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AN ESSAY ON THE
TRIAL BY JURY
.
*
A Da Capo Press Reprint Series
)
CIVIL LIBERTIES IN AMERICAN HISTORY
WULKA
white
GENERAL EDITOR: LEONARD W. LETY
Claremont Graduate School
B
AN ESSAY ON THE
TRIAL BY JURY
1
By Lysander Spooner
DA CAPO PRESS • NEW YORK • 1971
A Da Capo Press Reprint Edition
Vi
Y
This Da Capo Press edition of An Essay on the Trial by Jury
is an unabridged republication of the first edition published
in Boston in 1852. It is reprinted by permission from a copy
of the original edition owned by the Library of the Univer-
sity of Michigan.
I
Library of Congress Catalog Card Number 70-166097
ISBN 0-306-70320-3
Published by Da Capo Press, Inc.
A Subsidiary of Plenum Publishing Corporation
27 West 17th Street, New York, N.Y. 10011
All Rights Reserved
Manufactured in the United States of America
1
AN ESSAY ON THE
TRIAL BY JURY
AN ESSAY
ON THE
TRIAL BY JURY.
BY LYSANDER SPOONER.
BOSTON:
JOHN P. JEWETT AND COMPANY.
CLEVELAND, OHIO :
JEWETT, PROCTOR & WORTHINGTON.
1852.
19
TU
1 I
Entered according to Act of Congress, in the year 1852, by
LYSANDER SPOONER,
In the Clerk's Office of the District Court of Massachusetts.
1
RYT TY
UK
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, liis claim is a legal one. lle forbids
any one to reprint the book without his consent.
Stereotyped by
HOBART & ROBINS;
New England 'Type and Stereotype Foundery,
BOSTON.
Ν ΟΤΕ.
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, iegislation is still
constitutionally subordinate to the discretion and consciences of Common Law
juries, in all cases, both civil and criminal, in which juries sit. The same
volume will probably also discuss several political and legal questions, which
will naturally assume importance if the trial by jury should be reëstablished.
CONTENTS.
TTTTY
CHAPTER 1.
IT
PAGE
THIE RIGHT OF JURIES TO JUDGE OF THE JUS-
TICE OF LAWS, . . . .
5
SECTION 1, . . . . . . . . . . .
SECTION 2,. . . . . . . . . 11
T
WT
CHAPTER II. THE TRIAL BY JURY, AS DEFINED BY MAGNA
CARTA, . . . . . . . . . . 20
Section 1. The History of Magna Carta, . . . 20
Section 2. The Language of Magna Carta, . . 25
O
CHAPTER III. ADDITIONAL PROOFS OF THE RIGHTS AND DU-
TIES OF JURORS, . . . . . . . 51
SECTION 1. Weukness of the Regal Authority, . . 51
Section 2. The Ancient Common Law Juries were mere
Courts of Conscience, . . . . . 03
Section 3. The Oaths of Jurors, . . . . . 85
SECTION 4. The Right of Jurors to fix the Sentence, 91
SECTION 5. The Oaths of Judges, . . . . . 98
SECTION 6. The Coronation Oath, . . . . . 102
1011 III
III
11
CHAPTER IV. THE RIGHTS AND DUTIES OF JURIES IN CIVIL
SUITS, · · . . . . . . . .
110
IT
TITO
CHAPTER V. OBJECTIONS ANSWERED,
.
.
.
.
.
. 123
n
DTI
Till
TTT
YT
T
TAT
UTY
CHAPTER VI. JURIES OF THE PRESENT DAY ILLEGAL 142
CHAPTER VII. ILLEGAL JUDGES, . . . . . . . . 157
CHAPTER VIII. THE FREE ADMINISTRATION OF JUSTICE, .172
CHAPTER IX. THE CRIMINAL INTENT,. . . . . . .178
CHAPTER X. MORAL CONSIDERATIONS FOR JURORS, . . 189
m
LI
UUUU
111
T
DY
CHAPTER XI. AUTHORITY OF MAGNA CARTA,
.
.
.
. 192
CHAPTER XII. LIMITATIONS IMPOSED UPON THE MAJORITY
BY THE TRIAL BY JURY, , . .
206
APPENDIX -- Taxation, .
.
.
.
.
.
.
.
.
.
.222
TRIAL BY JURY.
CHAPTER 1.
THE RIGHT OF JURIES TO JUDGE OF THE JUSTICE OF LAWS.
P
SECTION 1.
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 pri-
mary and paramount duty, to judge of the justice of the law,
and to hold all laus 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 inadmis-
sible, 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 neces-
sary for them to convict on a partial exhibition of the evidence
rightfully pertaining to the case, but it can even require them
t
1
TRIAL BY JURY,
MO
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 gorernment'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
anthoritatively 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 imper-
fect, it, nevertheless, corresponds to their highest notions of
freedom.
To secure this right of the people to judge of their own
liberties against the government, the jurors are taken, (or must
be, to make them lawful jurors,) from the body of the people, by
lot, or by some process that precludes any previous knowledge,
choice, or selection of them, on the part of the government.
CY
JURIES JUDGES OF THE JUSTICE OF LAWS.
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
goverument, 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 gov-
ernment, (if the government have any opponents,) will be repre-
sented 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 sub-
stantially the whole people wish to have enforced. The gov-
ernment, therefore, consistently with the trial by jury, can
exercise no powers over the people, (or, what is the same
thing, over the accused person, who represents the rights of
the people,) except such as substantially the whole people
of the country consent that it inay exercise. In such a trial,
therefore, " the country," or the people, judge of and deternine
their own liberties against the government, instead of the
TRIAL BY JURY.
I
government's judging of and determining its own powers over
the people.
But all this “trial by the country” would be no trial at all
" by the country,” but only a trial by the government, if the
government could either declare who may, and who may not,
be jurors, or could dictate to the jury anything whatever,
either of law or evidence, that is of the essence of the trial.
If the government may decide who may, and who may not,
be jurors, it will of course select only its partisans, and those
friendly to its measures. It may not only prescribe who may,
and who may not, be eligible to be drawn as jurors; but it may
also question each person drawn as a juror, as to his senti-
ments 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.*
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,"
* 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 marshæl. This judge
cause I the following question to be propounded to all the jurors separately ; and those
who answered unfarorably 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 get
forth in the indictment, and constituting the offence, are proved against hiin, 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.
Curti:, one of the Justices of the Supreme Court of the United States, in empanelling
a ju' y for the trial of the aforesaid Morris on the charge before mentioned ; and those
who lid 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
jururs whether they had any conscientious scruples against finding verdicts of guilty
JURIES JUDGES OF THE JUSTICE OF LAWS.
9
but a trial by the government; because the jury then try thie
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 peo-
ple'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 power3
over the people, instead of the people's determining what ar:
their own liberties against the government. In short, if the
jury have no right to judge of the justice of a law of the gov-
ernment, 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 ex-
pounded to them by the court. Unless they judge on this
point, they do nothing to protect their liberties against the
oppressions that are capable of being practised under cover of
a corrupt exposition of the laws. If the judiciary can authori-
tatively 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.
**********
in such cases ; that is, whether they had any conscientious scruples against sustaining
the law preseribing death as the punishment of the crime to be tried; and to excludo
from the panel all who answered in the affirmative.
The only principle upon which these questions are asked, is this -- that no inan shall
be allowed to serve as juror, unless he be ready to enforce any enactment of the gov-
ernment, however cruel or tyrannical it may be.
What is such a jury good for, as a protection against the tyranny of the govern-
ment? 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 governnent for their readiness to enforce its own tyrannical ineasures.
If that be the true principle of the trial by jury, the trial is utterly worthless as 8
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, is a safe-
guard 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.
TRIAL BY JURY.
1
pot
The jury must also judge whether there really be any snch
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 peo-
ple's determining their own liberties against the government;
and it will be an entire delusion to talk, as for centuries we
have done, of the trial by jury, as a “palladium of liberty,"
or as any protection to the people against the oppression and
tyranny of the government.
The question, then, between trial by jury, as thus described,
and trial by the government, is simply a question between
liberty and despotism. The authority to judge what are the
powers of the government, and what the liberties of the people,
must necessarily be vested in one or the other of the parties
themselves -- the government, or the people; because there is
no third party to whom it can be entrusted. If the authority
be vested in the government, the government is absolute, and
the people have no liberties except such as the government
sees fit to indulge them with. If, on the other hand, that
authority be vested in the people, then the people have all
liberties, (as against the government,) except such as substan-
0
.
JURIES JUDGES OF THE JUSTICE OF LAWS.
11
tially 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.
TÖITY
11.
SECTION 11.
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 sep-
arate 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, * jury, and judges; and have made it neces-
sary 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 rep-
resentatives, 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 upou a statute, which
the other tribunals have sanctioned, than they are when the
1
+
va
* The executive has a qualified veto upon the passage of laws, in most of our govern-
ments, 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 himn to execute any law that he deems unconstitutional.
TRIAL BY JURY.
MY
LUCU
UTIK
OL
same veto is exercised by the representatives, the senate, the
executive, or the judges.
bout 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 goverument, 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 repre-
senting the whole people, before they carry them into exe-
cution, by punishing any individual for transgressing them.
If the government were not thus required to submit their
enactments to the judgment of “the comtry,” before exe-
cuting them upon individuals --- if, in other words, the people
had reserved to themselves no veto upon the acts of the gov-
ernment, 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 hy this power to punish, whether by prescription, by
inheritance, by usurpation, or by delegation from the people ?
If it have now but got it, the government is absolute.
It is plain, therefore, that if the people have invested the
government with power to make laws that absolutely bind
the people, and to punish the people for transgressing those
laws, the people have surrendered their liberties unreservedly
into the hands of the government.
It is of no avail to say, in answer to this view of the case,
that in surrendering their liberties into the hands of the gov-
ernment, the people took an oath from the government, that it
would exercise its power within certain constitutional limits; for
when did oaths ever restrain a government that was otherwise
unrestrained? Or when did a government fail to determine
that all its acts were within the constitutional and authorized
Yo
C
JURIES JUDGES OF THE JUSTICE OF LAWS.
13
MU
igo
A
Y
1
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 mjust and oppressive laws, the
government inay 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 discus-
sions 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 unre-
liable. 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 instru-
ments to compose the second. The right of suffrage, therefore,
and even a change of legislators, guarantees no change of legis-
lation - certainly no change for the better. Even if a change
for the better actually comes, it comes too late, because it comes
only after more or less injustice has been irreparably done.
But, at best, the right of suffrage can be exercised only pe-
riodically; and between the periods the legislators are wholly
U
11
TRLAL BY JURY.
7
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 tyranuy what it may.
Moreover, the judicial and executive departments of the gov-
ernment are equally irresponsible to the people, and are only
responsible, (by impeachment, and dependence for their sala-
ries), 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 author-
itative 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 anthority; forbid the use of the suf-
frage; prevent the election of any successors; disarm, plunder,
imprison, and even kill all who refuse submission. If, there-
fore, 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 unconstitu-
tional, 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 per-
mitted to deterniine the qnestion of the constitutionality of its
own acts. Those who are capable of tyranny, are capable of
perjury to sustain it.
JURIES JUDGES OF INTY
15
THE JUSTICE OF LAWS.
The conclusion, therefore, is, that any government, that can,
for a day, enforce its own laws, without appealing to the peo-
ple, (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 recoguition of this prin-
ciple, and therefore forbids the government to execute any of
its laws, by pavishing violators, in any case whatever, with-
out 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 what-
ever of the government, if he be willing to submit to the
decision of a jury, the questions, whether the law be intrin-
sically just and obligatory ? and whether his conduct, in disse-
garding 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.*
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
JU
* 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
esk s jury to enforce them.
16
TRIAL BY JURY.
I
legal defence whatsoever against oppression. The right of
revolution, which tyrants, in mockery, accord to inankind, 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 estab-
lished only when and because the government no longer exists
to call it in question. The right, therefore, can be exercised
with impunity, only when it is exercised victoriously. All
unsuccessful attempts at revolution, however justifiable in
themselves, are punished as treason, if the government be
permitted to judge of the treason. The government itself
never admits the injustice of its laws, as a legal defence for
those who have attempted a revolution, and failed. The right
of revolution, therefore, is a right of no practical value, except
for those who are stronger than the government. So lopg,
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 bome; for the government never
makes compensation for its own wrongs.
Since, then, this forcible resistance to the injnstice 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 govern-
ment, there can be no legal liberty. And here it is all-impor-
tant to notice, that, practically speaking, there can be no legal
right to resist the oppressions of the government, mless 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
UU
JURIES JUDGES OF THE JUSTICE OF LAWS.
obeyed, and what may be resisted and held for nonght. 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.*
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; sec-
ondly, 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
• 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 aggrievod, and if
justice was denied him, he sent & 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
Ageen 240-2.
18
TRIAL BY JURY.
UT
TP
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 resist-
ance 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, Connect-
icut, Pennsylvania, Ohio, Indiana, Michigan, Kentucky, Ten-
nessee, 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 superero-
gation 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.
JURIES JUDGES OF THE JUSTICE OF LAWS.
19
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 gov-
ernments 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 disre-
gard them - as is proved by the example of all our American
governments, in which the constitutions have all become obso-
lete, 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 gov-
ernment shall never touch the property, person, or natural or
civil rights of an individual, against his consent, (except for
the purpose of bringing them before a jury for trial,) unless in
pursuance and execution of a judgment, or decree, rendered
by a jury in each individual case, upon such evidence, and
such law, as are satisfactory to their own understandings and
consciences, irrespective of all legislation of the government.
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 1.
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."* 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.”+
• 1 Hume, Appendix 2.
+ Crabbe's History of the Finglish Law, 236.
HISTORY OF MAGNA CARTA.
21
Parliament, so far as there was a parliament, was a mere
council of the king. * 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 provisious whatever for
auy parliaments, except when the king should want means to
carry on war, or to meet some other extraordinary necessity.t
He had no need of parliaments to raise taxes for the ordinary
purposes of government; for his revenues from the rents of the
crowy 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, less the king chose to invite others. I There was
no House of Commons at that time, and the people had no
right to be heard, unless as petitioners. S
.
* Coke says, “ The king of England is armed with divers councils, one whereof is
called commune concilium, (the common council,) and that is the court of parliament,
and so it is legally called in writs and judicial proceedings commune concilium regni
Anglie, (the coininon council of the kingdom of England.) And another is called
magnum concilium, (great council;) this is sometimes applied to the upper house of
parliament, and sometimes, out of parliament time, to the peers of the realm, lords of
parliament, who are called magnum concilium regis, (the great council of the king;)
* * Thirdly, (as every man knoweth,) the king hath a privy council for matters of
state. * * The fourth council of the king are his judges for law matters.”
1 Coke's Institutes, 110 a.
+ 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 parlia-
ment shall be summoned for that purpose.
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 Realın, * * 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.
$ The parliaments of that tiine 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
22
TRIAL BY JURY.
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 assem-
bled; but often this was omitted. Their consent or advice
was evidently a matter of no legal importance to the enact-
ment 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 un-
necessary. 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.” * And other author-
ities abundantly corroborate this assertion.t
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 com-
plying with any terms the barons saw fit to dictate to him.
It was under these circumstances, that the Great Charter of
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.”
* Hume, Appendix 2.
+ This point will be more fully established hereafter.
HISTORY OF MAGNA CARTA.
23
English Liberties was granted. The barons of England, sus-
tained by the common people, having their king in their
power, compelled him, as the price of his throne, to pledge
himself that he would punish no freeman for a violation of
any of his laws, unless with the consent of the peers — that
is, the equals — of the accused.
The question here arises, Whether the barons and people
intended that those peers (the jury) should be mere puppets
in the hands of the king, exercising no opinion of their own
as to the intrinsic merits of the accusations they should try, or
the justice of the laws they should be called on to enforce ?
Whether those haughty and victorious barons, when they had
their tyrant king at their feet, gave back to him his throne,
with full power to enact any tyrannical laws he might please,
reserving only to a jury (“ the country') the contemptible
and servile privilege of ascertaining, (under the dictation of
the king, or his judges, as to the laws of evidence), the
simple fact whether those laws had been transgressed? Was
this the only restraint, which, when they had all power in
their hands, they placed upon the tyranny of a king, whose
oppressions they had risen in arms to resist ? Was it to obtain
such a charter as that, that the whole nation had united, as it
were, like one man, against their king? Was it on such a
charter that they intended to rely, for all future time, for the
security of their liberties? No. They were engaged in no
such senseless work as that. On the contrary, when they
required him to renounce forever the power to punish any
freeman, unless by the consent of his peers, they intended
those peers should judge of, and try, the whole case on its
merits, independently of all arbitrary legislation, or judicial
authority, on the part of the king. In this way they took the
liberties of each individual — and thus the liberties of the
whole people — entirely out of the hands of the king, and out
of the power of his laws, and placed them in the keeping of
the people themselves. And this it was that made the trial
by jury the palladium of their liberties.
The trial by jury, be it observed, was the only real barrier
interposed by them against absolute despotism. Could this
trial, then, have been such an entire farce as it necessarily
1
24
TRIAL BY JURY.
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, not withstanding 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 vills and commands” was to have no weight with them
contrary to their own judgments of what was intrinsically
right. *
The barous and people having obtained by the charter all
the liberties they had demanded of the king, it was further
2
!
Tri
IIIII
ALL
* 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 ex-
actions demanı his kingdom? * * anii with a solemn oath protested, that he would never
grant such liberties as would make himself a slave.” * * But afterwards, “ seeing him-
self 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
LANGUAGE OF MAGNA CARTA.
25
provided by the charter itself that twenty-five barons should
be appointed by the barons, out of their number, to keep special
vigilance in the kingdom to see that the charter was observed,
with authority to make war lipon the king in case of its vio-
lation. The king also, by the charter, so far absolved all
the people of the kingdom from their allegiance to bim, as to
authorize and require them to swear to obey the twenty-five
barons, in case they should make war upon the king for in-
fringement 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 11.
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.
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,
wless juries should freely consent to their enforcement.
26
TRIAL BY JURY.
The chapter guaranteeing the trial by jury is in these
words:
6 Nullus liber homo capiatur, vel imprisonetur, aut disseise-
tur, aut utlagetur, aut exuletur, aut aliquo modo destinatur;
nec super eum ibimus, nec super eum mittemus, nisi per legale
judicium parium suorum, vel per legem terræ.”' *
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 disseise-
tur de libero tenemento, vel libertatibus, vel liberis consuetu-
divibus suis, ant utlagetur, aut exuletur, aut aliquo modo de-
struatur, nec super eum ibimus, nec super eum mittemus, nisi
per legale judicium parium suorum, vel per legem terræ.”
The most common translation of these words, at the present
day, is as follows:
"No freeman shall be arrested, or imprisoned, or deprived
of his freehold, or his liberties, or free customs, or outlawed,
or exiled, or in any manner destroyed, nor will we (the king)
pass upon him, nor condemn him, unless by the judgment of
his peers, or the law of the land.”
“Nec super eum ibimus, nec super eum mittemus."
There has been much confusion and doubt as to the true
meaning of the words, “nec super cum ibimus, nec super eum
mittemus." The more common rendering has been, "nor will
we pass upon him, nor condemn him.” But some have trans-
lated them to mean, “nor will we pass upon him, nor commii
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 com-
missioner or judge whatsoever.”'t
But all these translations are clearly erroneous. In the first
* The laws were, at that time, all written in Latin.
“No map 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.
LANGUAGE OF MAGNA CARTA.
27
O
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 supur eum ibimus." There is
nothing whatever, in these latter words, that indicates judiciul
action or opinion at all. The words, in their common signifi-
cation, describe physical action alone. And the true transla-
tion of them, as will hereafter be seen, is, “nor will we proceed
against him," executively.
In the second place, the rendering, “nor will ue condemn
him," bears little or no analogy to any conimon, or even
uncommon, signification of the words “nec super eum mitte-
mus." 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 here-
after see, such is the true translation.
But although these words describe physical action, on the
part of the king, as distinguished from judicial, they never-
theless 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 prisous
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 grati-
itous of all. What is there in the words, “nec super eum
mittemus," that can be made to mean “ nor shall he be con-
demned before any other commissioner or judge whatsoever ? "
Clearly there is nothing. The whole rendering is a sheer
fabrication. And the whole object of it is to give color for the
exercise of a judicial power, by the king, or his judges, which
is nowhere given them.
Neither the words, “nec super eum ibimus, nec s:1;#!eum
mittemus," nor any other words in the whole chapter, author-
ize, provide for, describe, or suggest, any judicial action what-
ever, on the part either of the king, or of his judges, or of
anybody, ercept the peers, or jury. There is nothing about
0
lo
L
12
14
28
TRIAL BY JURY.
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 erecutive action. *
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 disseisie-
inus nec super eos per vim vel per arma ibimus nisi per legem
regni nostri vel per judicium parium suorum in curia vostra
donec consideratio facta fuerit, &c., &c.
That is, “Know that we have granted to our barons who
are opposed to us, that we will neither arrest them nor their
men, nor disseize them, nor will we proceed against them by
force or by arms, unless by the law of our kingdom, or by the
judgment of their peers in our court, until consideration shall
be had,” &c., &c.
A copy of this charter is given in a note in Blackstone's
Introduction to the Charters.t
Mr. Christian speaks of this charter as settling the true
meaning of the corresponding clause of Magna Caria, on the
principle that laws and charters on the same subject are to be
construed with reference to each other. See 3 Christian's
Blackstone, 41, note.
.
* Perhaps the assertion in the text should be made with this qualification — that the
words " per legem terræ," (according to the law of the land,) and the words “per legalo
judicium parium suorum,” (according to the legal judgment of his peers,) imply thad
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.
+ See Blackstone's Law Tracts, page 294, Oxford Edition.
LANGUAGE OF MAGNA CARTA.
29
CO
1
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 day's
before the date of the Charter, aud from which the Charter
was framed.* Here the words used are these :
“Ne corpus liberi hominis capiatur nec imprisonetur nec
disseisetur nec utlagetur nec exuletur nec aliquo modo des-
truatur nec rex eat vel mittat super eum vi nisi per judiciun
pariun suorum vel per legem terræ.”
