
simply for the purpose of bringing a man to trial, _vel_ should be
rendered by or, because there can have been no judgment of a jury in
such a case, and "the law of the land" must therefore necessarily be the
only guide to, and restraint upon, the king. If this guide and restraint
were taken away, the king would be invested with an arbitrary and most
dangerous power in making arrests, and confining in prison, under
pretence of an intention to bring to trial.
Having thus examined the language of this chapter of Magna Carta, so far
as it relates to criminal cases, its legal import may be stated as
follows, viz.:
No freeman shall be arrested, or imprisoned, or deprived of his
freehold, or his liberties, or free customs, or be outlawed, or exiled,
or in any manner destroyed, (harmed,) nor will we (the king) proceed
against him, nor send any one against him, by force or arms, unless
according to (that is, in execution of) the sentence of his peers, _and_
(or _or_, as the case may require) the Common Law of England, (as it was
at the time of Magna Carta, in 1215.)
[Footnote 5: 1 Hume, Appendix 2.]
[Footnote 6: Crabbe's History of the English Law, 236.]
[Footnote 7: Coke says, "The king of England is armed with divers
councils, one whereof is called _commune concilium_, (the common
council,) and that is the court of parliament, and so it is _legally_
called in writs and judicial proceedings _commune concilium regni
Angliæ_, (the common council of the kingdom of England.) And another is
called _magnum concilium_, (great council;) this is sometimes applied to
the upper house of parliament, and sometimes, out of parliament time, to
the peers of the realm, lords of parliament, who are called _magnum
concilium regis_, (the great council of the king;) * * Thirdly, (as
every man knoweth,) the king hath a privy council for matters of state.
* * The fourth council of the king are his judges for law matters."
_1 Coke's Institutes, 110 a._]
[Footnote 8: The Great Charter of Henry III., (1216 and 1225,) confirmed
by Edward I., (1297,) makes no provision whatever for, or mention of, a
parliament, unless the provision, (Ch. 37,) that "Escuage, (a military
contribution,) from henceforth shall be taken like as it was wont to be
in the time of King Henry our grandfather," mean that a parliament shall
be summoned for that purpose.]
[Footnote 9: The Magna Carta of John, (Ch. 17 and 18,) defines those who
were entitled to be summoned to parliament, to wit, "The Archbishops,
Bishops, Abbots, Earls, and Great Barons of the Realm, * * and all
others who hold of us _in chief_." Those who held land of the king _in
chief_ included none below the rank of knights.]
[Footnote 10: The parliaments of that time were, doubtless, such as
Carlyle describes them, when he says, "The parliament was at first a
most simple assemblage, quite cognate to the situation; that Red
William, or whoever had taken on him the terrible task of being King of
England, was wont to invite, oftenest about Christmas time, his
subordinate Kinglets, Barons as he called them, to give him the pleasure
of their company for a week or two; there, in earnest conference all
morning, in freer talk over Christmas cheer all evening, in some big
royal hall of Westminster, Winchester, or wherever it might be, with log
fires, huge rounds of roast and boiled, not lacking malmsey and other
generous liquor, they took counsel concerning the arduous matters of the
kingdom."]
[Footnote 11: Hume, Appendix 2.]
[Footnote 12: This point will be more fully established hereafter.]
