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Title: An Essay on the Trial by Jury

Author: Lysander Spooner

Release date: June 27, 2010 [eBook #32984]
                Most recently updated: January 6, 2021

Language: English

Credits: Produced by Susan Goble, Curtis Weyant, Graeme Mackreth
        and the Online Distributed Proofreading Team at
        https://www.pgdp.net


*** START OF THE PROJECT GUTENBERG EBOOK AN ESSAY ON THE TRIAL BY JURY ***




Produced by Susan Goble, Curtis Weyant, Graeme Mackreth
and the Online Distributed Proofreading Team at
https://www.pgdp.net







AN ESSAY

ON THE

TRIAL BY JURY.


BY LYSANDER SPOONER.


 BOSTON:
 JOHN P. JEWETT AND COMPANY.
 CLEVELAND, OHIO:
 JEWETT, PROCTOR & WORTHINGTON.
 1852.


 Entered according to Act of Congress, in the year 1852, by
 LYSANDER SPOONER,
 In the Clerk's Office of the District Court of Massachusetts.


NOTICE TO ENGLISH PUBLISHERS.

The author claims the copyright of this book in England, on Common Law
principles, without regard to acts of parliament; and if the main
principle of the book itself be true, viz., that no legislation, in
conflict with the Common Law, is of any validity, his claim is a legal
one. He forbids any one to reprint the book without his consent.


 Stereotyped by
 HOBART & ROBBINS;
 New England Type and Stereotype Foundery,
 BOSTON.


NOTE.

This volume, it is presumed by the author, gives what will generally be
considered satisfactory evidence,--though not all the evidence,--of what
the Common Law trial by jury really is. In a future volume, if it should
be called for, it is designed to corroborate the grounds taken in this;
give a concise view of the English constitution; show the
unconstitutional character of the existing government in England, and
the unconstitutional means by which the trial by jury has been broken
down in practice; prove that, neither in England nor the United States,
have legislatures ever been invested by the people with any authority to
impair the powers, change the oaths, or (with few exceptions) abridge
the jurisdiction, of juries, or select jurors on any other than Common
Law principles; and, consequently, that, in both countries, legislation
is still constitutionally subordinate to the discretion and consciences
of Common Law juries, in all cases, both civil and criminal, in which
juries sit. The same volume will probably also discuss several political
and legal questions, which will naturally assume importance if the trial
by jury should be reëstablished.




CONTENTS.

                                                                       PAGE


CHAPTER I.   THE RIGHT OF JURIES TO JUDGE OF THE JUSTICE OF LAWS,         5

             SECTION 1,                                                   5

             SECTION 2,                                                  11


CHAPTER II.  THE TRIAL BY JURY, AS DEFINED BY MAGNA CARTA,               20

             SECTION 1. _The History of Magna Carta_,                    20

             SECTION 2. _The Language of Magna Carta_,                   25


CHAPTER III.  ADDITIONAL PROOFS OF THE RIGHTS AND DUTIES OF JURORS,      51

              SECTION 1. _Weakness of the Regal Authority_,              51

              SECTION 2. _The Ancient Common Law Juries were mere
              Courts of Conscience_,                                     63

              SECTION 3. _The Oaths of Jurors_,                          85

              SECTION 4. _The Right of Jurors to fix the Sentence_,      91

              SECTION 5. _The Oaths of Judges_,                          98

              SECTION 6. _The Coronation Oath_,                         102


CHAPTER IV.   THE RIGHTS AND DUTIES OF JURIES IN CIVIL SUITS,           110


CHAPTER V.    OBJECTIONS ANSWERED,                                      128


CHAPTER VI.   JURIES OF THE PRESENT DAY ILLEGAL,                        142


CHAPTER VII.  ILLEGAL JUDGES,                                           157


CHAPTER VIII. THE FREE ADMINISTRATION OF JUSTICE,                       172


CHAPTER IX.   THE CRIMINAL INTENT,                                      178


CHAPTER X.    MORAL CONSIDERATIONS FOR JURORS,                          189


CHAPTER XI.   AUTHORITY OF MAGNA CARTA,                                 192


CHAPTER XII.  LIMITATIONS IMPOSED UPON THE MAJORITY BY
              THE TRIAL BY JURY,                                        206


APPENDIX--TAXATION,                                                     222




TRIAL BY JURY.




CHAPTER I.

THE RIGHT OF JURIES TO JUDGE OF THE JUSTICE OF LAWS.


SECTION I.

For more than six hundred years--that is, since Magna Carta, in
1215--there has been no clearer principle of English or American
constitutional law, than that, in criminal cases, it is not only the
right and duty of juries to judge what are the facts, what is the law,
and what was the moral intent of the accused; _but that it is also their
right, and their primary and paramount duty, to judge of the justice of
the law, and to hold all laws invalid, that are, in their opinion,
unjust or oppressive, and all persons guiltless in violating, or
resisting the execution of, such laws_.

Unless such be the right and duty of jurors, it is plain that, instead
of juries being a "palladium of liberty"--a barrier against the tyranny
and oppression of the government--they are really mere tools in its
hands, for carrying into execution any injustice and oppression it may
desire to have executed.

But for their right to judge of the law, _and the justice of the law_,
juries would be no protection to an accused person, _even as to matters
of fact_; for, if the government can dictate to a jury any law whatever,
in a criminal case, it can certainly dictate to them the laws of
evidence. That is, it can dictate what evidence is admissible, and what
inadmissible, _and also what force or weight is to be given to the
evidence admitted_. And if the government can thus dictate to a jury the
laws of evidence, it can not only make it necessary for them to convict
on a partial exhibition of the evidence rightfully pertaining to the
case, but it can even require them to convict on any evidence whatever
that it pleases to offer them.

