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diff --git a/.gitattributes b/.gitattributes new file mode 100644 index 0000000..6833f05 --- /dev/null +++ b/.gitattributes @@ -0,0 +1,3 @@ +* text=auto +*.txt text +*.md text diff --git a/1201.txt b/1201.txt new file mode 100644 index 0000000..298e177 --- /dev/null +++ b/1201.txt @@ -0,0 +1,10744 @@ +**The Project Gutenberg Etext of An Essay on the Trial By Jury** +#1 in our series by Lysander Spooner + + +Copyright laws are changing all over the world, be sure to check +the copyright laws for your country before posting these files!! + +Please take a look at the important information in this header. +We encourage you to keep this file on your own disk, keeping an +electronic path open for the next readers. Do not remove this. + + +**Welcome To The World of Free Plain Vanilla Electronic Texts** + +**Etexts Readable By Both Humans and By Computers, Since 1971** + +*These Etexts Prepared By Hundreds of Volunteers and Donations* + +Information on contacting Project Gutenberg to get Etexts, and +further information is included below. We need your donations. + + +An Essay on the Trial By Jury + +By LYSANDER SPOONER + +February, 1998 [Etext #1201] + + +**The Project Gutenberg Etext of An Essay on the Trial By Jury** +******This file should be named 1201.txt or 1201.zip****** + +Prepared by David Reed haradda@aol.com and davidr@inconnect.com + +Project Gutenberg Etexts are usually created from multiple editions, +all of which are in the Public Domain in the United States, unless a +copyright notice is included. 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First I have +removed the footnotes to the end of each chapter and I have placed +note 9 at the end of chapter 6 noting that because of the ratification +of the XIX amendment to the Constitution for the United States, +August 20, 1920, women were fully enfranchised with all rights of +voting and jury service in all states of the Union. Other than the lack +of italics and bold in this text and the typos (may they be few) this is +the complete first edition text. Let me know of any mistakes you have +caught! My email address's for now is haradda@aol.com and +davidr@inconnect.com. + +David Reed + + + + + +An Essay on the Trial By Jury +By LYSANDER SPOONER + + +Entered according to Act of Congress, in the year 1852, by +LYSANDER SPOONER + +In the Clerk's Office of the District Court of Massachusetts. + +NOTICE TO ENGLISH PUBLISHERS + +The author claims the copyright of this book in England, on +Common Law principles, without regard to acts of parliament; and +if the main principle of the book itself be true, viz., that no +legislation, in conflict with the Common Law, is of any validity, +his claim is a legal one. He forbids any one to reprint the book +without his consent. + +Stereotyped by HOBART & ROBBINS; +New England Type and Stereotype Foundery,BOSTON. + + +NOTE + +This volume, it is presumed by the author, gives what will +generally be considered satisfactory evidence, though not all the +evidence, of what the Common Law trial by jury really is. In a +future volume, if it should be called for, it is designed to +corroborate the grounds taken in this; give a concise view of the +English constitution; show the unconstitutional character of the +existing government in England, and the unconstitutional means +by which the trial by jury has been broken down in practice; prove +that, neither in England nor the United States, have legislatures +ever been invested by the people with any authority to impair the +powers, change the oaths, or (with few exceptions) abridge the +jurisdiction, of juries, or select jurors on any other than Common +Law principles; and, consequently, that, in both countries, +legislation is still constitutionally subordinate to the discretion and +consciences of Common Law juries, in all cases, both civil and +criminal, in which juries sit. The same volume will probably also +discuss several political and legal questions, which will naturally +assume importance if the trial by jury should be reestablished. + + + + +CONTENTS + +CHAPTER I. THE RIGHT OF JURIES TO JUDGE OF THE +JUSTICE OF LAWS +SECTION 1. +SECTION 2. + +CHAPTER II. THE TRIAL BY JURY, AS DEFINED BY + MAGNA CARTA +SECTION 1. The History Of Magna Carta +SECTION 2. The Language Of Magna Carta + +CHAPTER III. ADDITIONAL PROOFS OF THE RIGHTS AND + DUTIES OF JURORS. +SECTION 1. Weakness of the Regal Authority +SECTION 2. The Ancient Common Law Juries Were Mere Courts + Of Conscience +SECTION 3. The Oaths of Jurors +SECTION 4. The Right Of Jurors To Fix The Sentence +SECTION 5. The Oaths Of Judges +SECTION 6. The Coronation Oath + +CHAPTER IV. THE RIGHTS AND DUTIES OF JURIES IN + CIVIL SUITS + +CHAPTER V. OBJECTIONS ANSWERED + +CHAPTER VI. JURIES OF THE PRESENT DAY ILLEGAL + +CHAPTER VII. ILLEGAL JUDGES + +CHAPTER VIII. THE FREE ADMINISTRATION OF JUSTICE + +CHAPTER IX. THE CRIMINAL INTENT + +CHAPTER X. MORAL CONSIDERATIONS FOR JURORS + +CHAPTER XI. AUTHORITY OF MAGNA CARTA + +CHAPTER XII. LIMITATIONS IMPOSED UPON THE + MAJORITY BY THE TRIAL BY JURY + +APPENDIX TAXATION + + + + +TRIAL BY JURY + +CHAPTER I + +THE RIGHT OF JURIES TO JUDGE OF THE JUSTICE OF LAWS + +SECTION I. + +FOR more than six hundred years that is, since Magna Carta, in +1215 there has been no clearer principle of English or American +constitutional law, than that, in criminal cases, it is not only the +right and duty of juries to judge what are the facts, what is the law, +and what was the moral intent of the accused; but that it is also +their right, and their primary and paramount duty, to judge of the +justice of the law, and to hold all laws invalid, that are, in their +opinion, unjust or oppressive, and all persons guiltless in violating, +or resisting the execution of, such laws. + +Unless such be the right and duty of jurors, it is plain that, instead +of juries being a "palladium of liberty" a barrier against the tyranny +and oppression of the government they are really mere tools in its +hands, for carrying into execution any injustice and oppression it +may desire to have executed. + +But for their right to judge of the law, and the justice of the law, +juries would be no protection to an accused person, even as to +matters of fact; for, if the government can dictate to a jury any law +whatever, in a criminal case, it can certainly dictate to them the +laws of evidence. That is, it can dictate what evidence is +admissible, and what inadmissible, and also what force or weight +is to be given to the evidence admitted. And if the government can +thus dictate to a jury the laws of evidence, it can not only make it +necessary for them to convict on a partial exhibition of the +evidence rightfully pertaining to the case, but it can even require +them to convict on any evidence whatever that it pleases to offer +them. + +That the rights and duties of jurors must necessarily be such as are +here claimed for them, will be evident when it is considered what +the trial by jury is, and what is its object. + +"The trial by jury," then, is a "trial by the country" that is, by the +people as distinguished from a trial by the government. + +It was anciently called "trial per pais" that is, "trial by the +country." And now, in every criminal trial, the jury are told that the +accused "has, for trial, put himself upon the country; which +country you (the jury) are." + +The object of this trial "by the country," or by the people, in +preference to a trial by the government, is to guard against every +species of oppression by the government. In order to effect this +end, it is indispensable that the people, or "the country," judge of +and determine their own liberties against the government; instead +of the government's judging of and determining its own powers +over the people. How is it possible that juries can do anything to +protect the liberties of the people against the government, if they +are not allowed to determine what those liberties are? + +Any government, that is its own judge of, and determines +authoritatively for the people, what are its own powers over the +people, is an absolute government of course. It has all the powers +that it chooses to exercise. There is no other or at least no more +accurate definition of a despotism than this. + +On the other hand, any people, that judge of, and determine +authoritatively for the government, what are their own liberties +against the government, of course retain all the liberties they wish +to enjoy. And this is freedom. At least, it is freedom to them; +because, although it may be theoretically imperfect, it, +nevertheless, corresponds to their highest notions of freedom. + +To secure this right of the people to judge of their own liberties +against the government, the jurors are taken, (or must be, to make +them lawful jurors,} from the body of the people, by lot, or by +some process that precludes any previos knowledge, choice, or +selection of them, on the part of the government. + +This is done to prevent the government's constituting a jury of its +own partisans or friends; in other words, to prevent the +government's packing a jury, with a view to maintain its own laws, +and accomplish its own purposes. + +It is supposed that, if twelve men be taken, by lot, from the mass of +the people, without the possibility of any previous knowledge, +choice, or selection of them, on the part of the government, the +jury will be a fair epitome of "the country" at large, and not merely +of the party or faction that sustain the measures of the government; +that substantially all classes of opinions, prevailing among the +people, will be represented in the jury; and especially that the +opponents of the government, (if the government have any +opponents,) will be represented there, as well as its friends; that +the classes, who are oppressed by the laws of the government, (if +any are thus oppressed,) will have their representatives in the jury, +as well as those classes, who take sides with the oppressor that is, +with the government. + +It is fairly presumable that such a tribunal will agree to no +conviction except such as substantially the whole country would +agree to, if they were present, taking part in the trial. A trial by +such a tribunal is, therefore, in effect, "a trial by the country." In its +results it probably comes as near to a trial by the whole country, as +any trial that it is practicable to have, without too great +inconvenience and expense. And. as unanimity is required for a +conviction, it follows that no one can be convicted, except for the +violation of such laws as substantially the whole country wish to +have maintained. The government can enforce none of its laws, +(by punishing offenders, through the verdicts of juries,) except +such as substantially the whole people wish to have enforced. The +government, therefore, consistently with the trial by jury, can +exercise no powers over the people, (or, what is the same thing, +over the accused person, who represents the rights of the people,) +except such a substantially the whole people of the country +consent that it may exercise. In such a trial, therefore, "the +country," or the people, judge of and dtermine their own liberties +against the government, instead of thegovernment's judging of and +determining its own powers over the people. + +But all this "trial by the country" would be no trial at all "by the +country," but only a trial by the government, if the government +'could either declare who may, and who may not, be jurors, or +could dictate to the jury anything whatever, either of law or +evidence, that is of the essence of the trial. + +If the government may decide who may, and who may not, be +jurors, it will of course select only its partisans, and those friendly +to its measures. It may not only prescribe who may, and who may +not, be eligible to be drawn as jurors; but it may also question each +person drawn as a juror, as to his sentiments in regard to the +particular law involved in each trial, before suffering him to be +sworn on the panel; and exclude him if he be found unfavorable to +the maintenance of such a law. [1] + +So, also, if the government may dictate to the jury what laws they +are to enforce, it is no longer a " trial by the country," but a trial by +the government; because the jury then try the accused, not by any +standard of their own not by their own judgments of their rightful +liberties but by a standard. dictated to them by the government. +And the standard, thus dictated by the government, becomes the +measure of the people's liberties. If the government dictate the +standard of trial, it of course dictates the results of the trial. And +such a trial is no trial by the country, but only a trial by the +government; and in it the government determines what are its own +powers over the people, instead of the people's determining what +are their own liberties against the government. In short, if the jury +have no right to judge of the justice of a law of the government, +they plainly can do nothing to protect the people against the +oppressions of the government; for there are no oppressions which +the government may not authorize by law. + +The jury are also to judge whether the laws are rightly expounded +to them by the court. Unless they judge on this point, they do +nothing to protect their liberties against the oppressions that are +capable of being practiced under cover of a corrupt exposition of +the laws. If the judiciary can authoritatively dictate to a jury any +exposition of the law, they can dictate to them the law itself, and +such laws as they please; because laws are, in practice, one thing +or another, according as they are expounded. + +The jury must also judge whether there really be any such law, (be +it good or bad,) as the accused is charged with having transgressed. +Unless they judge on this point, the people are liable to have their +liberties taken from them by brute force, without any law at all. + +The jury must also judge of the laws of evidence. If the +government can dictate to a jury the laws of evidence, it can not +only shut out any evidence it pleases, tending to vindicate the +accused, but it can require that any evidence whatever, that it +pleases to offer, be held as conclusive proof of any offence +whatever which the government chooses to allege. + +It is manifest, therefore, that the jury must judge of and try the +whole case, and every part and parcel of the case, free of any +dictation or authority on the part of the government. They must +judge of the existence of the law; of the true exposition of the law; +of the justice of the law; and of the admissibility and weight of all +the evidence offered; otherwise the government will have +everything its own way; the jury will be mere puppets in the hands +of the government: and the trial will be, in reality, a trial by the +government, and not a "trial by the country." By such trials the +government will determine its own powers over the people, instead +of the people's determining their own liberties against the +government; and it will be an entire delusion to talk, as for +centuries we have done, of the trial by jury, as a "palladium of +liberty," or as any protection to the people against the oppression +and tyranny of the government. + +The question, then, between trial by jury, as thus described, and +trial by the government, is simply a question between liberty and +despotism. The authority to judge what are the powers of the +government, and what the liberties of the people, must necessarily +be vested in one or the other of the parties themselves the +government, or the people; because there is no third party to whom +it can be entrusted. If the authority be vested in the government, +the governmnt is absolute, and the people have no liberties except +such as the government sees fit to indulge them with. If, on the +other hand, that authority be vested in the people, then the people +have all liberties, (as against the government,) except suc as +substantially the whole people (through a jury) choose to disclaim; +and the government can exercise no power except such as +substantially the whole people (through a jury) consent that it may +exercise. + +SECTION II. + +The force and. justice of the preceding argument cannot be evaded +by saying that the government is chosen by the people; that, in +theory, it represents the people; that it is designed to do the will of +the people; that its members are all sworn to observe the +fundamental or constitutional law instituted by the people; that its +acts are therefore entitled to be considered the acts of the people; +and that to allow a jury, representing the people, to invalidate the +acts of the' government, would therefore be arraying the people +against themselves. + +There are two answers to such an argument. + +One answer is, that, in a representative government, there is no +absurdity or contradiction, nor any arraying of the people against +themselves, in requiring that the statutes or enactments of the +government shall pass the ordeal of any number of separate +tribunals, before it shall be determined that they are to have the +force of laws. Our American constitutions have provided five of +these separate tribunals, to wit, representatives, senate, +executive,[2] jury, and judges; and have made it necessary that +each enactment shall pass the ordeal of all these separate tribunals, +before its authority can be established by the punishment of those +who choose to transgress it. And there is no more absurdity or +inconsistency in making a jury one of these several tribunals, than +there is in making the representatives, or the senate, or the +executive, or the judges, one of them. There is no more absurdity +in giving a jury a veto upon the laws, than there is in giving a veto +to each of these other tribunals. The people are no more arrayed +against themselves, when a jury puts its veto upon a statute, which +the other tribunals have sanctioned, than they are when the same +veto is exercised by the representatives, the senate, the executive, +or the judges. + +But another answer to the argument that the people are arrayed +against themselves, when a jury hold an enactment of the +government invalid, is, that the government, and all the +departments of the government, are merely the servants and agents +of the people; not invested with arbitrary or absolute authority to +bind the people, but required to submit all their enactments to the +judgment of a tribunal more fairly representing the whole people, +before they carry them into execution, by punishing any individual +for transgressing them. If the government were not thus required to +submit their enactments to the judgment of "the country," before +executing them upon individuals if, in other words, the people +had reserved to themselves no veto upon the acts of the +government, the government, instead of being a mere servant and +agent of the people, would be an absolute despot over the people. +It would have all power in its own hands; because the power to +punish carries all other powers with it. A power that can, of itself, +and by its own authority, punish disobedience, can compel +obedience and submission, and is above all responsibility for the +character of its laws. In short, it is a despotism. + +And it is of no consequence to inquire how a government came by +this power to punish, whether by prescription, by inheritance, by +usurpation. or by delegation from the people's If it have now but +got it, the government is absolute. + +It is plain, therefore, that if the people have invested the +government with power to make laws that absolutely bind the +people, and to punish the people for transgressing those laws, the +people have surrendered their liberties unreservedly into the hands +of the government. + +It is of no avail to say, in answer to this view of the ease, that in +surrendering their liberties into the hands of the government, the +people took an oath from the government, that it would exercise its +power within certain constitutional limits; for when did oaths ever +restrain a government that was otherwise unrestrained? Orwhen +did a government fail to determine that all its acts were within the +constitutional and authorized limits of its power, if it were +permitted to determine that question for itself? + +Neither is it of any avail to say, that, if the government abuse its +power, and enact unjust and oppressive laws, the government may +be changed by the influence of discussion, and the exercise of the +right of suffrage. Discussion can do nothing to prevent the +enactment, or procure the repeal, of unjust laws, unless it be +understood that, the discussion is to be followed by resistance. +Tyrants care nothing for discussions that are to end only in +discussion. Discussions, which do not interfere with the +enforcement of their laws, are but idle wind to them. Suffrage is +equally powerless and unreliable. It can be exercised only +periodically; and the tyranny must at least be borne until the time +for suffrage comes. Be sides, when the suffrage is exercised, it +gives no guaranty for the repeal of existing laws that are +oppressive, and no security against the enactment of new ones that +are equally so. The second body of legislators are liable and likely +to be just as tyrannical as the first. If it be said that the second +body may be chosen for their integrity, the answer is, that the first +were chosen for that very reason, and yet proved tyrants. The +second will be exposed to the same temptations as the first, and +will be just as likely to prove tyrannical. Who ever heard that +succeeding legislatures were, on the whole, more honest than those +that preceded them? What is there in the nature of men or things to +make them so? If it be said that the first body were chosen from +motives of injustice, that fact proves that there is a portion of +society who desire to establish injustice; and if they were powerful +or artful enough to procure the election of their instruments to +compose the first legislature, they will be likely to be powerful or +artful enough to procure the election of the same or similar +instruments to compose the second. The right of suffrage, +therefore, and even a change of legislators, guarantees no change +of legislation certainly no change for the better. Even if a change +for the better actually comes, t cmes too late, because it comes +only after more or less injustice has been irreparably done. + +But, at best, the right of suffrage can be exercised only +periodically; and between the periods the legislators are wholly +irresponsible. No despot was ever more entirely irresponsible than +are republican legislators during the period for which they are +chosen. They can neither, be removed from their office, nor called +to account while in their office, nor punished after they leave their +office, be their tyranny what it may. Moreover, the judicial and +executive departments of the government are equally irresponsible +to the people, and are only responsible, (by impeachment, and +dependence for their salaries), to these irresponsible legislators. +This dependence of the judiciary and executive upon the +legislature is a guaranty that they will always sanction and execute +its laws, whether just or unjust. Thus the legislators hold the whole +power of the government in their hands, and are at the same time +utterly irresponsible for the manner in which they use it. + +If, now, this government, (the three branches thus really united in +one), can determine the validity of, and enforce, its own laws, it is, +for the time being, entirely absolute, and wholly irresponsible to +the people. + +But this is not all. These legislators, and this government, so +irresponsible while in power, can perpetuate their power at +pleasure, if they can determine what legislation is authoritative +upon the people, and can enforce obedience to it, for they can not +only declare their power perpetual, but they can enforce +submission to all legislation that is necessary to secure its +perpetuity. They can, for example, prohibit all discussion of the +rightfulness of their authority; forbid the use of the suffrage; +prevent the election of any successors; disarm, plunder, imprison, +and even kill all who refuse submission. If, therefore, the +government (all departments united) be absolute for a day that is, +if it can, for a day, enforce obedience to its own laws it can, in +that day, secure its power for all time like the queen, who wished +to reign but for a day, but in that day caused the king, her husband, +to be slain, and usurped his throne. + +Nor will it avail to say that such acts would be unconstitutional, +and that unconstitutional acts may be lawfully resisted; for +everything a government pleases to do will, of course, be +determined to be constitutional, if the government itself be +permitted to determine the question of the constitutionality of its +own acts. Those who are capable of tyranny, are capable of perjury +to sustain it. + +The conclusion, therefore, is, that any government, that can, for a +day, enforce its own laws, without appealing to the people, (or to a +tribunal fairly representing the people,) for their consent, is, in +theory, an absolute government, irresponsible to the people, and +can perpetuate its power at pleasure. + +The trial by jury is based upon a recognition of this principle, and +therefore forbids the government to execute any of its laws, by +punishing violators, in any case whatever, without first getting the +consent of "the country," or the people, through a jury. In this way, +the people, at all times, hold their liberties in their own hands, and +never surrender them, even for a moment, into the hands of the +government. + +The trial by jury, then, gives to any and every individual the +liberty, at any time, to disregard or resist any law whatever of the +government, if he be willing to submit to the decision of a jury, the +questions, whether the law be intrinsically just and obligatory? and +whether his conduct, in disregarding or resisting it, were right in +itself? And any law, which does not, in such trial, obtain the +unanimous sanction of twelve men, taken at random from the +people, and judging according to the standard of justice in their +own minds, free from all dictation and authority of the +government, may be transgressed and resisted with impunity, by +whomsoever pleases to transgress or resist it.[3] + +The trial by jury authorizes all this, or it is a sham and a hoax, +utterly worthless for protecting the people against oppression. If it +do not authorize an individual to resist the first and least act of +injustice or tyranny, on the part of the government, it does not +authorize him to resist the last and the greatest. If it do not +authorize individuals to nip tyranny in the bud, it does not +authorize them to cut it down when its branches are filled with the +ripe fruits of plunder and oppression. + +Those who deny the right of a jury to protect an individual in +resisting an unjust law of the government, deny him all defence +whatsoever against oppression. The right of revolution, which +tyrants, in mockery, accord to mankind, is no legal right under a +government; it is only a natural right to overturn a government. +The government itself never acknowledges this right. And the right +is practically established only when and because the government, +no longer exists to call it in question. The right, therefore, can be +exercised with impunity, only when it is exercised victoriously. All +unsuccessful attempts at revolution, however justifiable in +themselves, are punished as treason, if the government be +permitted to judge of the treason. The government itself never +admits the injustice of its laws, as a legal defence for those who +have attempted a revolution, and failed. The right of revolution, +therefore, is right of no practical value, except for those who are +stronger than the government. So long, therefore, as the +oppressions of a government are kept within such limits as simply +not to exasperate against it a power greater than its own, the right +of revolution cannot be appealed to, and is therefore inapplicable +to the case. This affords a wide field for tyranny; and, if a jury +cannot here intervene, the oppressed are utterly defenceless. + +It is manifest that the only security against the tyranny of the +government lies in forcible resistance to the execution of the +injustice; because the injustice will certainly be executed, unless it +be forcibly resisted. And if it be but suffered to be executed, it +must then be borne; for the government never makes +compensation for its own wrongs. + +Since, then, this forcible resistance to the injustice of the +government is the only possible means of preserving liberty, it is +indispensable to all legal liberty that this resistance should be +legalized. It is perfectly self-evident that where there is no legal +right to resist the oppression of the government, there can be no +lgal liberty. And here it is all-important to notice, that, practically +speaking, there can be no legal right to resist the oppressions of the +government, unless there be some legal tribunal, other than the +government, and wholly independent of, and above, the +government, to judge between the government and those who +resist its oppressions; in other words, to judge what laws of the +government are to be obeyed, and what may be resisted and held +for nought. The only tribunal known to our laws, for this purpose, +is a jury. If a jury have not the right to judge between the +government and those who disobey its laws, and resist its +oppressions, the government is absolute, and the people, legally +speaking are slaves. Like many other slaves they may have +sufficient courage and strength to keep their masters somewhat in +check; but they are nevertheless known to the law only as slaves. + +That this right of resistance was recognized as a common law +right, when the ancient and genuine trial by jury was in force, is +not only proved by the nature of the trial itself, but is +acknowledged by history. [4] + +This right of resistance is recognized by the constitution of the +United States, as a strictly legal and constitutional right. It is so +recognized, first by the provision that "the trial of all crimes, +except in cases of impeachment, shall be by jury" that is, by the +country and not by the government; secondly, by the provision +that "the right of the people to keep and bear arms shall not be +infringed." This constitutional security for "the right to keep and +bear arms," implies the right to use them as much as a +constitutional security for the right to buy and keep food would +have implied the right to eat it. The constitution, therefore, takes it +for granted that + +the people will judge of the conduct of the government, and that, +as they have the right, they will also have the sense, to use arms, +whenever the necessity of the case justifies it. And it is a sufficient +and legal defence for a person accused of using arms against the +government, if he can show, to the satisfaction of a jury, or even +any one of a jury, that the law he resisted was an unjust one. + +In the American State constitutions also, this right of resistance to +the oppressions of the government is recognized, in various ways, +as a natural, legal, and constitutional right. In the first place, it is +so recognized by provisions establishing the trial by jury; thus +requiring that accused persons shall be tried by "the country," +instead of the government. In the second place, it is recognized by +many of them, as, for example, those of Massachusetts, Maine, +Vermont, Connecticut, Pennsylvania, Ohio, Indiana, Michigan, +Kentucky, Tennessee, Arkansas, Mississippi, Alabama, and +Florida, by provisions expressly declaring that the people shall +have the right to bear arms. In many of them also, as, for example, +those of Maine, New Hampshire, Vermont, Massachusetts, New +Jersey, Pennsylvania, Delaware, Ohio, Indiana, Illinois, Florida, +Iowa, and Arkansas, by provisions, in their bills of rights, declaring +that men have a natural, inherent, and inalienable right of +"defending their lives and liberties." This, of course, means that +they have a right to defend them against any injustice on the part +of the government, and not merely on the part of private +individuals; because the object of all bills of rights is to assert the +rights of individuals and the people, as against the government, +and not as against private persons. It would be a matter of +ridiculous supererogation to assert, in a constitution of +government, the natural right of men to defend their lives and +liberties against private trespassers. + +Many of these bills of rights also assert the natural right of all men +to protect their property that is, to protect it against the +government. It would be unnecessary and silly indeed to assert, in +a constitution of government, the natural right of individuals to +protect their property against thieves and robbers. + +The constitutions of New Hampshire and Tennessee also declare +that "The doctrine of non-resistance against arbitrary power and +oppression is absurd, slavish, and destructive of the good and +happiness of mankind." + +The legal effect of these constitutional recognitions of the right of +individuals to defend their property, liberties, and lives, ' against +the government, is to legalize resistance to all injustice and +oppression, of every name and nature whatsoever, on the part of +the government. + +But for this right of resistance, on the part of the people, all +governments would become tyrannical to a degree of which few +people are aware. Constitutions are utterly worthless to restrain the +tyranny of governments, unless it be understood that the people +will, by force, compel the government to keep within the +constitutional limits. Practically speaking, no government knows +any limits to its power, except the endurance of the people. But +that the people are stronger than the government, and will resist in +extreme cases, our governments would be little or nothing else +than organized systems of plunder and oppression. All, or nearly +all, the advantage there is in fixing any constitutional limits to the +power of a government, is simply to give notice to the government +of the point at which it will meet with resistance. If the people are +then as good as their word, they may keep the government within +the bounds they have set for it; otherwise it will disregard them as +is proved by the example of all our American governments, in +which the constitutions have all become obsolete, at the moment +of their adoption, for nearly or quite all purposes except the +appointment of officers, who at once become practically absolute, +except so far as they are restrained by the fear of popular +resistance. + +The bounds set to the power of the government, by the trial by +jury, as will hereafter be shown, are these that the government +shall never touch the property, person, or natural or civil rights of +an individual, against his consent, {xcept for the purpose of +bringing them before a jury for trial,) unless in pursuance and +execution of a judgment, or decree, rendered by a jury in each +individual case, upon such evidence, nd such law, as are +satisfactory to their own understandings and consciences, +irrespective of all legislation of the government. + +[1]To show that this supposition is not an extravagant one, it may +be mentioned that courts have repeatedly questioned jurors to +ascertain whether they were prejudiced against the government +that is, whether they were in favor of, or opposed to, such laws of +the government as were to be put in issue in the then pending trial. +This was done (in 1851) in the United States District Court for the +District of Massachusetts, by Peleg Sprague, the United States +district judge, in empanelling three several juries for the trials of +Scott, Hayden, and Morris, charged with having aided in the rescue +of a fugitive slave from the custody of the United States deputy +marshal. This judge caused the following question to be +propounded to all the jurors separately; and those who answered +unfavorably for the purposes of the government, were excluded +from the panel. + +"Do you hold any opinions upon the subject of the Fugitive Slave +Law, so called, which will induce you to refuse to convict a person +indicted under it, if the facts set forth, in the indictment, and +constituting the offence, are proved against him, and the court +direct you that the law is constitutional?" + +The reason of this question was, that "the Fugitive Slave Law, so +called," was so obnoxious to a large portion of the people, as to +render a conviction under it hopeless, if the jurors were taken +indiscriminately from among the people. + +A similar question was soon afterwards propounded to the persons +drawn as jurors in the United States Circuit Court for the District +of Massachusetts, by Benjamin R. Curtis, one of the Justices of the +Supreme Court of the United States, in empanelling a jury for the +trial of the aforesaid Morris on the charge before mentioned; and +those who did not answer the question favorably for the +government were again excluded from the panel. + +It has also been an habitual practice with the Supreme Court of +Massachusetts, in empanelling juries for the trial of capital +offences, to inquire of the persons drawn as jurors whether they +had any conscientious scruples against finding verdicts of guilty in +such eases; that is, whether they had any conscientious scruples +against sustaining the law prescribing death as the punishment of +the crime to be trick; and to exclude from the panel all who +answered in the affirmative. + +The only principle upon which these questions are asked, is this +that no man shall be allowed to serve as juror, unless he be ready +to enforce any enactment of the government, however cruel or +tyrannical it may be. + +What is such a jury good for, as a protection against the tyranny of +the government? A jury like that is palpably nothing but, a mere +tool of oppression in the hands of the government. A trial by such +a jury is really a trial by the government itself and not a trial by +the country because it is a trial only by men specially selected by +the government for their readiness to enforce its own tyrannical +measures. + +If that be the true principle of the trial by jury, the trial is utterly +worthless as a security to liberty. The Czar might, with perfect +safety to his authority, introduce the trial by jury into Russia, if he +could but be permitted to select his jurors from those who were +ready to maintain his laws, without regard to their injustice. + +This example is sufficient to show that the very pith of the trial by +jury, as a safeguard to liberty, consists in the jurors being taken +indiscriminately from the whole people, and in their right to hold +invalid all laws which they think unjust. + +[2] The executive has a qualified veto upon the passage of laws, in +most of our governments, and an absolute veto, in all of them, +upon the execution of any laws which he deems unconstitutional; +because his oath to support the constitution (as he understands it) +forbids him to execute any law that he deems unconstitutional. + +[3] And if there be so much as a reasonable doubt of the justice of +the laws, the benefit of that doubt must be given to the defendant, +and not to the government. So that the government must keep its +laws clearly within the limits of justice, if it would ask a jury to +enforce them. + +[4] Hallam says, "The relation established between a lord and his +vassal by the feudal tenure, far from containing principles of any +servile and implicit obedience, permitted the compact to be +dissolved in case of its violation by either party. This extended as +much to the sovereign as to inferior lords. * * If a, vassal was +aggrieved, and if justice was denied him, he sent a defiance, that +is, a renunciation of fealty to the king, and was entitled to enforce +redress at the point of his sword. It then became a contest of +strength as between two independent potentates, and was +terminated by treaty, advantageous or otherwise, according to the +fortune of war. * * There remained the original principle, that +allegiance depended conditionally upon good treatment, and that +an appeal might be lawfully made to arms against an oppressive +government. Nor was this, we may be sure, left for extreme +necessity, or thought to require a long-enduring forbearance. In +modern times, a king, compelled by his subjects' swords to +abandon any pretension, would be supposed to have ceased to +reign; and the express recognition of such a right as that of +insurrection has been justly deemed inconsistent with the majesty +of law. But ruder ages had ruder sentiments. Force was necessary +to repel force; and men accustomed to see the king's authority +defied by a private riot, were not much shocked when it was +resisted in defence of public freedom." 3 Middle Age, 240-2. + + +CHAPTER II. THE TRIAL BY JURY, AS DEFINED BY +MAGNA CARTA + +THAT the trial by jury is all that has been claimed for it in the +preceding chapter, is proved both by the history and the language +of the Great Charter of English Liberties, to which we are to look +for a true definition of the trial by jury, and of which the guaranty +for that trial is the vital, and most memorable, part. + +SECTION I + +The History of Magna Carta. + +In order to judge of the object and meaning of that chapter of +Magna Carta which secures the trial by jury, it is to be borne in +mind that, at the time of Magna Carta, the king (with exceptions +immaterial to this discussion, but which will appear hereafter) +was, constitutionally, the entire government; the sole legislative, +judicial, and executive power of the nation. The executive and +judicial officers were merely his servants, appointed by him, and +removable at his pleasure. In addition to this, "the king himself +often sat in his court, which always attended his person. He there +heard causes, and pronounced judgment; and though he was +assisted by the advice of other members, it is not to be imagined +that a decision could be obtained contrary to his inclination or +opinion."[1] Judges were in those days, and afterwards, such abject +servants of the king, that "we find that King Edward I. (1272 to +1307) fined and imprisoned his judges, in the same manner as +Alfred the Great, among the Saxons, had done before him, by the +sole exercise of his authority."[2] + +Parliament, so far as there was a parliament, was a mere council of +the king.[3] It assembled only at the pleasure of the king; sat only +during his pleasure; and when sitting had no power, so far as +general legislation was concerned, beyond that of simply advising +the king. The only legislation to which their assent was +constitutionally necessary, was demands for money and military +services for extraordinary occasions. Even Magna Carta itself +makes no provisions whatever for any parliaments, except when +the king should want means to carry on war, or to meet some other +extraordinary necessity.[4] He had no need of parliaments to raise +taxes for the ordinary purposes of government; for his revenues +from the rents of the crown lands and other sources, were ample +for all except extraordinary occasions. Parliaments, too, when +assembled, consisted only of bishops, barons, and other great men +of the kingdom, unless the king chose to invite others.[5] There +was no House of Commons at that time, and the people had no +right to be heard, unless as petitioners.[6] + +Even when laws were made at the time of a parliament, they were +made in the name of the king alone. Sometimes it was inserted in +the laws, that they were made with the consent or advice of the +bishops, barons, and others assembled; but often this was omitted. +Their consent or advice was evidently a matter of no legal +importance to the enactment or validity of the laws, but only +inserted, when inserted at all, with a view of obtaining a more +willing submission to them on the part of the people. The style of +enactment generally was, either "The King wills and commands," +or some other form significant of the sole legislative authority of +the king. The king could pass laws at any time when it pleased +him. The presence of a parliament was wholly unnecessary. Hume +says, "It is asserted by Sir Harry Spelman, as an undoubted fact, +that, during the reigns of the Norman princes, every order of the +king, issued with the consent of his privy council, had the full +force of law."[7] And other authorities abundantly corroborate this +assertion.[8]The king was, therefore, constitutionally the +government; and the only legal limitation upon his power seems to +have been simply the Common Law, usually called "the law of the +land," which he was bound by oath to maintain; (which oath had +about the same practical value as similar oaths have always had.) +This "law of the land" seems not to have been regarded at all by +many of the kings, except so far as they found it convenient to do +so, or were constrained to observe it by the fear of arousing +resistance. But as all people are slow in making resistance, +oppression and usurpation often reached a great height; and, in the +case of John, they had become so intolerable as to enlist the nation +almost universally against him; and he was reduced to the +necessity of complying with any terms the barons saw fit to dictate +to him. + +It was under these circumstances, that the Great Charter of Englsh +Liberties was granted. + +The barons of England, sustained by the common people, having +their king in their power, compelled him, as the price of his throne, +to pledge himself that he would punish no freeman for a violation +of any of his laws, unless with the consent of the peers that is, the +equals of the accused. + +The question here arises, Whether the barons and people intended +that those peers (the jury) should be mere puppets in the hands of +the king, exercising no opinion of their own as to the intrinsic +merits of the accusations they should try, or the justice of the laws +they should be called on to enforce? Whether those haughty and +victorious barons, when they had their tyrant king at their feet, +gave back to him his throne, with full power to enact any +tyrannical laws he might please, reserving only to a jury (" the +country") the contemptible and servile privilege of ascertaining, +(under the dictation of the king, or his judges, as to the laws of +evidence), the simple fact whether those laws had been +transgressed? Was this the only restraint, which, when they had all +power in their hands, they placed upon the tyranny of a king, +whose oppressions they had risen in arms to resist? Was it to +obtain such a charter as that, that the whole nation had united, as it +were, like one man, against their king? Was it on such a charter +that they intended to rely, for all future time, for the security of +their liberties? No. They were engaged in no such senseless work +as that. On the contrary, when they required him to renounce +forever the power to punish any freeman, unless by the consent of +his peers, they intended those powers should judge of, and try, the +whole case on its merits, independently of all arbitrary legislation, +or judicial authority, on the part of the king. In this way they took +the liberties of each individual and thus the liberties of the whole +people entirely out of the hands of the king, and out of the power +of his laws, and placed them in the keeping of the people +themselves. And this itwas that made the trial b jury the palladium +of their liberties. + +The trial by jury, be it observed, was the only real barrier +interposed by them against absolute despotism. Could this trial, +then, have been such an entire farce as it necessarily must have +been, if the jury had had no power to judge of the justice of the +laws the people were required to obey? Did it not rather imply that +the jury were to judge independently and fearlessly as to +everything involved in the charge, and especially as to its intrinsic +justice, and thereon give their decision, (unbiased by any +legislation of the king,) whether the accused might be punished? +The reason of the thing, no less than the historical celebrity of the +events, as securing the liberties of the people, and the veneration +with which the trial by jury has continued to be regarded, +notwithstanding its essence and vitality have been almost entirely +extracted from it in practice, would settle the question, if other +evidences had left the matter in doubt. + +Besides, if his laws were to be authoritative with the jury, why +should John indignantly refuse, as at first he did, to grant the +charter, (and finally grant it only when brought to the last +extremity,) on the ground that it deprived him of all power, and +left him only the name of a king? He evidently understood that the +juries were to veto his laws, and paralyze his power, at discretion, +by forming their own opinions as to the true character of the +offences they were to try, and the laws they were to be called on to +enforce; and that "the king wills and commands" was to have no +weight with them contrary to their own judgments of what was +intrinsically right.[9] + +The barons and people having obtained by the charter all the +liberties they had demanded of the king, it was further provided by +the charter itself that twenty-fie barons should be appointed by the +barons, out of their number, to keep special vigilance in the +kingdom to see that the charter was observed, with authority to +make war upon the king in case of its violation. The king also, by +the charter, so far absolved all the people of the kingdom from +their allegiance to him, as to authorize and require them to swear +to obey the twenty-five barons, in case they should make war upon +the king for infringement of the charter. It was then thought by the +barons and people, that something substantial had been done for +the security of their liberties. + +This charter, in its most essential features, and without any +abatement as to the trial by jury, has since been confirmed more +than thirty times; and the people of England have always had a +traditionary idea that it was of some value as a guaranty against +oppression. Yet that idea has been an entire delusion, unless the +jury have had the right to judge of the justice of the laws they were +called on to enforce. + +SECTION II. + +The Language of Magna Carta + +The language of the Great Charter establishes the same point that +is established by its history, viz., that it is the right and duty of the +jury to judge of the justice of the laws. + +The chapter guaranteeing the trial by jury is in these words: +"Nullus liber homo capiatur, vel imprisonetur, aut disseisetur, aut +utlagetor, aut exuletur, aut aliquo modo destruatur; nec super eum +ibimus, nec super eum mittemus, nisi per legale judicium parium +suorum, vel per legem terrae."[10] + +The corresponding chapter in the Great Charter, granted by Henry +III, (1225) and confirmed by Edward I, (1297,) (which charter is +now considered the basis of the English laws and constitution,) is +in nearly the same words, as follows: + +"Nullus liber homo capiatur, vel imprisonetur, aut disseisetur de +libero tenemento, vel libertatibus, vel liberis consuetudinibus suis, +aut utlagetur, aut exuletur, aut aliquo modo destruatur, nec super +eum ibimus, nec super eum mittemus, nisi per legale judicium +parium suorum, vel per legem terrae." + +The most common translation of these words, at the present day, is +as follows: + +"No freeman shall be arrested, or imprisoned, or deprived of his +freehold, or his liberties, or free customs, or outlawed, or exiled, or +in any manner destroyed, nor will we (the king) pass upon him, nor +condemn him, unless by the judgment of his peers, or the law of +the land." + +"Nec super eum ibimus, nec super eum mittemus." + +There has been much confusion and doubt as to the true meaning +of the words, "nec super eum ibimus, neo super eum mittemus." +The more common rendering has been, "nor wilt we pass upon +him, nor condemn him." But some have translated them to mean, +"nor will we pass upon him, nor commit him to prison." Coke +gives still a different rendering, to the effect that "No man shall be +condemned at the king's suit, either before the king in his bench, +nor before any other commissioner or judge whatsoever." [11] + +But all these translations are clearly erroneous. In the first place, +"nor will we pass upon him," meaning thereby to decide upon his +guilt or innocence judicially is not a correct rendering of the +words, "nec super eum ibimus." There is nothing whatever, in +these latter words, that indicates judicial action or opinion at all. +The words, in their common signification, describe physical action +alone. And the true translation of them, as will hereafter be seen, +is, "nor will we proceed against him," executively. + +In the second place, the rendering, "nor will we condemn him," +bears little or no analogy to any common, or even uncommon, +signification of the words "nec super eum mittemus." There is +nothing in these latter words that indicates judicial action or +decision. Their common signification, like that of the words nec +super eum ibimus, describes physical action alone. "Nor will we +send upon (or against) him," would be the most obvious +translation, and, as we shall hereafter see, such is the true +translation. + +But although these words describe physical action, on the part of +the king, as distinguished from judicial, they nevertheless do not +mean, as one of the translations has it, "nor will we commit him to +prison;" for that would be a mere repetition of what had been +already declared by the words "nec imprisonetur." Besides, there is +nothing about prisons in the words "nec super eum mittemus;" +nothing about sending him anywhere; but only about sending +(something or somebody) upon him, or against him that is, +executively. + +Coke's rendering is, if possible, the most absurd and gratuitous of +all. What is there in the words, "nec super eum mittemus," that can +be made to mean "nor shall he be condemned before any other +commissioner or judge whatsoever."? Clearly there is nothing. The +whole rendering is a sheer fabricatin. And the whole object of it is +to give color for the exercise of a judicial power, by the king, or +his judges, which is nowhere given them. + +Neither the words, "Nec super eum ibimus, nec super eum +mittemus," nor any other words in the whole chapter, authorize, +provide for, describe, or suggest, any judicial action whatever, on +the part either of the king, or of his judges, or of anybody, except +the peers, or jury. There is nothing about the king's judges at all. +And, there is nothing whatever, in the whole chapter, so far as +relates to the action of the king, that describes or suggests anything +but executive action.[12] + +But that all these translations are certainly erroneous, is proved by +a temporary charter, granted by John a short time previous to the +Great Charter, for the purpose of giving an opportunity for +conference, arbitration, and reconciliation. between him and his +barons. It was to have force until the matters in controversy +between them could be submitted to the Pope, and to other persons +to be chosen, some by the king, and some by the barons. The +words of the charter are as follows: + +"Sciatis nos concessisse baronibus nostris qui contra nos sunt quod +nec eos nec homines suos capiemus, nec disseisiemus nec super +eos per vim vel per arma ibimus nisi per legem regni nostri vel per +judicium parium suorum in curia nostra donec consideratio facta +fuerit," &c;., &c;. + +That is, "Know that we have granted to our barons who are +opposed to us, that we will neither arrest them nor their men, nor +disseize them, nor will we proceed against them by force or by +arms, unless by the law of our kingdom, or by the judgment of +their peers in our court, until consideration, shall be had," &c;., +&c;. + +A copy of this charter is given in a note in Blackstone's +Introduction to the Charter.[13] + +Mr. Christian speaks of this charter as settling the true meaning of +the corresponding clause of Magna Carta, on the principle tat laws +and charters on the same subject are to be construed with reference +to each other. See 3 Christin's Blackstone, 41, note. + +The true meaning of the words, nec super eum ibimus, nec super +eum mittemus, is also proved by the "Articles of the Great Charter +of Liberties," demanded of the king by the barons, and agreed to by +the king, under seal, a few days before the date of the Charter, and +from which the Charter was framed. [14] +Here the words used are these: + +"Ne corpus liberi hominis capiatur nec imprisonetur nec +disseisetur nec ut1agetur nec exuletur nec aliquo modo destruatur +nec rex eat vel mittat super eun vi nisi per judicium pariurn +suorum vel per legem terrae." + +That is, "The body of a freeman shall not be arrested, nor +imprisoned, nor disseized, nor outlawed, nor exiled, nor in any +manner destroyed, nor shall the king proceed or send (any one) +against him, WITH FORCE, unless by the judgment of his peers, +or the law of the land." + +The true translation of the words nec super eum ibimus, nec super +eum mittemus, in Magna Carta, is thus made certain, as follows, +"nor will we (the king) proceed against him, nor send (any one) +against him, WITH FORCE OR ARMS. [15] + +It is evident that the difference between the true and false +translations of the words, nec super eum ibius, nec super eum +mittemus, is of the highest legal importance, inasmuch as the true +translation, nor will we (the king) proceed against him, nor send +(any one) against him by force of arms, represents the king only in +an executive character, carrying the judgment of the peers and "the +law of the land" into execution; where as the false translation, nor +will we pass upon him, nor condemn him, gives color for the +exercise of a judicial power, on the part of the king, to which the +king had no right, but which, according to the true translation, +belongs wholly to th jury. + +"Per legale judicium parium suorum." + +The foregoing interpretation is corroborated, (if it were not already +too plain to be susceptible of corroboration,) by the true +interpretation of the phrase "per legale judicium parium suorum." + +In giving this interpretation, I leave out, for the present, the word +legale, which will be defined afterwards. + +The true meaning of the phrase, per judicium parium suorum, is, +according to the sentence of his eers. The word judicium, +judgment, has a technical meaning in the law, signifying the +decree rendered in the decision of a cause. In civil suits this +decision is called a judgment; in chancery proceedngs it is called a +decree; in criminal actions it is called a sentence, or judgment, +indifferently. Thus, in a criminal suit, "a motion in arrest of +judgment," means a motion in arrest of sentence. [16] +In cases of sentence, therefore, in criminal suits, the words +sentence and judgment are synonymous terms. They are, to this +day, commonly used in law books as synonymous terms. And the +phrase per jndicium parium suorum, therefore, implies that the +jury are to fix the sentence. + +The word per means according to. Otherwise there is no sense in +the phrase per judicium paruim suorum. There would be no sense +in saying that a king might imprison, disseize, outlaw, exile, or +otherwise punish a man, or proceed against him, or send any one +against him, by force or arms, by a judgment of his peers; but there +is sense in saying that the king may imprison, disseize, and punish +a man, or proceed against him, or send any one against him, by +force or arms, according to a judgment, or sentence, of his peers; +because in that case the king would be merely carrying the +sentence or judgment of the peers into execution. + +The word per, in the phrase "per judicium parium suorum," of +course means precisely what it does in the next phrase, "per legem +terrae;" where it obviously means according to, and not by, as it is +usually translated. There would be no sense in saying that the king +might proceed against a man by force or arms, by the law of the +land; but there is sense in saying that he may proceed against him, +by force or arms, according to the law of the land; because the +king would then be acting only as an executive officer, carrying +the law of the land into execution. Indeed, the true meaning of the +word by, as used in similar cases now, always is according to; as, +for example, when we say a thing was done by the government, or +by the executive, by law, we mean only that it was done by them +according to law; that is, that they merely executed the law. + +Or, if we say that the word by signifies by authority of, the result +will still be the same; for nothing can be done by authority of law, +except what the law itself authorizes or directs to be done; that is, +nothing can be done by authority of law, except simply to carry the +law itself into execution. So nothing could be done by authority of +the sentence of the peers, or by authority of "the law of the land," +except what the sentence of the peers, or the law of the land, +themselves authorized or directed to be done; nothing, in short, but +to carry the setence of the peers, or the law of the land, themselves +into execution. + +Doing a thing by law, or according to law, is only carrying the law +into execution. And punishing a man by, or according to, the +sentence or judgment of his peers, is only carrying that sentence or +judgment into execution. + +If these reasons could leave any doubt that the word per is to be +translated according to, that doubt would be removed by the terms +of an antecedent guaranty for the trial by jury, granted by the +Emperor Conrad, of Germany, [17] two hundred years before +Magna Carta. Blackstone cites it as follows: (3 Blackstone, 350.) +"Nemo beneficium suum perdat, nisi secundum consuetu-dinem +antecessorum nostrorum, et judicium parium suorum." That is, No +one shall lose his estate, [18] unless according to ("secundum") +the custom (or law) of our ancestors, and (according to) the +sentence (or judgment) of his peers. + +The evidence is therefore conclusive that the phrase per judicium +parian suorum means according to the sentence of his peers; thus +implying hat the jury, and not the government, are to fix the +sentence. + +If any additional proof were wanted that juries were to fix the +sentence, it would be found in the following provisions of Magna +Carta, viz.: + +"A freeman shall not be amerced for a small crime, (delicto,) but +according to the degree of the crime; and for a great crime in +proportion to the magnitude of it, saving to him his contenement; +[19] and after the same manner a merchant, saving to him his +merchandise. And a villein shall be amerced after the same +manner, aving to him his waynage, [20] if he fall under our mercy; +and none of the aforesaid amercements shall be imposed, (or +assessed, ponatur,) but by the oath of honest men of the +neighborhood. Earls and Barons shall not be amerced but by their +peers, and according to the degree of their crime." [21] + +Pecuniary punishments were the most common punishments at +that day, and the foregoing provisions of Magna Carta show that +the amount of those punishments was to be fixed by the jury. +Fines went to the king, and were a source of revenue; and if the +amounts of the fines had been left to be fixed by the king, he +would have had a pecuniary temptation to impose unreasonable +and oppressive ones. So, also, in regard to other punishments than +fines. If it were left to the king to fix the punishment, he might +often have motives to inflict cruel and oppressive ones. As it was +the object of the trial by jury to protect the people against all +possible oppression from the king, it was necessary that the jury, +and not the king, should fix the punishments. [22] + +"Legale." + +The word "legale," in the phrase "per legale judicium parium +suorum,"doubtless means two things.1. That the sentence must be +given in a legal manner; that is, by the legal number of jurors, +legally empanelled and sworn to try the cause; and that they give +their judgment or sentence after a legal trial, both in form and +substance, has been had. 2. That the sentence shall be for a legal +cause or offence. If, therefore, a jury should convict and sentence a +man, either without giving him a legal trial, or for an act that was +not really and legally criminal, the sentence itself would not be +legal; and consequently this clause forbids the king to carry such a +sentence into execution; for the clause guarantees that he will +execute no judgment or sentence, except it be legale judicium,a +legal sentence. Whether a sentence be a legal one, would have to +be ascertained by the king or his judges, on appeal, or might be +judged of informally by the king himself. + +The word "legale"clearly did not mean that the judicium parium +suorum (judgment of his peers) should be a sentence which any +law (of the king) should require the peers to pronounce; for in that +case the sentence would not be the sentence of the peers, but only +the sentence of the law, (that is, of the king); and the peers would +be only a mouthpiece of the law, (that is, of the king,) in uttering +it. + +"Per legem terrae." + +One other phrase remains to be explained, viz., "per legem terrae," +"by the law of the land." + +All writers agree that this means the common law.Thus, Sir +Matthew Hale says: + +"The common law is sometimes called, by way of eminence, lex +terrae,as in the statute of Magna Carta,chap. 29, where certainly +the common law is principally intended by those words, aut per +legem terrae;as appears by the exposition thereof in several +subsequent statutes; and particularly in the statute of 28 Edward +III., chap. 3, which is but an exposition and explanation of that +statute. Sometimes it is called lex Angliae,as in the statute of +Merton, cap. 9, "olurnus leqes Angliae mutari,"&c;., (We will that +the laws of England be not changed). Sometimes it is called lex et +consuetudo regni(the law and custom of the kingdom); as in all +commissions of oyer and terminer; and in the statutes of 18 +Edward I., cap. , and de quo warranto,and divers others. But most +commonly it is called the Common Law, or the Common Law of +England; as in the statute Articuli super Chartas,cap. 15, in the +statute 25 Edward III., cap. 5, (4,) and infinite more records and +statutes." 