[Footnote 13: It is plain that the king and all his partisans looked
upon the charter as utterly prostrating the king's legislative supremacy
before the discretion of juries. When the schedule of liberties demanded
by the barons was shown to him, (of which the trial by jury was the most
important, because it was the only one that protected all the rest,)
"the king, falling into a violent passion, asked, _Why the barons did
not with these exactions demand his kingdom?_ * * _and with a solemn
oath protested, that he would never grant such liberties as would make
himself a slave_." * * But afterwards, "seeing himself deserted, and
fearing they would seize his castles, he sent the Earl of Pembroke and
other faithful messengers to them, to let them know _he would grant them
the laws and liberties they desired_." * * But after the charter had
been granted, "the king's mercenary soldiers, desiring war more than
peace, were by their leaders continually whispering in his ears, _that
he was now no longer king, but the scorn of other princes; and that it
was more eligible to be no king, than such a one as he_." * * He applied
"to the Pope, that he might by his apostolic authority make void what
the barons had done. * * At Rome he met with what success he could
desire, where all the transactions with the barons were fully
represented to the Pope, and the Charter of Liberties shown to him, in
writing; which, when he had carefully perused, he, with a furious look,
cried out, _What! Do the barons of England endeavor to dethrone a king,
who has taken upon him the Holy Cross, and is under the protection of
the Apostolic See; and would they force him to transfer the dominions of
the Roman Church to others? By St. Peter, this injury must not pass
unpunished._ Then debating the matter with the cardinals, he, by a
definitive sentence, damned and cassated forever the Charter of
Liberties, and sent the king a bull containing that sentence at
large."--_Echard's History of England_, p. 106-7.
These things show that the nature and effect of the charter were well
understood by the king and his friends; that they all agreed that he was
effectually stripped of power. _Yet the legislative power had not been
taken from him; but only the power to enforce his laws, unless juries
should freely consent to their enforcement._]
[Footnote 14: The laws were, at that time, all written in Latin.]
[Footnote 15: "No man shall be condemned at the king's suit, either
before the king in his bench, where pleas are _coram rege_, (before the
king,) (and so are the words _nec super eum ibimus_, to be understood,)
nor before any other commissioner or judge whatsoever, and so are the
words _nec super eum mittemus_, to be understood, but by the judgment of
his peers, that is, equals, or according to the law of the land."--_2
Coke's Inst._, 46.]
[Footnote 16: Perhaps the assertion in the text should be made with this
qualification--that the words "_per legem terræ_," (according to the law
of the land,) and the words "_per legale judicium parium suorum_,"
(according to the _legal_ judgment of his peers,) imply that the king,
before proceeding to any _executive_ action, will take notice of "the
law of the land," and of the _legality_ of the judgment of the peers,
and will _execute_ upon the prisoner nothing except what the law of the
land authorizes, and no judgments of the peers, except _legal_ ones.
With this qualification, the assertion in the text is strictly
correct--that there is nothing in the whole chapter that grants to the
king, or his judges, any _judicial_ power at all. The chapter only
describes and _limits_ his _executive_ power.]
[Footnote 17: See Blackstone's Law Tracts, page 294, Oxford Edition.]
[Footnote 18: These Articles of the Charter are given in Blackstone's
collection of Charters, and are also printed with the _Statutes of the
Realm_. Also in Wilkins' Laws of the Anglo-Saxons, p. 356.]
[Footnote 19: Lingard says, "The words, '_We will not destroy him, nor
will we go upon him, nor will we send upon him_,' have been very
differently expounded by different legal authorities. Their real meaning
may be learned from John himself, who the next year promised by his
letters patent ... nec super eos _per vim vel per arma_ ibimus, nisi per
legem regni nostri, vel per judicium parium suorum in curia nostra, (nor
will we go upon them _by force or by arms_, unless by the law of our
kingdom, or the judgment of their peers in our court.) Pat. 16 Johan,
apud Drad. 11, app. no. 124. He had hitherto been in the habit of
_going_ with an armed force, or _sending_ an armed force on the lands,
and against the castles, of all whom he knew or suspected to be his
secret enemies, without observing any form of law."--3 Lingard, 47
note.]