That is, “The body of a freeman shall not be arrested, nor
imprisoned, nor disseized, nor outlawed, nor exiled, nor in any
manner destroyed, nor shall the king proceed or send (ammy
one) agrinst 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.''+
It is evident that the difference between the true and false
translations of the words, nec super eum ibimus, nec super eum
mittemus, is of the highest legal importance, inasmuch as the
true translation, nor will we (the king) proceed against him,
nor send (any one) against him by force or arms, represents
the king only in an executive character, carrying the judgment
of the peers and “the law of the land" into erecution ; 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
* These Articles of the Charter are given in Blackstone's collection of Charters, and
are also printed with the Statutes of the Realm. Also in Wilkins' Laws of the Anglo-
Saxons, p. 356.
+ 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 author-
ities. 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 bith-
erto 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.
30
TRIAL BY JURY.
part of the king, to which the king had no right, but which,
according to the true translation, belongs wholly to the jury.
“Per legale judicium parium suorum."
The foregoing interpretation is corroborated, (if it were not
already too plain to be susceptible of corroboration,) by the
true interpretation of the phrase "per legale judicium parium
suorum.”
In giving this interpretation, I leave out, for the present, the
word legale, which will be defined afterwards.
The true meaning of the phrase, per judicium parium
suorum, is, according to the sentence of his peers. The word
judicium, judgment, has a technical meaning in the law, sig-
nifying the decree rendered in the decision of a cause. In
civil suits this decision is called a judgment; in chancery
proceedings it is called a decree ; in criminal actions it is called
a sentence, or judgment, indifferently. Thus, in a criminal
suit, “a motion in arrest of judgment,” means a motion in
arrest of sentence. *
In cases of sentence, therefore, in criminal suits, the words
sentence and judgment are synonymous terms. They are, to
this day, commonly used in law books as synonymous terms.
And the phrase per judicium parium suorum, therefore, im-
plies that the jury are to fix the sentence.
The word per means according to. Otherwise there is no
sense in the phrase per judicium parium suorum. There
*“Judgment, judicium. * * The sentence of the law, pronounced by the court,
upon the matter contained in the record."-3 Blackstone, 395. Jacob's Law Dictionary.
Tomlin's do.
“ Judgment is the decision or sentence of the law, given by a court of justice or other
competent tribunal, as the result of the proceedings instituted therein, for the redress
of an injury.” — Bouvier's Law Dict.
“ Judgment, judicium. * H Sentence of a judge against a criminal. * * De-
termination, decision in general.” — Bailey's Dict.
" Judgment. * * In a legal sense, a sentence or decision pronounced by authority
of a king, or other power, either by their own mouth, or by that of their judges and
officers, whom they appoint to administer justice in their stead." - Chambers' Dict.
“ Judgment. * * In law, the sentence or doom pronounced in any case, civil or
criminal, by the judge or court by which it is tried." - Webster's Dict.
Sometimes the punishment itself is called judicium, judgment ; or, rather, it was at
the time of Magna Carta. For example, in a statute passed fifty-one years after
LANGUAGE OF MAGNA CARTA.
31
WILLC
would be no sense in saying that a king might imprison, dis-
seize, 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 suo-
rum,” of course means precisely what it does in the next
phrase, “per legem terræ ;" where it obviously means
according to, and not by, as it is usually translated. There
would be no sense in saying that the king might proceed
against a man by force or arms, by the law of the land; but
there is sense in saying that he may proceed against him, by
force or arms, according to the law of the land; because the
king would then be acting only as an executive officer, carry-
ing the law of the land into execution. Indeed, the true
ineaning 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 au-
thority of law, except what the law itself authorizes or directs
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 pun-
ishment, or judgment, of the pillory. Also that a brewer, for “ selling ale contrary to
the assise," "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 Ruff-
head's Statutes, 187, 188. 1 Statutes of the Realm, 203.
Blackstone, in his chapter “Of Judgment, and its Consequences,” says,
“Judgment (unless any matter be offered in arrest thereof) follows upon conviction;
being the pronouncing of that punishment which is expressly ordained by law.” —
Blackstone's Analysis of the Laws of England, Book 4, Ch. 29, Sec. 1. Blackstone's
Law Tracts, 126.
Coke says, “Judicium , . the judgment is the guide and direction of the execution.”
3 Inst. 210.
32
TRIAL BY JURY.
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 sen-
tence 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,* 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, t 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 ju-
dicium parium suorum means according to the sentence of his
peers, thus implying that the jury, and not the government,
are to fix the sentence.
If any additional proof were wanted that juries were to fix
the sentence, it would be found in the following provisions of
Magna Carta, viz. :
“A freeman shall not be amerced for a small crime, (delicto,)
but according to the degree of the crime; and for a great crime
in proportion to the magnitude of it, saving to him his contene-
1
U
* 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.
+ Beneficium was the legal name of an estate held by a feudal tenure. See Spel-
man's Glossary.
LANGUAGE OF MAGNA CARTA.
ment ; * and after the same manner a merchant, saving to
hiin his merchandise. And a villein shall be amerced after
the same manner, saving to him his waynage,t if he fall under
our mercy; and none of the aforesaid amercements shall be im-
posed, (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.” I
Pecuniary punishments were the most common punish-
ments 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 infict 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. S
"Legale."
The word "legale," in the phrase "per legale judicium
* Contenement of a freeman was the means of living in the condition of a freeman.
+ Waynage was a villein's plough-tackle and carts.
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 e uxoris et libe-
rorum surrum, (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 imprison-
ment, 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.
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 sen-
tence. He might pardon, or he might acquit on grounds of law, notwithstanding the
Bentence ; 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 soquit
or pardon, notwithstanding their sentence or judgment ; but he cannot punish, except
according to their judgment.
34
TRIAL BY JURY.
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, there-
fore, 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 sen-
tence 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 pro-
nounce; for in that case the sentence would not be the sentence
of the peers, but only the sentence of the law, (that is, of the
king); and the peers would be only a mouthpiece of the law,
(that is, of the king,) in uttering it.
“Per legem terræ."
One other phrase remains to be explained, viz., “per legem
terre," " 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 terre, as in the statute of Magna Carta, chap. 29, where
certainly the common law is principally intended by those
words, aut per legem terræ; as appears by the exposition
thereof in several subsequent statutes; and particularly in the
statute of 28 Edward III., chap. 3, which is but an exposition
and explanation of that statute. Sometimes it is called ler
Angliæ, as in the statute of Merton, cap. 9, “ Nolumus leges
Angliæ mutari," &c., (We will that the laws of England be
not changed). Sometimes it is called lex et consuetudo regni
(the law and custom of the kingdom); as in all commissions
of oyer and terminer; and in the statutes of 18 Edward I.,
cap. -, and de quo warranto, and divers others. But most
cords, arıt everal subseil. chap:
LANGUAGE OF MAGNA CARTA.
35
commonly it is called the Common Law, or the Common Law
of England; as in the statute Articuli super Chartas, cap. 15,
in the statute 25 Edward III., cap. 5, (4,) and infinite more
records and statutes.'' - 1 Hale's History of the Common
Law, 128.
This common law, or "law of the land,” the king was
sworn to maintain. This fact is recognized by a statute made
at Westminster, in 1346, by Edward III., which commences
in this manner:
“Edward, by the Grace of God, &c., &c., to the Sheriff of
Stafford, Greeting: Because that by divers complaints made
to us, we have perceived that the law of the land, which we by
oath are bound to maintain,” &c. — St. 20 Edward III.
The foregoing authorities are cited to show to the unprofes-
sional reader, what is well known to the profession, that legem
terra, the law of the land, mentioned in Magna Carta, was the
common, ancient, fundamental law of the land, which the
kings were bound by oath to observe; and that it did not include
any statutes or laws enacted by the king himself, the legislative
power of the nation.
If the term legem terræ had included laws enacted by the
king biniself, the whole chapter of Magna Carta, now under
discussion, would have amounted to nothing as a protection to
liberty; because it would have imposed no restraint whatever
upon the power of the king. The king could make laws at
any time, and such ones as he pleased. He could, therefore,
have done anything he pleased, by the law of the land, as well
as in any other way, if his own laws had been “the law of the
land.” If his own laws had been “the law of the land,”
within the meaning of that term as used in Magna Carta, this
chapter of Magna Carta would have been sheer nonsense, in-
asmuch as the whole purport of it would have been simply
that “no man shall be arrested, imprisoned, or deprived of his
freehold, or his liberties, or free customs, or outlawed, or
exiled, or in any manner destroyed (by the king); nor shall
the king proceed against him, nor send any one against him
with force and arms, unless by the judgment of his peers, or
unless the king shall please to do so."
This chapter of Magna Carta would, therefore, have imposed
not the slightest restraint upon the power of the king, or
36
TRIAL BY JURY.
YYY
-
Y
0
alu
afforded the slightest protection to the liberties of the people,
if the laws of the king had been embraced in the term legem
terre. But if legem terre was the common law, which the
king was sworn to maintain, then a real restriction was laid
upon his power, and a real guaranty given to the people for
their liberties.
Such, then, being the meaning of legem terræ, the fact is
established that Magna Carta took an accused person entirely
out of the hands of the legislative power, that is, of the king;
and placed him in the power and under the protection of his
peers, and the common law alone; that, in short, Magna Carta
suffered no man to be punished for violating any enactment of
the legislative power, unless the peers or equals of the accused
freely consented to it, or the common law authorized it; that
the legislative power, of itself, was wholly incompetent to
require the conviction or punishment of a man for any offence
whatever.
.
Whether Magna Carta allowed of any other trial than by
jury.
The question here arises, whether “legem terræ" did not
allow of some other mode of trial than that by jury.
The answer is, that, at the time of Magna Carta, it is not
probable, (for the reasons given in the note,) that legem terræ
authorized, in criminal cases, any other trial than the trial by
jury; but, if it did, it certainly authorized none but the trial
hy battle, the trial by ordeal, and the trial by compurgators.
These were the only modes of trial, except by jury, that had
been known in England, in criminal cases, for some centuries
previous to Magna Carta. All of them had become nearly
extinct at the time of Magna Carta, and it is not probable that
they were included in "legem terræ," as that term is used in
that instrument. But if they were included in it, they have
now been long obsolete, and were such as neither this nor any
future age will ever return to.* For all practical purposes of
AL
* The trial by battle was one in which the accused challenged his accuser to single
oombat, 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
LANGUAGE OF MAGNA CARTA.
37
the present day, therefore, it may be asserted that Magna
Carta allows no trial whatever but trial by jury.
Whether Magna Carta allowed sentence to be fixed otherwise
than by the jury.
Still another question arises on the words legem terræ, viz.,
whether, in cases where the question of guilt was determined
by the jury, the amount of punishment may not have been
fixed by legem terræ, the Common Law, instead of its being
fixed by the jury.
I think we have no evidence whatever that, at the time of
Magna Carta, or indeed at any other time, lex terræ, the com-
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 &
matter of chivalry, than authorized as a matter of law. At any rate, it is not likely
that it was included in the “legem terre" of Magna Carta, although such duels have
occasionally occurred since that time, and have, by some, been supposed to be lawful.
I apprehend that nothing can be properly said to be a part of lex terræ, unless it can
be shown either to have been of Saxon origin, or to have been recognized by Magna
Carta.
The trial by ordeal was of various kinds. In one ordeal the accused was required to
take hot iron in his hand; in another to walk blindfold among red-hot ploughshares ;
in another to thrust his arm into boiling water ; in another to be thrown, with his
hands and feet bound, into cold water ; in another to swallow the morsel of execration;
in the confidence that his guilt or innocence would be miraculously made known. This
mode of trial was nearly extinct at the time of Magna Carta, and it is not likely that it
was included in “ legem terre," 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 Ed-
ward Coke, or rather by an order of the king in council.” – 3 Blackstone 345, note.
I apprehend that this trial was never forced upon accused persons, but was only
allowed to them, as an appeal to God, from the judgment of a jury.*
The trial by compurgators was one in which, if the accused could bring twelve of his
neighbors, who would make oath that they believed him innocent, he was held to be so.
It is probable that this trial was really the trial by jury, or was allowed as an appeal
from a jury. It is wholly improbable that two different modes of trial, so nearly
resembling each other as this and the trial by jury do, should prevail at the same time,
and among a rude people, whose judicial proceedings would naturally be of the simplast
kind. But if this trial really were any other than the trial by jury, it must have been
nearly or quite extinct at the time of Magna Carta; and there is no probability that it
was included in “legem terræ.”
* 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.
38
TRIAL BY JURY.
be
KO
0
1
'
'
'
mon law, fixed the punishment in cases where the question or
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 ler terre, which the king was sworn to
maintain, required any one specific punishment, or any precise
amount of punishment, for any ove specific offence. If such
a thing be claimed, it must be shown, for it cannot be pre-
suned. In fact, the contrary must be presumed, because, in
the nature of things, the amount of punishment proper to be
inflicted in any particular case, is a matter requiring the exer-
cise of discretion at the time, in order to adapt it to the moral
quality of the oflence, which is different in each case, varying
with the mental and moral coustitutions 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 amerce-
ments shall be imposed (or assessed) but by the oaths of
honest men of the neighborhood;" and that "earls and barons
shall not be anierced but by their peers, and according to the
quality of the offence."
All this implies that the moral quality of the offenee was to
be judged of at the trial, and that the punishment was to be
fised by the discretion of the peers, or jury, and not by any
such varying rule as a common ła w 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 pun-
ishment of any offence whatever.
2. The words "per judicium parium suorum,” according
to the sentence of his peers, imply that the jury fixed the sen-
tence 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.
1
LU
LY
>
LI
LANGUAGE OF MAGNA CARTA.
39
3. The express provisions of Magna Carta, before adverted
to, that no amercements, or fines, should be imposed upon
freemen, merchants, or villeins, “but by the oath of honest
men of the neighborhood," and “according to the degree of
the crime," and that "earls and barons should not be amerced
but by their peers, and according to the quality of the
offence," proves that, at least, there was no common law
fixing the amount of fines, or, if there were, that it was to be
no longer in force. And if there was no common law fixing
the amount of fines, or if it was to be no longer in force, it is
reasonable to infer, (in the absence of all evidence to the con-
trary,) 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. *
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
Mvh
* 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 inuy
be fixed by the government. (2 Inst. 27, 8 Cake's Reports 38.) But there seeins to
have been no ground whatever for supposing that any such distinction existul 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 punisbments as the government chooses to inflict.
The first statute of Westminster, passed sixty years after Magna Carti, treats the
fine and amercement as synonymous, as follows:
“ Forasmuch as the comin'in fine and amercement of the whole county in Eyre of the
justices for false judginents, or for other trespass, is unjustly assessed by sheriffs and
baretors in the sbires, * * it is provided, and the king wills, that froin henceforth such
fums 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 amorcement
seem to be used indifferently, in prescribing the punishments for offences. As late as
1401, (240 years after Magna Carta,) the statute 1 Eilward 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 amcrcia-
ments " five times. (1555.)
St. 5 Elizabeth, Ch. 13, Sec. 10, uses the terms “fines, forfeitures, and amerciaments.”
That ainereements were fines, or peeuniary punishments, inflicted for offences, is
proved by the following statutes, (all supposed to have been passed within one hundred
40
TRIAL BY JURY.
by fine. When a criminal was unable to pay his fine, his rel-
atives 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 iuflict 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. * And this latter was, doubtless, the usual punish-
ment 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
amereed,” or “pay a great fine to the king,” or a “grievous
ransom," -- with the alternative in some cases (perhaps un-
derstood in all) of imprisonment, banishment, or outlawry, in
case of non-payment.
1} 111
..
TU
and fifteen years after Magna Carta,) which speak of amercements as a species of
“judgment,” or punishment, and as being inflicted for the same offences as other
" judgments.”
Thus one statute declares that a baker, for default in the weight of his bread,
“ought to be amerced, or suffer the judgment of the pillory ;” and that a brewer, for
“ selling ale contrary to the assize,” « ought to be amerced, or suffer the judgment of
the tumbrol.” -- 51 Henry III., St. 6. (1266.)
Among the “ Statues 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 wa butcher that selleth swine's flesh measled, or flesh dead
of the murrain, or that buyeth flesh of Jews, and selleth the same unto Christians,
after he shall be conviot 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,
« Ile that is convict thereof, the first time shall be amorced, 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 im-
prisoned 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 Ruff head's Statutes, 187, 188, 1 Statutes of the
Realm, 203.
* 1 Hume, Appendix, 1.
+ 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
LANGUAGE OF MAGNA CARTA.
41
1
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 ex-
posed to private vengeance, in case of non-payment,) continued
until the time of Magna Carta; and that in providing expressly
that fines should be fixed by the juries, Magna Carta provided
for nearly or quite all the punishments that were expected to
be inflicted; that if there were to be any others, they were to
be fixed by the juries; and consequently that nothing was left
to be fixed by "legem terræ.”
But whether the common law fixed the punishment of any
offences, or not, is a matter of little or no practical importance
at this day; because we have no idea of going back to any
common law punishments of six hundred years ago, if, indeed,
there were any such at that time. It is enough for us to
know — and this is what it is material for us to know —
that the jury fixed the punishments, in all cases, unless they
were fixed by the common law; that Magna Carta allowed
IT
11
by a pecuniary ransom, as among their ancestors, the Germans, by a stated number of
cattle. But in the ninth year of Henry the First, (1109,) this power of redemption was
taken away, and all persons guilty of larceny above the value of twelve pence were
directed to be hanged, which law continues in force to this day.” - 4 Blackstone, 238.
I give this statement of Blackstone, because the latter clause may seem to militate
with the idea, which the former clause corroborates, viz., that at the time of Magna Carta,
fines were the usual punishments of offences. But I think there is no probability that
a law so unreasonable in itself, (unreasonable even after making all allowance for the
difference in the value of money,) and so contrary to immemorial custom, could or did
obtain any general or speedy acquiescence among a people who cared little for the au-
thority of kings.
Maddox, writing of the period from William the Conqueror to John, says :
“The amercements in criminal and common pleas, which were wont to be imposed
during this first period and afterwards, were of so many several sorts, that it is not easy
to place them under distinct heads. Let them, for method's sake, be reduced to the
heads following: Amercements for or by reason of murders and manslaughters, for
misdemeanors, for disseisins, for recreancy, for breach of assize, for defaults, for non-
appearance, for false judgment, and for not making suit, or hue and cry. To them
may be added miscellaneous amercements, for trespasses of divers kinds."-1 Mada
dox' History of the Exchequer, 542.
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CA
Am
U11
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 stat-
utes prescribing particular punishments for particular offences,
or giving the king's judges any authority to fix punishments,
were void.
If the power to fix punishments had been left in the hands
of the king, it would have given him a power of oppression,
which was liable to be greatly abused; which there was no
occasion to leave with him; and which would have been
incongruous with the whole object of this chapter of Magna
Carta; which object was to take all discretionary or arbitrary
power over individuals entirely out of the hands of the king,
and his laws, and entrust it only to the common law, and the
peers, or jury -- that is, the people.
What lex terræ did authorize.
But here the question arises, What then did “legem terre"
authorize the king, (that is, the government,) to do in the case
of an accused person, if it neither authorized any other trial
than that by jury, nor any other punishments than those fixed
by juries?
The answer is, that, owing to the darkness of history on
the point, it is probably wholly impossible, at this day, to
state, with any certainty or precision, anything whatever that
the legem terræ of Magna Carta did authorize the king, (that
is, the government,) to do, (if, indeed, it authorized him to do
anything,) in the case of criminals, other than to have them
tried and sentenced by their peers, for common law crimes ;
and to carry that sentence into execution.
The trial by jury was a part of legem terræ, and we have
the means of knowing what the trial by jury was. The fact
that the jury were to fix the sentence, implies that they were
to try the accused; otherwise they could not know what sen-
tence, or whether any sentence, ought to be inflicted upon him.
Hence it follows that the jury were to judge of everything in-
volved 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
LANGUAGE OF MAGNA CARTA.
43
1
the trial. If anything whatever could be dictated to them,
either of law or evidence, the sentence would not be theirs,
but would be dictated to them by the power that dictated to
them the law or evidence. The trial and sentence, then, were
wholly in the hands of the jury.
We also have sufficient evidence of the nature of the oath
administered to jurors in criminal cases. It was simply, that
they would neither convict the innocent, nor acquit the guilty.
This was the oath in the Saxon times, and probably continued
to be until Magna Carta.
We also know that, in case of conviction, the sentence of the
jury was not necessarily final; that the accused had the right
of appeal to the king and his judges, and to demand either a
new trial, or an acquittal, if the trial or conviction had been
against law.
So much, therefore, of the legem terræ of Magna Carta, we
know with reasonable certainty.
We also know that Magna Carta provides that "No bailiff
(balivus) shall hereafter put any man to his law, (put him
on trial,) on his single testimony, without credible witnesses
brought to support it.” Coke thinks that under this word
balivus, in this act, is comprehended every justice, minister of
the king, steward of the king, steward and bailiff.” (2 Inst. 44.)
And in support of this idea he quotes from a very ancient law
book, called the Mirror of Justices, written in the time of
Edward I., within a century after Magna Carta. But whether
this were really a common law principle, or whether the pro-
vision grew out of that jealousy of the government which, at
the time of Magna Carta, had reached its height, cannot per-
haps now be determined.
We also know that, by Magna Carta, amercements, or fines,
could not be imposed to the ruin of the criminal; that, in the
case of a freeman, his contenement, or means of subsisting in
the condition of a freeman, must be saved to him; that, in the
case of a merchant, his merchandise must be spared; and
in the case of a villein, his waynage, or plough-tackle and
carts. This also is likely to have been a principle of the
common law, inasmuch as, in that rude age, when the means
of getting employment as laborers were not what they are
44
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P
i
1
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 terræ
of Magna Carta did authorize, in regard to crimes. There
is hardly anything extant that can give us any real light on
the subject.