1 Hale's History of the Common Law, 128. + +This common law, or "law of the land," the king was sworn to +maintain.This fact is recognized by a statute made at Westminster, +in 1346, by Edward III., which commences in this manner: + +"Edward, by the Grace of God, &c;., &c;., to the Sheriff of +Stafford, Greeting: Because that by divers complaints made to us, +we have perceived that the law of the land, which we by oath are +bound fo maintain,"&c;. St. 20 Edward III + +The foregoing authorities are cited to show to the unprofessional +reader, what is well known to the profession, that legem terrae, the +law of the land,mentioned in Magna Carta, was the common, +ancient, fundamental law of the land, which the kings were bound +by oath to observe; and that it did not include any statutes or laws +enacted by the king himself, the legislative power of the nation. + +If the term legem terraehad included laws enacted by the king +himself, the whole chapter of Magna Carta, now under discussion, +would have amounted to nothing as a protection to liberty; because +it would have imposed no restraint whatever upon the power of the +king. The king could make laws at any time, and such ones as he +pleased. He could, therefore, have done anything he pleased, by +the law of the land,as well as in any other way, if his own laws had +been "the law of the land."If his own laws had been "the law of the +land," within the meaning of that term as used in Magna Carta, this +chapter of Magna Carta woold have been sheer nonsense, +inasmuch as the whole purpot of it would have been simply that +"no man shall be arrested, imprisoned, or deprived of his freehold, +or his liberties, or free customs, or outlawed, or exiled, or in any +manner destroyed (by the king); nor shall the king proceed against +him, nor send any one againist him with force and arms, unless by +the judgment of his peers, or uness the king shall please to do so." + +This chapter of Magna Carta would, therefore, have imposed not +the slightest restraint upon the power of the king, or afforded the +slightest protection to the liberties of the people, if the laws of the +king had been embraced in theterm legem terrae. But if legem +terrae was the common law, which the king was sworn to +maintain, then a real restriction was laid upon his power, and a real +guaranty given to the people for their liberties. + +Such, then, being the meaning of legem terrae, the fact is +established that Magna Carta took an accused person entirely out +of the hands of the legislative power, that is, of the king; and +placed him in the power and under the protection of his peers, and +the common law alone; that, in short, Magna Carta suffered no +man to be punished for violating any enactment of the legislative +power, unless the peers or equals of the accused. freely consented +to it, or the common law authorized it; that the legislative power, +of itself, was wholly incompetent to require the conviction or +punishment of a man for any offence whatever. + +Whether Magna Carta allowed of any other trial than by jury. + +The question here arises, whether "legem terrae did not allow of +some other mode of trial than that by jury. + +The answer is, that, at the time of Magna Carta, it is not probable, +(for the reasons given in the note,) that legem terrae authorized, in +criminal cases, any other trial than the trial by jury; but, if it did, it +certainly authorized none but the trial by battle, the trial by ordeal, +and the trial by compurgators. These were the only modes of trial, +except by jury, that had been knownin England, in criminal cases, +for some centuries previous to Magna Carta. All of them had +become nearly extinct at the time of Magna Carta, and it is not +probable that they were included in "legem terrae," as that term is +used in that instrument. But if they were included in it, they have +now been long obsolete, and were such as neither this nor any +future age will ever return to. [23] + +For all practical puposes of the present day, therefore, it may be +asserted that Magna Carta allows no trial whatever but trial by +jury. + +Whether Magna Carta allowed sentence to be fixed otherwise than +by the jury. + +Still another question arises on the words legem terrae, viz., +whether, in cases where the question of guilt was determined by +the jury, the amount of punishment may not have been fixed by +legem terrae, the Common Law, instead of its being fixed by the +jury. + +I think we have no evidence whatever that, at the time of Magna +Carta, or indeed at any other time, lex terrae, the common law, +fixed the punishment in cases where the question of guilt was tried +by a jury; or, indeed, that it did in any other case. Doubtless certain +punishments were common and usual for certain offences; but I do +not think it can be shown that the common law, the lex terrae, +which the king was sworn to maintain, required any one specific +punishment, or any precise amount of punishment, for any one +specific offence. If such a thing be claimed, it must be shown, for +it cannot be presumed. In fact, the contrary must be presumed, +because, in the nature of things, the amount of punishment proper +to be inflicted on any particular case, is a matter requiring the +exercise of discretion at the time, in order to adapt it to the moral +quality of the offence, which is different in each case, varying with +the mental and moral constitutions of the offenders, and the +circumstances of temptation or provocation. And Magna Carta +recognizes this principle distinctly, as has before been shown, in +providing that freemen, merchants, and villeins, "shall not be +amerced for a small crime, but according to the degree of the +crime; and for a great crime in proportion to the magnitude of it," +and that "none of the aforesaid amercements shall be imposed (or +assessed) but by the oaths of honest men of the neighborhood;" +and that "earl and barons shall not be amerced but by their peers, +and according to the quality of the offence." + +All this implies that the moral quality of the offence was to be +judged of at the rial, and that the punishment was to be fixed by +the discretion of the peers, or jury, and not by any such unvarying +rule as a common law rule would be. + +I think, therefore, it must be conceded that, in all cases, tried by a +jury, Magna Carta intended that the punishment should be fixed by +the jury, and not by the common law, for these several reasons. + +1. It is uncertain whether the common law fixed the punishment of +any offence whatever. + +2. The words "per judicium parium suorum," according to the +sentence of his peers, imply that the jury fixed the sentence in +some cases tried by them; and if they fixed the sentence in some +cases, it must be presumed they did in all, unless the contrary be +clearly shown. + +3. The express provisions of Magna Carta, before adverted to, that +no amercements, or fines, should be imposed upon. freemen, +merchants, or villeins, "but by the oath of honest men of the +neighborhood," and "according to the degree of the crime," and +that "earls and barons shout not be amerced but by their peers, and +according to the quality of the offence," proves that, at least, there +was no common law fixing the amount of fines, or, if there were, +that it was to be no longer in force. And if there was no common +law fixing the amount of fines, or if it was to be no longer in force, +it is reasonable to infer, (in the absence of all evidence to the +contrary,) either that the common law did not fix the amount of +any other punishment, or that it was to be no longer in force for +that purpose. [25] + +Under the Saxon laws, fines, payable to the injured party, seem to +have been the common punishments for all offences. Even murder +was punishable by a fine payable to the relatives of the deceased. +The murder of the king even was punishable by fine. When a +criminal was unable to pay his One, his relatives often paid it for +him. But if it were not paid, he was put out of the protection of the +law, and the injured parties, (or,in the case of murder, the kindred +of the deceased,)were allowed to inflict such punishment as they +pleased. And if the relatives of the criminal protected him, it was +lawful to take vengeance on them also. Afterwards the custom +grew up of exacting fines also to the king as a punishment for +offences. [26] + +And this latter was, doubtless, the usual punishment at the time of +Magna Carta, as is evidenced by the fact that for many years +immediately following Magna Carta, nearly or quite all statutes +that prescribed any punishment at all, prescribed that the offender +should "be grievously amerced," or "pay a great fine to the king," +or a "grievous ransom," with the alternative in some cases +(perhaps understood in all) of imprisonment, banishment, or +outlawry, in case of non-payment. [27] + +Judging, therefore, from the special provisions in Magna Carta, +requiring fines, or amercements, to be imposed only by juries, +(without mentioning any other punishments;) judging, also, from +the statutes which immediately followed Magna Carta, it is +probable that, the Saxon custom of punishing all, or nearly all, +offences by fines, (with the alternative to the criminal of being +imprisoned, banished, or outlawed, and exposed to private +vengeance, in case of non-payment,) continued until the time of +Magna Carta; and that in providing expressly that fines should be +fixed by the juries, Magna Carta provided for nearly or quite all +the punishments that were expected to be inflicted; that if there +were to be any others, they were to be fixed by the juries; and +consequently that nothing was left to be fixed by "legem terrae." +But whether the common law fixed the punishment of any +offences, or not, is a matter of little or no practical importance at +this day; because we have no idea of going back to any common +law punishments of six hundred years ago, if, indeed, there were +any such at that time. It is enough for us to know and this is what +is material for us know that the jury fixed the punishments, in all +cases, unless they were fixed by the common law; that Magna +Carta allowed no punishments to be prescribed by statute that is, +by the legislative power nor in any other manner by the king, or +his judges, in any case whatever; and, consequently, that all +statutes prescribing particular punishmnts for particular offences, +or giving the king's judges any authority to fix punishments, were +void. + +If the power to fix punishments had been left in the hands of the +king, it would have given him a power of oppression, which was +liable to be greatly abused; which there was no occasion to leave +with him; and which would have been incongruous with the whole +object of this chapter of Magna Carta; which object was to take all +discretionary or arbitrary power over individuals entirely out of the +hands of the king, and his laws, and entrust it only to the common +law, and the peers, or jury that is, the people. What lex terrae +did authorize. + +But here the question arises, What then did legem terrae" authorize +the king, (that is, the government,) to do in the case of an accused +person, if it neither authorized any other trial than that by jury, nor +any other punishments than those fixed by juries? + +The answer is, that, owing to the darkness of history on the point, +it is probably wholly impossible, at this day, to state, with any +certainty or precision, anything whatever that the legem terrae of +Magna Carta did authorize the king, (that is, the government,) to +do, (if, indeed, it authorized him to do anything,) in the case of +criminals, other than to have them, tried and sentenced by their +peers, for common law crimes; and to carry that sentence into +execution. + +The trial by jury was a part of legem terrae, and we have the means +of knowing what the trial by jury was. The fact that the jury were +to fix the sentence, implies that they were to try the accused; +otherwise they could not know what sentence, or whether any +sentence, ought to be inflicted upon him. Hence it follows that the +jury were to judge of everything involved in the trial; that is, they +were to judge of the nature of the offence, of the admissibility and +weight of testimony, and of everything else whatsoever that was of +the essence of the trial. If anything whatever could be dictated to +them, either of law or evidence, the sentence would not be theirs, +but would be dictated to them by the power that dictated to them +the law or evidence. The trial nd sentence, then, were wholly in the +hands of the jury. + +We also have sufficient evidence of the nature of the oath +administered to jurors in criminal cases. It was simply, that they +would neither convict the innocent, nor acquit the guilty. This was +the oath in the Saxon times, and probably continued to be until +Magna Carta. + +We also know that, in case of conviction, the sentence of the jury +was not necessarily final; that the accused had the right of appeal +to the king and his judges, and to demand either a new trial, or an +acquittal, if the trial or conviction had been against law. So much, +therefore, of the legem terrae of Magna Carta, we know with +reasonable certainty. + +We also know that Magna Carta provides that "No bailiff (balivus) +shall hereafter put any man to his law, (put him on trial,) on his +single testimony, without credible witnesses brought to support it." +Coke thinks "that under this word balivus, in this act, is +comprehended every justice, minister of the king, steward of the +king, steward and bailiff." (2 Inst. 44.) And in support of this idea +he quotes from a very ancient law book, called the Mirror of +Justices, written in the time of Edward I., within a century after +Magna Carta. But whether this were really a common law +principle, or whether the provision grew out of that jealousy of the +government which, at the time of Magna Carta, had reached its +height, cannot perhaps now be determined. + +We also know that, by Magna Carta, amercements, or fines, could +not be imposed to the ruin of the criminal; that, in the case of a +freeman, his contenement, or means of subsisting in the condition +of a freeman, must be saved to him; that, in the case of a merchant, +his merchandise must be spared; and in the case of a villein, his +waynage, or plough-tackle and carts. This also is likely to have +been a principle of the common law, inasmuch as, in that rude age, +when the means of gettin employment as laborers were not what +they are now, the man and his family would probably have been +liable to starvation, if these means of subsistence had been taken +from him. + +We also know, generally, that, at the time of Magna Carta, all acts +intrinsically criminal, all trespasses against persons and property, +were crimes, according to lex terra, or the common law. +Beyond the points now given, we hardly know anything, probably +nothing with certainty, as to what the "legem terran" of Magna +Carta did authorize, in regard to crimes. There is hardly anything +extant that can give us any real light on the subject. +It would seem, however, that there were, even at that day, some +common law principles governing arrests; and some common law +forms and rules as to holding a man for trial, (by bail or +imprisonment;) putting him on trial, such as by indictment or +complaint; summoning and empanelling jurors, &c;., &c;. +Whatever these common law principles were, Magna Carta +requires them to be observed; for Magna Carta provides for the +whole proceedings, commencing with the arrest, ("no freeman +shall be arrested," &c;.,) and ending with the execution of the +sentence. And it provides that nothing shall be done, by the +government, from beginning to end, unless according to the +sentence of the peers, or "legem terrae," the common law. The trial +by peers was a part of legem terrae, and we have seen that the +peers must necessarily have governed the whole proceedings at the +tria1. But all the proceedings for arresting the man, and bringing +him to trial, must have been had before the case could come under +the cognizance of the peers, and they must, therefore, have been +governed by other rules than the discretion of the peers. We may +conjecture, although we cannot perhaps know with much certainty, +that the lex terrae, or common law, governing these other +proceedings, was somewhat similar to the common law principle, +on the same points, at the present day. Such seem to be the +opinions of Coke, who says that the phrase nisi per legem terrae +means unless by due process of law. Thus, he says: "Nisi per legem +terrae. But by the law of the land. + +For the true sense and exposition of these words, see the statute f +37 Edw. III., cap. 8, where the words, by the law of the land, are +rendered without due process of law; for there it is said, though it +be contained in the Great Charter, that no man be taken, +imprisoned, or put out of his freehold, without process of the law; +that is, by indictment or presentment of good and lawful men, +where such deeds be done in due manner, or by writ original of the +common law. + +"Without being brought in to answer but by due process of the +common law." + +"No man be put to answer without presentment before justices, or +thing of record, or by due process, or by writ original, according to +the old law of the land." 2 Inst. 50. + +The foregoing interpretations of the words nisi per legem terrae +are corroborated by the following statutes, enacted in the next +century after Magna Carta. + +"That no man, from henceforth; shall be attached by any +accusation, nor forejudged of life or limb, nor his land, tenements, +goods, nor chattels, seized into the king's hands, against the form +of the Great Charter, and the law of the land." St, 5 Edward III., +Ch. 9. (1331.) + +"Whereas it is contained in the Great Charter of the franchises of +England, that none shall be imprisoned, nor put out of his freehold, +nor of his franchises, nor free customs, unless it be by the law of +the land; it is accorded, assented, and established, that from +henceforth none shall be taken by petition, or suggestion made to +our lord the king, or to his council, unless it be by indictment or +presentment of good and lawful people of the same neighborhood +where such deeds be done in due manner, or by process made by +writ original at the common law; nor that none be put out of his +franchises, nor of his freehold, unless he be duly brought into +answer, and forejudged of the same by the course of the Law; and +if anything be done against the same, it shall be redressed, and +holden for none." 8t. 95 Edward III., Ch. 4. (1350.) + +"That no man, of what estate or condition that he be, shall be put +out of land or tenement, nor taken, nor imprisond, nor disinherited, +nor put to death, without being brought in answer by due process +of law." 8t. 28 Aboard III., Ch. 3. (1354.) + +"That no man be put to answer without presentment before +justices, or matter of record, or by due process and writ original, +according to the old law of the land. And if anything from +henceforth be done to the contrary, it shall be void in law, and +holden for error." 8t. 42 Edward IIL, Ch. 3. (1368.) + +The foregoing interpretation of the words nisi per legem terrae +that is, by due process of law including indictment, &c;., has +been adopted. as the true one by modern writers and courts; as, for +example, by Kent, (2 Comm. 13,) Story, (3 Comm. 661,) and the +Supreme Court of New York, (19 Wendell, 6T6; 4 Hill, 146.) +The fifth amendment to the constitution of the United States seems +to have been framed on the same idea, inasmuch as it provides that +"no person shall be deprived of life, liberty, or property, without +due process of law." [28] + +Whether the word VEL should be rendered by OR, or by AND. + +Having thus given the meanings, or rather the applications, which +the words vel per legem terrae will reasonably, and perhaps must +necessarily, bear, it is proper to suggest, that it has been supposed +by some that the word vel, instead of being rendered by or, as it +usually is, ought to be rendered by and, inasmuch as the word vel +is often used for et, and the whole phrase nisi per judicium parian +suorun, vel per legem terrae, (which would then read, unless by the +sentence of his peers, and the law of the land,) would convey a +more intelligible and harmonious meaning than it otherwise does. + +Blackstone suggests that this may be the true reading. (Charters, p. +41.) Also Mr. Hallam, who says:"Nisi per legale judicium parium +suorum, vel per legem terra;. Several explanations have been +offered of the alternative clause; which some have referred to +judgment by default, or demurrer; others to the process of +attachment for contempt. Certainly there are many legal +procedures besides trial by jury, through which a party's goods or +person may be taken. But one may doubt whether these were in +contemplation of the framers of Magna Carta. In an entry of the +Charter of 1217 by a contemporary hand, preserved in the +Town-clerk's office in London, called Liber Custumarum et +Regum antiquarum, a various reading, et per legem terrae, occurs. +Blackstone's Charters, p. 42 (41.) And the word vel is so frequently +used for et, that I amnot wholly free from a suspicion that it was +so intended in this place. The meaning will be, that no person shall +be disseized, &c;., except upon a lawful cause of action, found by +the verdict of a jury. This really seems as good as any of the +disjunctive interpretatios; but I do not offer it with much +confidence." 2 Hallam's Middle Ages, Ch. 8, Part 2, p. 449, +note." [29] + +The idea that the word vel, should be rendered by and, is +corroborated, if not absolutely confirmed, by the following passage +in Blackstone, which has before been cited. Speaking of the trial +by jury, as established by Magna Carta, he calls it, "A privilege +which is couched in almost the same words with that of the +Emperor Conrad two hundred years before: 'nemo beneficium +suum perdat, nisi secundum consuetudinem antecessorum +nostrorum, et, judicium parium suorum. ' (No one shall lose his +estate unless according to the custom of our ancestors, and, the +judgment of his peers.) 3 Blackstone, 350., + +If the word vel, be rendered by and,, (as I think it must be, at least +in some cases,) this chapter of Magna Carta will then read that no +freeman shall be arrested or punished, "unless according to the +sentence of his peers, and, the law of the land." + +The difference between this reading and the other is important. In +the one case, there would be, at first view, some color of ground +for saying that a man might be punished in either of two ways, viz., +according to the sentence of his peers, or according to the law of +the land. In the other case, it requires both the sentence of his peers +and, the law of the laud (common law) to authorize his +punishment. + +If this latter reading be adopted, the provision would seem to +exclude all trials except trial by jury, and all causes of action +except those of the common law., + +But I apprehend the word vel, must be rendered both by and,, and +by or;, that in cases of a judgment,, it should be rendered by and,, +so as to require the concurrence both of "the judgment of the peers +and, the law of the land," to authorize the king to make execution +upon a party's goods or person; but that in cases of arrest and +imprisonment, simply for the purpose of bringing a man to trial, +vel, should be rendered by or, , because there can have been no +judgment of a jury in such a case, and "the law of the land" must +therefore necessarily be the only guide to, and restraint upn, the +king. If this guide and restraint were taken away, the king would +be invested with an arbitrary and most dangerous power in. +making arrests, and confining in prison, under pretence of an +intention to bring to trial. + +Having thus examined the language of this chapter of Magna Cart, +so far as it relates to criminal cases, its legal import may be stated +as follows, viz.: + +No freeman shall be arrested, or imprisoned, or deprived of his +freehold, or his liberties, or free customs, or be outlawed, or +exiled, or in any manner destroyed, (harmed,) nor will we (the +king) proceed. against him, nor send any one against him, by force +or arms, unless according to (that is, in execution. of) the sentence +of his peers, and (or or, as the case may require) the Common Law +of England, (as it was at the time of Magna Carta, in 1215.) + +[1] Hume, Appendix 2, + +[2] Crabbe's History of the English Law, 236. + +[3] Coke says, "The king of England is armed with divers councils, +one whereof is called commune concilium, (the common council,) +and that is the court of parliament and so it is legally called in +writs and judicial proceedings comanche concilium regni +Anglicae, (the common council of the kingdom of England.) And +another is called magnum concilium, (great council;) this is +sometimes applied to the upper house of parliament, and +sometimes, out of parliament time, to the peers of the realm, lords +of parliament, who are called magnum concilium regis, (the great +council of the king;) [4] Thirdly, (as every man knoweth,) the king +hath a privy council for matters of state. * * The fourth council of +the king are his judges for law matters." 1 Coke's Institutes, 110 a. + +[4] The Great Charter of Henry III., (1216 and 1225,) confirmed by +Edward I., (1297,) makes no provision whatever for, or mention +of, a parliament, unless the provision, (Ch. 37,) that "Escuage, (a +military contribution,) from henceforth shall be taken like as it was +wont to be in the time of King Henry our grandfather," mean that a +parliament shall be summoned for that purpose. + +[5]The Magna Carta of John, (Ch. 17 and 18,) defines those who +were entitled to be summoned to parliament, to wit, "The +Archbishops, Bishops, Abbots, Earls, and Great Barons of the +Realm, * * and all others who hold of us in chief." Those who held +land of the king in chief included none below the rank of knights. + +[6] The parliaments of that time were, doubtless, such as Carlyle +describes them, when he says, "The parliament was at first a most +simple assemblage, quite cognate to the situation; that Red +William, or whoever had taken on him the terrible task of being +King of England, was wont to invite, oftenest about Christmas +time, his subordinate Kinglets, Barons as he called them, to give +him the pleasure of their company for a week or two; there, in +earnest conference all morning, in freer talk over Christmas cheer +all evening, in some big royal hall of Westminster, Winchester, or +wherever it might be, with log fires, huge rounds of roast and +boiled, not lacking malmsey and other generous liquor, they took +counsel concerning the arduous matters of the kingdom." + +[7] Hume, Appendix 2. + +[8] This point will be more fully established hereafter. + +[9] It is plain that the king and all his partisans looked upon the +charter as utterly prostrating the king's legislative supremacy +before the discretion of juries. When the schedule of liberties +demanded by the barons was shown to him, (of which the trial by +jury was the most important, because it was the only one that +protected all the rest,) "the king, falling into a violent passion, +asked, Why the barons did not with these exactions demand his +kingdom? * * and with a solemn oath protested, that he would +never grant such liberties as would make himself a slave." * * But +afterwards, "seeing himself deserted, and fearing they would seize +his castles, he sent the Earl of Pembroke and other faithful +messengers to them, to let them know he would grant them the +laws and liberties they desired." * * But after the charter had been +granted, "the king's mercenary soldiers, desiring war more than +peace, were by their leaders continually whispering in his ears, that +he was now no longer king, but the scorn of other princes; and that +it was more eligible to be no king, than such a one as he." * * He +applied to the Pope, that he might by his apostolic authority make +void what the barons had done.* * At Rome he met with what +success he could desire, where all the transactions with the barons +were fully represented to the Pope, and the Charter of Liberties +shown to him, in writing; which, when he had carefully perused, +he, with a furious look, cried out, What! Do the barons of England +endeavor to dethrone a king, who has taken upon him the Holy +Cross, and is under the protection of the Apostolic See, and would +they force him to transfer the dominions of the Roman Church to +others? By St. Peter, this injury must not pass unpunished. Then +debating the matter with the cardinals, he, by a definitive sentence, +damned and cassated forever the Charter of Liberties, and sent the +king a bull containing that sentence at large." Echard's History of +England, p. 106-7 + +These things show that the nature and effect of the charter were +well understood by the king and his friends; that they all agreed +that he was effectually stripped of power. Yet the legislative power +had not been taken from him; but only the power to enforce his +laws, unless juries should freely consent to their enforcement. + +[10] The laws were, at that time, all written in Latin. + +[11]"No man shall be condemned at the king"s suit, either before +the king in his bench, where pleas are coram rege, (before the +king,) (and so are the words nec super eum ibimus, to be +understood,) nor before any other commissioner or judge +whatsoever, and so are the words nec super eum mittemus, to be +understood, but by the judgment of his peers, that is, equals, or +according to the law of the land." 2 Coke's Inst., 46. + +[12] Perhaps the assertion in the text should be made with this +qualification that the words "per legem terrae," (according to the +law of the land,) and the words "per legale judiciun parium +suorum," (according to the legal judgment of his peers,) imply that +the king, before proceeding to any executive action, will take +notice of "the law of the land," and of the legality of the judgment +of the peers, and will execute upon the prisoner nothing except +what the law of the land authorizes, and no judgments of the peers, +except legal ones. With this qualification, the assertion in the text +is strictly correct that there is nothing in the whole chapter that +grants to the king, or his judges, any judicial power at all. The +chapter only describes and limits his executive power. + +[13] See Blackstone'a Law Tracts, page 294, Oxford Edition + +[14] These Articles of the Charter are given in Blackstone's +collection of Charters, and are also printed with the statutes of the +Realm. Also in Wilkins' Laws of the Anglo- Saxons, p. 350. + +[15] Lingard says, " The words, ' We will not destroy him nor will +we go upon him, nor will we send upon him,' have been very +differently expounded by different legal authorities. Their real +meaning may be learned from John himself, who the next year +promised by his letters patent,... nec super eos per vim vel per +arma ibimus, nisi per legem regni nostri, vel per judicium parium +suorum in curia nostra, (nor will we go upon them by force or by +arms, unless by the law of our kingdom, or the judgment of their +peers in our court.) Pat. 16 Johan, apud Drad. 11, app. no. 124. + +He had hitherto been in the habit of going with an armed force, or +sending an armed force on the lands, and against the castles, of all +whom he knew or suspected to be his secret enemies, without +observing any form of law." 3 Lingard, 47 note. + +[16] "Judgment, judicium. * * The sentence of the law, +pronounced by the court, upon the matter contained in the record." + 8 Blackstone, 895. Jacob's Law Dictionary. . Tomlin's do. + +"Judgment is the decision or sentence of the law, given by a court +of justice or other competent tribunal, as the result of the +proceedings instituted therein, for the redress of an injury." +Bouvier's Law Dict. + +"Judgment, judicium. * * Sentence of a judge against a criminal. * +* Determination, decision in general." Bailey's Dict. + +"Judgment. * * In a legal sense, a sentence or decision pronounced +by authority of a king, or other power, either by their own mouth, +or by that of their judges andofficers, whom they appoint, to +administer justice in their stead." Chambers' Dict. + +"Judgment. * * In law, the sentence or doom pronounced in any +case, civil orcriminal, by the judge or court by which it is tried." +Webster's Dict. + +Sometimes the punishment itself is called judicium, judgment; or, +rather, it was at the time of Magna Carta. For example, in a statute +passed fifty-one years after Magna Carta, it was said that a baker, +for default in the weight of his bread, " debeat amerciari vel subire +judicium pillorie;" that is, ought to be amerced, or suffer the +punishment, or judgment, of the pillory. Also that a brewer, for +"selling ale contrary to the assize," "debeat amerciari, vel pati +judicium tumbrelli "; that is, ought to be amerced, or suffer the +punishment, or judgment, of the tumbrel. 51 Henry 3, St. 6. +(1266.) + +Also the "Statutes of uncertain date," (but supposed to be prior to +Edward III., or 1326,) provide, in chapters 6, 7, and 10, for +"judgment of the pillory." See 1 Rughead's Statutes, 187, 188. 1 +Statutes of the Realm, 203. + +Blackstone, in his chapter "Of Judgment, and its Consequences," +says, "Judgment (unless any matter be offered in arrest thereof) follows +upon conviction f being the pronouncing of that punishment which +is expressly ordained by law." Blackstone's Analysis of the Laws +of England, Book 4, Ch. 29, Sec. 1. Blackstone's Law Tracts, 126. + +Coke says, "Judicium .. the judgment is the guide and direction of +the execution." 3 Inst. 210. + +[17] This precedent from Germany is good authority, because the +trial by jury was in use, in the northern nations of Europe +generally, long before Magna Carta, and probably from time +immemorial; and the Saxons and Normans were familiar with it +before they settled in England. + +[18] Beneficium was the legal name of an estate held by a feudal +tenure. See Spelman's Glossary. + +[19]] Contenement of a freeman was the means of living in the +condition of a freeman. + +[20] Waynage was a villein's plough-tackle and carts. + +[21] Tomlin says, "The ancient practice was, when any such fine +was imposed, to inquire by a jury quantum inde regi dare valeat +per annum, salva sustentatione sua et uxoris et libe- rorum suorum, +(how much is he able to give to the king per annum, saving his +own maintenance, and that of his wife and children). And since the +disuse of such inquest, it is never usual to assess a larger fine than +a man is able to pay, without touching the implements of his +livelihood; but to inflict corporal punishment, or a limited +imprisonment, instead of such a fine as might amount to +imprisonment for life. And this is the reason why fines in the +king's courts are frequently denominated ransoms, because the +penalty must otherwise fall upon a man's person, unless it be +redeemed or ransomed by a pecuniary fine." Tomlin's Law Dict., +word Fine. + +[22] Because juries were to fix the sentence, it must not be +supposed that the king was obliged to carry the sentence into +execution; but only that he could not go beyond the sentence. He +might pardon, or he might acquit on grounds of law, not +withstanding the sentence; but he could not punish beyond the +extent of the sentence. Magna Carta does not prescribe that the +king shall punish according to the sentence of the peers; but only +that he shall not punish "unless according to" that sentence. He +may acquit or pardon, notwithstanding their sentence or judgment; +but he cannot punish, except according to their judgment. + +[23] The trial by battle was one in which the accused challenged +his accuser to single combat, and staked tbe question of his guilt or +innocence on the result of the duel. This trial was introduced into +England by the Normans, within one hundred and fifty years +before Magna Carta. It was not very often resorted to even by the +Normans themselves; probably never by the Anglo-Saxons, unless +in their controversies with the Normans. It was strongly +discouraged by some of the Norman princes, particularly by Henry +II., by whom the trial by jury was especially favored. It is probable +that the trial by battle, so far as it prevailed at all in England, was +rather tolerated as a matter of chivalry, than authorized as a matter +of law. At any rate, it is not likely that it was included in the +"legem terrae" of Magna Carta, although such duels have +occasionally occurred since that time, and have, by some, been +supposed to be lawful. I apprehend that nothing can be properly +said to be a part of lex terrae, unless it can be shown either to have +been of Saxon origin, or to have been recognized by Magna Carta. + +The trial by ordeal was of various kinds. In one ordeal the accused +was required to take hot iron in his hand; in another to walk +blindfold among red-hot ploughshares; in another to thrust his arm +into boiling water; in another to be thrown, with his hands and feet +bound, into cold water; in another to swallow the morsel of +execration; in the confidence that his guilt or innocence would be +miraculously made known. This mode of trial was nearly extinct at +the time of Magna Carta, and it is not likely that it was included in +"legem terrae," as that term is used in that instrument. This idea is +corroborated by the fact that the trial by ordeal was specially +prohibited only four years after Magna Carta, "by act of Parliament +in 3 Henry III., according to Sir Edward Coke, or rather by an +order of the king in council." 3 Blacks,one 345, note. + +I apprehend that this trial was never forced upon accused persons, +but was only allowed to them, as an appeal to God, from the +judgment of a jury. [24] + +The trial by compurgators was one in which, if the accused could +bring twelve of his neighbors, who would make oath that they +believed him innocent, he was held to be so. It is probable that this +trial was really the trial by jury, or was allowed as an appeal from +a jury. It is wholly improbable that two diferent modes of trial, so +nearly resembling each other as this and the trial by jury do, should +prevail at the same time, and among a rude people, whose judicial +proceedings would naturally be of the simplest kind. But if this +trial really were any other than the trial by jury, it must have been +nearly or quite extinct at the time of Magna Carta; and there is no +probability that it was included in "legem terrae." + +[24] Hallam says, "It appears as if the ordeal were permitted to +persons already convicted by the verdict of a jury." 2 Middle +Ages, 446, note. + +[25] Coke attempts to show that there is a distinction between +amercements and fines admitting that amercements must be +fixed by one's peers, but, claiming that, fines may be fixed by the +government. (2 Inst. 27, 8 Coke's Reports 38) But there seems to +have been no ground whatever for supposing that any such +distinction existed at the time of Magna Carta. If there were any +such distinction in the time of Coke, it had doubtless grown up +within the four centuries that had elapsed since Magna Carta, and +is to be set down as one of the numberless inventions of +government for getting rid of the restraints of Magna Carta, and +for taking men out of the protection of their peers, and subjecting +them to such punishments as the government chooses to inflict. + +The first statute of Westminster, passed sixty years after Magna +Carta, treats the fine and amercement as synonymous, as follows. + +"Forasmuch as the common fine and amercement of the whole +county in Eyre of the justices for false judgments, or for other +trespass, is unjustly assessed by sheriffs and baretors in the shires, +* * it is provided, and the king wills, that frown henceforth such +sums shall be assessed before the justices in Eyre, afore their +departure, by the oath of knights and other honest men," &c. 3 +Edward I., Ch. 18. (1275) + +And in many other statutes passed after Magna Carta, the terms +fine and amercement seem to be used indifferently, in prescribing +the punishments for offences. As late as 1461, (246 years after +Magna Carta,) the statute 1 Edward IV., Ch 2, speaks of "fines., +ransoms, and amerciaments" as being levied upon criminals, as if +they were the common punishments of offences. + +St. 2 and 3 Philip and Mary, Ch 8, uses the terms, "fines, +forfeitures, and amerciaments" five times. (1555) + +St. 5 Elizabeth, Ch. 13, Sec. 10, uses the terms "fines, forfeitures, +and amerciaments." + +That amercements were fines, or pecuniary punishments, inflicted +for offences, is proved by the following statutes, (all supposed to +have been passed within one hundred and fifteen years after +Magna Cart,) which speak of amercements as a species of +"judgment," or punishment, and as being inflicted for the same +offences as other "judgments." + +Thus one statute declares that a baker, for default in the weight of +his bread, "ought to be amerced, or suffer the judgment of the +pillory; and that a brewer, for "selling ale contrary to the assize," +"ought to be amerced, or suffer the judgment of the tumbrel," -- 51 +Henry III., St. 6. (1266) + +Among the "Statutes of Uncertain Date," but supposed to be prior +to Edward III., (1326), are the following: + +Chap. 6 provides that "if a brewer break the assize, (fixing the +price of ale,) the first, second, and third time, he shall be amerced; +but the fourth time he shall suffer judgment of the pillory without +redemption." + +Chap. 7 provides that "a butcher that selleth swine's flesh +measeled, or flesh dead of the murrain, or that buyeth flesh of +Jews, and selleth the same unto Christians, after he shall be +convict thereof, for the first time he shall be grievously amerced; +the second time he shall suffer judgment of the pillory; and the +third time he shall be imprisoned and make fine; and the fourth +time he shall forswear the town." + +Chap. 10, a statute against forestalling, provides that, "He that is +convict thereof, the first time shall be amerced, and shall lose the +thing so bought, and that according to the custom of the town; he +that is convicted the second time shall have judgment of the +pillory; at the third time he shall be imprisoned and make fine; the +fourth time he shall abjure the town. And this judgment shall be +given upon all manner of forestallers, and likewise upon them that +have given them counsel, help, or favor." 1 Ruffheads Statutes, +187, 188. 1 Statutes of the Realm, 203. + +[26] 1 Hume, Appendix, l. + +[27] Blackstone says, "Our ancient Saxon laws nominally punished +theft with death, if above the value of twelve pence; but the +criminal was permitted to redeem his life by a pecuniary ransom, +as among their ancestors, the Germans, by a stated number of +cattle. Bit in the ninth year of Henry the First (1109,) this power of +redemption was taken away, and all persons guilty of larceny +above the value off twelve pence were directed to be hanged, +which law continues in force to this day." 4 Blackstone, 238 + +I give this statement of Blackstone, because the latter clause may +seem to militate with the idea, which the former clause +corroborates, viz., that at the time of Magna Carta, fines were the +usual punishment of offenses. But I think there is no probability +that a law so unreasonable in itself, (unreasonable even after +making all allowance for the difference in the value of money,) +and so contrary to immemorial custom, could and did obtain any +general or speedy acquiescence among a people who cared little +for the authority of kings. + +Maddox, writing of the period from William the Conqueror to +John, says: "The amercement in criminal and common pleas, +which were wont to be imposed during this first period and +afterwards, were of so many several sorts, that it is not easy to +place them under distinct heads. Let them, for methods' sake, be +reduced to the heads following: Amercements for or by reason of +murders and manslaughters, for misdemeanors, for disseisins, for +recreancy, for breach of assize, for defaults, for non-appearance, +for false judgment, and for not making suit, or hue and cry. To +them may be added miscellaneous amercements, for trespasses of +divers kinds." 1 Maddox' History of the Exchequer, 542. + +[28] Coke, in his exposition of the words legem terrae, gives quite +in detail the principles of the common law governing arrests, and +takes it for granted that the words "nisi per legem terre" are +applicable to arrests, as well as to the indictment, &c. 2 inst., 51, +52. + +[29] I cite the above extract from Mr. Hallam solely for the sake of +his authority for rendering the word vel by and; and not by any +means for the purpose of indorsing the opinion he suggests, that +legem terrae authorized "judgments by default or demurrer,*' +without the intervention of a jury. He seems to imagine that lex +terrae, the common law, at the time of Magna Carta, included +everything, even to the practice of courts, that is, at this day, called +by the name of Common Law; whereas much of what is now +called Common Law has grown up, by usurpation, since the time +of Magna Carta, in palpable violation of the authority of that +charter. He says, "Certainly there are many legal procedures, +besides trial by jury, through which a party's goods or person may +be taken." Of course there are now many such ways, in which a +party's goods or person are taken, besides by the judgment of a +jury; but the question is, whether such takings are not in violation +of Magna Carta. + +He seems to think that, in cases of "judgment by default or +demurrer," there is no need of a jury, and thence to infer that +legem terrae may not have required a jury in those cases. But this +opinion is founded on the erroneous idea that juries are required +only for determining contested facts, and not for judging of the +law. In case of default, the plaintif must present a prima facie case +before he is entitled to a judgment; and Magna Carta, (supposing it +to require a jury trial in civil cases, as Mr. Hallam assumes that it +does,) as much requires that this prima facie case, both law and +fact, be made out to the satisfaction of a jury, as it does that a +contested case shall be. + +As for a demurrer, the jury must try a demurrer (having the advice +and assistance of the court, of course) as much as any other matter +of law arising in a case. + +Mr. Hallam evidently thinks there is no use for a jury, except +where there is a "trial" meaning thereby a contest on matters of +fact. His language is, that "there are many legal procedures, +besides trial by jury, through which a party's goods or person may +be taken." Now Magna Carta says nothing of trial by jury; but only +of the judgment, or sentence, of a jury. It is only by inference that +we come to the conclusion that there must be a trial by jury. Since +the jury alone can give the judgment, or sentence, we infer that +they must try the case; because otherwise they would be +incompetent, and would have no moral right, to give judgment. +They must, therefore, examine the grounds, (both of law and fact,) +or rather try the grounds, of every action whatsoever, whether it be +decided on "default, demurrer," or otherwise, and render their +judgment, or sentence, thereon, before any judgment can be a legal +one, on which "to take a party's goods or person." In short, the +principle of Magna Carta is, that no judgment can be valid against +a party's goods or person, (not even a judgment for costs,) except a +judgment rendered by a jury. Of course a jury must try every +question, both of law and fact, that is involved in the rendering of +that judgment. They are to have the assistance and advice of the +judges, so far as they desire them; but the judgment itself must be +theirs, and not the judgment of the court. + +As to "process of attachment for contempt," it is of course lawful +for a judge, in his character of a peace officer, to issue a warrant +for the arrest of a man guilty of a contempt, as he would for the +arrest of any other offender, and hold him to bail, (or, in default of +bail, commit him to prison,) to answer for his offence before a +jury. Or he may order him into custody without a warrant when the +offence is committed in the judge's presence. + +But there is no reason why a judge should have the power of +punishing, for contempt, any more than for any other offence. And +it is one of the most dangerous powers a judge can have, because it +gives him absolute authority in a court of justice, and enables him +to tyrannize as he pleases over parties, counsel, witnesses, and +jurors. If a judge have power to punish for contempt, and to +determine for himself what is a contempt, the whole administration +of justice (or injustice, if he choose to make it so) is in his hands. +And all the rights of jurors, witnesses, counsel, and parties, are +held subject to his pleasure, and can be exercised only agreeably +to his will. He can of course control the entire proceedings in, +and consequently the decision of, every cause, by restraining and +punishing every one, whether party, counsel, witness, or juror, +who presumes to offer anything contrary to his pleasure. + +This arbitrary power, which has been usurped and exercised by +judges to punish for contempt, has undoubtedly had much to do in +subduing counsel into those servile, obsequious, and cowardly +habits, which so universally prevail among them, and which have +not only cost so many clients their rights, but have also cost the +people so many of their liberties. + +If any summary, punishment for contempt be ever necessary, (as it +probably is not,) beyond exclusion for the time being from the +court-room, (which should be done, not as a punishment, but for +self-protection, and the preservation of order,) the judgment for it +should be given by the jury, (where the trial is before a jury,) and +not by the court, for the jury, and not the court, are really the +judges. For the same reason, exclusion from the court-room should +be ordered only by the jury, in cases when the trial is before a jury, +because they, being the real judges and triers of the cause, are +entitled, if anybody, to the control of the court-room. In appeal +courts, where no juries sit, it may be necessary not as a +punishment, but for self-protection, and the maintenance of order +that the court should exercise the power of excluding a person, for +the time being, from the court-room; but there is no reason why +they should proceed to sentence him as a criminal, without his +being tried by a jury. + +If the people wish to have their rights respected and protected in +courts of justice, it is manifestly of the last importance that they +jealously guard the liberty of parties, counsel, witnesses, and +jurors, against all arbitrary power on the part of the court. + +Certainly Mr. Hallam may very well say that "one may doubt +whether these (the several eases he has mentioned) were in +contemplation of the framers of Magna Carta " that is, as +exceptions to the rule requiring that all judgmcnts, that are to be +enforced "against a party's goods or person,", be rendered by a jury. + +Again, Mr. Hallam says, if the word vel, be rendered by and,, "the +meaning will be, that no person shall be disseized, &c., except +upon a lawful cause of action.", This is true; but it does not follow +that any cause of action, founded on statute only,, is therefore a +"lawful, cause of action," within the meaning of legem terrae, , or +the Common Law., Within the meaning of the legem terrae, of +Magna Carta, nothing but a common law, cause of action is a +"lawful", one. + + +CHAPTER III. ADDITIONAL PROOFS OF THE RIGHTS AND +DUTIES OF JURORS + +If any evidence, extraneous to the history and language of Magna +Carta, were needed. to prove that, by that chapter which +guaranties the trial by jury, all was meant that has now been +ascribed to it, and that the legislation of the king was to be of +no authority with the jury beyond what they chose to allow to it, +and that the juries were to limit the punishments to be inflicted, +we should find that evidence in various sources, such as the laws, +customs, and characters of their ancestors on the continent, and +of the northern Europeans generally; in the legislation and customs +that immediately succeeded Magna Carta; in the oaths that have +at different times been administered to jurors, &c;., &c;. This +evidence can be exhibited here but partially. To give it all would +require too much space and labor + +SECTION I + +Weakness of the Regal Authority. + +Hughes, in his preface to his translation of Horne's "Mirror of +Justices," (a book written in the time of Edward I, 1272 to +1307,) giving a concise view of the laws of England generally, +says: + +"Although in the Saxon's time I find the usual words of the acts +then to have been edictum, (edict,) constitutio, (statute,) +little mention being made of the commons, yet I further find +that, tum demum Leges vim et vigorem habuerunt, cum fuerunt +non modo institutae sed firmatae approbatione communitatis." (The +laws had force and vigor only when they were not only enacted, +but confirmed by the approval of the community.) + +The Mirror of Justices itself also says, (ch. 1, sec. 3,) in +speaking "Of the first Constitutions of the Ancient King." + +"Many ordinances were made by many kings, until the time of the +king that now is (Edward I.); the which ordinances were abused, +or not used by many, nor very current, because they were not put +in writing, and certainly published." Mirror of Justices, p. 6. + +Hallam says: + +"The Franks, Lombards, and Saxons seem alike to have been +jealous of judicial authority; and averse to surrendering what concerned +every man's private right, out of the hands of his neighbors and +equals." 1 Middle Ages, 271. + +The "judicial authority," here spoken of, was the authority of +the kings, (who at that time united the office of both +legislators and judges,), and not of a separate department of +government, called the judiciary, like what has existed in more +modern times. [1] + +Hume says: + +"The government of the Germans, and that of all the northern +nations, who established themselves on the ruins of Rome, was +always extremely free; and those fierce people, accustomed to +independence and inured to arms, were more guided by +persuasion, than authority, in the submission which they paid to their +princes. The military despotism, which had taken place n the +Roman empire, and which, previously to the irruption of those +conquerors, had sunk the genius of men, and destroyed every noble +principle of science and virtue, was unable to resist the +vigorous efforts of a free people, and Europe, as from a new +epoch, rekindled her ancient spirit, and shook off the base +servitude to arbitrary will and authority under which she had so +long labored. The free constitutions then established, however +impaired by the encroachments of succeeding princes, still +preserve an air of independence and legal administration, which +distinguished the European nations; and if that part of the globe +maintain sentiments of liberty, honor, equity, and valor, +superior to the rest of mankind, it owes these advantages chiefly +to the seeds implanted by those generous barbarians. + +"The Saxons, who subdued Britain, as they enjoyed great liberty +in their own country, obstinately retained that invaluable +possession in their new settlement; and they imported into this +island the same principles of independence, which they had +inherited from their ancestors. The chieftains, ( for such they +were, more than kings or princes,) who commanded them in those +military expeditions, still possessed a very limited authority; +and as the Saxons exterminated, rather than subdued the ancient +inhabitants, they were, indeed, transplanted into a new +territory, but preserved unaltered all their civil and military +insfitutions. The language was pure Saxon; even the names of +places, which often remain while the tongue entirely changes, +were almost all affixed by the conquerors; the manners and +customs were wholly German; and the same picture of a fierce and +bold liberty, which is drawn by the masterly pen of Tacitus, will +suit those founders of the English government. The king, so far +from being invested with arbitrary power, was only considered as +the first among the citizens; his authority depended more on his +personal qualities than on his station; he was even so far on a +level with the people, that a stated price was fixed for his +head, and a legal fine was levied upon his murderer, which though +proportionate to his station, and superior to that paid for the +life of a subject, was a sensible mark of his subordination to +the community." 1 Hume, Appendix, l. + +Stuart says: + +"The Saxons brought along with them into Britain their own +customs, language, and civil institutions. Free in Germany, they +renounced not their independence, when they had conquered. +Proud from victory, and with their swords in their hands, would +they surrender their liberties to a private man? Would temporary +laders, limited in their powers, and unprovided in resources, +ever think to usurp an authority over warriors, who considered +themselves as their equals, were impatient of control, and +attached with devoted zeal to their privileges? Or, would they +find leisure to form resolutions, or opportunities to put them in +practice, amidst the tumult and confusion of those fierce and +bloody wars, which their nations first waged with the Britons, +and then engaged in among themselves? Sufficiently flattered in +leading the armies of their countrymen, the ambition of +commanders could as little suggest such designs, as the liberty +of the people could submit to them. The conquerors of Britain +retained their independence; and this island saw itself again in +that free state in which the Roman arms had discovered it. + +"The same firmness of character, and generosity of manners, +which, in general, distinguished the Germans, were possessed in +an eminent degree by the Saxons; and while we endeavor to unfold +their political institutions, we must perpetually turn our +observation to that masterly picture in which the Roman historian +has described these nations. In the woods of Germany shall we +find the principles which directed the state of land, in the +different kingdoms of Europe; and there shall we find the +foundation of those ranks of men, and of those civil +arrangements, which the barbarians everywhere established; and +which the English alone have had the good fortune, or the spirit, +to preserve." Stuart on the Constitution of england, p. 59 - 61. + +"Kings they (the Germans) respected as the first magistrates of +the state; but the authority possessed by them was narrow and +limited." Ditto, p. 134. + +"Did he, (the king,) at any time, relax his activity and martial +ardor, did he employ his abilities to the prejudice of his +nation, or fancy he was superior to the laws; the same power +which raised him to honor, humbled and degraded him. The +customs and councils of his country pointed out to him his +duty; and if he infringed on the former, or disobeyed the latter, +a fierce people set aside his authority. + +"His long hair was the only ornament he affected, and to be +foremost to attack an enemy was his chief distinction. +Engaged in every hazardous expedition, he was a stranger to +repose; and, rivalled by half the heroes of his tribe, he could +obtain little power. Anxious and watchful for the public +interest, he felt every moment his dependence, and gave +proofs of his suhmission. + +"He attended the general assembly of his nation, and was allowed +the privilege to harangue it first; but the arts of persuasion, +though known and respected by a rude people, were unequally +opposed to the prejudices and passions of men." Ditto, p. 135 - 6. + +"The authority of a Saxon mnarch was not more considerable. The +Saxons submitted not to the arbitrary rule of princes. They +administered an oath to their sovereigns, which bound them to +aeknowledge the laws, and to defend the rights of the church and +people; and if they forgot this obligation, they forfeited their +office. In both countries, a price was affixed on kings, a fine +expiated their murder, as well as that of the meanest citizen; +and the smallest violation of ancient usage,or the least step +towards tyranny, was always dangerous, and often fatal to them." +Ditto, p. 189-40. + +"They were not allowed to impose taxes on the kingdom." Ditto, +p. 146. + +"Like the German monarchs, they deliberated in the general +assembly of the nation; but their legislative authority was not +much respected; and their assent was considered in no better +light than as a form. This, however, was their chief prerogative; +and they employed it to acquire an ascendant in the state. To art +and insinuation they turned, as their only resource, and +flattered a people whom they could not awe; but address, and the +abilities to persuade, were a weak compensation for the absence +of real power. + +"They declared war, it is said, and made peace. In both cases, +however, they acted as the instruments of the state, and put in +execution the resolutions which its councils had decreed. If, +indeed, an enemy had invaded the kingdoms, and its glory and its +safety were concerned, the great lords took the field at the call +of their sovereign. But had a sovereign declared war against a +neighboring state, without requiring their advice, or if he meant +to revenge by arms an insult offered to him by a subject, a +haughty and independent nobility refused their assistance. These +they considered as the quarrels of the king, and not of the +nation; and in all such emergencies he could only be assisted by +his retainers and dependents." Ditto, p. 147 8. + +"Nor must we imagine that the Saxon, any more than the German +monarchs, succeeded each other in a lineal descent, [2] or that +they disposed of the crown at their pleasure. In both countries, +the free election of the people filled the throne; and their +choice was the only rule by which princes reigned. The +succession, accordingly, of their kings was often broken and +interrupted, and their depositions were frequent and groundless. +The will of a prince whom they had long respected, and the favor +they naturally transferred to his descendant, made them often +advance him to the royal dignity; but the crown of his ancestor +he cnsidered as the gift of the people, and neither expected nor +claimed it as a right." Ditto, p. 151 3. + +In Germany "It was the business of the great to command in war, +and in peace they distributed justice. + +"The princes in Germany were earls in England. The great +contended in both countries in the number of their retainers, and +in that splendor and magnificence which are so alluring to a rude +people; and though they joined to set bounds to regal power, they +were often animated against each other with the fiercest hatred. +To a proud and impatient nobility it seemed little and unsuiting +to give or accept compositions for the injuries they committed or +received; and their vassals adopting their resentment and +passions, war and bloodshed alone could terminate their quarrels. +What necessarily resulted from their situation in society, was +continued as a privilege; and the great, in both countries, made +war, of their private authority, on their enemies. The Saxon +earls even carried their arms against their sovereigns; and, +surrounded with retainers, or secure in fortresses and castles, +they despised their resentment, and defied their power. + +"The judges of the people, they presided in both countries in +courts of law. [3] The particular districts over which they +exerted their authority were marked out in Germany by the council +of the state; and in England their jurisdiction extended over the +fiefs and other territories they possessed. All causes, both +civil and criminal, were tried before them; and they judged, +except in cases of the utmost importance, without appeal. They +were even allowed to grant pardon to criminals, and to correct by +their clemency the rigors of justice. Nor did the sovereign +exercise any authority in their lands. In these his officers +formed no courts, and his writ was disregarded. + +"They had officers, as well as the king, who collected their +revenues, and added to their greatness; and the inhabitants of +their lands they distinguished by the name of subjects. + +"But to attend the general assembly of their nation was the chief +prerogative of the German and Saxon princes; and as they +consulted the interest of their country, and eliberated +concerning matters of state, so in the king's court, of which +also they were members, they assisted to pronounce judgment in +the complaints and appeals which were lodged in it." Ditto, p. +158 to 165. + +Henry says: + +"Nothing can be more evident than this important truth; that our +Anglo-Saxon kings were not absolute monarchs; but that their +powers and prerogatives were limited by the laws and customs of +the country. Our Saxon ancestors had been governed by limited +monarchs in their native seats on the continent; and there is not +the least appearance or probability that they relinquished their +liberties, and submitted to absolute government in their new +settlements in this island. It is not to be imagined that men, +whose reigning passion was the love of liberty, would willingly +resign it; and their new sovereigns, who had been their +fellow-soldiers, had certainly no power to compel them to such a +resignation." 3 Henry's History of Great Britain, 358. + +Mackintosh says:"The Saxon chiefs, who were called. kings, +originally acquired power by the same natural causes which have +gradually, and everywhere, raised a few men above their fellows. +They were, doubtless, more experienced, more skillful, more +brave, or more beautiful, than those who followed them. * * A +king was powerful in war by the lustre of his arms, and the +obvious necessity of obedience. His influence in peace fluctuated +with his personal character. In the progress of usage his power +became more fixed and more limited. * * It would be very +unreasonable to suppose that the northern Germans who had +conquered England, had so far changed their characteristic habits +from the age of Tacitus, that the victors became slaves, and that +their generals were converted into tyrants." Mackintosh's Hist. +of England, Ch. 2. 45 Lardner's Cab. Cyc., 73-4. + +Rapin, in his discourse on the "Origin and Nature of the English +Constitution," says: + +"There are but two things the Saxons did not think proper to +trust their kings with; for being of like passions with other +men, they might very possibly abuse them; namely, the power of +changing the laws enacted by consent of king and people; and the +power of raising taxes at pleasure.From these two articles sprung +numberless branches concerning the liberty and property of the +subject, which the king cannot touch, without breaking the +constitution, and they are the distinguishing character of the +English monarchy. The prerogatives of the crown, and the rights +and privileges of the people, flowing from the two fore-mentioned +articles, are the ground of all the laws that from time to time +have been made by unanimous consent of king and people. The +English government consists in the strict union of the king's +prerogatives with the people's liberties. * * But when kings +arose, as some there were, that aimed at absolute power, by +changing the old, and making new laws, at pleasure; by imposing +illegal taxes on the people; this excellent government being, in +a manner, dissolved by these destructive measures, confusion and +civil wars ensued, which some very wrongfully ascribe to the +fickle and restless temper of the English." Rapin's Preface to +his History of England. + +Hallam says that among the Saxons, "the royal authority was +weak." 2 Middle Ages, 403. + +But although the king himself had so little authority, that it +cannot be supposed for a moment that his laws were regarded as +imperative by the people, it has nevertheless been claimed, in +modern times, by some who seem determined to find or make a +precedent for the present legislative authority of parliament, +that his laws were authoritative, when assented to by the Witena +- gemote, or assembly of wise men that is, the bishops and +barons. But this assembly evidently had no legislative power , +whatever. The king would occasionally invite the bishops and +barons to meet him for consultation on public affairs, simply as +a council, and not as a legislative body. Such as saw fit to +attend, did so. If they were agreed upon what ought to be done, +the king would pass a law accordingly, and the barons and bishops +would then return and inform the people orally what laws had been +passed, and use their influence with them to induce them to +conform to the law of the king, and the recommendation of the +council. ' And the people no doubt were much more likely to +accept a law of the king, if it had been approved by this +council, than if it had not. But it was still only a law of the +king, which they obeyed or disregarded according to their own +notions of expediency. The numbers who usually attended this +council were too small to admit of the supposition that they had +any legislative authority whatever, to impose laws upon the +people against their will. + +Lingard says: + +"It was necessary that the king should obtain the assent of these +(the members o the Witena-gemotes) to all legislative enactments; +because, without their acquiescence and support, it was +impossible to carry them into execution. To many charters (laws) +we have the signatures of the Witan. They seldom exceed thirty in +number; they never amount to sixty." 1 Lingard; 486. + +It is ridiculous to suppose that the assent of such an assembly +gave any authority to the laws of the king, or had any influence +in securing obedience to them, otherwise than by way of +persuasion. If this body had had any real legislative authority, +such as is accorded to legislative bodies of the present day, +they would have made themselves at once the most conspicuous +portion of the government, and would have left behind them +abundant evidence of their power, instead of the evidence simply +of their assent to a few laws passed by the king. + +More than this. If this body had had any real legislative +authority, they would have constituted an aristocracy, having, in +conjunction with the king, absolute power over the people. +Assembling voluntarily, merely on the invitation of the king; +deputed by nobody but themselves; representing nobody but +themselves; responsible to nobody but themselves; their +legislative authority, if they had had any, would of necessity +have made the government the government of an aristocracy +merely, and the people slaves, of course. And this would +necessarily have been the picture that history would have +given us of the Anglo-Saxon government, and of Anglo-Saxon +liberty. + +The fact that the people had no representation in this assembly, +and the further fact that, through their juries alone, they +nevertheless maintained that noble freedom, the very tradition of +which (after the substance of the thing itself has ceased to +exist) has constituted the greatest pride and glory of the nation +to this day, prove that this assembly exercised no authority +which juries of the people acknowledged, except at their own +discretion. [4] + +There is not a more palpable truth, in the history of the +Anglo-Saxon government, than that stated in the Introduction to +Gilbert's History of the Common Pleas, [5] viz.. "that the +County aud Hundred Courts," (to which should have been added +the other courts in which juries sat, the courts-baron and +court-leet,) "in those times were the real and only Parliaments +of the kingdom." And why were they the real and only parliaments +of the kingdom? Solely because, as will be hereafter shown, the +juries in those courts tried causes on their intrinsic merits, +according to their own ideas of justice, irrespective of the laws +agreed upon by kings, priests, and barons; and whatever +principles they uniformly, or perhaps generally, enforced, and +none others, became practically the law of the land as matter of +course. [6] + +Finally, on this point. Conclusive proof that the legislation of +the king was of little or no authority, is found in the fact that +the kings enacted so few laws. If their laws had been received as +authoritative, in the manner that legislative enactments are at +this day, they would have been making laws continually. Yet the +codes of the most celebrated kings are very small, and were +little more than compilations of immemorial customs. The code of +Alfred would not fill twelve pages of the statute book of +Massachusetts, and was little or nothing else than a compilation +of the laws of Moses, and the Saxon customs, evidently collected +from considerations of convenience, rather than enacted on the +principle of authority. The code of Edward the Confessor would +not fill twenty pages of the statute book of Massachusetts, and, +says Blackstone, "seems to have been no more than a new edition, +or fresh promulgation of Alfred's code, or dome-book, with such +additions and improvements as the experience of a century and a +half suggested." 