That the rights and duties of jurors must necessarily be such as are
here claimed for them, will be evident when it is considered what the
trial by jury is, and what is its object.

_"The trial by jury," then, is a "trial by the country"--that is, by the
people--as distinguished from a trial by the government._

It was anciently called "trial _per pais_"--that is, "trial by the
country." And now, in every criminal trial, the jury are told that the
accused "has, for trial, put himself upon the _country_; which _country_
you (the jury) are."

_The object of this trial "by the country" or by the people, in
preference to a trial by the government, is to guard against every
species of oppression by the government. In order to effect this end, it
is indispensable that the people, or "the country," judge of and
determine their own liberties against the government; instead of the
government's judging of and determining its own powers over the people.
How is it possible that juries can do anything to protect the liberties
of the people against the government, if they are not allowed to
determine what those liberties are?_

Any government, that is its own judge of, and determines authoritatively
for the people, what are its own powers over the people, is an absolute
government of course. It has all the powers that it chooses to exercise.
There is no other--or at least no more accurate--definition of a
despotism than this.

On the other hand, any people, that judge of, and determine
authoritatively for the government, what are their own liberties against
the government, of course retain all the liberties they wish to enjoy.
_And this is freedom._ At least, it is freedom _to them_; because,
although it may be theoretically imperfect, it, nevertheless,
corresponds to _their_ highest notions of freedom.

To secure this right of the people to judge of their own liberties
against the government, the jurors are taken, (or must be, to make them
lawful jurors,) from the body of the people, _by lot_, or by some
process that precludes any previous knowledge, choice, or selection of
them, on the part of the government. This is done to prevent the
government's constituting a jury of its own partisans or friends; in
other words, to prevent the government's _packing_ a jury, with a view
to maintain its own laws, and accomplish its own purposes.

It is supposed that, if twelve men be taken, _by lot_, from the mass of
the people, without the possibility of any previous knowledge, choice,
or selection of them, on the part of the government, the jury will be a
fair epitome of "the country" at large, and not merely of the party or
faction that sustain the measures of the government; that substantially
all classes of opinions, prevailing among the people, will be
represented in the jury; and especially that the opponents of the
government, (if the government have any opponents,) will be represented
there, as well as its friends; that the classes, who are oppressed by
the laws of the government, (if any are thus oppressed,) will have their
representatives in the jury, as well as those classes, who take sides
with the oppressor--that is, with the government.

It is fairly presumable that such a tribunal will agree to no conviction
except such as _substantially the whole country_ would agree to, if they
were present, taking part in the trial. A trial by such a tribunal is,
therefore, in effect, "a trial by the country." In its results it
probably comes as near to a trial by the _whole_ country, as any trial
that it is practicable to have, without too great inconvenience and
expense. And as unanimity is required for a conviction, it follows that
no one can be convicted, except for the violation of such laws as
substantially the whole country wish to have maintained. The government
can enforce none of its laws, (by punishing offenders, through the
verdicts of juries,) except such as substantially the whole people wish
to have enforced. The government, therefore, consistently with the trial
by jury, can exercise no powers over the people, (or, what is the same
thing, over the accused person, who represents the rights of the
people,) except such as substantially the whole people of the country
consent that it may exercise. In such a trial, therefore, "the country,"
or the people, judge of and determine their own liberties against the
government, instead of the government's judging of and determining its
own powers over the people.

But all this "trial by the country" would be no trial at all "by the
country," but only a trial by the government, if the government could
either declare who may, and who may not, be jurors, or could dictate to
the jury anything whatever, either of law or evidence, that is of the
essence of the trial.

If the government may decide who may, and who may not, be jurors, it
will of course select only its partisans, and those friendly to its
measures. It may not only prescribe who may, and who may not, be
eligible to be drawn as jurors; but it may also question each person
drawn as a juror, as to his sentiments in regard to the particular law
involved in each trial, before suffering him to be sworn on the panel;
and exclude him if he be found unfavorable to the maintenance of such a
law.[1]

So, also, if the government may dictate to the jury _what laws they are
to enforce_, it is no longer a "trial by the country," but a trial by
the government; because the jury then try the accused, not by any
standard of their own--not by their own judgments of their rightful
liberties--but by a standard dictated to them by the government. And the
standard, thus dictated by the government, becomes the measure of the
people's liberties. If the government dictate the standard of trial, it
of course dictates the results of the trial. And such a trial is no
trial by the country, but only a trial by the government; and in it the
government determines what are its own powers over the people, instead
of the people's determining what are their own liberties against the
government. In short, if the jury have no right to judge of the justice
of a law of the government, they plainly can do nothing to protect the
people against the oppressions of the government; for there are no
oppressions which the government may not authorize by law.

The jury are also to judge whether the laws are rightly expounded to
them by the court. Unless they judge on this point, they do nothing to
protect their liberties against the oppressions that are capable of
being practised under cover of a corrupt exposition of the laws. If the
judiciary can authoritatively dictate to a jury any exposition of the
law, they can dictate to them the law itself, and such laws as they
please; because laws are, in practice, one thing or another, according
as they are expounded.

The jury must also judge whether there really be any such law, (be it
good or bad,) as the accused is charged with having transgressed. Unless
they judge on this point, the people are liable to have their liberties
taken from them by brute force, without any law at all.

The jury must also judge of the laws of evidence. If the government can
dictate to a jury the laws of evidence, it can not only shut out any
evidence it pleases, tending to vindicate the accused, but it can
require that any evidence whatever, that it pleases to offer, be held as
conclusive proof of any offence whatever which the government chooses to
allege.