It would seem, however, that there were, even at that day,
some common law principles governing arrests; and some
common law forms and rules as to holding a man for trial,
(by bail or imprisonment;) putting him on trial, such as by
indictment or complaint; summoning and empanelling ju-
rors, &c., &c. Whatever these common law principles were,
Magna Carta requires them to be observed; for Magna Carta
provides for the whole proceedings, commencing with the
arrest, ("no freeman shall be arrested,”' &c.,) and ending with
the execution of the sentence. And it provides that nothing
shall be done, by the government, from beginning to end, unless
according to the sentence of the peers, or "legem terræ,” the
common law. The trial by peers was a part of legem terræ,
and we have seen that the peers must necessarily have gov-
erned the whole proceedings at the trial. But all the pro-
ceedings for arresting the man, and bringing him to trial,
must have been had before the case could come under the
cognizance of the peers, and they must, therefore, have been
governed by other rules than the discretion of the peers. We
may conjecture, although we cannot perhaps know with much
certainty, that the lex terræ, or common law, governing these
other proceedings, was somewhat similar to the common law
principles, on the same points, at the present day. Such seem
to be the opinions of Coke, who says that the phrase nisi per
legem terræ means unless by due process of law.
Thus, he says:
“Nisi per legem terræ. But by the law of the land. For
!
U
LANGUAGE OF MAGNA CARTA.
45
the true sense and exposition of these words, see the statute
of 37 Edw. III., cap. 8, where the words, by the law of the
land, are rendered without due process of law ; for there it is
said, though it be contained in the Great Charter, that no
man be taken, imprisoned, or put out of his freehold, without
process of the law; that is, by indictment or presentment of
good and lawful men, where such deeds be done in due manner,
or by writ original of the common law.
“Without being brought in to answer but by due process
of the common law.
“No man be put to answer without presentment before jus-
tices, or thing of record, or by due process, or by writ original,
according to the old law of the land." -- 2 Inst. 50.
The foregoing interpretations of the words nisi per legem
terræ are corroborated by the following statutes, enacted in
the next century after Magna Carta.
“That no man, from henceforth, shall be attached by any
accusation, nor forejudged of life or limb, nor his land, tene-
ments, 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 fran-
chises 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 estab-
lished, that froin 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 free-
hold, unless he be duly brought into answer, and forejudged
of the same by the course of the law; and if anything be done
against the same, it shall be redressed and holden for none."
- St. 25 Edward III., Ch. 4. (1350.)
“That no man, of what estate or condition that he be, shall
be put out of land or tenement, nor taken, nor imprisoned, nor
disinherited, nor put to death, without being brought in answer
by due process of law.” — St. 28 Edward III., Ch. 3. (1354.)
“That no man be put to answer without presentment before
justices, or matter of record, or by due process and writ origi-
nal, according to the old law of the land. And if anything
from henceforth be done to the contrary, it shall be void in
law, and holden for error.” — St. 42 Edward III., Ch. 3.
(1368.)
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11
1
The foregoing interpretation of the words nisi per legem
terræ - that is, by due process of law – including indictment,
&c., has been adopted as the true one by modern writers and
courts; as, for example, by Kent, (2 Comm. 13,) Story, (3
Comm. 661,) and the Supreme Court of New York, (19 Wen-
dell, 676; 4 Hill, 146.)
The fifth amendment to the constitution of the United States
seems to have been framed on the same idea, inasmuch as it
provides that “no person shall be deprived of life, liberty, or
property, without due process of law."'*
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 terre will reasonably, and per-
haps must necessarily, bear, it is proper to suggest, that it has
been supposed by some that the word vel, instead of being ren-
dered by or, as it usually is, ought to be rendered by and, inas-
much as the word vel is often used for et, and the whole phrase
nisi per judicium parium suorum, 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 har-
monious meaning than it otherwise does.
Blackstone suggests that this may be the true reading.
(Charters, p. 41.) Also Mr. Hallam, who says:
“Nisi per legale judicium parium suorum, vel per legem terræ.
Several explanations have been offered of the alternative
clause; which some have referred to judgment by default, or
demurrer; others to the process of attachment for contempt.
Certainly there are many legal procedures besides trial by
jury, through which a party's goods or person may be taken.
But one may doubt whether these were in contemplation of
the framers of Magna Carta. In an entry of the Charter of
1217 by a contemporary hand, preserved in the Town-clerk's
office in London, called Liber Custumarum et Regum antiqua-
rum, a various reading, et per legem terræ, occurs. Black-
stone's Charters, p. 42 (41.) And the word vel is so frequently
used for et, that I am not wholly free from a suspicion that it
1
* Coke, in his exposition of the words legem terre, gives quite in detail the principles
of the common law governing arrests ; and takes it for granted that the words “ nisi per
Legem terrce” are applicable to arrests, as well as to the indictment, &c. -- 2 Inst., 51, 52,
LANGUAGE OF MAGNA CARTA.
I
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 interpretatious; but I do not
offer it with much contidence." --2 Hallan's Midille Ages,
Ch. 8, Part 2, p. 4419, note. *
* I cite the above extract from Mr. Hallam solely for the sake of his authority for
rendering the word vd by and; and not by any means for the purpose of indorsing the
opinion be suggests, that legem terrie authorized “ judgments by default or demurrer,"
without the intervention of a jury. lle seems to imagine that ler terra', the common law,
ut the time of Magna Carta, included everything, even to the practice of courts, that
is, at this day, calied by the name of Common Law; whereas much of what is now
called Coinmon Law has grown up, by usurpation, since the time of Magna Carta, in
palpable violation of the authority of that charter. Ile 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 seenis to think that, in cases of “ judgment by default or demurrer," there is no
need of a jury, and thence to infer that legem territ may not have required a jury in
those cases. But this opinion is founded on the erroneous idea that juries are required
only for determining contested facts, and not for judging of the law. In case of default,
the plaintiff must present a prima facie case before he is entitled to a judgment; and
Magna Carta, (supposing it to require a jury trial in civil cases, as Mr. L'allum assumes
that it does,) as much requires that this prima facie case, buth 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 aurice 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 inatters of fact. llis 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 con-
clusion 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 in-
competent, and would have no moral right, to give judgment. They nust, 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
s 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 ques-
tion, both of law and fact, that is involved in the rendering of that judginent. 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 con-
tompt, 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
TRIAL BY JURY.
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. Speak-
ing of the trial by jury, as established by Magna Carta, he
calls it,
"A privilege which is couched in almost the same words
may order him into custody without & warrant when the offence is committed in the
judge's presence. But there is no reason why a judge should have the power of pun-
ishing 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 him-
self what is a contempt, the whole administration of justice (or injustice, if he choose
to make it so) is in his hands. And all the rights of jurors, witnesses, counsel, and
parties, are held subject to his pleasure, and can be exercised only agreeably to his will.
He can of course control the entire proceedings in, and consequently the decision of,
every cause, by restraining and punishing every one, whether party, counsel, witness,
or juror, who presumes to offer anything contrary to his pleasure.
This arbitrary power, which has been usurped and exercised by judges to punish for
contempt, has undoubtedly had much to do in subduing counsel into those servile,
obsequious, and cowardly habits, which so universally prevail among them, and which
have not only cost so many clients their rights, but have also cost the people so many
of their liberties.
If any summary punishment for contempt be ever necessary, (as it probably is not,)
beyond exclusion for the time being from the court-room, (which should be done, not as
a punishment, but for self-protection, and the preservation of order,) the judgment for
it should be given by the jury, (where the trial is before a jury,) and not by the court,
for the jury, and not the court, are really the judges. For the same reason, exclusion
from the court-room should be ordered only by the jury, in cases when the trial is
before a jury, because they, being the real judges and triers of the cause, are entitled,
if anybody, to the control of the court-room. In appeal courts, where no juries sit, it
may be necessary - not as a punishment, but for self-protection, and the maintenance
of order - that the court should exercise the power of excluding a person, for the time
being, from the court-room; but there is no reason why they should proceed to sentence
him as a criminal, without his being tried by a jury.
If the people wish to have their rights respected and protected in courts of justice,
it is manifestly of the last importance that they jealously guard the liberty of parties,
counsel, witnesses, and jurors, against all arbitrary power on the part of the court.
Certainly Mr. Hallam may very well say that “one may doubt whether these (the
several cases he has mentioned) were in contemplation of the framers of Magna
Carta”- that is, as exceptions to the rule requiring that all judgments, that are to be
enforced "against a party's goods or person," be rendered by a jury.
Again, Mr. Hallam says, if the word vel be rendered by and, “ the meaning will be,
that no person shall be disseized, &c., except upon a lawful cause of action.” This is
true ; but it does not follow that any cause of action, founded on statute only, is there.
fore a “lawful cause of action," within the meaning of legem terræ, or the Common
Law. Within the meaning of the legem terræ of Magna Carta, nothing but a common
law cause of sotion is & "lawful" one.
LANGUAGE OF MAGNA CARTA.
49
1
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 impor-
tant. In the one case, there would be, at first view, some color
of ground for saying that a man might be punished in either
of two ways, viz., according to the sentence of his peers, or
according to the law of the land. In the other case, it requires
both the sentence of his peers and the law of the land (com-
mon 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 necessa-
rily be the only guide to, and restraint upon, the king. If this
guide and restraint were taken away, the king would be
invested with an arbitrary and most dangerous power in
making arrests, and confining in prison, under pretence of an
intention to bring to trial.
Having thus examined the language of this chapter of Magna
Carta, so far as it relates to criminal cases, its legal import
may be stated as follows, viz. :
No freeman shall be arrested, or imprisoned, or deprived of
his freehold, or his liberties, or free customs, or be outlawed,
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TRIAL BY JURY.
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.)
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 adminis-
tered to jurors, &c., &c. This evidence can be exhibited here
but partially. To give it all would require too much space
and labor.
SECTION 1.
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 Eagland gen-
erally, 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 institutæ sed firmate approbatione
communitatis." (The laws had force and vigor only when
they were not only enacted, but confirmed by the approval
of the community.)
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TRIAL BY JURY.
RI
LOL
The Mirror of Justices itself also says, (ch. 1, sec. 3,) in
speaking " Of the first Constitutions of the Ancient Kings :"
“Many ordinances were made by many kings, until the
time of ihe king that now is (Edward I.); tbe which ordi-
nances were abused, or not used by many, nor very current,
because they were not put in writing, and certainly pub-
lished.” - Mirror of Justices, p. 6.
Hallam says:
“ The Franks, Lombards, and Saxons seemn alike to have
been jealous of judicial authority; and averse to surrendering
what concerned every inan'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 legis-
lators and judges,) and not of a separate department of gov-
erument, called the judiciary, like what has existed in more
modern times.*
Ilume says:
“The government of the Germans, and that of all the
northern nations, who established themselves on the ruins of
Rome, was always extremely free, and those fierce people,
accustomed to independence and inured to arms, were more
guided by persuasion than authority, in the submission which
they paid to their princes. The military despotism, which
had taken place in the Roman empire, and which, previously
to the irruption of those conquerors, had sunk the genius of
men, and destroyed every noble principle of science and virtue,
was unable to resist the vigorous efforts of a free people, and
Europe, as from a new epoch, rekindled her ancient spirit, and
shook off the base servitude to arbitrary will and authority
under which she had so long labored. The free constitutions
then established, however impaired by the encroachments
of succeeding princes, still preserve an air of independence
and legal administration, which distinguished the European
nations; and if that part of the globe maintain sentiments
JU
YT
III
AL
* 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.
WEAKNESS OF THE REGAL AUTHORITY.
53
of liberty, honor, equity, and valor, superior to the rest of
mankind, it owes these advantages chiefly to the seeds im-
planted by those generous barbarians.
“ The Saxons, who subdned Britain, as they enjoyed great
diberty in their own country, obstinately retained that invaluable
possession in their nero settlement; and they imported into this
island the same principles of independence, which they had
inheriled 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 author-
ily; and as the Saxons exterminated, rather than subdued the
ancient inhabitants, they were, indeed, transplanted into a
new territory, but preserved analtered all their civil and mili-
tary institutions. The language was pure Saxon; even the
names of places, which often remain while the tongue entirely
changes, were almost all affixed by the conquerors; the man-
ners and customs were wholly German; and the saine picture
of a fierce and bold liberty, which is drawn by the masterly
pen of Tacitus, will suit those founders of the English govern-
ment. The ting, so far from being invested with arbitrary
power, was only considered as the first among the citicens; his
authority depended more on his personal qualities than on his
station ; he icas 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 sen-
sible mark of his subordination to the community." -- 1 Hume,
Appendix, 1.
Stuart says:
" The Saxons brought along with them into Britain their
own customs, language, and civil institutions. Free in Ger-
many, 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
mau ? Would temporary leaders, limited in their powers,
and unprorided 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 na-
tions 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 independ-
54
TRIAL BY JURY.
ence; 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 wwfold 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 Ger-
many 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 Eng-
land, p. 59-61.
“Kings they (the Germans) respected as the first magis-
trates 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 in-
tcrest, he felt every moment his dependence, and gave proofs
of his submission.
“He attended the general assembly of his nation, and was
allowed the privilege to harangue it first; but the arts of per-
suasion, though known and respected by a rude people, were
unequally opposed to the prejudices and passions of men.” —
Ditto, p. 135-6.
• The authority of a Saxon monarch was not more consider-
able. The Saxons submitted not to the arbitrary rule of princes.
They administered an oath to their sorereigns, which bound
them to acknowledge the laws, and to defend the rights of the
church and people, and if they forgot this obligation, they
forfeited their office. In both countries, a price was affixed
on kings, a fine expiated their murder, as well as that of the
meanest citizen; and the smallest violation of ancient lisage,
Y
NO
A
in
WEAKNESS OF THE REGAL AUTHORITY.
55
or the least step towards tyranny, was always dangerous, and
often fatal to them.” — Ditto, p. 139–40.
"They were not allowed to impose taxes on the king-
dom.” — 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 preroga
ative; and they employed it to acquire an ascendant in the
state. To art and insinuation they turned, as their only re-
source, and flattered a people whom they could not awe; but
address, and the abilities to persuade, were a weak compensa-
tion for the absence of real power.
“They declared war, it is said, and made peace. In both
cases, however, they acted as the instruments of the state, and
put in execution the resolutions which its councils had decreed.
If, indeed, an enemy had invaded the kingdom, and its glory
and its safety were concerned, the great lords took the field at
the call of their sovereign. But had a sovereign declared war
against a neighboring state, without requiring their advice, or
if he meant to revenge by arms an insult offered to him by
a subject, a haughty and independent nobility refused their
assistance. These they considered as the quarrels of the
king, and not of the nation; and in all such emergencies he
could only be assisted by his retainers and dependents." —
Ditto, p. 147-8.
6. Nor must we imagine that the Saxon, any more than the
German monarchs, succeeded each other in a lineal descent,*
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 ground-
less. The will of a prince whom they had long respected,
and the favor they naturally transferred to his descendant,
made them often advance him to the royal dignity; but the
crown of his ancestor he considered as the gift of the people, and
neither expected nor claimed it as a right." - Ditto, p. 151–3.
In Germany " It was the business of the great to command
in war, and in peace they distributed justice. * * *
* « The 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."
56
TRIAL BY JURY.
"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 impalient 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 re-
sulted 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. 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 extend-
ed 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 crim-
inals, 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 disre-
garded. * * *
“ They had officers, as well as the king, who collected their
reventies, and added to their greatness; and the inhabitants
of their lands they distinguished by the name of subjects.
“But to attend the general assembly of their nation was the
chief prerogative of the German and Saxon princes; and as
they consulted the interest of their country, and deliberated
concerning matters of state, so in the king's court, of which
also they were members, they assisted to pronounce judgment
in the complaints and appeals which were lodged in it." ---
Ditto, p. 158 to 165.
Henry says:
“Nothing can be more evident than this important truth;
that our Anglo-Saxon kings were not absolute monarchs; but
* This office was afterwards committed to sheriffs. But even while the court was
held by the lord, “the Lord was not judge, bout the Pares (peers) only." - Gilbert on the
Court of Exchequer, 61-2.
WEAKNESS OF THE REGAL AUTHORITY.
57
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 con-
tinent; 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 sover-
eigus, who had been their fellow-soldiers, had certainly no
power to compel them to such a resignation.” -3 Henry's
History of Great Britain, 358.
Mackintosh says : “ The Saxon chiefs, who were called
kings, originally acquired power by the same natural causes
which have gradually, and everywhere, raised a few men
above their fellows. They were, doubtless, more experienced,
more skilful, more brave, or more beautiful, than those who
followed them. * * A king was powerful in war by the
lustre of his arms, and the obvious necessity of obedience.
His influence in peace fluctuated with his personal character.
In the progress of usage his power became more fixed and
more limited. * * It would be very unreasonable to sup-
pose 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 Eng-
land, 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 char-
acter 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 con-
sists 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
58
TRIAL BY JURY.
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 coun-
cil were too small to admit of the supposition that they had
any legislative authority whatever, to impose laws upon the
people against their will.
Lingard says :
“It was necessary that the king should obtain the assent of
these (the members of the Witena-gemotes) to all legislative
enactments; because, without their acquiescence and support, it
was impossible to carry them into execution. To many char-
ters (laws) we have the signatures of the Witan. They sel-
dom exceed thirty in number; they never amount to sixty." —
I Lingard, 456.
WEAKNESS OF THE REGAL AUTHORITY.
59
It is ridiculous to suppose that the assent of such an assem-
bly 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 legis-
lative 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-Sax-
on liberty.
The fact that the people had no representation in this assem-
bly, 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.*
.
?
* 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 inférence that a
second sanction was necessary before they could have the effect of law in that particular
county." — Dunham'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 re-
NI
60
TRIAL BY JURY.
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,* viz., "that the
County and Hundred Courts,” (to which should have been
added the other courts in which juries sat, the courts-baron
and court-leet,)“ in those times were the real and only Parlia-
ments 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.f
Finally, on this point. Conclusive proof that the legisla-
tion 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 im-
memorial customs. The code of Alfred would not fill twelve
sorted 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. Mackintosh
says :
“ The preambles of the laws (of the Witan) speak of the infinite number of liege-
men who attended, as only applauding the measures of the assembly. But this
applause was neither go 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.
Cyc., 75.
* Page 31.
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 eriminal
suits in their own county courts." - Ditto, 399.
WEAKNESS OF THE REGAL AUTHORITY.
61
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 con-
venience, 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 Black-
stone, “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.*
wwwwwwwwwwwwwwwwwwwww
*" Alfred may, in one sense, be called the founder of these laws, (the Saxon,) for
until his time they were an unwritten code, but he expressly says, that I, Alfred, col-
lected the good laws of our forefathers into one code, and also I wrote them doum'- 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 us
* * 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 Wil-
liam 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 tourn,
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 com-
manded 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 Æthelbert,
who was the first of the English who received baptism -- those 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 Con-
fessor, 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 Saron 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
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TRIAL BY JURY.
The Code of William the Conqueror * 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 pre-
ceding 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. +
The Norman princes, from William the Conqueror to John, I
think without exception, bound themselves, and, in order to
maintain their thrones, were obliged to bind themselves, to
observe the ancient laws and customs, in other words, the
“ler terræ,” or “common law” of the kingdom. Even
Magna Carta contains hardly anything other than this same
“common law," with some new securities for its observance.
HNL
OLEMAANDALISM
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 Ler Terræ 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.
* 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.
# For all these codes see Wilkins' Laws of the Anglo-Saxons.
“ Being regulations adapted to existing institutions, the Anglo-Saxon statutes aro
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 in-
ferred. * * Positive proof cannot be obtained of the commencement of any institu-
tion, because the first written law relating to it may posssibly be merely confirmatory or
declaratory; neither can the non-existence of any institution be inferred from the ab-
sence of direct evidence. Written laws were modified and controlled by customs of
which no trace can be discovered, antil after the lapse of centuries, although those
usages must have been in constant vigor during the long interval of silence.”—1 Pal.
grave's Rise and Progress of the English Commonwealth, 58-9.
ANCIENT COMMON LAW JURIES IT1
63
COURTS OF CONSCIENCE.
How is this abstinence from legislation, on the part of the
ancient kings, to be accounted for, except on the supposition
that the people would accept, and juries enforce, few or no
new laws enacted by their kings? Plainly it can be accounted
for in no other way. In fact, all history informs us that
anciently the attempts of the kings to introduce or establish
new laws, met with determined resistance from the people,
and generally resulted in failure. “Nolumus Leres inglice
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. *
11
SECTION 11.
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 administra-
tion 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 govern-
ment is a despotism, and the people are slaves. If, on the
other hand, the rule of decision be those principles of natural
equity and justice, which constitute, or at least are embodied
in, the general conscience of mankiud, 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 tribunils, must necessarily be inferred from the fact
already stated, that his authority over the people was but
weak. If the authority of his laivs bad been paramount in
the judicial tribunals, it would have been paramount with the
people, of course; because they would have had no alternative
T
10.
* Rapin says, “ The eustoms now practised in England are, for the most part, the
same as the Anglo-Saxons brought with them from Germany.” — Rupin's Dissertation
on the Goretument of ike Inglo-Saxoks, vol. 2, Oct. EU., p. 138. See Kelham's Dis-
course before named.
64
TRIAL BY JURY.
but submission. The fact, then, that his laws were not au-
thoritative with the people, is proof that they were not author-
itative 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 ob-
ject being, as Blackstone says, "to bring justice home to every
inan's door." (3 Blackstone, 30.) The number of the county
courts, of course, corresponded to the number of counties, (36.)
The court-leet was the criminal court for a district less than a
county. The hundred court was the court for one of those
districts anciently called a hundred, because, at the time of
their first organization for judicial purposes, they comprised
(as is supposed) but a hundred families.* The court-baron
was the court for a single manor, and there was a court for
every manor in the kingdom. All these courts were holden
as often as once in three or five weeks; the county court once
a month. The king's judges were present at none of these
courts; the only officers in attendance being sheriffs, bailiffs,
and stewards, merely ininisterial, 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.
* 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.
ANCIENT COMMON LAW JURIES COURTS OF CONSCIENCE.
65
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. *
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.t Of those that were written, few copies only were
made, (printing being then unknown,) and not enough to
supply all, or any considerable number, of these numerous
courts. Beside and beyond all this, few or none of the jurors
could have read the laws, if they had been written; because
few or none of the common people could, at that time, read.
Not only were the common people unable to read their own
language, but, at the time of Magna Carta, the laws were
written in Latin, a language that could be read by few persons
except the priests, who were also the lawyers of the nation.