1 Blackstone, 66. [7] + +The Code of Wiliiam the Conqueror [8] would fill less than seven +pages of the statute book of Massachusetts; and most of the laws +contained in it are taken from the laws of the preceding kings, +and especially of Edward the Confessor (whose laws William +swore to observe); but few of his own being added. + +The codes of the other Saxon and Norman kings were, as a general +rule, less voluminous even than these that have been named; and +probably did not exceed them in originality. [9] The Norman +princes, from William the Conqueror to John, I think without +exception, bound themselves, and, in order to mqintain their +thrones, were obliged to bind themselves, to observe the ancient +laws and customs, in other words; the "lex terrae," or "common +law" of the kingdom. Even Magna Carta contains hardly anything +other than this same "common law," with some new securities for +its observance. + +How is this abstinence from legislation, on the part of the +ancient kings, to be accounted for, except on the supposition +that the people would accept, and juries enforce, few or no new +laws enacted by their kings? Plainly it can be accounted. for in +no ether way. In fact, all history informs us that anciently the +attempts of the kings to introduce or establish new laws, met +with determined resistance from the people, and generally +resulted in failure "Nolumus Leges Angliae mutari" (we will that +the laws of England be not changed,) was a determined principle +with the Anglo-Saxons, from which they seldom departed, up to +the time of Magna Carta, and indeed until long after. [10] + +SECTION II + +The Ancient Common Law Juries were mere Courts of +Conscience. + +But it is in the administration of justice, or of law, that the +freedom or subjection of a people is tested. If this +administration be in accordance with the arbitrary will of the +legislator that is, if his will, as it appears in his statutes, +be the highest rule of decision known to the judicial tribunals, +the government is a despotism, and the people are slaves. If, on +the other hand, the rule of decision be these principles of +natural equity and justice, which constitute, or at least are +embodied in, the general conscience of mankind, the people are +free in just so far as that conscience is enlightened. + +That the authority of the king was of little weight with the +judicial tribunals, must necessarily be inferred from the fact +already stated, that his authority over the people was but weak. +If the authority of his laws had been paramount in the judicial +tribunals, it would have been paramount with the people, of +course; because they would have had no alternative but +submission. The fact, then, that his laws were not authoritative +with the people, is proof that they were not authoritative with +the tribunals in other words, that they were not, as matter of +course, enforced by the tribunals. + +But we have additional evidence that, up to the time of Magna +Carta, the laws of the king were not binding upon the judicial +tribunals; and if they were not binding before that time, they +certainly were not afterwards, as has already been shown from +Magna Carta itself. It is manifest from all the accounts we have +of the courts in which juries sat, prior to Magna Carta, such as +the court-baron, the hundred court, the court-leet, and the +county court, that they were mere courts of conscience, and that +the juries were the judges, deciding causes according to their +own notions of equity, and not according to any laws of the king, +unless they thought them just. + +These courts, it must be considered, were very numerous, and held +very frequent sessions. There were probably seven, eight, or nine +hundred courts a month, in the kingdom; the object being, as +Blackstone says, "To bring justice home to every man's door." (3 +Blackstone, 80.) The number of the county courts, of course, +corresponded to the number of counties, (36.) The court-leet was +the criminal court for a district less than a county. The hundred +court was the court for one of those districts anciently called a +hundred, because, at the time of their first organization for +judicial purposes, they comprised, (as is supposed) but a hundred +families. [11] The court-baron was the court for a single manor, +and there was a court for every manor in the kingdom. All these +courts were holden as often as once in three or five weeks; the +county court once a month. The king's judges were present at none +of these courts; the only officers in attendance being sheriffs +bailiff's, and stewards, merely ministerial, and not judicial, +officers; doubtless incompetent, and, if not incompetent, +untrustworthy, for giving the juries any reliable information in +matters of law, beyond what was already known to the jurors +themselves. + +And yet these were the courts, in which was done all the judicial +business, both civil and criminal, of the nation, except appeals, +and some of the more important and difficult cases. [12] It is +plain that the juries, in these courts, must, of necessity, have +been the sole judges of all matters of law whatsoever; because +there was no one present, but sheriffs, bailiffs, and stewards, +to give them any instructions; and surely it will not be pretended +that the jurors were bound to take their law from such sources +as these. + +In the second place, it is manifest that the principles of law, +by which the juries determined causes, were, as a general rule, +nothing else than their own ideas of natural equity, and not any +laws of the king; because but few laws were enacted, and many of +those were not written, but only agreed upon in council. [13] Of +those that werewritten, few copies only were made, (printing +being then unknown,) and not enough to supply a11, or any +considerable number, of these numerous courts. Beside and +beyond all this, few or none of the jurors could have read the laws, if +they had been written; because few or none of the common people +could, at thattime, read. Not only were the common people unable +to read their own language, but, at the time of Magna Carta, the +laws were written in Latin, a language that could be read by few +persons except the priests, who were also the lawyers of the +nation. Mackintosh says, "the first act of the House of Commons +composed and recorded in the English tongue," was in 1415, two +centuries after Magna Carta. [14]. Up to this time, and for some +seventy years later, the laws were generally written either in Latin +or French; both languages incapable of being read by the common + people, as well Normans as Saxons; and one of them, the Latin, + not only incapable of being read by them, but of beingeven +understood when it was heard by them. + +To suppose that the people were bound to obey, and juries to +enforce, laws, many of which were unwritten, none of which they +could read, and the larger part of which (those written in Latin) +they could not translate, or understand when they heard them +read, is equivalent to supposing the nation sunk in the most +degrading slavery, instead of enjoying a liberty of their own +choosing. + +Their knowledge of the laws passed by the king was, of course, +derived only from oral information; and the good laws,"as some of +them were called, in contradistinction to others those which +the people at large esteemed to be good laws were doubtless +enforced by the juries, and the others, as a general thing, +disregarded. [15] + +That such was the nature of judicial proceedings, and of the +power of juries, up to the time of Magna Carta, is further shown +by the following authorities. + +"The sheriff's and bailiffs caused the free tenants of their +bailiwics to meet at their counties and hundreds; at which +justice was so done, that every one so judged his neighbor by +such judgment as a man could not elsewhere receive in the like +cases, until such times as the customs of the realm were put in +writing, and certainly published. + +"And although a freeman commonly was not to serve (as a juror or +judge) without his assent, nevertheless it was assented unto that +free tenants should meet together in the counties and hundreds, +and lords courts, if they were not specially exempted to do such +suits, and there judged their neighbors." Mirror of Justices, +p. 7, 8. + +Gilbert, in his treatise on the Constitution of England, says: + +"In the county courts, if the debt was above forty shillings, +there issued a justicies (a commission) to the sheriff, to enable +him to hold such a plea, where the suitors (jurors) are judges of +the law and fact." Gilbert's Cases in Law and Equity, &c;., +&c;., 456. + +All the ancient writs, given in Glanville, for summoning jurors, +indicate that the jurors judged of everything, on their +consciences only. The writs are in this form: + +"Summon twelve free and legal men (or sometimes twelve +knights) +to be in court, prepared upon their oaths to declare whether A or +B have the greater right to the land {or other thing) in +question." See Writs in Beames' Glanville, p. 54 to 70, and 233 +306 to 832. + +Crabbe, speaking of the time of Henry I., (1100 to 1135,) +recognizes the fact that the jurors were the judges. He says: + +"By one law, every one was to be tried by his peers, who were of +the same neighborhood as himself. * *By another law, the judges, +for so the jury were called, were to be chosen by the party +impleaded, after the manner of the Danish nem-bas; by which, +probably, is to be understood that the defendant had the liberty +of taking exceptions to, or challenging the jury, as it was +afterwards called." Crabbe's History of the English Law, p. 55. + +Reeve says: + +"The great court for civil business was the county court; held +once every four weeks. Here the sheriff presided; but the suitors +of the court, as they were called, that is, the freemen or +landholders of the county, were the judges; and the sheriff was +to execute the judgment. + +"The hundred court was held before some bailiff; the leet before +the lord of the manor's steward.[16] + +"Out of the county court was derived an inferior court of civil +jurisdiction, called the court-baron. This was held from three +weeks to three weeks, and was in every respect like the county +court;" (that is, the jurors were judges in it;) "only the lord +to whom this franchise was granted, or his steward presided +instead of the sheriff;" 1 Reeve's History of the English Law, +p. T., + +Chief Baron Gilbert says: + +"Besides the tenants of the king, which held per baroniam, (by +the right of a baron,) and did suit and service (served as +judges) at his own court; and the burghers and tenants in ancient +demesne, that did suit and service (served as jurors or judges) +in their own court in person), and in the king's by proxy, there +was also a set of freeholders, that did suit aud service (served +as jurors) at the county court. These were such as anciently held +of the lord of the county, and by the escheats of earldoms had +fallen to the king; or such as were granted out by service to +hold of the king, but with particular reservation to do suit and +service (serve as jurors) before the kng's bailiff; because it +was necessary the sheriff, or bailiff of the king, should have +suitors (jurors) at the county court, that the business might be +despatched. These suitors are the pares (peers) of the county +court, and indeed the judges of it; as the pares (peers) were the +judges in every court-baron; and therefore the king's bailiff +having a court before him, there must be pares or judges, for the +sheriff himself is not a judge; and though the style of the court +is Curia prima Comitatus E. C. Milit.' vicecom' Comitat' praed' +Tent' apud B., &c;. (First Court of the county, E. C. knight, +sheriff of the aforesaid county, held at B., &c;.); by which it +appears that the court was the s1ieriff's; yet, by the old feudal +constititions, the lord was not judge, but the pares (peers) +only; so that, even in a justicies, which was a commission to the +sheriff to hold plea of more than was allowed hy the natural +jurisdiction of a county court, the pares (peers, jurors) only +were judges, and not the sheriff; because it was to hold plea in +the same manner as they used to do in that (the lord's) court." +Gilbert on the Court of Exchequer, ch. 5. 61- 2. + +"It is a distinguishing feature of the feudal system, to make +civil jurisdiction necessarily, and criminal jurisdiction +ordinarily, coextensive with tenure; and accordingly there is +inseparably incident to every manor a court-baron (curia +baronum), being a court in which the freeholders of the manor are +the sole judges, but in which the lord, by himself or more +commonly by his steward, presides." Political Dictionary, word +Manor. + +The same work, speaking of the county court, says: "The judges +were the freeholders who did suit to the court." See word Courts. + +"In the case of freeholders attending as suitors, the county +court or court-baron., (as in the case of the ancient tenants per +baroniam attending Parliament,) the suitors are the judges of the +court, both for law and for fact, and the sheriff or the under +sheriff in the county court, and the lord or his steward in the +court-baron, are only presiding officers, with no judicial +authority." Political Dictionary, word Suit. + +"Court, (curtis, curia aula); the space enclosed by the walls of +a feudal residence, in which the followers of a lord used to +assemble in the middle ages, to administer justice, and decide +respecting affairs of common interest, &c;. It was next used for +those who stood in immediate connexion with the lord and master, +the pares curiae, (peers of the court,) the limited portion of +the general assembly, to which was entrusted the pronouncing of +judgment," &c;. Encyclopedia Americana, word Court. + +"In court-barons or county courts the steward was not judge, but +the pares (peers, jurors); nor was the speaker in the House of +Lords judge, but the barons only." Gilbert on the Court of +Rxchequer, ch. 3, p. 42. + +Crabbe, speaking of the Saxon times, says: + +"The sheriff presided at the hundred court, * * and sometimes sat +in the place of the alderman (earl) in the county court." +Crabbe, 23. + +The sheriff afterwards became the sole presiding officer of the +county court. + +Sir Thomas Smith, Secretary of State to queen Elizabeth, writing +more than three hundred years after Magna Carta, in describing +the difference between the Civil Law and the English Law, says: + +"Judex is of us called Judge, but our fashion is so divers, that +they which give the deadly stroke, and either condemn or acquit +the man for guilty or not guilty, are not called judges, but the +twele men. And the same order as well in civil matters and +pecuniary, as in matters criminal." Smith's Commonwealth of +England, ch. 9, p. 53, Edition of 1621. + +Court-Leet. "That the leet is the most ancient court in the land +for criminal matters, (the court-baron being of no less antiquity +in civil,) has been pronounced by the highest legal authority. * +* Lord Mansfield states that this court was coeval with the +establishment of the Saxons here, and its activity marked very +visibly both among the Saxons and Danes. * * The leet is a court +of record for the cognizance of criminal matters, or pleas of the +crown; and necessarily belongs to the king; though a subject, +usually the lord of the manor, may be, and is, entitled to the +profits, consisting of the essoign pence, fines, and amerciaments + +"It is held before the steward, or was, in ancient times, before +the bailiff, of the lord." Tomline's Law Dict., word +Court-Leet. + +Of course the jury were the judges in this court, where only a +"steward" or "bailiff" of a manor presided. + +"No cause of consequence was determined without the king's writ; +for even in the county courts, of the debts, which were above +forty shillings, there issued a Justicies (commission) to the +sheriff, to enable him to hold such plea, where the suitors are +judges of the law and fact." Gilbert's History of the Common +Pleas, Introduction, p. 19. + +"This position" (that " the matter of law was decided by the +King's Justices, but the matter of fact by the pares ") "is wholly +incompatible with the common law, for the Jurata ( jury) +were the sole judges both of the law and the fact." Gilbert's +History of the Common Pleas, p. 70, note. + +"We come now to the challenge: and of old the suitors in court, +who were judge, could not he challenged; nor by the feudal law +could the pares be even challenged. Pares qui ordinariam +jurisdictionem habent recusari non possunt; (the peers who have +ordinary jurisdiction cannot be rejected;) "but those suitors who +are judges of the court, could not be challenged; and the reason +is, that there are several qualifications required by the writ, +viz., that they be liberos et legales homines de vincineto (free +and legal men of the neighborhood) of the place laid in the +declaration," &c;., &c;. Ditto, p.93. + +"Ad questionem juris non respondent Juratores." (To the question +of law the jurors do not answer.) "The Annotist says, that this +is indeed a maxim in the Civil-Law Jurisprudence, but it does not +bind an English jury, for by the common law of theland the jury +are the judges as well of the matter of law, as of the fact, with +this difference only, that the [a Saxon word] or judge on the +bench is to give them no assistance in determining the matter of +fact, but if they have any doubt among themselves relating to +matter of law, they may then request him to explain it to them, +which when he hath done, and they are thus become well +informed, they, and they only, become competent judges of the +matter of law. And this is the province of the judge on the bench, +namely, to show, or teach the law, but not to take upon him the +trial of the delinquent, either in matter of fact or in matter of law." +(Here various Saxon laws are quoted.) "In neither of these +fundamental laws is there the least word, hint, or idea, that the +earl or alderman (that is to say, the Prepositus (presiding +officer) of the court, which is tantamount to the judge on the +bench) is to take upon him to judge the delinquent in any sense +whatever, the sole purport of his office is to teach the secular +or worldly law." Ditto, p. 57, note. + +"The administration of justice was carefully provided for; it was +not the caprice of their lord, but the sentence of their peers, +that they obeyed. Each was the judge of his equals, and each by +his equals was judged." Introd. to Gilbert on Tenures, p. 12. + +Hallam says: + +"A respectable class of free socagers, having, in general, full +rights of alienating their lands, and holding them probably at +a small certain rent from the lord of the manor, frequently +occur in Domes-day Book. * * They undoubtedly were suitors +to the court-baron of the lord, to whose soc, or right of +justice, they belonged. They where consequently judges in civil +causes, determined before the manorial tribunal." 2 Middle +Ages, 481. + +Stephens adopts as correct the following quotations from Blackstone: +"The Court-Baron is a court incident to every manor in the kingdom, +to be holden by the steward within the said manor." * * + +It "is a court of common law, and it is the court before the +freeholders who owe suit and service to the manor," (are bound to +serve as jurors in the courts of the manor,) "the steward being +rather the registrar than the judge. * * The freeholders' court +was composed of the lord's tenants, who were the pares(equals) of +each other, and were bound by their feudal tenure to assist their +lord in the dispensation of domestic justice. This was formerly +held every three weeks; and its most important business was to +etermine, by writ of right, all controversies relating to the right +of lands within the manor." 3 Stephens' Commentaries, 392 3. +3 Blackstone, 32-33. + +"A Hundred Court is only a larger court-baron, being held for all +the inhabitants of a particular hundred, instead of a manor. The +free suitors ( jurors) are here also the judges, and the steward +the register." 3 Stephens, 394. 3 Blackstone, 33. + +"The County Court is a court incident to the jurisdiction of the +sheriff. * * The freeholders of the county are the real judges in +this court, and the sheriff is the ministerial officer." 3 +Stephens, 395 6. 3 Blackstone, 35-6. + +Blackstone describes these courts, as courts "wherein injuries +were redressed in an easy and expeditious manner, by the suffrage +of neighbors and friends." 3 Blackstone, 30. + +"When we read of a certain number of freemen chosen by the +parties to decide in a dispute all bound by oath to vote in +foro conscientia and that their decision, not the will of the +judge presiding, ended the suit, we at once perceive that a great +improvement has been made in the old form of compurgation an +improvement which impartial observation can have no hesitation +to pronounce as identical in its main features with the trial by +jury." Dunham's Middle Ages, Sec. 2, B. 2, Ch. 1. 57 Lardner's +Cab. Cyc., 60. + +"The bishop and the earl or, in his absence, the gerefa, +(sheriff,) and sometimes both the earl and the gerefa, presided +at the schyre-mote (county court); the gerefa (sheriff) usually +alone presided at the mote (meeting or court) of the hundred. In +the cities and towns which were not within any peculiar +jurisdiction, there was held, at regular stated intervals, a +burgh mote, (borough court,) for the administration of justice, +at which a gerefa, or a magistrate appointed by the king, +presided." Spence's Origin of the Laws and Political +Institutions of Modern Europe, p. 444. + +"The right of the plaintiff and defendant, and of the prosecutor +and criminal, to challenge the judices, (judges.) or assessors, +[17] appointed to try the cause in civil matters, and to decide +upon the guilt or innocence of the accused in criminal matters, +is recognized in the treatise called the Laws of Henry the First; +but I cannot discover, from the Anglo-Saxon laws or histories, +that before the Conquest the parties had any general right of +challege; indeed, had such right existed, the injunctions to all +persons standing in the situation of judges (jurors) to do right +according to their conscience, would scarcely have been so +frequently and anxiously repeated." Spence, 456. + +Hale says: + +"The administration of the common justice of the kingdom seems +to be wholly dispensed in the county courts, hundred courts, and +courts-baron; except some of the greater crimes reformed by the +laws of King Henry I., and that part thereof which was sometimes +taken up by the Justitiarius Angliae. + +This doubtless bred great inconvenience, uncertainty, and variety +in the laws, viz.: + +"First, by the ignorance of the judges, which were the +freeholders of the county.* * + +"Thirdly, a third inconvenience was, that all the business of any +moment was carried by parties and factions. For the freeholders +being generally the judges, and conversing one among another, and +being as it were the chief judges, not only of the fact, but of +the law; every man that had a suit there, sped according as he +could make parties." 1 Hale's History of the Common Law, p. +246. + +"In all these tribunals," (county court, hundred court, &c;..) +"the judges were the free tenants, owing suit to the court, and +afterwards called its peers." 1 Lingard's History of England, +488. + +Henry calls the twelve jurors "assessors," and says: +"These assessors, who were in reality judges, took a solemn oath, +that they would faithfully discharge the duties of their office, +and not suffer an innocent man to be condemned, nor any guilty +person to be acquitted." 3 Henry's History of Great Britain, +346. + +Tyrre11 says: + +"Alfred cantoned his kingdom, first into Trihings and Lathes, as +they are still called in Kent and other places, consisting of +three or four Hundreds; in which, the freeholders being judges, +such causes were brought as could not be determined in the +Hundred court." Tyrrell's Introduction to the History of +England, p. 80. + +Of the Hundred Court he says: + +"In this court anciently, one of the principal inhabitants, +called the alderman, together with the barons of the Hundred [18] + id est the freeholders was judge." Ditto, p. 80. + +Also he says: + +"By a law of Edward the Elder, 'Every sheriff shall convene the +people once a month, and do equal right to all, putting an end to +controversies at times appointed.'" Ditto, p. 86. + +A statute, emphatically termed the ' Grand Assize,' enabled the +defendant, if he thought proper, to abide by the testimony of the +twelve good and lawful knights, chosen by four others of the +vicinage, and whose oaths gave a final decision to the contested +claim,." 1 Palgrave's Rise and Progress of the English +Commonwealth, 261. + +"From the moment when the crown became accustomed to the +'Inquest,' a restraint was imposed upon every branch of the +prerogative. The king could never be informed of his rights, but +through the medium of the people. Every 'extent' by which he +claimed the profits and advantages resulting from the casualties +of tenure, every process by which he repressed the usurpations of +the baronage, depended upon the 'good men and true' who were +impaneled to 'pass' between the subject and the sovereign; and +the thunder of the Exchequer at Westminster might be silenced by +the honesty, the firmness, or the obstinacy, of one sturdy knight +or yeoman in the distant shire. + +Taxation was controlled in the same manner by the voice of those +who were most liable to oppression. * * A jury was impaneled to +adjudge the proportion due to the sovereign; and this course was +not essentially varied, even after the right of granting aids to +the crown was fully acknowledged to be vested in the parliament +of the realm. The people taxed themselves; and the collection of +the grants was checked and controlled, and, perhaps, in many +instances evaded, by these virtual representatives of the +community. + +The principle of the jury was, therefore, not confined to its +mere application as a mode of trying contested facts, whether in +civil or criminal cases; and, both in its form and in its +consequences, it had a very material influence upon the general +constitution of the realm. * *The main-spring of the machinery of +remedial justice existed in the franchise of the lower and lowest +orders of the political hierarchy. Without the suffrage of the +yeoman, the burgess, and the churl, the sovereign could not +exercise the most important and most essential function of +royalty; from them he received the power of life and death; he +could not wield the sword of justice until the humblest of his +subjects placed the weapon in his hand." 1 Palgrave's Rise and +Progress of the English Constitution, 274 7. + +Coke says, + +"The court of the county is no court of record, [19] +and the suitors are the judges thereof." 4 Inst.) 266. + +Also, "The court of the Hundred is no court of record, and the +suitors be thereof judges." 4 Inst., 267. + + +Also, "The court-baron is a court incident to every manor, and is +not of record, and the suitors be thereof judges." 4 Inst., +268. + +Also, "The court of ancient demesne is in the nature of a +court-baron, wherein the suitors are judges, and is no court of +record." 4 Inst., 269. + +Millar says, + +"Some authors have thought that jurymen were originally +compurgators, called by a defendant to swear that they +believed him innocent of the facts with which he was charged. . . +But . . . compurgators were merely witnesses; jurymen were, in +reality, judges. The former were called to confirm the oath of +the party by swearing, according to their belief, that he had +told the truth, (in his oath of purgation;) the latter were +appointed to try, by witnesses, and by all other means of proof, +whether he was innocent or guilty. Juries were accustomed to +ascertain the truth of facts, by the defendant's oath of +purgation, together with that of his compurgators. . . Both of +them (jurymen and compurgators) were obliged to swear that they +would tell truth. + +According to the simple idea of our forefathers, guilt or innocence +was regarded as a mere matter of fact; and it was thought that no +man, who knew the real circumstances of a case, could be at a +loss to determine whether the culprit ought to be condemned or + acquitted." 1 Millar's Hist. View of Eng. Gov., ch. 12, p. 332 - 4. + +Also, "The same form of procedure, which took place in the +administration of justice among the vassals of a barony, was +gradually extended to the courts eld in the trading towns." +Same, p. 335. + +Also, "The same regulation, concerning the distribution of +justice by the intervention of juries, . . .were introduced into +the baron courts of the king, as into those of the nobility, or +such of his subjects as retained their allodial property." +Same, p. 337. + +Also, "This tribunal" (the aula regis, or king's court, afterwards +divided into the courts of King's Bench, Common Pleas, +and Exchequer) "was properly the ordinary baron-court of the +king; and, being in the same circumstances with the baron courts +of the nobility, it was under the same necessity of trying causes +by the intervention of a jury." Same, vol. 2, p. 292. + +Speaking of the times of Edward the First, (1272 to 1307,) Millar +says: + +"What is called the petty jury was therefore introduced into +these tribunals, (the King's Bench, the Common Pleas, and the +Exhequer,) as well as into their anxiliary courts employed to +distribute justice in the circuits; and was thus rendered +essentially necessary in determining causes of every sort, +whether civil, criminal, or fiscal." Same, vol. 2, p. 293-4. + +Also, "That this form of trial (by jury) obtained universally in +all the feudal governments, as well as in that of Eng-1and, there +can be no reason to doubt. In France, in Germany, and in other +European countries, where we have any accounts of the +constitution and procedure of the feudal courts, it appears that +lawsuits of every sort concerning the freemen or vassals of a +barony, were determined by the pares curiae (peers of the court;) +and that the judge took little more upon him than to regulate the +method of proceeding, or to declare the verdict of the jury." +Same, vol. 1, ch. 12, p. 329. + +Also, "Among the Gothic nations of modern Europe, the custom of +deciding lawsuits by a jury seems to have prevailed universally; +first in the allodial courts of the county, or of the hundred, +and afterwards in the baron-courts of every feudal superior." +Same, vol. 2, p. 296. + +Palgrave says that in Germany "The Graff (gerefa, sheriff) placed +himself in the seat of judgment, and gave the charge to the +assembled free Echevins, warning them to pronounce judgment +according to right and justice." 2 Palgrave, 147. + +Also, that, in Germany, "The Echevins were composed of the +villanage, somewhat obscured in their functions by the learning +of the grave civilian who was associated to them, and somewhat +limited by the encroachments of modern feudality; but they were +still substantially the judges of the court." Same, 148. + +Palgrave also says, "Scotland, in like manner, had the laws of +Burlaw, or Birlaw, which were made and determined by the +neighbors, elected by common consent, in the Burlaw or Birlaw +courts, wherein knowledge was taken of complaints between +neighbor and neighbor, which men, so chosen, were judges and +arbitrators, and called Birlaw men." 1 Palgrave's Rise, &c;., +p. 80. + +But, in order to understand the common law trial by jury, as it +existed prior to Magna Carta, and as it, was guaranteed. by that +instrument, it is perhaps indispensable to understand more fully +the nature of the courts in which juries sat, and the extent of +the powers exercised by juries in those courts. I therefore give +in a note extended extracts, on these points, from Stuart on the +Constitution of England, and from Blackstone's Commentaries. +[20] + +That all these courts were mere courts of conscience, in which +the juries were sole judges, administering justice according to +their own ideas of it, is not only shown by the extracts already +given, but is explicitly acknowledged in the following one, in +which the modern "courts of conscience" are compared with the +ancient hundred and county courts, and the preference given to +the latter, on the ground that the duties of the jurors in the +one case, and of the commissioners in the other, are the same, +and that the consciences of a jury are a safer and purer +tribunal than the consciences of individuals specially appointed, +and holding permanent offices. + +"But there is one species of courts constituted by act of +Parliament, in the city of London, and other trading and populous +districts, which, in their proceedings, so vary from the course +of the common law, that they deserve a more particular +consideration. I mean the court of requests, or courts of +conscience, for the recovery of small debts. The first of these +was established in London so early as the reign of Henry VIII., +by an act of their common council; which, however, was certainly +insufficient for that purpose, and illegal, till confirmed by +statute 3 Jac. I., ch. 15, which has since been explained and +amended by statute 14 Geo. II., ch. 10. The constitution is this: +two aldermen and four commoners sit twice a week to hear all +causes of debt not exceeding the value of forty shillings; which +they examine in a summary way, by the oath of the parties or +other witnesses, and make such order therein as is consonant to +equity and good conscience.i * * * Divers trading towns and +other districts have obtained acts of Parliament, for +establishing in them courts of conscience upon nearly the same +plan as that in the city of London. + +"The anxious desire that has been shown to obtain these several +acts, proves clearly that the nation, ingeneral, is truly +sensible of the great inconvenience arising from the disuse of +the ancient county and hundred courts, wherein causes of this +small value were always formerly decided with very little trouble +and expense to the parties. But it is to be feared that the +general remedy, which of late hath been principally applied to +this inconvenience, (the erecting these new jurisdictions,) may +itself be attended in time with very ill consequences; as the +method of proceeding therein is entirely in derogation of the +common law; and their large discretionary powers create a petty +tyranny in a set of standing commissioners; and as the disuse of +the trial by jury may tend to estrange the minds of the people +from that valuable prerogative of Englishmen, which has already +been more than sufficiently excluded in many instances. How +much rather is it to be wished that the proceedings in the county +and hundred courts could be again revived, without burdening +the freeholders with too frequent and tedious attendances; and +at the same time removing the delays that have insensibly crept +into their proceedings, and the power that either party has of +transferring at pleasure their suits to the courts at Westminster! +And we may, with satisfaction, observe, that this experiment has +been actually tried, and has succeeded in the populous county of +Middlesex, which might serve as an example for others. For by +statute 23 Geo. II., ch. 33, it is enacted: + +1. That a special county court shall be held at least once in a +month, in every hundred of the county of Middlesex, by the county +clerk. + +2. That twelve freeholders of that hundred, qualified to serve on +juries, and struck by the sheriff, shall be summoned to appear at +such court by rotation; so as none shall be summoned oftener than +once a year. + +3. That in all causes not exceeding the value of forty shillings, +the county clerk and twelve suitors (jurors) shll proceed in a +summary way, examining the parties and witnesses on oath, +without the formal process anciently used; and shall make +such order therein as they shall judge agreeable to conscience." +3 Blackstone, 81 83. + +What are these but courts of conscience? And yet Blackstone tells +us they are a revival of the ancient hundred and county courts. +And what does this fact prove, but that the ancient common law +courts, in which juries sat, were mere courts of conscience? +It is perfectly evident that in all these courts the jurors were +the judges, and determined all questions of law for themselves; +because the only alternative to that supposition is, that the +jurors took their law from sheriffs, bailiffs, and stewards, of +which there is not the least evidence in history, nor the least +probability in reason. It is evident, also, that they judged +independently of the laws of the king, for the reasons before +given, viz., that the authority of the king was held in very, +little esteem; and, secondly, that the laws of the king (not +being printed, and the people being unable to read them if they +had been printed) must have been in a great measure unknown to +them, and could have been received by them only on the authority +of the sheriff, bailiff; or steward. If laws were to be received +by them on the authority of these officers, the latter would have +imposed such laws upon the people as they pleased. + +These courts, that have now been described, were continued in +full power long after Magna Carta, no alteration being made in +them by that instrument, nor in the mode of administering justice +in them. + +There is no evidence whatever, so far as I am aware, that the +juries had any less power in the courts held by the king's +justices, than in those held by sheriffs, bailiff, and stewards; +and there is no probability whatever that they had. All the +difference between the former courts and the latter undoubtedly +was, that, in the former, the juries had the benefit of the +advice and assistance of the justices, which would, of course, be +considered valuable in difficult cases, on account of the +justices being regarded as more learned, not only in the laws of +the king, but also in the common law, or "law of the land." + +The conclusion, therefore, I think, inevitably must be, that +neither the laws of the king, nor the instructions of his +justices, had any authority over jurors beyond what the latter +saw fit to accord to them. And this view is confirmed by this +remark of Hallam, the truth of which all will acknowledge: + +"The rules of legal decision, among a rude people, are always +very simple; not serving much to guide, far less to control the +feelings of natural equity." 2 Middle Ages, ch. 8, part 2, p. 465. + +It is evident that it was in this way, by the free and concurrent +judgments of juries, approving and enforcing certain laws and +rules of conduct, corresponding to their notions of right and +justice, that the laws and customs, which, for the most part, +made up the common law, and were called, at that day, "the +good laws, and good customs," and "the law of the land," were +established. How otherwise could they ever have become +established, as Blackstone says they were, "by long and +immemorial usage, and by their universal reception throughout +the kingdom,"- 1 Blackstone,63-67., when, as the Mirror says, +"justice was so done, that every one so judged his neighbor, by +such judgment as a man could not elsewhere receive in the like +cases, until such times as the customs of the realm, were put in +writing and certainly published?" + + +The fact that, in that dark age, so many of the principles of +natural equity, as those then embraced in the Common Law, +should have been so uniformly recognized and enforced by juries, +as to have become established by general consent as "the law +of the land;" and the further fact that this "law of the land" was +held so sacred that even the king could not lawfully infringe or +alter it, but was required to swear to maintain it, are beautiful +and impressive illustrations of the troth that men's minds, even +in the comparative infancy of other knowledge, have clear and +coincident ideas of the elementary principles, and the paramount +obligation, of justice. The same facts also prove that the common +mind, and the general, or, perhaps, rather, the universal +conscience, as developed in the untrammeled judgments of juries, +may be safely relied upon for the preservation of individual rights +in civil society; and that there is no necessity or excuse for that +deluge of arbitrary legislation, with which the present age is +overwhelmed, under the pretext that unless laws be made, the +law will not be known; a pretext, by the way, almost universally +used for overturning, instead of establishing, the principles of +justice. + +SECTION III. The Oaths of Jurors. + +The oaths that have been administered to jurors, in England, and +which are their legal guide to their duty, all (so far as I have +ascertained them) corroborate the idea that the jurors are to try +all cases on their intrinsic merits, independently of any laws +that they deem unjust or oppressive. It is probable that an oath +was never administered to a jury in England, either in a civil or +criminal case, to try it according to law. + +The earliest oath that I have found prescribed by law to be +administered to jurors is in the laws of Ethelred, (about the +year 1015,) which require that the jurors "shall swear, with their +hands upon a holy thing, that they will condemn no man that is +innocent, nor acquit any that is guilty." 4 Blackstone, 302. + 2 Turner's History of the Anglo-Saxons, 155 Wilkins' Laws of the +Anglo-Saxons, 117. Spelman's Glossary, word Jurata. + +Blackstone assumes that this was the oath of the grand jury +4 Blackstone, 302); but there was but one jury at the time this +oath was ordained. The institution of two juries, grand and petit, +took place after the Norman Conquest. + +Hume, speaking of the administration of justice in the time of +Alfred, says that, in every hundred, + +"Twelve freeholders were chosen, who, having sworn, +together with the hundreder, or presiding magistrate of that +division, to administer impartial justice, proceeded to +the examination of that cause which was submitted to their +jurisdiction." Hume, ch. 2. + +By a law of Henry II., in 1164, it was directed that the sheriff +"faciet jurare duodecim legales homines de vicineto seu de +villa, quod inde veritatem secundum conscientiam suam +manifestabunt," (shall make twelve, legal men from the +neighborhood to swear that they will make known the truth +according to their conscience.) Crabbe's History of the +English Law, 119. 1 Reeves, 87. Wilkins, 321 323. + +Glanville, who wrote within the half century previous to +Magna Carta, says; + +"Each of the knights summoned far this purpose (as jurors) +ought to swear that he will neither utter that which is false, nor +knowingly conceal the truth." Beames' Glanville, 65. + +Reeve calls the trial by jury "the trial by twelve men sworn +to speak the truth." 1 Reeve's History of the English Law, 87. + +Henry says that the jurors "took a solemn oath, that they +would faithfully discharge the duties of their office, and not +suffer an innocent man to be condemned, nor any guilty person +to be acquitted." 3 Henry's Hist. of Great Britain, 346. + +The Mirror of Justices, (written within a century after +Magna Carta,) in the chapter on the abuses of the Common +law, says:"It is abuse to use the words, to their knowledge, +in their oaths, to make the jurors speak upon thoughts, since +the chief words of their oaths be that they speak the truth." p. +249. + +Smith, writing in the time of Elizabeth, says that, in civil suits, +the jury "be sworn to declare the truth of that issue according to +the evidence, and their conscience." Smith's Commonwealth +of England. edition of 1621, p. 73. + +In criminal trials, he says: + +"The clerk giveth the juror an oath to go uprightly betwixt the +prince and the prisoner." Ditto, p. 90. [24] + +Hale says: + +"Then twelve, and no less, of such as are indifferent and are +returned upon the principal panel, or the tales, are sworn to try +the same according to the evidence." 2 Hale's History of the +Common Law, 141. + +It appears from Blackstone that, even at this day, neither in +civil nor criminal cases, are jurors in England sworn to try causes +according to law. He says tht in civil suits the jury are "Sworn well +and truly to try the issue between the parties; and a true verdict to +give according to the evidence." 3 Blackstone, 365. + +"The issue" to be tried is whether A owes B anything and if so, +how much? or whether A has in his possession anything that +belongs to B; or whether A has wronged B, and ought to make +compensation; and if so, how much? + +No statute passed by a legislature, simply as a legislature, can alter +either of these "issues" in hardly any conceivable case, perhaps in +none. No unjust law could ever alter them in any. They are all +mere questions of natural justice, which legislatures have no power to +alter, and with which they have no right to interfere, further than to +provide for having them settled by the most competent and impartial +tribunal that it is practicable to have, and then for having all just decisions +enforced. And any tribunal, whether judge or jury, that attempts to +try these issues, has no more moral right to be swerved from the +line of justice, by the will of a legislature, than by the will of any other +body of men whatever. And this oath does not require or permit a jury to +be so swerved. + +In criminal cases, Blackstone says the oath of the jury in England +is: + +"Well and truly to try, and true deliverance make, between our +sovereign lord, the king, and the prisoner whom they have in +charge, and a true verdict to give according to the evidence." 4 +Blackstone, 355. + +"The issue" to be tried, in a criminal case, is "guilty," or "not +guilty." The laws passed by a legislature can rarely, if ever, have anything +to do with this issue. "Guilt" is an intrinsic quality of actions, and can +neither be created, destroyed, nor changed by legislation. And no tribunal +that attempts to try this issue can have any moral right to declare a man +guilty, for an act that is intrinsically innocent, at the bidding of a +legislature, any more than at the bidding of anybody else. And this +oath does not require or permit a jury to do so. + +The words, "according to the evidence," have doubtless been +introduced into the above oaths in modern times. They are unquestionably in +violation of the Common Law, and of Magna Carta, if by them be +meant such evidence only as the government sees fit ft allow to go to the +jury. If the government can dictate the evidence, and require the jury to +decide according to that evidence, it necessarily dictates the conclusion to +which they must arrive. In that case the trial is really a trial by the +government, and not by the jury. The jury cannot try an issue, unless they +determine what evidence shall be admitted. The ancient oaths, it will be +observed, say nothing about "according to the evidence." They obviously +take it for granted that the jury try the whole case; and of course that they +decide what evidence shall be admitted. It would be intrinsically an +immoral and criminal act for a jury to declare a man guilty, or to declare +that one man owed. money to another, unless all the evidence were +admitted, which they thought ought to be admitted, for ascertaining the truth. +[25] + +Grand Jury. If jurors are bound to enforce all laws passed by the +legislature, it is a very remarkable fact than the oath of grand juries does not +require them to be governed by the laws in finding indictments. There +have been various forms of oath administered to grand jurors; but by none of +them that I recollect ever to have seen, except those of the States of +Connecticut and Vermont, are they sworn to present men according to law. + +The English form, as given in the essay on Grand Juries, written +near two hundred years ago, and supposed to have been written by Lord +Somers, is as follows: + +"You shall diligently inquire, and true presentment make, of all +such articles, matters, and things, as shall be given you in charge, +and of all other matters and things as shall come to your knowledge +touching this present service. The king's council, your fellows, and your own, +you shall keep secret. You shall present no person for hatred or malice; +neither shall you leave any one unpresented for favor, or affection, +for love or gain, or any hopes thereof; but in all things you shall present the +truth, the whole truth, and nothing but the truth, to the best of your +knowledge. So help you God." + +This form of oath is doubtless quite ancient, for the essay says "our +ancestors appointed" it. See Essay, p. 33 34. + +On the obligations of this oath, the essay says:"If it be asked how, +or in what manner, the (grand) juries shall inquire, the answer +is ready, according to the best of their understandings. They only, +not the judges, are sworn to search diligently to find out all treasons, +&c;., within their charge, and they must and ought to use their own +discretion in the way and manner of their inquiry. No directions +can legally be imposed upon there by any court or judges; an honest +jury will thankfully accept good advice from judges, as their assistants; +but they are bound by their oaths to present the truth, the whole truth, +and nothing but the truth, to the best of their own, not the judge's, +knowledge. Neither can they, without breach of that oath, resign +their consciences, or blindly submit to the dictates of others; and +therefore ought to receive or reject such advices, as they judge them +good or bad. * *Nothing can be more plain and express than the +words of the oath are to this purpose. The jurors need not search the +law books, nor tumble over heaps of old records, for the explanation +of them. Our greatest lawyers may from hence learn more certainly +our ancient law in this case, than from all the books in their studies. +The language wherein the oath is penned is known and understood by +every man, and the words in it have the same signification as they have +wheresoever else they are used. The judges, without assuming to +themselves a legislative power, cannot put a new sense upon them, +other than according to their genuine, common meaning. They cannot +magisterially impose their opinions upon the jury, and make them +forsake the direct words of their oath, to pursue their glosses. The +grand inquest are bound to observe alike strictly every part of their +oath, and to use all just and proper ways which may enable them to +perform it; otherwise it were to say, that after men had sworn to +inquire diligently after the truth, according to the best of their +knowledge, they were bound to forsake all the natural and proper +means which their understandings suggest for the discovery of it, +if it be commanded by the judges." Lord Somers' Essay on Grand +Juries, p. 88. + +What is here said so plainly and forcibly of the oath and obligations of +grand juries, is equally applicable to the oath and obligations of +petit juries. In both cases the simple oaths of the jurors, and not the +instructions of the judges, nor the statutes of kings nor legislatures, +are their legal guides to their duties. [26] + +SECTION IV. The Right of Juries to fix the Sentence. + +The nature of the common law courts existing prior to Magna +Carta, such as the county courts, the hundred courts, the court-leet, +and the court-baron, all prove, what has already been proved from +Magna Carta, that, in jury trials, the juries fixed the sentence; +because, in those courts, there was no one but the jury who could fix it, +unless it were the sheriff, bailiff, or steward; and no one will pretend that +it was fixed by them. The juries unquestionably gave the "judgment" +in both civil and criminal cases. + +That the juries were to fix the sentence under Magna Carta, is also +shown by statutes subsequent to Magna Carta. A statute passed +fifty-one years after Magna Carta, says that a baker, for default in +the weight of his bread, "debeat amerciari vel subire judicium pilloae," + +that is, "ought to be amerced, or suffer the sentence of the pillory." +And that a brewer, for "selling ale, contrary to the assize," "debeat +amerciari, vel pati judicium tumbrelli;" that is, "ought to be +amerced, or suffer judgment of the tumbrel." 51 Henry III., st. 6. (1266.) + +If the king (the legislative power) had had authority to fix the +punishments of these offences imperatively, he would naturally +have said these offenders shall be amerced, and shall suffer +judgment of the pillory and tumbrel, instead of thus simply +expressing the opinion that they ought to be punished in that manner. + +The statute of Westminster, passed sixty years after Magna Carta, +provides that,"No city, borough, nor town, nor any man, be amerced, +without reasonable cause, and according to the quantity of the trespass; +that is to say, every freeman saving his freehold, a merchant saving +his merchandise, a villein his waynage, and that by his or their +peers." 3 Edward I., ch. 6. (1275.) + +The same statute (ch. 18) provides further, that,"Forasmuch as the +common fine and amercement of the whole county in Eyre of the +justices for false judgments, or for other trespass, is unjustly +assessed by sheriff's and baretors in the shires, so that the sum is many +times increased, and the parcels otherwise assessed than they ought to +be, to the damage of the people, which be many times paid to the sheriffs +and baretors, which do not acquit the payers; it is provided, and the +king wills, that from henceforth such sums shall be assessed before +the justices in Eyre, afore their departure, by the oath of knights +and other honest men, upon all such as ought to pay; and the justices +shall cause the parcels to be put into their estreats, which shall be +delivered up unto the exchequer, and not the whole sum." St. 3 Edward I., +ch. 18, (1275.) [27] + +The following statute, passed in 1341, one hundred and twenty-five +years after Magna Carta, providing for the trial of peers of the realm, +and the king's ministers, contains a recognition of the principle of +Magna Carta, that the jury are to fix the sentence. + +"Whereas before this time the peers of the land have been arrested +and imprisoned, and their temporalities, lands, and teneiments, +goods and cattels, asseized in the king's hands, and some put to +death without judgment of their peers: It is accorded and assented, +that no peer of the land, officer, nor other, because of his office, +nor of things touching his office, nor by other cause, shall be +brought in judgment to lose his temporalities, lands, tenements, +goods and cattels, nor to be arrested, nor imprisoned, outlawed, +exiled, nor forejudged, nor put to answer, nor be judged, but by +award (sentence) of the said peers in Parliament." 15 Edward III., +st. 1, sec. 2. + +Section 4, of the same statute provides, + +"That in every Parliament, at the third day of every Parliament. +the king shall take in his hands the offices of all the ministers +aforesaid," (that is, "the chancellor, treasurer, barons, and +chancellor of the exchequer, the justices of the one bench and of +the other, justices assigned in the country, steward and chamberlain +of the king's house, keeper of the privy seal, treasurer of the +wardrobe, controllers, and they that be chief deputed to abide nigh +the king's son, Duke of Cornwall,") "and so they shall abide four +or five days; except the offices of justices of the one place or the +other, justices assigned, barons of exchequer; so always that they +and all other ministers be put to answer to every complaint; and if +default be found in any of the said ministers, by complaint or other +manner, and of that attainted in Parliament, he shall be punished +by judgment of the peers, and put out of his office, and another +convenient put in his place. And upon the same our said sovereign +lord the king shall do (cause) to be pronounced and made execution +without delay, according to the judgment (sentence) of the said peers +in the Parliament." + +Here is an admission that the peers were to fix the sentence, or +judgment, and the king promises to make execution "according to" +that sentence. + +And this appears to be the law, under which peers of the realm +and the great officers of the crown were tried and sentenced, for +four hundred years after its passage, and, for aught I know, until this +day. + +The first case given in Hargrave's collection of English State +Trials, is that of Alexander Nevil, Archbishop of York, Robert +Vere Duke of Ireland; Michael de la Pole, Earl of Suffolk, and +Robert Tresilian, Lord Chief Justice of England, with several +others, convicted of treason, before "the Lords of Parliament," in +1388. The sentences in these cases were adjudged by the "Lords +of Parliament," in the following terms, as they are reported. + +"Wherefore the said Lords of Parliament, there present, as judges +in Parliament, in this case, by assent of the king, pronounced their +sentence, and did adjudge the said archbishop, duke, and earl, with +Robert Tresilian, so appealed, as aforesaid, to be guilty, and +convicted of treason, and to be drawn and hanged, as traitors and +enemies to the king and kingdom; and that their heirs should be +disinherited forever, and their lands and tenements, goods and +chattels, forfeited to the king, and that the temporalities of the +Archbishop of York should be taken into the king's hands." + +Also, in the same case, Sir John Holt, Sir William Burgh, Sir John +Cary, Sir Roger Fulthorpe, and John Locton, "were by the lords +temporal, by the assent of the king, adjudged to be drawn and +hanged, as traitors, their heirs disinherited, and their lands and +tenements, goods and chattels, to be forfeited to the king." + +Also, in the same case, John Blake, "of council for the king," and +Thomas Uske, under sheriff of Middlesex, having been convicted +of treason, "The lords awarded, by assent of the king, that they +should both be hanged and drawn as traitors, as open enemies to +the king and kingdom, and their heirs disinherited forever, and +their lands and tenements, goods and chattels, forfeited to the king." + +Also, "Simon Burleigh, the king's chamberlain," being convicted +of treason, "by joint consent of the king and the lords, sentence +was pronounced against the said Simon Burleigh, that he should be +drawn from the town to Tyburn, and there be hanged till he be +dead, and then have his head struck from his body." + +Also, "John Beauchamp, steward of the household to the king, +James Beroverse, and John Salisbury; knights, gentlemen of the +privy chamber, were in like manner condemned." 1 Hargrave's +State Trials, first case. + +Here the sentences were all fixed by the peers, with the assent of +the king. But that the king should be consulted, and his assent +obtained to the sentence pronounced by the peers, does not imply +any deficiency of power on their part to fix the sentence +independently of the king. There are obvious reasons why they +might choose to consult the king, and obtain his approbation of the +sentence they were about to impose, without supposing any legal +necessity for their so doing. + +So far as we can gather from the reports of state trials, peers of the +realm were usually sentenced by those who tried them, with the +assent of the king. But in some instances no mention is made of +the assent of the king, as in the case of "Lionel, Earl of Middlesex, +Lord High Treasurer of England," in 1624, (four hundred years +after Magna Carta,) where the sentence was as follows: + +"This High Court of Parliament doth adjudge, that Lionel, Earl of +Middlesex, now Lord Treasurer of England, shall lose all his +offices which he holds in this kingdom, and shall, hereafter, be +made incapable of any office, place, or employment in the state +and commonwealth. That he shall be imprisoned in the tower of +London, during the king's pleasure. That he shall pay unto our +sovereign lord the king a fine of 50,000 pounds. That he shall +never sit in Parliament any more, and that he shall never come +within the verge of the court." 