It is manifest, therefore, that the jury must judge of and try the whole
case, and every part and parcel of the case, free of any dictation or
authority on the part of the government. They must judge of the
existence of the law; of the true exposition of the law; _of the justice
of the law_; and of the admissibility and weight of all the evidence
offered; otherwise the government will have everything its own way; the
jury will be mere puppets in the hands of the government; and the trial
will be, in reality, a trial by the government, and not a "trial by the
country." By such trials the government will determine its own powers
over the people, instead of the people's determining their own liberties
against the government; and it will be an entire delusion to talk, as
for centuries we have done, of the trial by jury, as a "palladium of
liberty," or as any protection to the people against the oppression and
tyranny of the government.

The question, then, between trial by jury, as thus described, and trial
by the government, is simply a question between liberty and despotism.
The authority to judge what are the powers of the government, and what
the liberties of the people, must necessarily be vested in one or the
other of the parties themselves--the government, or the people; because
there is no third party to whom it can be entrusted. If the authority be
vested in the government, the government is absolute, and the people
have no liberties except such as the government sees fit to indulge them
with. If, on the other hand, that authority be vested in the people,
then the people have all liberties, (as against the government,) except
such as substantially the whole people (through a jury) choose to
disclaim; and the government can exercise no power except such as
substantially the whole people (through a jury) consent that it may
exercise.


SECTION II.

The force and justice of the preceding argument cannot be evaded by
saying that the government is chosen by the people; that, in theory, it
represents the people; that it is designed to do the will of the people;
that its members are all sworn to observe the fundamental or
constitutional law instituted by the people; that its acts are therefore
entitled to be considered the acts of the people; and that to allow a
jury, representing the people, to invalidate the acts of the government,
would therefore be arraying the people against themselves.

There are two answers to such an argument.

One answer is, that, in a representative government, there is no
absurdity or contradiction, nor any arraying of the people against
themselves, in requiring that the statutes or enactments of the
government shall pass the ordeal of any number of separate tribunals,
before it shall be determined that they are to have the force of laws.
Our American constitutions have provided five of these separate
tribunals, to wit, representatives, senate, executive,[2] jury, and
judges; and have made it necessary that each enactment shall pass the
ordeal of all these separate tribunals, before its authority can be
established by the punishment of those who choose to transgress it. And
there is no more absurdity or inconsistency in making a jury one of
these several tribunals, than there is in making the representatives, or
the senate, or the executive, or the judges, one of them. There is no
more absurdity in giving a jury a veto upon the laws, than there is in
giving a veto to each of these other tribunals. The people are no more
arrayed against themselves, when a jury puts its veto upon a statute,
which the other tribunals have sanctioned, than they are when the same
veto is exercised by the representatives, the senate, the executive, or
the judges.

But another answer to the argument that the people are arrayed against
themselves, when a jury hold an enactment of the government invalid, is,
that the government, and all the departments of the government, _are
merely the servants and agents of the people_; not invested with
arbitrary or absolute authority to bind the people, but required to
submit all their enactments to the judgment of a tribunal more fairly
representing the whole people, before they carry them into execution, by
punishing any individual for transgressing them. If the government were
not thus required to submit their enactments to the judgment of "the
country," before executing them upon individuals--if, in other words,
the people had reserved to themselves no veto upon the acts of the
government, the government, instead of being a mere servant and agent of
the people, would be an absolute despot over the people. It would have
all power in its own hands; because the power to _punish_ carries all
other powers with it. A power that can, of itself, and by its own
authority, punish disobedience, can compel obedience and submission, and
is above all responsibility for the character of its laws. In short, it
is a despotism.

And it is of no consequence to inquire how a government came by this
power to punish, whether by prescription, by inheritance, by usurpation,
or by delegation from the people? _If it have now but got it_, the
government is absolute.

It is plain, therefore, that if the people have invested the government
with power to make laws that absolutely bind the people, and to punish
the people for transgressing those laws, the people have surrendered
their liberties unreservedly into the hands of the government.

It is of no avail to say, in answer to this view of the case, that in
surrendering their liberties into the hands of the government, the
people took an oath from the government, that it would exercise its
power within certain constitutional limits; for when did oaths ever
restrain a government that was otherwise unrestrained? Or when did a
government fail to determine that all its acts were within the
constitutional and authorized limits of its power, if it were permitted
to determine that question for itself?

Neither is it of any avail to say, that, if the government abuse its
power, and enact unjust and oppressive laws, the government may be
changed by the influence of discussion, and the exercise of the right of
suffrage. Discussion can do nothing to prevent the enactment, or procure
the repeal, of unjust laws, unless it be understood that the discussion
is to be followed by resistance. Tyrants care nothing for discussions
that are to end only in discussion. Discussions, which do not interfere
with the enforcement of their laws, are but idle wind to them. Suffrage
is equally powerless and unreliable. It can be exercised only
periodically; and the tyranny must at least be borne until the time for
suffrage comes. Besides, when the suffrage is exercised, it gives no
guaranty for the repeal of existing laws that are oppressive, and no
security against the enactment of new ones that are equally so. The
second body of legislators are liable and likely to be just as
tyrannical as the first. If it be said that the second body may be
chosen for their integrity, the answer is, that the first were chosen
for that very reason, and yet proved tyrants. The second will be exposed
to the same temptations as the first, and will be just as likely to
prove tyrannical. Who ever heard that succeeding legislatures were, on
the whole, more honest than those that preceded them? What is there in
the nature of men or things to make them so? If it be said that the first
body were chosen from motives of injustice, that fact proves that there is
a portion of society who desire to establish injustice; and if they were
powerful or artful enough to procure the election of their instruments to
compose the first legislature, they will be likely to be powerful or
artful enough to procure the election of the same or similar instruments
to compose the second. The right of suffrage, therefore, and even a change
of legislators, guarantees no change of legislation--certainly no change
for the better. Even if a change for the better actually comes, it comes
too late, because it comes only after more or less injustice has been
irreparably done.