Mackintosh says, “the first act of the House of Commons
composed and recorded in the English tongue," was in 1415,
two centuries after Magna Carta. I Up to this time, and for
some seventy years later, the laws were generally written
UL
* Excepting also matters pertaining to the collection of the revenue, which were de
termined 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.
** For the English laws, although not written, may, as it should seem, and that with-
out 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 promulgated
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 anly, they should not
be considered laws, then, unquestionably, writing would seem to confer more authority
apon 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.
Mackintosh's History of England, ch. 3. Lardner's Cabinet Cyclopaedia, 266.
66
TRIAL BY JURY.
VV
a
either in Latin or French; both languages incapable of being
read by the common people, as well Normans as Saxons; and
one of them, the Latin, not only incapable of being read
by them, but of being even understood when it was heard
by them.
To suppose that the people were bound to obey, and juries
to enforce, laws, many of which were unwritten, none of
which they could read, and the larger part of which (those
written in Latin) they could not translate, or understand when
they heard them read, is equivalent to supposing the nation
sunk in the most degrading slavery, instead of enjoying a
liberty of their own choosing.
Their knowledge of the laws passed by the king was, of
course, derived ouly 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.*
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.
6 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, S.
DAY
I
* 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.
ANCIENT COMMON LAW JURIES COURTS OF CONSCIENCE.
67
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,
foc., fc., 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 hare the greater right to the land (or other
thing) in question.” See Writs in Beames' Glanville, p. 54
to 70, and 233-306 to 332.
Crabbe, speaking of the time of Henry I., (1100 to 1135,)
recognizes the fact that the jurors were the judges. He says:
“By one law, every one was to be tried by his peers, who
were of the same neighborhood as himself. * * By another
law, the judges, for so the jury were called, were to be chosen
by the party impleaded, after the manner of the Danish nem-
bas ; by which, probably, is to be understood that the defend-
ant had the liberty of taking exceptions to, or challenging the
jury, as it was afterwards called.” Crabbe's History of the
English Luw, 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.+ * *
"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,
+ 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.
68
TRIAL BY JURY.
presided instead of the sheriff." – 1 Reeve's History of the
English Law, p. 7.
Chief Baron Gilbert says:
“Besides the tenants of the king, which held per baroniam,
(by the right of a baron,) and did suit and service (served as
judges) at his own court; and the burghers and tenants in
ancient demesne, that did suit and service (served as jurors
or judges) in their own court in person, and in the king's by
proxy, there was also a set of freeholders, that did suit and
service (served as jurors) at the county court. These were
such as anciently held of the lord of the county, and by the
escheats of earldoms had fallen to the king; or such as were
granted ont by service to hold of the king, but with particular
reservation to do suit and service (serve as jurors) before the
king's bailiff; because it was necessary the sheriff, or bailiff of
the king, should have suitors (jurors) at the county court, that
the business might be despatched. These suitors are the pares
(peers) of the county court, and indeed the judges of it; as the
pares (peers) were the judges in every court-baron; and there-
fore 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 præď Tent apud B., &c. (First
Court of the county, E. C. knight, sheriff of the aforesaid
county, held at B., &c.); by which it appears that the court
was the sheriff's; yet, by the old feudal constitutions, the lord
was not judge, but the pares (peers) only; so that, even in a
justicies, which was a commission to the sheriff to hold plea
of more than was allowed by the natural jurisdiction of a
county court, the pares (peers, jurors) only were judges, and
not the sheriff ; because it was to hold plea in the same manner
as they used to do in that the lord's) court." — Gilbert on the
Court of Exchequer, ch. 5, p. 61-2.
“It is a distinguishing feature of the feudal system, to make
civil jurisdiction necessarily, and criminal jurisdiction ordina-
rily, coëxtensive with tenure; and accordingly there is insepa-
rably 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
ANCIENT COMMON LAW JURIES COURTS OF CONSCIENCE.
69
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 au-
thority.” -- Political Dictionary, word Suit.
“Court, (curtis, curia aula); the space enclosed by the walls
of a feudal residence, in which the followers of a lord used to
assemble in the middle ages, to administer justice, and decide
respecting affairs of common interest, &c. It was next used
for those who stood in immediate connexion with the lord and
master, the pares curiæ, (peers of the court,) the limited portion
of the general assembly, to which was entrusted the pronounc-
ing of judgment,”' &c.-Encyclopedia Americana, word Court.
"In court-barons or county courts the steward was not
judge, but the pares (pecrs, jurors); nor was the speaker
in the House of Lords judge, but the barons only." — Gilbert
on the Court of Exchequer, ch. 3, p. 42.
Crabbe, speaking of the Saxon times, says:
“ The sheriff presided at the hundred court, * * and some-
times 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 Eng-
lish Law, says:
46 Judex is of us called Judge, but our fashion is so divers,
that they which give the deadly stroke, and either condemn
or acquit the man for guilty or not guilty, are not called judges,
but the twelve men. And the same order as well in civil mat-
ters and pecuniary, as in matters criminal.” — Smith's Com-
monwealih 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 establishinent 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 cogni-
zance of criminal inatters, or pleas of the crown; and neces-
sarily belongs to the king; though a subject, usually the lord
I
o
70
TRIAL BY JURY.
of the manor, may be, and is, entitled to the profits, consisting
of the essoign pence, fines, and amerciaments.
"It is held before the steward, or was, in ancient times, before
the bailiff, of the lord." - Tomlin's Law Dict., word Court-
Leet.
Of course the jury were the judges in this court, where only
a "steward” or “bailiff” of a manor presided.
"No cause of consequence was determined without the
king's writ; for even in the county courts, of the debts, which
were above forty shillings, there issued a Justicies (commission)
to the sheriff, to enable him to hold such plea, where the suitors
are judges of the law and fact.”' - Gilbert's History of the
Common Pleas, Introduction, p. 19.
" This position” (that “ the matter of law was decided by
the King's Justices, but the matter of fact by the pares”) “is
wholly incompatible with the common law, for the Jurata
(jury) were the sole judges both of the law and the fact." -
Gilbert's History of the Common Pleas, p. 70, note.
“We come now to the challenge; and of old the suitors in
court, who were judges, could not be challenged; nor by the
feudal law could the pares be even challenged, Pares qui
ordinariam jurisdictionem habent recusari non possunt ; (the
peers who have ordinary jurisdiction cannot be rejected ;)" but
those suitors who are judges of the court, could not be chal-
lenged; and the reason is, that there are several qualifications
required by the writ, viz., that they be liberos et legales homi-
nes 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 Apnotist
says, that this is indeed a maxim in the Civil-Law Jurispru-
dence, but it does not bind an English jury, for by the common
law of the land the jury are judges as well of the matter of
law, as of the fact, with this difference only, that the (a Saxon
word) or judge on the bench is to give them no assistance in
determining the matter of fact, but if they have any doubt
among themselves relating to matter of law, they may then
request him to explain it to them, which when he hath dove,
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 delin-
quent, either in matter of fact or in matter of law." (Here
various Saxon laws are quoted.) “In neither of these funda-
ANCIENT COMMON LAW JURIES COURTS OF CONSCIENCE.
71
1
mental 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 what-
ever, 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, hav-
ing, in general, full rights of alienating their lands, and hold-
ing them probably at a small certain rent from the lord of the
manor, frequently occur in Domes-day Book. * * They
undoubtedly were suitors to the court-baron of the lord, to
whose soc, or right of justice, they belonged. They were con-
sequently 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 oue 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 fendal tenure to assist their lord in the dispensation of
domestic justice. This was formerly held every three weeks;
and its most important business was to determine, by writ of
right, all controversies relating to the right of lands within the
manor.” —3 Stephens' Commentaries, 392–3. 3 Blackstone,
32-3.
"A Hundred Court is only a larger court-baron, being held
for all the inhabitants of a particular hundred, instead of a
manor. The free suitors (jurors) are here also the judges,
and the steward the register.” — 3 Stephens, 394. 3 Black-
stone, 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 sherif is the ministerial
officer.” — 3 Stephens, 395-6. 3 Blackstone, 35-6.
72
TRIAL BY JURY.
Blackstone describes these courts, as courts "wherein inju-
ries 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 compur-
gation --an improvement which impartial observation can
have no hesitation to pronounce as identical in its main feat-
ures 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, pre-
sided." -- Spence's Origin of the Laws and Political Institu-
tions of Modern Europe, p. 444.
“The right of the plaintiff and defendant, and of the pros-
ecutor and criminal, to challenge the judices, (judges,) or
assessors, * 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 gen-
eral right of challenge; indeed, had such right existed, the
injunctions to all persons standing in the situation of judges
(jurors) to do right according to their conscience, would
scarcely have been so frequently and anxiously repeated.” -
Spence, 456.
Hale says:
“The administration of the common justice of the kingdom
seems to be wholly dispensed in the county courts, hundred
courts, and courts-baron ; except some of the greater crimes
reformed by the laws of King Henry I., and that part thereof
which was sometimes taken up by the Justitiarius Angliæ.
* The jurors were sometimes called “ assessors," because they assessed, or determined
the amount of fines and amercements to be imposed.
ANCIENT COMMON LAW JURIES COURTS OF CONSCIENCE.
73
This doubtless bred great inconvenience, uncertainty, and
variety in the laws, viz. :
“First, by the ignorance of the judges, which were the free-
holders of the county. * *
" Thirdly, a third inconvenience was, that all the business of
any inoment was carried by parties and factions. For the
freeholders being generally the judges, and conversing one
among another, and being as it were the chief judges, not
only of the fact, but of the law; every man that had a suit
there, sped according as he could make parties.” — 1 Hale's
History of the Common Law, p. 246.
"In all these tribunals,” (county court, hundred court,
&c.,) "the judges were the free tenants, owing suit to the
court, and afterwards called its peers.” — 1 Lingard's History
of England, 488.
Henry calls the twelve jurors assessors," and says:
« These assessors, who were in reality judges, took a solemn
oath, that they would faithfully discharge the duties of their
office, and not suffer an innocent man to be condemned, nor
any guilty person to be acquitted.” — 3 Henry's History of
Great Britain, 346.
Tyrrell says:
"Alfred cantoned his kingdom, first into Trihings and
Lathes, as they are still called in Kent and other places, con-
sisting 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 Hun-
dred * -id est the freeholders — was judge." — Ditto, p. 80.
Also he says:
"By a law of Edward the Elder, ‘Every sheriff shall con-
*** 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 unfre-
quently 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 tho
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.
TRIAL BY JURY.
vene the people once a month, and do equal right to all,
putting an end to controversies at times appointed.'” – Ditto,
p. 86.
56 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.
6 From the moment when the crown became accustomed to
the ‘Inquest,' a restraint was imposed upon every branch of
the prerogative. The king could never be informed of his
rights, but through the medium of the people. Every 'extent'
by which he claimed the profits and advantages resulting from
the casualties of tenure, every process by which he repressed
the usurpations of the baronage, depended upon the 'good
men and true' who were impanelled to 'pass' between the
subject and the sovereign; and the thunder of the Exchequer
at Westminster might be silenced by the honesty, the firmness,
or the obstinacy, of one sturdy knight or yeoman in the dis-
tant shire.
Taxation was controlled in the same manner by the voice
of those who were most liable to oppression. * * A jury was
impanelled to adjudge the proportion due to the sovereign;
and this course was not essentially varied, even after the right
of granting aids to the crown was fully acknowledged to be
vested in the parliament of the realm. The people taxed
themselves; and the collection of the grants was checked and
controlled, and, perhaps, in many instances evaded, by these
virtual representatives of the commur.ity.
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 con-
sequences, 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 jus-
tice until the humblest of his subjects placed the weapon in
his hand.”—1 Palgrave's Rise and Progress of the Eng-
lish Constitution, 274-7.
ANCIENT COMMON LAW JURIES COURTS OF CONSCIENCE.
75
Coke says, “ The court of the county is no court of record, *
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.
Miliar says, "Some authors have thought that jurymen
were originally compurgators, called by a defendant to swear
ihat 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 confirin the oath of the party by swearing, according
to their belief, that he had told the truth, (in his oath of purga-
tion;} 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 compurga-
tors were obliged to swear that they would tell the truth..
. According to the simple idea of our forefathers, guilt or
innocence was regarded as a mere matter of fact; and it was
thought that no man, who knew the real circumstances of a
case, could be at a loss to determine whether the culprit ought
to be condemned or acquitted.”1 Millar's Hist. View of
Eng. Gov., ch. 12, p. 332-4.
Also, “ The same form of procedure, which took place in
the administration of justice among the vassals of a barony,
was gradually extended to the courts held in the trading towns.”
-- Same, p. 335.
Also, “ The same regulations, concerning the distribution of
justice by the intervention of juries, .. were introduced
into the baron courts of the king, as into those of the nobility,
or such of his subjects as retained their allodial property.” —
Same, p. 337.
Also, “This tribunal ” (the aula regis, or king's court,
afterwards divided into the courts of King's Eeuch, Common
* The ancient jury courts kept ro 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 presente
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TRIAL BY JURY.
Pleas, and Exchequer) “wag 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 neces-
sity 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 Erchequer,) as well as into their auxiliary courts
employed to distribute justice in the circuits; and was thus
rendered essentially necessary in determining causes of every
sort, whether civil, criminal, or fiscul.” – Same, vol. 2, p. 293-4.
Also, “ That this form of trial (by jury) obtained univer-
sally in all the feudal governments, as well as in that of Eng-
land, there can be no reason to doubt. In France, in Ger-
many, 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 free-
men or vassals of a barony, were determined by the pares
curiæ (peers of the court;) and that the judge took little more
upon him than to regulate the method of proceeding, or to
declare the verdict of the jury.” — Same, vol. 1, ch. 12, p. 329.
Also, “Among the Gothic nations of modern Europe, the
custom of deciding lawsuits by a jury seems to have prevailed
universally; first in the allodial courts of the county, or of the
hundred, and afterwards in the baron-courts of every feudal
superior." --- Same, vol. 2, p. 296.
Palgrave says that in Germany “The Graff (gerefa, sheriff)
placed himself in the seat of judgınent, 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 Pal-
grave's Rise, &c., p. 80.
HO
ANCIENT COMNION LAW JURIES COURTS OF CONSCIENCE.
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 Black-
stone's Commentaries.*
* Stuart says :
“ The courts, or civil arrangements, which were modelled in Germany, preserved the
indepeudence of the people; and having followed the Saxons into England, and con-
tinuing their importance, they supported the envied liberty we boast of. * *
“ As a chieftain lod 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 inquire
with him into the guilt of those of their order whom justice haul 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 appear-
ance. * *
« The head or lord of the manor called forth his attendants to his hall. * * lle
inquirod 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, be deter-
mined in all matters of debt, and of trespass to a certain amount. He possessed i
similar jurisdiction with the chieftain in Germany, and his tenants enjoyod 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 swayel, 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. Experi-
ence 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 extended their jurisdiction over the territory they occupied. *
They bound theinselves under a penalty to assemble at stated times; and having elected
Che 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 in-
vested in the people was extensive ; they were able to preserve their rights, and
attended this court in arms.
“ As the communication, however, and intercourse, of the individuals of a German
community began to be wider, and more general, as their dealings enlargod, and as
disputes arose among the members of different hundreds, the insufficiency of these
+“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."
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TRIAL BY JURY.
That all these courts were mere courts of conscience, in
which the juries were sole judges, administering justice accord-
ing to their own ideas of it, is not only shown by the extracts
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 Ger-
many 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 judg-
monts, 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 apponl,
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 his 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 jus-
tice. 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 help.
less 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,
aſter meals, to exercise his office.
“The druids also, or priests, in Germany, as we had formerly occasion to remark, and
the clorgy 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.*
“ 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,
* 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 presentation of the truth. He says that anciently
"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
ANCIENT COMMON LAW JURIES COURTS OF CONSCIENCE.
79
711
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
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 juris-
diction 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 suc-
cessive 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 pro-
ceedings, 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 jus-
tice, and the voice of reason, or conscience, all causes were submitted to them.” -
Ditto, p. 260.
“ Before the orders of men were very nicely distinguished, the jurors were elected
from the same rank. When, however, a regular subordination of orders was estab-
lished, 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
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 proceeded 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." -3 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.
80
TRIAL BY JURY.
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
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 injurics 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, demand-
ed a more solemn discussion. The course of justice flowing in large streams from the
king, as tbe 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 continue 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,*) will be by beginning with the lowest, and those whose juris-
diction, though public and generally dispersed through the kingdom, is yet (with
regard to each particular court) confined to very narrow limits; and 80 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 be holden by
the steward within the said manor. This court-baron is of two natures ; the one is a cus-
tomary 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
the 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 consider-
ing, viz., the freeholders court, was composed of the lord's tenants, who were the pares (equals)
* There was no distinction between the civil and criminal courrts, as to the rights or powers of
juries.
ANCIENT COMMON LAW JURIES COURTS OF CONSCIENCE.
81
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 pop-
ulous 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 con-
science, 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 certain-
ly 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 cominoners sit twice a week to
hear all causes of debt not exceeding the value of forty shil-
lings; which they examine in a summary way, by the oath
of the parties or other witnesses, and make such order therein
as is consonant to equity and good conscience. * * * Divers
trading towns and other districts have obtained acts of Parlia-
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 instituted
within every superior district or hundred.” — 3 Blackstone, 33, 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, re-
sembling the former at all points, except that in point of territory it is of greater juris
diction. 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 dif-
ferent villages, originally 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. Cæsar 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 con-
troversies.) 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 de
termination. • Eliguntur in conciliis et principes, qui jura per pagos vicosque reddunt, centeni
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TRIAL BY JURY.
ment, for establishing in them courts of conscience upon nearly
the same plan as that in the city of London.
66 The anxious desire that has been shown to obtain these
several acts, proves clearly that the nation, in general, is truly
sensible of the great inconvenience arising from the disuse of
the ancient county and hundred courts, wherein causes of this
small value were always formerly decided with very little
trouble and expense to the parties. But it is to be feared that
the general remedy, which of late hath been principally applied
to this inconvenience, (the erecting these new jurisdictions,)
may itself be attended in time with very ill consequences; as
the method of proceeding therein is entirely in derogation of
the common law; and their large discretionary powers create
a petty tyranny in a set of standing commissioners; and as the
disuse of the trial by jury may tend to estrange the minds of
the people from that valuable prerogative of Englishmen,
which has already been more than sufficiently excluded in
many instances. How much rather is it to be wished that the
proceedings in the county and hundred courts could be again
singulis, ex plebe comites concilium 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 hereda 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.” - 3 Blackstone, 34, 35.
“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 shil-
lings ; over some of which causes these inferior courts have, by the express words of
the statute of Gloucester, (6 Edward I., ch. 8,) a jurisdiction 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 same 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 officer. * * *
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 saine 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 Black-
stone, 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, 58.
ANCIENT COMMON LAW JURIES COURTS OF CONSCIENCE.
83
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, thut 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 ap-
pear ut 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 shil-
lings, the county clerk and twelve suitors (jurors) shall proceed
in a summary way, examining the parties and witnesses on
oath, without the formal process anciently used; and shall
make such order therein as they shall judge agreeable to con-
science.” — 3 Blackstone, 81-83.
What are these but courts of conscience? And yet Black-
stone 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, bailiff's, 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,
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the latter would have imposed such laws upon the people as
they pleased.
These courts, that have now been described, were continued
in full power long after Magna Carta, no alteration being made
in them by that instrument, nor in the mode of administering
justice in them.
There is no evidence whatever, so far as I am aware, that
the juries had any less power in the courts held by the king's
justices, than in those held by sheriffs, bailiffs, and stewards;
and there is no probability whatever that they had. All the
difference between the former courts and the latter undoubtedly
was, that, in the former, the juries had the benefit of the advice
and assistance of the justices, which would, of course, be con-
sidered 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 con-
current 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 through-
out the kingdom,"'* 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
* 1 Blackstone, 63-67.
OATHS OF JURORS.
85
times as the customs of the realm were put in writing and cer-
tainly published ?"
The fact that, in that dark age, so many of the principles
of natural equity, as those then embraced in the Common
Law, should have been so uniformly recognized and enforced
by juries, as to have become established by general consent as
"the law of the land ;” and the further fact that this “law of
the land" was held so sacred that even the king could not
lawfully infringe or alter it, but was required to swear to
maintain it, are beautiful and impressive illustrations of the
truth that men's minds, even in the comparative infancy of
other knowledge, have clear and coincident ideas of the ele-
mentary 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 devel-
oped in the untrammelled judgments of juries, may be safely
relied upon for the preservation of individual rights in civil
society; and that there is no necessity or excuse for that deluge
of arbitrary legislation, with which the present age is over-
whelmed, 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 II.
The Oaths of Jurors.
The oaths that have been administered to jurors, in Eng-
land, 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
S6
TRIAL BY JURY.
1
wl.
that is innocent, nor acquit any that is guilty." -- 4 Black-
stone, 302. 2 Turner's History of the Anglo-Saxons, 155.
Wilkins' Laws of the Anglo-Saxons, 117. Spelman's Glos
sury, 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 exam-
ination of that cause which was submitted to their jurisdic-
tjon.” -- 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 neigh-
borhood to swear that they will make known the truth accord-
ing to their conscience.) -- Crabbe's History of the English
Law, 119. 1 Reeves, 87. Wilkins, 321-323.
Glanville, who wrote within the half century previous to
Magna Carta, says:
“Each of the knights summoned for this purpose (as jurors)
ought to swear that he will neither utter that which is false,
nor knowingly conceal the truth.” — Beames' Glanville, 65.
Reeve calls the trial by jury " the trial by twelve men
sworn to speak the truth.” –1 Reeve's History of the Eng-
lish Law, 87.
Henry says that the jurors stook 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 Brit-
ain, 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.
OATHS OF JURORS.
97
Smith, writing in the time of Elizabeth, says that, in civil
suits, the jury " he 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.*
* This quaint and curious book (Šinith's Commonwealth of England) describes the
minutive of trials, giving in detail the mode of impanelling the jury, and then the con-
duct of the lawyers, witnesses, and court. I give the following extracts, ieeding to show
that the judges impose no law upon the juries, in citho 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
suid 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 tho wit-
nesses have declared, and the chief points of the evidence showed in writing, and once
again putteth them in mind of the issue, and sometimo 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 eharge to the jury.