[Footnote 20: "_Judgment, judicium._ * * The sentence of the law,
pronounced by the court, upon the matter contained in the record."--3
_Blackstone_, 395. _Jacob's Law Dictionary. Tomlin's do._
"_Judgment_ is the decision or sentence of the law, given by a court of
justice or other competent tribunal, as the result of the proceedings
instituted therein, for the redress of an injury."--_Bouvier's Law
Dict._
"_Judgment, judicium._ * * Sentence of a judge against a criminal. * *
Determination, decision in general."--_Bailey's Dict._
"_Judgment._ * * In a legal sense, a sentence or decision pronounced by
authority of a king, or other power, either by their own mouth, or by
that of their judges and officers, whom they appoint to administer
justice in their stead."--_Chambers' Dict._
"_Judgment._ * * In law, the sentence or doom pronounced in any case,
civil or criminal, by the judge or court by which it is
tried."--_Webster's Dict._
Sometimes the punishment itself is called _judicium_, _judgment_; or,
rather, it was at the time of Magna Carta. For example, in a statute
passed fifty-one years after Magna Carta, it was said that a baker, for
default in the weight of his bread, "debeat amerciari vel subire
_judicium_ pillorie;" that is, ought to be amerced, or suffer the
punishment, or judgment, of the pillory. Also that a brewer, for
"selling ale contrary to the assize," "debeat amerciari, vel pati
_judicium_ tumbrelli"; that is, ought to be amerced, or suffer the
punishment, or judgment, of the tumbrel.--51 _Henry_ 3, _St._ 6. (1266.)
Also the "_Statutes of uncertain date_," (but supposed to be prior to
Edward III., or 1326,) provide, in chapters 6, 7, and 10, for
"_judgment_ of the pillory."--_See 1 Ruffhead's Statutes_, 187, 188. 1
_Statutes of the Realm_, 203.
Blackstone, in his chapter "Of _Judgment_, and its Consequences," says,
"_Judgment_ (unless any matter be offered in arrest thereof) follows
upon conviction; being the pronouncing of that punishment which is
expressly ordained by law."--_Blackstone's Analysis of the Laws of
England, Book 4, Ch. 29, Sec. 1. Blackstone's Law Tracts_, 126.
Coke says, "_Judicium_ ... the judgment is the guide and direction of
the execution." 3 _Inst._ 210.]
[Footnote 21: This precedent from Germany is good authority, because the
trial by jury was in use, in the northern nations of Europe generally,
long before Magna Carta, and probably from time immemorial; and the
Saxons and Normans were familiar with it before they settled in
England.]
[Footnote 22: _Beneficium_ was the legal name of an estate held by a
feudal tenure. See Spelman's Glossary.]
[Footnote 23: _Contenement_ of a freeman was the means of living in the
condition of a freeman.]
[Footnote 24: _Waynage_ was a villein's plough-tackle and carts.]
[Footnote 25: Tomlin says, "The ancient practice was, when any such fine
was imposed, to inquire by a jury _quantum inde regi dare valeat per
annum, salva sustentatione sua et uxoris et liberorum suorum_, (how much
is he able to give to the king per annum, saving his own maintenance,
and that of his wife and children). And since the disuse of such
inquest, it is never usual to assess a larger fine than a man is able to
pay, without touching the implements of his livelihood; but to inflict
corporal punishment, or a limited imprisonment, instead of such a fine
as might amount to imprisonment for life. And this is the reason why
fines in the king's courts are frequently denominated ransoms, because
the penalty must otherwise fall upon a man's person, unless it be
redeemed or ransomed by a pecuniary fine."--_Tomlin's Law Dict., word
Fine._]
[Footnote 26: Because juries were to fix the sentence, it must not be
supposed that the king was _obliged_ to carry the sentence into
execution; _but only that he could not go beyond the sentence_. He might
pardon, or he might acquit on grounds of law, notwithstanding the
sentence; but he could not punish beyond the extent of the sentence.
Magna Carta does not prescribe that the king _shall punish_ according to
the sentence of the peers; but only that he shall not punish _"unless
according to" that sentence_. He may acquit or pardon, notwithstanding
their sentence or judgment; but he cannot punish, except according to
their judgment.]
[Footnote 27: _The trial by battle_ was one in which the accused
challenged his accuser to single combat, and staked the question of his
guilt or innocence on the result of the duel. This trial was introduced
into England by the Normans, within one hundred and fifty years before
Magna Carta. It was not very often resorted to even by the Normans
themselves; probably never by the Anglo-Saxons, unless in their
controversies with the Normans. It was strongly discouraged by some of
the Norman princes, particularly by Henry II., by whom the trial by jury
was especially favored. It is probable that the trial by battle, so far
as it prevailed at all in England, was rather tolerated as a matter of
chivalry, than authorized as a matter of law. At any rate, it is not
likely that it was included in the "_legem terræ_" of Magna Carta,
although such duels have occasionally occurred since that time, and
have, by some, been supposed to be lawful. I apprehend that nothing can
be properly said to be a part of _lex terræ_, unless it can be shown
either to have been of Saxon origin, or to have been recognized by Magna
Carta.