But, at best, the right of suffrage can be exercised only periodically;
and between the periods the legislators are wholly irresponsible. No
despot was ever more entirely irresponsible than are republican
legislators during the period for which they are chosen. They can
neither be removed from their office, nor called to account while in
their office, nor punished after they leave their office, be their
tyranny what it may. Moreover, the judicial and executive departments of
the government are equally irresponsible _to the people_, and are only
responsible, (by impeachment, and dependence for their salaries), to
these irresponsible legislators. This dependence of the judiciary and
executive upon the legislature is a guaranty that they will always
sanction and execute its laws, whether just or unjust. Thus the
legislators hold the whole power of the government in their hands, and
are at the same time utterly irresponsible for the manner in which they
use it.

If, now, this government, (the three branches thus really united in
one), can determine the validity of, and enforce, its own laws, it is,
for the time being, entirely absolute, and wholly irresponsible to the
people.

But this is not all. These legislators, and this government, so
irresponsible while in power, can perpetuate their power at pleasure, if
they can determine what legislation is authoritative upon the people,
and can enforce obedience to it; for they can not only declare their
power perpetual, but they can enforce submission to all legislation that
is necessary to secure its perpetuity. They can, for example, prohibit
all discussion of the rightfulness of their authority; forbid the use of
the suffrage; prevent the election of any successors; disarm, plunder,
imprison, and even kill all who refuse submission. If, therefore, the
government (all departments united) be absolute for a day--that is, if
it can, for a day, enforce obedience to its own laws--it can, in that
day, secure its power for all time--like the queen, who wished to reign
but for a day, but in that day caused the king, her husband, to be
slain, and usurped his throne.

Nor will it avail to say that such acts would be unconstitutional, and
that unconstitutional acts may be lawfully resisted; for everything a
government pleases to do will, of course, be determined to be
constitutional, if the government itself be permitted to determine the
question of the constitutionality of its own acts. Those who are capable
of tyranny, are capable of perjury to sustain it.

The conclusion, therefore, is, that any government, that can, _for a
day_, enforce its own laws, without appealing to the people, (or to a
tribunal fairly representing the people,) for their consent, is, in
theory, an absolute government, irresponsible to the people, and can
perpetuate its power at pleasure.

The trial by jury is based upon a recognition of this principle, and
therefore forbids the government to execute any of its laws, by
punishing violators, in any case whatever, without first getting the
consent of "the country," or the people, through a jury. In this way,
the people, at all times, hold their liberties in their own hands, and
never surrender them, even for a moment, into the hands of the
government.

The trial by jury, then, gives to any and every individual the liberty,
at any time, to disregard or resist any law whatever of the government,
if he be willing to submit to the decision of a jury, the questions,
whether the law be intrinsically just and obligatory? and whether his
conduct, in disregarding or resisting it, were right in itself? And any
law, which does not, in such trial, obtain the unanimous sanction of
twelve men, taken at random from the people, and judging according to
the standard of justice in their own minds, free from all dictation and
authority of the government, may be transgressed and resisted with
impunity, by whomsoever pleases to transgress or resist it.[3]

The trial by jury authorizes all this, or it is a sham and a hoax,
utterly worthless for protecting the people against oppression. If it do
not authorize an individual to resist the first and least act of
injustice or tyranny, on the part of the government, it does not
authorize him to resist the last and the greatest. If it do not
authorize individuals to nip tyranny in the bud, it does not authorize
them to cut it down when its branches are filled with the ripe fruits of
plunder and oppression.

Those who deny the right of a jury to protect an individual in resisting
an unjust law of the government, deny him all _legal_ defence
whatsoever against oppression. The right of revolution, which tyrants,
in mockery, accord to mankind, is no _legal_ right _under_ a government;
it is only a _natural_ right to overturn a government. The government
itself never acknowledges this right. And the right is practically
established only when and because the government no longer exists to
call it in question. The right, therefore, can be exercised with
impunity, only when it is exercised victoriously. All _unsuccessful_
attempts at revolution, however justifiable in themselves, are punished
as treason, if the government be permitted to judge of the treason. The
government itself never admits the injustice of its laws, as a legal
defence for those who have attempted a revolution, and failed. The right
of revolution, therefore, is a right of no practical value, except for
those who are stronger than the government. So long, therefore, as the
oppressions of a government are kept within such limits as simply not to
exasperate against it a power greater than its own, the right of
revolution cannot be appealed to, and is therefore inapplicable to the
case. This affords a wide field for tyranny; and if a jury cannot _here_
intervene, the oppressed are utterly defenceless.

It is manifest that the only security against the tyranny of the
government lies in forcible resistance to the execution of the
injustice; because the injustice will certainly be executed, _unless it
be forcibly resisted_. And if it be but suffered to be executed, it must
then be borne; for the government never makes compensation for its own
wrongs.

Since, then, this forcible resistance to the injustice of the government
is the only possible means of preserving liberty, it is indispensable to
all _legal_ liberty that this _resistance_ should be _legalized_. It is
perfectly self-evident that where there is no _legal_ right to resist
the oppression of the government, there can be no _legal_ liberty. And
here it is all-important to notice, that, _practically speaking_, there
can be no _legal_ right to resist the oppressions of the government,
unless there be some _legal_ tribunal, other than the government, and
wholly independent of, and _above_, the government, to judge between the
government and those who resist its oppressions; in other words, to
judge what laws of the government are to be obeyed, and what may be
resisted and held for nought. The only tribunal known to our laws, for
this purpose, is a jury. If a jury have not the right to judge between
the government and those who disobey its laws, and resist its
oppressions, the government is absolute, and the people, _legally
speaking_, are slaves. Like many other slaves they may have sufficient
courage and strength to keep their masters somewhat in check; but they
are nevertheless _known to the law_ only as slaves.