2 Howell's Stale Trials, 1250. + +Here was a peer of the realm, and a minister of the king, of the +highest grade; and if it were ever necessary to obtain the assent of +the king to sentences pronounced by the peers, it would unquestionably +have been obtained in this instance, and his assent would have appeared +in the sentence. + +Lord Bacon was sentenced by the House of Lords, (l620,) no +mention being made of the assent of the king. The sentence is in +these words: + +"And, therefore, this High Court doth adjudge, That the Lord +Viscount St. Albans, Lord Chancellor of England, shall undergo +fine and ransom of 40,000 pounds. That he shall be imprisoned +in the tower during the king's pleasure. That he shall forever be +incapable of any office, place, or employment in the state or +commonwealth. That he shall never sit in Parliament, nor come +within the verge of the court." + +And when it was demanded of him, before sentence, whether it +were his hand that was subscribed to his confession, and whether +he would stand to it; he made the following answer, which implies +that the lords were the ones to determine his sentence. "My lords, +it is my act, my hand, my heart. I beseech your lordships to be +merciful to a broken reed." 1 Hargrave's State Trials, 886 7. + +The sentence against Charles the First, (1648,) after reciting +the grounds of his condemnation, concludes in this form: + +"For all which treasons and crimes, this court doth adjudge, +that he, the said Charles Stuart, as a tyrant, traitor, murderer, and +public enemy to the good people of this nation, shall be put +to death by the severing his head from his body." + +The report then adds: + +"This sentence being read, the president (of the court) spake as +followeth: 'This sentence now read and published, is the act, +sentence, judgment and resolution of the whole court.' +1 Hargrave's State Trials, 1037. + +Unless it had been the received "law of the land" that those who +tried a man should fix his sentence, it would have required an act +of Parliament to fix the sentence of Charles, and his sentence +would have been declared to be "the sentence of the law," +instead of "the act, sentence, judgment, and resolution of +the court." + +But the report of the proceedings in "the trial of Thomas, Earl +of Macclesfield, Lord High Chancellor of Great Britain, +before the House of Lords, for high crimes and misdemeanors +in the execution of his office," in 1725, is so full on this point, +and shows so clearly that it rested wholly with the lords to +fix the sentence, and that the assent of the king was wholly +unnecessary, that I give the report somewhat at length. + +After being found guilty, the earl addressed the lords, for +a mitigation of sentence, as follows: + +"I am now to expect your lordships' judgment; and I hope +that you will be pleased to consider that I have suffered +no small matter already in the trial, in the expense I have +been at, the fatigue, and what I have suffered otherways. +* * I have paid back 10,800 pounds of the money already; I have +lost my office; I have undergone the censure of both houses +of Parliament, which is in itself a severe punishment,' "&c;., &c;. + +On being interrupted, he proceeded: "My lords, I submit +whether this be not proper in mitigation of your lordships' +sentence; but whether it be or not, I leave myself to your +lordships' justice and mercy; I am sure neither of them will be +wanting, and I entirely submit.' * * * + +"Then the said earl, as also the managers, were directed to +withdraw; and the House (of Lords) ordered Thomas, +Earl of Macclesfield, to be committed to the custody of the +gentleman usher of the black rod; and then proceeded to +the consideration of what judgment," (that is, sentence, +for he had already been found guilty,) "to give upon the +impeachment against the said earl." + +"The next day, the Commons, with their speaker, being +present at the bar of the House (of Lords), * * * the speaker +of the House of Commons said as follows: + +"My Lords, the knights, citizens, and burgesses in +Parliament assembled, in the name of themselves, and of +all the commons of Great Britain, did at this bar impeach +Thomas, Earl of Macclesfield, of high crimes and +misdemeanors, and did exhibit articles of impeachment +against him, and have made good their charge. I do, +therefore, in the name of the knights, citizens, and +burgesses, in Parliament assembled, and of all the commons +of Great Britain, demand judgment (sentence) of your +lordships against Thomas, Earl of Macclesfield, for the +said high crimes and misdemeanors.' + +"Then the Lord Chief Justice King, Speaker of the House +of Lords, said: 'Mr. Speaker, the Lords are now ready +to proceed to judgment in the case by you mentioned.' + +"Thomas, Earl of Macclesfielg, the Lords have +unanimously found you guilty of high crimes and +misdemeanors, charged on you by the impeachment of +the House of Commons, and do now, according to law, +proceed to judgment against you, which I am ordered +to pronounce. Their lordships' judgment is, and this high +court doth adjudge, that you, Thomas, Earl of +Macclesfield, be fined in the sum of thirty thousand +pounds unto our sovereign lord the king; and that you +shall be imprisoned in the tower of London, and there +kept in safe custody, until yon shall pay the said fine.'" +6 Hargrave's State Trials, 762 3 4. + +This case shows that the principle of Magna Carta, that +a man should be sentenced only by his peers, was in force, +and acted upon as law, in England, so lately as 1725, (five +hundred years after Magna Carta,) so far as it applied to a +peer of the realm, a severe punishment," ect., ect. + +But the same principle, on this point, that applies to a peer +of the realm, applies to every freeman. The only +difference between the two is, that the peers of the realm +have had influence enough to preserve their constitutional +rights; while the constitutional rights of the people have been +trampled upon and rendered obsolete by the usurpation and +corruption of the government and the courts. + +SECTION V. The Oaths of Judges + +As further proof that the legislation of the king, whether +enacted with or without the assent and advice of his parliaments, +was of no authority unless it were consistent with the common +law, and unless juries and judges saw fit to enforce it, it may be +mentioned that it is probable that no judge in England was ever +sworn to observe the laws enacted either by the king alone, +or by the king with the advice and assent of parliament. + +The judges were sworn to "do equal law, and execution of right, +to all the king's subjects, rich and poor, without having +regard to any person;" and that they will "deny no man +common right;" [28] but they were not sworn to obey or +execute any statutes of the king, or of the king and parliament. +Indeed, they are virtually sworn not to obey any statutes that +are against "common right," or contrary to "the common law," +or "law of the land;" but to "certify the king thereof" that is, +notify him that his statutes are against the common law; +and then proceed to execute the common law, notwithstanding +such legislation to the contrary. The words of the oath on this point +are these: + +"That ye deny no man common right by (virtue of) the king's +letters, nor none other man's, nor for none other cause; and in +case any letters come to you contrary to the law, (that is, the +common law, as will be seen on reference to the entire oath given +in the note,) that ye do nothing by such letters, but certify the +king thereof, and proceed to execute the law, (that is, the +common law,) notwithstanding the same letters." + +Where it is considered that the king was the sole legislative +power, and that he exercised this power, to a great extent, by +orders in council, and by writs and "letters" addressed +oftentimes to some sheriff, or other person, and that his +commands, when communicated to his justices, or any +other person, "by letters," or writs, under seal, had as much +legal authority as laws promulgated in any other form +whatever, it will be seen that this oath of the justices +absolutely required that they disregard any legislation that +was contrary to "common right," or "the common law," +and notify the king that it was contrary to common right, +or the common law, and then proceed to execute the +common law, notwithstanding such legislation. [29] + +If there could be any doubt that such was the meaning +of this oath, that doubt would be removed by a statute +passed by the king two years afterwards, which fully +explains this oath, as follows: + +"Edward, by the Grace of God, ect., 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 our oath are bound to maintain, is the less +well kept, and the execution of the same disturbed many +times by maintenance and procurement, as well in the +court as in the country; we greatly moved of conscience +in this matter, and for this cause desiring as much for +the pleasure of God, and ease and quietness of our +subjects, as to save our conscience, and for to save +and keep our said oath, by the assent of the great men +and other wise men of our council, we have ordained +these things following: + +"First, we have commanded all our justices, that they +shall from henceforth do equal law and execution of +right to all our subjects, rich and poor, without having +regard to any person, and without omitting to do right +for any letters or commandment which may come to +them from us, or from any other, or by any other cause. +And if that any letters, writs, or commandments come +to the justices, or to other deputed to do law and right +according to the usage of the realm, in disturbance of +the law, or of the execution of the same, or of right to +the parties, the justices and other aforesaid shall +proceed and hold their courts and processes, +where the pleas and matters be depending before +them, as if no such letters, writs, or commandments +were come to them; and they shall certify us and +our council of such commandments which be +contrary to the law, (that is, "the law of the land," +or common law,) as afore is said." [30] And to the +intent that our justices, shall do even right to all +people in the manner aforesaid, without more +favor showing to one than to another, we have +ordained and caused our said justices to be sworn, +that they shall not from henceforth, as long as +they shall be in the office of justice, take fee nor +robe of any man, but of ourself, and that they shall +take no gift nor reward by themselves, nor by other, +privily nor apertly, of any man that hath to do before +them by any way, except meat and drink, and that +of small value: and that they shall give no counsel +to great men or small, in case where we be party, +or which do or may touch us in any point, upon +pain to be at our will, body, lands, and goods, to +do thereof as shall please us, in case they do contrary. +And for this cause we have increased the fees of +the same, our justices, in such manner as it ought +reasonably to suffice them." 20 Edward III., +ch. l. (1346.) + +Other statutes of similar tenor have been enacted +as follows: + +"It is accorded and established, that it shall not +be commanded by the great seal, nor the little seal, +to disturb or delay common right; and though such +commandments do come, the justices shall not +therefore leave (omit) to do right in any point." +St. 2 Edward III., ch. 8. (1328.) + +"That by commandment of the great seal, or privy +seal, no point of this statute shall be put in delay; +nor that the justices of whatsoever place it be shall +let (omit) to do the common law, by commandment, +which shall come to them under the great seal, or the +privy seal." 14 Edward III, st. 1, ch. 14. (1340.) + +"It is ordained and established, that neither letters +of the signet, nor of the king's privy seal, shall be +from henceforth sent in damage or prejudice of the +realm, nor in disturbance of the law" (the common law). +11 Richard II., ch. 10. (1387.) + +It is perfectly apparent from these statutes, and from +the oath administered to the justices, that it was a +matter freely confessed by the king himself, that his +statutes were of no validity, if contrary to the common +law, or "common right." + +The oath of the justices, before given, is, I presume, +the same that has been administered to judges in +England from the day when it was first prescribed to +them, (1344,) until now. I do not find from the English +statutes that the oath has ever been changed. The Essay +on Grand Juries, before referred to, and supposed to have +been written by Lord Somers, mentions this oath +(page 73) as being still administered to judges, that is, +in the time of Charles II., more than three hundred years +after the oath was first ordained. + +If the oath has never been changed, it follows that +judges have not only never been sworn to support any +statutes whatever of the king, or of parliament, but that, +for five hundred years past, they actually have been +sworn to treat as invalid all statutes that were contrary +to the common law. + +SECTION VI. The Coronation Oath. + +That the legislation of the king was of no authority over +a jury, is further proved by the oath taken by the kings +at their coronation. This oath seems to have been +substantially the same, from the time of the Saxon kings, +down to the seventeenth century, as will be seen from the +authorities hereafter given. + + +The purport of the oath is, that the king swears to maintain +the law of the land that is, the common law. In +other words, he swears "to concede and preserve to +the English people the laws and customs conceded to them +by the ancient, just, and pious English kings, * * and +especially the laws, customs, and liberties conceded to +the clergy and people by the illustrious king Edward;" * * +and "the just laws and customs which the common people +have chosen, (quas vulgus elegit)." + +These are the same laws and customs which were called +by the general name of "the law of the land," or "the +common law," and, with some slight additions, were +embodied in Magna Carta. + +This oath not only forbids the king to enact any statutes +contrary to the common law, but it proves that his statutes +could be of no authority over the consciences of a jury; +since, as has already been sufficiently shown, it was one +part of this very common law itself, that is, of the +ancient "laws, customs, and liberties," mentioned in the +oath, that juries should judge of all questions that came +before them, according to their own consciences, +independently of the legislation of the king. + +It was impossible that this right of the jury could subsist +consistently with any right, on the part of the king, to +impose any authoritative legislation upon them. His +oath, therefore, to maintain the law of the land, or the +ancient "laws, customs, and liberties," was equivalent +to an oath that he would never assume to impose laws upon +juries, as imperative rules of decision, or take from +them the right to try all cases according to their own +consciences. It is also an admission that he had no +constitutional power to do so, if he should ever desire +it. This oath, then, is conclusive proof that his legislation +was of no authority with a jury, and that they were +under no obligation whatever to enforce it, unless it +coincided with their own ideas of justice. + +The ancient coronation oath is printed with the +Statutes of the Realm, vol. i., p. 168, and is as follows: [31] + +TRANSLATION. + +"Form of the Oath of the King of England, on his +Coronation. + +(The Archbishop of Canterbury, to whom, of right and +custom of the Church of Canterbury, ancient and +approved, it pertains to anoint and crown the kings of +England, on the day of the coronation of the king, and +before the king is crowned, shall propound the +underwritten questions to the king.) + +The laws and customs, conceded to the English people +by the ancient, just, and pious English kings, will you +concede and preserve to the same people, with the +confirmation of an oath? and especially the laws, customs, +and liberties conceded to the clergy and people by the +illustrious king Edward? + +(And the king shall answer,) I do concede, and will +preserve them, and confirm them by my oath. + +Will yon preserve to the church of God, the clergy, and +the people, entire peace and harmony in God, according +to your powers? + +(And the king shall answer,) I will. + +In all your judgments, will you cause equal and right +justice and discretion to be done, in mercy and truth, +according to your powers? + +(And the king shall answer,) I will. + +Do you concede that the just laws and customs, which +the common people have chosen, shall be preserved; +and do you promise that they shall be protected by you, +and strengthened to the honor of God, according to +your powers? + +(And the king shall answer,) I concede and promise." + +The language used in the last of these questions, +"Do you concede that the just laws and customs, +which the common people have chosen, (quas vulgus +elegit,) shall be preserved?" ect., is worthy of especial +notice, as showing that the laws, which were to be +preserved, were not necessarily all the laws which +the kings enacted, but only such of them as the common +people had selected or approved. + +And how had the common people made known their +approbation or selection of these laws? Plainly, in no +other way than this that the juries composed of the +common people had voluntarily enforced them. +The common people had no other legal form of making +known their approbation of particular laws. + +The word "concede," too, is an important word. In the +English statutes it is usually translated grant as if with +an intention to indicate that "the laws, customs, and +liberties" of the English people were mere privileges, +granted to them by the king; whereas it should be +translated concede, to indicate simply an acknowledgment, +on the part of the king, that such were the laws, customs, +and liberties, which had been chosen and established +by the people themselves, and of right belonged to them, +and which he was bound to respect. + +I will now give some authorities to show that the foregoing +oath has, in substance, been the coronation oath from +the times of William the Conqueror, (1066,) down to the +time of James the First, and probably until 1688. + +It will be noticed, in the quotation from Kelham, that he +says this oath (or the oath of William the Conqueror) is +"in sense and substance the very same with that which the +Saxon kings used to take at their coronations." + +Hale says: + +"Yet the English were very zealous for them," (that is, for +the laws of Edward the Confessor,) "no less or otherwise +than they are at this time for the Great Charter; insomuch +that they were never satisfied till the said laws were +reenforced, and mingled, for the most part, with the +coronation oath of king William I., and some of his +successors." 1 Hale's History of Common Law, 157. + +Also, "William, on his coronation, had sworn to govern +by the laws of Edward the Confessor, some of which had +been reduced into writing, but the greater part consisted +of the immemorial customs of the realm." Ditto, p. 202, +note L. + +Kelham says: + +"Thus stood the laws of England at the entry of William I., +and it seems plain that the laws, commonly called the laws +of Edward the Confessor, were at that time the standing +laws of the kingdom, and considered the great rule of their +rights and liberties; and that the Eriglish were so zealous +for them, 'that they were never satisfied till the said laws +were reenforced, and mingled, for the most part, with the +coronation oath.' Accordingly, we find that this great +conqueror, at his coronation on the Christmas day succeeding +his victory, took an oath at the altar of St. Peter, Westminster, +in sense and substance the very same with that which the +Saxon kings used to take at their coronations. * * And at +Barkhamstead, in the fourth year of his reign, in the presence +of Lanfranc, Archbishop of Canterbury, for the quieting of +the people, he swore that he would inviolably observe the good +and approved ancient laws which had been made by the devout +and pious kings of England, his ancestors, and chiefly by King +Edward; and we are told that the people then departed in good +humor." Kelham's Preliminary Discourse to the Laws of +William the Conqueror. See, also, 1 Hale's History of the +Common Law, 186. + +Crabbe says that William the Conqueror "solemnly swore that +he would observe the good and approved laws of Edward the +Confessor." Crabbe's History of the English Law, p. 43. + +The successors of William, up to the time of Magna Carta, +probably all took the same oath, according to the custom of the +kingdom; although there may be no historical accounts extant +of the oath of each separate king. But history tells us specially +that Henry I., Stephen, and Henry II., confirmed these ancient +laws and customs. It appears, also, that the barons desired of +John (what he afterwards granted by Magna Carta) "that the laws +and liberties of King Edward, with other privileges granted to the +kingdom and church of England, might be confirmed, as they +were contained in the charters of Henry the First; further alleging, +that at the time of his absolution, he promised by his oath to +observe these very laws and liberties." Echard's History of +England, p. 105 6. + +It would appear, from the following authorities, that since +Magna Carta the form of the coronation oath has been +"to maintain the law of the land," meaning that law as +embodied in Magna Carta. Or perhaps it is more probable that +the ancient form has been still observed, but that, as its substance +and purport were "to maintain the law of the land," this latter +form of expression has been used, in the instances here cited, from +motives of brevity and convenience. This supposition is the +more probable, from the fact that I find no statute prescribing a +change in the form of the oath until 1688. + +That Magna Carta was considered as embodying "the law of +the land," or "common law," is shown by a statute passed by +Edward I., wherein he "grants," or concedes, + +"That the Charter of Liberties and the Charter of the Forest +* * shall be kept in every point, without breach, * * and that our +justices, sheriffs, mayors, and other ministers, which, under +us, have the laws of our land [32] to guide, shall allow the said +charters pleaded before them in judgment, in all their points, +that is, to wit, the Great Charter as the Common Law, and the +Charter of the Forest for the wealth of the realm. + +"And we will, that if any judgment be given from henceforth, +contrary to the points of the charters aforesaid, by the justices, or +by any other our ministers that hold plea before them against +the points of the charters, it shall be undone, and holden for +naught." 25 Edward I., ch. 1 and 2. (1297.) + +Blackstone also says: + +"It is agreed by all our historians that the Great Charter of King +John was, for the most part, compiled from the ancient customs of +the realm, or the laws of Edward the Confessor; by which they +usually mean the old common law which was established under +our Saxon princes." Blackstone's Introduction to the Charters. +See Blackstone's Law Tracts, 289. + +Crabbe says: + +"It is admitted, on all hands, that it (Magna Carta) contains nothing +but what was confirmatory of the common law, and the +ancient usages of the realm, and is, properly speaking, only an +enlargement of the charter of Henry I., and his successors." +Crabbe's History of the English Law, p. 127. + +That the coronation oath of the kings subsequent to Magna Carta +was, in substance, if not in form, "to maintain this law of the +land, or common law," is shown by a statute of Edward Third, +commencing as follows: + +"Edward, by the Grace of God, ect., ect., 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," ect. St. 20 Edward III. (1346.) + +The following extract from Lord Somers' tract on Grand Juries +shows that the coronation oath continued the same as late as +1616, (four hundred years after Magna Carta.) He says: + +"King James, in his speech to the judges, in the Star Chamber, +Anno 1616, told them, 'That he had, after many years, resolved +to renew his oath, made at his coronation, concerning justice, +and the promise therein contained for maintaining the law of +the land.' And, in the next page save one, says, 'I was sworn to +maintain the law of the land, and therefore had been perjured +if I had broken it. God is my judge, I never intended it.' +"Somers on Grand Juries, p. 82. + +In 1688, the coronation oath was changed by act of Parliament, +and the king was made to swear: + +"To govern the people of this kingdom of England, and the +dominions thereto belonging, according to the statutes in +Parliament agreed on, and the laws and customs of the +same." St. 1 William and Mary, ch. 6. (1688.) + +The effect and legality of this oath will hereafter be +considered. For the present it is sufficient to show, as has +been already sufficiently done, that from the Saxon times +until at least as lately as 1616, the coronation oath has +been, in substance, to maintain the law of the land, or +the common law, meaning thereby the ancient Saxon +customs, as embodied in the laws of Alfred, of Edward +the Confessor, and finally in Magna Carta. + +It may here be repeated that this oath plainly proves that +the statutes of the king were of no authority over juries, if +inconsistent with their ideas of right; because it was one +part of the common law that juries should try all causes +according to their own consciences, any legislation of the +king to the contrary notwithstanding.[33] + +[1] Hale says:"The trial by jury of twelve men was the usual +trial among the Normans, in most suits; especially in assizes, et +juris utrum." 1 Hale's History of the Common Law, 219 + +This was in Normandy, before the conquest of England by the +Normans. See Ditto, p. 218. + +Crabbe says:"It cannot be denied that the practice of submitting +causes to the decision of twelve men was universal among all the +northern tribes (of Europe) from the very remotest antiquity." +Crabbe's History of the English Law, p. 32. + +[2] "The people, who in every general council or assembly could +oppose and dethrone their sovereigns, were in little dread of +their encroachments on their liberties; and kings, who found +sufficient employment in keeping possession of their crowns, +would not likely attack the more important privileges of their +subjects." + +[3] This office was afterwards committed to sheriffs. But even +while the court was held by the lord, "the Lord was not judge, +but the Pares (peers) only." Gilbert on the Court of Exchequer, +61-2. + +[4] The opinion expressed in the text, that the Witan had no +legislative authority, is corroborated by the following +authorities: + +"From the fact that the new laws passed by the king and the Witan +were laid before the shire-mote, (county court,) we should be +almost justified in the inference that a second sanction was +necessary before they could have the effect of law in that +particular county." Durham's Middle Ages, Sec. 2, B. 2, Ch. l. +57 Lardner's Cab. Cyc., 53. + +The "second sanction" required to give the legislation of the +king and Witan the effect of law, was undoubtedly, I think, as a +general thing, the sanction of a jury. I know of no evidence +whatever that laws were ever submitted to popular vote in the +county courts, as this author seems to suppose possible. Another +mode, sometimes resorted to for obtaining the sanction of the +people to the laws of the Witan, was, it seems, to persuade the +people themselves to swear to observe them. Mackintoshsays: + +"The preambles of the laws (of the Witan) speak of the infinite +number of liegemen who attended, as only applauding the +measures of the assembly. But this applause was neither so +unimportant to the success of the measures, nor so precisely +distinguished from a share in legislation, as those who read history +with a modern eye might imagine. It appears that under Athelstan +expedients were resorted to, to obtain a consent to the law from +great bodies of the people in their districts, which their numbers +rendered impossible in a national assembly. That monarch appears +to have sent commissioners to hold shire-gemotes or county +meetings, where they proclaimed the laws made by the king and +his counsellors, which, being acknowledged and sworn to at these +folk-motes (meetings of the people) became, by their assent, +completely binding on the whole nation." Mackintosh's Hist. of +England, Ch. 2. 45 Lardner's Cab. Cc., 75. + +[5] Page 31. + +[6] Hallam says, "It was, however, to the county court that an +English freeman chiefly looked for the maintenance of his civil +rights." 2 Middle Ages, 392. + +Also, "This (the county court) was the great constitutional +judicature in all ques- tions of civil right." Ditto, 395. +Also, "The liberties of these Anglo-Saxon thanes were chiefly +secured, next to their swords and their free spirits, by the +inestimable right of deciding civil and criminal suits in their +own county courts." Ditto, 899. + +[7] "Alfred may, in one sense, be called the founder of these +laws, (the Saxon,) for until his time they were an unwrittencode, +but he expressly says, 'that I, Alfred, collected the good laws of +our forefathers into one code, and also I wrote them down' +-- which is a decisive fact in the history of our laws well +worth noting." Introduction to Gilbert's History of the Common +Pleas, p. 2, note. + +Kelham says, "Let us consult our own lawyers and historians, and +they will tell as that Alfred, Edgar, and Edward the Confessor, +were the great compilers and restorers of the English Laws." +Kelham's Preliminary Discourse to the Laws of William the +Conqueror, p. 12. Appendix to Kelham's Dictionary of the Norman +Language. + +"He (Alfred) also, like another Theodosius, collected the various +customs that he found dispersed in the kingdom, and reduced and +digested them into one uniform system, or code of laws, in his +som-bec, or liber judicialis (judicial book). This he compiled +for the use of the court baron, hundred and county court, the +court-leet and sheriff's toarn, tribunals which he established +for the trial of all causes, civil and criminal, in the very +districts wherein the complaints arose." 4 Blackstone, 411. + +Alfred himself says, "Hence I, King Alfred, gathered these +together, and commanded many of those to be written down which +our forefathers observed those which I liked and those which +I did not like, by the advice of my Witan, I threw aside. For I +durst not venture to set down in writing over many of my own, +since I knew not what among them would please those that should +come after us. But those which I met with either of the days of +me, my kinsman, or of Offa, King of Mercia, or of Aethelbert, who +was the first of the English who received baptism thse which +appeared to me the justest I have here collected, and abandoned +the others. Then I, Alfred, King of the West Saxons, showed these +to all my Witan, and they then said that they were all willing to +observe them." Laws of Alfred, translated by R. Price, prefixed +to Mackintosh's History of England, vol. l. 45 Lardner's Cab. Cyc. + +"King Edward * * projected and begun what his grandson, King +Edward the Confessor, afterwards completed, viz., one uniform +digest or body of laws to be observed throughout the whole +kingdom, being probably no more than a revival of King Alfred's +code, with some improvements suggested by necessity and +experience, particularly the incorporating some of the British, +or, rather, Mercian customs, and also such of the Danish +(customs) as were reasonable and approved, into the West Saxon +Lage, which was still the ground-work of the whole. And this +appears to be the best supported and most plausible conjecture, +(for certainty is not to be expected,) of the rise and original +of that admirable system of maxims and unwritten customs which +is now known by the name of the common law, as extending its +authority universally over all the realm, and which is doubtless +of Saxon parentage." 4 Blackstone, 412. + +"By the Lex Terrae and Lex Regni is understood the laws of +Edward the Confessor, confirmed and enlarged as they were by William +the Conqueror; and this Constitution or Code of Laws is what even to +this day are called 'The Common Law of the Land.'" Introduction +to Gilbert's History of the Common Pleas, p. 22, note. + + +[8] Not the conqueror of the English people, (as the friends of +liberty maintain,) but only of Harold the usurper. See Hale's +History of the Common, Law, ch. 5. + +[9] For all these codes see Wilkins' Laws of the Anglo-Saxons. + +"Being regulations adapted to existing institutions, the +Anglo-Saxon statutes are concise and technical, alluding to the +law which was then living and in vigor, rather than defining it. +The same clauses and chapters are often repeated word, for word, +in the statutes of subsequent kings, showing that enactments +which bear the appearance of novelty are merely declaratory. +Consequently the appearance of a law, seemingly for the first +time, is by no means to be considered as a proof that the matter +which it contains is new; nor can we trace the progress of the +Anglo-Saxon institutions with any degree of certainty, by +following the dates of the statutes in which we find them first +noticed. All arguments founded on the apparent chronology of the +subjects included in the laws, are liable to great fallacies. +Furthermore, a considerable portion of the Anglo-Saxon law was +never recorded in writing. There can be no doubt but that the +rules of inheritance were well established and, defined; yet we +have not a single law, and hardly a single document from which +the course of the descent of land can be inferred. * * Positive +proof cannot be obtained of the commencement of any institution, +because the first written law relating to it may possibly be +merely confirmatory or declaratory; neither can the non-existence +of any institution be inferred from the absence of direct +evidence. Written laws were modified and controlled by customs +of which no trace can be discovered until after the lapse of +centuries, although those usages must have been in constant vigor +during the long interval of silence." 1 Palgrave's Rise and +Progress of the English Commonwealth, 58-9. + +[10] Rapin says, "The customs now practised in England are, for +the most part, the same as the Anglo-Saxons brought with them +from Germany." Rapin's Dissertation on the Government of the +Anglo-Saxons, vol. 2, Oct Ed., p. 138. See Kelham's Discourse +before named. + +[11] Hallam says, "The county of Sussex contains sixty-five +('hundreds'); that of Dorset forty-three; while Yorkshire has +only twenty-six; and Lancashire but six." 2 Middle Ages, 391. + +[12] Excepting also matters pertaining to the collection of the +revenue, which were determined in the king's court of exchequer. +But even in this court it was the law "that none be amerced but +by his peers." Mirror of Justices, 49. + +[13] "For the English laws, although not written, may, as it +should seem, and that without any absurdity, be termed laws, +(since this itself is law that which pleases the prince has the +force of law,) I mean those laws which it is evident were +promuulgated by the advice of the nobles and the authority of the +prince, concerning doubts to be settled in their assembly. For if +from the mere want of writing only, they should not be considered +laws, then, unquestionably, writing would seem to confer more +authority upon laws themselves, than either the equity of the +persons constituting, or the reason of those framing them." +Glanville's Preface, p. 38. (Glanville was chief justice of Henry +II., 1180.) 2 Turner's History of the Anglo-Saxons, 280. + +[14] Mackintosh's History of England, ch. 3. Lardner's Cabinet +Cyclopedia, 286. + +[15] If the laws of the king were received as authoritative by +the juries, what occasion was there for his appointing special +commissioners for the trial of offences, without the intervention +of a jury, as he frequently did, in manifest and acknowledged +violation of Magna Carta, and "the law of the land?" These +appointments were undoubtedly made for no other reason than that +the juries were not sufficiently subservient, but judged +according to their own notions of right, instead of the will of +the king whether the latter were expressed in his statutes, or +by his judges. + +[16] Of course, Mr. Reeve means to be understood that, in the +hundred court, and court-leet, the jurors were the judges, as he +declares them to have been in the county court; otherwise the +"bailiff" or "steward" must have been judge. + +[17] The jurors were sometimes called " assessors," because they +assessed, or determined the amount of fines and amercements to +be imposed. + +[18] "The barons of the Hundred" were the freeholders. Hallam +says: "The word baro, originally meaning only a man, was of very +large significance, and is not unfrequently applied to common +freeholders, as in the phrase court-baron." 3 Middle Ages, +14-15. + +Blackstone says: "The court-baron * * is a court of common law, +and it is the court of the barons, by which name the freeholders +were sometimes anciently called; for that it is held before the +freeholders who owe suit and service to the manor." 3 +Blackstone, 33. + +[19] The ancient jury courts kept no records, because those who +composed the courts could neither make nor read records. Their +decisions were preserved by the memories of the jurors and other +persons present. + +[20] Stuart says: + +"The courts, or civil arrangements, which were +modelled in Germany, preserved the independence of the people; +aud having followed the Saxons into England, and continuing their +importance, they supported the envied liberty we boast of. + +"As a chieftain led out his retainers to the field, and governed +them during war; so in peace he summoned them together, and +exerted a civil jurisdiction. He was at once their captain and +their judge. They constituted his court; and having inquired with +him into the guilt of those of their order whom justice had +accused, they assisted him to enforce his decrees. + +"This court (the court-baron) was imported into England; but the +innovation which conquest introduced into the fashion of the +times altered somewhat its appearance. + +"The head or lord of the manor called forth his attendants to his +hall. * * He inquired into the breaches of custom, and of +justice, which were committed within the precincts of his +territory, and with his followers, who sat with him as judges, he +determined in all matters of debt, and of trespass to a certain +amount. He possessed a similar jurisdiction with the chieftain in +Germany, and his tenants enjoyed an equal authority with the +German retainers. + +"But a mode of administration which intrusted so much power to +the great could not long be exercised without blame or injustice. +The German, guided by the candor of his mind, and entering into +all his engagements with the greatest ardor, perceived not, at +first, that the chieftain to whom he submitted his disputes might +be swayed, in the judgments he pronounced, by partiality, +prejudice, or interest; and that the influence he maintained with +his followers was too strong to be restrained by justice. +Experience instructed him of his error", he acknowledged the +necessity of appealing from his lord; and the court of the +Hundred was erected. + +"This establishment was formed both in Germany and England, by +the inhabitants of a certain division, who extened their +jurisdiction over the territory they occupied. [21] They bound +themselves under a penalty to assemble at stated times; and +having elected the wisest to preside over them, they judged, not +only all civil and criminal matters, but of those also which +regarded religion and the priesthood. The judicial power thus +invested in the people was extensive; they were able to preserve +their rights, and attended this court in arms. + +[21] "It was the freemen in Germany, and the possessors of land +in England, who were suitors (jurors) in the hundred court. These +ranks of men were the same. The alteration which had happened in +relation to property had invested the German freemen with land or +territory." + +"As the communication, however, and intercourse, of the +individuals of a German community began to be wider, and more +general, as their dealings enlarged, and as disputes arose among +the members of different hundreds, the insufficiency of these +courts for the preservation of order was gradually perceived. The +shyre mote, therefore, or county court, was instituted; and it +formed the chief source of justice both in Germany and England. + +"The powers, accordingly, which had been enjoyed by the court of +the hundred, were considerably impaired. It decided no longer +concerning capital offences; it decided not concerning matters of +liberty, and the property of estates, or of slaves; its +judgments, in every case, became subject to review; and it lost +entirely the decision of causes, when it delayed too long to +consider them. + +"Every subject of claim or contention was brought, in the first +instance, or by appeal, to the county court; and the earl, or +eorldorman, who presided there, was active to put the laws in +execution. He repressed the disorders which fell out within the +circuit of his authority; and the least remission in hi duty, or +the least fraud he committed, was complained of and punished. He +was elected from among the great, and was above the temptation +of +a bribe; but, to encourage his activity, he was presented with a +share of the territory he governed, or was entitled to a +proportion of the fines and profits of justice. Every man, in his +district, was bound to inform him concerning criminals, and to +assist him to bring them to trial; and, as in rude and violent +times the poor and helpless were ready to be oppressed by the +strong, he was instructed particularly to defend them. + +"His court was ambulatory, and assembled only twice a year, +unless the distribution of justice required that its meetings +should be oftener. Every freeholder in the county was obliged to +attend it; and should he refuse this service, his possessions +were seized, and he was forced to find surety for his appearance. +The neighboring earls held not their courts on the same day; and, +what seems very singular, no judge was allowed, after meals, to +exercise his office. + +"The druids also, or priests, in Germany, as we had formerly +occasion to remark, and the clergy in England, exercised a +jurisdiction in the hundred and county courts. They instructed +the people in religious duties, and in matters regarding the +priesthood; and the princes, earls, or eorldormen, related to +them the laws and customs of the community. These judges were +mutually a check to each other; but it was expected that they +should agree in their judgments, and should willingly unite their +efforts for the public interest. [22] + +"The meeting (the county court) was opened with a discourse by +the bishop, explaining, out of the Scriptures and ecclesiastical +canons, their several duties as good Christians and members of +the church. After this, the alderman, or one of his assessors, +made a discourse on the laws of the land, and the duties of good +subjects and good citizens. When these preliminaries were over, +they proceede to try and determine, first the causes of the +church, next the pleas of the crown, and last of all the +controversies of private parties." 8 Henry's History of Great +Britain, 348. + +This view is corroborated by Tyrrell's Introduction to the +History of England; p. 83-84, and by Spence's Origin of the Laws +and Political Institutions of Modern Europe, p. 447, and the note +on the same page. Also by a law of Canute to this effect, In +every county let there be twice a year an assembly, whereat the +bishop and the earl shall be present, the one to instruct the +people in divine, the other in human, laws. Wilkins, p. 136. + +"But the prince or earl performed not, at all times, in person, +the obligations of his office. The enjoyment of ease and of +pleasure, to which in Germany he had delivered himself over, +when disengaged from war, and the mean idea he conceived +of the drudgery of civil affairs, made him often delegate to an +inferior person the distribution of justice in his district. The +same sentiments were experienced by the Saxon nobility; +and the service which they owed by their tenures, and the high +employments they sustained, called them often from the +management of their counties. The progress, too, of commerce, +giving an intricacy to cases, and swelling the civil code, added +to the difficulty of their office, and made them averse to its duties. +Sheriffs, therefore, or deputies, were frequently appointed to +transact their business; and though these were at first under +some subordination to the earls, they grew at length to be +entirely independent of them. The connection of jurisdiction and +territory ceasing to prevail, and the civil being separated from +the ecclesiastical power, they became the sole and proper +officers for the direction of justice in the counties. + +"The hundred, however, and county courts were not equal of +themselves for the purposes of jurisdiction and order. It was +necessary that a court should be erected, of supreme authority, +where the disputes of the great should be decided, where the +disagreeing sentiments of judges should be reconciled, and where +protection should be given to the people against their fraud and +injustice. + +"The princes accordingly, or chief nobility, in the German +communities, assembled together to judge of such matters. The +Saxon nobles continued this prerogative; and the king, or, in his +absence, the chief justiciary, watched over their deliberations. +But it was not on every trivial occasion that this court +interested itself. In smaller concerns, justice was refused +during three sessions of the hundred, and claimed without effect, +at four courts of the county, before there could lie an appeal to +it. + +"So gradually were these arrangements established, and so +naturally did the varying circumstances in the situation of the +Germans and Anglo-Saxons direct those successive improvements +which the preservation of order, and the advantage of society, +called them to adopt. The admission of the people into the courts +of justice preserved, among the former, that equality of ranks +for which they were remarkable; and it helped to overturn, among +the latter, those envious distinctions which the feudal system +tended to introduce, and prevented that venality in judges, and +those arbitrary proceedings, which the growing attachment to +interest, and the influence of the crown, might otherwise have +occasioned." Stuart on the Constitution of England, p. 222 to +245. + +"In the Anglo-Saxon period, accordingly, twelve only were +elected; and these, together with the judge, or presiding officer +of the district, being sworn to regard justice, and the voice of +reason, or conscience, all causes were submitted to them." +Ditto, p. 260. + +"Before the orders of men were very nicely disinguished, the +jurors were elected from the same rank. When, however, a regular +subordination of orders was established, and when a knowledge of +property had inspired the necessitous with envy, and the rich +with contempt, every man was tried by his equals. The same spirit +of liberty which gave rise to this regulation attended its progress. +Nor could monarchs assume a more arbitrary method of proceeding. +'I will not' (said the Earl of Cornwall to his sovereign) 'render up +my castles, nor depart the kingdom, but by judgment of my +peers.' Of this institution, so wisely calculated for the preservation +of liberty, all our, historians have pronounced the eulogium." -- +Ditto, p. 262-3. + +Blackstone says: + +"The policy of our ancient constitution, as regulated and +established by the great Alfred, was to bring justice home to +every man's door, by constituting as many courts of judicature +as there are manors and towns in the kingdom; wherein injuries +were redressed in an easy and expeditious manner, by the +suffrage of neighbors and friends. These little courts, however, +communicated with others of a larger jurisdiction, and those +with others of a still greater power; ascending gradually from +the lowest to the supreme courts, which were respectively +constituted to correct the errors of the inferior ones, and to +determine such causes as, by reason of their weight and +difficulty, demanded a more solemn discussion. The course +of justice flowing in large streams from the king, as the +fountain, to his superior courts of record; and being then +subdivided into smaller channels, till the whole and every part +of the kingdom were plentifully watered and refreshed. An +institution that seems highly agreeable to the dictates of +natural reason, as well as of more enlightened policy. + +"These inferior courts, at least the name and form of them, still +cntinue in our legal constitution; but as the superior courts of +record have, in practice, obtained a concurrent original +jurisdiction, and as there is, besides, a power of removing +plaints or actions thither from all the inferior jurisdictions; +upon these accounts (among others) it has happened that these +petty tribunals have fallen into decay, and almost into oblivion; +whether for the better or the worse may be matter of some +speculation, when we consider, on the one hand, the increase of +expense and delay, and, on the other, the more able and impartial +decisions that follow from this change of jurisdiction. + +"The order I shall observe in discoursing on these several +courts, constituted for the redress of civil injuries, (for with +those of a jurisdiction merely criminal I shall not at present +concern myself, [23]) will be by beginning with the lowest, and +those whose jurisdiction, though public and generally dispersed +through the kingdom, is yet (with regard to each particular +court) confined to very narrow limits; and so ascending gradually +to those of the most extensive and transcendent power." -- 3 +Blackstone, 30 to 32. + +"The court-baron is a court incident to every manor in the +kingdom, to beholden by the steward within the said manor. This +court-baron is of two natures; the one is a customary court, of +which we formerly spoke, appertaining entirely to the +copy-holders, in which their estates are transferred by surrender +and admittance, and other matters transacted relative to their +tenures only. The other, of which we now speak, is a court of +common law, and it is a court of the barons, by which name the +freeholders were sometimes anciently called; for that it is held +by the freeholders who owe suit and service to th manor, the +steward being rather the registrar than the judge. These courts, +though in their nature distinct, are frequently confounded +together. The court we are now considering, viz., 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 is to determine, by writ of right, all controversies +relating to the right of lands within the manor. It may also hold +plea of any personal actions, of debt, trespass in the case, or +the like, where the debt or damages do not amount to forty +shillings; which is the same sum, or three marks, that bounded +the jurisdiction of the ancient Gothic courts in their lowest +instance, or fierding courts, so called because four were +institute within every superior district or hundred." 8 +Blackstone, 38, 34. + +"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 are here also the judges, and the steward the +registrar, as in the case of a court-baron. It is likewise no +court of record, resembling the former at all points, except that +in point of territory it is of greater jurisdiction. This is said +by Sir Edward Coke to have been derived out of the county court +for the ease of the people, that they might have justice done to +them at their own doors, without any charge or loss of time; but +its institution was probably coeval with that of hundreds +themselves, which were formerly observed to have been +introduced, though not invented, by Alfred, being derived from +the polity of the ancient Germans. The centeni, we may remember, +were the principal inhabitants of a district composed of different +villages, oriinally in number a hundred, but afterward only called +by that name, and who probably gave the same denomination +to the district out of which they were chosen. Caesar speaks +positively of the judicial power exercised in their hundred +courts and courts-baron. 'Princeps regiorum atque pagorum' (which +we may fairly construe the lords of hundreds and manors) 'inter +suos jus dicunt, controversias que minuunt.' (The chiefs of the +country and the villages declare the law among them, and abate +controversies.) And Tacitus, who had examined their constitution +still more attentively, informs us not only of the authority of +the lords, but that of the centeni, the hundreders, or jury, who +were taken out of the common freeholders, and had themselves a +share in the determination. ' Eliguntur in conciliis et +principes, qui jura per pagos vicosque reddunt, centenii +singulis, ex plebe comites comcilium simul et auctoritas adsunt. +(The princes are chosen in the assemblies, who administer the +laws throughout the towns and villages, and with each one are +associated an hundred companions, taken from the people, for +purposes both of counsel and authority.) This hundred court was +denominated haereda in the Gothic constitution. But this court, +as causes are equally liable to removal from hence as from the +common court-baron, and by the same writs, and may also be +reviewed by writ of false judgment, is therefore fallen into +equal disuse with regard to the trial of actions." 8 Blackstone, 34, +85. + +"The county court is a court incident to the jurisdiction of the +sheriff. It is not a court of record, but may hold pleas of debt, +or damages, under the value of forty shillings; over some of +which causes these inferior courts have, by the express words of +the statute of Gloucester, (6 Edward I., eh. 8,) a jurisdicton +totally exclusive of the king's superior courts. * * The county +court may also hold plea of many real actions, and of all +personal actions to any amount, by virtue of a special writ, +called a justicies, which is a writ empowering the sheriff, for +the sake of despatch, to do the samee justice in his county court +as might otherwise be had at Westminster. The freeholders of the +county court are the real judges in this court, and the sheriff +is the ministerial ofhcer. * * In modern times, as proceedings +are removable from hence into the king's superior courts, by writ +of pone or recordari, in the same manner as from hundred courts +and courts-baron, and as the same writ of false judgment may be +had in nature of a writ of error, this has occasioned the same +disuse of bringing actions therein." 3 Blackstone, 36, 37. + +"Upon the whole, we cannot but admire the wise economy and +admirable provision of our ancestors in settling the distribution +of justice in a method so well calculated for cheapness, +expedition, and ease. By the constitution which they established, +all trivial debts, and injuries of small consequence, were to be +recovered or redressed in every man's own county, hundred, or +perhaps parish." 3 Blackstone, 59. + +[22] It would be wholly erroneous, I think, to infer from this +statement of Stuart, that either the "priests, princes, earls, or +eorldormen" exercised any authority over the jury in the trial of +causes, in the way of dictating the law to them. Henry's account +of this matter doubtless gives a much more accurate +representation of the truth. He says that anciently + +[23] There was no distinction between the civil and criminal +courts, as to the rights or powers of juries. + +[24] This quaint and curious book; (Smith's Commonwealth +of England) describes the minutiae of trials, giving in detail +the mode of impaneling the jury and then the conduct of the + lawyers, witnesses, and court I give the following extracts, +tending to show that the judges impose no law upon the juries, +in either civil or criminal cases but only require them to +determine the causes according to their consciences. + +In civil causes he says: + +"When it is thought that it is enough pleaded before them, +and the witnesses have said what they can, one of the judges, +with a brief and pithy recapitulation, reciteth to the twelve +in sum the arguments of the sergeants of either side, that +which the witnesses have declared, and the chief points of the +evidence showed in writing, and once again putteth them in +mind of the issue, and sometime giveth it them in writing, +delivering to them the evidence which is showed on either part, +if any be, (evidence here is called writings of contracts, +authentical after the manner of England, that is to say, written, +sealed, and delivered,) and biddeth them go together." p. 74. + +This is the whole account given of the charge to the jury. + +In criminal eases, after the witnesses have been heard, and +the prisoner has said what he pleases in his defence, the book +proceeds: + +"When the judge hath heard them say enough, he asketh if +they can say any more. If they say no, then he turneth his speech +to the inquest. 'Good men, (saith he,) ye of the inquest, ye have +heard what these men say against the prisoner. You have also +heard what the prisoner can say for himself. Have an eye to +your oath, and to your duty, and do that which God shall put +in your minds to the discharge of your consciences, and mark +well what is said.' " p. 92. + +This is the whole account given of the charge in a criminal ease. + +The following statement goes to confirm the same idea, that +jurors in England have formerly understood it to be their right and +duty to judge only according to their consciences, and not to +submit to any dictation from the court, either as to law or fact. + +"If having pregnant evidence, nevertheless, the twelve do +acquit the malefactor which they will do sometime, especially if +they perceive either one of the justices or of the judges, or some +other man, to pursue too much and too maliciously the death of the +prisoner, * * the prisoner escapeth; but the twelve (are) not only +rebuked by the judges, but also threatened of punishment; and +many times commanded to appear in the Star-Chamber, or before the +Privy Council for the matter. But this threatening chanceth oftener +than the execution thereof; and the twelve answer with most +gentle words, they did it according to their consciences, and +pray the judges to be good unto them, they did as they thought +right, and as they accorded all, and so it passeth away for the +most part." p. 100. + +The account given of the trial of a peer of the realm corroborates +the same point: + +"If any duke, marquis, or any other of the degrees of a baron, +or above, lord of the Parliament, be appeached of treason, or any +other capital crime, he is judged by his peers and equals; that, +is, the yeomanry doth not go upon him, but an inquest of the Lords +of Parliament, and they give their voice not one for all, but each +severally as they do in Parliament being (beginning) at the +youngest lord. And for judge one lord sitteth, who is constable of +England for that day. The judgment once given, he breaketh his +staff, and abdicateth his office. In the rest there is no difference +from that above written," (that is, in the case of a freeman.) p. 98. + +[25] "The present form of the jurors' oath is that they shall 'give a +true verdict according to the evidence.' At what time this form was +introduced is uncertain; but for several centuries after the Conquest, +the jurors, both in civil and criminal cases, were sworn merely to +speak the truth. (Glanville, lib. 2, cap. 17; Bracton, lib. 3, cap. 22; lib. 4, +p. 287, 291; Britton, p. 135.) Hence their decision was accurately +termed veredictum, or verdict, that is, ' a thing truly said'; whereas +the phrase 'true verdict' in the modern oath is not an accurate +expression." Political Dictionary, word Jury. + +[26] Of course, there can be no legal trial by jury, in either civil or +criminal cases, where the jury are sworn to try the cases "according +to law." + +[27] Coke, as late as 1588, admits that amercements must be fixed by the +peers (8 Coke's Rep. 88, 2 Inst. 27); but he attempts, wholly without +success, as it seems to me, to show a difference between fines and +amercements. The statutes are very numerous, running through the +three or four hundred years immediately succeeding Magna Carta, +in which fines, ransoms, and amercements are spoken of as if they +were the common punishments of offences, and as if they all meant the +same thing. If, however, any technical difference could be made +out between them, there is clearly none in principle; and the word +amercement, as used in Magna Carta, must be taken in its most +comprehensive sense. + +[28] "Common right" was the common law. 1 Coke's +Inst. 142 a. 2 do. 55, 6. + +[29] The oath of the justices is in these words:"Ye shall +swear, that well and lawfully ye shall serve our lord the +king and his people, in the office of justice, and that +lawfully ye shall counsel the king in his business, and that +ye shall not counsel nor assent to anything which may +turn him in damage or disherison in any manner, way, or +color. And that ye shall not know the damage or +disherison of him, whereof ye shall not cause him to be +warned by yourself, or by other; and that ye shall do +equal law and execution of right to all his subjects, rich +and poor, without having regard to any person. And that +ye take not by yourself, or by other, privily nor apertly, +gift nor reward of gold nor silver, nor of any other +thing that may turn to your profit, unless it be meat or +drink, and that of small value, of any man that shall +have any plea or process hanging before you, as long +as the same process shall be so hanging, nor after for +the same cause. And that ye take no fee, as long as ye +shall be justice, nor robe of any man great or small, but +of the king himself. And that ye give none advice or +counsel to no man great or small, in no case where the king +is party. And in case that any, of what estate or condition +they be, come before you in your sessions with force +and arms, or otherwise against the peace, or against the +form of the statute thereof made, to disturb execution +of the common law," [mark the term, "common law,") +"or to menace the people that they may not pursue the +law, that ye shalt cause their bodies to be arrested and +put in prison; and in case they be such that ye cannot +arrest them, that ye certify the king of their names, and +of their misprision, hastily, so that he may thereof +ordain a convenable remedy. And that ye by yourself, +nor by other, privily nor apertly, maintain any plea or +quarrel hanging in the king's court, or elsewhere in the +country. And that ye deny no man common right by +the king's letters, nor none other man's, nor for none +other cause, and in case any letters come to you +contrary to the law,'" (that is, the "common law +" before mentioned,) "that ye do nothing by such +letters, but certify the king thereof, and proceed to +execute the law," (the "common law" before mentioned,) +"notwithstanding the same letters. And that ye shall +do and procure the profit of the king and of his crown, +with all things where ye may reasonably do the +same. And in case ye be from henceforth found in +default in any of the points aforesaid, ye shall be at the +king's will of body, lands, and goods, thereof to be +done as shall please him, as God you help and all +saints." 18 Edward III., st. 4. (1344.) + +[30] That the terms "Law" and "Right," as used +in this statute, mean the common law, is shown +by the preamble, which declares the motive of +the statute to be that "the Law of the Land, +(the common law,) which we (the king) by our +oath are bound to maintain," may be the better +kept, &. + +[31] The following is a copy of the original: + +"Forma Juramenti Regis Anglicae in Coronacione sua: + +(Archiepiscopus Cantuariae, ad quo de jure et consuetudine +Ecclesiae Cantuariae, antiqua et approbata, pertinet +Reges Angliae inungere et coronare, die coronacionis +Regis, anteque Rex coronetur, faciet Regi Interrogationes +subscriptas.) + +Si leges et consuetudines ab antiquis justis et Deo +devotis Regibus plebi Anglicano concessas, cum +sacramenti confirmacione eidem plebi concedere +et servare (volueris:) Et praesertim leges et +consuetudines et libertates a glorioso Rege Edwardo +clero populoque concessas ? + +(Et respondeat Rex,) Concedo et servare volo, et +sacramento confirmare. + +Servabis Ecclesiae Dei, Cleroque, et Populo, pacem +ex integro et concordiam in Deo secundum vires tuas ? + +(Et respondeat Rex,) Servabo. + +Facies fieri in omnibus Judieiis tuis equam et rectam +justioiam, et discreeionem, in misericordia et veritate, +secundum vires tuas? + +(Et respondeat Rex,) Faciam. + +Concedis justas, leges et consuetudines esse tenendas, +et promittis per te eas esse protegendas, et ad honorem +Dei corroborandas, quas vulgus elegit, secundum vires +tuas ? + +(Et respondeat Rex,) Concedo et promitto." + +[32] It would appear, from the text, that the Charter of Liberties +and the Charter of the Forest were sometimes called "laws of the +land." + +[33] As the ancient coronation oath, given in the text, + has come down from the Saxontimes, the following +remarks of Palgrave will be pertinent, in connection +with the oath, as illustrating the fact that, in those times, +no special authority attached to the laws of the king: + +"The Imperial Witenagemot was not a legislative +assembly, in the strict sense of the term, for the whole +Anglo-Saxon empire. Promulgating his edicts amidst +his peers and prelates, the king uses the language of +command; but the theoretical prerogative was modified +by usage, and the practice of the constitution required +that the law should be accepted by the legislatures +(courts) of the several kingdoms. * * The 'Basileus' +speaks in the tone of prerogative: Edgar does not +merely recommend, he commands that the law shall be +adopted by all the people, whether English, Danes, or +Britons, in every part of his empire. Let this statute be +observed, he continues, by Earl Oslac, and all the host +who dwell under his government, and let it be transmitted +by writ to the ealdormen of the other subordinate states. +And yet, in defiance of this positive iujunction, the +laws of Edgar were not accepted in Mercia until the reign +of Canute the Dane. It might be said that the course +so adopted may have been an exception to the general rule; +but in the scanty and imperfect annals of Anglo-Saxon +legislation, we shall be able to find so many examples +of similar proceedings, that this mode of enactment +must be considered as dictated by the constitution of +the empire. Edward was the supreme lord of the +Northumbrians, but more than a century elapsed before +they obeyed his decrees. The laws of the glorious +Athelstane had no effect in Kent, (county,) the +dependent appanage of his crown, until sanctioned +by the Witan of the shire (county court). And the power of +Canute himself, the 'King of all England,' does not +seem to have compelled the Northumbrians to +receive his code, until the reign of the Confessor, +when such acceptance became a part of the compact +upon the accession of a new earl. + +Legislation constituted but a small portion of the +ordinary business transacted by the Imperial +Witenagemot. The wisdom of the assembly was +shown in avoiding unnecessary change. Consisting +principally of traditionary usages and ancestorial customs, +the law was upheld by opinion. The people considered +their jurisprudence as a part of their inheritance. +Their privileges and their duties were closely conjoined; +most frequently, the statutes themselves were only +affirmances of ancient customs, or declaratory enactments. + +In the Anglo-Saxon commonwealth, therefore, the +legislative functions of the Witenagemot were of far +less importance than the other branches of its authority. +* * The members of the Witenagemot were the ' Pares Curiae ' +(Peers of Court) of the kingdom. How far, on these occasions, +their opinion or their equity controlled the power of the crown, +cannot be ascertained. But the form of inserting their names +in the 'Testing Clause' was retained under the +Anglo-Norman reigns; and the sovereign, who submitted +his Charter to the judgment of the Proceres, professed to +be guided by the opinion which they gave. As the 'Pares' +of the empire, the Witenagemot decided' the disputes +between the great vassals of the crown. * * The jurisdiction +exercised in the Parliament of Edward I., when the barony +of a Lord-Marcher became the subject of litigation, is +entirely analogous to the proceedings thus adopted by the great +council of Edward, the son of Alfred, the Anglo-Saxon king. + +In this assembly, the king, the prelates, the dukes, the +ealdormen, and the optimates passed judgment upon all great +offenders.* * + +The sovereign could not compel the obedience of the different +nations composing the Anglo-Saxon empire. Hence, it +became more necessary for him to conciliate their +opinions, if he solicited any service from a vassal prince or +a vassal state beyond the ordinary terms of the compact; +still more so, when he needed the support of a free burgh or +city. And we may view the assembly (the Witenagemot) +as partaking of the character of a political congress, in +which the liegemen of the crown, or the communities +protected by the ' Basileus,' (sovereign,) were asked or +persuaded to relieve the exigences of the state, or to consider +those measures which might be required for the common weal. +The sovereign was compelled to parley with his dependents, + +It may be doubted whether any one member of the empire had +power to legislate for any other member. The Regulus of Cumbria +was unaffected by the vote of the Earl of East Angliae, if +he chose to stand out against it. These dignitaries +constituted a congress, in which the sovereign could +treat more conveniently and effectually with his vassals +than by separate negotiations. * * But the determinations +of the Witan bound those only who were present, or who +concurred in the proposition; and a vassal denying his assent +to the grant, might assert that the engagement which he +had contracted with his superior did not involve any +pecuniary subsidy, but only rendered him liable to perform +service in the field." 