_The trial by ordeal_ was of various kinds. In one ordeal the accused
was required to take hot iron in his hand; in another to walk blindfold
among red-hot ploughshares; in another to thrust his arm into boiling
water; in another to be thrown, with his hands and feet bound, into cold
water; in another to swallow the _morsel of execration_; in the
confidence that his guilt or innocence would be miraculously made known.
This mode of trial was nearly extinct at the time of Magna Carta, and it
is not likely that it was included in "_legem terræ_," as that term is
used in that instrument. This idea is corroborated by the fact that the
trial by ordeal was specially prohibited only four years after Magna
Carta, "by act of Parliament in 3 Henry III., according to Sir Edward
Coke, or rather by an order of the king in council."--_3 Blackstone_
345, _note_.
I apprehend that this trial was never forced upon accused persons, but
was only allowed to them, _as an appeal to God_, from the judgment of a
jury.[33]
_The trial by compurgators_ was one in which, if the accused could bring
twelve of his neighbors, who would make oath that they believed him
innocent, he was held to be so. It is probable that this trial was
really the trial by jury, or was allowed as an appeal from a jury. It is
wholly improbable that two different modes of trial, so nearly
resembling each other as this and the trial by jury do, should prevail
at the same time, and among a rude people, whose judicial proceedings
would naturally be of the simplest kind. But if this trial really were
any other than the trial by jury, it must have been nearly or quite
extinct at the time of Magna Carta; and there is no probability that it
was included in "_legem terræ_."]
[Footnote 28: Coke attempts to show that there is a distinction between
amercements and fines--admitting that amercements must be fixed by one's
peers, but claiming that fines may be fixed by the government. (_2
Inst._ 27, _8 Coke's Reports_ 38.) But there seems to have been no
ground whatever for supposing that any such distinction existed at the
time of Magna Carta. If there were any such distinction in the time of
Coke, it had doubtless grown up within the four centuries that had
elapsed since Magna Carta, and is to be set down as one of the
numberless inventions of government for getting rid of the restraints of
Magna Carta, and for taking men out of the protection of their peers,
and subjecting them to such punishments as the government chooses to
inflict.
The first statute of Westminster, passed sixty years after Magna Carta,
treats the fine and amercement as synonymous, as follows:
"Forasmuch as _the common fine and amercement_ of the whole county in
Eyre of the justices for false judgments, or for other trespass, is
unjustly assessed by sheriffs and baretors in the shires, * * it is
provided, and the king wills, that from henceforth such sums shall be
assessed before the justices in Eyre, afore their departure, _by the
oath of knights and other honest men_," &c.--_3 Edward I., Ch._ 18.
(1275.)
And in many other statutes passed after Magna Carta, the terms _fine_
and _amercement_ seem to be used indifferently, in prescribing the
punishment for offences. As late as 1461, (246 years after Magna Carta,)
the statute _1 Edward IV., Ch._ 2, speaks of "_fines, ransoms, and
amerciaments_" as being levied upon criminals, as if they were the
common punishments of offences.
_St._ 2 and 3 _Philip and Mary, Ch._ 8, uses the terms, "_fines,
forfeitures, and amerciaments_" five times. (1555.)
_St. 5 Elizabeth, Ch._ 13, _Sec._ 10, uses the terms "_fines,
forfeitures, and amerciaments_."
That amercements were fines, or pecuniary punishments, inflicted for
offences, is proved by the following statutes, (all supposed to have
been passed within one hundred and fifteen years after Magna Carta,)
which speak of amercements as a species of "_judgment_," or punishment,
and as being inflicted for the same offences as other "judgments."