That this right of resistance was recognized as a common law right, when
the ancient and genuine trial by jury was in force, is not only proved
by the nature of the trial itself, but is acknowledged by history.[4]

This right of resistance is recognized by the constitution of the United
States, as a strictly legal and constitutional right. It is so
recognized, first by the provision that "the trial of all crimes, except
in cases of impeachment, shall be by jury"--that is, by the country--and
not by the government; secondly, by the provision that "the right of the
people to keep and bear arms shall not be infringed." This
constitutional security for "the right to keep and bear arms," implies
the right to use them--as much as a constitutional security for the
right to buy and keep food would have implied the right to eat it. The
constitution, therefore, takes it for granted that the people will
judge of the conduct of the government, and that, as they have the
right, they will also have the sense, to use arms, whenever the
necessity of the case justifies it. And it is a sufficient and _legal_
defence for a person accused of using arms against the government, if he
can show, to the satisfaction of a jury, _or even any one of a jury_,
that the law he resisted was an unjust one.

In the American _State_ constitutions also, this right of resistance to
the oppressions of the government is recognized, in various ways, as a
natural, legal, and constitutional right. In the first place, it is so
recognized by provisions establishing the trial by jury; thus requiring
that accused persons shall be tried by "the country," instead of the
government. In the second place, it is recognized by many of them, as,
for example, those of Massachusetts, Maine, Vermont, Connecticut,
Pennsylvania, Ohio, Indiana, Michigan, Kentucky, Tennessee, Arkansas,
Mississippi, Alabama, and Florida, by provisions expressly declaring
that the people shall have the right to bear arms. In many of them also,
as, for example, those of Maine, New Hampshire, Vermont, Massachusetts,
New Jersey, Pennsylvania, Delaware, Ohio, Indiana, Illinois, Florida,
Iowa, and Arkansas, by provisions, in their bills of rights, declaring
that men have a natural, inherent, and inalienable right of "_defending_
their lives and liberties." This, of course, means that they have a
right to defend them against any injustice _on the part of the
government_, and not merely on the part of private individuals; because
the object of all bills of rights is to assert the rights of individuals
and the people, _as against the government_, and not as against private
persons. It would be a matter of ridiculous supererogation to assert, in
a constitution of government, the natural right of men to defend their
lives and liberties against private trespassers.

Many of these bills of rights also assert the natural right of all men
to protect their property--that is, to protect it _against the
government_. It would be unnecessary and silly indeed to assert, in a
constitution of government, the natural right of individuals to protect
their property against thieves and robbers.

The constitutions of New Hampshire and Tennessee also declare that "The
doctrine of non-resistance against arbitrary power and oppression is
absurd, slavish, and destructive of the good and happiness of mankind."

The legal effect of these constitutional recognitions of the right of
individuals to defend their property, liberties, and lives, against the
government, is to legalize resistance to all injustice and oppression,
of every name and nature whatsoever, on the part of the government.

But for this right of resistance, on the part of the people, all
governments would become tyrannical to a degree of which few people are
aware. Constitutions are utterly worthless to restrain the tyranny of
governments, unless it be understood that the people will, by force,
compel the government to keep within the constitutional limits.
Practically speaking, no government knows any limits to its power,
except the endurance of the people. But that the people are stronger
than the government, and will resist in extreme cases, our governments
would be little or nothing else than organized systems of plunder and
oppression. All, or nearly all, the advantage there is in fixing any
constitutional limits to the power of a government, is simply to give
notice to the government of the point at which it will meet with
resistance. If the people are then as good as their word, they may keep
the government within the bounds they have set for it; otherwise it will
disregard them--as is proved by the example of all our American
governments, in which the constitutions have all become obsolete, at the
moment of their adoption, for nearly or quite all purposes except the
appointment of officers, who at once become practically absolute, except
so far as they are restrained by the fear of popular resistance.

The bounds set to the power of the government, by the trial by jury, as
will hereafter be shown, are these--that the government shall never
touch the property, person, or natural or civil rights of an individual,
against his consent, (except for the purpose of bringing them before a
jury for trial,) unless in pursuance and _execution_ of a judgment, or
decree, rendered by a jury in each individual case, upon such evidence,
and such law, as are satisfactory to their own understandings and
consciences, irrespective of all legislation of the government.

[Footnote 1: To show that this supposition is not an extravagant one, it
may be mentioned that courts have repeatedly questioned jurors to
ascertain whether they were prejudiced _against the government_--that
is, whether they were in favor of, or opposed to, such laws of the
government as were to be put in issue in the then pending trial. This
was done (in 1851) in the United States District Court for the District
of Massachusetts, by Peleg Sprague, the United States district judge, in
empanelling three several juries for the trials of Scott, Hayden, and
Morris, charged with having aided in the rescue of a fugitive slave from
the custody of the United States deputy marshal. This judge caused the
following question to be propounded to all the jurors separately; and
those who answered unfavorably for the purposes of the government, were
excluded from the panel.

   "Do you hold any opinions upon the subject of the Fugitive Slave Law,
   so called, which will induce you to refuse to convict a person
   indicted under it, if the facts set forth in the indictment, _and
   constituting the offence_, are proved against him, and the court
   direct you that the law is constitutional?"

The reason of this question was, that "the Fugitive Slave Law, so
called," was so obnoxious to a large portion of the people, as to render
a conviction under it hopeless, if the jurors were taken
indiscriminately from among the people.