1 Palgrave's Rise and Progress of the +English Commonwealth, 637 to 642. + + +CHAPTER IV. THE RIGHTS AND DUTIES OF JURIES IN +CIVIL SUITS. + +The evidence already given in the preceding chapters proves that +the rights and duties of jurors, in civil suits, were anciently +the same as in criminal ones; that the laws of the king were of +no obligation upon the consciences of the jurors, any further +than the laws were seen by them to be just; that very few laws +were enacted applicable to civil suits; that when a new law was +enacted, the nature of it could have been known to the jurors +only by report, and was very likely not to be known to them at +all; that nearly all the law involved in civil suits was +unwritten; that there was usually no one in attendance upon +juries who could possibly enlighten them, unless it were +sheriffs, stewards, and bailiffs, who were unquestionably too +ignorant and untrustworthy to instruct them authoritatively; that +the jurors must therefore necessarily have judged for themselves +of the whole case; and that, as a general rule, they could judge +of it by no law but the law of nature, or the. principles of +justice as they existed in their own minds. + +The ancient oath of jurors in civil suits, viz., that "they would +make known the truth according to their consciences," implies +that the jurors were above the authority of all legislation. The +modern oath, in England, viz., that they "will well and truly try +the issue between the parties, and a true verdict give, according +to the evidence," implies the same thing. If the laws of the king +had been binding upon a jury, they would have been sworn to try +the cases according to law, or according to the laws. + +The ancient writs, in civil suits, as given in Glanville, (within +the half century before Magna Carta,) to wit, "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 in question," indicate that the jurors +judged of the whole matter on their consciences only. + +The language of Magna Carta, already discussed, establishes +the same point; for, although some of the words, such as +"outlawed," and "exiled," would apply only to criminal cases, +nearly the whole chapter applies as well to civil as to criminal +suits. For example, how could the payment of a debt ever be +enforced against an unwilling debtor, if he could neither be +"arrested, imprisoned, nor deprived of his freehold," and if the +king could neither "proceed against him, nor send any one against +him, by force or arms" ? Yet Magna Carta as much forbids that +any of these things shall be done against a debtor, as against a +criminal, except according to, or in execution of, " a judgment +of his peers, or the law of the land," a provision which, it +has been shown, gave the jury the free and absolute right to give +or withhold "judgment" according to their consciences, +irrespective of all legislation. + +The following provisions, in the Magna Carta of John, illustrate +the custom of referring the most important matters of a civil +nature, even where the king was a party, to the determination of +the peers, or of twelve men, acting by no rules but their own +consciences. These examples at least show that there is nothing +improbable or unnatural in the idea that juries should try all +civil suits according to their own judgments, independently of +all laws of the king. + +Chap. 65. "If we have disseized or dispossessed the Welsh of any +lands, liberties, or other things, without the legal judgment of +their peers, they shall be immediately restored to them. And if +any dispute arises upon this head, the matter shall be determined +in the Marches, [1] by the judgment of their peers," &c;. + +Chap. 68. " We shall treat with Alexander, king of Scots, +concerning the restoring of his sisters, and hostages, and rights +and liberties, in the same form and manner as we shall do to the +rest of our barons of England; unless by the engagements, which +his father William, late king of Scots, hath entered into with +us, it ought to be otherwise; and this shall be left to the +determination of his peers in our court." + +Chap. 56. "All evil customs concerning forests, warrens, and +foresters, warreners, sheriffs, and their officers, rivers and +their keepers, shall forthwith be inquired into in each county, +by twelve knights of the same shire, chosen by the most +creditable persons in the same county, and upon oath; and within +forty days after the said inquest, be utterly abolished, so as +never to be restored." + +There is substantially the same reason why a jury ought to judge +of the justice of laws, and hold all unjust laws invalid, in +civil suits, as in criminal ones. That reason is the necessity of +guarding against the tyranny of the government. Nearly the same +oppressions can be practised in civil suits as in criminal ones. +For example, individuals may be deprived, of their liberty, and +robbed of their property, by judgments rendered in civil suits, +as well as in criminal ones. If the laws of the king were +imperative upon a jury in civil suits, the king might enact laws +giving one man's property to another, or confiscating it to the +king himself, and authorizing civil suits to obtain possession of +it. Thus a man might be robbed of his property at the arbitrary +pleasure of the king. In fact, all the property of the kingdom +would be placed, at the arbitrary disposal of the king, through +the judgments of juries in civil suits, if the laws of the king +were imperative upon a jury in such suits. [2] + +Furthemore, it would be absurd and inconsistent to make +a jury paramount to legislation in criminal suits, and +subordinate to it in civil suits; because an individual, by +resisting the execution of a civil judgment, founded upon an +unjust law, could give rise to a criminal suit, in which the jury +would be bound to hold the same law invalid. So that, if an +unjust law were binding upon a jury in civil suits, a defendant, +by resisting the execution of the judgment, could, in effect, +convert the civil action into a criminal one, in which the jury +would be paramount to the same legislation, to which, in the +civil suit, they were subordinate. In other words, in the +criminal suit, the jury would be obliged to justify the defendant +in resisting a law, which, in the civil suit, they had said he +was bound to submit to. + +To make this point plain to the most common mind suppose a +law be enacted that the property of A shall be given to B. B +brings a civil action to obtain possession of it. If the jury, in this +civil suit, are bound to hold the law obligatory, they render a +judgment in favor of B, that he be put in possession of the +property; thereby declaring that A is bound to submit to a law +depriving him of his property. But when the execution of that +judgment comes to be attempted that is, when the sheriff comes +to take the property for the purpose of delivering it to B A +acting, as he has a natural right to do, in defence of his +property, resists and kills the sheriff. He is thereupon indicted +for murder. On this trial his plea is, that in killing the +sheriff, he was simply exercising his natural right of defending +his property against an unjust law. The jury, not being bound, in +a criminal case, by the authority of an unjust law, judge the act +on its merits, and acquit the defendant thus declaring that he +was not bound to submit to the same law which the jury, in the +civil suit, had, by their judgment, declared that he was bound to +submit to. Here is a contradiction between the two judgments. In +the civil suit, the law is declared to be obligatory upon A; in +the criminal suit, the same law is declared to be of no +obligation. + +It would be a solecism and absurdity in government to allow +such consequences as these. Besides, it would be practically +impossible to maintain government on such principles; for no +government could enforce its civil judgments, unless it could +support them by criminal ones, in case of resistance. A jury must +therefore be paramount to legislation in both civil and criminal +cases, or in neither. If they are paramount in neither, they are +no protection to liberty. If they are paramount in both, then all +legislation goes only for what it may chance to be worth in the +estimation of a jury. + +Another reason why Magna Carta makes the discretion and +consciences of juries paramount to all legislation in civilsuits, is, +that if legislation were binding upon a jury, the jurors (by reason +of their being unable to read, as jurors in those days were, and +also by reason of many of the statutes being unwritten, or at least +not so many copies written as that juries could be supplied with +them) would have been necessitated at least in those courts in +which the king's justices sat to take the word of those justices +as to what the laws of the king really were. In other words, they +would have been necessitated to take the law from the court, as +jurors do now. + +Now there were two reasons why, as we may rationally suppose, +the people did not wish juries to take their law from the king's +judges. One was, that, at that day, the people probably had sense +enough to see, (what we, at this day, have not sense enough to +see, although we have the evidence of it every day before our +eyes,) that those judges, being dependent upon the legislative +power, (the king,) being appointed by it, paid by it, and +removable by it at pleasure, would be mere tools of that power, +and would hold all its legislation obligatory, whether it were +just or unjust. This was one reason, doubtless, why Magna Carta +made juries, in civil suits, paramount to all instructions of the +king's judges. The reason was precisely the same as that for +making them paramount to all instructions of judges in criminal +suits, viz., that the people did not choose to subject their +rights of property, and all other rights involved in civil suits, +to the operation of such laws as the king might please to enact. +It was seen that to allow the king's judges to dictate the law to +the jury would be equivalent to making the legislation of the +king imperative upon the jury. + +Another reason why the people did not wish juries, in civil +suits, to take their law from the king's judges, doubtless was, +that, knowing the dependence of the judges upon the king, and +knowing that the king would, of course, tolerate no judges who +were not subservient to his will, they necessarily inferred; that +the king's judges would be as corrupt, in the administration of +justice, as was the king himself, or as he wished them to be. And +how corrupt that was, may be inferred from the following +historical facts. + +Hume says: + +"It appears that the ancient kings of England put themselves +entirely upon the footing of the barbarous Eastern princes, whom +no man must approach without a present, who sell all their good +offices, and who intrude themselves into every business that they +may have a pretence for extorting money. Even justice was +avowedly bought and sold; the king's court itself, though the +supreme judicature of the kingdom, was open to none that brought +not presents to the king; the bribes given for expedition, delay, +suspension, and doubtless for the perversion of justice, were +entered in the public registers of the royal revenue, and remain +as monuments of the perpetual iniquity and tyranny of the times. +The barons of the exchequer, for instance, the first nobility of +the kingdom, were not ashamed to insert, as an article in their +records, that the county of Norfolk paid a sum that they might be +fairly dealt with; the borough of Yarmouth, that the king's +charters, which they have for their liberties, might not be +violated; Richard, son of Gilbert, for the king's helping him to +recover his debt from the Jews; * * Serio, son of Terlavaston, +that he might be permitted to make his defence, in case he were +accused of a certain homicide; Walter de Burton, for free law, if +accused of wounding another; Robert de Essart, for having an +inquest to find whether Roger, the butcher, and Wace and +Humphrey, accused him of robbery and theft out of envy and +ill-will, or not; William Buhurst, for having an inquest to find +whether he were accused of the death of one Godwin, out of +ill-will, or for just cause. I have selected these few instances +from a great number of the like kind, which Madox had selected +from a still greater number, preserved in the ancient rolls of +the exchequer. + +Sometimes a party litigant offered the king a certain portion, +a half, a third, a fourth, payable out of the debts which he, as +the executor of justice, should assist in recovering. Theophania +de Westland agreed to pay the half of two hundred and twelve +marks, that she might recover that sum against James de +Fughleston; Solomon, the Jew, engaged to pay one mark +out of every seven that he should recover against Hugh de la +Hose; Nicholas Morrel promised to pay sixty pounds, that the Earl +of Flanders might be distrained to pay him three hundred and +forty-three pounds, which the earl had taken from him; and these +sixty pounds were to be paid out of the first money that Nicholas +should recover from the earl." Hume, Appendix 2. + +"In the reign of Henry II,, the best and most just of these (the +Norman) princes, * *Peter, of Blois, a judicious and even elegant +writer, of that age, gives a pathetic description of the venality +of justice, and the oppressions of the poor, * * and he scruples +not to complain to the king himself of these abuses. We may judge +what the case would be under the government of worse princes." +Hume, Appendix 2. + +Carte says: + +"The crown exercised in those days an exorbitant and +inconvenient power, ordering the justices of the king's court, in +suits about lands, to turn out, put, and keep in possession, +which of the litigants they pleased; to send contradictory +orders; and take large sums of money from each; to respite +proceedings; to direct sentences; and the judges, acting by their +commission, conceived themselves bound to observe such orders, +to the great delay, interruption, and preventing of justice; at +least, this was John's practice," Carte's History of England, +vol. 1, p. 832. + +Hallam says: + +"But of all the abuses that deformed the Anglo-Saxon government, +none was so flagitious as the sale of judicial redress, The king, +we are often told, is the fountain of justice; but in those ages +it was one which gold alone could unseal. Men fined (paid fines) +to have right done them; to sue in a certain court; to implead a +certain person; to have restitution of land which they had +recovered at law. From the sale of that justice which every +citizen has a right to demand, it was an easy transition to +withhold or deny it. Fines were received for the king's help +against the adverse suitor; that is, for perversion of justice, +or for delay. Sometimes they were paid by opposite parties, and, +of course, for opposite ends." 2 Middle Ages, 438. + +In allusion to the provision of Magna Carta on this subject, +Hallam says: + +"A law which enacts that justice shall neither be sold, denied, +nor delayed, stamps with infamy that government under which it +had become necessary." 2 Middle Ages, 451. + +Lingard, speaking of the times of Henry II., (say 1184,) says: + +"It was universally understood that money possessed greater +influence than justice in the royal courts, and instances are on +record, in which one party has made the king a present to +accelerate, and the other by a more valuable offer has succeeded +in retarding a decision. * * But besides the fines paid to the +sovereigns, the judges often exacted presents for themselves, and +loud complaints existed against their venality and injustice." +8 Lingard, 231. + +In the narrative of "The costs and charges which I, Richard de +Anesty, bestowed in recovering the land of William, my uncle," +(some fifty years before Magna Carta,) are the following items: + +"To Ralph, the king's physician, I gave thirty-six marks and one +half; to the king an hundred marks; and to the queen one mark of +gold." The result is thus stated. "At last, thanks to our lord +the king, and by judgment of his court, my uncle's land was +adjudged to me." 2 Palgrave's Rise and Progress of the English +Commonwealth, p. 9 and 24. + +Palgrave also says: + +"The precious ore was cast into the scales of justice, even when +held by the most conscientious of our Anglo-Saxon kings. A single +case will exemplify the practices which prevailed. Alfric, the +heir of 'Aylwin, the black,' seeks to set aside the death-bed +bequest, by which his kinsman bestowed four rich and fertile +manors upon St. Benedict. Alfric, the claimant, was supported by +extensive and powerful connexions; and Abbot Alfwine, the +defendant, was well aware that there would be danger in the +discussion of the dispute in public, or before the Folkmoot, +(people's meeting, or county court); or, in other words, that the +Thanes of the shire would do their best to give a judgment in +favor of their compeer. The plea being removed into the Royal +Court, the abbot acted with that prudence which so often calls +forth the praises of the monastic scribe. He gladly emptied +twenty marks of gold into the sleeve of the Confessor, (Edward,) +and five marks of gold presented to Edith, the Fair, encouraged +her to aid the bishop, and to exercise her gentle influence in +his favor. Alfric, with equal wisdom, withdrew from prosecuting +the hopeless cause, in which his opponent might possess an +advocate in the royal judge, and a friend in the king's consort. +Both parties. therefore, found it desirable to come to an +agreement." 1 Palgrave's Rise and Progress, &c;., p. 650. + +But Magna Carta has another provision for the trial of civil +suits, that obviously had its origin in the corruption of the +king's judges. The provision is, that four knights, to be chosen +in every county, by the people of the county, shall sit with the +king's judges, in the Common Pleas, in jury trials, (assizes,) on +the trial of three certain kinds of suits, that were among the +most important that were tried at all. The reason for this +provision undoubtedly was, that the corruption and subserviency +of the king's judges were so well known, that the people would +not even trust them to sit alone in a jury trial of any +considerable importance. The provision is this: + +Chap. 22, (of John's Charter.) "Common Pleas shall not follow our +court, but shall be holden in some certain place. Trials upon the +writ of novel disseisin, and of Mort d'Ancester, and of Darrein +Presentment, shall be taken but in their proper counties, and +after this manner: We, or, if we should be out of our realm, our +chief justiciary, shall send two jnsticiaries through every +county four times a year; [3] who, with four knights chosen out +of every shire, by the people, shall hold the assizes (juries) in +the county, on the day and at the place appointed." + +It would be very unreasonable to suppose that the king's judges +were allowed to dictate the law to the juries, when the people +would not even suffer them to sit alone in jury trials, but +themselves chose four men to sit with them, to keep them honest. +[4] + +This practice of sending the king's judges into the counties +to preside at jury trials, was introduced by the Norman kings +Under the Saxons it was not so. No officer of the king was +allowed to preside at a jury trial; but only magistrates chosen +by the people.[5] + +But the following chapter of John's charter, which immediately +succeeds the one just quoted, and refers to the same suits, +affords very strong, not to say conclusive, proof, that juries +judged of the law in civil suits that is, made the law, so far +as their deciding according to their own notions of justice could +make the law. + +Chap. 23. "And if, on the county day, the aforesaid assizes +cannot be taken, so many knights and freeholders shall remain, of +those who shall have been present on said day, as that the +judgments may be rendered by them, whether the business be more +or less." + +The meaning of this chapter is, that so many of the civil +suits, as could not be tried on the day when the king's justices +were present, should be tried afterwards, by the four knights +before mentioned, and the freeholders, that is, the jury. It must +be admitted, of course, that the juries, in these cases, judged +the matters of law, as well as fact, unless it be presumed that +the knights dictated the law to the jury na thing of which there +is no evidence at all. + +As a final proof on this point, there is a statute enacted +seventy years after Magna Carta, which, although it is contrary +to the common law, and therefore void, is nevertheless good +evidence, inasmuch as it contains an acknowledgment, on the part +of the king himself, that juries had a right to judge of the +whole matter, law and fact, in civil suits. The provision is +this: + +"It is ordained, that the justices assigned to take the assizes, +shall not compel the jurors to say precisely whether it be +disseisin, or not, so that they do show the truth of the deed, +and seek aid of the justices. But if they will, of their own +accord, say that it is disseisin, or not, their verdict shall be +admitted at their own peril." 13 Edward I., st. 1, ch. 3, sec. +2. (1285.) + +The question of "disseisin, or not," was a question of law, as +well as fact. This statute, therefore, admits that the law, as +well as the fact, was in the hands of the jury. The statute is +nevertheless void, because the king had no authority to give +jurors a dispensation from the obligation imposed upon them by +their oaths and the "law of the land," that they should "make +known the truth according their (own) consciences." This they +were bound to do, and there was no power in the king to absolve +them from the duty. And the attempt of the king thus to absolve +them, and authorize them to throw the case into the hands of the +judges for decision, was simply an illegal and unconstitutional +attempt to overturn the "law of the land," which he was sworn to +maintain, and gather power into his own hands, through his +judges. He had just as much constitutional power to enact that +the jurors should not be compelled to declare the facts, but that +they might leave them to be determined by the king's judges, as +he had to enact that they should not be compelled to declare the +law, but might leave it to be decided by the king's judges. 122 +It was as much the legal duty of the jury to decide the law as to +decide the fact; and no law of the king could affect their +obligation to do either. And this statute is only one example of +the numberless contrivances and usurpations which have been +resorted to, for the purpose of destroying the original and +genuine trial by jury. + +[1] Marches, the limits, or boundaries, between England and +Wales. + +[2] That the kings would have had no scruples to enact laws for +the special purpose of plundering the people, by means of the +judgments of juries, if they could have got juries to acknowledge +the authority of their laws, is evident from the audacity with +which they plundered them, without any judgments of juries to +authorize them. + +It is not necessary to occupy space here to give details as to +these robberies; but only some evidence of the general fact. + +Hallam says, that "For the first three reigns (of the Norman +kings) * * the intolerable exactions of tribute, the rapine of +purveyance, the iniquity of royal courts, are continually in the +mouths of the historians. ' God sees the wretched people,' says +the Saxon Chronicler, 'most unjustly oppressed; first they are +despoiled of their possessions, and then butchered.' This was a +grievous year (1124). Whoever had any property, lost it by heavy +taxes and unjust decrees." 2 Middle Ages, 435-6. + +"In the succeeding reign of John, all the rapacious exactions +usual to these Norman kings were not only redoubled, but mingled +with outrages of tyranny still more intolerable. + +"In 1207 John took a seventh of the movables of lay and spiritual +persons, all murmuring, but none daring to speak against it." +Ditto, 446. + +In Hume's account of the extortions of those times, the following +paragraph occurs: + +"But the most barefaced acts of tyranny and oppression were +practised against the Jews, who were entirely out of the +protection of the law, and were abandoned to the immeasurable +rapacity of the king and his ministers. Besides many other +indignities, to which they were continually exposed, it appears +that they were once all thrown into prison, and the sum of 66,000 +marks exacted for their liberty. At another time, Isaac, the Jew, +paid alone 5100 marks", Brun, 3000 marks; Jurnet, 2000; Bennet, +500. At another, Licorica, widow of David, the Jew of Oxford, was +required to pay 6000 marks." Hume's Hist Eng., Appendix 2. + +Further accounts of the extortions and oppressions of the kings +may be found in Hume's History, Appendix 2, and in Hallam's +Middle Ages, vol. 2, p. 435 to 446. + +By Magna Carta John bound himself to make restitution for some +of the spoliations he had committed upon individuals "without the +legal judgment of their peers." See Magna Carta of John, ch. +60, 61, 65 and 66. + +One of the great charges, on account of which the nation rose +against John, was, that he plundered individuals of their +property, "without legal judgment of their peers." Now it was +evidently very weak and short sighted in John to expose himself +to such charges, if his laws were really obligatory upon the +peers; because, in that case, he could have enacted any laws that +were necessary for his purpose, and then, by civil suits, have +brought the cases before juries for their "judgment," and thus +have accomplished all his robberies in a perfectly legal manner. + +There would evidently have been no sense in these complaints, +that he deprived men of their property "without legal judgment of +their peers," if his laws had been binding upon the peers; +because he could then have made the same spoliations as well with +the judgment of the peers as without it. Taking the judgment of +the peers in the matter, would have been only a ridiculous and +useless formality, if they were to exercise no discretion or +conscience of their own, independently of the laws of the king. + +It may here be mentioned, in passing, that the same would be true +in criminal mature, if the king's Laws were obligatory upon +juries. + +As an illustration of what tyranny the kings would sometimes +practise, Hume says: + +"It appears from the Great Charter itself, that not only John, a +tyrannical prince, and Richard, a violent one, but their father +Henry, under whose reign the prevalence of gross abuses is the +least to be suspected, were accustomed, from their sole +authority, without process of law, to imprison, banish, and +attaint the freemen of their kingdom." Hume, Appendix 2. + +The provision, also, in the 64th chapter of Magna Carta, that " +all unjust and illegal fines, and all amercements, imposed +unjustly, and contrary to the Law of the Land, shall be entirely +forgiven," &c;.; and the provision, in chapter 61, that the king +"will cause full justice to be administered" in regard to "all +those things, of which any person has, without legal judgment of +his peers, been dispossessed or deprived, either by King Henry, +our father., or our brother, King Richard," indicate the +tyrannical practices that prevailed. + +We are told also that John himself "had dispossessed several +great men without any judgment of their peers, condemned others +to cruel deaths, * * insomuch that his tyrannical will stood +instead of a law." Echard's History of England, 106. +Now all these things were very unnecessary and foolish, if his +laws were binding upon juries; because, in that ease, he could +have procured the conviction of these men in a legal manner, and +thus have saved the necessity of such usurpation. In short, if +the laws of the king had been binding upon juries, there is no +robbery, vengeance, or oppression, which he could not have +accomplished through the judgments of juries. This consideration +is sufficient, of itself, to prove that the laws of the king were +of no authority over a jury, in either civil or criminal cases, +unless the juries regarded the laws as just in themselves. + +[3] By the Magna Carta of Henry III., this is changed to once a +year. + +[4] From the provision of Magna Carta, cited in the text, it must +be inferred that there can be no legal trial by jury, in civil +eases, if only the king's justices preside; that, to make the +trial legal, there must be other persons, chosen by the people, +to sit with them; the object being to prevent the jury's being +deceived by the justices. I think we must also infer that the +king's justices could sit only in the three actions specially +mentioned. We cannot go beyond the letter of Magria Carta, in +making innovations upon the common law, which required all +presiding officers in jury trials to be elected by the people. + +[5] ["The earls, sheriffs, and head-boroughs were annually +elected in the full folcmote, (people's meeting)." Introduction +to Gilbert's History of the Common Pleas, p. 2, note. + +"It was the especial province of the earldomen or earl to attend +the shyre-meeting, (the county court,) twice a year, and there +officiate as the county judge in expounding the secular laws, as +appears by the fifth of Edgar's laws." Same, p. 2, note. + +"Every ward had its proper alderman, who was chosen, and not +imposed by the prince." Same, p. 4, text. + +"As the aldermen, or earls, were always chosen" (by the people) +"from among the greatest thanes, who in those times were +generally more addicted to arms than to letters, they were but +ill-qualified for the administration of justice, and performing +the civil duties of their office." 3 Henry's History of Great +Britain, 343. + +"But none of these thanes were annually elected in the full +folcmote, (people's meeting,) as the earls, sheriffs, and +head-boroughs were; nor did King Alfred (as this author suggests) +deprive the people of the election of those last mentioned +magistrates and nobles, much less did he appoint them himself." +Introd. to Gilbert's Hist. Com. Pleas, p. 2, note. + +"The sheriff was usually not appointed by the lord, but elected +by the freeholders of the district." Political Dictionary, word +Sheriff. + +"Among the most remarkable of the Saxon laws we may reckon +* * the election of their magistrates by the people, originally even +that of their kings, till dear-bought experience evinced the +convenience and necessity of establishing an hereditary +succession to the crown. But that (the election) of all +subordinate magistrates, their military officers or heretochs, +their sheriffs, their conservators of the peace, their coroners, +their portreeves, (since changed into mayors and bailiffs,) and +even their tithing-men and borsholders at the last, continued, +some, till the Norman conquest, others for two centuries after, +and some remain to this day." 4 Blackstone, 418. + +"The election of sheriffs was left to the people, according to +ancient usage." St. West. 1, c. 27. Crabbe's History of +English Law, 181. + + + +CHAPTER V. OBJECTIONS ANSWERED + +The following objections will be made to the doctrines and the +evidence presented in the preceding chapters. + +1. That it is a maxim of the law, that the judges respond to the +question of law, and juries only to the question of fact. +The answer to this objection is, that, since Magna Carta, judges +have had more than six centuries in which to invent and +promulgate pretended maxims to suit themselves; and this is one +of them. Instead of expressing the law, it expresses nothing but the +ambitious and lawless will of the judges themselves, and of those +whose instruments they are.[1] + +2. It will be asked, Of what use are the justices, if the jurors +judge both of law and fact? + +The answer is, that they are of use, 1. To assist and enlighten +the jurors, if they can, by their advice and information; such +advice and information to be received only for what they may +chance to be worth in the estimation of the jurors. 2. To do +anything that may be necessary in regard, to granting appeals and +new trials. + +3. It is said that it would be absurd that twelve ignorant men +should have power to judge of the law, while justices learned in +the law should be compelledto sit by and see the law decided +erroneously. + +One answer to this objection is, that the powers of juries are not +granted to them on the supposition that they know the law better +than the justices; but on the ground that the justices are +untrustworthy, that they are exposed to bribes, are themselves +fond of power and authority, and are also the dependent and +subservient creatures of the legislature; and that to allow them +to dictate the law, would not only expose the rights of parties to +be sold for money, but would be equivalent to surrendering all the +property, liberty, and rights of the people, unreservedly into the +hands of arbitrary power, (the legislature,) to be disposed of at +its pleasure. The powers of juries, therefore, not only place a +curb upon the powers of legislators and judges, but imply also an +imputation upon their integrity and trustworthiness: and these are +the reasons why legislators and judges have formerly entertained +the intensest hatred of juries, and, so fast as they could do it +without alarming the people for their liberties, have, by +indirection, denied, undermined, and practically destroyed their +power. And it is only since all the real power of juries has been +destroyed, and they have become mere tools in the hands of +legislators and judges, that they have become favorites with them. + +Legislators and judges are necessarily exposed to all the +temptations of money, fame, and power, to induce them to +disregard justice between parties, and sell the rights, and violate the +liberties of the people. Jurors, on the other hand, are exposed to +none of these temptations. They are not liable to bribery, for +they are unknown to the parties until they come into the jury-box. +They can rarely gain either fame, power, or money, by giving +erroneous decisions. Their offices are temporary, and they know +that when they shall have executed them, they must return to the +people, to hold all their own rights in life subject to the +liability of such judgments, by their successors, as they +themselves have given an example for. The laws of human nature +do not permit the supposition that twelve men, taken by lot from the +mass of the people, and acting under such circumstances, will all +prove dishonest. It is a supposable case that they may not be +sufficiently enlightened to know and do their whole duty, in all +cases whatsoever; but that they should all prove dishonest, is not +within the range of probability. A jury, therefore, insures to us +what no other court does that first and indispensable requisite +in a judicial tribunal, integrity. + +4. It is alleged that if juries are allowed to judge of the law, +they decide the law absolutely; that their decision must +necessarily stand, be it right or wrong; and that this power of +absolute decision would be dangerous in their hands, by reason of +their ignorance of the law. + +One answer is, that this power, which juries have of judging of +the law, is not a power of absolute decision in all cases. For +example, it is a power to declare imperatively that a man's +property, liberty, or life, shall not be taken from him; but it is +not a power to declare imperatively that they shall be taken from +him. + +Magna Carta does not provide that the judgments of the peers shall +be executed; but only that no other than their judgments shall +ever be executed, so far as to take a party's goods, rights, or +person, thereon. + +A judgment of the peers may be reviewed, and invalidated, and a +new trial granted. So that practically a jury has no absolute +power to take a party's goods, rights, or person. They have only +an absolute veto upon their being taken by the government. The +government is not bound to do everything that a jury may adjudge. +It is only prohibited from doing anything (that is, from taking +a party's goods, rights, or person) unless a jury have first +adjudged it to be done. + +But it will, perhaps, be said, that if an erroneous judgment of +one jury should be reaffirmed by another, on a new trial, it must +then be executed. But Magna Carta does not command even this +although it might, perhaps, have been reasonably safe for it to +have done so for if two juries unanimously affirm the same +thing, after all the light and aid that judges and lawyers can +afford them, that fact probably furnishes as strong a presumption +in favor of the correctness of their opinion, as can ordinarily be +obtained in favor of a judgment, by any measures of a practical +character for the administration of justice. Still, there is +nothing in Magna Carta that compels the execution of even a +second judgment of a jury. The only injunction of Magna Carta +upon the government, as to what it shall do, on this point, is that it +shall "do justice and right," without sale, denial, or delay. But +this leaves the government all power of determining what is +justice and right, except that it shall not consider anything as +justice and right so far as to carry it into execution against +the goods, rights, or person of a party unless it be something +which a jury have sanctioned. + +If the government had no alternative but to execute all judgments +of a jury indiscriminately, the power of juries would +unquestionably be dangerous; for there is no doubt that they may +sometimes give hasty and erroneous judgments. But when it is +considered that their judgments can be reviewed, and new trials +granted, this danger is, for all practical purposes, obviated. + +If it be said that juries may successively give erroneous +judgments, and that new trials cannot be granted indefinitely, the +answer is, that so far as Magna Carta is concerned, there is +nothing to prevent the granting of new trials indefinitely, if the +judgments of juries are contrary to "justice and right." So that +Magna Carta does not require any judgment whatever to be +executed so far as to take a party's goods, rights, or person, thereon +unless it be concurred in by both court and jury. + +Nevertheless, we may, for the sake of the argument, suppose the +existence of a practical, if not legal, necessity, for executing +some judgment or other, in cases where juries persist in +disagreeing with the courts. In such cases, the principle of Magna +Carta unquestionably is, that the uniform judgments of +successivejuries shall prevail over the opinion of the court. And +the reason of this principle is obvious, viz., that it is the will of the +country, and not the will of the court, or the government, that +must determine what laws shall be established and enforced; that +the concurrent judgments of successive juries, given in opposition +to all the reasoning which judges and lawyers can offer to the +contrary, must necessarily be presumed to be a truer exposition of +the will of the country, than are the opinions of the judges. + +But it may be said that, unless jurors submit to the control of +the court, in matters of law, they may disagree amongthemselves, +and never come to any judgment; and thus justice fail to be done. + +Such a case is perhaps possible; but, if possible, it can occur +but rarely; because, although one jury may disagree, a succession +of juries are not likely to disagree that is, on matters of +natural law, or abstract justice. [2] If such a thing should +occur, it would almost certainly be owing to the attempt of the +court to mislead them. It is hardly possible that any other cause +should be adequate to produce such an effect; because justice +comes very near to being a self-evident principle. The mind +perceives it almost intuitively. If, in addition to this, the +court be uniformly on the side of justice, it is not a reasonable +supposition that a succession of juries should disagree about it. +If, therefore, a succession of juries do disagree on the law of +any case, the presumption is, not that justice fails of being +done, but that injustice is prevented that injustice, which +would be done, if the opinion of the court were suffered to +control the jury. + +For the sake of the argument, however, it may be admitted to be +possible that justice should sometimes fail of being done through +the disagreements of jurors, notwithstanding all the light which +judges and lawyers can throw upon the question in issue. If it be +asked what provision the trial by jury makes for such cases, the +answer is, it makes none; and justice must fail of being done, +from the want of its being made sufficiently intelligible. + +Under the trial by jury, justice can never be done that is, by a +judgment that shall take a party's goods, rights, or person +until that justice can be made intelligible or perceptible to the +minds of all the jurors; or, at least, until it obtain the +voluntary assent of all an assent, which ought not to be given +until the justice itself shall have become perceptible to all. + +The principles of the trial by jury, then, are these: + +1. That, in criminal cases, the accused is presumed innocent. + +2. That, in civil cases, possession is presumptive proof of +property; or, in other words, every man is presumed to be the +rightful proprietor of whatever he has in his possession. + +3. That these presumptions shall be overcome, in a court of +justice, only by evidence, the sufficiency of which, and by law, +the justice of which, are satisfactory to the under- standing and +consciences of all the jurors. + +These are the bases on which the trial by jury places the +property, liberty, and rights of every individual. + +But some one will say, if these are the principles of the trial by +jury, then it is plain that justice must often fail to be done. +Admitting, for the sake of the argument, that this may be true, +the compensation for it is, that positive injustice will also +often fail to be done; whereas otherwise it would be done +frequently. The very precautions used to prevent injustice being +done, may often have the effect to prevent justice being done. Bu +are we, therefore, to take no precautions against injustice? By no +means, all will agree. The question then arises Does the trial +by jury, as here explained, involve such extreme and unnecessary +precautions against injustice, as to interpose unnecessary +obstacles to the doing of justice? Men of different minds may very +likely answer this question differently, according as they have +more or less confidence in the wisdom and justice of legislators, +the integrity and independence of judges, and the intelligence of +jurors. This much, however, may be said in favor of these +precautions, viz., that the history of the past, as well as our +constant present experience, prove how much injustice may, and +certainly will, be done, systematically and continually, for the +want of these precautions that is, while the law is authoritatively +made and expounded by legislators and judges. On the other hand, +we have no such evidence of how much justice may fail to be done, +by reason of these precautions that is, by reason of the law being +left to the judgments and consciences of jurors. We can determine +the former point that is, how much positive injustice is done +under the first of these two systems because the system is in full +operation; but we cannot determine how much justice would +fail to be done under the latter system, because we have, in +modern times, had no experience of the use of the precautions +themselves. In ancient times, when these precautions were +nominally in force, such was the tyranny of kings, and such the +poverty, ignorance, and the inability of concert and resistance, +on the part of the people, that the system had no full or fair +operation. It, nevertheless, under all these disadvantages, +impressed itself upon the understandings, and imbedded itself +in the hearts, of the people, so as no other system of civil liberty +has ever done. + +But this view of the two systems compares only the injustice done, +and the justice omitted to be done, in the individual cases adjudged, +without looking beyond them. And some persons might, on +first thought, argue that, if justice failed of being done under +the one system, oftener than positive injustice were done under +the other, the balance was in favor of the latter system. But such +a weighing of the two systems against each other gives no true +idea of their comparative merits or demerits; for, possibly, in +this view alone, the balance would not be very great in favor of +either. To compare, or rather to contrast, the two, we must +consider that, under the jury system, the failures to do justice +would be only rare and exceptional cases; and would be owing +either to the intrinsic difficulty of the questions, or to the +fact that the parties had. transacted their business in a manner +unintelligible to the jury, and the effects would be confined to +the individual or individuals interested in the particular suits. +No permanent law would be established thereby destructive of the +rights of the people in other like cases. And the people at large +would continue to enjoy all their natural rights as before. But +under the other system, whenever an unjust law is enacted by the +legislature, and the judge imposes it upon the jury as +authoritative, and they give a judgment in accordance therewith, +the authority of the law is thereby established, and the whole +people are thus brought under the yoke of that law; because they +then understand that the law will be enforced against them in +future, if they presume to exercise their rights, or refuse to +comply with the exactions of the law. In this manner all unjust +laws are established, and made operative against the rights of the +people. + +The difference, then, between the two systems is this: Under the +one system, a jury, at distant intervals, would (not enforce any +positive injustice, but only) fail of enforcing justice, in a dark +and difficult case, or in consequence of the parties not having +transacted their business in a manner intelligible to a jury; and +the plaintiff would thus fail of obtaining what was rightfully due +him. And there the matter would end, for evil, though not for +good; for thenceforth parties, warned, of the danger of losing +their rights, would be careful to transact their business in a +more clear and intelligible manner. Under the other system the +system of legislative and judicial authority positive injustice +is not only done in every suit arising under unjust laws, that +is, men's property, liberty, or lives are not only unjustly taken +on those particular judgments, but the rights of the whole people +are struck down by the authority of the laws thus enforced, and a +wide-sweeping tyranny at once put in operation. + +But there is another ample and conclusive answer to the argument +that justice would often fail to be done, if jurors were allowed +to be governed by their own consciences, instead of the direction +of the justices, in matters of law. That answer is this: + +Legitimate government can be formed only by the voluntary +association of all who contribute to its support. As a voluntary +association, it can have for its objects only those things in +which the members of the association are all agreed. If, +therefore, there be any justice, in regard to which all the +parties to the government are not agreed, the objects of the +association do not extend to it. [3] + +If any of the members wish more than this, if they claim to have +acquired a more extended knowledge of justice than is common to +all, and wish to have their pretended discoveries carried into +effect, in reference to themselves, they must either form a +separate association for that purpose, or be content to wait until +they can make their views intelligible to the people at large. +They cannot claim or expect that the whole people shall practise +the folly of taking on trust their pretended superior knowledge, +and of committing blindly into their hands all their own +interests, liberties, and rights, to be disposed of on principles, +the justness of which the people themselves cannot comprehend. + +A government of the whole, therefore, must necessarily confine +itself to the administration of such principles of law as all the +people, who contribute to the support of the government, can +comprehend and see the justice of. And it can be confined within +those limits only by allowing the jurors, who represent all the +parties to the compact, to judge of the law, and the justice of +the law, in all cases whatsoever. And if any justice be left +undone, under these circumstances, it is a justice for which the +nature of the association does not provide, which the association +does not undertake to do, and which, as an association, it is +under no obligation to do. + +The people at large, the unlearned and common people, have +certainly an indisputable right to associate for the establishment +and maintenance of such a government as they themselves see the +justice of, and feel the need of, for the promotion of their own +interests, and the safety of their own rights, without at the same +time surrendering all their property, liberty, and rights into the +hands of men, who, under the pretence of a superior and +incomprehensible knowledge of justice, may dispose of such +property, liberties, and rights, in a manner to suit their own +selfish and dishonest purposes. + +If a government were to be established and supported solely by +that portion of the people who lay claim to superior knowledge, +there would be some consistency in their saying that the common +people should not be received as jurors, with power to judge of +the justice of the laws. But so long as the whole people (or all +the male adults) are presumed to be voluntary parties to the +government, and voluntary contributors to it support, there is no +consistency in refusing to any one of them more than to another +the right to sit as juror, with full power to decide for himself +whether any law that is proposed to be enforced in any particular +case, be within the objects of the association. + +The conclusion, therefore, is, that, in a government formed by +voluntary association, or on the theory of voluntary association, +and voluntary support, (as all the North American governments +are,) no law can rightfully be enforced by the association in its +corporate capacity, against the goods, rights, or person of any +individual, except it be such as all the members of the +association agree that it may enforce. To enforce any other law, +to the extent of taking a man's goods, rights, or person, would be +making some of the parties to the association accomplices in what +they regard as acts of injustice. It would also be making them +consent to what they regard as the destruction of their own +rights. These are things which no legitimate system or theory of +government can require of any of the parties to it. + +The mode adopted, by the trial by jury, for ascertaining whether +all the parties to the government do approve of a particular law, +is to take twelve men at random from the whole people, and accept +their unanimous decision as representing the opinions of the +whole. Even this mode is not theoretically accurate; for +theoretical accuracy would require that every man, who was a +party to the government, should individually give his consent to the +enforcement of every law in every separate case. But such a thing +would be impossible in practice. The consent of twelve men is +therefore taken instead; with-the privilege of appeal, and (in +case of error found by the appeal court) a new trial, to guard +against possible mistakes. This system, it is assumed, will +ascertain the sense of the whole people "the country" with +sufficient accuracy for all practical purposes, and with as much +accuracy as is practicable without too great inconvenience and +expense. + +5. Another objection that will perhaps be made to allowing jurors +to judge of the law, and the justice of the law, is, that the law +would be uncertain. + +If, by this objection, it be meant that the law would be uncertain +to the minds of the people at large, so that they would not know +what the juries would sanction and what condemn, and would not +therefore know practically what their own rights and liberties +were under the law, the objection is thoroughly baseless and +false. No system of law that was ever devised could be so entirely +intelligible and certain to the minds of the people at large as +this. Compared with it, the complicated systems of law that are +compounded of the law of nature, of constitutional grants, of +innumerable and incessantly changing legislative enactments, and +of countless and contradictory judicial decisions, with no uniform +principle of reason or justice running through them, are among the +blindest of all the mazes in which unsophisticated minds were ever +bewildered and lost. The uncertainty of the law under these +systems has become a proverb. So great is this uncertainty, that +nearly all men, learned as well as unlearned, shun the law as +their enemy, instead of resorting to it for protection. They +usually go into courts of justice, so called, only as men go into +battle when there is no alternative left for them. And even then +they go into them as men go into dark labyrinths and caverns +with no knowledge of their own, but trusting wholly to their +guides. Yet, less fortunate than other adventurers, they can have +little confidence even in their guides, for the reason that the +guides themselves know little of the mazes they are threading. +They know the mode and place of entrance; but what they will +meet with on their way, and what will be the time, mode, place, +or condition of their exit; whether they will emerge into a prison, +or not; whether wholly naked and destitute, or not; whether with +their reputations left to them, or not; and whether in time or +eternity; experienced and honest guides rarely venture to predict. +Was there ever such fatuity as that of a nation of men madly bent +on building up such labyrinhs as these, for no other purpose than +that of exposing all their rights of reputation, property, liberty, +and life, to the hazards of being lost in them, instead of being +content to live in the light of the open day of their own +understandings? + +What honest, unsophisticated man ever found himself involved +in a lawsuit, that he did not desire, of all things, that his cause +might be judged of on principles of natural justice, as those +principles were understood by plain men like himself? He would +then feel that he could foresee the result. These plain men are +the men who pay the taxes, and support the government. Why +should they not have such an administration of justice as they +desire, and can understand? + +If the jurors were to judge of the law, and the justice of the +law, there would be something like certainty in the administration +of justice, and in the popular knowledge of the law, and men +would govern themselves accordingly. There would be something +like certainty, because every man has himself something like +definite and clear opinions, and also knows something of the +opinions of his neighbors, on matters of justice. And he would +know that no statute, unless it were so clearly just as to command +the unanimous assent of twelve men, who should be taken at random +from the whole community, could be enforced so as to take from him +his reputation, property, liberty, or life. What greater certainty can +men require or need, as to the laws under which they are to live? +If a statute were enacted by a legislature, a man, in order to know +what was its true interpretation, whether it were constitutional, and +whether it would be enforced, would not be under the necessity of +waiting for years until some suit had arisen and been carried through +all the stages of judicial proceeding, to a final decision. He would +need only to use his own reason as to its meaning and its justice, +and then talk with his neighbors on the same points. Unless he +found them nearly unanimous in their interpretation and approbation +of it, he would conclude that juries would not unite in enforcing it, +and that it would consequently be a dead letter. And he would be +safe in coming to this conclusion. + +There would be something like certainty in the administration of +justice, and in the popular knowledge of the law, for the further +reason that there would be little legislation, and men's rights +would be left to stand almost solely upon the law of nature, or +what was once called in England "the common law," (before so +much legislation and usurpation had become incorporated into the +common law,) in other words, upon the principles of natural justice. +Of the certainty of this law of nature, or the ancient English +common law, I may be excused for repeating here what, I have +said on another occasion. + +"Natural law, so far from being uncertain, when compared with +statutory and constitutional law, is the only thing that gives any +certainty at all to a very large portion of our statutory and +constitutional law. The reason is this. The words in which +statutes and constitutions are written are susceptible of so many +different meanings, meanings widely different from, often +directly opposite to, each other, in their bearing upon men's +rights, that, unless there were some rule of interpretation for +determining which of these various and opposite meanings are the +true ones, there could be no certainty at all as to the meaning of +the statutes and constitutions themselves. Judges could make +almost anything they should please out of them. Hence the +necessity of a rule of interpretation. And this rule is, that the +language of statutes and constitutions shall be construed, as +nearly as possible, consistently with natural law. + +The rule assumes, what is true, that natural law is a thing +certain in itself; also that it is capable of being learned. It +assumes, furthermore, that it actually is understood by the +legislators and judges who make and interpret the written law. +Of necessity, therefore, it assumes further, that they (the +legislators and judges) are incompetent to make and interpret the +written law, unless they previously understand the natural law +applicable to the same subject. It also assumes that the people +must understand the natural law, before they can understated the +written law. + +It is a principle perfectly familiar to lawyers, and one that must +be perfectly obvious to every other man that will reflect a +moment, that, as a general rule, no one can know what the written +law is, until he knows what it ought to be; that men are liable to +be constantly misled by the various and conflicting senses of the +same words, unless they perceive the true legal sense in which the +words ought to be taken. And this true legal sense is the sense +that is most nearly consistent with natural law of any that the +words can be made to bear, consistently with the laws of language, +and appropriately to the subjects to which they are applied. + +Though the words contain the law, the words themselves are not +the law. Were the words themselves the law, each single written +law would be liable to embrace many different laws, to wit, as +many different laws as there were different senses, and different +combinations of senses, in which each and all the words were +capable of being taken. + +Take, for example, the Constitution of the United States. By +adopting one or another sense of the single word "free," the +whole instrument is changed. Yet the word free is capable of some +ten or twenty different senses. So that, by changing the sense of +that single word, some ten or twenty different constitutions could +be made out of the same written instrument. But there are, we will +suppose, a thousand other words in the constitution, each of which +is capable of from two to ten different senses. So that, by +changing the sense of only a single word at a time, several +thousands of different constitutions would be made. But this is +not all. Variations could also be made by changing the senses of +two or more words at a time, and these variations could be run +through all the changes and combinations of senses that these +thousand words are capable of. We see, then, that it is no more +than a literal truth, that out of that single instrument, as it +now stands, without altering the location of a single word, might +be formed, by construction and interpretation, more different +constitutions than figures can well estimate. + +But each written law, in order to be a law, must be taken only in +some one definite and distinct sense; and that definite and +distinct sense must be selected from the almost infinite variety +of senses which its words are capable of. How is this selection to +be made? It can be only by the aid of that perception of natural +law, or natural justice, which men naturally possess. +Such, then, is the comparative certainty of the natural and the +written law. Nearly all the certainty there is in the latter, so +far as it relates to principles, is based upon, and derived from, +the still greater certainty of the former. In fact, nearly all the +uncertainty of the laws under which we live, which are a mixture +of natural and written laws, arises from the difficulty of +construing, or, rather, from the facility of misconstruing, the +written law; while natural law has nearly or quite the same +certainty as mathematics. On this point, Sir William Jones, one of +the most learned judges that have ever lived, learned in Asiatic +as well as European law, says, and the fact should be kept +forever in mind, as one of the most important of all truths: "It +is pleasing to remark, the similarity, or, rather, the identity of +those conclusions which pure, unbiased reason, in all ages; and +nations, seldom fails to draw, in such juridical inquiries as are +not fettered and manacled by positive institutions." [4] In short, +the simple fact that the written law must be interpreted by the +natural, is, of itself, a sufficient confession of the superior +certainty of the latter. + +The written law, then, even where it can be construed consistently +with the natural, introduces labor and obscurity, instead of +shutting them out. And this must always be the case, because +words do not create ideas, but only recall them; and the same +word may recall many different ideas. For this reason, nearly all +abstract principles can be seen by the single mind more clearly +than they can be expressed by words to another. This is owing to the +imperfection of language, and the different senses, meanings, and +shades of meaning, which different individuals attach to the same +words, in the same circumstances. [5] + +Where the written law cannot be construed consistently with the +natural, there is no reason why it should ever be enacted at all. +It may, indeed, be sufficiently plain and certain to be easily +understood; but its certainty and plainness are but a poor +compensation for its injustice. Doubtless a law forbidding men to +drink water, on pain of death, might be made so intelligible as to +cut off all discussion as to its meaning; but would the +intelligibleness of such a law be any equivalent for the right to +drink water? + +The principle is the same in regard to all unjust laws. Few +persons could reasonably feel compensated for the arbitrary +destruction of their rights, by having the order for their +destruction made known beforehand, in terms so distinct and +unequivocal as to admit of neither mistake nor evasion. Yet this +is all the compensation that such laws offer. + +Whether, therefore, written laws correspond with, or differ from, +the natural, they are to be condemned. In the first case, they are +useless repetitions, introducing labor and obscurity. In the +latter case, they are positive violations of men's rights. +There would be substantially the same reason in enacting +mathematics by statute, that there is in enacting natural law. +Whenever the natural law is sufficiently certain to all men's +minds to justify its being enacted, it is sufficiently certain to +need no enactment. On the other hand, until it be thus certain, +there is danger of doing injustice by enacting it; it should, +therefore, be left open to be discussed by anybody who may be +disposed to question it, and to be judged of by the proper +tribunal, the judiciary. [6] + +It is not necessary that legislators should enact natural law in +order that it may be known to the people, because that would be +presuming that the legislators already understand it better than +the people, a fact of which I am not aware that they have ever +heretofore given any very satisfactory evidence. The same sources +of knowledge on the subject are open to the people that are open +to the legislators, and the people must be presumed to know it as +well as they. + +The objections made to natural law, on the ground of obscurity, +are wholly unfounded. It is true, it must be learned, like any +other science; but it is equally true that it is very easily +learned. Although as illimitable in its applications as the +infinite relations of men to each other, it is, nevertheless, made +up of simple elementary principles, of the truth and justice of +which every ordinary mind has an almost intuitive perception. It +is the science of justice, and almost all men have the same +perceptions of what constitutes justice, or of what justice +requires, when they understand alike the facts from which their +inferences are to be drawn. Men living in contact with each other, +and having intercourse together, cannot avoid learning natural +law, to a very great extent, even if they would. The dealings of +men with men, their separate possessions, and their individual +wants, are continually forcing upon their minds the questions, +Is this act just? or is it unjust? Is this thing mine? or is it +his? And these are questions of natural law; questions, which, in +regard to the great mass of cases, are answered alike by the human +mind everywhere. + +Children learn many principles of natural law at a very early age. +For example: they learn that when one child has picked up an +apple or a flower, it is his, and that his associates must not take it +from him against his will. They also learn that if he voluntarily +exchange his apple or flower with a playmate, for some other +article of desire, he has thereby surrendered his right to it, and +must not reclaim it. These are fundamental principles of natural +law, which govern most of the greatest interests of individuals +and society; yet children learn them earlier than they learn that +three and three are six, or five and five, ten. Talk of enacting +natural law by statute, that it may be known! It would hardly be +extravagant to say, that, in nine cases in ten, men learn it +before they have learned the language by which we describe it. +Nevertheless, numerous treatises are written on it, as on other +sciences. The decisions of courts, containing their opinions upon +the almost endless variety of cases that have come before them, +are reported; and these reports are condensed, codified, and +digested, so as to give, in a small compass, the facts, and the +opinions of the courts as to the law resulting from them. And +these treatises, codes, and digests are open to be read of all +men. And a man has the same excuse for being ignorant of +arithmetic, or any other science, that he has for being ignorant +of natural law. He can learn it as well, if he will, without its +being enacted, as he could if it were. + +If our governments would but themselves adhere to natural law, +there would be little occasion to complain of the ignorance of the +people in regard to it. The popular ignorance of law is +attributable mainly to the innovations that have been made upon +natural law by legislation; whereby our system has become an +incongruous mixture of natural and statute law, with no uniform +principle pervading it. To learn such a system, if system it can +be called, and if learned it can be, is a matter of very similar +difficulty to what it would be to learn a system of mathematics, +which should consist of the mathematics of nature, interspersed +with such other mathematics as might be created by legislation, in +violation of all the natural principles of numbers and quantities. + +But whether the difficulties of learning natural law be greater or +less than here represented, they exist in the nature of things, +and cannot be removed. Legislation, instead of removing, only +increases them; This it does by innovating upon natural truths and +principles, and introducing jargon and contradiction, in the place +of order, analogy, consistency, and uniformity. + +Further than this; legislation does not even profess to remove the +obscurity of natural law. That is no part of its object. It only +professes to substitute something arbitrary in the place of +natural law. Legislators generally have the sense to see that +legislation will not make natural law any clearer than it is. +Neither is it the object of legislation to establish the authority +of natural law. Legislators have the sense to see that they can +add nothing to the authority of natural law, and that it will +stand on its own authority, unless they overturn it. +The whole object of legislation, excepting that legislation which +merely makes regulations, and provides instrumentalities for +carrying other laws into effect, is to overturn natural law, and +substitute for it the arbitrary will of power. In other words, the +whole object of it is to destroy men's rights. At least, such is +its only effect; and its designs must be inferred from its effect. +Taking all the statutes in the country, there probably is not one +in a hundred, except the auxiliary ones just mentioned, that +does not violate natural law; that does not invade some right or +other. + +Yet the advocates of arbitrary legislation are continually +practising the fraud of pretending that unless the legislature +make the laws, the laws will not be known. The whole object of +the fraud is to secure to the government the authority of making +lawsthat never ought to be known." + +In addition to the authority already cited, of Sir William Jones, +as to the certainty of natural law, and the uniformity of men's +opinions in regard to it, I may add the following: + +"There is that great simplicity and plainness in the Common Law, +that Lord Coke has gone so far as to assert, (and Lord Bacon +nearly seconds him in observing,) that 'he never knew two +questions arise merely upon common law; but that they were +mostly owing to statutes ill-penned and overladen with provisos.' " +3 Eunomus, 157 8. + +If it still be said that juries would disagree, as to what was +natural justice, and that one jury would decide one way, and +another jury another; the answer is, that such a thing is hardly +credible, as that twelve men, taken at random from the people at +large, should unanimously decide a question of natural justice one +way, and that twelve other men, selected in the same manner, +should unanimously decide the same question the other way, +unless they were misled by the justices. If, however, such things +should sometimes happen, from any cause whatever, the remedy +is by appeal, and new trial. + +[1] Judges do not even live up to that part of their own maxim, +which requires jurors to try the matter of fact. By dictating to +them the laws of evidence, that is, by dictating what evidence +they may hear, and what they may not hear, and also by dictating +to them rules for weighing such evidence as they permit them to +hear, they of necessity dictate the conclusion to which they +shall arrive. And thus the court really tries the question of +fact, as well as the question of law, in every cause. It is +clearly impossible, in the nature of things, for a jury to try, a +question of fact, without trying every question of law on which +the fact depends. + +[2] Most disagreements of juries are on matters of fact, which are +admitted to be within their province. We have little or no +evidence of their disagreements on matters of natural justice. The +disagreements of courts on matters of law, afford little or no +evidence that juries would also disagree on matters of law that +is, of justice, because the disagreements of courts are generally +on matters of legislation, and not on those principles of abstract +justice, by which juries would be governed, and in regard to which +the minds of men are nearly unanimous. + +[3] This is the principle of all voluntary associations +whatsoever. No voluntary association was ever formed, and in the +nature of things there never can be one formed, for the +accomplishment of any objects except those in which all the +parties to the association are agreed. Government, therefore, must +be kept within these limits, or it is no longer a voluntary +association of all who contribute to its support, but a mere +tyrant established by a part over the rest. + +All, or nearly all, voluntary associations give to a majority, or +to some other portion of the members less than the whole, the +right to use some limited discretion as to themeans to be used to +accomplish the ends in view; but the end themselves to be +accomplished are always precisely defined, and are such as every +member necessarily agrees to, else he would not voluntarily join +the association. + +Justice is the object of government, and those who support the +government, must be agreed as to the justice to be executed by it, +or they cannot rightfully unite in maintaining the government +itself. + +[4] Jones on Bailments, + +[5] Kent, describing the difficulty of construing the written law, +says: + +"Such is the imperfection of language, and the want of technical +skill in the makers of the law, that statutes often give occasion +to the most perplexing and distressing doubts and discussions, +arising from the ambiguity that attends them. It requires great +experience, as well as the command of a perspicuous diction, to +frame a law in such clear and precise terms, as to secure it from +ambiguous expressions, and from all doubts and criticisms upon its +meaning " Kent, 460. + +The following extract from a speech of Lord Brougham, in the +House of Lords, confesses the same difficulty: + +There was another subject, well worthy of the consideration of +government during the recess, the expediency, or rather the +absolute necessity, of some arrangement for the preparation of +bills, not merely private, but public bills, in order that +legislation might be consistent and systematic, and that the +courts might not have so large a portion of their time occupied in +endeavoring to construe acts of Parliament, in many cases +unconstruable, and in most cases difficult to be construed." Law +Reporter, 1848, p. 525. + +[6] This condemnation of written laws must, of course, be +understood as applying only to cases where principles and rights +are involved, and not as condemning any governmental +arrangements, or instrumentalities, that are consistent with natural +right, and which must be agreed upon for the purpose of carrying +natural law into effect. These things may be varied, as expediency +may dictate, so only that they be allowed to infringe no principle of +justice. And they must, of course, be written, because they do not +exist as fixed principles, or laws