Thus one statute declares that a baker, for default in the weight of his
bread, "ought to be _amerced_, or suffer the _judgment_ of the pillory;"
and that a brewer, for "selling ale contrary to the assize," "ought to
be _amerced_, or suffer the _judgment_ of the tumbrel."--_51 Henry III.,
St._ 6. (1266.)
Among the "_Statutes of Uncertain Date_," but supposed to be prior to
Edward III., (1326,) are the following:
_Chap._ 6 provides that "if a brewer break the assize, (fixing the price
of ale,) the first, second, and third time, he shall be _amerced_; but
the fourth time he shall suffer _judgment_ of the pillory without
redemption."
_Chap._ 7 provides that "a butcher that selleth swine's flesh measled,
or flesh dead of the murrain, or that buyeth flesh of Jews, and selleth
the same unto Christians, after he shall be convict thereof, for the
first time he shall be grievously _amerced_; the second time he shall
suffer _judgment_ of the pillory; and the third time he shall be
imprisoned and make _fine_; and the fourth time he shall forswear the
town."
_Chap. 10_, a statute against _forestalling_, provides that,
"He that is convict thereof, the first time shall be _amerced_, and
shall lose the thing so bought, and that according to the custom of the
town; he that is convicted the second time shall have _judgment_ of the
pillory; at the third time he shall be imprisoned and make _fine_; the
fourth time he shall abjure the town. And this _judgment_ shall be given
upon all manner of forestallers, and likewise upon them that have given
them counsel, help, or favor."--_1 Ruffhead's Statutes_, 187, 188. _1
Statutes of the Realm_, 203.]
[Footnote 29: 1 Hume, Appendix, 1.]
[Footnote 30: Blackstone says, "Our ancient Saxon laws nominally
punished theft with death, if above the value of twelve pence; but the
criminal was permitted to redeem his life by a pecuniary ransom, as
among their ancestors, the Germans, by a stated number of cattle. But in
the ninth year of Henry the First, (1109,) this power of redemption was
taken away, and all persons guilty of larceny above the value of twelve
pence were directed to be hanged, which law continues in force to this
day."--_4 Blackstone_, 238.
I give this statement of Blackstone, because the latter clause may seem
to militate with the idea, which the former clause corroborates, viz.,
that at the time of Magna Carta, fines were the usual punishments of
offences. But I think there is no probability that a law so unreasonable
in itself, (unreasonable even after making all allowance for the
difference in the value of money,) and so contrary to immemorial custom,
could or did obtain any general or speedy acquiescence among a people
who cared little for the authority of kings.
Maddox, writing of the period from William the Conqueror to John, says:
"The amercements in criminal and common pleas, which were wont to be
imposed during this first period and afterwards, were of so many several
sorts, that it is not easy to place them under distinct heads. Let them,
for method's sake, be reduced to the heads following: Amercements for or
by reason of murders and manslaughters, for misdemeanors, for
disseisins, for recreancy, for breach of assize, for defaults, for
non-appearance, for false judgment, and for not making suit, or hue and
cry. To them may be added miscellaneous amercements, for trespasses of
divers kinds."--_1 Maddox' History of the Exchequer_, 542.]
[Footnote 31: Coke, in his exposition of the words _legem terræ_, gives
quite in detail the principles of the common law governing _arrests_;
and takes it for granted that the words "_nisi per legem terræ_" are
applicable to arrests, as well as to the indictment, &c.--2 _Inst._,
51,52.]
[Footnote 32: I cite the above extract from Mr. Hallam solely for the
sake of his authority for rendering the word _vel_ by _and_; and not by
any means for the purpose of indorsing the opinion he suggests, that
_legem terræ_ authorized "judgments by default or demurrer," _without
the intervention of a jury_. He seems to imagine that _lex terræ_, the
common law, at the time of Magna Carta, included everything, even to the
practice of courts, that is, _at this day_, called by the name of
_Common Law_; whereas much of what is _now_ called Common Law has grown
up, by usurpation, since the time of Magna Carta, in palpable violation
of the authority of that charter. He says, "Certainly there are many
legal procedures, besides _trial_ by jury, through which a party's goods
or person may be taken." Of course there are _now_ many such ways, in
which a party's goods or person _are_ taken, besides by the judgment of
a jury; but the question is, whether such takings are not in violation
of Magna Carta.