In criminal cases, 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 case.
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 aceording to their con-
sciences, 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 soinetime, especially if they perceive either one of the justices or
of the judges, or some other man, to pursuo 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 accurded 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
f Parliament, and they give their voiee not one for all, but eaeh severally
as they do in Parliainent, 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 freeinan.) -- P 98.
88
TRIAL BY JURY.
Hale says:
" Then twelve, and no less, of such as are indifferent and
are returned upon the principal panel, or the tales, aro sworn
to try the same according to the evidence." --2 Hale's His
tory of the Common Law, 141.
It appears from Blackstone that, even at this day, neither in
civil nor criminal cases, are jurors in England sworn to try
causes according to law. He says that in civil suits the jury
are
“Sworn well and truly to try the issue between the parties,
and a true verdict to give according to the evidence." - 3
Blackstone, 365.
" The issue” to be tried is whether A owes B anything;
and if so, how much? or whether A has in his possession
anything that belongs to B; or whether A has wronged B,
and ought to make compensation; and if so, how much?
No statute passed by a legislature, simply as a legis-
lature, can alter either of these “issues” in hardly any con-
ceivable 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 legis-
lature, 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 evi-
denoe.” — 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
....
OATHS OF JURORS.
89
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 any-
body else. And this oath does not require or permit a jury to
do so.
The words, “according to the evidence," have doubtless
been introduced into the above oaths in modern times. They
are unquestionably in violation of the Common Law, and of
Magna Carta, if by them be meant such evidence only as the
government sees fit to allow to go to the jury. If the govern-
ment can dictate the evidence, and require the jury to decide
according to that evidence, it necessarily dictates the conclu-
sion 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.*
Grand Jury. — If jurors are bound to enforce all laws passed
by the legislature, it is a very remarkable fact that the oath
of grand juries does not require them to be governed by the
laws in finding indictments. There have been various forms
of oath administered to grand jurors; but by none of them
that I recollect ever to have seeni, except those of the States
* « The present form of the jurors' oath is that they shall give a true verdict accord-
ing 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, wero
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
deredictum, 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.
TRIAL BY JURY.
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 sup-
posed 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 pre-
sent 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:
.66 If it be asked how, or in what manner, the (grand) juries
shall inquire, the answer is ready, according to the best of their
understandings. They only, not the judges, are sworn to
search diligently to find out all treasons, &c., within their
charge, and they must and ought to use their own discretion
in the way and manner of their inquiry. No directions can
legally be imposed upon them by any court or judges; an
honest jury will thankfully accept good advice from judges, as
their assistants; but they are bound by their oaths to present
the truth, the whole truth, and nothing but the truth, to the
best of their own, not the judge's, knowledge. Neither can
they, without breach of that oath, resign their consciences, or
blindly submit to the dictates of others; and therefore ought
to receive or reject such advices, as they judge them good or
bad. * * Nothing can be more plain and express than
the words of the oath are to this purpose. The jurors need
not search the law books, nor tumble over heaps of old
records, for the explanation of them. Our greatest lawyers
may from hence learn more certainly our ancient law in this
case, than from all the books in their studies. The language
wherein the oath is penned is known and understood by every
man, and the words in it have the same signification as they
have wheresoever else they are used. The judges, without
assuming to themselves a legislative power, cannot put a new
sense upon them, other than according to their genuine, com-
mon meaning. They cannot magisterially impose their
opinions upon the jury, and make them forsake the direct
to rely submit breach out the time on the serice from
RIGHT OF JURIES TO FIX SENTENCE.
91
words of their oath, to pursue their glosses. The grand
inquest are bound to observe alike strictly every part of their
oath, and to use all just and proper ways which may enable
them to perform it; otherwise it were to say, that after men
had sworn to inquire diligently after the truth, according to the
best of their knowledge, they were bound to forsake all the
natural and proper means which their understandings suggest
for the discovery of it, if it be commanded by the judges." —
Lord Somers' Essay on Grand Juries, p. 38.
What is here said so plainly and forcibly of the oath and
obligations of grand juries, is equally applicable to the oath
and obligations of petit juries. In both cases the simple oaths
of the jurors, and not the instructions of the judges, nor the
statutes of kings nor legislatures, are their legal guides to their
duties. *
11
*
SECTION IV.
The Right of Juries to fix the Sentence.
The nature of the common law courts existing prior to
Magna Carta, such as the county courts, the hundred courts,
the court-leet, and the court-baron, all prove, what has already
been proved from Magna Carta, that, in jury trials, the juries
fixed the sentence; because, in those courts, there was no one
but the jury who could fix it, unless it were the sheriff, bailiff,
or steward; and no one will pretend that it was fixed by them.
The juries unquestionably gave the “judgment” in both civil
and criminal cases.
That the juries were to fix the sentence under Magna Carta,
is also shown by statutes subsequent to Magna Carta.
A statute passed fifty-one years after Magna Carta, says
that a baker, for default in the weight of his bread, “debeat
amerciari vel subire judicium pilloræ," -- that is, “ought to
be amerced, or suffer the sentence of the pillory.” And that
a brewer, for “selling ale, contrary to the assize," "debeat
amerciari, vel pati judicium tumbrelli;” that is, ought to be
11MY
.
* 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.”
92
TRIAL BY JURY.
.
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 nat-
urally have said these offenders shall be amerced, and shall
suffer judgment of the pillory and tumbrel, instead of thus
simply expressing the opinion that they ought to be punished
in that manner.
The statute of Westminster, passed sixty years after Magna
Carta, provides that,
“No city, borough, nor town, nor any man, be amerced,
without reasonable cause, and according to the quantity of the
trespass; that is to say, every freeman saving his freehold, a
merchant saving his merchandise, a villein his waynage, and
that by his or their peers.” — 3 Edward I., ch. 6. (1275.)
The same statute (ch. 18) provides further, that,
"Forasmuch as the common fine and amercement of the
whole county in Eyre of the justices for false judgments, or
for other trespass, is unjustly assessed by sheriffs and baretors
in the shires, so that the sum is many times increased, and
the parcels otherwise assessed than they ought to be, to the
damage of the people, which be many times paid to the sheriffs
and baretors, which do not acquit the payers; it is provided,
and the king wills, that from henceforth such sums shall be
assessed before the justices in Eyre, afore their departure, by
the oath of knights and other honest men, upon all such as
ought to pay; and the justices shall cause the parcels to be put
into their estreats, which shall be delivered up unto the ex-
chequer, and not the whole sum.” — St. 3 Edward I., ch. 18,
(1275.)*
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 re-
* Coke, as late as 1588, admits that amercements must be fixed by the peers (8
Coke's Rep. 38, 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 nu-
merous, 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, how-
ever, 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.
RIGHT OF JURIES TO FIX SENTENCE.
93
cognition of the principle of Magna Carta, that the jury are to
fix the sentence.
"Whereas before this time the peers of the land have been
arrested and imprisoned, and their temporalities, lands, and
tenements, goods and cattels, asseized in the king's hands,
and some put to death without judgment of their peers: It is
accorded and assented, that no peer of the land, officer, nor
other, because of his office, nor of things touching his office,
nor by other cause, shall be brought in judgment to lose his
temporalities, lands, tenements, goods and cattels, nor to be
arrested, nor imprisoned, outlawed, exiled, nor forejudged, nor
put to answer, nor be judged, but by award (sentence) of the
said peers in Parliament.”' - 15 Edward III., st. 1, sec. 2.
Section 4, of the same statute provides,
“That in every Parliament, at the third day of every Par-
liament, 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 minis-
ters be put to answer to every complaint; and iſ default be
found in any of the said ministers, by complaint or other
manner, and of that attainted in Parliament, he shall be pun-
ished 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 “ac-
cording 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 sen-
tenced, 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,
94
TRIAL BY JURY.
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, pro-
nounced their sentence, and did adjudge the said archbishop,
duke, and earl, with Robert Tresilian, so appealed, as afore-
said, 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 charnberlain,” being con-
victed 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, gentle-
men 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 as-
sent of the king. But that the king should be consulted, and
his assent obtained to the sentence pronounced by the peers,
RIGHT OF JURIES 95
UT
TO FIX SENTENCE.
does not impiy 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, here-
after, 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 State 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, (1620)
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
96
TRIAL BY JURY.
UI
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, 386-7.
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 :
5 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 re-
quired 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 resolu-
tion 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 un-
necessary, 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.
RIGHT OF JURIES TO FIX SENTENCE.
97
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 Parlia-
ment 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 Macclesfield, the Lords have unan-
imously 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, befined 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 you 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 hun-
dred years after Magna Carta,) so far as it applied to a peer
of the realm.
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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 in-
fluence 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 parlia-
ments, 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 Eng-
land was ever sworn to observe the laws enacted either by the
king alone, or by the king with the advice and assent of par-
liament.
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 mais
common right ;" * but they were not sworn to obey or execute
any statutes of the king, or of the king and parliament. In-
deed, 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, notwith-
standing 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
*« Common right” was the common law. I Cake's Inst. 142 a. 2 do. 55,6.
OATHS OF JUDGES.
99
certify the king thereof, and proceed to execute the laro, (that
is, the common law,) notwithstanding the same betters.”
When 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 often-
times 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 dis-
regard any legislation that was contrary to “common right,"
or “the common law," and notify the king that it was con-
trary to common right, or the common law, and then proceed
to execute the common law, notwithstanding such legislation.*
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, &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
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
SER
* 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 disherigon 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 righi 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 oor 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, por 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 him-
self. And that yo 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, como
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
Lax," (mark the term, “ common laus”) “ or to menace the people that they may not
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greatly moved of conscience in this matter, and for this cause
desiring as much for the pleasure of God, and ease and quiet-
ness 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 heuceforth do cqual law and erecution of right to
all our subjects, rich and poor, without having regard to any
person, and without omitting to do right for any letlers or com-
mendment which may come to them from us, or from any
other, or by any other cause. And if that any letters, urits, 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 crerution of the same, or of right to the
parties, the justices and other aforesaid shall proceed and hold
Their courts and processes, where the pleus und mutters be de-
pending before them, as if no such letters, urits, or command-
ments 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.”* 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 hence-
forth, 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
pursue the law, that ye shall 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 ikat 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 leters, brst certify the king thereof, and
proceed to execute the law,” (the “ common law” before mentioned) “not withstanding 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 hence,
fortb found in default in any of the points aforesaid, ye shall be at the kings will of
body, lands, and goods, thereof to be done as shall please hinn, as God you help and all
saints,” - 18 Edward III., st. 4. (1344.)
* 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 maita
tain,” may be the better kept, &o.
OATHS OF JUDGES.
101
apertly, of any man that hath to do before them by any way
excepi 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 Ed-
ward III., ch. 1. (1346.)
Other statutes of similar tenor have been enacted, as follows:
"It is accorded and established, that it shall not be com-
wanded by the great seal, nor the little scal, 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 adminis-
tered 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
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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 seven-
teenth 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 king's, * * and especially the laws, customs,
and liberties conceded to the clergy and people by the illustrious
king Edward ;-) * * and "the just lau's 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 luw of the land, or “the com-
mon law," and, with some slight additions, were embodied in
Mugna 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 cousciences of a jury; sice,
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 path, therefore,
V
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THE CORONATION OATH.
103
to maintain the law of the land, or the ancient “laws, cus-
toms, 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 accord-
ing 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: *
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 ?
* The following is a copy of the original :
“ Forma Juramenti Regis Angliæ in Coronacione sua :
(Archiepiscopus Cantuariæ, ad quo de jure et consuetudine Ecclesiæ Cantuariæ, an-
tiqua et approbata, pertinet Reges Angliæ inungere et coronare, die coronacionis Regis,
antequc 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 præsertim leges et consuetudines et libertates a glorioso Rege Edwardo clero pop-
uloque concessas ?
(Et respondeat Rex,) Concedo et servare volo, et sacramento confirmare.
Servabis Ecclesiæ Dei, Cleroque, et Populo, pacem ex integro et concordiam in Deo
secundum vires tuas ?
(Et respondeat Rex,) Servabo.
Facies fieri in omnibus Judiciis tuis equam et rectam justiciam, et discrecionem, 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."
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11
(And the king shall answer,) I do concede, and will pre-
serve them, and confirm them by my oath.
Will you 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, accord-
ing 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 auswer,) 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 ?”
&c., 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 appro-
bation 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 indi-
cate 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 Conquieror, (1066,) down to the time of James
the First, and probably until 1688.
THE CORONATION OATH.
105
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.”
Ilale says :
“Yet the English were very zealous for them,” (that is, for
the laws of Edward the Confessor,) “no less or otherwise than
tiey are at this time for the Great Charter; insomuch that
they were never satisfied till the said laws were reinforced,
and mingled, for the most part, with the coronation oath of
king William L., and some of his successors.”—Hale's His-
tory 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 im-
memorial 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 uie the standing laws of
the kingdom, and considered the great rule of their rights and
liberties; and that the English were so zealous for them, that
they were never satisfied ull the said laws were reinforced, and
mingled, for the most part, with the coronation oath. Accord-
ingly, 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 Can-
terbury, 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 Pre-
liminary 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 5 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,
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1
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 Mag-
na 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 em-
bodied in Magna Carta. Or perhaps it is more probable that
the ancient form has been still observed, but that, as its sub-
stance 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,
6. 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 * 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 Lau,
and the Charter of the Forest for the wealth of the realm.
“And we will, that if any judgment be given from hence-
forth, 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.)
W LAMA
* It would appear, from the text, that the Charter of Liberties and the Charter of
the Forest were sometimes called “laws of the land."
THE CORONATION OATH.
107
a
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 Edvard the Confessor;
by which they usually mean the old common law which was
established under our Suzon princes.” — Blackstone's Intro-
duction to the Charters. See Blackstone's Law Tructs, 289.
Crabbe says:
“It is admitted, on all hands, that it (Magna Carta) con-
tains 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 succes-
sors." — Crabbe's History of the English Luw, 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:
4 Edward, by the Grace of God, &c., &c., to the Sheriff of
Stafford, Greeting: Because that by divers complaints made to
us, we have perceived that the law of the land, which we by
oath are bound to maintain,” foc. - St. 20 Eduard III. (1316.)
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 Cham-
ber, 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 suorn 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 Parlia-
ment, 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 Par-
liament agreed on, and the laws and customs of the same." —
St. 1 William and Mary, ch. 6. (1688.)
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TRIAL BY JURY.
The effect and legality of this oath will hereafter be consid-
ered. 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 sub-
stance, 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. *
* As the ancient coronation oath, given in the text, has come down from the Saron
times, 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 tho
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 bis
peers and prelates, the king uses the language of cominand; but the theoretical pre-
rogative 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 calelormen of the other subordinate states. And yet, in defiance of this
positive injunction, 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 ex-
ception 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
mula of ontmont inust 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 lition 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 access
of a new ear).
Legislation constituted but a small portion of the ordinary business transacted by the
Imperial Witenagemot. The wisdom of the assembly was shown in avoiding un-
necessary 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 decluratory mnactments.
In the Anglo-Saxon commonwealth, therefore, the legislative functions of the Witena-
gemot were of far less importance than the other branches of its authority. * * The
members of the Witenagemot were the · Pares Curiæ' (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, wbo sub-
mitted his Charter to the judgment of the Proceres, professed to be guided by the
THE CORONATION OATII.
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 Lurd-Marchey 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 caldormen, and the opti-
inates passed judyment upon all great offenders. * *
The soverrign could not compel the obedience of the different nations composing the An-
glo-Saron empire. llence, it became more necessary for him to concilinte their opinions,
if he solicited any service from a vasual prince or a vassal state beyond the ordinary
terins 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 charac-
ter of a political congress, in which the liegemen of the crown, or the communities pro-
tected by the Basileus, (sovereign,) were Iskred 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 coinpelled 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 Angliæ, 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 con-
tracted 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.
)
LA
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 fur-
ther 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 attend-
ance upon juries who could possibly enlighten them, unless it
were sheriffs, stewards, and bailiffs, who were unquestionably
too ignorant and untrustworthy to instruct them authorita-
tively; 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 legisla-
tion. 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, “Sum-
mon twelve free and legal men, for sometimes twelve knights,)
to be in court, prepared upon their oaths to declare whether A
RIGHTS AND DUTIES OF JURIES IN CIVIL SUITS.
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or B hare the greater right to the land in question," indicate
that the jurors judged of the whole matter on their con-
sciences only.
The language of Magna Carta, already discussed, estab-
lishes 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
weither 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 (arta
as much forbids that any of these things shall be done against
a debtor, as against a criminal, except according to, or in ere-
cution of, as a judgment of his peers, or the lurr 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 deter-
mination 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 judg-
ments, 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 judg-
ment 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, * 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 ; mless by the engage-
ments, which, his father Villiam, 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."
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* Marches, the limits, or boundaries, between England and Wales.
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Chap. 56. "All evil customs concerning forests, warrens,
and foresters, warreners, sheriffs, and their officers, rivers and
their keepers, shall forth with be inquired into in each county,
by twelve knights of the same shire, chosen by the most cred-
itable persons in the same county, and upon onth; and within
forty days after the said inquest, le 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 in-
valid, 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 oues. For example, individuals may be deprived
of their liberty, and robbed of their property, by judgments
rendered in civil suis, as well as in criminal ones. If the
laws of the king were imperative upon a jury in civit snits, the
king miglrt 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 dis-
posal 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.*
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* 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 Norinan kings) * # the intol-
erable exactions of tribute, the rapine of purvoyance, the iniquity of royal courts, are
continually in the mouths of the historians. "God sees the wretohed people,' says the
Saxon Chronicler, most unjustly oppressed ; first they are despoiled of their posses-
sions, and then butchered. This was a grievous year (1124). Whoever had any
property, lost it by heavy taxes and unjust decrees," - 2 Middle Ages, 43.26.
“In the succeeding reign of Lihn, all the rapacious exactions usual to these Norman
kings were not only redoubled, but mingled with outrages of tyranny still more intol-
erable. * *
“In 1207 John took & 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
ooours :
“ But the most barefaced acts of tyranuy and oppression were practised against the
RIGHTS AND DUTIES OF JURIES IN CIVIL SUITS.
113
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Furthermore, it would be absurd and inconsistent to make
a jury paramount to legislation in criminal suits, and subordi-
nate to it in civil suits; because an individual, by resisting
the execution of a civil judgment, founded upon an unjust
OLISI
Jews, who were entirely out of the protection of the law, and were abandoned to the
àmmeasurable rapacity of the king and his ministers. Besides many other indignitics,
to which they were continually exposed, it appears that they were once all thrown into
prison, and the sum of 60,000 marks exacted for their liberty. At anovher 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, wus required to pay 6000
marks." - Hume's Hist. Eng. Appendir 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 Jwn bound himself to make restitution for some of the spoliations
he had committed upon individuals “ without the legal judgment of their parts." - 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 larus were really obligatory upon the pects ; 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 liave 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 coukl then have made the samo 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 mat-
ters, if the king's laws were obligatory upon juries
As an illustration of what tyranny tho kings would sometimes practise, lume 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 prevalenco
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, als, in the 64th ebapter of Magna Carta, that “all unjust and illegal
fines, and all amerceinents, imposed unjustly, and contrary to the Low 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 Riobard,” indicate the tyrannical practices
that prevailed.
We are told also that John himself “bad 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 toolish, if his laws were binding
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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 defend-
ant, 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 crim-
inal 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 - sup-
pose 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 reuder a judgment in favor of B, that he be put in pos-
session of the property; thereby declaring that I is bound to
submil to a lune 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 sherifl. He
is thereupon indicted for murder. On this trial bis plea is,
that in killing the sheriff, he was simply exercising his natural
right of idefending his property against an unjust law. The
jury, not being bound, in a criminal case, by the authority of
an mjust law, judge the act on its merits, and acquit the de-
fendant -- 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.
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upon juries; because, in that case, he could have procured the conviction of these men
in a legal manner, and thus hare 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 judyments 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 jurics regarded the
laws as just in themselves.
RIGHTS AND DUTIES OF JURIES IN CIVIL SUITS.
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It would be a solecism and absurdity in government to
allow such consequences as these. Besides, it would be prac-
tically 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 para-
mount 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 civil suits,
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
un written, 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 necessi-
tated 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 obliga-
tory, whether it were just or unjust. This was one reason,
doubtless, why Magna Carta made juries, in civil suits, para-
mount 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 right please to enact. It was seen that to allow the
king's judges to dictate the law to the jury would be equiva-
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lent 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 administra-
tion 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 them-
selves entirely upon the footing of the barbarous Eastern
princes, whom no man inust 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 king-
dom, was open to none that brought not presents to the king;
the bribes given for expedition, delay, suspension, and doubt-
less 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 Yarinouth, 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; * * Serlo, 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 inqnest 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 in-
stances 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 por-
RIGHTS AND DUTIES OF JURIES IN CIVIL SUITS.
117
tion, a hall, a third, a fourth, payable out of the debts which
he, as the executor of justice, should assist in recovering.
Theophavia de Westland agreed to pay the half of two hun-
dred and twelve marks, that she might recover that sum
agunst James de Fughleston; Solomon, the Jew, engaged to
pay one mark out of every seven that lie should recover against
Hugli 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
carl." - Ilime, Ippendix 2.
"Tu the reign of Henry II., the best and most just of these
(the Normu) princes, * * Peter, of Blois, a judicious and
even elegant writer, of that age, gives a pathetic description
of the renality 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 in-
convenient power, ordering the justices of the king's court, iu
swts 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 cominission, conceived themselves bound to observe such
orders, to the great delay, interruption, and preventing of jus-
tice; 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 gov-
ernment, 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 lines) 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 demaud, 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 per-
version of justice, or for delay. Sometimes they were paid
by opposite parties, and, of course, for opposite ends.” — 2
Middle Ages, 438.
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In allusion to the provision of Magna Carta on this subject,
Hallam says:
6 A law which enacts that justice shall neither be sold, de-
nied, 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 ac-
celerate, 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 eracted presents for themselves,
and loud complaints existed against their venality and in-
justice.” -- 2 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 follow-
ing 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 pre-
vailed. 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 con-
nexions; 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 comuty
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
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bishop, and to exercise her gentle influence in his favor. Al-
fric, with equal wisdom, withdrew from prosecuting the hope-
less 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, fc., 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:
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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 justiciaries
through every county four times a year; * 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. †
* By the Magna Carta of Henry III. this is changed to once a year.