in nature. + + +CHAPTER VI. JURIES OF THE PRESENT DAY ILLEGAL + +It may probably be safely asserted that there are, at this day, +no legal juries, either in England or America. And if there are +no legal juries, there is, of course, no legal trial, nor +"judgment," by jury. + +In saying that there are probably no legal juries, I mean that +there are probably no juries appointed in conformity with the +principles of the common law. + +The term jury is a technical one, derived from the common law; +and when the American constitutions provide for the trial by +jury, they provide for the common law trial by jury; and not +merely for any trial by jury that the government itself may +chance to invent, and call by that name. It is the thing, and not +merely the name, that is guarantied. Any legislation, therefore, +that infringes any essential principle of the common law, in the +selection of jurors, is unconstitutional; and the juries selected +in accordance with such legislation are, of course, illegal, and +their judgments void. + +It will also be shown, in a subsequent chapter, [1] that since +Magna Carta, the legislative power in England (whether king or +parliament) has never had any constitutional authority to +infringe, by legislation, any essential principle of the common +law in the selection of jurors. All such legislation is as much +unconstitutional and void, as though it abolished the trial by +jury altogether. In reality it does abolish it. + +What, then, are the essential principles of the common law, +controlling the selection of jurors? + +They are two. + +1. That all the freemen, or adult male members of the state, +shall be eligible as jurors. [2] + +Any legislation which requires the selection of jurors to be made +from a less number of freemen than the whole, makes the jury +selected an illegal one. + +If a part only of the freemen, or members of the state, are +eligible as jurors, the jury no longer represent "the country," +but only a part of "the country." + +If the selection of jurors can be restricted to any less number +of freemen than the whole, it can be restricted to a very small +proportion of the whole; and thus the government be taken out of +the hands of " the country," or the whole people, and be thrown +into the hands of a few. + +That, at common law, the whole body of freemen were eligible as +jurors, is sufficiently proved, not only by the reason of the +thing, but by the following evidence: + +1. Everybody must be presumed eligible, until the contrary +be shown. We have no evidence, that I am aware of, of a +prior date to Magna Carta, to disprove that all freemen were +eligible as jurors, unless it be the law of Ethelred, which +requires that they be elderly [3] men. Since no specific age +is given, it is probable, I think, that this statute meant +nothing more than that they be more than twenty-one years +old. If it meant anything more, it was probably contrary to +the common law, and therefore void. + +2. Since Magna Carta, we have evidence showing quite +conclusively that all freemen, above the age of twenty-one +years, were eligible as jurors. + +The Mirror of Justices, (written within a century after +Magna Carta,) in the section " Of Judges" that is, jurors +says: + +"All those who are not forbidden by law may be judges +(jurors). + +To women it is forbidden by law that they be judges; and thence it +is, that feme coverts are exempted to do suit in inferior courts. +On the other part, a villein cannot be a judge, by reason of the +two estates, which are repugnants; persons attainted of false +judgments cannot be judges, nor infants, nor any under the age of +twenty-one years, nor infected persons, nor idiots, nor madmen, +nor deaf, nor dumb, nor parties in the pleas, nor men +excommunicated by the bishop, nor criminal persons. * * And +those who are not of the Christian faith cannot be judges, nor those +who are out of the king's allegiance." Mirror of Justices, 59 60. + +In the section " Of Inferior Courts," it is said: + +"From the first assemblies came consistories, which we now call +courts, and that in divers places, and in divers manners: whereof +the sheriffs held one monthly, or every five weeks according to +the greatness or largeness of the shires. And these courts are +called county courts, where the judgment is by the suitors, if +there be no writ, and is by warrant of jurisdiction ordinary. The +other inferior courts are the courts of every lord of the fee, to +the likeness of the hundred courts. There are other inferior +courts which the bailiffs hold in every hundred, from three weeks +to three weeks, by the suitors of the freeholders of the hundred. +All the tenants within the fees are bounden to do their suit +there, and that not for the service of their persons, but for the +service of their fees. But women, infants within the age of +twenty-one years, deaf, dumb, idiots, those who are indicted or +appealed of mortal felony, before they be acquitted, diseased +persons, and excommunicated persons are exempted from doing +suit." Mirror of Justices, 50 51. + +In the section "Of the Sheriff's Turns," it is said: + +"The sheriff's by ancient ordinances hold several meetings twice +in the year in every hundred; where all the freeholders within the +hundred are bound to appear for the service of their fees." +Mirror of Justices, 50. + +The following statute was passed by Edward I., seventy years after +Magna Carta: + +"Forasmuch also as sheriffs, hundreders, and bailiffs of +liberties, have used to grieve those which be placed under them, +putting in assizes and juries men diseased and decrepit, and +having continual or sudden disease; and men also that dwelled not +in the country at the time of the summons; and summon also an +unreasonable number of jurors, for to extort money from some of +them, for letting them go in peace, and so the assizes and juries +pass many times by poor men, and the rich abide at home by +reason of their bribes; it is ordained that from henceforth in one +assize no more shall be summoned than four and twenty; and +old men above three score and ten years, being continually sick, +or being diseased at the time of the summons, or not dwelling in +that country, shall not be put in juries of petit assizes." St. 13 +Edward I., ch. 38. (1285.) + +Although this command to the sheriff's and other officers, not to +summon, as jurors, those who, from age and disease, were +physically incapable of performing the duties, may not, of itself, +afford any absolute or legal implication, by which we can +determine precisely who were, and who were not, eligible as jurors +at common law, yet the exceptions here made nevertheless carry a +seeming confession with them that, at common law, all male +adults were eligible as jurors. + +But the main principle of the feudal system itself, shows that all +the full and free adult male members of the state that is, all +who were free born, and had not lost their civil rights by crime, +or otherwise must, at common law, have been eligible as jurors. +What was that principle? It was, that the state rested for support +upon the land, and not upon taxation levied upon the people +personally. The lands of the country were considered the property +of the state, and were made to support the state in this way: A +portion of them was set apart to the king, the rents of which went +to pay his personal and official expenditures, not including the +maintenance of armies, or the administration of justice. War and +the administration of justice were provided for in the following +manner. The freemen, or the free-born adult male members of the +state who had not forfeited their political rights were +entitled to land of right, (until all the land was taken up,) on +condition of their rendering certain military and civil services, +to the state. The military services consisted in serving +personally as soldiers, or contributing an equivalent in horses, +provisions, or other military supplies. The civil services +consisted, among other things, in serving as jurors (and, it would +appear, as witnesses) in the courts of justice. For these services +they received no compensation other than the use of their lands. +In this way the state was sustained; and the king had no power to +levy additional burdens or taxes upon the people. The persons +holding lands on these terms were called freeholders in later +times freemen meaning free and full members of the state. + +Now, as the principle of the system was that the freeholders held +their lands of the state, on the condition of rendering these +military and civil services as rents for their lands, the +principle implies that all the freeholders were liable to these +rents, and were therefore eligible as jurors. Indeed, I do not +know that it has ever been doubted that, at common law, all the +freeholders were eligible as jurors. If all had not been eligible, +we unquestionably should have had abundant evidence of the +exceptions. And if anybody, at this day, allege any exceptions, +the burden will be on him to prove them. The presumption clearly +is that all were eligible. + +The first invasion which I find made, by the English statutes, +upon this common law principle, was made in I285, seventy years +after Magna Carta. It was then enacted as follows: + +"Nor shall, any be put in assizes or juries, though they ought to +be taken in their own shire, that hold a tenement of less than the +value of twenty shillings yearly. And if such assizes and juries +be taken out of the shire, no one shall be placed in them who +holds a tenement of less value than forty shillings yearly at the +least, except such as be witnesses in deeds or other writings, +whose presence is necessary, so that they be able to travel." +St. 13 .Edward I., ch. 38. (1285.) + +The next invasion of the common law, in this particular, was made +in 1414, about two hundred years after Magna Carta, when it was +enacted: + +"That no person shall be admitted to pass in any inquest upon +trial of the death of a man, nor in any inquest betwixt party and +party in plea real, nor in plea personal, whereof the debt or the +damage declared amount to forty marks, if the same person have +not lands or tenements of the yearly value of forty shillings above +all charges of the same." 2 Henry V., st. 2, ch. 3. (1414.) + +Other statutes on this subject of the property qualifications of +jurors, are given in the note. [4] + +From these statutes it will be seen that, since 1285, seventy +years after Magna Carta, the common law right of all free British +subjects to eligibility as jurors has been abolished, and the +qualifications of jurors have been made a subject of arbitrary +legislation. In other words, the government has usurped the +authority of selecting the jurors that were to sit in judgment +upon its own acts. This is destroying the vital principle of the +trial by jury itself, which is that the legislation of the government +shall be subjected to the judgment of a tribunal, taken +indiscriminately from the whole people, without any choice by the +government, and over which the government can exercise no +control. If the government can select the jurors, it will, of course, +select those whom it supposes will be favorable to its enactments. +And an exclusion of any of the freemen from eligibility is a +selection of those not excluded. + +It will be seen, from the statutes cited, that the most absolute +authority over the jury box that is, over the right of the +people to sit in juries has been usurped by the government; that +the qualifications of jurors have been repeatedly changed, and +made to vary from a freehold of ten shillings yearly, to one of +"twenty pounds by the year at least above reprises." They have +also been made different, in the counties of Southampton, Surrey, +and Sussex, from what they were in the other counties; different +in Wales from what they were in England; and different in the city +of London, and in the county of Middlesex, from what they were in +any other part of the kingdom. + +But this is not all. The government has not only assumed +arbitrarily to classify the people, on the basis of property, but +it has even assumed to give to some of its judges entire and +absolute personal discretion in the selection of the jurors to be +impaneled in criminal cases, as the following statutes show. + +"Be it also ordained and enacted by the same authority, that all +panels hereafter to be returned, which be not at the suit of any +party, that shall be made and put in afore any justice of gaol +delivery or justices of peace in their open sessions to inquire +for the king, shall hereafter be reformed by additions and taking +out of names of persons by discretion of the same justices before +whom such panel shall be returned; and the same justices shall +hereafter command the sheriff, or his ministers in his absence, to +put other persons in the same panel by their discretions; and that +panel so hereafter to be made, to be goodand lawful. This act to +endure only to the next Parliament " 11 Henry VII., ch. 24, sec. +6. (1495.) + +This act was continued in force by 1 Henry VIII, ch. 11, (1509,) +to the end of the then next Parliament. + +It was reenacted, and made perpetual, by 3 Henry VIII., ch. 12. +(1511.) + +These acts gave unlimited authority to the king's' justices to +pack juries at their discretion; and abolished the last vestige of +the common law right of the people to sit as jurors, and judge of +their own liberties, in the courts to which the acts applied. + +Yet, as matters of law, these statutes were no more clear +violations of the common law, the fundamental and paramount +"law of the land," than were those statutes which affixed the +property qualifications before named; because, if the king, or the +government, can select the jurors on the ground of property, it +can select them on any other ground whatever. + +Any infringement or restriction of the common law right of the +whole body of the freemen of the kingdom to eligibility as jurors, +was legally an abolition of the trial by jury itself. The juries +no longer represented "the country," but only a part of the +country; that part, too, on whose favor the government chose to +rely for the maintenance of its power, and which it therefore saw +fit to select as being the most reliable instruments for its +purposes of oppression towards the rest. And the selection was +made on the same principle, on which tyrannical governments +generally select their supporters, viz., that of conciliating +those who would be most dangerous as enemies, and most +powerful as friends that is, the wealthy. [6] + +These restrictions, or indeed any one of them, of the right of +eligibility as jurors, was, in principle, a complete abolition of +the English constitution; or, at least, of its most vital and +valuable part. It was, in principle, an assertion of a right, on +the part of the government, to select the individuals who were to +determine the authority of its own laws, and the extent of its own +powers. It was, therefore, in effect, the assertion of a right, on +the part of the government itself, to determine its own powers, +and the authority of its own legislation, over the people; and a +denial of all right, on the part of the people, to judge of or +determine their own liberties against the government. It was, +therefore, in reality, a declaration of entire absolutism on the +part of the government. It was an act as purely despotic, in +principle, as would have been the express abolition of all juries +whatsoever. By "the law of the land," which the kings were sworn +to maintain, every free adult male British subject was eligible to +the jury box, with full power to exercise his own judgment as to +the authority and obligation of every statute of the king, which +might come before him. But the principle of these statutes (fixing +the qualifications of jurors) is, that nobody is to sit in +judgment upon the acts or legislation of the king, or the +government, except those whom the government itself shall select +for that purpose. A more complete subversion of the essential +principles of the English constitution could not be devised. + +The juries of England are illegal for another reason, viz., that +the statutes cited require the jurors (except in London and a few +other places) to be freeholders. All the other free British +subjects are excluded; whereas, at common law, all such subjects +are eligible to sit in juries, whether they be freeholders or not. + +It is true, the ancient common law required the jurors to be +freeholders; but the term freeholder no longer expresses the same +idea that it did in the ancient common law; because no land is now +holden in England on the same principle, or by the same tenure, as +that on which all the land was held in the early times of the +common law. + +As has heretofore been mentioned, in the early times of the +common law the land was considered the property of the state; +and was all holden by the tenants, so called, (that is, holders,) +on the condition of their rendering certain military and civil services +to the state, (or to the king as the representative of the state,) +under the name of rents. Those who held lands on these terms +were called free tenants, that is, free holders meaning free persons, +or members of the state, holding lands to distinguish them from +villeins, or serfs, who were not members of the state, but held +their lands by a more servile tenure, and also to distinguish them +from persons of foreign birth, outlaws, and all other persons, who +were not members of the state. + +Every freeborn adult male Englishman (who had not lost his civil +right" by crime or otherwise) was entitled to land of right; that +is, by virtue of his civil freedom, or membership of the body +politic. Every member of the state was therefore a freeholder; and +every freeholder was a member of the state. And the members of +the state were therefore called freeholders. But what is material to +be observed, is, that a man's right to land was an incident to his +civil freedom; not his civil freedom an incident to his right to +land. He was a freeholder because he was a freeborn member of +the state; and not a freeborn member of the state because he was a +freeholder; for this last would be an absurdity. + +As the tenures of lands changed, the term freeholder lost its +original significance, and no longer described a man who held land +of the state by virtue of his civil freedom, but only one who held +it in fee-simple that is, free of any liability to military or +civil services. But the government, in fixing the qualifications +of jurors, has adhered to the term freeholder after that term has +ceased to express the thing originally designated by it. + +The principle, then, of the common law, was, that every freeman, +or freeborn male Englishman, of adult age, &c;., was eligible to +sit in juries, by virtue of his civil freedom, or his being a +member of the state, or body politic. Rut the principle of the +present English statutes is, that a man shall have a right to sit +in juries because he owns lands in fee-simple. At the common law +a man was born to the right to sit in juries. By the present +statutes he buys that right when he buys his land. And thus this, +the greatest of all the political rights of an Englishman, has +become a mere article of merchandise; a thing that is bought and +sold in the market for what it will bring. + +Of course, there can be no legality in such juries as these; but +only in juries to which every free or natural born adult male +Englishman is eligible. + +The second essential principle of the common law, controlling the +selection of jurors, is, that when the selection of the actual +jurors comes to be made, (from the whole body of male adults,) +that selection shall be made in some mode that excludes the +possibility of choice on the part of the government. + +Of course, this principle forbids the selection to be made by any +officer of the government. + +There seem to have been at least three modes of selecting the +jurors, at the common law. 1. By lot. [7] 2. Two knights, or other +freeholders, were appointed, (probably by the sheriff,) to select +the jurors. 3. By the sheriff, bailiff, or other person, who held +the court, or rather acted as its ministerial officer. Probably +the latter mode may have been the most common, although there +may be some doubt on this point. + +At the common law the sheriff's, bailiffs, and other officers were +chosen by the people, instead of being appointed by the king. (4 +Blackstone, 413. Introduction to Gilbert's History of the Common +Pleas, p. 2; note, and p. 4.) This has been shown in a former +chapter. [8] At common law, therefore, jurors selected by these +officers were legally selected, so far as the principle now under +discussion is concerned; that is, they were not selected by any +officer who was dependent on the government. + +But in the year 1315, one hundred years after Magna Carta, the +choice of sheriff's was taken from the people, and it was enacted: + +"That the sheriffs shall henceforth be assigned by the chancellor, +treasurer, barons of the exchequer, and by the justices. And in +the absence of the chancellor, by the treasurer, barons and +justices." 9 Edward II., st. 2. (1315.) + +These officers, who appointed the sheriffs, were themselves +appointed by the king, and held their offices during his pleasure. +Their appointment of sheriffs was, therefore, equivalent to an +appointment by the king himself. And the sheriffs, thus appointed, +held their offices only during the pleasure of the king, and were +of course mere tools of the king; and their selection of jurors +was really a selection by the king himself. In this manner the +king usurped the selection of the jurors who were to sit in +judgment upon his own laws. + +Here, then, was another usurpation, by which the common law trial +by jury was destroyed, so far as related to the county courts, in +which the sheriff's presided, and which were the most important +courts of the kingdom. From this cause alone, if there were no +other, there has not been a legal jury in a county court in +England, for more than five hundred years. + +In nearly or quite all the States of the United States the juries +are illegal, for one or the other of the same reasons that make +the juries in England illegal. + +In order that the juries in the United States may be legal that +is, in accordance with the principles of the common law it is +necessary that every adult male member of the state should have +his name in the jury box, or be eligible as a juror. Yet this is +the case in hardly a single state. + +In New Jersey, Maryland, North Carolina, Tennessee, and +Mississippi, the jurors are required to be freeholders. But this +requirement is illegal, for the reason that the term freeholder, +in this country, has no meaning analogous to the meaning it had in +the ancient common law. + +In Arkansas, Missouri, Indiana, and Alabama, jurors are required +to be "freeholders or householders." Each of these requirements is +illegal. + +In Florida, they are required to be "householders." + +In Connecticut, Maine, Ohio, and Georgia, jurors are required to +have the qualifications of "electors." + +In Virginia, they are required to have a property qualification of +one hundred dollars. + +In Maine, Massachusetts, Vermont, Connecticut, New York, Ohio, +Indiana, Michigan, and Wisconsin, certain civil authorities of the +towns, cities, and counties are authorized to select, once in one, +two, or three years, a certain number of the people a small +number compared with the whole from whom jurors are to be +taken +when wanted; thus disfranchising all except, the few thus +selected. + +In Maine and Vermont, the inhabitants, by vote in town meeting, +have a veto upon the jurors selected by the authorities of the +town. + +In Massachusetts, the inhabitants, by vote in town meeting, can +strike out any names inserted by the authorities, and insert +others; thus making jurors elective by the people, and, of course, +representatives only of a majority of the people. + +In Illinois, the jurors are selected, for each term of court, by +the county commissioners. + +In North Carolina, "the courts of pleas and quarter sessions shall +select the names of such persons only as are freeholders, and as +are well qualified to act as jurors, &c;.; thus giving the courts +power to pack the juries." (Revised Statutes, 147.) + +In Arkansas, too, "It shall be the duty of the county court of +each county * to make out and cause to be delivered to the sheriff +a list of not less than sixteen, nor more than twenty-three +persons, qualified to serve as grand jurors;" and the sheriff is +to summon such persons to serve as grand jurors. + +In Tennessee, also, the jurors are to be selected by the county +courts. + +In Georgia, the jurors are to be selected by "the justices of the +inferior courts of each county, together with the sheriff and +clerk, or a majority of them." + +In Alabama, "the sheriff; judge of the county court, and clerks of +the circuit and county courts," or "a majority of" them, select +the jurors. + +In Virginia, the jurors are selected by the sheriffs; but the +sheriff's are appointed by the governor of the state, and that is +enough to make the juries illegal. Probably the same objection +lies against the legality of the juries in some other states. + +How jurors are appointed, and what are their qualifications, in +New Hampshire, Rhode Island, Pennsylvania, Delaware, South +Carolina, Kentucky, Iowa, Texas, and California, I know not. +There +is little doubt that there is some valid objection to them, of the +kinds already suggested, in all these states. + +In regard to jurors in the courts of the United States, it is +enacted, by act of Congress: + +"That jurors to serve in the courts of the United States, in each +state respectively, shall have the like qualifications and be +entitled to the like exemptions, as jurors of the highest court of +law of such state now have and are entitled to, and shall +hereafter, from time to time, have and be entitled to, and shall +be designated by ballot, lot, or otherwise, according to the mode +of forming such juries now practised and hereafter to be practised +therein, in so far as such mode may be practicable by the courts +of the United States, or the officers thereof; and for this +purpose, the said courts shall have power to make all necessary +rules and regulations for conforming the designation and +empanelling of jurors, in substance, to the laws and usages now in +force in such state; and, further, shall have power, by role or +order, from time to time, to conform the same to any change in +these respects which may be hereafter adopted by the legislatures +of the respective states for the state courts." St. 1840, ch. +47, Statutes at Large, vol. 5, p. 394. + +In this corrupt and lawless manner, Congress, instead of taking +care to preserve the trial by jury, so far as they might, by +providing for the appointment of legal juries incomparably the +most important of all our judicial tribunals, and the only ones on +which the least reliance can be placed for the preservation of +liberty have given the selection of them over entirely to the +control of an indefinite number of state legislatures, and thus +authorized each state legislature to adapt the juries of the +United States to the maintenance of any and every system of +tyranny that may prevail in such state. + +Congress have as much constitutional right to give over all the +functions of the United States government into the hand of the +state legislatures, to be exercised within each state in such +manner as the legislature of such state shall please to exercise +them, as they have to thus give up to these legislatures the +selection of juries for the courts of the United States. + +There has, probably, never been a legal jury, nor a legal trial by +jury, in a single court of the United States, since the adoption +of the constitution. + +These facts show how much reliance can be placed in written +constitutions, to control the action of the government, and +preserve the liberties of the people. + +If the real trial by jury had been preserved in the courts of the +United States that is, if we had had legal juries, and the +jurors had known their rights it is hardly probable that one +tenth of the past legislation of Congress would ever have been +enacted, or, at least, that, if enacted, it could have been +enforced. + +Probably the best mode of appointing jurors would be this: Let the +names of all the adult [male] [9] members of the state, in each +township, be kept in a jury box, by the officers of the township; +and when a court is to be held for a county or other district, let +the officers of a sufficient number of townships be required +(without seeing the names) to draw out a name from their boxes +respectively, to be returned to the court as a juror. This mode of +appointment would guard against collusion and selection; and +juries so appointed would be likely to be a fair epitome of "the +country." + +[1]On the English Constitution. + +[2] Although all the freemen are legally eligible as jurors, any +one may nevertheless be challenged and set aside, at the trial, +for any special personal disqualification; such as mental or +physical inability to perform the duties; having been convicted, +or being under charge, of crime; interest, bias, &c;. But it is +clear that the common law allows none of these points to be +determined by the court, but only by "triers." + +[3] What was the precise meaning of the Saxon word, which I have +here called elderly, I do not know. In the Latin translations it +is rendered by seniores, which may perhaps mean simply those +who have attained their majority. + +[4] In 1485 it was enacted, by a statute entitled " Of what credit +and estate those jurors must be which shall be impaneled in the +Sheriff's Turn." + +"That no bailiff nor other officer from henceforth return or +impanel any such person in any shire of England, to be taken or +put in or upon any inquiry in any of the said Turns, but such as +be of good name and fame, and having lands and tenements of +freehold within the same shires, to the yearly value of twenty +shillings at the least, or else lands and tenements holden by +custom of manor, commonly called copy-hold, within the said +shires, to the yearly value of twenty-six shillings eight pence +over all charges at the least." 1 Richard III., ch. 4. (1483 ) + +In 1486 it was enacted, " That the justices of the peace of every +shire of this realm for the time being may take, by their +discretion, an inquest, whereof every man shall have lands and +tenements to the yearly value of forty shillings at the least, to +inquire of the concealments of others," &c;., &c;. 3 Henry VII, +ch. 1. (1486.) + +A statute passed in 1494, in regard to jurors in the city of +London, enacts: + +"That no person nor persons hereafter be impaneled, summoned, +or sworn in any jury or inquest in courts within the same city, (of +London,) except he be of lands, tenements, or goods and chattels, +to the value of forty marks; [5] and that no person or persons +hereafter be impaneled, summoned, nor sworn in any jury or +inquest in any court within the said city, for lands or tenements, or +action personal, wherein the debt or damage amounteth to the sum +of forty marks, or above, except he be in lands tenements, goods, +or chattels, to the value of one hundred marks." 11 Henry VII. +ch. 21. (1494.) + +The statute 4 Henry VIII, ch. 3, sec. 4, (1512) requires jurors in +London to have "goods to the value of one hundred marks." + +In 1494 it was enacted that "It shall be lawful to every sheriff +of the counties of Southampton, Surrey., and Sussex, to impanel +and summons twenty-four lawful men of such, inhabiting within +the precinct of his or their turns, as owe suit, to the same turn, +whereof every one hath lands or freehold to the yearly value of +ten shillings, or copyhold lands to the yearly value of thirteen +shillings four pence, above all charges within any of the said +counties, or men of less livelihood, if there be not so many +there, not withstanding the statute of 1 Richard III., ch. 4. To +endure to the next parliament." 11 Henry VII., ch. 24. (1494.) +This statute was continued in force by 19 Henry VII., ch. 16 +(1503.) + +In 1531 it was enacted, "That every person or person being the +king's natural subject born, which either by the name of citizen, +or of a freeman, or any other name, doth enjoy and use the +liberties and privileges of any city, borough, or town corporate, +where he dwelleth and maketh his abode, being worth in moveable +goods and substance to the clear value of forty pounds, be +henceforth admitted in trials of murders and felonies in every +sessions and gaol delivery, to be kept and holden in and for the +liberty of such cities, boroughs, and towns corporate, albeit they +have no freehold; any act, statute, use, custom, or ordinance to +the contrary hereof notwithstanding." 23 Henry VIII., ch. 13. +(1531.) + +In 1585 it was enacted, "That in all cases where any jurors to be +returned for trial of any issue or issues joined in any of the +Queen's majesty's courts of King's Bench, Common Pleas, and the +Exchequer, or before judices of assize, by the laws of this realm +now in force, ought to have estate of freehold in lands, +tenements, or hereditaments, of the clear yearly value of forty +shillings, that in every such case the jurors that shall be +returned from and after the end of this present session of +parliament, shall every of them have estate of freehold in lands, +tenements, or hereditaments, to the clear yearly value of four +pounds at the least." 27 Elizabeth, ch. 6. (1585.) + +In 1664-5 it was enacted "That all jurors (other than strangers +upon trials per medietatem linquae) who are to be returned for the +trials of issues joined in any of (his) majesty's courts of king's +bench, common pleas, or the exchequer, or before justices of +assize, nisi prius, oyer and terminer, gaol delivery, or general +or quarter sessions of the peace from and after the twentieth day +of April, which shall be in the year of our Lord one thousand six +hundred and sixty-five, in any county of this realm of England, +shall every of them then have, in their own name, or in trust for +them, within the same county, twenty pounds, by the year, at +least, above reprises, in their own or their wives right, of +freehold lands, or of ancient demesne, or of rents in fee, +fee-tail, or for life. And that in every county within the +dominion of Wales every such juror shall then have, within the +some, eight pounds by the year, at the least, above reprises, in +manner aforesaid. All which persons having such estate as +aforesaid are hereby enabled and made liable to be returned and +serve as jurors for the trial of issues before the justices +aforesaid, any law or statute to the contrary in any wise +notwithstanding," 16 and 17 Charles II., ch. 5. (1664-5,) + +By a statute passed in 1692, jurors in England are to have landed +estates of the value of ten pounds a year, and jurors in Wales to +have similar estates of the realm of six pounds a year. 4 and 5 +William and Mary, ch. 24, sec. 14, (1692,) + +By the same statute, (sec. 18,) persons may be returned to serve +upon the tales in any county of England, who shall have within the +same county, five pounds by the year, above reprises, in the +manner aforesaid. + +By St. 3 George II., ch. 25, sec. 10, 20, no one is to be a juror +in London, who shall not be "an householder within the said city, +and have lands, tenements, or personal estate, to the value of one +hundred pounds." + +By another statute, applicable only to the county of Middlesex, it +is enacted, "That all leaseholders, upon leases where the improved +rents or value shall amount to fifty pounds or upwards per annum, +over and above all ground rents or other reservations payable by +virtue of the said leases, shall be liable and obliged to serve +upon juries when they shall be legally summoned for that +purpose.," 4 George II., ch. 7, sec, 3. (1731.) + +[5] A mark was thirteen shillings and four pence. + +[6] Suppose these statutes, instead of disfranchising all whose +freeholds were of less than the standard value fixed by the +statutes, had disfranchised all whose freeholds were of greater +value than the same standard would anybody ever have doubted +that such legislation was inconsistent with the English +constitution; or that it amounted to an entire abolition of the +trial by jury? Certainly not. Yet it was as clearly inconsistent +with the common law, or the English constitution, to disfranchise +those whose freeholds fell below any arbitrary standard fixed by +the government, as it would have been to disfranchise all whose +freeholds rose above that standard. + +[7] Lingard says: "These compurgators or jurors * * were +sometimes * * drawn by lot." 1 Lingard's History of England, +p. 300. + +[8] Chapter 4, p. 120, note. + +[9] Editor's Note: (The following was not in Spooner's addition) +With the ratification of Article XIX of amendment to the +Constitution for the United States, August 20, 1920, women were +fully enfranchised with all rights of voting and jury service in all states +of the Union. + + +CHAPTER VII. ILLEGAL JUDGES + +IT is a principle of Magna Carta, and therefore of the trial by +jury, (for all parts of Magna Carta must be construed together,) +that no judge or other officer appointed by the king, shall +preside in jury trials, in criminal cases, or "pleas of the +crown." + +This provision is contained in the great charters of both John +and Henry, and is second in importance only to the provision +guaranteeing the trial by jury, of which it is really a part. +Consequently, without the observance of this prohibition, there +can be no genuine or legal that is, common law trial by jury. +At the common law, all officers who held jury trials, whether in +civil or criminal cases, were chosen by the people. [1] + +But previous to Magna Carta, the kings had adapted the practice +of sending officers of their own appointment, called justices, +into the counties, to hold jury trials in some cases; and Magna +Carta authorizes this practice to be continued so far as it +relates to three kinds of civil actions, to wit: "novel +disseisin, mort de ancestor, and darrein presentment;" [2] but +specially forbids its being extended to criminal cases, or pleas +of the crown. + +This prohibition is in these words: + +"Nullus vicecomes, constabularius, coronator, vel alii balivi +nostri, teneant placita coronae nostrae." (No sheriff, constable, +coroner, or other our bailiffs, shall hold pleas of our crown.) +John's Charter, ch. 53, Henry's ditto, ch. 17. + +Some persons seem to have supposed that this was a prohibition +merely upon officers bearing the specific names of "sheriffs, +constables, coroners and bailiffs," to hold criminal trials. But +such is not the meaning. If it were, the name could be changed, +and the thing retained; and thus the prohibition be evaded. The +prohibition applies (as will presently be seen) to all officers +of the king whatsoever; and it sets up a distinction between +officers of the king, ("our bailiffs,") and officers chosen by +the people. + +The prohibition upon the king's justices sitting in criminal +trials, is included in the words "vel alii balivi nostri," (or +other our bailiffs.) The word bailif was anciently a sort of +general name for judicial officers and persons employed in and +about the administration of justice. In modern times its use, as +applied to the higher grades of judicial officers, has been +superseded by other words; and it therefore now, more generally, +if not universally, signifies an executive or police officer, a +servant of courts, rather than one whose functions are purely +judicial. + +The word is a French word, brought into England by the Normans. + +Coke says, "Baylife is a French word, and signifies an officer +concerned in the administration of justice of a certain province; +and because a sheriff hath an office concerning the +administration of justice within his county, or bailiwick, +therefore be called his county baliva sua, (his bailiwick.) + +"I have heard great question made what the true exposition of +this word balivus is. In the statute of Magna Carta, cap. 28, the +letter of that statute is, nullus balivus de eaetero ponat +aliqnem ad legem manifestam nec ad juramentum simplici loquela +sua sine testibus fidelibus ad hoc inductis." (No bailiff from +henceforth shall put any one to his open law, nor to an oath {of +self-exculpation) upon his own simple accusation, or complaint, +without faithful witnesses brought in for the same.) "And some +have said that balivus in this statute signifieth any judge; for +the law must be waged and made before the judge. And this statute +(say they) extends to the courts of common pleas, king's bench, +&c;., for they must bring with them fideles testes, (faithful +witnesses,) &c;., and so hath been the usage to this day." 1 +Coke's Inst., 168 b. + +Coke makes various references, in his margin to Bracton, Fleta, +and other authorities, which I have not examined, but which, I +presume, support the opinion expressed in this quotation. + +Coke also, in another place, under the head of the chapter just +cited from Magna Carta, that "no bailiff shall put any man to his +open law," &c;., gives the following commentary upon it, from the +Mirror of Justices, from which it appears that in the time of +Edward I., (1272 to 1307,) this word balivus was understood to +include all judicial, as well as all other, officers of the king. + +The Mirror says: "The point which forbiddeth that no bailiff put +a freeman to his oath without suit, is to be understood in this +manner, that no justice, no minister of the king, nor other +steward, nor bailiff, have power to make a freeman make oath, (of +self-exculpation,) without the king's command, [3] nor receive +any plaint, without witnesses present who testify the plaint to +be true." Mirror of Justices, ch. 5, sec. 2, p. 257. + +Coke quotes this commentary, (in the original French,) and then +endorses it in these words: + +"By this it appeareth, that under this word balivus, in this act, +is comprehended every justice, minister of the king, steward, and +bailiff." 2 Inst., 44. + +Coke also, in his commentary upon this very chapter of Magna +Carta, that provides that "no sheriff; constable; coroner, or +other our bailiffs, shall hold pleas of our crown," expresses the +opinion that it "is a general law," (that is, applicable to all +officers of the king,) " by reason of the words vel alii balivi +nostri, (or other our bailiffs,) under which words are +comprehended all judges or justices of any courts of justice. +"And he cites a decision in the king's bench, in the 17th year of +Edward I., (1289,) as authority; which decision he calls "a +notable and leading judgment." 2 Inst., 30 1. + +And yet Coke, in flat contradiction of this decision, which he +quotes with such emphasis and approbation, and in flat +contradiction also of the definition he repeatedly gives of the +word balivus showing that it embraced all ministers of the king +whatsoever, whether high or low, judicial or executive, +fabricates an entirely gratuitous interpretation of this chapter +of Magna Carta, and pretends that after all it only required that +felonies should he tried before the king's justices, on account +of their superior Iearning; and that it permitted all lesser +offenses to be tried before inferior officers, (meaning of course +the king's inferior officers.) 2 Inst., 30. + +And thus this chapter of Magna Carta, which, according to his own +definition of the word balivus, applies to all officers of the +king; and which, according to the common and true definition of +the term "pleas of the crown," applies to all criminal cases +without distinction, and which, therefore, forbids any officer or +minister of the king to preside in a jury trial in any criminal +case whatsoever, he coolly and gratuitously interprets into a +mere senseless provision for simply restricting the discretion of +the king in giving names to his own officers who should preside +at the trials of particular offences; as if the king, who made +and unmade all his officers by a word, could not defeat the whole +object of the prohibition, by appointing such individuals as he +pleased, to try such causes as he pleased, and calling them by +such names as he pleased, if he were but permitted to appoint and +name such officers at all; and as if it were of the least +importance what name an officer bore, whom the king might +appoint to a particular duty. [4] + +Coke evidently gives this interpretation solely because, as he +was giving a general commentary on Magna Carta, he was bound +to +give some interpretation or other to every chapter of it; and for +this chapter he could invent, or fabricate, (for it is a sheer +fabrication,) no interpretation better suited to his purpose than +this. It seems never to have entered his mind, (or if it did, he +intended that it should never enter the mind of anybody else,) +that the object of the chapter could be to deprive the king of +the power of putting his creatures into criminal courts, to pack, +cheat, and browbeat juries, and thus maintain his authority by +procuring the conviction of those who should transgress his laws, +or incur his displeasure. + +This example of Coke tends to show how utterly blind, or how +utterly corrupt, English judges, (dependent upon the crown and +the legislature), have been in regard to everything in Magna +Carta, that went to secure the liberties of the people, or limit +the power of the government. + +Coke's interpretation of this chapter of Magna Carta is of a +piece with his absurd and gratuitous interpretation of the words +"nec super eum ibimus, nec super eum mittemus," which was +pointed +out in a former article, and by which he attempted to give a +judicial power to the king and his judges, where Magna Carta had +given it only to a jury. It is also of a piece with his pretence +that there was a difference between fine and amercement, and that +fines might be imposed by the king, and that juries were required +only for fixing amercements. + +These are some of the innumerable frauds by which the English +people have been cheated out of the trial by jury. + +Ex uno disce omnes. From one judge learn the characters of all. +[6] + +I give in the note additional and abundant authorities for the +meaning ascribed to the word bailiff. The importance of the +principle involved will be a sufficient excuse for such an +accumulation of authorities as would otherwise be tedious and +perhaps unnecessary. [7] + +The foregoing interpretation of the chapter of Magna Carta now +under discussion, is corroborated by another chapter of Magna +Carta, which specially provides that the king's justices shall +"go through every county" to "take the assizes" (hold jury +trials) in three kinds of civil actions, to wit, "novel +disseisin, mort de ancestor, and darrein presentment;" but makes +no mention whatever of their holding jury trials in criminal cases, +an omission wholly unlikely to be made, if it were designed +they should attend the trial of such causes. Besides, the here +spoken of (in John's charter) does not allow these justices to +sit alone in jury trials, even in civilactions; but provides that +four knights, chosen by the county, shall sit with them to keep +them honest. When the king's justices were known to be so +corrupt and servile that the people would not even trust them +to sit alone, in jury trials, in civil actions, how preposterous is +it to suppose that they would not only suffer them to sit, but to +sit alone, in criminal ones. + +It is entirely incredible that Magna Carta, which makes such +careful provision in regard to the king's justices sitting in +civil actions, should make no provision whatever as to their +sitting in criminal trials, if they were to be allowed to sit in +them at all. Yet Magna Carta has no provision whatever on the +subject. [10] + +But what would appear to make this matter ahsolute1y certain is, +that unless the prohibition that "no bailiff, &c;., of ours shall +hold pleas of our crown," apply to all officers of the king, +justices as well as others, it would be wholly nugatory for any +practical or useful purpose, because the prohibition could be +evaded by the king, at any time, by simply changing the titles of +his officers. Instead of calling them "sheriffs, coroners, +constables and bailiffs," he could call them "justices," or +anything else he pleased; and this prohibition, so important to +the liberty of the people, would then be entirely defeated. The +king also could make and unmake "justices" at his pleasure; and +if he could appoint any officers whatever to preside over juries +in criminal trials, he could appoint any tool that he might at +any time find adapted to his purpose. It was as easy to make +justices of Jeffreys and Scroggs, as of any other material; and +to have prohibited all the king's officers, except his justices, +from presiding in criminal trials, would therefore have been mere +fool's play. + +We can all perhaps form some idea, though few of us will be +likely to form any adequate idea, of what a different thing the +trial by jury would have been in practice, and of what would have +been the difference to the liberties of England, for five hundred +years last past, had this prohibition of Magna Carta, upon the +king's officers sitting in the trial of criminal cases, been +observed. + +The principle of this chapter of Magna Carta, as applicable to +the governments of the United States of America, forbids that any +officer appointed either by the executive or legislative power, +or dependent upon them for their salaries, or responsible to them +by impeachment, should preside over a jury in criminal trials. To +have the trial a legal (that is, a common law) and true trial by +jury, the presiding officers must be chosen by the people, and be +entirely free from all dependence upon, and all accountability +to, the executive and legislative branches of the government. +[12] + +[1] The proofs of this principle of the common law have already +been given on page 120, note. + +There is much confusion and contradiction among authors as to +the manner in which sheriffs and other officers were appointed; some +maintaining that they were appointed by the king, others that +they were elected by the people. I imagine that both these +opinions are correct, and that several of the king's officers +bore the same official names as those chosen by the people; and +that this is the cause of the confusion that has arisen on the +subject. + +It seems to be a perfectly well established fact that, at common +law, several magistrates, bearing the names of aldermen, sheriff, +stewards, coroners and bailiffs, were chosen by the people; and +yet it appears, from Magna Carta itself, that some of the king's +officers (of whom he must have had many) were also called +"sheriffs, constables, coroners, and bailiffs." + +But Magna Carta, in various instances, speaks of sheriffs and +bailiffs as "our sheriff's and bailiffs;" thus apparently +intending to recognize the distinction between officers of the +king, bearing those names, and other officers, bearing the same +official names, but chosen by the people. Thus it says that "no +sheriff or bailiff of ours, or any other (officer), shall take +horses or carts of any freeman for carriage, unless with the +consent of the freeman himself." John's Charter, ch. 36. + +In a kingdom subdivided into so many counties, hundreds, +tithings, manors, cities and boroughs, each having a judicial or +police organization of its own, it is evident that many of the +officers must have been chosen by the people, else the government +could not have mainlined its popular character. On the other +hand, it is evident that the king, the executive power of the +nation, must have had large numbers of officers of his own in +every part of the kingdom. And it is perfectly natural that these +different sets of officers should, in many instances, bear the +same official names; and, consequently that the king, when +speaking of his own officers, as distinguished, from those chosen +by the people, should call them "our sheriffs, bailiffs," &c;, as +he does in Magna Carta. + +I apprehend that inattention to these considerations has been the +cause of all the confusion of ideas that has arisen on this +subject, a confusion very evident in the following paragraph +from Dunham, which may be given as an illustration of that which +is exhibited by others on the same points. + +"Subordinate to the ealdormen were the gerefas, the sheriffs, or +reeves, of whom there were several in every shire, or county. +There was one in every borough, as a judge. There was one at +every gate, who witnessed purchases outside the walls; and there +was one, higher than either, the high sheriff, who was probably +the reeve of the shire. This last appears to have been appointed +by the king. Their functions were to execute the decrees of the +king, or ealdormen, to arrest prisoners, to require bail for +their appearance at the sessions, to collect fines or penalties +levied by the court of the shire, to preserve the public peace, +and to preside in a subordinate tribunal of their own." +Durham's Middle Ages, sec. 2, B. 2, ch. 1. - 57 Lardner's Cab. +Cyc., p 41. + +The confusion of duties attributed to these officers indicates +clearly enough that different officers, bearing the same official +names, must have had different duties, and have derived their +authority from different sources, to wit, the king, and the +people. + +[2] Darrein presentement was an inquest to discover who +presented the last person to a church; mort de ancestor, whether +the last possessor was seized of land in demesne of his own fee; +and novel disseisin, whether the claimant had been unjustly +disseized of his freehold. + +[3] He has no power to do it, either with, or without, the king's +command. The prohibition is absolute, containing no such +qualification as is here interpolated, viz., "without the king's +command." If it could be done with the king's command, the king +would be invested with arbitrary power in the matter. + +[4] The absurdity of this doctrine of Coke is made more apparent +by the fact that, at that time, the "justices" and other persons +appointed by the king to hold courts were not only dependent upon +the king for their offices, and removable at his pleasure, but +that the usual custom was, not to appoint them with any view to +permanency, but only to give them special commissions for trying +a single cause, or for holding a single term of a court, or for +making a single circuit; which, being done, their commissions +expired. The king, therefore, could, and undoubtedly did, appoint +any individual he pleased, to try any cause he pleased, with a +special view to the verdicts he desired to obtain in the +particular cases. + +This custom of commissioning particular persons to hold jury +trials, in criminal cases, (and probably also in civil ones,) was +of course a usurpation upon the common law, but had been +practised more or less from the time of William the Conqueror. +Palgrave says: + +"The frequent absence of William from his insular dominions +occasioned another mode of administration, which ultimately +produced still greater changes in the law. It was the practice of +appointing justiciars to represent the king's person, to hold his +court, to decide his pleas, to dispense justice on his behalf, to +command the military levies, and to act as conservators of the +peace in the king's name. [5] .. The justices who were assigned +in the name of the sovereign, and whose powers were revocable at +his pleasure, derived their authority merely from their grant... +Some of those judges were usually deputed for the purpose of +relieving the king from the burden of his judicial functions... +The number as well as the variety of names of the justices +appearing in the early chirographs of 'Concords,' leave reason +for doubting whether, anterior to the reign of Henry III., (1216 +to 1272,) a court, whose members were changing at almost every +session, can be said to have been permanently constituted. It +seems more probable that the individuals who composed the +tribunal were selected as suited the pleasure of the sovereign, +and the convenience of the clerks and barons; and the history of +our legal administration will be much simplified, if we consider +all those courts which were afterwards denominated the +Exchequer, the King's Bench, the Common Pleas, and the Chancery, +as being originally committees, selected by the king when occasion +required, out of a large body, for the despatch of peculiar +branches of business, and which committees, by degrees, assumed +an independent and permanent existence... Justices itinerant, +who, despatched throughout the land, decided the ' Pleas of the +Crown,' may be obscurely traced in the reign of the Conqueror; +not, perhaps, appointed with much regularity, but despatched upon +peculiar occasions and emergencies." 1 Palgrave's Rise and +Progress, &c;., p. 289 to 293. + +The following statute, passed in 1354, (139 years after Magna +Carta,) shows that even after this usurpation of appointing +"justices " of his own, to try criminal cases, had probably +become somewhat established in practice, in defiance of Magna +Carta, the king was in the habit of granting special commissions +to still other persons, (especially to sheriffs, his sheriffs, +no doubt,) to try particular cases: + +"Because that the people of the realm have suffered many evils +and mischiefs, for that sheriffs of divers counties, by virtue of +commissions and general writs granted to them at their own suit, +for their singular profit to gain of the people, have made and +taken divers inquests to cause to indict the people at their +will, and have taken fine and ransom of them to their own use, +and have delivered them; whereas such persons indicted were not +brought before the king's justices to have their deliverance, it +is accorded and established, for to eschew all such evils and +mischiefs, that such commissions and writs before this time made +shall be utterly repealed, and that from henceforth no such +commissions shall be granted." St. 28 Edward III., ch. 9, +(1354.) + +How silly to suppose that the illegality of these commissions to +try criminal eases, could have been avoided by simply granting +them to persons under the title of "justices," instead of +granting them to "sheriffs." The statute was evidently a cheat, +or at least designed as such, inasmuch as it virtually asserts +the right of the king to appoint his tools, under the name of +"justices," to try criminal cases, while it disavows his right to +appoint them under the name of "sheriffs." + +Millar says: "When the king's bench came to have its usual +residence at Westminster, the sovereign was induced to grant +special commissions, for trying particular crimes, in such parts +of the country as were found most convenient; and this practice +was gradually modeled into a regular appointment of certain +commissioners, empowered, at stated seasons, to perform circuits +over the kingdom, and to hold courts in particular towns, for the +trial of all sorts of crimes. These judges of the circuit, +however, never obtained an ordinary jurisdiction, but continued, +on every occasion, to derive their authority from two special +commissions: that of oyer and terminer, by which they were +appointed to hear and determine all treasons, felonies and +misdemeanors, within certain districts; and that of gaol +delivery, by which they were directed to try every prisoner +confined in the gaols of the several towns falling under their +inspection." Millar's Hist. View of Eng. Gov., vol. 2, ch. 7, +p. 282. + +The following extract from Gilbert shows to what lengths of +usurpation the kings would sometimes go, in their attempts to get +the judicial power out of the hands of the people, and entrust it +to instruments of their own choosing: + +"From the time of the Saxons," (that is, from the commencement +of the reign of William the Conqueror,) "till the reign of Edward +the first, (1272 to 1307,) the several county courts and sheriffs +courts did decline in their interest and authority. The methods +by which they were broken were two-fold. First, by granting +commissions to the sheriffs by writ of JUSTICIES, whereby the +sheriff had a particular jurisdiction granted him to be judge of +a particular cause, independent of the suitors of the county +court," (that is, without a jury;) "and these commissions were +after the Norman form, by which (according to which) all power of +judicature was immediately derived from the king." Gilbert on +the Court of Chancery, p. l. + +The several authorities now given show that it was the custom of +the Norman kings, not only to appoint persons to sit as judges in +jury trials, in criminal cases, but that they also commissioned +individuals to sit in singular and particular eases, as occasion +required; and that they therefore readily could, and naturally +would, and therefore undoubtedly did, commission individuals +with a special view to their adaptation or capacity to procure such +judgments as the kings desired. + +The extract from Gilbert suggests also the usurpation of the +Norman kings, in their assumption that they, (and not the people, +as by the common law,) were the fountains of justice. It was only +by virtue of this illegal assumption that they could claim to +appoint their tools to hold courts. + +All these things show how perfectly lawless and arbitrary the +kings were, both before and after Magna Carta, and how necessary +to liberty was the principle of Magna Carta and the common law, +that no person appointed by the king should hold jury trials in +criminal cases. + +[5] In this extract, Palgrave seems to assume that the king +himself had a right to sit as judge, in jury trials, in the +county courts, in both civil and criminal cases. I apprehend he +had no such power at the common law, but only to sit in the trial +of appeals, and in the trial of peers, and of civil suits in +which peers were parties, and possibly in the courts of ancient +demesne. + +[6] The opinions and decisions of judges and courts are +undeserving of the least reliance, (beyond the intrinsic merit of +the arguments offered to sustain them,) and are unworthy even to +be quoted as evidence of the law, when those opinions or +decisions are favorable to the power of the government, or +unfavorable to the liberties of the people. The only reasons that +their opinions, when in favor of liberty, are entitled to any +confidence, are, first, that all presumptions of law are in favor +of liberty; and, second, that the admissions of all men, the +innocent and the criminal alike, when made against their own +interests, are entitled to be received as true, because it is +contrary to human nature for a man to confess anything but truth +against himself. + +More solemn farces, or more gross impostures, were never +practised upon mankind, than are all, or very nearly all, those +oracular responses by which courts assume to determine that +certain statutes, in restraint of individual liberty, are within +the constitutional power of the government, and are therefore +valid and binding upon the people. + +The reason why these courts are so intensely servile and corrupt, +is, that they are not only parts of, but the veriest creatures +of, the very governments whose oppressions they are thus seeking +to uphold. They receive their offices and salaries from, and are +impeachable and removable by, the very governments upon whose +acts they affect to sit in judgment. Of course, no one with his +eyes open ever places himself in a position so incompatible with +the liberty of declaring his honest opinion, unless he do it with +the intention of becoming a mere instrument in the hands of the +government for the execution of all its oppressions. + +As proof of this, look at the judicial history of England for the +last five hundred years, and of America from its settlement. In +all that time (so far as I know, or presume) no bench of judges, +(probably not even any single judge,) dependent upon the +legislature that passed the statute, has ever declared a single +penal statute invalid, on account of its being in conflict either +with the common law, which the judges in England have been +sworn to preserve, or with the written constitutions, (recognizing +men's natural rights,) which the American judges were under oath +to maintain. Every oppression, every atrocity even, that has ever +been enacted in either country, by the legislative power, in the +shape of a criminal law, (or, indeed, in almost any other shape,) +has been as sure of a sanction from the judiciary that was +dependent upon, and impeachable by, the legislature that enacted +the law, as if there were a physical necessity that the +legislative enactment and the judicial sanction should go +together. Practically speaking, the sum of their decisions, all +and singular, has been, that there are no limits to the power of +the government, and that the people have no rights except what +the government pleases to allow to them. + +It is extreme folly for a people to allow such dependent, +servile, and perjured creatures to sit either in civil or +criminal trials; but to allow them to sit in criminal trials, and +judge of the people's liberties, is not merely fatuity, it is +suicide. + +[7] Coke, speaking of the word bailiffs, as used in the statute +of 1 Westminster, ch. 35, (1275,) says: + +"Here bailiffs are taken for the judges of the court, as +manifestly appeareth hereby." 2 Inst., 229. + +Coke also says, ' It is a maxim in law, aliguis non debet esse +judex in propria causa, (no one ought to be judge in his own +cause;) and therefore a fine levied before the baylifes of Salopwas +reversed, because one of the baylifes was party to the fine, +quia non potest esse judex et pars," (because one cannot be judge +and party.) 1 Inst., 141 a. + +In the statute of Gloucester, ch. 11 and 12, (1278,) "the mayor +and bailiffs of London (undoubtedly chosen by the people, or at +any rate not appointed by the king) are manifestly spoken of as +judges, or magistrates, holding jury trials, as follows: + +Ch. II. "It is provided, also, that if any man lease his tenement +in the city of London, for a term of years, and he to whom the +freehold belongeth causeth himself to be impleaded by collusion, +and maketh default after default, or cometh into court and giveth +it up, for to make the termor (lessee) lose his term, (lease,) +and the demandant hath his suit, so that the termor may recover +by writ of covenant; the mayor and bailiffs may inquire by a good +inquest, (jury,) in the presence of the termor and the demandant, +whether the demandant moved his plea upon good right that he +had, +or by collusion, or fraud, to make the termor lose his term; and +if it be found by the inquest (jury) that the demandant moved his +plea upon good right that he had, the judgment shall be given +forthwith; and if it be found by the inquest (jury) that he +impleaded him (self ) by fraud, to put the termor from his term, +then shall the termor enjoy his term, and the execution of +judgment for the demandant shall be suspended until the term be +expired." 4 Edward I., ch. 11, (1278.) + +Coke, in his commentary on this chapter, calls this court of "the +mayor and bailiffs" of London, " the court of the hustings, the +greatest and highest court in London;" and adds, "other cities +have the like court, and so called, as York, Lincoln, Winchester, +&e;. Here the city of London is named; but it appeareth by that +which hath been said out of Fleta, that this act extends to such +cities and boroughs privileged, that is, such as have such +privilege to hold plea as London hath." 2 Inst., 322. + +The 12th chapter of the same statute is in the following words, +which plainly recognize the fact that " the mayor and bailiffs of +London" are judicial officers holding courts in London. + +"It is provided, also, that if a man, impleaded for a tenement in +the same city, (London,) doth vouch a foreigner to warranty, that +he shall come into the chancery, and have a writ to summon his +warrantor at a certain day before the justices of the beach, and +another writ to the mayor and bailiff of London, that they shall +surcease (suspend proceedings) in the matter that is before them +by writ, until the plea of the warrantee be determined before the +justices of the bench; and when the plea at the bench shall be +determined, then shall he that is vouched be commanded to go into +the city," (that is, before "the mayor and bailiffs " court,) "to +answer unto the chief plea; and a writ shall be awarded at the +suit of the demandant by the justices unto the mayor and +bailiffs, that they shall proceed in the plea," &c;. 6 Edward +I., ch. 12, (1278.) + +Coke, in his commentary on this chapter, also speaks repeatedly +of "the mayor and bailiffs" as judges holding courts, and also +speaks of this chapter as applicable not only to "the citie of +London, specially named for the cause aforesaid, but extended by +equity to all other privileged places," (that is, privileged to +have a court of "mayor and bailiffs,") "where foreign voucher is +made, as to Chester, Durham, Salop," &e;. 