A similar question was soon afterwards propounded to the persons drawn
as jurors in the United States _Circuit_ Court for the District of
Massachusetts, by Benjamin R. Curtis one of the Justices of the Supreme
Court of the United States, in empanelling a jury for the trial of the
aforesaid Morris on the charge before mentioned; and those who did not
answer the question favorably for the government were again excluded
from the panel.

It has also been an habitual practice with the Supreme Court of
Massachusetts, in empanelling juries for the trial of _capital_
offences, to inquire of the persons drawn as jurors whether they had any
conscientious scruples against finding verdicts of guilty in such cases;
that is, whether they had any conscientious scruples against sustaining
the law prescribing death as the punishment of the crime to be tried;
and to exclude from the panel all who answered in the affirmative.

The only principle upon which these questions are asked, is this--that
no man shall be allowed to serve as juror, unless he be ready to enforce
any enactment of the government, however cruel or tyrannical it may be.

What is such a jury good for, as a protection against the tyranny of the
government? A jury like that is palpably nothing but a mere tool of
oppression in the hands of the government. A trial by such a jury is
really a trial by the government itself--and not a trial by the
country--because it is a trial only by men specially selected by the
government for their readiness to enforce its own tyrannical measures.

If that be the true principle of the trial by jury, the trial is utterly
worthless as a security to liberty. The Czar might, with perfect safety
to his authority, introduce the trial by jury into Russia, if he could
but be permitted to select his jurors from those who were ready to
maintain his laws, without regard to their injustice.

This example is sufficient to show that the very pith of the trial by
jury, as a safeguard to liberty, consists in the jurors being taken
indiscriminately from the whole people, and in their right to hold
invalid all laws which they think unjust.]

[Footnote 2: The executive has a qualified veto upon the passage of
laws, in most of our governments, and an absolute veto, in all of them,
upon the execution of any laws which he deems unconstitutional; because
his oath to support the constitution (as he understands it) forbids him
to execute any law that he deems unconstitutional.]

[Footnote 3: And if there be so much as a reasonable _doubt_ of the
justice of the laws, the benefit of that doubt must be given to the
defendant, and not to the government. So that the government must keep
its laws _clearly_ within the limits of justice, if it would ask a jury
to enforce them.]

[Footnote 4: _Hallam_ says, "The relation established between a lord and
his vassal by the feudal tenure, far from containing principles of any
servile and implicit obedience, permitted the compact to be dissolved in
case of its violation by either party. This extended as much to the
sovereign as to inferior lords. * * If a vassal was aggrieved, and if
justice was denied him, he sent a defiance, that is, a renunciation of
fealty to the king, and was entitled to enforce redress at the point of
his sword. It then became a contest of strength as between two
independent potentates, and was terminated by treaty, advantageous or
otherwise, according to the fortune of war. * * There remained the
original principle, that allegiance depended conditionally upon good
treatment, and that an appeal might be _lawfully_ made to arms against
an oppressive government. Nor was this, we may be sure, left for extreme
necessity, or thought to require a long-enduring forbearance. In modern
times, a king, compelled by his subjects' swords to abandon any
pretension, would be supposed to have ceased to reign; and the express
recognition of such a right as that of insurrection has been justly
deemed inconsistent with the majesty of law. But ruder ages had ruder
sentiments. Force was necessary to repel force; and men accustomed to
see the king's authority defied by a private riot, were not much shocked
when it was resisted in defence of public freedom."--_3 Middle Ages_,
240-2.]




CHAPTER II.

THE TRIAL BY JURY, AS DEFINED BY MAGNA CARTA.


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


SECTION I.

_The History of Magna Carta._

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

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

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

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

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

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

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

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

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

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


SECTION II.

_The Language of Magna Carta._

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

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

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

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

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

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

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

   "_Nec super eum ibimus, nec super eum mittemus._"

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

   "_Per legale judicium parium suorum._"

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

"_Legale._"

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

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

   "_Per legem terræ._"

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

_What lex terræ did authorize._

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

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

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

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

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

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

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

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

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

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

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

Thus, he says:

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

No freeman shall be arrested, or imprisoned, or deprived of his
freehold, or his liberties, or free customs, or be outlawed, or exiled,
or in any manner destroyed, (harmed,) nor will we (the king) proceed
against him, nor send any one against him, by force or arms, unless
according to (that is, in execution of) the sentence of his peers, _and_
(or _or_, as the case may require) the Common Law of England, (as it was
at the time of Magna Carta, in 1215.)

[Footnote 5: 1 Hume, Appendix 2.]

[Footnote 6: Crabbe's History of the English Law, 236.]

[Footnote 7: Coke says, "The king of England is armed with divers
councils, one whereof is called _commune concilium_, (the common
council,) and that is the court of parliament, and so it is _legally_
called in writs and judicial proceedings _commune concilium regni
Angliæ_, (the common council of the kingdom of England.) And another is
called _magnum concilium_, (great council;) this is sometimes applied to
the upper house of parliament, and sometimes, out of parliament time, to
the peers of the realm, lords of parliament, who are called _magnum
concilium regis_, (the great council of the king;) * * Thirdly, (as
every man knoweth,) the king hath a privy council for matters of state.
* * The fourth council of the king are his judges for law matters."

_1 Coke's Institutes, 110 a._]

[Footnote 8: The Great Charter of Henry III., (1216 and 1225,) confirmed
by Edward I., (1297,) makes no provision whatever for, or mention of, a
parliament, unless the provision, (Ch. 37,) that "Escuage, (a military
contribution,) from henceforth shall be taken like as it was wont to be
in the time of King Henry our grandfather," mean that a parliament shall
be summoned for that purpose.]