† From the provision of Magna Carta, cited in the text, it must be inferred that there
can be no legal trial by jury, in civil cases, if only the king's justices, preside ; that, to
make the trial legal, there must be other persons, chosen by the people, to sit with
them; the object being to prevent the jury's being deceived by the justices. I think
we must also infer that the king's justices could sit only in the three actions specially
mentioned. We cannot go beyond the letter of Magna Carta, in making innovations
upon the common law, which required all presiding officers in jury trials to be elected
by the people.
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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. *
But the following chapter of John's charter, which imme-
diately succeeds the one just quoted, and refers to the sanie
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 jus-
tice 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."
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* « The carls, 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 special province of the earldomen or earl to attend tho 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." Samo, p. 4, text.
“ As the allermen, or earls, were always chosen” (by the people) "from among the
frentest thanes, who in those times were generally more addicted to arms than to letters,
they were but ill-qualified for the adıninistration of justice, and performing the civil
duties of their oflice.” -3 Henry's History of Great Britain, 343.
“But none of these thanes were annually elected in the full folcmote, (people's
meeting,) is the carls, sheriffs, and heard-boroughs were; nor did King Alfred (as this
author sugrests) 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, ute.
« 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 subordinato magistrates, their military officers
or heretochs, their sheriffs, their conservators of the peace, their coroners, their portreeves,
(since changed into mayors and bailiffs,) and even their tithing-men and borsholders at
the last, continued, some, till the Norman conquest, others for two centuries after, and
some remain to this day." --4 Blackstone, 413.
“ The election of sheriffs was left to the people, according to ancient usage.” – St.
West. 1, c. 27. - Crabbe's History of English Law, 181.
RIGHTS AND DUTIES OF JURIES IN CIVIL SUITS.
121
U1
-
The meaning of this chapter is, that so many of the civil
snits, 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 frecholders, 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, muless it be presumed that
the knights dictated the law to the jury - a thing of which
there is no evidence at all.
As a final proof on this point, there is a statute enacted sev-
enty years after Magna Carta, which, although it is contrary
to the common law, and therefore void, is nevertheless good
evidence, inasmuch as it coutains an ackuowledgment, 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 dis-
seisin, 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.)
11
O
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. Aud the attempt of the
king this 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 com-
pelled 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
122
TRIAL BY JURY.
should not be compelled to declare the law, but might leave it
to be decided by the king's judges. 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 con-
trivances and usurpations which have been resorted to, for the
purpose of destroying the original and genuine trial by jury.
Ꮯ Ꮋ Ꭺ Ꮲ Ꭲ Ꭼ Ꭱ
Ꮩ .
OBJECTIONS ANSWERED
TIT
2
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. *
2. It will be asked, Of what {se are the justices, if the
jurors judge both of law and fact ?
The answer is, that they are of use, 1. To assist and en-
lighten the jurors, if they can, by their advice and informa-
tion; 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 grant-
ing 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 compelled to sit by and see the
law decided erroneously.
One answer to this objection is, that the powers of juries
2
TY
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 dic-
tating 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.
124
TRIAL BY JURY.
11
1
11) 1*1
III
are not granted to them on the supposition that they know the
law better than the justices; but on the ground that the jus-
tices 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 equiv-
alent to surrendering all the property, liberty, and rights of the
people, linreservedly 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 de-
stroyed, and they have become mere tools in the bands 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 vio-
late 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 exe-
cuted 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 en-
lightened to know and do their whole duty, in all cases what-
soever; but that they should all prove dishonest, is not within
OBJECTIONS ANSWERED.
125
i
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 juies are allowed to judge of the
law, they decide the low absolutely; that their decision must
necessarily stund, 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 judg-
ing 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 judg-
ments shall ever be executed, so far as to take a purty'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 every-
thing 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 reāffirmed by another, on a new trial,
it must then be executed. But Magna Carta does not com-
mand even this — although it might, perhaps, have been rea-
sonably safe for it to have done so --- for if two juries unan-
imously affirm the same thing, after all the light and aid that
judges and lawyers can afford them, that fact probably fur-
nishes 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
I
.
126
TRIAL BY JURY.
.
f
1
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 pur-
poses, 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 what-
ever 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, sup-
pose the existence of a practical, if not legal, necessity, for
executing some judgment or other, in cases where juries per-
sist in disagreeing with the courts. In such cases, the principle
of Magna Carta unquestionably is, that the uniform judg-
ments of successive juries 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 estab-
lished and enforced; that the concurrent judgments of success-
ive juries, given in opposition to all the reasoning which
judges and lawyers can offer to the contrary, must necessa-
rily 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 among
1
OBJECTIONS ANSWERED.
127
La
themselves, 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 suic-
cession of juries are not likely to disagree — that is, on matters
of natural law, or abstract justice.* 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; be-
cause 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 reason-
able 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 rontrol 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 jus-
tice 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 per-
son - 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.
C
)
S
O
* Most disagreements of juries are on matters of fact, which are admitted to be with-
in 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 ; be-
cause 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.
128
TRIAL BY JURY.
The principles of the trial by jury, then, are these :
1. That, in criminal cases, the accused is presumed inno-
cent.
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. But 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 inde-
pendence 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 pres-
ent 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
(D
OBJECTIONS ANSWERED.
129
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 opera-
tion. It, nevertheless, under all these disadvantages, impressed
itself upon the understandings, and imbedded itself in the
liearts, of the people, so as no other system of civil liberty has
ever done.
But this view of the two systems compares only the injus-
tice 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 injus-
tice 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 questiors, 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 author-
itative, 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
130
TRIAL BY JURY.
refuse to comply with the exactions of the law. In this man-
ner all unjust laws are established, and made operative against
the rights of the people.
The difference, then, between the two systems is this: Un-
der the one system, a jury, at distant intervals, would (not
enforce any positive injustice, but only) fail of enforcing jus-
tice, in a dark and difficult case, or in consequence of the
parties not having transacted their business in a manner intel-
ligible 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 man-
ner. 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 an-
swer is this :
Legitimate government can be formed only by the voluntary
association of all who contribute to its support. As a volun-
tary 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 par-
ties to the government are not agreed, the objects of the asso-
ciation do not extend to it. *
* This is the principle of all voluntary asssociations whatsoever. No voluntary asso-
ciation 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 associa-
tion are agreed. Government, therefore, must be kept within these limits, or it is no
longer a voluntary association of all who contribute to its support, but a mere tyranny
established by a part over the rest.
All, or nearly all, voluntary associations give to a majority, or to some other portion
of the members less than the whole, the right to use some limited discretion as to the
OBJECTIONS ANSWERED.
131
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 supe-
rior 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 con-
fine itself to the administration of such principles of law as
all the people, who contribute to the support of the govern-
ment, 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 estab-
lishment and maintenance of such a government as they them-
selves 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, lib-
erty, and rights into the hands of men, who, under the pre-
tence 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.
...
UN
means to be used to accomplish the ends in view; but the ends themselves to be accom-
plished 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 main-
taining the government itself.
132
TRIAL BY JURY.
If a government were to be established and supported solely
by that portion of the people who lay claim to superior knowl-
edge, 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 its
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 asso-
ciation, 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 par-
ticular 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 sep-
arate 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
the appeal court) a new trial, to guard against possible mis-
takes. This system, it is assumed, will ascertain the sense of
OBJECTIONS ANSWERED.
133
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
thc law would be uncertain.
If, by this objection, it be meant that the law would be un-
certain 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 thor-
oughly 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 inces-
santly changing legislative enactments, and of countless and
contradictory judicial decisions, with no uniform principle of
reason or justice running through them, are among the blind-
est 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 laby-
rinths 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 pre-
dict. Was there ever such fatuity as that of a nation of men
134
TRIAL BY JURI.
197
1
LI
TY
1
madly bent on building up such labyrinths as these, for no
other purpose thau that of exposiug all their rights of reputa-
tion, property, liberty, and life, to the hazards of being lost in
pen, instead of being content to live in the light of the open
day of their own understandings?
Wlai liouest, unsophisticated man ever found himself in-
volved 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?
Ile would then feel that he could foresee the result. These
plain men are the men who pay the taxes, and support the
government. Why shonld they not have such an administra-
tion 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 ad-
ministration 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
kuows something of the opinions of his neighbors, on matters
of justice. And he would know that mo 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 commu-
mity, could be enforced so as to take from him his reputation,
property, liberty, or life. What greater certainty can mens
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 consti-
tutional, 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 pro-
ceeding, 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 administra-
TOUT
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ID(Il
11cu1
OBJECTIONS ANSWERED,
135
tion 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
laro," (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 coustitutional law, is the only thing that
gives any certainty at all to a very large poriion of our stat-
ritory 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, 11less there were some rule of inter-
pretation for deterınining 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 constitutious theinselves.
Judges could make almost anything they should please out of
them. Hence the necessity of a rule of interpretation. And
this rule is, thui 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 legis-
dators 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 un-
derstand 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
al moment, that, as a general rule, 7:0 ore om know what the
svritten law is, until he knows what it ought to be; that men
are liable to be coustantly misled by the various and conflict-
ing senses of the same words, wless they perceive the true
degal sense in which the words ought to be taken. And this
true legal sense is the sense that is most nearly consistent with
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11
natural law of any that the words can be made to bear, con-
sistently 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 vot the law. Were the words themselves the law, each
siugle written law would be liable to embrace many different
laws, to wit, as many different laws as there were ditferent
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 frec is capable
of some ten or twenty different senses. So that, by changing
the sense of that single word, some ten or twenty ditferent con-
stitutions conld be made out of the same written instrument.
But there are, we will suppose, a thousand other words in the
constitution, cach of which is capable of from two to ten differ-
ent senses. So that, by changing the sense of ouly a single
word at a tine, 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 alter-
ing the location of a single word, might be formed, by con-
struction 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 per-
ception 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 imcertainty 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 miscon-
struing, 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
1
1
OBJECTIONS ANSWERED.
137
the fact should be kept forever in mind, as one of the most
important of all truths: -"It is pleasing to remarli the simi-
Jarity, or, rather, the identity of ihose conclusions which pure,
ubiassed reason, in all ages and nations, seldom fails to draw,
in such juridical inquiries as are not fettered and manucled
by positive institutions."'* In short, the simple fact that the
written law must be interpreted by the natural, is, of itself, it
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 ouly recall them;
and the same word may recall many different ideas. For this
reason, rearly 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.
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 aud cer-
tain to be easily understood ; but its certainty and plainness
are but a poor compensation for its injustice. Doubtless a la w
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
III
* Jones on Bailments, 133.
+ 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 perspicuons diction, to frame a law in
such clear and precise terms, as to secure it from ambiguous expressions, and from all
doubts and criticismis upon its meaning." - kert, 400.
The following extract from a speech of Lord Brougham, in the House of Lords, con-
fesses 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 ir
most cases difficult to be construed,” _Law Reporter, 1848, p. 525.
DO
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reasonably feel compensated for the arbitary 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.*
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 ob-
scurity, 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 re-
quires, 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
* 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 govern-
niental 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 in-
fringe no principle of justice. And they must, of course, be written, because they do
116.exist is fixed principles, or laws in nature.
OBJECTIONS ANSWERED.
139
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 an-
swered 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 agaiust 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 sur-
rendered 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 cau 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 igno-
rance 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 sys-
tem, --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 mathe-
matics 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
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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 hy innovating
upon natural truths and principles, and introducing jargon and
contradiction, in the place of order, analogy, consistency, and
luiformity.
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 patural 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 staud on its own authority, unless they overturn it.
The whole object of legislation, excepting that legislation
which merely makes regulations, and provides instrumentali-
ties 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 laws that 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 Com-
mon 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
OBJECTIONS ANSWERED.
141
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.
CHAPTER VI.
JURIES OF THE PRESENT DAY ILLEGAL.
M
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,* 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.
* On the English Constitution.
JURIES OF THE PRESENT DAY ILLEGAL.
143
1. That all the freemen, or adult male members of the
state, shall be eligible as jurors. *
Any legislation which requires the selection of jurors to be
made from a dess 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 num-
ber 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. Every body 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 + 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
Y
VP-
BIYO
* 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
es 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."
+ 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.
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(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 canuot be judges, nor in-
fants, nor any under the age of twenty-one years, vor infected
persous, nor idiots, nor madmen, nor deaf, nor dumb, nor par-
ties in the pleas, nor men excommunicated by the bishop, nor
criminal persons. * * And those who are not of the Chris-
tian 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 jurisdic-
tion 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
suilors of the freeholders of the hundred. All the tenants with-
in the fees ure 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 excom-
municated persons are exempted from doing suit." - Mirror
of Justices, 50-51.
In the section " Of the Sherif's Turns,” it is said :
“The sheriffs 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
JURIES OF THE PRESENT DAY ILLEGAL.
145
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 uo 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 sheriffs 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 neverthe-
less 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 admin-
istration 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 en-
titled 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 per-
sonally as soldiers, or contributing an equivalent in horses, pro-
visions, or other military supplies. The civil services consisted,
among other things, in serving as jurors (and, it would ap-
pear, as witnesses) in the courts of justice. For these services
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OM
(11
they received 20 compensation other than the rise of their
lands. In this way the state was sustained; and the king
had vo power to levy additional busdens 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 evi-
dence 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 stat-
utes, upon this common law principle, was made in 1285,
seventy years after Magna Carta. It was then enacted as
follows:
“Nor shall any be put in assizes or juries, though they
onght to be taken in their own shire, that hold a tenement of
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, whiose 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.)
JURIES OF THE PRESENT DAY ILLEGAL
147
Other statutes on this subject of the property qualifications
of jurors, are given in the note. *
EUR
S
* In 1483 it was enacted, by & statute entitled “Of what credit and estate those
jurors must be which shall be impanelled in the Sheriff's Turn."
" That no bailiff nor other officer from benceforth return or iinpanel any such persou
in any shire of Englanıb, to be taken or put in or upon any inquiry in any of the said
Turns, but such is be of good naine and fame, and having Jarvis and tenements (fo
frechoke within the same slures, to the yearly vawue of twenty shillingx at the least, or
else lands and tenements hulden by custom of manor, commonly called copy-hold, witii-
in the said shires, to the yearly value of twenty-six shillings eight pence over ald
charges at the least." 1 Richurd III., ch. 4. (1.183.)
in 1186 it was enacted, “That the justices of the peace of every shire of this
realin for the time being may take, by their discretion, an in question whereof every man
shald lave lairds and tenements to the yearly value of furty shillings at the least, to in-
Gure of the concealinents of others,” ša, &C- 3 Henry VII., ch. 1. (1486.)
A statute passed in 1494, in regard to jurors in the city of Lonulon, enacts:
“ That no person nor persons hereafter be imprnelled, summoned, or sworn in any
jirry or inquest in courts within the same city, (of London,) except he be of lands, ten-
ements, or goods and chattels, to the value of forty marks; * and that no person or per-
sons hereafter be impanelled, summoned, nor sworn in any jury or inquest in any court
within the said eity, for lands or tenements, or action personal, wherein the debt or
damge amounteth to the sun of forty marks, or above, except he be in lands, tenen
nents, goods, or chattels, tu the relue of one hundred marks." -- 11 Hesry VII., ch. 21.
K 1494.)
The statute 4 Henry VIII., ch. 3, soc. 4, (15123 roquires 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
Sorthampton Særry, and Susser, to innpanel and summons twenty-four lawful men of
such, inhabiting within the precinct of his or their turns, as (we suit to the same turn,
whereof every one hath lands or frechodd to the yearly value of ten shillings, or copy-
shold lands to the yearly value of thirtcete shillings fuair peace, 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. 26. (1494.)
This statute was continued in force by 19 Henry VII., ch. 16. (1503.)
In 1531 it was enacted, “That every person or persons, being the king's natural
subject born, which either by the name of citizen, or of a freeman, or any other name,
doth enjoy and use the liberties and privileges of any city, borough, or town corpo.
rate, where he dwelleth and maketh his abode, being worth in movable goods and sub-
stance to the clear value of forty pounds, be henceforth adinitto in trials of murders
and felonies in every sessions and gaol delivery, to be kept and hokden in and for the
Ziberty of such cities, boroughs, and towus corporate, albeit they have no freehold; any
act, statule, use, custom, or ordinance to the contrary bereof notwithstanding." — 23
Henry VIII., ch. 13. (1581.)
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 inajesty's courts of King's Bench,
Common Pleas, and the Exehequer, or before justices of assize, by the laws of this
realn now in force, vught to have estate of freehold in lands, tenements, or heredita-
anents, of the clear yearly value of fireg shillinys, 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 fuar poands at the least." -- 27 Elizabeth, ch. 6. (1585.)
In 1664-5 it was enacted, “ That all jurors (other than strangers upon trials per mer
dictutem linguc) who are to be returned for the trials of issues joined in any of (his)
* A mark was thirteen shillings and four pence.
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?
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 arbi-
trary legislation. In other words, the government has usurped
the anthority 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 gov-
erument 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
po 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 abso-
lute authority over the jury box — that is, over the right of
the people to sit in juries --- has been usurped by the govern-
he
majesty's courts of king's bench, common pleas, or the exchequer, or before justices of
assize, or nisi prius, oyer and teriminer, good delivery, or general or quarter sessions
'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 thein, within the same
county, twenty pounds by the year, at least, above reprises, in their own or their wives'
right, of freehold lands, or of ancient demesne, or of rents in fee, fee-tail, or for life.
And that in every county within the dominion of Wales every such juror shall then
have, within the same, cight poivri's by the year, at the least, above reprises, in manner
aforesaid. All which persons having such estate as aforesaid are hereby enabled and
made liable to be returned and serve as jurors for the trial of issues before the justices
aforesaid, any law or statute to the contrary in any wise notwithstanding.” — 16 and
17 Charles II., ch. 3. (1604-5.)
By a statute passed in 1692, jurors in England are to have landed estates of the
value of ten pounds a year; and jurors in Wales to have similar estates of the realm of
six pounds a year. - 4 and 5 William and Mary, ch. 24, sec. 14. (1692.)
By the same statute, (sec. 18,) persons may be returned to serve upon the tales in
any county of England, who shall have, within the same county, five pounds by the year,
above reprises, in the manner aforesaid.
By St. 3 George II., ch. 25, sec. 19, 20, no one is to be a juror in London, who shall
not be « an householder within the said city, and have lands, tenements, or personal
estate, to the value of one hundred pounds."
By another statute, applicable only to the county of Middlesex, it is enacted,
" That all leaseholders, upon leases where the improved rents or value shall amount
to fifty pounds or upwards per annum, over and above all ground rents or other reserva
tions payable by virtue of the said leases, shall be liable and obliged to serve upon
juries when they shall be legally sumunoned for that purpose," — 4 George II.,
ch. 7, sec. 3. (1731.)
JURIES OF THE PRESENT DAY ILLEGAL.
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ment; 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 Euglaud; and different in the city of London, and in the
county of Middlesex, froin 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
inpanelled in criminal cases, as the following statutes show.
“Be it also ordained and enacted by the same authority, that
all pavels hereafter to be returned, which be pot 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 in-
quire for the king, shall hereafter be reformed by additions and
taking out of names of persons by discretion of the sumne jus-
tices before whom such panel shall be returned ; and the same
justices shall hereafter command the sheriff, or kis 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 good
and lawful. This act to endure only to the next Parliament.”
--- 11 Henry VII., ch. 24, sec. 6. (1195.)
This act was continued in force by 1 Henry VIII., ch. 11,
(1509,) to the end of the then next Parliament.
It was reënacted, and made perpetual, by 3 Henry VIII.,
ch. 12. (1511.)
These acts gave unlimited anthority 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 prop-
erty, it can select them on any other ground whatever.
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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 governinent
chose to rely for the maintenance of its power, and which it
therefore saw fit to select as being the most reliable instru-
ments for its purposes of oppression towards the rest. And
the selection was made on the same principle, on which•tyran-
nical 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.*
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 govern-
ment. 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 is 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
0
* 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 incon-
sistent 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.
JURIES OF THE PRESENT DAY ILLEGAL.
151
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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 prin-
ciples 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 free-
holders 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 rights 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
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land was an incident to his civil freedom; not his civil freedoin
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 abswdity.
As the tenures of lauds 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
qualificatious 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 bis civil freedom, or his
being a member of the state, or body politic. But the principle
of the present English statutes is, that a man shall have a right
to sit in juries because he owus 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 Eng-
lishman, 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 Euglishman 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.* 2. Two knights,
or other freeholders, were appointed, (probably by the sheriff,)
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* Lingard says : « These compurgators or jurors * * were sometimes * drawn
by lot.” - 1 Lingard's History of England, p. 300.
JURIES OF THE PRESENT DAY ILLEGAL.
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from
to select the jurors. 3. By the sheriff, bailiff, or other person,
who held the court, or rather acted as its ministerial oflicer.
Probably the latter mode may have been the most common,
although there may be some doubt on this point.
At the common law the sheriffs, bailiffs, and other officers
were chosen by the people, instead of being appointed by the
king. (1 Blackstone, 413. Introduction to Gilbert's History of
the Common Pleus, p. 2, note, and p. 4.) This has been shown
in a former chapter.* 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 oflicer who was dependent on the government.
But in the year 1315, one hundred years after Magna Carta,
the choice of sheriffs was taken from the people, and it was
enacted :
" That the sheriffs shall benceforth be assigned by the chan-
cellor, 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 pleas-
ure. Their appointment of sheriff's 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.
Chord
* Chapter 4, p. 120, note.
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TRIAL BY JURY.
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2T
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 re-
quired to have the qualifications of “electors."
In Virginia, they are required to have a property qualifica-
tion of one hundred dollars.
In Maine, Massachusetts, Vermont, Connecticut, New York,
Ohio, Indiana, Michigan, and Wisconsin, certain civil author-
ities of the towns, cities, and counties are authorized to select,
once in one, two, or three years, a certain number of the peo-
ple -- 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 althorities
of the town.
In Massachusetts, the inhabitants, by vote in town meeting,
can strike out any names inserted by the authorities, and in-
sert 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 free-
holders, and as are well qualified to act as jurors, &c.; thus
giving the courts power to pack the juries." - (Revised Stat-
utes, 147.)