2 Inst., 325 7. + +BAILIE. In Scotch law, a municipal magistrate, corresponding +with the English alderman.[8] Burrill's Law Dictionary. + +BAILLIFFE Baillif. Fr. A bailiff: a ministerial officer with +duties similar to those of a sheriff. * * The judge of a court. A +municipal magistrate, &c;. Burrill's Law Dict. + +BAILIFF - The word bailiff is of Norman origin, and was applied +in England, at an early period, (after the example, it is said, +of the French,) to the chief magistrates of counties, or shires, +such as the alderman, the reeve, or sheriff, and also of inferior +jurisdictions, such as hundreds and wapentakes. Spelman, voc. +Balivus; 1 Bl. Com.,344. See Bailli, Ballivus. The Latin ballivus +occurs, indeed, in the laws of Edward the Confessor, but Spelman +thinks it was introduced by a later hand. Balliva (bailiwick) was +the word formed from ballivus, to denote the extent of territory +comprised within a bailiff's jurisdiction; and bailiwick is still +retained in writs and other proceedings, as the name of a +sheriff's county. 1 Bl. Com., 344. See Balliva. The office of +bailiff was at first strictly, though not exclusively, a judicial +one. In France, the word had the sense of what Spelman calls +justitia tutelaris. Ballivus occurs frequently in the Regiam +Majestatem, in the sense of a judge. Spelman. In its sense of a +deputy, it was formerly applied, in England, to those officers +who, by virtue of a deputation, either from the sheriff or the +lords of private jurisdictions, exercised within the hundred, or +whatever might be the limits of their bailiwick, certain judicial +and ministerial functions. With the disuse of private and local +jurisdictions, the meaning of the term became commonly restricted +to such persons as were deputed by the sheriff to assist him in +the merely ministerial portion of his duty; such as the summoning +of juries, and the execution of writs. Brande.. The word +bailiff is also applied in England to the chief magistrates of +certain towns and jurisdictions, to the keepers of castles, +forests and other places, and to the stewards or agents of lords +of manors. Burrill's Law Dict. + +"BAILIFF, (from the Lat. ballivus; Fr. baillif, i. e., Praefectus +provinciae,) signifies an officer appointed for the +administration of justice within a certain district. The office, +as well as the name, appears to have been derived from the +French," &c;. Brewster's Encyclopedia. + +Millar says, "The French monarchs, about this period, were not +content with the power of receiving appeals from the several +courts of their barons. An expedient was devised of sending royal +bailiffs into different parts of the kingdom, with a commission +to take cognizance of all those causes in which the sovereign was +interested, and in reality for the purpose of abridging and +limiting the subordinate jurisdiction of the neighboring feudal +superiors. By an edict of Phillip Augustus, in the year 1190, +those bailiffs were appointed in all the principal towns of the +kingdom." Millar's Hist. View of the Eng. Gov., vol. ii., ch. +8, p. 126. + +"BAILIFF- office. Magistrates who formerly administered justice +in the parliaments or courts of France, answering to the English +sheriffs, as mentioned by Bracton." Bouvier's Law Dict. + +"There be several officers called bailiffs, whose offices and +employments seem quite different from each other... The chief +magistrate, in divers ancient corporations, are called bailiffs, +as in Ipswich, Yarmouth, Colchester, &c;. There are, likewise, +officers of the forest, who are termed bailiffs." 1 Bacon's +Abridgment, 498 9. + +" BAILIFF signifies a keeper or superintendent, and is directly +derived from the French word bailli, which appears to come from +the word balivus, and that from bagalus, a Latin word signifying +generally a governor, tutor, or superintendent... The French word +bailli is thus explained by Richelet, (Dictionaire, &e;.:) +Bailli. He who in a province has the superintendence of justice, +who is the ordinary judge of the nobles, who is their head for +the ban and arriere ban, [9] and who maintains the right and +property of others against those who attack them... All the +various officers who are called by this name, though differing as +to the nature of their employments, seem to have some kind of +superintendence intrusted to them by their superior." Political +Dictionary. + +" BAILIFF, balivus. From the French word bayliff, that is, +praefectus provinciae, and as the name, so the office itself was +answerable to that of France, where there were eight parliaments, +which were high courts from whence there lay no appeal, and +within the precincts of the several parts of that kingdom which +belonged to each parliament, there were several provinces to +which justice was administered by certain officers called +bailiffs; and in England we have several counties in which +justice hath been, and still is, in small suits, administered to +the inhabitants by the officer whom we now call sheriff, or +viscount; (one of which names descends from the Saxons, the +other from the Normans.) And, though the sheriff is not called +bailiff, yet it was probable that was one of his names also, because +the county is often called balliva; as in the return of a writ, where +the person is not arrested, the sheriff saith, infra-nominatus, +A. B. non est inventus in balliva mea, &c;.; (the within named A. +B. is not found in my bailiwick, &c;.) And in the statute of +Magna Carta, ch. 28, and 14 Ed. 8, ch. 9, the word bailiff seems +to comprise as well sheriffs, as bailiffs of hundreds. + +BAILIES, in Scotland, are magistrates of burghs, possessed of +certain jurisdictions, having the same power within their +territory as sheriffs in the county. + +As England is divided into counties, so every county is divided +into hundreds; within which, in ancient times, the people had +justice administered to them by the several officers of every +hundred, which were the bailiffs. And it appears by Bracton, +(lib. 3, tract. 2, ch. 34,) that bailiffs of hundreds might +anciently hold plea of appeal and approvers; but since that time +the hundred courts, except certain franchises, are swallowed in +the county courts; and now the bailiff's name and office is grown +into contempt, they being generally officers to serve writs, +&c;., within their liberties; though, in other respects, the name +is still in good esteem, for the chief magistrates in divers +towns are called bailiffs; and sometimes the persons to whom the +king's castles are committed are termed bailiffs, as the bailiffof +Dover Castle, &c;., + +"Of the ordinary bailiffs there are several sorts, viz., bailiffsof +liberties; sheriffs' bailiffs; bailiffs of lords of manors; bailiffs of +husbandry, &c;. + +"Bailiffs of liberties or franchises are to be sworn to take +distresses, truly impanel jurors, make returns by indenture +between them and sheriffs, &c;. + +"Bailiffs of courts baron summon those courts, and execute the +process thereof. " Besides these, there are also bailiffs of the +forest... " Jacob's Law Dict. Tomlin's do. + +"BAILIWICK, balliva, is not only taken for the county, but +signifies generally that liberty which is exempted from the +sheriff of the county, over which the lord of the liberty +appointeth a bailiff, with such powers within his precinct as an +under-sheriff exerciseth under the sheriff of the county; such as +the bailiff of Westminster." Jacob's Law Dict. Tomlin's do. + +"A bailiff of a Leet, Court-baron, Manor, Balivus Letae, Baronis, +Manerii. He is one that is appointed by the lord, or his +steward, within every manor, to do such offices as appertain +thereunto, as to summon the court, warn the tenants and resiants; +also, to summon the Leet and Homage, levy fines, and make +distresses, &c;., of which you may read at large in Kitchen's +Court-leet and Court-baron." A Law Dictionary, anonymous, (in +Suffolk Law Library.) + +"Bailliff In England an officer appointed by the sheriff. +Bailiff's are either special, and appointed, for their +adroitness, to arrest persons; or bailiffs of hundreds, who +collect fines, summon juries, attend the assizes, and execute +writs and processes, The sheriff in England is the king's +bailiff. + +"The office of bailiff formerly was high and honorable in +England, and officers under that title on the continent are still +invested with important functions." Webster. + +"BAILLI, (Scotland.) An alderman; a magistrate who is second in +rank in a royal burgh." Worcester. + +"Baili, or Bailiff. (Sorte d'officier de justice.) A bailiff; a +sort of magistrate." Boyer's French Dict. + +"By some opinions, a bailiff, in Magna Carta, ch. 28, signifies +any judge." Cunningham's Law Dict. + +"BAILIFF. In the court of the Greek emperors there was a grand +bajulos, first tutor of the emperor's children. The +superintendent of foreign merchants seems also to have been +called bajulos; and, as he was appointed by the Venetians, this +title (balio) was transferred to the Venetian ambassador. From +Greece, the official bajulos (ballivus, bailli, in France; +bailiff, in England,) was introduced into the south of Europe, +and denoted a superintendent; hence the eight ballivi of the +knights of St. John, which constitute its supreme council. In +France, the royal bailiffs were commanders of the militia, +administrators or stewards of the domains, and judges of their +districts. In the course of time, only the first duty remained to +the bailiff; hence he was bailli d'epee, and laws were +administered in his name by a lawyer, as his deputy, lieutenant +de robe. The seigniories, with which high courts were connected, +employed bailiffs, who thus constituted, almost everywhere, the +lowest order of judges. From the courts of the nobility, the +appellation passed to the royal courts; from thence to the +parliaments. In the greater bailiwicks of cities of importance, +Henry II. established a collegial constitution under the name of +presidial courts... The name of bailiff was introduced into +England with William I. The counties were also called bailiwicks, +(bailivae,) while the subdivisions were called hundreds, but, as +the courts of the hundreds have long since ceased, the English +bailiffs are only a kind of subordinate officers of justice, like +the French huissiers. These correspond very nearly to the +officers called constables in the United States. Every sheriff +has someof them under him, for whom he is answerable. In some +cities the highest municipal officer yet bears this name, as the +high bailiff of Westminster. In London, the Lord Mayor is at the +same time bailiff; (which title he bore before the present became +usual,) and administers, in this quality, the criminal +jurisdiction of the city, in the court of old Bailey, where there +are, annually, eight sittings of the court, for the city of +London and the county of Middlesex. Usually, the recorder of +London supplies his place as judge. In some instances the term +bailiff, in England, is applied to the chief magistrates of +towns, or to the commanders of particular castles, as that of +Dover. The term baillie, in Scotland, is applied to a judicial +police-officer, having powers very similar to those of justices +of peace in the United States." Encyclopaedia Americana. + +[8] Alderman was a title anciently given to various judicial officers, +as the Alderman of all England, Alderman of the King, Alderman +of the County, Alderman of the City or Borough, alderman of the +Hundred or Wapentake. These were all judicial officers. See Law +Dictionaries. + +[9] "Ban and arriere ban, a proclamation, whereby all that hold +lands of the crown, (except some privileged officers and +citizens,) are summoned to meet at a certain place in order to +serve the king in his wars, either personally, or by proxy." +Boyer. + +[10] Perhaps it may be said (and such, it has already been seen, +is the opinion of Coke and others) that the chapter of Magna +Carta, that "no bailiff from henceforth shall put any man to his +open law, (put him on trial,) nor to an oath (that is, an oath of +self- exculpation) upon his (the bailiff's) own accusation or +testimony, without credible witnesses brought in to prove the +charge," is itself a " provision in regard to the king's justices +sitting in criminal trials," and therefore implies that they areto sit +in such trials. + +But, although the word bailiff includes all judicial, as well as +other, officers, and would therefore in this case apply to the +king's justices, if they were to sit in criminal trials; yet this +particular chapter of Magna Carta evidently does not contemplate +"bailiffs" while acting in their judicial capacity, (for they +were not allowed to sit in criminal trials at all,) but only in +the character of witnesses, and that the meaning of the chapter +is, that the simple testimony (simplici loquela) of "no bailiff," +(of whatever kind,) unsupported by other and "credible +witnesses," shall be sufficient to put any man on trial, or to +his oath of self-exculpation." [11] + +It will be noticed that the words of this chapter are not, "no +bailiff of ours," that is, of the king, as in some other +chapters of Magna Carta; but simply "no bailiff,"&c;. The +prohibition, therefore, applied to all "bailiffs," to those +chosen by the people, as well as those appointed by the king. And +the prohibition is obviously founded upon the idea (a very sound +one in that age certainly, and probably also in this) that public +officers (whether appointed by king or people) have generally, or +at least frequently, too many interests and animosities against +accused persons, to make it, safe to convict any man on their +testimony alone. + +The idea of Coke and others, that the object of this chapter was +simply to forbid magistrates to put a man on trial, when there +were no witnesses against him, but only the simple accusation or +testimony of the magistrates themselves, before whom he was to +be tried, is preposterous; for that would be equivalent to supposing +that magistrates acted in the triple character of judge, jury and +witnesses, in the same trial; and that, therefore, in such case, +they needed to be prohibited from condemning a man on their own +accusation or testimony alone. But such a provision would have +been unnecessary and senseless, for two reasons; first, because +the bailiffs or magistrates had no power to "hold pleas of the +crown," still less to try or condemn a man; that power resting +wholly with the juries; second, because if bailiffs or +magistrates could try and condemn a man, without a jury, the +prohibition upon their doing so upon their own accusation or +testimony alone, would give no additional protection to the +accused, so long as these same bailiffs or magistrates were +allowed to decide what weight should be given, both to their own +testimony and that of other witnesses, for, if they wished to +convict, they would of course decide that any testimony, however +frivolous or irrelevant, in addition to their own, was sufficient. +Certainly a magistrate could always procure witnesses +enough to testify to something or other, which he himself could +decide to be corroborative of his own testimony. And thus the +prohibition would be defeated in fact, though observed in form. + +[11] At the common law, parties, in both civil and criminal +cases, were allowed to swear in their own behalf; and it will be +so again, if the true trial by jury should be reestablished. + +[12] In this chapter I have called the justices "presiding +officers," solely for the want of a better term. They are not +"presiding officers," in the sense of having any authority over +the jury; but are only assistants to, and teachers and servants +of, the jury. The foreman of the jury is properly the "Presiding +Officer," so far as there is such an officer at all. The sheriff +has no authority except over other persons than the jury. + + +CHAPTER VIII. THE FREE ADMINISTRATION OF JUSTICE + +The free administration of justice was a principle of the common +law; and it must necessarily be a part of every system of +government which is not designed to be an engine in the hands of +the rich for the oppression of the poor. + +In saying that the free administration of justice was a principle +of the common law, I mean only that parties were subjected to no +costs for jurors, witnesses, writs, or other necessaries for the +trial, preliminary to the trial itself. Consequently, no one +could lose the benefit of a trial, for the want of means to +defray expenses. But after the trial, the plaintiff or defendant +was liable to be amerced, (by the jury, of course,) for having +troubled the court with the prosecution or defence of an unjust +suit. + +[1] But it is not likely that the losing party was subjected to +an amercement as a matter of course, but only in those cases +where the injustice of his cause was so evident as to make him +inexcusable in bringing it before the courts. + +All the freeholders were required to attend the courts, that they +might serve as jurors and witnesses, and do any other service +that could legally be required of them; and their attendance was +paid for by the state. In other words, their attendance and +service at the courts were part of the rents which they paid the +state for their lands. + +The freeholders, who were thus required always to attendthe +courts, were doubtless the only witnesses who were usually +required in civil causes. This was owing to the fact that, in +those days, when the people at large could neither write nor +read, few contracts were put in writing. The expedient adopted +for proving contracts, was that of making them in the presence of +witnesses, who could afterwards testify to the transactions. Most +contracts in regard to lands were made at the courts, in the +presence of the freeholders there assembled. [2] + +In the king's courts it was specially provided by Magna Carta +that "justice and right" should not be "sold;" that is, that the +king should take nothing from the parties for administering +justice. + +The oath of a party to the justice of his cause was all that was +necessary to entitle him to the benefit of the courts free of all +expense; (except the risk of being amerced after the trial, in +case the jury should think he deserved it. [3]) + +This principle of the free administration of justice connects +itself necessarily with the trial by jury, because a jury could +not rightfully give judgment against any man, in either a civil +or criminal case, if they had any reason to suppose he had been +unable to procure his witnesses. + +The true trial by jury would also compel the free administration +of justice from another necessity, viz., that of preventing +private quarrels; because, unless the government enforced a man's +rights and redressed his wrongs, free of expense to him, a jury +would be bound to protect him in taking the law into his own +hands. A man has a natural right to enforce his own rights and +redress his own wrongs. If one man owe another a debt, and refuse +to pay it, the creditor has a natural right to seize sufficient +property of the debtor, wherever he can find it, to satisfy the +debt. If one man commit a trespass upon the person, property or +character of another, the injured party has a natural right, +either to chastise the aggressor, or to take compensation for the +injury out of his property. But as the government is an impartial +party as between these individuals, it is more likely to do +exactjustice between them than the injured individual himself would +do. The government, also, having more power at its command, is +likely to right a man's wrongs more peacefully than the injured +party himself could do it. If, therefore, the government will do +the work of enforcing a man's rights, and redressing his wrongs, +promptly, and free of expense to him, he is under a moral +obligation to leave the work in the hands of the government; but +not otherwise. When the government forbids him to enforce his +own rights or redress his own wrongs, and deprives him of all means +of obtaining justice, except on the condition of his employing +the government to obtain it for him, and of paying the government +for doing it, the government becomes itself the protector and +accomplice of the wrong-doer. If the government will forbid a man +to protect his own rights, it is bound, to do it for him, free of +expense to him. And so long as government refuses to do this, +juries, if hey knew their duties, would protect a man in +defending his own rights. + +Under the prevailing system, probably one half of the community +are virtually deprived of all protection for their rights, except +what the criminal law affords them. Courts of justice, for all +civil suits, are as effectually shut against them, as though it +were done by bolts and bars. Being forbidden to maintain their +own rights by force, as, for instance, to compel the payment of +debts, and being unable to pay the expenses of civil suits, +they have no alternative but submission to many acts of +injustice, against which the government is bound either to +protect them, free of expense, or allow them to protect +themselves. + +There would be the same reason in compelling a party to pay the +judge and jury for their services, that there is in compelling +him to pay the witnesses, or any other necessary charges. [4] + +This compelling parties to pay the expenses of civil suits is one +of the many cases in which government is false to the fundamental +principles on which free government is based. What is the object +of government, but to protect men's rights? On what principle +does a man pay his taxes to the government, except on that of +contributing his proportion towards the necessary cost of +protecting the rights of all? Yet, when his own rights are +actually invaded, the government, which he contributes to +support, instead of fulfilling its implied contract, becomes his +enemy, and not only refuses to protect his rights, (except at his +own cost,) but even forbids him to do it himself. + +All free government is founded on the theory of voluntary +association; and on the theory that all the parties to it +voluntarily pay their taxes for its support, on the condition of +receiving protection in return. But the idea that any poor man +would voluntarily pay taxes to build up a government, which will +neither protect his rights, (except at a cost which he cannot +meet,) nor suffer himself to protect them by such means as may be +in his power, is absurd. + +Under the prevailing system, a large portion of the lawsuits +determined in courts, are mere contests of purses rather than of +rights. And a jury, sworn to decide causes "according to the +evidence" produced, are quite likely, for aught they themselves +can know, to be deciding merely the comparative length of the +parties' purses, rather than the intrinsic strength of their +respective rights. Jurors ought to refuse to decide a cause at +all, except upon the assurance that all the evidence, necessary +to a full knowledge of the cause, is produced. This assurance +they can seldom have, unless the government itself produces all +the witnesses the parties desire. + +In criminal cases, the atrocity of accusing a man of crime, and +then condemning him unless he prove his innocence at his own +charges, is so evident that a jury could rarely, if ever, be +justified in convicting a man under such circumstances. + +But the free administration of justice is not only indispensable +to the maintenance of right between man and man; it would also +promote simplicity and stability in the laws. The mania for +legislation would be, in an important degree, restrained, if the +government were compelled to pay the expenses of all the suits +that grew out of it. + +The free administration of justice would diminish and nearly +extinguish another great evil, that of malicious civil suits It +is an old saying, that "multi litigant in foro, non ut aliquid +lucentur, sed ut vexant alios." (Many litigate in court, not that +they may gain anything, but that they may harass others.) Many +men, from motives of revenge and oppression, are willing to spend +their own money in prosecuting a groundless suit, if they can +thereby compel their victims, who are less able than themselves +to bear the loss, to spend money in the defence. Under the +prevailing system, in which the parties pay the expenses of their +suits, nothing but money is necessary to enable any malicious man +to commence and prosecute a groundless suit, to the terror, +injury, and perhaps ruin, of another man. In this way, a court of +justice, into which none but a conscientious plaintiff certainly +should ever be allowed to enter, becomes an arena into which any +rich and revengeful oppressor may drag any man poorer than +himself, and harass, terrify, and impoverish him, to almost any +extent. It is a scandal and an outrage, that government should +suffer itself to be made an instrument, in this way, for the +gratification of private malice. We might nearly as well have no +courts of justice, as to throw them open, as we do, for such +flagitious uses. Yet the evil probably admits of no remedy except +a free administration of justice. Under a free system, plaintiffs +could rarely be influenced by motives of this kind; because they +could put their victim to little or no expense, neither pending +the suit, (which it is the object of the oppressor to do,) nor at +its termination. Besides, if the ancient common law practice +should be adopted, of amercing a party for troubling the courts +with groundless suits, the prosecutor himself would, in the end, +be likely to be amerced by the jury, in such a manner as to make +courts of justice a very unproitable place for a man to go to +seek revenge. + +In estimating the evils of this kind, resulting from the present +system, we are to consider that they are not, by any means, +confined to the actual suits in which this kind of oppression is +practised; but we are to include all those cases in which the +fear of such oppression is used as a weapon to compel men into a +surrender of their rights. + +[1] 2 Sullivan Lectures, 234-5. 3 Blackstone, 274-5, 376. Sullivan +says that both plaintiff's and defendants were liable to +amercement. Blackstone speaks of plaintiffs being liable, without +saying whether defendants were so or not. What the rule really +was I do not know. There would seem to be some reason in +allowing defendants to defend themselves, at their own charges, +without exposing themselves to amercement in case of failure. + +[2] When any other witnesses than freeholders were required in a +civil suit, I am not aware of the manner in which their +attendance was procured; but it was doubtless done at the expense +either of the state or of the witnesses themselves. And it was +doubt less the same in criminal cases. + +[3] "All claims were established in the first stage by the oath +of the plaintiff, except when otherwise specially directed by the +law. The oath, by which any claim was supported, was called the +fore-oath, or ' Praejuramentum,' and it was the foundation of his +suit. One of the cases which did not require this initiatory +confirmation, was when cattle could be tracked into another man's +land, and then the foot-mark stood for the fore-oath." 2 +Palgrave's Rise and Progress, &c;., 114. + +[4] Among the necessary expenses of suits, should be reckoned +reasonable compensation to counsel, for they are nearly or quite +as important to the administration of justice, as are judges, +jurors, or witnesses; and the universal practice of employing +them, both on the part of governments and of private persons, +shows that their importance is generally understood. As a mere +matter of economy, too, it would be wise for the government to +pay them, rather than they should not be employed; because they +collect and arrange the testimony and the law beforehand, so as +to be able to present the whole case to the court and jury +intelligibly, and in a short space of time. Whereas, if they were +not employed, the court and jury would be under the necessity +either of spending much more time than now in the investigation +of causes, or of despatching them in haste, and with little +regard to justice. They would be very likely to do the latter, +thus defeating the whole object of the people in establishing +courts. + +To prevent the abuse of this right, it should perhaps be left +discretionary with the jury in each case to determine whether the +counsel should receive any pay and, if any, how much from the +government. + + +CHAPTER IX. THE CRIMINAL INTENT + +It is a maxim of the common law that there can be no crime +without a criminal intent. And it is a perfectly clear principle, +although one which judges have in a great measure overthrown in +practice, that jurors are to judge of the moral intent of an +accused person, and hold him guiltless, whatever his act, unless +they find him to have acted with a criminal intent; that is, with +a design to do what he knew to be criminal. + +This principle is clear, because the question for a jury to +determine is, whether the accused be guilty, or not guilty. Guiltis a +personal quality of the actor, not necessarily involved in +the act, but depending also upon the intent or motive with which +the act was done. Consequently, the jury must find that he acted +from a criminal motive, before they can declare him guilty. + +There is no moral justice in, nor any political necessity for, +punishing a man for any act whatever that he may have committed, +if he have done it without any criminal intent. There can be no +moral justice in punishing for such an act, because, there having +been no criminal motive, there can have been no other motive +which justice can take cognizance of, as demanding or justifying +punishment. There can be no political necessity for punishing, to +warn against similar acts in future, because, if one man have +injured another, however unintentionally, he is liable, and +justly liable, to a civil suit for damages; and in this suit he +will be compelled to make compensation for the injury, +notwithstanding his innocence of any intention to injure. He must +bear the consequences of his own act, instead of throwing them +upon another, however innocent he may have been of any intention +to do wrong. And the damages he will have to pay will be a +sufficient warning to him not to do the like act again. + +If it be alleged that there are crimes against the public, (as +treason, for example, or any other resistance to government,) for +which private persons can recover no damages, and that there is a +political necessity for punishing for such offences, even though +the party acted conscientiously, the answer is, the government +must bear with all resistance that is not so clearly wrong as to +give evidence of criminal intent. In other words, the government, +in all its acts, must keep itself so clearly within the limits of +justice, as that twelve men, taken at random, will all agree that +it is in the right, or it must incur the risk of resistance, +without any power to punish it. This is the mode in which the +trial by jury operates to prevent the government from falling +into the hands of a party, or a faction, and to keep it within +such limits as all, or substantially all, the people are agreed +that it may occupy. + +This necessity for a criminal intent, to justify conviction, is +proved by the issue which the jury are to try, and the verdict +they are to pronounce. The "issue" they are to try is, "guilty,"or +"not guilty." And those are the terms they are required to use +in rendering their verdicts. But it is a plain falsehood to say +that a man is "guilty," unless he have done an act which he knew +to be criminal. + +This necessity for a criminal intent in other words, for guilt +as a preliminary to conviction, makes it impossible that a man +can be rightfully convicted for an act that is intrinsically +innocent, though forbidden by the government; because guilt is an +intrinsic quality of actions and motives, and not one that can be +imparted to them by arbitrary legislation. All the efforts of the +government, therefore, to "make offences by statute," out of acts +that are not criminal by nature, must necessarily be ineffectual, +unless a jury will declare a man "guilty" for an act that is +really innocent. + +The corruption of judges, in their attempts to uphold the +arbitrary authority of the government, by procuring the +conviction of individuals for acts innocent in themselves, and +forbidden only by some tyrannical statute, and the commission of +which therefore indicates no criminal intent, is very apparent. + +To accomplish this object, they have in modern times held it to +be unnecessary that indictments should charge, as by the common +law they were required to do, that an act was done "wickedly," +"feloniously," "with malice aforethought," or in any other manner +that implied a criminal intent, without which there can be no +criminality; but that it is sufficient to charge simply that it +was done " contrary to the form of the statute in such case made +and provided." This form of indictment proceeds plainly upon the +assumption that the government is absolute, and that it has +authority to prohibit any act it pleases, however innocent in its +nature the act may be. Judges have been driven to the alternative +of either sanctioning this new form of indictment, (which they +never had any constitutional right to sanction,) or of seeing the +authority of many of the statutes of the government fall to the +ground; because the acts forbidden by the statutes were so +plainly innocent in their nature, that even the government itself +had not the face to allege that the commission of them implied or +indicated any criminal intent. + +To get rid of the necessity of showing a criminal intent, and +thereby further to enslave the people, by reducing them to the +necessity of a blind, unreasoning submission to the arbitrary +will of the government, and of a surrender of all right, on their +own part, to judge what are their constitutional and natural +rights and liberties, courts have invented another idea, which +they have incorporated among the pretended maxims, upon which +they act in criminal trials, viz., that "ignorance of the law +excuses no one." As if it were in the nature of things possible +that there could be an excuse more absolute and complete. What +else than ignorance of the law is it that excuses persons under +the years of discretion, and men of imbecile minds? What else +than ignorance of the law is it that excuses judges themselves +for all their erroneous decisions? Nothing. They are every day +committing errors, which would be crimes, but for their ignorance +of the law. And yet these same judges, who claim to be learned in +the law, and who yet could not hold their offices for a day, but +for the allowance which the law makes for their ignorance, are +continually asserting it to be a "maxim" that "ignorance of the +law excuses no one;" (by which, of course, they really mean that +it excuses no one but themselves; and especially that it excuses +no unlearned man, who comes before them charged with crime.) + +This preposterous doctrine, that "ignorance of the law excuses no +one," is asserted by courts because it is an indispensable one to +the maintenance of absolute power in the government. It is +indispensable for this purpose, because, if it be once admitted +that the people have any rights and liberties which the +government cannot lawfully take from them, then the question +arises in regard to every statute of the government, whether it +be law, or not; that is, whether it infringe, or not, the rights +and liberties of the people. Of this question every man must of +course judge according to the light in his own mind. And no man +can be convicted unless the jury find, not only that the statute +is law, that it does not infringe the rights and liberties of +the people, but also that it was so clearly law, so clearly +consistent with the rights and liberties of the people, as that +the individual himself, who transgressed it, knew it to be so, +and therefore had no moral excuse for transgressing it. +Governments see that if ignorance of the law were allowed to +excuse a man for any act whatever, it must excuse him for +transgressing all statutes whatsoever, which he himself thinks +inconsistent with his rights and liberties. But such a doctrine +would of course be inconsistent with the maintenance of arbitrary +power by the government; and hence governments will not allow +the plea, although they will not confess their true reasons for +disallowing it. + +The only reasons, (if they deserve the name of reasons), that I +ever knew given for the doctrine that ignorance of the law +excuses no one, are these: + +1. "The reason for the maxim is that of necessity. It prevails, +'not that all men know the law, but because it is an excuse which +every man will make, and no man can tell how to confute him.' +Selden, (as quoted in the 2d edition of Starkie on Slander, +Prelim. Disc., p. 140, note.)" Law Magazine, (London,) vol. 27, +p. 97. + +This reason impliedly admits that ignorance of the Law is, +intrinsically, an ample and sufficient excuse for a crime; and +that the excuse ought to be allowed, if the fact of ignorance +could but be ascertained. But it asserts that this fact is +incapable of being ascertained, and that therefore there is a +necessity for punishing the ignorant and the knowing that is, +the innocent and the guilty without discrimination. +This reason is worthy of the doctrine it is used to uphold; as if +a plea of ignorance, any more than any other plea, must +necessarily be believed simply because it is urged; and as if it +were not a common and every-day practice of courts and juries, in +both civil and criminal cases, to determine the mental capacity +of individuals; as, for example, to determine whether they are of +sufficient mental capacity to make reasonable contracts; whether +they are lunatic; whether they are compotes mentis, "of sound +mind and memory," &. &. And there is obviously no more +difficulty in a jury's determining whether an accused person knew +the law in a criminal case, than there is in determining any of these +other questions that are continually determined in regard to a +man's mental capacity. For the question to be settled by the jury +is not whether the accused person knew the particular penalty +attached to his act, (for at common law no one knew what penalty +a jury would attach to an offence,) but whether he knew that his +act was intrinsically criminal. If it were intrinsically criminal, +it was criminal at common law. If it was not intrinsically criminal, +it was not criminal at common law. (At least, such was the general +principle of the common law. There may have been exceptions in +practice, owing to the fact that the opinions of men, as to what was +intrinsically. criminal, may not have been in all cases correct.) + +A jury, then, in judging whether an accused person knew his act +to be illegal, were bound first to use their own judgments, as to +whether the act were intrinsically criminal. If their own judgments +told them the act was intrinsically and clearlycriminal, they would +naturally and reasonably infer that the accused also understood that +it was intrinsically criminal, (and consequently illegal,) unless it +should appear that he was either below themselves in the scale of +intellect, or had had less opportunities of knowing what acts were +criminal. In short, they would judge, from any and every means they +might have of judging; and if they had any reasonable doubt that he +knew his act to be criminal in itself, they would be bound to acquit +him. + +The second reason that has been offered for the doctrine that +ignorance of the law excuses no one, is this: + +"Ignorance of the municipal law of the kingdom, or of the penalty +thereby inflicted on offenders, doth not excuse any that is of +the age of discretion and compos mentis, from the penalty of the +breach of it; because every person, of the age of discretion and +compos mentis, is bound to know the law, and presumed to do so. +"Ignorantia eorum,, quae quis scire tenetur non excusat." +(Ignorance of those things which every one is bound to know, does +not excuse.) 1 Hale's Pleas of the Crown, 42. Doctor and +Student, Dialog. 2, ch. 46. Law Magazine, (London,) vol. 27, p. +97. + +The sum of this reason is, that ignorance of the law excuses no +one, (who is of the age of discretion and is compos mentis,) +because every such person "is bound to know the law." But this is +giving no reason at all for the doctrine, since saying that a man +"is bound to know the law," is only saying, in another form, that +"ignorance of the law does not excuse him." There is no +difference at all in the two ideas. To say, therefore, that +"ignorance of the law excuses no one, because every one is bound +to know the law," is only equivalent to saying that "ignorance of +the law excuses no one, because ignorance of the law excuses no +one." It is merely reasserting the doctrine, without giving any +reason at all. + +And yet these reasons, which are really no reasons at all, are +the only ones, so far as I know, that have ever been offered for +this absurd and brutal doctrine. + +The idea suggested, that " the age of discretion" determines the +guilt of a person, that there is a particular age, prior to which +all persons alike should be held incapable of knowing any crime, +and subsequent to which all persons alike should be held +capable of knowing all crimes, is another of this most +ridiculous nest of ideas. All mankind acquire their knowledge of +crimes, as they do of other things, gradually. Some they learn at +an early age; others not till a later one. One individual +acquires a knowledge of crimes, as he does of arithmetic, at an +earlier age than others do. And to apply the same presumption to +all, on the ground of age alone, is not only gross injustice, but +gross folly. A universal presumption might, with nearly or quite +as much reason, be founded upon weight, or height, as upon age. +[1] + +This doctrine, that "ignorance of the law excuses no one," is +constantly repeated in the form that "every one is bound to know +the law." The doctrine is true in civil matters, especially in +contracts, so far as this: that no man, who has the ordinary capacity +to make reasonable contracts, can escape the consequences of +his own agreement, on the ground that he did not know the law +applicable to it. When a man makes a contract, he gives the other +party rights; and he must of necessity judge for himself, and take +his own risk, as to what those rights are, otherwise the contract +would not be binding, and men could not make contracts that +would convey rights to each other. Besides, the capacity to make +reasonable contracts, + +implies and includes a capacity to form a reasonable judgment as +to the law applicable to them. But in criminal matters, where the +question is one of punishment, or not; where no second party has +acquired any right to have the crime punished, unless it were +committed with criminal intent, (but only to have it compensated +for by damages in a civil suit,") and when the criminal intent is +the only moral justification for the punishment, the principle +does not apply, and a man is bound to know the law only as well +as he reasonably may. The criminal law requires neither +impossibilities nor extraordinaries of any one. It requires only +thoughtfulness and a good conscience. It requires only that a man +fairly and properly use the judgment he possesses, and the means +he has of learning his duty. It requires of him only the same +care to know his duty in regard to the law, that he is morally +bound to use in other matters of equal importance. And this care +it does require of him. Any ignorance of the law, therefore, that +is unnecessary, or that arises from indifference or disregard of +one's duty, is no excuse. An accused person, therefore, may be +rightfully held responsible for such a knowledge of the law as is +common to men in general, having no greater natural capacities +than himself, and no greater opportunities for learning the law. +And he can rightfully be held to no greater knowledge of the law +than this. To hold him responsible for a greater knowledge of the +law than is common to mankind, when other things are equal, +would be gross injustice and cruelty. The mass of mankind can +give but little of their attention to acquiring a knowledge of the +law. Their other duties in life forbid it. Of course, they cannot +investigate abstruse or difficult questions. All that can +rightfully be required of each of them, then, is that he exercise +such a candid and conscientious judgment as it is common +formankind generally to exercise in such matters. If he have done +this, it would be monstrous to punish him criminally for his +errors; errors not of conscience, but only of judgment. It would +also be contrary to the first principles of a free government +(that is, a government formed by voluntary association) to punish +men in such cases, because it would be absurd to suppose that any +man would voluntarily assist to establish or support a government +that would punish himself for acts which he himself did not know +to be crimes. But a man may reasonably unite with his fellow-men +to maintain a government to punish those acts which he himself +considers criminal, and may reasonably acquiesce in his own +liability to be punished for such acts. As those are the only +grounds on which any one can be supposed to render any voluntary +support to a government, it follows that a government formed by +voluntary association, and of course having no powers except such +as all the associates have consented that it may have, can have +no power to punish a man for acts which he did not himself know +to be criminal. + +The safety of society, which is the only object of the criminal +law, requires only that those acts which are understood by +mankind at large to be intrinsically criminal, should he punished +as crimes. The remaining few (if there are any) may safely be +left to go unpunished. Nor does the safety of society require +that any individuals, other than those who have sufficient mental +capacity to understand that their acts are criminal, should be +criminally punished. All others may safely be left to their +liability, under the civil law, to compensate for their +unintentional wrongs. + +The only real object of this absurd and atrocious doctrine, that +"ignorance of the law (that is, of crime) excuses no one," and +that "everyone is bound to know the criminal law," (that is, +bound to know what is a crime,) is to maintain an entirely +arbitrary authority on the part of the government, and to deny to +the people all right to judge for themselves what their own +rights and liberties are. In other words, the whole object of the +doctrine is to deny to the people themselves all right to judge +what statutes and other acts of the government are consistent or +inconsistent with their own rights and liberties; and thus to +reduce the people to the condition of mere slaves to a despotic +power, such as the people themselves would never have +voluntarily established, and the justice of whose laws the people +themselves cannot understand. + +Under the true trial by jury all tyranny of this kind would be +abolished. A jury would not only judge what acts were really +criminal, but they would judge of the mental capacity of an +accused person, and of his opportunities for understand- ing the +true character of his conduct. In short, they would judge of his +moral intent from all the circumstances of the case, and acquit +him, if they had any reasonable doubt that he knew that he was +committing a crime. [2] + +[1] This presumption, founded upon age alone, is as absurd in +civil matters as in criminal. What can be more entirely ludicrous +than the idea that all men (not manifestly imbecile) become +mentally competent to make all contracts whatsoever on the day +they become twenty-one years of age? and that, previous to that +day, no man becomes competent to make any contract whatever, +except for the present supply of the most obvious wants of +nature? In reason, a man's legal competency to make +binding contracts, in any and every case whatever, depends +wholly upon his mental capacity to make reasonable contracts in +each particular case. It of course requires more capacity to make a +reasonable contract in some cases than in others. It requires, +for example, more capacity to make a reasonable contract in the +purchase of a large estate, than in the purchase of a pair of +shoes. But the mental capacity to make a reasonable contract, in +any particular case, is, in reason, the only legal criterion of +the legal competency to make a binding contract in that case. The +age, whether more or less than twenty-one years, is of no legal +consequence whatever, except that it is entitled to some +consideration as evidence of capacity. + +It may be mentioned, in this connection, that the rules that +prevail, that every man is entitled to freedom from parental +authority at twenty-one years of age, and no one before that age, +are of the same class of absurdities with those that have been +mentioned. The only ground on which a parent is ever entitled to +exercise authority over his child, is that the child is incapable +of taking reasonable care of himself. The child would be entitled +to his freedom from his birth, if he were at that time capable of +taking reasonable care of himself. Some become capable of taking +care of themselves at an earlier age than others. And whenever +any one becomes capable of taking reasonable care of himself, and +not until then, he is entitled to his freedom, be his age more or +less. + +These principles would prevail under the true trial by jury, the +jury being the judges of the capacity of every individual whose +capacity should be called in question. + +[2] In contrast to the doctrines of the text, it may be proper to +present more distinctly the doctrines that are maintained by +judges, and that prevail in courts of justice. Of course, no +judge, either of the present day, or perhaps within the last five +hundred years, has admitted the right of a jury to judge of the +justice of a law, or to hold any law invalid for its injustice. +Every judge asserts the power of the government to punish for +acts that are intrinsically innocent, and which therefore involve +or evince no criminal intent. To accommodate the administration +of law to this principle, all judges, so far as I am aware, hold +it to be unnecessary that an indictment should charge, or that a +jury should find, that an act was done with a criminal intent, +except in those cases where the act is malum in se, criminal in +itself. In all other cases, so far as I am aware, they hold it +sufficient that the indictment charge, and consequently that the +jury find, simply that the act was done " contrary to the form of +the statute in such case made and provided;" in other words, +contrary to the orders of the government. + +All these doctrines prevail universally among judges, and are, I +think, uniformly practised upon in courts of justice; and they +plainly involve the most absolute despotism on the part of the +government. + +But there is still another doctrine that extensively, and perhaps +most generally, prevails in practice, although judges are not +agreed in regard to its soundness. It is this: that it is not +even necessary that the jury should see or know, for themselves, +what the law is that is charged to have been violated; nor to see +or know, for themselves, that the act charged was in violation of +any law whatever; but that it is sufficient that they be simply +told by the judge that any act whatever, charged in an +indictment, is in violation of law, and that they are then bound +blindly to receive the declaration as true, and convict a man +accordingly, if they find that he has done the act charged. + +This doctrine is adopted by many among the most eminent judges, +and the reasons for it are thus given by Lord Mansfield: + +"They (the jury) do not know, and are not presumed to know, the +law. They are not sworn to decide the law;" [3] they are not +required to do it... The jury ought not to assume the +jurisdiction of law. They do not know, and are not presumed to +know, anything of the matter. They do not understand the language +in which it is conceived, or the meaning of the terms. They have +no rule to go by but their passions and wishes." 8 Term Rep., +428, note. + +What is this but saying that the people, who are supposed to be +represented in juries, and who institute and support the +government, (of course for the protection of their own rights and +liberties, as they understand them, for plainly no other motive +can be attributed to them,) are really the slaves of a despotic +power, whose arbitrary commands even they are not supposed +competent to understand, but for the transgression of which they +are nevertheless to be punished as criminals + +This is plainly the sum of the doctrine, because the jury are the +peers (equals) of the accused, and are therefore supposed to know +the law as well as he does, and as well as it is known by the +people at large. If they (the jury) are not presumed to know the +law, neither the accused nor the people at large can be presumed +to know it. Hence, it follows that one principle of the truetrial by +jury is, that no accused person shall be held responsible for any +other or greater knowledge of the law than is common to his +political equals, who will generally be men of nearly similar +condition in life. But the doctrine of Mansfield is, that the body +of the people, from whom jurors are taken, are responsible to a +law, which it is agreed they cannot understand. What is this but +despotism? and not merely despotism, but insult and oppression +of the intensest kind? + +[3] This declaration of Mansfield, that juries in England "are +not sworn to decide the law" in criminal cases, is a plain +falsehood. They are sworn to try the whole case at issue between +the king and the prisoner, and that includes the law as well as +the fact. See Jurors Oath, page 85. + +This doctrine of Mansfield is the doctrine of all who deny the +right of juries to judge of the law, although all may not choose +to express it in so blunt and unambiguous terms. But the doctrine +evidently admits of no other interpretation or defence. + + +CHAPTER X. MORAL CONSIDERATIONS FOR JURORS + +THE trial by jury must, if possible, be construed to be such that +a man can rightfully sit in a jury, and unite with his fellows in +giving judgment. But no man can rightfully do this, unless he +hold in his own hand alone a veto upon any judgment or sentence +whatever to be rendered by the jury against a defendant, which +veto he must be permitted to use according to his own discretion +and conscience, and not bound to use according to the dictation +of either legislatures or judges. + +The prevalent idea, that a juror may, at the mere dictation of a +legislature or a judge, and without the concurrence of his own +conscience or understanding, declare a man "guilty," and thus in +effect license the government to punish him; and that the +legislature or the judge, and not himself, has in that case all +the moral responsibility for the correctness of the principles on +which the judgment was rendered, is one of the many gross +impostures by which it could hardly have been supposed that any +sane man could ever have been deluded, but which governments +have nevertheless succeeded in inducing the people at large to receive +and act upon. + +As a moral proposition, it is perfectly self-evident that, unless +juries have all the legal rights that have been claimed for them +in the preceding chapters, that is, the rights of judging what +the law is, whether the law be a just one, what evidence is +admissible, what weight the evidence is entitled to, whether an +act were done with a criminal intent, and the right also to limit +the sentence, free of all dictation from any quarter, they have +no moral right to sit in the trial at all, and cannot do so +without making themselves accomplices in any injustice that they +may have reason to believe may result from their verdict. It is +absurd to say that they have no moral responsibility for the use +that may be made of their verdict by the government, when they +have reason to suppose it will be used for purposes of injustice. + +It is, for instance, manifestly absurd to say that jurors have no +moral responsibility for the enforcement of an unjust law, when +they consent to render a verdict of guilty for the transgression +of it; which verdict they know, or have good reason to believe, +will be used by the government as a justification for inflicting +a penalty. + +It is absurd, also, to say that jurors have no moral +responsibility for a punishment indicted upon a man against law, +when, at the dictation of a judge as to what the law is, they +have consented to render a verdict against their own opinions of +the law. + +It is absurd, too, to say that jurors have no moral +responsibility for the conviction and punishment of an innocent +man, when they consent to render a verdict against him on the +strength of evidence, or laws of evidence, dictated to them by +the court, if any evidence or laws of evidence have been +excluded, which they (the jurors) think ought to have been +admitted in his defence. + +It is absurd to say that jurors have no moral responsibility for +rendering a verdict of "guilty" against a man, for an act which +he did not know to be a crime, and in the commission of which, +therefore, he could have had no criminal intent, in obedience to +the instructions of courts that "ignorance of the law (that is, +of crime) excuses no one." + +It is absurd, also, to say that jurors have no moral +responsibility for any cruel or unreasonable sentence that may be +inflicted even upon a guilty man, when they consent to render a +verdict which they have reason to believe will be used by the +government as a justification for the infliction of such +sentence. + +The consequence is, that jurors must have the whole case in their +hands, and judge of law, evidence, and sentence, or they incur +the moral responsibility of accomplices in any injustice which +they have reason to believe will be done by the government on the +authority of their verdict. + +The same principles apply to civil cases as to criminal. If a +jury consent, at the dictation of the court, as to either law or +evidence, to render a verdict, on the strength of which they have +reason to believe that a man's property will be taken from him +and given to another, against their own notions of justice, they +make themselves morally responsible for the wrong. + +Every man, therefore, ought to refuse to sit in a jury, and to +take the oath of a juror, unless the form of the oath be such as +to allow him to use his own judgment, on every part of the case, +free of all dictation whatsoever, and to hold in his own hand a +veto upon any verdict that can be rendered against a defendant, +and any sentence that can be inflicted upon him, even if he be +guilty. + +Of course, no man can rightfully take an oath as juror, to try a +case "according to law," (if by law be meant anything other than +his own ideas of justice,) nor "according to the law and the +evidence, as they shall be given him." Nor can he rightfully take +an oath even to try a case "according to the evidence," because +in all cases he may have good reason to believe that a party has +been unable to produce all the evidence legitimately entitled to +be received. The only oath which it would seem that a man can +rightfully take as juror, in either a civil or criminal case, is, +that he "will try the case according to his conscience." Of +course, the form may admit of variation, but this should be the +substance. Such, we have seen, were the ancient common law +oaths. + + +CHAPTER XI. AUTHORITY OF MAGNA CARTA + +PROBABLY no political compact between king and people was +ever +entered into in a manner to settle more authoritatively the +fundamental law of a nation, than was Magna Carta. Probably no +people were ever more united and resolute in demanding from +their +king a definite and unambiguous acknowledgment of their rights +and liberties, than were the English at that time. Probably no +king was ever more completely stripped of all power to maintain +his throne, and at the same time resist the demands of his +people, than was John on the 15th day of June, 1215. Probably no +king every consented, more deliberately or explicitly, to hold +his throne subject to specific and enumerated limitations upon +his power, than did John when he put his seal to the Great +Charter of the Liberties of England. And if any political compact +between king and people was ever valid to settle the liberties of +the people, or to limit the power of the crown, that compact is +now to be found in Magna Carta. If, therefore, the constitutional +authority of Magna Carta had rested solely upon the compact of +John with his people, that authority would have been entitled to +stand forever as the supreme law of the land, unless revoked by +the will of the people themselves. + +But the authority of Magna Carta does not rest alone upon the +compact with John. When, in the next year, (1216,) his son, Henry +III., came to the throne, the charter was ratified by him, and +again in 1217, and again in 1225, in substantially the same form, +and especially without allowing any new powers, legislative, +judicial, or executive, to the king or his judges, and without +detracting in the least from the powers of the jury. And from the +latter date to this, the charter has remained unchanged. + +In the course of two hundred years the charter was confirmed by +Henry and his successors more than thirty times. And although +they were guilty of numerous and almost continual breaches of it, +and were constantly seeking to evade it, yet such were the +spirit, vigilance and courage of the nation, that the kings held +their thrones only on the condition of their renewed and solemn +promises of observance. And it was not until 1429, (as will be +more fully shown hereafter,) when a truce between themselves, +and +a formal combination against the mass of the people, had been +entered into, by the king, the nobility, and the "forty shilling +freeholders," (a class whom Mackintosh designates as "a few +freeholders then accounted wealthy," [1]) by the exclusion of all +others than such freeholders from all voice in the election of +knights to represent the counties in the House of Commons, that a +repetition of these confirmations of Magna Carta ceased to be +demanded. and obtained. [2] + +The terms and the formalities of some of these "confirmations" +make them worthy of insertion at length. + +Hume thus describes one which took place in the 38th year of +Henry III. (1253): + +" But as they (the barons) had experienced his (the king's) +frequent breach of promise, they required that he should ratify +the Great Charter in a manner still more authentic and solemn +than any which he had hitherto employed. All the prelates and +abbots were assembled. They held burning tapers in their hands. +The Great Charter was read before them. They denounced the +sentence of excommunication against every one who should +thenceforth violate that fundamental law. They threw their tapers +on the ground, and exclaimed, May the soul of every one who +incurs this sentence so stink and corrupt in hell! The king bore +a part in this ceremony, and subjoined, ' So help me God! I will +keep all these articles inviolate, as I am a man, as I am a +Christian, as I am a knight, and as I am a king crowned and +anointed.' " Hume, ch. 12. See also Blackstone's Introd. to the +Charters. Black. Law Tracts, Oxford ed., p. 332. Makintosh's +Hist. of Eng., ch. 3. Lardner's Cab. Cyc., vol. 45, p. 233 4. + +The following is the form of "the sentence of excommunication" +referred to by Hume: + +"The Sentence of Curse, Given by the Bishops, against the +Breakers of the Charters. + +"The year of our Lord a thousand two hundred and fifty-three, the +third day of May, in the great Hall of the King at Westminster, +in the presence, and by the assent, of the Lord Henry, by the +Grace of God King of England, and the Lords Richard, Earl of +Cornwall, his brother, Roger (Bigot) Earl of Norfolk and +Suffolk;, marshal of England, Humphrey, Earl of Hereford, Henry, +Earl of Oxford, John, Earl of Warwick, and other estates of the +Realm of England: We, Boniface, by the mercy of God Archbishop +of +Canterbury, Primate of all England, F. of London, H. of Ely, S. +of Worcester, F. of Lincoln, W. of Norwich, P. of Hereford, W. of +Salisbury, W. of Durham, R. of Exeter, M. of Carlisle, W. of +Bath, E. of Rochester, T. of Saint David's, Bishops, appareled in +Pontificals, with tapers burning, against the breakers of the +Church's Liberties, and of the Liberties or free customs of the +Realm of England, and especially of those which are contained in +the Charter of the Common Liberties of the Realm, and the +Charter +of the Forest, have solemnly denounced the sentence of +Excommunication in this form. By the authority of Almighty God, +the Father, the Son, and the Holy Ghost, and of the glorious +Mother of God, and perpetual Virgin Mary, of the blessed Apostles +Peter and Paul, and of all apostles, of the blessed Thomas, +Archbishop and Martyr, and of all martyrs, of blessed Edward of +England, and of all Confessors and virgins, and of all the saints +of heaven: We excommunicate, accurse, and from the thresholds +(liminibus) of our Holy Mother the Church, We sequester, all +those that hereafter willingly and maliciously deprive or spoil +the Church of her right: And all those that by any craft or +wiliness do violate, break, diminish, or change the Church's +Liberties, or the ancient approved customs of the Realm, and +especially the Liberties and free Customs contained in the +Charters of the Common Liberties, and of the Forest, conceded by +our Lord the King, to Archbishops, Bishops, and other Prelates of +England and likewise to the Earls, Barons, Knights, and other +Freeholders of the Realm: And all that secretly, or openly, by +deed, word, or counsel, do make statutes, or observe them being +made, and that bring in Customs, or keep them when they be +brought in, against the said Liberties, or any of them, the +Writers and Counselors of said statutes, and the Executors of +them, and a11 those that shall presume to judge according to +them. All and every which persons before mentioned, that +wittingly shall commit anything of the premises, let them well +know that they incur the aforesaid sentence, ipso facto, (i. e.. +upon the deed being done.) And those that ignorantly do so, and +be admonished, except they reform themselves within fifteen days +after the time of the admonition, and make full satisfaction for +that they have done, at the will of the ordinary, shall be from +that time forth included in the same sentence. And with the same +sentence we burden all those that presume to perturb the peace of +our sovereign Lord the King, and of the Realm. To the perpetual +memory of which thing, We, the aforesaid Prelates, have put our +seals to these presents." Statutes of the Realm, vol. 1, p. 6. +Ruffhead's Statutes, vol. 1, p. 20. + +One of the Confirmations of the Charters, by Edward I., was by +statute, in the 25th year of his reign, (1297,) in the following +terms. The statute is usually entitled. "Confirmatio +Cartarum,"(Confirmation of the Charters.) + +Ch. 1. "Edward, by the Grace of God, King of England, Lord of +Ireland, and Duke of Guyan, To all those that these presents +shall hear or see, Greeting. Know ye, that We, to the honor of +Cod, and of Holy Church, and to the profit of our Realm, have +granted, for us and our heirs, that the Charter of Liberties, and +the Charter of the Forest, which were made by common assent of +all the Realm, in the time of King Henry our Father, shall be +kept in every point without breach. And we will that the same +Charters shall be sent under our seal, as well to our justices of +the Forest, as to others, and to all Sheriff's of shires, and to +all our other officers, and to all our cities throughout the +Realm, together with our writs, in the which it shall he +contained, that they cause the aforesaid Charters to be +published, and to declare to the people that We have confirmed +them at all points; and to our Justices, Sheriffs, mayors, and +other ministers, which under us have the Laws of our Land to +guide, that they allow the same Charters, in all their points, in +pleas before them, and in judgment; that is, to wit, the Great +Charter as the Common Law, and the Charter of the Forest for the +wealth of our Realm. + +Ch. 2. "And we will that if any judgment be given from henceforth +contrary to the points of the charters aforesaid by the justices, +or by any others our ministers that hold plea before them, +against the points of the Charters, it shall be undone and holden +for naught. + +Ch. 3. "And we will, that the same Charters shall be sent, under +our seal, to Cathedral Churches throughout our Realms there to +remain, and shall be read before the people two times in the +year. + +Ch. 4. "And that all Archbishops and Bishops shall pronounce the +sentence of excommunication against all those that by word, deed, +or counsel, do contrary to the foresaid charters, or that in any +point break or undo them. And that the said Curses be twice a +year denounced and published by the prelates aforesaid. And if +the same prelates, or any of them, be remiss in the denunciation +of the said sentences, the Archbishops of Canterbury and York-, +for the time being, shall compel and distrain them to make the +denunciation in the form aforesaid." St. 25 Edward I., (1297.). +Statutes of the Realm, vol. l, p. 123. + +It is unnecessary to repeat the terms of the various +confirmations, most of which were less formal than those that +have been given, though of course equally authoritative. Most of +them are brief, and in the form of a simple statute, or promise, +to the effect that "The Great Charter, and the Charter of the +Forest, shall be firmly kept and maintained in all points." They +are to be found printed with the other statutes of the realm. One +of them, after having "again granted, renewed and confirmed" the +charters, requires as follows: + +"That the Charters be delivered to every sheriff of England under +the king's seal, to be read four times in the year before the +people in the full county," (that is, at the county court,) "that +is, to wit, the next county (court) after the feast of Saint +Michael, and the next county (court) after Christmas, and at the +next county (court) after Easter, and at the next county (court) +after the feast of Saint John " 28 Edward I., ch. 1, (1300.) v + +Lingard says, "The Charter was ratified four times by Henry III., +twice by Edward I., fifteen times by Edward III., seven times by +Richard II., six times by Henry IV., and once by Henry V.;" +making thirty-five times in all. 3 Lingard, 50, note, Philad. +ed. + +Coke says Magna Carta was confirmed thirty-two times. Preface +to 2 Inst., p. 6. + +Lingard calls these "thirty-five successive ratifications" of the +charter, "a sufficient proof how much its provisions were +abhorred by the sovereign, and how highly they were prized by the +nation." 