He seems to think that, in cases of "judgment by default or demurrer,"
there is no need of a jury, and thence to infer that _legem terræ_ may
not have required a jury in those cases. But this opinion is founded on
the erroneous idea that juries are required only for determining
contested _facts_, and not for judging of the law. In case of default,
the plaintiff must present a _prima facie_ case before he is entitled to
a judgment; and Magna Carta, (supposing it to require a jury trial in
civil cases, as Mr. Hallam assumes that it does,) as much requires that
this _prima facie_ case, both law and fact, be made out to the
satisfaction of a jury, as it does that a contested case shall be.
As for a demurrer, the jury must try a demurrer (having the advice and
assistance of the court, of course) as much as any other matter of law
arising in a case.
Mr. Hallam evidently thinks there is no use for a jury, except where
there is a "_trial_"--meaning thereby a contest on matters of _fact_.
His language is, that "there are many legal procedures, besides _trial_
by jury, through which a party's goods or person may be taken." Now
Magna Carta says nothing of _trial_ by jury; but only of the _judgment_,
or sentence, of a jury. It is only _by inference_ that we come to the
conclusion that there must be a _trial_ by jury. Since the jury alone
can give the _judgment_, or _sentence_, we _infer_ that they must _try_
the case; because otherwise they would be incompetent, and would have no
moral right, to give _judgment_. They must, therefore, examine the
grounds, (both of law and fact,) or rather _try_ the grounds, of every
action whatsoever, whether it be decided on "default, demurrer," or
otherwise, and render their judgment, or sentence, thereon, before any
judgment can be a legal one, on which "to take a party's goods or
person." In short, the principle of Magna Carta is, that no judgment can
be valid _against a party's goods or person_, (not even a judgment for
costs,) except a judgment rendered by a jury. Of course a jury must try
every question, both of law and fact, that is involved in the rendering
of that judgment. They are to have the assistance and advice of the
judges, so far as they desire them; but the judgment itself must be
theirs, and not the judgment of the court.
As to "process of attachment for contempt," it is of course lawful for a
judge, in his character of a peace officer, to issue a warrant for the
arrest of a man guilty of a contempt, as he would for the arrest of any
other offender, and hold him to bail, (or, in default of bail, commit
him to prison,) to answer for his offence before a jury. Or he may order
him into custody without a warrant when the offence is committed in the
judge's presence. But there is no reason why a judge should have the
power of _punishing_ for contempt, any more than for any other offence.
And it is one of the most dangerous powers a judge can have, because it
gives him absolute authority in a court of justice, and enables him to
tyrannize as he pleases over parties, counsel, witnesses, and jurors. If
a judge have power to punish for contempt, and to determine for himself
what is a contempt, the whole administration of justice (or injustice,
if he choose to make it so) is in his hands. And all the rights of
jurors, witnesses, counsel, and parties, are held subject to his
pleasure, and can be exercised only agreeably to his will. He can of
course control the entire proceedings in, and consequently the decision
of, every cause, by restraining and punishing every one, whether party,
counsel, witness, or juror, who presumes to offer anything contrary to
his pleasure.
This arbitrary power, which has been usurped and exercised by judges to
punish for contempt, has undoubtedly had much to do in subduing counsel
into those servile, obsequious, and cowardly habits, which so
universally prevail among them, and which have not only cost so many
clients their rights, but have also cost the people so many of their
liberties.
If any _summary_ punishment for contempt be ever necessary, (as it
probably is not,) beyond exclusion for the time being from the
court-room, (which should be done, not as a punishment, but for
self-protection, and the preservation of order,) the judgment for it
should be given by the jury, (where the trial is before a jury,) and not
by the court, for the jury, and not the court, are really the judges.