)
JURIES OF THE PRESENT DAY ILLEGAL.
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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
sheriffs are appointed by the governor of the state, and that is
enongh to make the juries illegal. Probably the same objec-
tion 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 ob-
jection 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 entided 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 ilesignated 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
rule 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.
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TRIAL BY JURY.
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 --- incom-
parably 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 hands
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 legisla-
tures 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 writ-
ten 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 kuown 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 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."
D
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 pro-
vision guaranteeing the trial by jury, of which it is really a
part. Consequently, without the observance of this prohibi-
tion, 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. *
* 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 clected 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 mayis-
trates, bearing the names of aldermen, sheriffs, stewards, coroners and bailiffs, were
chosen by the people; and yet it appears, from Magna Carta itself, that some of the
kiny's officers (of whom he must have had many) were also called “sheriffs, consta -
bles, coroners, and bailiffs.”
But Magna Carta, in various instances, speaks of sheriffs and bailiffs as “our sheriffs
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
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But previous to Magna Carta, the kings had adopted the
practice of sending officers of their own appointment, called
juistices, 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
disseisiu, mort de ancestor, and darrein presentment;" * 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 coronæ nostræ.” (No sheriff, consta-
ble, 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 pro-
hibition 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
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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 maintained its popular eharacter. 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, conse-
quently 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 dues in Magne
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 iu the
following paragraph from Dunham, which may be given as an illustration of that which
is exhibited by others on the saine points.
“Subordinate to the caldormen were the gerefas, the sheriffs, or reeves, of whom there
were several in Miety shire, or county. There was one in every borvugh, 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." --
Dunham's Middle Ages, sec. 2, B. 2, ch. 1. 57 Lardner's Cob. O'yc., p. 41.
The confusion of duties attributed to these officers indicates clearly enough that differ-
ent 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.
* Darrein presentment 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.
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ILLEGAL J [ DC .
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could be changed, and the thing retained; and thus the pro-
hibition be evaded. The prohibition applies (as will pres-
ently be seen to all oflicers of the king whatsoever; and it
sets up a distinction between oflicers of the king'; (“our bail-
iffs,") and officers chosen by the people.
The prohibition upon the king's justices sitting in criminal
trials, is included in the words si 20% alii buliri nostri,'' (or
other our bailiff's.) The word bailiff' was auciently 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 gener-
ally, if not universally, siguities 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, " Brylife is a French word, and signifies an offi-
cer concerned in the administration of justice of a certain prov-
ince; and because a sheriff hath an office concerning the
administration of justice within his county, or bajliwick, there-
fore he called his county buliva sut, (his bailiwick.)
“I have heard great question made what the true exposition
of this word bulirus is. In the statute of Magua (arta, cap.
28, the letter of that statute is, nullus bulirus de catero ponat
aliquem ad legen mumifcstum nec ad juramentum simplici
loquela sua sine testibus fidelibus ad hoc inductis.” (No bailifi
from henceforth shall put any que to his open law, nor to an
path (of self-exculpation) upon his own simple accusation, or
complaint, without faithful witnesses brought in for the same.)
si 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
plens, king's bench, &c., for they must bring vith them fidcles
ttstcs, futhful witnesses,) c., and so huth been the usu gre 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 presunne, support the opinion expressed in this quota-
tion.
Coke also, in another place, under the head of the chapter
L'S
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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 bulivus
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 under-
stood 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-exculpatiou,) without the king's command,*
por 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 balivns, in this
act, is comprehended every justice, minister of the king, stew-
ard, and bailitl.” — 2 Inst., 44.
Coke also, in his commentary upon this very chapter of
Magna Carta, that provides that "no sheriff, constable, coroner,
or other arer 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 compre-
hended all judges or justices of any courts of justice.” And
he cites a decision in the king's bench, in the 17th year of Ed-
ward 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
TU
TARMO
* 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 corrmand.” If it oould be done with the king's command, the king would be
invested with arbitrary power in the matter.
ILLEGAL JUDGES
161
of Magna Carta, and pretends that after all it only required
that felonies should be tried before the king's justices, on
account of their superior learning; and that it permitted all
lesser offences 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 defi-
nition 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 dis-
cretion 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. *
* 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, no to appoint them with ury view to permanency, but only to
give then special commissions for trying a sirgle 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 undvubtedly 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 adıninistration, 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 cuminand the military levies, and
to act as conservators of the peace in the king's name. * . The justices who were
* 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
divil suits in which peers were parties, and possibly in the courts of ancient demesne.
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TRIAL BY JURY.
YTY
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
11; and for this chapter he could invent, or fabricate, (for it is
VI
1
vigned in the name of the sovereign, and whose powers were revocable at his pleas-
1114, ferired their authority merely from their grant. . . Some of those judges were
maalir deputed for the purpose of relieving the king from the burden of his judicial
funtione .. The number as well is the variety of names of the justices appear.
muy in the early chirographs of Concords, leave reason for doubting whether, anterior
to the reign of Henry III., (1210 to 1272,) a court, whise members were changing at
iskat PT074 session, can be sul to huyor barn permanently constitutorl. It spans more pol-
said thit the individuals who compused the tribunul urre selected as suited the pleasure of the
inicraign, ond the contenirnce of the clerks anal burons; and the history of our legal
ministration will be much simplified, if we consider all those couts which were after-
Portals denominated the Exchequer, the Kings Bench, the Common Pleas, and the
lisateary, was bring originally connettres, selected by the hizo whon occasion rejuired, out
of it lirine bordy, for the despatch of peculiar branches of business, and which committees,
by slouporn, 11552ned an independent and permanent cristener. .. Justices itinerant,
who, despatched throughout the land, decided the 'Pleas of the Crown,' may be
cobscurely traced in the reign of the Conqueror; nut, perhaps, printed with much regu-
larity, but dospatihed win juruliar occasions and emergencies.”—1 Palgrave's Rise and
Progress, &c., p. 289 to 233.
The following statute, passed in 13.34, (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, (espec-
ially to sheriffs, -- his sheritis, no doubt,) to try particular cases :
“ Because that the people of the realm have suffered many evils and mischiefs, for
that sheriils 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
ut brouicht before the kine's justices to have their deliverance, it is
accorded and established, for to eschew all such evils and mischiefs, that such commis-
sions iind writs before this time made shall be utterly repealed, and that from hence-
forth 10 such commissions shall be granted.” -- St. 28 El ward III., ch. 9, (1354.)
How silly to suppose that the illegality of these commissions to try criminal cases,
could have been avoided by simply granting them to persons under the title of “jus-
tices," 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 “sheritf's."
Millar says: “When the king's beneh came to have its usual residence at Westmin-
ster, the sovereign wis induced to grunt special commissions, for trying particular criines,
in such parts of the country as were found most convenient; and this practice was
gradually modelled into a regular appointment of certain commissioners, empowered, at
stated seasons, tu perfuru circuits over the kingdom, and to hold courts in particular
towns, for the trial of all sorts of crimes. These judges of the circuit, howerir, never
obtained an vrlin:ry jurisiluction, but continuerl, on puery occasion, to derive their authority
from two special commissions : that of oyer and terminer, by which they were a pointed to
hear and determine all treasons, felonies and misdemeanors, within certain districts;
and that of your delivery, by which they were directed to try every prisoner confined in
the gaols of the several towns filling under their inspection." - Millar's Hist. View of
Eng. (or., vol. 2, ch. 7, p. 282.
The following extract from Gilbert shows to what lengths of usurpation the kings
BIO
ILLEGAL JUDGES.
163
a sheer fabrication, no interpretation better suited to his pur-
pose 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 brow beat 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
USU
LON
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 sev-
eral 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 suiturs of the county court," (that is,
without a jury;) and these cominissions were after the Norman form, by which (according
to which) all power of judicature was immediately derived from the kiny." _Gilbert on the
Court of Chancery, p. 1.
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 cases, 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.
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TRIAL BY JURY.
fine and amercement, and that fines might be imposed by the
king, and that juries were required only for fixing amerce-
ments,
These are some of the innumerable frauds by which the
English people have been cheated out of the trial by jury.
E'c uno disce omnes. From one judge learn the characters
of all. *
I give in the note additional and abundant authorities for
Ons
VNS
* The opinions and decisions of judyes and courts are undeserving of the least reliance,
(beyond the intrinsic merit of the arguments offered to sustain them,) and are unwor.
thy even to be quoted as evidence of the law, when those opinions or decisions are fuvor.
able 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 admis-
sions of all men, the immocent and the criminal alike, when made against their own inter-
ests, 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 deter-
mine that certain statutes, in restraint of individual liberty, are within the constitu-
tional 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 pre-
sume) 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 cominon law, which the judges in Eng-
land have been sworn to preserve, or with the written constitutions, (recognizing men's
natural rights,) which the American jud yes 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 impeach-
able 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 crea-
tures 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.
ILLEGAL JUDGES.
165
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.*
The foregoing interpretation of the chapter of Magna Carta
now under discussion, is corroborated by another chapter of
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1
* Coke, speaking of the word bailiffs, as used in the statute of 1 Westminster, ch. 35,
(1273,) says :
"Here biziliffs are taken for the judges of the court, as manifestly appeareth hereby.”
-- 2 Int., 229.
Coko also says, “It is a maxim in law, aliquis non debet esse judex in propria causa, (no
one ought to be julge in his own cause ;) and therefore a fine levied before the bay.
lifes of Salip was reversed, because one of the baylifes was party to the fine, quia non
pitest esse puler 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 Lon-
don (undoubtedly chosen by the people, or at any rate not appointed by the king) are
manifestly spoken of as julges, or magistrates, holding jury trials, as follows :
Ch. II. “It is provided, also, that if any man lease his tenement in the city of Lon-
don, for # term of years, and he lo whom the freehold belongeth causeth himself to
pleuled by collusion, and maketh default aiter default, or cometh into court and
giveth it 11, 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
mny inquire by a good injust, (jury,) in the presence of the termor and the demandant,
whether the demandant moved his plex upon good right that he had, or by collusion,
or fraud, tu 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 forth with; 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 judyment for the demandant shall be suspended until the term be
expired." - 0 Edward I., ch. 11, (1278.)
Coke, in his commentary on this chapter, calls this court of “the mayor and bailiffs"
of London, “ the ciruert of the husting, the greatest and highest court in London;" and adds,
6 other cities have the like court, and so called, as York, Lincoln, Winchester, &c.
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, suoh 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 recog.
nize the fact that “the mayor and bailiffs of London" are judicial officers holding courts
in London.
“ It is provided, also, that if a man, iinpleaded 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
bench, and another writ to the mayır and bailiffs of London, that they shall surcease (sus-
pend proceedings) in the matter thut 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 bai
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 Eduard I., ch. 12, (1278.)
Coke, in bis 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 bail.
166
TRIAL BY JURY.
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 dis-
seisin, mort de ancestor, and darrein presentmeut;' but makes
no mention whatever of their holding jury trials in criminal
cases, - an omission wholly imlikely to be made, if it were
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iff$,”) “ where foreign voucher is made, as to Chester, Durham, Salop,” &c. -- 2 Inst.,
325-7.
BAILIE. - In Scotch law, a municipal magistrate, corresponding with the English
alderman.* -- Burrill's Law Dictionary.
BAILIFFE. -- Buillif. Fr. A bailiff': a ministerial officer with duties similar to
those of a sheritt... The judge of a court. A municipal magistrate, &c. -- Bur-
rill'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 magis-
trates of counties, or shires, such as the alderman, the reeve, or sheriff, and also of infe-
rior jurisdictions, such as hundreds and wapentakes. - Spelman, C. Balirus; 1 Bl.
Com., 344. Spe Bailli, Ballirus. The Latin ballirus oceurs, 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 bullivus, to denote the extent of territory com-
prised 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. Sre Ballinn. The
office of bailiff was at first strictly, though not exlusively, a judicial one. In France, the
word bad the sense of what spelman calls justitia tutuluris. Ballirus oceurs frequently
in the Regiam Majestatem, in the sense of a julge. - Spelman. In its sense of a dep-
uty, it was formerly applied, in England, to those officers who, by virtue of a deputa-
tion, 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 minis-
terial functions. With the disuse of private and local jurisdictions, the meaning of the
term became commonly restricted to such persons ils were deputed by the sheriil 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., Præfectus provinciæ,) signifies an
officer appointed for the aulministration of justice within a certain district. The office,
as well as the name, appears to have been derived from the French," &c. --- Brouster's
Encycloperlin.
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
AU
* Aliterman was a title anciently given to various judicial officers, as the Alderman of all Eng-
land, Alilerman of the King, Alderman of the County, Alderman of the City or Borough, alder-
man of the lluured or Wapeutalic. These were all judicial officers. See Law Dictionaries.
ILLEGAL JUDGES.
167
designed they should attend the trial of such causes. Besides,
the chapter here spokeu of (in John's charter) does not allow
these justices to sit alone in jury trials, even in civil actions;
but provides that four knights, chosen by the county, shall sit
.
neighboring feudal superiors. By an edict of Phillip Augustus, in the year 1190, those
bailiff's were appointed in all the principal towns of the kingdom.” - Millar's Hist.
View of the Eng. (10r., vol. ii., ch. 3, p. 126.
“ Ballittrice. - Magistrates who formerly administered justice in the parliaments
or courts of France, answering to the English sheriils, as mentioned by Bracton." -
Bouvier's Low Diit.
“There be several officers called bailiffs, whose offices and employments seen quite
different from each other... The chief magistrate, in divers ancient corporations,
are called bulijs, as in Ipswich, Yarmouth, Colchester, &c. There are, likewise, offi-
cers of the forest, who are termed bailills." - Bacon's Abridgment, 498-9.
“ BAILIFF signifies a keeper or superintendent, and is directly derived from the French
word builli, which appears to come from the word balivias, and that froin bagalias, a Latin
word signifying generally a governor, tutur, or superintendent. . . The French
word bulli is thus explained by Richelet, ( Dictionaire, &c.:) Bailli. -- He who in a prop-
ince has the superintendence of justice, who is the ordinary judge of the nobles, who is their
head for the ban and arriere ban,* 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 dilering as to the nature of their employments, seem to have some kind
of superintendence intrusted to them by their superior.” - Political Dictionary.
“ BAILIFF, bulirus. From the French word bayliff', that is, præfectus provincie, 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 wire serral provinces to which justice was administered by certain officers called bailiffs;
and in England we have several counties in which justico hath been, and still is, in
small suits, administered to the inhabitants by the officer whom we now call sheriff, or
uiscount; (one of which names descends from the Saxons, the other from the Normans.)
And, though the sheriff is not called buitiff, 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
bulliur moi, &c.; (the within named A. B. is not found in my bailiwick, &c.) And in
the statute of Magva Carta, ch. 28, and 14 ED. 3, ch. 9, the word bruilif seeins to com-
prise as well sheriils, is bailiffs of hundreds.
“ Builies, 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 offi-
cers of every hundred, which were the bailiffs. And it appears by Bracton, (lib. 3, tract.
2, ch. 34,) that builif's 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
*" Ban and arriere ban, a prelamation, 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.
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TRIAL BY JURY.
with them to keep them honest. When the king's justices
were kuown to be so corrupt and scrvile that the people would
not even trust them to sit alone, in jury trials, in civil actions,
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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 wwwns are called
bailiffs, and sometimes the persons to whom the king's castles are committed are
termed bailiffs, as the bailiff of Dover Castle, &c.
“ of the ordinary bailiffs there are several sorts, viz., bailiffs of liberties; sheriff's'
bailiff's'; 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 sunimon those courts, and execute the process thereof...
“ besides these, there are also bailiffs of the forest..." - Jacob's Law Dict. Tom-
lin's do.
“ BaliwICK, ballivu, -- 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 builiff of Westminster.” --
Jacob's Law Dict. Tomlin's do.
“I balill of a Liit, Court-buron, Manor, Baliras Letir, Baronis, Munerii. - lle is one
that is appointed by the lord, or his steward, within every manor, to do such offices as
appertain thereuntı, as to summon the court, warn the tenants and resiants; also, to
summon the Leet and llomage, levy fines, and make distresses, &c., of which you may
read at large in kitchen's Court-leet und Court-baron." -1 Luw Dictionary, anonymous,
(in Suffolk Low Library.)
“ Bunnitt- In Eugland an officer appointed by the sheriff. Bailiffs are either
special, and appointed, for their adroitness, to arrest persons; or bailiffs of hundreds,
who collect times, summon juries, attend the assizes, and execute writs and processes.
The sheriff' in England is the king's builiff. ..
“ The office of bailiff formerly was high and honorable in England, and otficers under that
title on the continent are still invested with important functions.” — Webster.
“ BAILLI, (sicotlandi.) -- An alderman; a magistrate who is second in rank in a royal
burgh.” – Worcester.
“ Brili, or Bailifi. -- (Sorte d'officier de justice.) A bailiff ; a sort of magistrate.”
- Buyer's French Dict.
“ By some opinions, a bailiff, in Magna Carta, ch. 28, signifies any judge.” – Cunning-
ham's Law Dirit.
“ Bauiff. — In the court of the Greek emperors there was a grand bajulos, first tutor
of the emperor's children. The superintendent of foreign inerchants seems also to have
been called bajulus; 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 bulliri of the knights of St. John, which
constitute its supreme council. In France, the royal bailills were commanders of the
militia, administrators or stewards of the domains, and julges of their districts. In the
course of time, only the first duty remained to the bailiff; bence he was bailli d'opie,
and laws were administered in his name by a lawyer, is his deputy, lieutenant de robe. The
seigniories, with which high courts were connected, employed bailiffs, who thus consti-
ILLEGAL JUDGES.
169
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
actious, 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.*
tuted, 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 Eng.
land with William 1. The counties were also called bailiwicks, (balline,) while the sub-
divisions 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 some of 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 juris.
diction of the city, in the court of old Bailey, where there aro, 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.” - En-
cyclopedia Americana.
* 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 wit-
nesses 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 are to 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.*
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,"
&o. The prohibition, therefore, applies to all “ bailiffs," - to those chosen by the poo-
* 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 rečstablished.
170
TRIAL BY JURY.
But what would appear to make this matter absolutely cer-
tain 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 vugatory
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 offi-
cers, 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
ple, 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 fue-
quently, 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 mayistrates
acted in the triple character of judge, jury and witnesses, in the same trial; and that,
therefore, in such cases, they needed to be prohibited from condemning a inan on their
own accusation or testimony alone. But such a provision would have been unneces-
sary 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 rest-
ing wholly with the juries; second, because if bailiffs or magistrates could try and con-
demn a man, without a jury, the prohibition upon their doing so upon their own accusa-
tion 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 corrobora-
tive of his own testimony. And thus the prohibition would be defeated in fact, though
observed in form.
ILLEGAL JUDGES.
171
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 responsi-
ble 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. *
* 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.
TIIE FREE ADMINISTRATION OF JUSTICE.
ON
Willi
The free administration of justice was a principle of the
common law; and it must necessarily be a part of every sys-
tem 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 princi-
ple 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 plaintiflor 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.* 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 attend
1116
1
MWh
* 2 Sullivan Lectures, 234-5. 3 Blackstone, 274-5, 376. Sullivan says that both
plaintiffs and defendants were liable to amercement. Blackstone speaks of plaintiffs
being liable, without saying whether defendants were so or not. What the rule really
was I do not know. There would seem to be some reason in allowing defendants to
defend themselves, at their own charges, without exposing themselves to amercement in
cause of failure.
THE FREE ADMINISTRATION OF JUSTICE.
173
1
2
the 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
transactiens. Most contracts in regard to lands were made
at the courts, in the presence of the freeholders there assem-
bled. *
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.)
This principle of the free administration of justice connects
itself necessarily with the trial by jury, because a jury could not
rightfully give judgment ugainst 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 adminis-
tration of justice from another necessity, viz., that of prevent-
ing 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
* When any other witnesses than freeholders were required in a civil suit, I am not
aware of the manner in which their attendance was procred; 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.
+“ All claims were establishod 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 sup-
ported, was called the fore-oath, or • Præjuramentum,' and it was the foundation of his
suit. One of the cases which did not require this initiatory confirmation, was when
battle 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., 11to
174
TRIAL BY JURY.
OS
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 exact justice between them
than the injured individual himself would do. The govern-
ment, 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 erpense to him. And so long
as government refuses to do this, juries, if they knew their
duties, would protect a man in defending his own rights.
Under the prevailing system, probably one half of the com-
munity 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 pay-
ment of debts, -- and being unable to pay the expenses of civil
suits, they have no alternative buit submission to many acts
of injustice, against which the government is bound either to
protect them, free of expense, or allow them to protect them-
selves.
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. *
11
* 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,
THE FREE ADMINISTRATION OF JUSTICE.
175
.
VC
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 govern-
ment, 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 con-
tract, 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 rolun-
tarily 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 sufler 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 them-
selves can know, to be deciding merely the comparative length
of the parties' purses, rather than the intrinsie strength of their
respective rights. Jurors ought to refuse to decide a cause at
all, except upon the assurance that all the evidence, necessary
i
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 gen-
erally understood. As a mere matter of economy, too, it would be wise for the gov-
ernment to pay them, rather than they should not be einployed; 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.
176
TRIAL BY JURY.
1
MI
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 indispensa-
ble to the maintenance of right between man and man; it
would also proinote simplicity and stability in the laws. The
mania ſor legislation would be, in an important degree, re-
strained, 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
lucrentur, sed ut vexant alios." (Many litigate in conrt, not that
they may gain anything, but that they may harass others.)
Many men, from motives of revenge and oppression, are wil-
ling 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 an-
other 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 scan-
dal and an outrage, that government should suffer itself to be
made an instrument, in this way, for the gratification of pri-
vate 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
UU
ny
III
THE FREE ADMINISTRATION OF JUSTICE.
177
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 man-
rer as to make courts of justice a very unprofitable place for a
man to go to seek revenge.
In estimating the evils of this kind, resulting from the pres-
ent 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.
CHAPTER IX.
THE CRIMINAL INTENT.
t
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 crim-
inal.
This principle is clear, because the question for a jury to
determine is, whether the accused be guilty, or not guilty.