3 Lingard, 50. + + +Mackintosh says, "For almost five centuries (that is, until 1688) +it (Magna Carta) was appealed to as the decisive authority on +behalf of the people, though commonly so far only as the +necessities of each case demanded." Mackintosh's Hist. of Eng. +ch. 3. 45 Lardner's Cab. Cyc., 221. + +Coke, who has labored so hard to overthrow the most vital +principles of Magna Carta, and who, therefore, ought to be +considered good authority when he speaks in its favor, [3] says: + +"It is called Magna Carta, not that it is great in quantity, for +there be many voluminous charters commonly passed, specially in +these later times, longer than this is; nor comparatively in +respect that it is greater than Charta de Foresta, but in respect +of the great importance and weightiness of the matter, as +hereafter shall appear; and likewise for the same cause Charta de +Foresta; and both of them are called Magnae Char- tae Libertatum +Angliae, (The Great Charters of the Liberties of England.) + +"And it is also called Charta Libertatum regni, (Charter of the +liberties of the kingdom;) and upon great reason it is so called +of the effect, quia liberos facit, (because it makes men free.) +Sometime for the same cause (it is called) communis libertas, +(common liberty,) and le chartre des franchises, (the charter of +franchises.) + +"It was for the most part declaratory of the principal grounds of +the fundamental laws of England, and for the residue it is +additional to supply some defects of the common law. + +"Also, by the said act of 25 Edward I., (called Confirmatio +Chartarum,) it is adjudged in parliament that the Great Charter +and the Charter of the Forest shall be taken as the common law. + +"They (Magna Carta and Carta de Foresta) were, for the most part, +but declarations of the ancient common laws of England, to the +observation and keeping whereof, the king was bound and sworn. + +"After the making of Magna Charta, and Charta de Foresta, divers +learned men in the laws, that I may use the words of the record, +kept schools of the law in the city of London, and taught such as +resorted to them the laws of the realm, taking their foundation +of Magna Charta and Charta de Foresta. + +"And the said two charters have been confirmed, established, and +commanded to be put in execution by thirty-two several acts of +parliament in all. + +"This appeareth partly by that which hath been said, for that it +hath so often been confirmed by the wise providence of so many +acts of parliament. + +"And albeit judgments in the king's courts are of high regard in +law, and judicia (judgments) are accounted as jurisdicta, (the +speech of the law itself,) yet it is provided by act of +parliament, that if any judgment be given contrary to any of the +points of the Great Charter and Charta de Foresta, by the +justices, or by any other of the king's ministers, &c;., it shall +be undone, and holden for naught. + +"And that both the said charters shall be sent under the great +seal to all cathedral churches throughout the realm, there to +remain, and shall be read to the people twice every year. + +"The highest and most binding laws are the statutes which are +established by parliament; and by authority of that highest court +it is enacted (only to show their tender care of Magna Carta and +Carta de Foresta) that if any statute be made contrary to the +Great Charter, or the Charter of the Forest, that shall be holden +for none; by which words all former statutes made against either +of those charters are now repealed; and the nobles and great +officers were to be sworn to the observation of Magna Charta and +Charta de Foresta. + +"Magna fuit quondam magnae reverentia chartae." (Great was +formerly the reverence for Magna Carta.) Coke's Proem to 2 +Inst., p. 1 to 7. + +Coke also says, "All pretence of prerogative against Magna Charta +is taken away." 2 Inst., 36. + +He also says, "That after this parliament (52 Henry III., in +1267) neither Magna Carta nor Carta de Foresta was ever +attempted to be impugned or questioned." 2 Inst., 102. [4] + +To give all the evidence of the authority of Magna Carta, it +would be necessary to give the constitutional history of England +since the year 1215. This history would show that Magna Carta, +although continually violated and evaded, was still acknowledged +as law by the government, and was held up by the people as the +great standard and proof of their rights and liberties. It would +show also that the judicial tribunals, whenever it suited their +purposes to do so, were in the habit of referring to Magna Carta +as authority, in the same manner, and with the same real or +pretended veneration, with which American courts now refer to the +constitution of the United States, or the constitutions of the +states. And, what is equally to the point, it would show that +these same tribunals, the mere tools of kings and parliaments, +would resort to the same artifices of assumption, precedent, +construction, and false interpretation, to evade the requirements +of Magna Carta, and to emasculate it of all its power for the +preservation of liberty, that are resorted to by American courts +to accomplish the same work on our American constitutions. + +I take it for granted, therefore, that if the authority of Magna +Carta had rested simply upon its character as a compact between +the king and the people, it would have been forever binding upon +the king, (that is, upon the government, for the king was the +government,) in his legislative, judicial, and executive +character; and that there was no constitutional possibility of +his escaping from its restraints, unless the people themselves +should freely discharge him from them. + +But the authority of Magna Carta does not rest, either wholly or +mainly, upon its character as a compact. For centuries before the +charter was granted, its main principles constituted "the Law of +the Land," the fundamental and constitutional law of the realm, +which the kings were sworn to maintain. And the principal benefit +of the charter was, that it contained a written description and +acknowledgment, by the king himself, of what the constitutional +law of the kingdom was, which his coronation oath bound him to +observe. Previous to Magna Carta, this constitutional law rested +mainly in precedents, customs, and the memories of the people. +And if the king could but make one innovation upon this law, +without arousing resistance, and being compelled to retreat from +his usurpation, he would cite that innovation as a precedent for +another act of the same kind; next, assert a custom; and, +finally, raise a controversy as to what the Law of the Land +really was. The great object of the barons and people, in +demanding from the king a written description and +acknowledgment +of the Law of the Land, was to put an end to all disputes of this +kind, and to put it out of the power of the king to plead any +misunderstanding of the constitutional law of the kingdom. And +the charter, no doubt, accomplished very much in this way. After +Magna Carta, it required much more audacity, cunning, or +strength, on the part of the king, than it had before, to invade +the people's liberties with impunity. Still, Magna Carta, like +all other written constitutions, proved inadequate to the full +accomplishment of its purpose; for when did a parchment ever +have +power adequately to restrain a government, that had either +cunning to evade its requirements, or strength to overcome those +who attempted its defence? The work of usurpation, therefore, +though seriously checked, still went on, to a great extent, after +Magna Carta. Innovations upon the Law of the Land are still made +by the government. One innovation was cited as a precedent; +precedents made customs; and customs became laws, so far as +practice was concerned; until the government, composed of the +king, the high functionaries of the church, the nobility, a House +of Commons representing the "forty shilling freeholders," and a +dependent and servile judiciary, all acting in conspiracy against +the mass of the people, became practically absolute, as it is at +this day. + +As proof that Magna Carta embraced little else than what was +previously recognized as the common law, or Law of the Land, I +repeat some authorities that have been already cited. +Crabbe says, "It is admitted on all hands that it (Magna Carta) +contains nothing but what was confirmatory of the common law +and +the ancient usages of the realm; and is, properly speaking, only +an enlargement of the charter of Henry I. and his successors." +Crabbe's Hist. of the Eng. Law, p. 127. + +Blackstone says, "It is agreed by all our historians that the +Great Charter of King John was, for the most part, compiled from +the ancient customs of the realm, or the laws of Edward the +Confessor; by which they mean the old common law which was +established under our Saxon princes." Blackstone's Introd. to +the Charters. See Blackstone's Law Tracts, Oxford ed., p. 289. + +Coke says, " The common law is the most general and ancient law +of the realm... The common law appeareth in the statute of Magna +Carta, and other ancient statutes, (which for the most part are +affirmations of the common law,) in the original writs, in +judicial records, and in our books of terms and years." 1 +Inst., 115 b. + +Coke also says, "It (Magna Carta) was for the most part +declaratory of the principal grounds of the fundamental laws of +England, and for the residue it was additional to supply some +defects of the common law... They (Magna Carta and Carta de +Foresta) were, for the most part, but declarations of the ancient +common laws of England, to the observation and keeping whereof +the king was bound and sworn." Preface to 2 Inst., p. 3 and 5. + +Hume says, "We may now, from the tenor of this charter, (Magna +Carta,) conjecture what those laws were of King Edward, (the +Confessor,) which the English nation during so many generations +still desired, with such an obstinate perseverance, to have +recalled and established. They were chiefly these latter articles +of Magna Carta; and the barons who, at the beginning of these +commotions, demanded the revival of the Saxon laws, +undoubtedly +thought that they had sufficiently satisfied the people, by +procuring them this concession, which comprehended the principal +objects to which they had so long aspired." Hume, ch. 11. + +Edward the First confessed that the Great Charter was +substantially identical with the common law, as far as it went, +when he commanded his justices to allow "the Great Charter as the +Common Law," " in pleas before them, and in judgment," as has +been already cited in this chapter. 25 Edward I., ch. 1, +(1297.) + +In conclusion of this chapter, it may be safely asserted that the +veneration, attachment, and pride, which the English nation, for +more than six centuries, have felt towards Magna Carta, are in +their nature among the most irrefragable of all proofs that it +was the fundamental law of the land, and constitutionally binding +upon the government; for, otherwise, it would have been, in their +eyes, an unimportant and worthless thing. What those sentiments +were I will use the words of others to describe, the words, +too, of men, who, like all modern authors who have written on the +same topic, had utterly inadequate ideas of the true character of +the instrument on which they lavished their eulogiums. + +Hume, speaking of the Great Charter and the Charter of the +Forest, as they were confirmed by Henry III., in 1217, says:"Thus +these famous charters were brought nearly to the shape in which +they have ever since stood; and they were, during many +generations, the peculiar favorites of the English nation, and +esteemed the most sacred rampart to national liberty and +independence. As they secured the rights of all orders of men, +they were anxiously defended by all, and became the basis, in a +manner, of the English monarchy, and a kind of original contract, +which both limited the authority of the king and ensured the +conditional allegiance of his subjects. Though often violated, +they were still claimed by the nobility and people; and, as no +precedents were supposed valid that infringed them, they rather +acquired than lost authority, from the frequent attempts made +against them in several ages, by regal and arbitrary power." +Hume, ch. 12. + +Mackintosh says, "It was understood by the simplest of the +unlettered age for whom it was intended. It was remembered by +them... For almost five centuries it was appealed to as the +decisive authority on behalf of the people... To have produced +it, to have preserved it, to have matured it, constitute the +immortal claim of England on the esteem of mankind. Her Bacons +arid Shakspeares, her Miltons and Newtons, with all the truth +which they have revealed, and all the generous virtues which they +have inspired, are of inferior value when compared with the +subjection of men and their rulers to the principles of justice; +if, indeed, it be not more true that these mighty spirits could +not have been formed except under equal laws, nor roused to full +activity without the influence of that spirit which the Great +Charter breathed over their forefathers." Mackintosh's Hist. of +Eng., ch. 3, [8] + +Of the Great Charter, the trial by jury is the vital part, and +the only part that places the liberties of the people in their +own keeping. Of this Blackstone says: + +"The trial by jury, or the country, per patriam, is also that +trial by the peers of every Englishman, which, as the grand +bulwark of his liberties, is secured to him by the Great Charter; +nullus liber homo capiatur, vel imprisonetur, aut exuletur, aut +aliquo modo destruatur, nisi per legale judicial parium suorum, +vel per legem terrae. + +The liberties of England cannot but subsist so long as this +palladium remains sacred and inviolate, not only from all open, +attacks, which none will be so hardy as to make, but also from +all secret machinations which may sap and undermine it." [9] + +"The trial by jury ever has been, and I trust ever will be, +looked upon as the glory of the English law... It is the most +transcendent privilege which any subject can enjoy or wish for, +that he cannot be affected in his property, his liberty, or his +person, but by the unanimous consent of twelve of his neighbors +and equals."[10] + +Hume calls the Trial by Jury "An institution admirable in itself, +and the best calculated for the preservation of liberty and the +administration of justice, that ever was devised by the wit of +man." [11] + +An old book, called "English Liberties," says:"English +Parliaments have all along been most zealous for preserving this +Great Jewel of Liberty, Trials by Juries having no less than +fifty-eight several times, since the Norman Conquest, been +established and confirmed by the legislative power, no one +privilege besides having been ever so often remembered in +parliament."{12] + +[1] Mackintosh's Hist. of Eng., ch. 3. 45 Lardner's Cab. Cyc., +354. + +[2] "Forty shilling freeholders" were those "people dwelling and +resident in the same counties, whereof every one of them shall +have free land or tenement to the value of forty shillings by the +year at the least above all charges." By statute 8 Henry 6, ch. +7, (1429,) these freeholders only were allowed to vote for +members of Parliament from the counties. + +[3] He probably speaks in its favor only to blind the eyes of the +people to the frauds he has attempted upon its true meaning. + +[4] It will be noticed that Coke calls these confirmations of the +charter "acts of parliament," instead of acts of the king alone. +This needs explanation. + +It was one of Coke's ridiculous pretences, that laws anciently +enacted by the king, at the request, or with the consent, or by +the advice, of his parliament, was "an act of parliament," +instead of the act of the king. And in the extracts cited, he +carries this idea so far as to pretend that the various +confirmations of the Great Charter were "acts of parliament," +instead of the acts of the kings. He might as well have pretended +that the original grant of the Charter was an "act of parliament; +"because it was not only granted at the request, and with the +consent, and by the advice, but on the compulsion even, of those +who commonly constituted his parliaments. Yet this did not make +the grant of the charter "an act of parliament." It was simply an +act of the king. + +The object of Coke, in this pretence, was to furnish some color +for the palpable false- hood that the legislative authority, +which parliament was trying to assume in his own day, and which +it finally succeeded in obtaining, had a precedent in the ancient +constitution of the kingdom. + +There would be as much reason in saying that, because the ancient +kings were in the habit of passing laws in special answer to the +petitions of their subjects, therefore those petitioners were a +part of the legislative power of the kingdom. + +One great objection to this argument of Coke, for the legislative +authority of the ancient parliaments, is that a very large +probably much the larger number of legislative acts were done +without the advice, consent, request, or even presence, of a +parliament. Not only were many formal statutes passed without +any mention of the consent or advice of parliament, but a simple +order of the king in council, or a simple proclamation, writ, or +letter under seal, issued by his command, had the same force as +what Coke calls "an act of parliament." And this practice +continued, to a considerable extent at least, down to Coke's own +time. + +The kings were always in the habit of consulting their +parliaments, more or less, in regard to matters of legislation, +not because their consent was constitutionally necessary, but in +order to make influence in favor of their laws, and thus induce +the people to observe them, and the juries to enforce them. +The general duties of the ancient parliaments were not +legislative, but judicial, as will be shown more fully hereafter. +The people were not represented in the parliaments at the time of +Magna Carta, but only the archbishops, bishops, earls, barons, +and knights; so that little or nothing would have been gained for +liberty by Coke's idea that parliament had a legislative power. +He would only have substituted an aristocracy for a king. Even +after the Commons were represented in parliament, they for some +centuries appeared only as petitioners, except in the matter of +taxation, when their consent was asked. And almost the only +source of their influence on legislation was this: that they +would sometimes refuse their consent to the taxation, unless the +king would pass such laws as they petitioned for; or, as would +seem to have been much more frequently the case, unless he would +abolish such laws and practices as they remonstrated against. +The influence, or power of parliament, and especially of the +Commons, in the general legislation of the country, was a thing +of slow growth, having its origin in a device of the king to get +money contrary to law, (as will be seen in the next volume,) and +not at all a part of the constitution of the kingdom, nor having +its foundation in the consent of the people. The power, as at +present exercised, was not fully established until 1688, (near +five hundred years after Magna Carta,) when the House of +Commons (falsely so called) had acquired such influence as the +representative, not of the people, but of the wealth, of the +nation, that they compelled, the king to discard the oath fixed +by the constitution of the kingdom; (which oath has been already +given in a former chapter, [5] and was, in substance, to preserve +and execute the Common Law, the Law of the Land, or, in the +words of the oath, "the just laws and customs which the common +people had chosen;") and to swear that he would "govern the +people of this kingdom of England, and the dominions thereto +belonging, accordingto the statutes in parliament agreed on, and +the laws and customs of the same." [6] + +The passage and enforcement of this statute, and the assumption +of this oath by the king, were plain violations of the English +constitution, inasmuch as they abolished, so far as such an oath +could abolish, the legislative power of the king, and also "those +just laws and customs which the common people (through their +juries) had chosen," and substituted the will of parliament in +their stead. + +Coke was a great advocate for the legislative power of +parliament, as a means of restraining the power of the king. As +he denied all power to juries to decide upon the obligation of +laws, and as he held that the legislative power was "so +transcendent and absolute as (that) it cannot be confined, either +for causes or persons, within any bounds," [7] he was perhaps +honest in holding that it was safer to trust this terrific power +in the hands of parliament, than in the hands of the king. His +error consisted in holding that either the king or parliament had +any such power, or that they had any power at all to pass laws +that should be binding upon a jury. + +These declarations of Coke, that the charter was confirmed by +thirty-two "acts of parliament," have a mischievous bearing in +another respect. They tend to weaken the authority of the +charter, by conveying the impression that the charter itself +might be abolished by "act of parliament." Coke himself admits +that it could not be revoked or rescinded by the king; for he +says, "All pretence of prerogative against Magna Carta is taken +away." (2 Inst., 36.) + +He knew perfectly well, and the whole English nation knew, that +the king could not lawfully infringe Magna Carta. Magna Carta, +therefore, made it impossible that absolute power could ever be +practically established in England, in the hands of the king. +Hence, as Coke was an advocate for absolute power, that is, for +a legislative power "so transcendent and absolute as (that) it +cannot, be confined, either for causes or persons, within any +bounds," there was no alternative for him but to vest this +absolute power in parliament. Had he not vested it in parliament, +he would have been obliged to abjure it altogether, and to +confess that the people, through their juries, had the right to +judge of the obligation of all legislation whatsoever; in other +words, that they had the right to confine the government within +the limits of "those just laws and customs which the common +people (acting as jurors) had chosen." True to his instincts, as +a judge, and as a tyrant, he assumed that this absolute power was +vested in the hands of parliament. + +But the truth was that, as by the English constitution parliament +had no authority at all for general legislation, it could no more +confirm, than it could abolish, Magna Carta. + +These thirty-two confirmations of Magna Carta, which Coke +speaks of as "acts of parliament," were merely acts of the king. The +parliaments, indeed, by refusing to grant him money, except, on +that condition, and otherwise, had contributed to oblige him to +make the confirmations; just as they had helped to oblige him by +arms to grant the charter in the first place. But the confirmations +themselves were nevertheless constitutionally, as well as formally, +the acts of the king alone. + +[5] See page 103. + +[6]St. 1.William and Mary, ch. 6, (1688) + +[7]4. Inst., 36. + +[8] Under the head of "John." + +[9] 4 Blackstone, 849-50. + +[10] 3 Blackstone, 379. + +[11] Hume, ch. 2. + +[12] Page 203, 5th edition, 1721. + + +CHAPTER XII. Limitations Imposed Upon The Majority By The +Trial By Jury + +The principal objection, that will be made to the doctrine of +this essay, is, that under it, a jury would paralyze the power of +the majority, and veto all legislation that was not in accordance +with the will of the whole, or nearly the whole, people. + +The answer to this objection is, that the limitation, which would +be thus imposed upon the legislative power, (whether that power +be vested in the majority, or minority, of the people,) is the +crowning merit of the trial by jury. It has other merits; but, +though important in themselves, they are utterly insignificant +and worthless in comparison with this. + +It is this power of vetoing all partial and oppressive +legislation, and of restricting the government to the maintenance +of such laws as the whole, or substantially the whole, people are +agreed in, that makes the trial by jury "the palladium of +liberty." Without this power it would never have deserved that +name. + +The will, or the pretended will, of the majority, is the last +lurking place of tyranny at the present day. The dogma, that +certain individuals and families have a divine appointment to +govern the rest of mankind, is fast giving place to the one that +the larger number have a right to govern the smaller; a dogma, +which may, or may not, be less oppressive in its practical +operation, but which certainly is no less false or tyrannical in +principle, than the one it is so rapidly supplanting. Obviously +there is nothing in the nature of majorities, that insures +justice at their hands. They have the same passions as +minorities, and they have no qualities whatever that should be +expected to prevent them from practising the same tyranny as +minorities, if they think it will be for their interest to do so. + +There is no particle of truth in the notion that the majority +have a right to rule, or to exercise arbitrary power over, the +minority, simply because the former are more numerous than the +latter. Two men have no more natural right to rule one, than one +has to rule two. Any single man, or any body of men, many or few, +have a natural right to maintain justice for themselves, and for +any others who may need their assistance against the injustice of +any and all other men, without regard to their numbers; and +majorities have no right to do any more than this. The relative +numbers of the opposing parties have nothing to do with the +question of right. And no more tyrannical principle was ever +avowed, than that the will of the majority ought to have the +force of law, without regard to its justice; or, what is the same +thing, that the will of the majority ought always to be presumed +to be in accordance with justice. Such a doctrine is only another +form of the doctrine that might makes right. + +When two men meet one upon the highway, or in the wilderness, +have they a right to dispose of his life, liberty, or property at +their pleasure, simply because they are the more numerous party? +Or is he bound to submit to lose his life, liberty, or property, +if they demand it, merely because he is the less numerous party? +Or, because they are more numerous than he, is he bound to +presume that they are governed only by superior wisdom, and the +principles of justice, and by no selfish passion that can lead +them to do him a wrong? Yet this is the principle, which it is +claimed should govern men in all their civil relations to each +other. Mankind fall in company with each other on the highway or +in the wilderness of life, and it is claimed that the more +numerous party, simply by virtue of their superior numbers, have +the right arbitrarily to dispose of the life, liberty, and +property of the minority; and that the minority are bound, by +reason of their inferior numbers, to practise abject submission, +and consent to hold their natural rights, any, all, or none, as +the case may be, at the mere will and pleasure of the majority; +as if all a man's natural rights expired, or were suspended by +the operation of a paramount law, the moment he came into the +presence of superior numbers. + +If such be the true nature of the relations men hold to each +other in this world, it puts an end to all such things as crimes, +unless they be perpetrated upon those who are equal or superior, +in number, to the actors. All acts committed against persons +inferior in number to the aggressors, become but the exercise at +rightful authority. And consistency with their own principles +requires that all governments, founded on the will of the +majority, should recognize this plea as a sufficient +justification for all crimes whatsoever. + +If it be said that the majority should be allowed to rule, not +because they are stronger than the minority, but because their +superior numbers furnish a probability that they are in the +right; one answer is, that the lives, liberties, and properties +of men are too valuable to them, and the natural presumptions are +too strong in their favor, to justify the destruction of them by +their fellow-men on a mere balancing of probabilities, or on any +ground whatever short of certainty beyond a reasonable doubt. +This last is the moral rule universally recognized to be binding +upon single individuals. And in the forum of conscience the same +rule is equally binding upon governments, for governments are +mere associations of individuals. This is the rule on which the +trial by jury is based. And it is plainly the only rule that +ought to induce a man to submit his rights to the adjudication of +his fellow-men, or dissuade him from a forcible defence of them. + +Another answer is, that if two opposing parties could be supposed +to have no personal interests or passions involved, to warp their +judgments, or corrupt their motives, the fact that one of the +parties was more numerous than the other, (a fact that leaves the +comparative intellectual competency of the two parties entirely +out of consideration,) might, perhaps, furnish a slight, but at +best only a very slight, probability that such party was on the +side of justice. But when it is considered that the parties are +liable to differ in their intellectual capacities, and that one, +or the other, or both, are undoubtedly under the influence of +such passions as rivalry, hatred, avarice, and ambition. +passions that are nearly certain to pervert their judgments, and +very likely to corrupt their motives, all probabilities founded +upon a mere numerical majority, in one party, or the other, +vanish at once; and the decision of the majority becomes, to all +practical purposes, a mere decision of chance. And to dispose of +men's properties, liberties, and lives, by the mere process of +enumerating such parties, is not only as palpable gambling as was +ever practised, but it is also the most atrocious that was ever +practised, except in matters of government. And where +government is instituted on this principle, (as in the United States, for +example,) the nation is at once converted into one great gambling +establishment; where all the rights of men are the stakes; a few +bold bad men throw the dice (dice loaded with all the hopes, +fears, interests, and passions which rage in the breasts of +ambitious and desperate men,) and all the people, from the +interests they have depending, become enlisted, excited, +agitated, and generally corrupted, by the hazards of the game. + +The trial by jury disavows the majority principle altogether; and +proceeds upon the ground that every man should be presumed to +be entitled to life, liberty, and such property as he has in his +possession; and that the government should lay its hand upon none +of them, (except for the purpose of bringing them before a +tribunal for adjudication,) unless it be first ascertained., +beyond a reasonable doubt, in every individual case, that justice +requires it. + +To ascertain whether there be such reasonable doubt, it takes +twelve men by lot from the whole body of mature men. If any of +these twelve are proved to be under the influence of any special +interest or passion, that may either pervert their judgments, or +corrupt their motives, they are set aside as unsuitable for the +performance of a duty requiring such absolute impartiality and +integrity; and others substituted in their stead. When the utmost +practicable impartiality is attained on the part of the whole +twelve, they are sworn to the observance of justice; and their +unanimous concurrence is then held to be necessary to remove that +reasonable doubt, which, unremoved, would forbid the +government to lay its hand on its victim. + +Such is the caution which the trial by jury both practises and +inculcates, against the violation of justice, on the part of the +government, towards the humblest individual, in the smallest +matter affecting his civil rights, his property, liberty, or +life. And such is the contrast, which the trial by jury presents, +to that gambler's and robber's rule, that the majority have a +right, by virtue of their superior numbers, and without regard to +justice, to dispose at pleasure of the property and persons of +all bodies of men less numerous than themselves. + +The difference, in short, between the two systems, is this. The +trial by jury protects person and property, inviolate to their +possessors, from the hand of the law, unless justice, beyond a +reasonable doubt, require them to be taken. The majority +principle takes person and property from their possessors, at the +mere arbitrary will of a majority, who are liable and likely to +be influenced, in taking them, by motives of oppression, avarice, +and ambition. + +If the relative numbers of opposing parties afforded sufficient +evidence of the comparative justice of their claims the +government should carry the principle into its courts of justice; +and instead of referring controversies to impartial and +disinterested men, to judges and jurors, sworn to do justice, +and bound patiently to hear and weigh all the evidence and +arguments that can be offered on either side, it should simply +count the plaintiff's and defendants in each case, (where there +were more than one of either,) and then give the case to the +majority; after ample opportunity had been given to the +plaintiffs and defendants to reason with, flatter, cheat, +threaten, and bribe each other, by way of inducing them to change +sides. Such a. process would be just as rational in courts of +justice, as in halls of legislation; for it is of no importance +to a man, who has his rights taken from him, whether it be done +by a legislative enactment, or a judicial decision. + +In legislation, the people are all arranged as plaintiff's and +defendants in their own causes; (those who are in favor of a +particular law, standing as plaintiff's, and those who are +opposed to the same law, standing as defendants); and to allow +these causes to be decided by majorities, is plainly as absurd as +it would be to allow judicial decisions to be determined by the +relative number of plaintiffs and defendants. + +If this mode of decision were introduced into courts of justice, +we should see a parallel, and only a parallel, to that system of +legislation which we witness daily. We should see large bodies of +men conspiring to bring perfectly groundless suits, against other +bodies of men, for large sums of money, and to carry them by +sheer force of numbers; just as we now continually see large +bodies of men conspiring to carry, by mere force of numbers, some +scheme of legislation that will, directly or indirectly, take +money out of other men's pockets, and put it into their own. And +we should also see distinct bodies of men, parties in separate +suits, combining and agreeing all to appear and be counted as +plaintiffs or defendants in each other's suits, for the purpose +of ekeing out the necessary majority; just as we now see distinct +bodies of men, interested in separate schemes of ambition or +plunder, conspiring to carry through a batch of legislative +enactments, that shall accomplish their several purposes. + +This system of combination and conspiracy would go on, until at +length whole states and a whole nation would become divided into +two great litigating parties, each party composed of several +smaller bodies, having their separate suits, but all confederating +for the purpose of making up the necessary majority in each case. +The individuals composing each of these two great parties, would +at length become so accustomed to acting together, and so well +acquainted with each others' schemes, and so mutually +dependent upon each others' fidelity for success, that they would +become organized as permanent associations; bound together by +that kind of honor that prevails among thieves; and pledged by +all their interests, sympathies, and animosities, to mutual +fidelity, and to unceasing hostility to their opponents; and +exerting all their arts and all their resources of threats, +injuries, promises, and bribes, to drive or seduce from the other +party enough to enable their own to retain or acquire such a +majority as would be necessary to gain their own suits, and +defeat the suits of their opponents. All the wealth and talent of +the country would become enlisted in the service of these rival +associations; and both would at length become so compact, so well +organized, so powerful, and yet always so much in need of +recruits, that a private person would be nearly or quite unable +to obtain justice in the most paltry suit with his neighbor, +except on the condition of joining one of these great litigating +associations, who would agree to carry through his cause, on +condition of his assisting them to carry through all the others, +good and bad, which they had already undertaken. If he refused +this, they would threaten to make a similar offer to his +antagonist, and suffer their whole numbers to be counted against +him. + +Now this picture is no caricature, but a true and honest +likeness. And such a system of administering justice, would be no +more false, absurd, or atrocious, than that system of working by +majorities, which seeks to accomplish, by legislation, the same +ends which, in the case supposed, would be accomplished by +judicial decisions. + +Again, the doctrine that the minority ought to submit to the will +of the majority, proceeds, not upon the principle that government +is formed by voluntary association, and for an agreed purpose, on +the part of all who contribute to its support, but upon the +presumption that all government must be practically a state of +war and plunder between opposing parties; and that in order to +save blood, and prevent mutual extermination, the parties come to +an agreement that they will count their respective numbers +periodically, and the one party shall then be permitted quietly +to rule and plunder, (restrained only by their own discretion,) +and the other submit quietly to be ruled and plundered, until the +time of the next enumeration. + +Such an agreement may possibly be wiser than unceasing and +deadly conflict; it nevertheless partakes too much of the ludicrous +to deserve to be seriously considered as an expedient for the +maintenance of civil society. It would certainly seem that +mankind might agree upon a cessation of hostilities, upon more +rational and equitable terms than that of unconditional +submission on the part of the less numerous body. Unconditional +submission is usually the last act of one who confesses himself +subdued and enslaved. How any one ever came to imagine that +condition to be one of freedom, has never been explained. And as +for the system being adapted to the maintenance of justice among +men, it is a mystery that any human mind could ever have been +visited with an insanity wild enough to originate the idea. + +If it be said that other corporations, than governments, +surrender their affairs into the hands of the majority, the +answer is, that they allow majorities to determine only trifling +matters, that are in their nature mere questions of discretion, +and where there is no natural presumption of justice or right on +one side rather than the other. They never surrender to the +majority the power to dispose of; or, what is practically the +same thing, to determine, the rights of any individual member. +The rights of every member are determined by the written +compact, to which all the members have voluntarily agreed. + +For example. A banking corporation allows a majority to +determine such questions of discretion as whether the note of +A or of B shall be discounted; whether notes shall be discounted +on one, two, or six days in the week; how many hours in a day +their banking-house shall be kept open; how many clerks shall +be employed; what salaries they shall receive, and such like +matters, which are in their nature mere subjects of discretion, +and where there are no natural presumptions of justice or right +in favor of one course over the other. But no banking corporation +allows a majority, or any other number of its members less than +the whole, to divert the funds of the corporation to any other +purpose than the one to which every member of the corporation +has legally agreed that they may be devoted; nor to take the stock of +one member and give it to another; nor to distribute the +dividends among the stockholders otherwise than to each one the +proportion which he has agreed to accept, and all the others have +agreed that he shall receive. Nor does any banking corporation +allow a majority to impose taxes upon the members for the +payment of the corporate expenses, except in such proportions as +every member has consented that they may be imposed. All these +questions, involving the rights of the members as against each +other, are fixed by the articles of the association, that is, by +the agreement to which every member has personally assented. + +What is also specially to be noticed, and what constitutes a +vital difference between the banking corporation and the +political corporation, or government, is, that in case of +controversy among the members of the banking corporation, as to +the rights of any member, the question is determined, not by any +number, either majority, or minority, of the corporation itself, +but by persons out of the corporation; by twelve men acting as +jurors, or by other tribunals of justice, of which no member of +the corporation is allowed to be a part. But in the case of the +political corporation, controversies among the parties to it, as +to the rights of individual members, must of necessity be settled +by members of the corporation itself, because there are no +persons out of the corporation to whom the question can be +referred. + +Since, then, all questions as to the rights of the members of the +political corporation, must be determined by members of the +corporation itself, the trial by jury says that no man's rights, +neither his right to his life, his liberty, nor his property, +shall be determined by any such standard as the mere will and +pleasure of majorities; but only by the unanimous verdict of a +tribunal fairly representing the whole people, that is, a +tribunal of twelve men, taken at random from the whole body, and +ascertained to be as impartial as the nature of the case will +admit, and sworn to the observance of justice. Such is the +difference in the two kinds of corporations; and the custom of +managing by majorities the mere discretionary matters of business +corporations, (the majority having no power to determine the +rights of any member,) furnishes no analogy to the practice, +adopted by political corporations, of disposing of all the rightsof +their members by the arbitrary will of majorities. + +But further. The doctrine that the majority have a right to rule, +proceeds upon the principle that minorities have no rights in the +government; for certainly the minority cannot be said to have any +rights in a government, so long as the majority alone determine +what their rights shall be. They hold everything, or nothing, as +the case may be, at the mere will of the majority. + +It is indispensable to a "free government," (in the political +sense of that term,) that the minority, the weaker party, have a +veto upon the acts of the majority. Political liberty is liberty +for the weaker party in a nation. It is only the weaker party +that lose their liberties, when a government becomes oppressive. +The stronger party, in all governments, are free by virtue of +their superior strength. They never oppress themselves. + +Legislation is the work of this stronger party; and if, in +addition to the sole power of legislating, they have the sole +power of determining what legislation shall be enforced, they +have all power in their hands, and the weaker party are the +subjects of an absolute government. + +Unless the weaker party have a veto, either upon the making, or +the enforcement of laws, they have no power whatever in the +government, and can of course have no liberties except such as +the stronger party, in their arbitrary discretion, see fit to +permit them to enjoy. + +In England and the United States, the trial by jury is the only +institution that gives the weaker party any veto upon the power +of the stronger. Consequently it is the only institution, that +gives them any effective voice in the government, or any guaranty +against oppression. + +Suffrage, however free, is of no avail for this purpose; because +the suffrage of the minority is overborne by the suffrage of the +majority, and is thus rendered powerless for purposes of +legislation. The responsibility of officers can be made of no +avail, because they are responsible only to the majority. The +minority, therefore, are wholly without rights in the government, +wholly at the mercy of the majority, unless, through the trial by +jury, they have a veto upon such legislation as they think +unjust. + +Government is established for the protection of the weak against +the strong. This is the principal, if not the sole, motive for +the establishment of all legitimate government. Laws, that are +sufficient for the protection of the weaker party, are of course +sufficient for the protection of the stronger party; because the +strong can certainly need no more protection than the weak. It +is, therefore, right that the weaker party should be represented +in the tribunal which is finally to determine what legislation +may be enforced; and that no legislation shall be enforced +against their consent. They being presumed to be competent judges +of what kind of legislation makes for their safety, and what for +their injury, it must be presumed that any legislation, which +they object to enforcing, tends to their oppression, and not to +their security. + +There is still another reason why the weaker party, or the +minority, should have a veto upon all legislation which they +disapprove. That reason is, that that is the only means by which +the government can be kept within the limits of the contract, +compact, or constitution, by which the whole people agree to +establish government. If the majority were allowed to interpret +the compact for themselves, and enforce it according to their own +interpretation, they would, of course, make it authorize them to +do whatever they wish to do. + +The theory of free government is that it is formed by the +voluntary contract of the people individually with each other. +This is the theory, (although it is not, as it ought to be, the +fact,) in all the governments in the United States, as also in +the government of England. The theory assumes that each man, +who is a party to the government, and contributes to its support, +has individually and freely consented to it. Otherwise the +government would have no right to tax him for its support, +for taxation without consent is robbery. This theory, then, +necessarily supposes that this government, which is formed by +the free consent of all, has no powers except such as all the +parties to it have individually agreed that it shall have: and +especially that it has no power to pass any laws, except such +as all the parties have agreed that it may pass. + +This theory supposes that there may be certain laws that will be +beneficial to all, so beneficial that all consent to be taxed +for their maintenance. For the maintenance of these specific +laws, in which all are interested, all associate. And they +associate for the maintenance of those laws only, in which allare +interested. It would be absurd to suppose that all would +associate, and consent to be taxed, for purposes which were +beneficial only to a part; and especially for purposes that were +injurious to any. A government of the whole, therefore, can have +no powers except such as all the parties consent that it may +have. It can do nothing except what all have consented that it +may do. And if any portion of the people, no matter how large +their number, if it be less than the whole, desire a government +for any purposes other than those that are common to all, and +desired by all, they must form a separate association for those +purposes. They have no right, by perverting this government of +the whole, to the accomplishment of purposes desired only by a +part, to compel any one to contribute to purposes that are +either useless or injurious to himself. + +Such being the principles on which the government is formed, the +question arises, how shall this government, where formed, be kept +within the limits of the contract by which it was established? +How shall this government, instituted by the whole people, agreed +to by the whole people, supported by the contributions of the +whole people, be confined to the accomplishment of those +purposes alone, which the whole people desire? How shall it be +preserved from degeneration into a mere government for the benefit +of a part only of those who established, and who support it? How shall +it be prevented from even injuring a part of its own members, for +the aggrandizement of the rest? Its laws must be, (or at least +now are,) passed, and most of its other acts performed, by mere +agents, agents chosen by a part of the people, and not by the +whole. How can these agents be restrained from seeking their own +interests, and the interests of those who elected them, at the +expense of the rights of the remainder of the people, by the +passage and enforcement of laws that shall be partial, unequal, +and unjust in their operation? That is the great question. And +the trial by jury answers it. And how does the trial by jury +answer it? It answers it, as has already been shown throughout +this volume, by saying that these mere agents and attorneys, who +are chosen by a part only of the people, and are liable to be +influenced by partial and unequal purposes, shall not have +unlimited authority in the enactment and enforcement of laws; +that they shall not exercise all the functions of government. It +says that they shall never exercise that ultimate power of +compelling obedience to the laws by punishing for disobedience, +or of executing the laws against the person or property of any +man, without first getting the consent of the people, through a +tribunal that may fairly be presumed to represent the whole, or +substantially the whole, people. It says that if the power to +make laws, and the power also to enforce them, were committed to +these agents, they would have all power, would be absolute +masters of the people, and could deprive them of their rights at +pleasure. It says, therefore, that the people themselves will +hold a veto upon the enforcement of any and every law, which +these agents may enact, and that whenever the occasion arises for +them to give or withhold their consent, inasmuch as the whole +people cannot assemble, or devote the time and attention +necessary to the investigation of each case, twelve of their +number shall be taken by lot, or otherwise at random, from the +whole body; that they shall not be chosen by majorities, (the +same majorities that elected the agents who enacted the laws to +be put in issue,) nor by any interested or suspected party; that +they shall not be appointed by, or be in any way dependent upon, +those who enacted the law; that their opinions, whether for or +against the law that is in issue, shall not be inquired of +beforehand; and that if these twelve men give their consent to +the enforcement of the law, their consent shall stand for the +consent of the whole. + +This is the mode, which the trial by jury provides, for keeping +the government within the limits designed by the whole people, +who have associated for its establishment. And it is the only +mode, provided either by the English or American constitutions, +for the accomplishment of that object. + +But it will, perhaps, be said that if the minority can defeat the +will of the majority, then the minority rule the majority. But +this is not true in any unjust sense. The minority enact no laws +of their own. They simply refuse their assent to such laws of the +majority as they do not approve. The minority assume no authority +over the majority; they simply defend themselves. They do not +interfere with the right of the majority to seek their own +happiness in their own way, so long as they (the majority) do not +interfere with the minority. They claim simply not to be +oppressed, and not to be compelled to assist in doing anything +which they do not approve. They say to the majority, " We will +unite with you, if you desire it, for the accomplishment of all +those purposes, in which we have a common interest with you. +You can certainly expect us to do nothing more. If you do not choose +to associate with us on those terms, there must be two separate +associations. You must associate for the accomplishment of your +purposes; we for the accomplishment of ours." + +In this case, the minority assume no authority over the majority; +they simply refuse to surrender their own liberties into the +hands of the majority. They propose a union; but decline +submission. The majority are still at liberty to refuse the +connection, and to seek their own happiness in their own way, +except that they cannot be gratified in their desire to become +absolute masters of the minority. + +But, it may be asked, how can the minority be trusted to enforce +even such legislation as is equal and just? The answer is, that +they are as reliable for that purpose as are the majority; they +are as much presumed to have associated, and are as likely to +have associated, for that object, as are the majority; and they +have as much interest in such legislation as have the majority. +They have even more interest in it; for, being the weaker party, +they must rely on it for their security, having no other +security on which they can rely. Hence their consent to the +establishment of government, and to the taxation required for its +support, is presumed, (although it ought not to be presumed,) +without any express consent being given. This presumption of +their consent to be taxed for the maintenance of laws, would be +absurd, if they could not themselves be trusted to act in good +faith in enforcing those laws. And hence they cannot be presumed +to have consented to be taxed for the maintenance of any laws, +except such as they are themselves ready to aid in enforcing. It +is therefore unjust to tax them, unless they are eligible to +seats in a jury, with power to judge of the justice of the laws. +Taxing them for the support of the laws, on the assumption that +they are in favor of the laws, and at the same time refusing them +the right, as jurors, to judge of the justice of the laws, on the +assumption that they are opposed to the laws, are flat +contradictions. + +But, it will be asked, what motive have the majority, when they +have all power in their own hands, to submit their will to the +veto of the minority? + +One answer is, that they have the motive of justice. It would be +unjust to compel the minority to contribute, by taxation, to the +support of any laws which they did not approve. + +Another answer is, that if the stronger party wish to use their +power only for purposes of justice, they have no occasion to fear +the veto of the weaker party; for the latter have as strong +motives for the maintenance of just government, as have the +former. + +Another answer is, that if the stronger party use their power +unjustly, they will hold it by an uncertain tenure, especially in +a community where knowledge is diffused; for knowledge will +enable the weaker party to make itself in time the stronger +party. It also enables the weaker party, even while it remains +the weaker party, perpetually to annoy, alarm, and injure their +oppressors. Unjust power, or rather power that is grossly +unjust, and that is known to be so by the minority, can be +sustained only at the expense of standing armies, and all the +other machinery of force; for the oppressed party are always +ready to risk their lives for purposes of vengeance, and the +acquisition of their rights, whenever there is any tolerable +chance of success. Peace, safety, and quiet for all, can be +enjoyed only under laws that obtain the consent of all. Hence +tyrants frequently yield to the demands of justice from those +weaker than themselves, as a means of buying peace and safety. + +Still another answer is, that those who are in the majority on +one law, will be in the minority on another. All, therefore, need +the benefit of the veto, at some time or other, to protect +themselves from injustice. + +That the limits, within which legislation would, by this process, +be confined, would be exceedingly narrow, in comparison with +those it at present occupies, there can be no doubt. All +monopolies, all special privileges, all sumptuary laws, all +restraints upon any traffic, bargain, or contract, that was +naturally lawful, [1] all restraints upon men's natural rights, +the whole catalogue of mala prohibita, and all taxation to which +the taxed parties had not individually, severally, and freely +consented, would be at an end; because all such legislation +implies a violation of the rights of a greater or less minority. +This minority would disregard, trample upon, or resist, the +execution of such legislation, and then throw themselves upon a +jury of the whole people for justification and protection. In +this way all legislation would be nullified, except the +legislation of that general nature which impartially protected +the rights, and subserved the interests, of all. The only +legislation that could be sustained, would probably be such as +tended directly to the maintenance of justice and liberty; such, +for example, as should contribute to the enforcement of +contracts, the protection of property, and the prevention and +punishment of acts intrinsically criminal. In short, government +in practice would be brought to the necessity of a strict +adherence to natural law, and natural justice, instead of being, +as it now is, a great battle, in which avarice and ambition are +constantly fighting for and obtaining advantages over the natural +rights of mankind. + +[1] Such as restraints upon banking, upon the rates of interest, +upon traffic with foreigners, &e;., &c;. + +APPENDIX + +TAXATION + +It was a principle of the Common Law, as it is of the law of +nature, and of common sense, that no man can be taxed without +his personal consent. The Common Law knew nothing of that system, +which now prevails in England, of assuming a man's own consent +to be taxed, because some pretended representative, whom he never +authorized to act for him, has taken it upon himself to consent +that he may be taxed. That is one of the many frauds on the +Common Law, and the English constitution, which have been +introduced since Magna Carta. Having finally established itself +in England, it has been stupidly and servilely copied and +submitted to in the United States. + + +If the trial by jury were reestablished, the Common Law principle +of taxation would be reestablished with it; for it is not to be +supposed that juries would enforce a tax upon an individual which +he had never agreed to pay. Taxation without consent is as +plainly robbery, when enforcers against one man, as when +enforced against millions; and it is not to be imagined that juries +could be blind to so self-evident a principle. Taking a man's money +without his consent, is also as much robbery, when it is done by +millions of men, acting in concert, and calling themselves a +government, as when it is done by a single individual, acting on +his own responsibility, and calling himself a highwayman. Neither +the numbers engaged in the act, nor the different characters they +assume as a cover for the act, alter the nature of the act +itself. + +If the government can take a man's money without his consent, +there is no limit to the additional tyranny it may practise upon +him; for, with his money, it can hire soldiers to stand over him, +keep him in subjection, plunder him at discretion, and kill him +if he resists. And governments always will do this, as they +everywhere and always have done it, except where the Common +Law principle has been established. It is therefore a first +principle, a very sine qua non of political freedom, that a man +can be taxed only by his personal consent. And the establishment +of this principle, with trial by jury, insures freedom of course; +because:1. No man would pay his money unless he had first +contracted for such a government as he was willing to support; +and,2. Unless the government then kept itself within the terms of +its contract, juries would not enforce the payment of the tax. +Besides, the agreement to be taxed would probably be entered into +but for a year at a time. If, in that year, the government proved +itself either inefficient or tyrannical, to any serious degree, +the contract would not be renewed. The dissatisfied parties, if +sufficiently numerous for a new organization, would form +themselves into a separate association for mutual protection. If +not sufficiently numerous for that purpose, those who were +conscientious would forego all governmental protection, rather +than contribute to the support of a government which they deemed +unjust. + +All legitimate government is a mutual insurance company, +voluntarily agreed upon by the parties to it, for the protection +of their rights against wrong-doers. In its voluntary character +it is precisely similar to an association for mutual protection +against fire or shipwreck. Before a man will join an association +for these latter purposes, and pay the premium for being insured, +he will, if he be a man of sense, look at the articles of the +association; see what the company promises to do; what it is +likely to do; and what are the rates of insurance. If he be +satisfied on all these points, he will become a member, pay his +premium for a year, and then hold the company to its contract. If +the conduct of the company prove unsatisfactory, he will let his +policy expire at the end of the year for which he has paid; will +decline to pay any further premiums, and either seek insurance +elsewhere, or take his own risk without any insurance. And as men +act in the insurance of their ships and dwellings, they would act +in the insurance of their properties, liberties and lives, in the +political association, or government. + +The political insurance company, or government, have no more +right, in nature or reason, to assume a man's consent to be +protected by them, and to be taxed for that protection, when he +has given no actual consent, than a fire or marine insurance +company have to assume a man's consent to be protected by them, +and to pay the premium, when his actual consent has never been +given. To take a man's property without his consent is robbery; +and to assume his consent, where no actual consent is given, +makes the taking none the less robbery. If it did, the highwayman +has the same right to assume a man's consent to part with his +purse, that any other man, or body of men, can have. And his +assumption would afford as much moral justification for his +robbery as does a like assumption, on the part of the government, +for taking a man's property without his consent. The government's +pretence of protecting him, as an equivalent for the taxation, +affords no justification. It is for himself to decide whether he +desires such protection as the government offers him. If he do +not desire it, or do not bargain for it, the government has no +more right than any other insurance company to impose it upon +him, or make him pay for it. Trial by the country, and no +taxation without consent, were the two pillars of English +liberty, (when England had any liberty,) and the first principles +of the Common Law. They mutually sustain each other; and +neither can stand without the other. Without both, no people have any +guaranty for their freedom; with both, no people can be otherwise +than free. [1] + +[1] Trial by the country, and no taxation without consent, +mutually sustain each other, and can be sustained only by each +other, for these reasons: 1. Juries would refuse to enforce a tax +against a man who had never agreed to pay it. They would also +protect men in forcibly resisting the collection of taxes to +which they had never consented. Otherwise the jurors would +authorize the government to tax themselves without their consent, +a thing which no jury would be likely to do. In these two ways, +then, trial by the country would sustain the principle of no +taxation without consent. 2. On the other hand, the principle of +no taxation without consent would sustain the trial by the +country, because men in general would not consent to be taxed for +the support of a government under which trial by the country was +not secured. Thus these two principles mutually sustain each +other. + +But, if either of these principles were broken down, the other +would fall with it, and for these reasons:If trial by the country +were broken down, the principle of no taxation without consent +would fall with it, because the government would then be able +totax the people without their consent, inasmuch as the legal +tribunals would be mere tools of the government, and would +enforce such taxation, and punish men for resisting such +taxation, as the government ordered. + +On the other hand, if the principle of no taxation without +consent were broken down, trial by the country would fall with +it, because the government, if it could tax people without their +consent, would, of course, take enough of their money to enable +it to employ all the force necessary for sustaining its own +tribunals, (in the place of juries,) and carrying their decrees +into execution. + +By what force, fraud, and conspiracy, on the part of kings, +nobles, and "a few wealthy freeholders," these pillars have been +prostrated in England, it is desired to show more fully in the +next volume, if it should be necessary. + + + + + +End of The Project Gutenberg Etext of An Essay on the Trial By Jury + diff --git a/1201.zip b/1201.zip Binary files differnew file mode 100644 index 0000000..052ad26 --- /dev/null +++ b/1201.zip diff --git a/LICENSE.txt b/LICENSE.txt new file mode 100644 index 0000000..6312041 --- /dev/null +++ b/LICENSE.txt @@ -0,0 +1,11 @@ +This eBook, including all associated images, markup, improvements, +metadata, and any other content or labor, has been confirmed to be +in the PUBLIC DOMAIN IN THE UNITED STATES. + +Procedures for determining public domain status are described in +the "Copyright How-To" at https://www.gutenberg.org. + +No investigation has been made concerning possible copyrights in +jurisdictions other than the United States. 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