For the same reason, exclusion from the court-room should be ordered
only by the jury, in cases when the trial is before a jury, because
they, being the real judges and triers of the cause, are entitled, if
anybody, to the control of the court-room. In appeal courts, where no
juries sit, it may be necessary--not as a punishment, but for
self-protection, and the maintenance of order--that the court should
exercise the power of excluding a person, for the time being, from the
court-room; but there is no reason why they should proceed to sentence
him as a criminal, without his being tried by a jury.
If the people wish to have their rights respected and protected in
courts of justice, it is manifestly of the last importance that they
jealously guard the liberty of parties, counsel, witnesses, and jurors,
against all arbitrary power on the part of the court.
Certainly Mr. Hallam may very well say that "one may doubt whether these
(the several cases he has mentioned) were in contemplation of the
framers of Magna Carta"--that is, as exceptions to the rule requiring
that all judgments, that are to be enforced "_against a party's goods or
person_," be rendered by a jury.
Again, Mr. Hallam says, if the word _vel_ be rendered by _and_, "the
meaning will be, that no person shall be disseized, &c., _except upon a
lawful cause of action_." This is true; but it does not follow that any
cause of action, founded on _statute only_, is therefore a "_lawful_
cause of action," within the meaning of _legem terræ_, or the _Common
Law_. Within the meaning of the _legem terræ_ of Magna Carta, nothing
but a _common law_ cause of action is a "_lawful_" one.]
[Footnote 33: Hallam says, "It appears as if the ordeal were permitted
to persons already convicted by this verdict of a jury."--_2 Middle
Ages_, 446, _note_.]
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 vigerem habuerunt, cum fuerunt non modo institutæ
sed firmatæ 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 Kings_:"
"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.[34]
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 in 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 institutions_. 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_, 1.
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 leaders, 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 submission.
"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 monarch 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
acknowledge 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.
139-40.
"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 kingdom, 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,[35] 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 considered 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.[36] 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 deliberated 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 skilful, 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 of 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.[37]
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,[38] viz., "_that the County and 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.[39]
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.[40]
The Code of William the Conqueror[41] 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.[42] The Norman princes, from William the
Conqueror to John, I think without exception, bound themselves, and, in
order to maintain their thrones, were obliged to bind themselves, to
observe the ancient laws and customs, in other words, the "_lex terræ_,"
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 other 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 Angliæ 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.[43]
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 those
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_, 30.) 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.[44] 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, bailiffs,
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.[45] 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.[46] Of those that were written, few
copies only were made, (printing being then unknown,) and not enough to
supply all, 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 that time, 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.[47] 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 being even
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.[48]
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 sheriffs 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 332.
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 _nembas_; 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.[49] * *
"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. 7.
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 and 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 king'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' præd' 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 sheriff's; _yet, by
the old feudal constitutions, 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 by
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, p. 61-2.
"It is a distinguishing feature of the feudal system, to make civil
jurisdiction necessarily, and criminal jurisdiction ordinarily,
coëxtensive 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 curiæ_,
(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 Exchequer_,
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 twelve
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._"--_Tomlin'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 judges_, could not be 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 the land the jury are
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 were 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 determine, by writ of right, all
controversies relating to the right of lands within the manor_."--_3
Stephens' Commentaries_, 392-3. _3 Blackstone_, 32-3.
"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,[50]
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 challenge; _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 Angliæ_."
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.
Tyrrell 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[51]--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 impanelled 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 impanelled 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,[52] _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 the 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 held in the _trading towns_."--_Same_, p. 335.
Also, "The same regulations, 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 _Exchequer_,) as
well as into their auxiliary 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 England, 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 curiæ_
(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.[53]
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_.* * 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, in general, 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) shall 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, bailiffs, 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_,"[54] 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
truth 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 untrammelled 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 for 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.[55]
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 that 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 to 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.[56]
_Grand Jury._--If jurors are bound to enforce all laws passed by the
legislature, it is a very remarkable fact that 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 them 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.
38.
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.[57]
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 pilloræ,"--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 sheriffs 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.)[58]
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 tenements, 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 adjudge
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