[Footnote 9: The Magna Carta of John, (Ch. 17 and 18,) defines those who
were entitled to be summoned to parliament, to wit, "The Archbishops,
Bishops, Abbots, Earls, and Great Barons of the Realm, * * and all
others who hold of us _in chief_." Those who held land of the king _in
chief_ included none below the rank of knights.]

[Footnote 10: The parliaments of that time were, doubtless, such as
Carlyle describes them, when he says, "The parliament was at first a
most simple assemblage, quite cognate to the situation; that Red
William, or whoever had taken on him the terrible task of being King of
England, was wont to invite, oftenest about Christmas time, his
subordinate Kinglets, Barons as he called them, to give him the pleasure
of their company for a week or two; there, in earnest conference all
morning, in freer talk over Christmas cheer all evening, in some big
royal hall of Westminster, Winchester, or wherever it might be, with log
fires, huge rounds of roast and boiled, not lacking malmsey and other
generous liquor, they took counsel concerning the arduous matters of the
kingdom."]

[Footnote 11: Hume, Appendix 2.]

[Footnote 12: This point will be more fully established hereafter.]

[Footnote 13: It is plain that the king and all his partisans looked
upon the charter as utterly prostrating the king's legislative supremacy
before the discretion of juries. When the schedule of liberties demanded
by the barons was shown to him, (of which the trial by jury was the most
important, because it was the only one that protected all the rest,)
"the king, falling into a violent passion, asked, _Why the barons did
not with these exactions demand his kingdom?_ * * _and with a solemn
oath protested, that he would never grant such liberties as would make
himself a slave_." * * But afterwards, "seeing himself deserted, and
fearing they would seize his castles, he sent the Earl of Pembroke and
other faithful messengers to them, to let them know _he would grant them
the laws and liberties they desired_." * * But after the charter had
been granted, "the king's mercenary soldiers, desiring war more than
peace, were by their leaders continually whispering in his ears, _that
he was now no longer king, but the scorn of other princes; and that it
was more eligible to be no king, than such a one as he_." * * He applied
"to the Pope, that he might by his apostolic authority make void what
the barons had done. * * At Rome he met with what success he could
desire, where all the transactions with the barons were fully
represented to the Pope, and the Charter of Liberties shown to him, in
writing; which, when he had carefully perused, he, with a furious look,
cried out, _What! Do the barons of England endeavor to dethrone a king,
who has taken upon him the Holy Cross, and is under the protection of
the Apostolic See; and would they force him to transfer the dominions of
the Roman Church to others? By St. Peter, this injury must not pass
unpunished._ Then debating the matter with the cardinals, he, by a
definitive sentence, damned and cassated forever the Charter of
Liberties, and sent the king a bull containing that sentence at
large."--_Echard's History of England_, p. 106-7.

These things show that the nature and effect of the charter were well
understood by the king and his friends; that they all agreed that he was
effectually stripped of power. _Yet the legislative power had not been
taken from him; but only the power to enforce his laws, unless juries
should freely consent to their enforcement._]

[Footnote 14: The laws were, at that time, all written in Latin.]

[Footnote 15: "No man shall be condemned at the king's suit, either
before the king in his bench, where pleas are _coram rege_, (before the
king,) (and so are the words _nec super eum ibimus_, to be understood,)
nor before any other commissioner or judge whatsoever, and so are the
words _nec super eum mittemus_, to be understood, but by the judgment of
his peers, that is, equals, or according to the law of the land."--_2
Coke's Inst._, 46.]

[Footnote 16: Perhaps the assertion in the text should be made with this
qualification--that the words "_per legem terræ_," (according to the law
of the land,) and the words "_per legale judicium parium suorum_,"
(according to the _legal_ judgment of his peers,) imply that the king,
before proceeding to any _executive_ action, will take notice of "the
law of the land," and of the _legality_ of the judgment of the peers,
and will _execute_ upon the prisoner nothing except what the law of the
land authorizes, and no judgments of the peers, except _legal_ ones.
With this qualification, the assertion in the text is strictly
correct--that there is nothing in the whole chapter that grants to the
king, or his judges, any _judicial_ power at all. The chapter only
describes and _limits_ his _executive_ power.]

[Footnote 17: See Blackstone's Law Tracts, page 294, Oxford Edition.]

[Footnote 18: These Articles of the Charter are given in Blackstone's
collection of Charters, and are also printed with the _Statutes of the
Realm_. Also in Wilkins' Laws of the Anglo-Saxons, p. 356.]

[Footnote 19: Lingard says, "The words, '_We will not destroy him, nor
will we go upon him, nor will we send upon him_,' have been very
differently expounded by different legal authorities. Their real meaning
may be learned from John himself, who the next year promised by his
letters patent ... nec super eos _per vim vel per arma_ ibimus, nisi per
legem regni nostri, vel per judicium parium suorum in curia nostra, (nor
will we go upon them _by force or by arms_, unless by the law of our
kingdom, or the judgment of their peers in our court.) Pat. 16 Johan,
apud Drad. 11, app. no. 124. He had hitherto been in the habit of
_going_ with an armed force, or _sending_ an armed force on the lands,
and against the castles, of all whom he knew or suspected to be his
secret enemies, without observing any form of law."--3 Lingard, 47
note.]