Guilt is 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 com-
mitted, 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 demand-
ing or justifying punishment. There can be no political neces-
sity for punishing, to warn against similar acts in future,
because, if one man have injured another, however uninten-
tionally, he is liable, and justly liable, to a civil suit for dam-
ages; and in this suit he will be compelled to make compen-
sation 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
THE CRIMINAL INTENT.
179
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1
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 fac-
tion, 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 ver-
dict they are to pronounce. The “issile " 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 intrin-
sically 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 stat-
ute,” out of acts that are not criminal by nature, must neces-
sarily 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 con-
viction of individuals for acts innocent in themselves, and for-
bidden only by some tyrannical statute, and the commission
12
180
TRIAL BY JURY.
yn
LIC
1.
TY
V
1
LIL
of which therefore indicates no criminal intent, is very appar-
ent.
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 mulice uforethought,” 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
suutute in such case made and provided." This form of in-
dictment proceeds plainly upon the assumption that the gov-
erument is absolute, and that it has authority to prohibit
any act it pleases, however innocent in its nature the act
my be. Judges have been driven to the alternative of
either sanctioning this new form of indictment, (wbich they
never had any constitutional right to sanction,) or of seeing
the authority of many of the statutes of the government fall
w the ground; because the acts forbidden by the statutes were
so plainly innocent in their nature, that even the government
itsell' had not the face 10 allege that the commission of them
implicid 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 weessity of a blind, unreasoning submission to the arbi-
trary 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 lona cecuses no one.” As if it were in the nature of things
possible that there could be an excuse more absolute and com-
plete. What else than ignorance of the law is it that excuises
persons under the years of discretion, and men of imbecile
minds? What else than ignorance of the law is it that
excuses judges theniselves 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
II
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THE CRIMINAL INTENT.
181
de
allowance which the law makes for their ignorance, are con-
tinually 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 indis-
pensable one to the maintenance of absolute power in the gov-
ernment. 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 govern-
ment, 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 liber-
ties of the people, as that the individual himself, who trans-
gressed 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 pre-
vails, '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 Mag-
azine, (London,) vol. 27, p. 97.
182
TRIAL BY JURY.
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 inca-
pable of being ascertained, and that therefore there is a neces-
sity for punishing the ignorant and the knowing - that is, the
imocent 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
pecessarily 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 men-
tal capacity of individuals; as, for example, to determine
whether they are of sufficient mental capacity to make rea-
sonable contracts; whether they are lunatic; whether they
are compotes mentis, “of sound mind and memory,” &c. &c.
And there is obviously no more difficulty in a jury's determin-
ing 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 judg-
ments, as to whether the act were intrinsically criminal. If
their own judgments told them the act was intrinsically and
clearly criminal, they would naturally and reasonably infer
that the accused also understood that it was intrinsically crim-
inal, (and consequently illegal,) unless it should appear that he
was either below themselves in the scale of intellect, or had
II
THE CRIMINAL INTENT.
183
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 otlenders, 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 dis-
cretion and compos mentis, is bound to know the law, and pre-
sumed to do so. Ignorantiu corum, que 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 Siudent, 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, there-
fore, 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 reässerting the doc-
trine, 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 individ-
184
TRIAL BY JURY.
1
nal acquires a knowledge of crimes, as he does of arithmetic,
at an earlier age than others do. And to apply the same pre-
sumption 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.*
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, espec-
ially 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 neces-
sity 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 consey rights to
each other. Besides, the capacity to make reasonable con-
-
* This presumption, founded upon age alone, is as absurd in civil watters as in crim-
inal. 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 bind-
ing contracts, in any and every case whatever, depends wholly upon his mental capac-
ity 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 froin 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 men-
tioned. 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 hiinself. 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 rea-
sonable 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.
TAE CRIMINAL INTENT.
185
tracts, 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 justifica-
tion 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 extraor-
dinaries of any one. It requires only thoughtfulness and a
good conscience. It requires only that a man fairly and prop-
erly 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 natu-
ral 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 cru-
elty. The mass of mankind can give but little of their atten-
tion 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 con-
scientious judgment as it is common for mankind 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 con-
trary 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 govern-
NI
186
TRIAL BY JURY.
ment 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 crim-
inal law, requires only that those acts which are understood by
mankind at large to be intrinsically criminal, should be pun-
ished 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 suffi-
cient mental capacity to understand that their acts are crim-
inal, 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 "every one 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 con-
sistent 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-
THE CRIMINAL INTENT.
187
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.*
1
* 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 hun-
dred years, has admitted the right of a jury to judge of the jiastice 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 evinco
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 so, - 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 statuto
in such case made and provided ;” in other words, contrary to the orders of the gove
ernment.
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 despot-
ism on the part of the government.
But there is still another doctrine that extensively, and perhaps most generally, pre-
vails 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 suflicient that they
be simply told by the judge that any act whatever, charged in an indictinent, is in viola-
tion 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;* 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 pas-
sions and wishes.” - 3 Term Rep., 428, note.
What is this but saying that the people, who are supposed to be represented in juries,
and who institute and support the government, (of course for the protection of their
own rights and liberties, as they understand them, for plainly no other motive can be
attributed to them,) are really tho slaves of a despotic power, whose arbitrary com-
mands 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
* This declaration of Mansfield, that juries in England “are not sworn to decide the law” in
criminal cases, is a plain falsehood. They are sworn to try the whole case at issue between the
king and the prisoner, and that includes the law as well as the fact. See juror's oath, page 86.
188
TRIAL BY JURY.
law, neither the accused nor the people at large can be presumed to know it. Hence, it
follows that one principle of the true trial by jury is, that no accused person shall be held
responsible for any other or greater knowledge of the law than is common to his political
equals, who will generally be men of nearly similar condition in life. But the doctrine
of Mansfield is, that the body of the people, from whom jurors are taken, are responsible
to a law, which it is agreed they cannot understand. What is this but despotism ? - and
not merely despotism, but insult and oppression of the intensest kind ?
This doctrine of Mansfield is the doctrine of all who deny the right of juries to judge
of the law, although all may not choose to express it in so blunt and unambiguous
terms. But the doctrine evidently admits of no other interpretation or defence.
CHAPTER X.
MORAL CONSIDERATIONS FOR JURORS.
11
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 fel-
lows in giving judgment. But no man can rightfully do this,
unless he hold in his own hand alone a veto upon any judg-
ment 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 legisiature 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 gov-
ernments 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
190
TRIAL BY JURY.
verdict. It is absurd to say that they have no moral respon-
sibility 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 trans-
gression 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 responsi-
bility for a punishment inflicted 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 responsi-
bility 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 responsi-
bility 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 sen-
tence.
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 injus-
tice which they have reason to believe will be done by the
government on the authority of their verdict.
CO
MORAL CONSIDERATIONS FOR JURORS.
191
11 YT
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 evi-
dence 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.
1
CHAPTER XI.
AUTHORITY OF MAGNA CARTA.
CD
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. Proba-
bly no people were ever more united and resolute in demand-
ing from their king a definite and unambiguous acknowledg-
ment 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 Liber-
ties 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 author-
ity 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.
AUTHORITY OF MAGNA CARTA.
193
0
In the course of two hundred years the charter was con-
firmed by Henry and his successors more than thirty times.
And although they were guilty of numerous and almost con-
tinual 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," *) by the exclusion of all others than such freehold-
ers 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.+
The terms and the formalities of some of these “confirma-
tions” 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 in violate, as I
am a man, as I am a Christian, as I am a knight, and as I am
a king crowued and anointed.'” - Hume, ch. 12. See also
* Mackintosh's Hist. of Eng., ch. 3. 45 Lardner's Cab. Cyc., 354.
t“ 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.
194
TRIAL BT JURY.
11
Blackstone's Introd. to the Charters. Black. Law Tracts,
Oxford ed, p. 332. Mackintosh's Hist. of Eng. ch. 3.
Lardner's Cab. Cyc., vol. 45, p. 233-4.
The following is the form of “the sentence of excommuni-
cation” referred to by Hume:
“The Sentence of Curse, Given by the Bishops, against
the Breukers 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 Gruce of God King of England, and the Lords
Richard, Earl of Cornwall, his brother, Roger (Bigot) Earl of
Norfolk and Suffolk, marslial 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, E. 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, apparelled in Pontif-
icals, 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 Char-
ter 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 glo-
rious 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 con-
tained in the Charters of the Common Liberties, and of the
Forest, conceded by our Lord the King, to Archbishops, Bish-
ops, 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 Cus-
toms, or keep them when they be brought in, against the said
AUTHORITY OF MAGNA CARTA.
195
Liberties, or any of them, the Writers and Counsellors of said
statutes, and the Executors of them, and all those that shall
presune to judge according to them. All and every which
persons before mentioned, that wittingly shall commit any-
ihing of the premises, let them well know that they incur the
aforesaid sentence, ipso fucto, (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 senteuce. 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 Pre-
lates, have put our seals to these presents.” -- Statutes of the
Reulm, vol 1, p. 6. Ruffheud'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 reigu, (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, Greetitig. Know ye, that We, to
the honor of God, and of Holy Church, and to the profit of
our Realm, have granted, for lis and our heirs, that the Char-
ter 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 Sheriffs 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 be contained, that they cause the aforesaid Char-
ters to be published, and to declare to the people that we have
confirined them at all points; and to our Justices, Sheriff's,
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, agaiust the points of the Charters, it shall be
undone and holden for naught
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TRIAL BY JURY.
Ch.3. “And we will, that the same Charters shall be sent,
under our seal, to Cathedral Churches throughout our Realm,
there to remain, and shall be read before the people two times
in the year.
Ch. 4. "And that all Archbishops and Bishops shall pro-
Bounce the sentence of excommunication against all those ihat
lry word, deed, or counsel, do contrary to the foresaid char-
fers, or that in any pojut 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 then,
be remiss in the denunciation of the said sentences, the Arch-
bishops of Canterbury and York, for the time being, shall
compel and distraju them to make the denunciation in the
form aforesaid." - .25 Edward I., (1297.) Statutes of the
Realın, vol. 1, p. 123.
It is unnecessary to repeat the terms of the various confirm-
ations, most of whicli 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 proni-
ise, 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.)
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
AUTHORITY OF MAGNA CARTA.
197
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 ali.
thority on behalf of the people, though commonly so far only
as the necessities of each case deinanded.” — 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 con--
sidered good authority when he speaks in its favor,* says :
“It is called Magna Carta, not that it is great in quantity,
for there be many voluminous charters commonly passed, spec-
ially in these later times, longer than this is; nor compara-
tively in respect that it is greater than Charta de Forestu, but
in respect of the great importance and weightiness of the mat.
ter, as hereafter shall appear; and likewise for the same cause
Charta de Foresta ; and both of them are called Magne Char-
te Libertatum Anglia, (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 res-
idue 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 Char-
ter 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 For-
esta, 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,
* Ho probably speaks in its favor only to blind the eyes of the people to the frauds
he has attempted upon its true meaning.
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TRIAL BY JURY.
taking their foundation of Magna Charta and Charta de Foi
esta.
"And the said two charters have been confirmed, estab-
lished, 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 juris-
dictu, (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 high-
est court it is enacted (only to show their tender care of Magna
Carta and Carta de Foresta) that if any statute be made con-
trary 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 observa-
tion of Magna Charta and Charta de Foresta.
“Muona fuit quondam magnæ reverentia charte.” (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. *
* It will be noticed that Coke calls these confirmations of the charter “ acts of par-
liament," 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 par-
liament," 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. IIe might as well have pre-
tended that the original grant of the Cheater 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
AUTHORITY OF MAGNA CARTA.
199
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 acknowl-
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 consti-
tution of the kingdom.
There would be as much reason in saying that, because the ancient kings were in tho
habit of passing laws in special answer to the petitions of their subjects, therefore those
petitioners were a part of the legislative power of tho kingdom.
One great objection to this argunent of Coke, for the legislative authority of the
ancient parliaments, is that a very large -- probably much the larger — number of leg-
islative acts were done without the advice, consent, request, or even presence, of a par-
liament. 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 considera-
ble 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 nec-
essary, but in order to make influence in favor of their laws, and thus induco the peo-
ple to observe them, and the juries to enforoe 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 aristoc-
racy 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,*
and was, in substance, to preserve and execute the Common Law, the Law of the Land,
* See page 101.
200
TRIAL BY JURY.
cdged as law by the government, and was held up by the peo-
ple as the great standard and proof of their rights and liber-
.-.-..-
.-.-----......
- or, in the words of the oath, “the just laws and customs which the common people had
chuosime;") and to swear that he would “ govern the people of this kingdom of England,
and the dominions thereto belonging, according to the statutes in parliament agreed on,
and the laws and customs of the same."'*
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,” |
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. llis 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 adınits that it could not be revoked
or rescinded by the king; for ho 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 abso-
lute power could ever be practically established in England, in the hands of the king.
Ilence, 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 per-
sons, 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
hiin 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 con-
stitutionally, as well as formally, the acts of the king alone.
* St. 1 Willian and Mary, ch. 6, (1688.)
| 4 Inst., 36.
AUTHORITY OF MAGNA CARTA.
201
110
ties. It would show also that the judicial tribunals, whenever
it suited their purposes to do so, were in the liabit of referring
to Magna Carta as authority, in the same manner, and with
the same real or pretended vencration, with which American
courts now refer to the constitution of the United States, or
the coustitutions 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 com-
pact between the king and the people, it would have been for-
ever 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 pos-
sibility 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 majuly, upon its character as a compact. For cen-
turies before the charter was granted, its main principles con-
stituted “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 king-
dom 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 prece-
dent 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 ac-
202
TRIAL BY JURY.
knowledgment 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 gov-
ernment, 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 Com-
mons 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.” — Black-
stone's Introd. to the Charters. See Blackstone's Lau Tracts,
Oxford ed., p. 289.
Coke says, " The common law is the most general and an-
AUTHORITY OF MAGNA CARTA.
203
cient law of the realm... The common law appeareth in
the statute of Iligna Cart, and other ancient statutes, (which
for the most part are atfirmations 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 declara-
tious of the ancient common laws of England, to the observation
and keeping whereof the king was bound and sworn." - Prefa
ace to 2 Inst., p. 3 and 5.
Hume says, “ We may now, from the tenor of this charter,
(Magva 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 per-
severance, 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, indoubtedly thought that they had
sufficiently satisfied the people, by procuring them this conces-
sion, which comprehended the principal objects to which they
had so long aspired.” — Hume, ch. 11.
Edward the First confessed that the Great Charter was sub-
stantially 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 judg-
ment,' 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 na-
tion, 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 con-
stitutionally 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 mod-
ern 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.
11
204
TRIAL BY JURY.
Hume, speaking of the Great Charter and the Charter of the
Forest, as they were confirmed by Henry III., in 1217, says:
6. Thus these famous charters were brought vearly 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 lib-
erty and independence. As they secured the rights of all
orders of men, they were anxiously defended by all, and be-
came 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. ller Bacons and Shakspeares, her Miltons and
Newtons, with all the truth which they have revealed, and
all the generous virtues which they have inspired, are of infe-
rior 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 iufluence of that spirit which the Great Charter breathed
over their forefathers.” — Mackintosh's Hist. of Eng., ch. 3.*
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 Char-
ter; nullus liber homo capiatur, vel imprisonetur, aut eculetur,
aut aliquo nodo destruatur, nisi per legale judicium parium
suorum, vel per legem terrue. . .
The liberties of England cannot but subsist so long as this
palladium remains sacred and inviolate, not only from all
* Under the head of “ John."
AUTHORITY OF MAGNA CARTA.
205
Y
I
open attacks, which none will be so hardy as to make, but
also from all secret machinations which may sap and under-
mine it."' *
"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 lib-
erty, or his person, but by the unanimous consent of twelve of
his neighbors and equals.” †
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.” I
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 Con-
quest, been established and confirmed by the legislative power,
no one privilege besides having been ever so often remembered
in parliament.”' $
* Hume, ch. 2.
*4 Blackstone, 349-50.
one, 349-50. + 3 Blackstone, 379.
3 Blackstone, 379.
§ 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 peo-
ple,) 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 legis-
lation, 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 prac-
tical operation, but which certainly is no less false or tyranni-
cal 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
LIMITATIONS UPON THE MAJORITY.
207
)
M
as minorities, if tliey 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 assist-
ance, 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
vo more tyrannical principle was ever avowed, than that the
will of the majority ought to have the force of ļaw, 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 accord-
ance 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 wil-
derness, 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 numer-
ous than lie, 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 goveru
men in ail their civil relations to each other. Mankind iall 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 num-
bers, 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
ì
1
1
208
TRIAL BY JURY.
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 supe-
rior, in number, to the actors. All acts committed against
persons inferior in number to the aggressors, become but the
exercise of 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 con-
science 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 capaci-
ties, 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
LIMITATIONS UPON TAE MAJORITY.
209
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 pre-
sumed 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 rensonable 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 abso-
lute 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 obsery-
ance of justice; and their unanimous concurrence is then held
to be necessary to remove that reasonable doubt, which, unre-
moved, would forbid the government to lay its hand on its
victim.
Such is the caution which the trial by jury both practises
210
TRIAL BY JURY.
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 pre-
sents, 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 pos-
sessors, 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 suffi-
cient 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 disin-
terested men,- to judges and jurors, sworn to do justice, and
bound patiently to hear and weigh all the evidence and argu-
ments that can be offered on either side,- it should simply
count the plaintiffs 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 plain-
tiffs 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 plaintiffs and
defendants in their own causes; (those who are in favor of a
particular law, standing as plaintiffs, 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 deter-
mined by the relative number of plaintiffs and defendants.
-
LIMITATIONS UPON THE MAJORITY.
211
If this mode of decision were introduced into courts of jus-
tice, we should see a parallel, and only a parallel, to that sys-
tem 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 con-
tinually 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
asso iations; bound together by that kind of honor that pre-
vails among thieves; and pledged by all their interests, sym-
pathies, 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 neces-
sary 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 organ-
ized, so powerful, and yet always so much in need of recruits,
212
TRIAL BY JURY.
T
1
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 associ-
ations, who would agree to carry through his cause, on con-
dition 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 legisla-
tion, 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 sup-
port, but upon the presumption that all government must be
practically a state of war and plunder between opposing par-
ties; 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 enumer-
ation.
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 terins than that of unconditional
submission on the part of the less numerous body. Uncondi-
tional 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 main-
UIL
11
LIMITATIONS UPON THE MAJORITY.
213
tenance 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, sur-
render their affairs into the hands of the majority, the answer
is, that they allow majorities to determine only trifling mat-
ters, 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 dis-
counted 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 presump-
tions 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 meinber 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
214
TRIAL BY JURY.
1
"
vital difference between the banking corporation and the polit-
ical 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 prop-
erty,-- shall be determined by any such standard as the mere
will and pleasure of m: jorities; 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 rights of 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
O
LIMITATIONS UPON THE MAJORITY.
215
a veto upon the acts of the majority. Political liberty is lib-
erty 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 mak-
ing, 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 suf-
frage of the majority, and is thus rendered powerless for pur-
poses 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 gov-
ernment, 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
O
216
TRIAL BY JURY.
Mont
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 con-
tract, 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. Other-
wise the government would have no right to tax him for its
support,- for taxation without consent is robbery. This the-
ory, 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
all are 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 con-
1
LIMITATIONS UPON THE MAJORITY.
217
sented 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 sep-
arate association for those purposes. They have no right,
by perverting this government of the whole, to the accom-
plishment of purposes desired only by a part,- to compel any
one to contribute to purposes that are either useless or injuri-
ous to himself.
Such being the principles on which the government is
formed, the question arises, how shall this government, when
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 degenerating 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 aggran-
dizement 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 exer-
cise 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
218
TRIAL BY JURY.
_
.
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 occa-
sion arises for them to give or withhold their consent --- inas-
much 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 keep-
ing the goverument 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 com-
pelled to assist in doing anything which they do not approve.
They say to the majority, “We will unite with you, if you
1
)
LIMITATIONS ITOY THE MAJORITY.
219
L
desire it, for the accomplishment of all those purposes, in
which we have a common interest with you. You can cer-
tainly expect us to do nothing more. If you do not clioose to
associate with is on those terms, there must be two separate
associations. You must issociate 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
declive 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
io 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 refus-
ing 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
LYV
220
TRIAL BY JURY.
.
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 tax-
ation, 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 tol-
erable 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, there-
fore, 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 com-
parison 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,* all restraints upon men's natural
* Such as restraints upon banking, upon the rates of interest, upon traffic with for.
eigners, &c., &o.
LIMITATIONS UPON THE MAJORITY.
221
1
YTT
1
rights, the whole catalogue of mala prohibita, and all taxa-
tion 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 them-
selves 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 lib-
erty; such, for example, as should contribute to the enforce-
ment of contracts, the protection of property, and the preven-
tion 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 ambi-
tion are constantly fighting for and obtaining advantages over
the natural rights of mankind.
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 representa-
tive, 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 reëstablished, the Common Law principle of taxation
would be reëstablished 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 enforced 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, act-
ing 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 prin-
ciple 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.
APPENDIX.
223
The dissatisfied parties, if sufficiently numerous for a new organization, would
form themselves into a separate association for mutual protection. If not suffi-
ciently 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-iloers.
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 promi-
ises 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 insur-
ance 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 pro-
tection 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 with-
out the other. Without both, no people have any guaranty for their freedom ;
with both, no people can be otherwise than free.*
DO
* 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
224
APPENDIX.
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
designed to show more fully in the next volume, if it should be necessary.
government under which trial by the country was not secured. Thus these two principles mutually
sustain each other.
But, if either of these principles were broken down, the other would fall with it, and for these
reasons: 1. If trial by the country were broken down, the principle of no taxation without
consent would fall with it, because the government would then be able to tax the people without
their consent, inasmuch as the legal tribunals would be mere tools of the government, and would
enforce such taxation, and punish men for resisting such taxation, as the government ordered.
2. On the other hand, if the principle of no taxation without consent were broken down, trial by
the country would fall with it, because the government, if it could tax people without their consent,
would, of course, take enough of their money to enable it to employ all the force necessary for
sustaining its own tribunals, (in the place of juries,) and carrying their decrees into execution.
THE UNIVERSITY OF MICHIGAN
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