[Footnote 20: "_Judgment, judicium._ * * The sentence of the law,
pronounced by the court, upon the matter contained in the record."--3
_Blackstone_, 395. _Jacob's Law Dictionary. Tomlin's do._

"_Judgment_ is the decision or sentence of the law, given by a court of
justice or other competent tribunal, as the result of the proceedings
instituted therein, for the redress of an injury."--_Bouvier's Law
Dict._

"_Judgment, judicium._ * * Sentence of a judge against a criminal. * *
Determination, decision in general."--_Bailey's Dict._

"_Judgment._ * * In a legal sense, a sentence or decision pronounced by
authority of a king, or other power, either by their own mouth, or by
that of their judges and officers, whom they appoint to administer
justice in their stead."--_Chambers' Dict._

"_Judgment._ * * In law, the sentence or doom pronounced in any case,
civil or criminal, by the judge or court by which it is
tried."--_Webster's Dict._

Sometimes the punishment itself is called _judicium_, _judgment_; or,
rather, it was at the time of Magna Carta. For example, in a statute
passed fifty-one years after Magna Carta, it was said that a baker, for
default in the weight of his bread, "debeat amerciari vel subire
_judicium_ pillorie;" that is, ought to be amerced, or suffer the
punishment, or judgment, of the pillory. Also that a brewer, for
"selling ale contrary to the assize," "debeat amerciari, vel pati
_judicium_ tumbrelli"; that is, ought to be amerced, or suffer the
punishment, or judgment, of the tumbrel.--51 _Henry_ 3, _St._ 6. (1266.)

Also the "_Statutes of uncertain date_," (but supposed to be prior to
Edward III., or 1326,) provide, in chapters 6, 7, and 10, for
"_judgment_ of the pillory."--_See 1 Ruffhead's Statutes_, 187, 188. 1
_Statutes of the Realm_, 203.

Blackstone, in his chapter "Of _Judgment_, and its Consequences," says,

"_Judgment_ (unless any matter be offered in arrest thereof) follows
upon conviction; being the pronouncing of that punishment which is
expressly ordained by law."--_Blackstone's Analysis of the Laws of
England, Book 4, Ch. 29, Sec. 1. Blackstone's Law Tracts_, 126.

Coke says, "_Judicium_ ... the judgment is the guide and direction of
the execution." 3 _Inst._ 210.]

[Footnote 21: This precedent from Germany is good authority, because the
trial by jury was in use, in the northern nations of Europe generally,
long before Magna Carta, and probably from time immemorial; and the
Saxons and Normans were familiar with it before they settled in
England.]

[Footnote 22: _Beneficium_ was the legal name of an estate held by a
feudal tenure. See Spelman's Glossary.]

[Footnote 23: _Contenement_ of a freeman was the means of living in the
condition of a freeman.]

[Footnote 24: _Waynage_ was a villein's plough-tackle and carts.]

[Footnote 25: Tomlin says, "The ancient practice was, when any such fine
was imposed, to inquire by a jury _quantum inde regi dare valeat per
annum, salva sustentatione sua et uxoris et liberorum suorum_, (how much
is he able to give to the king per annum, saving his own maintenance,
and that of his wife and children). And since the disuse of such
inquest, it is never usual to assess a larger fine than a man is able to
pay, without touching the implements of his livelihood; but to inflict
corporal punishment, or a limited imprisonment, instead of such a fine
as might amount to imprisonment for life. And this is the reason why
fines in the king's courts are frequently denominated ransoms, because
the penalty must otherwise fall upon a man's person, unless it be
redeemed or ransomed by a pecuniary fine."--_Tomlin's Law Dict., word
Fine._]

[Footnote 26: Because juries were to fix the sentence, it must not be
supposed that the king was _obliged_ to carry the sentence into
execution; _but only that he could not go beyond the sentence_. He might
pardon, or he might acquit on grounds of law, notwithstanding the
sentence; but he could not punish beyond the extent of the sentence.
Magna Carta does not prescribe that the king _shall punish_ according to
the sentence of the peers; but only that he shall not punish _"unless
according to" that sentence_. He may acquit or pardon, notwithstanding
their sentence or judgment; but he cannot punish, except according to
their judgment.]

[Footnote 27: _The trial by battle_ was one in which the accused
challenged his accuser to single combat, and staked the question of his
guilt or innocence on the result of the duel. This trial was introduced
into England by the Normans, within one hundred and fifty years before
Magna Carta. It was not very often resorted to even by the Normans
themselves; probably never by the Anglo-Saxons, unless in their
controversies with the Normans. It was strongly discouraged by some of
the Norman princes, particularly by Henry II., by whom the trial by jury
was especially favored. It is probable that the trial by battle, so far
as it prevailed at all in England, was rather tolerated as a matter of
chivalry, than authorized as a matter of law. At any rate, it is not
likely that it was included in the "_legem terræ_" of Magna Carta,
although such duels have occasionally occurred since that time, and
have, by some, been supposed to be lawful. I apprehend that nothing can
be properly said to be a part of _lex terræ_, unless it can be shown
either to have been of Saxon origin, or to have been recognized by Magna
Carta.

_The trial by ordeal_ was of various kinds. In one ordeal the accused
was required to take hot iron in his hand; in another to walk blindfold
among red-hot ploughshares; in another to thrust his arm into boiling
water; in another to be thrown, with his hands and feet bound, into cold
water; in another to swallow the _morsel of execration_; in the
confidence that his guilt or innocence would be miraculously made known.
This mode of trial was nearly extinct at the time of Magna Carta, and it
is not likely that it was included in "_legem terræ_," as that term is
used in that instrument. This idea is corroborated by the fact that the
trial by ordeal was specially prohibited only four years after Magna
Carta, "by act of Parliament in 3 Henry III., according to Sir Edward
Coke, or rather by an order of the king in council."--_3 Blackstone_
345, _note_.

I apprehend that this trial was never forced upon accused persons, but
was only allowed to them, _as an appeal to God_, from the judgment of a
jury.[33]

_The trial by compurgators_ was one in which, if the accused could bring
twelve of his neighbors, who would make oath that they believed him
innocent, he was held to be so. It is probable that this trial was
really the trial by jury, or was allowed as an appeal from a jury. It is
wholly improbable that two different modes of trial, so nearly
resembling each other as this and the trial by jury do, should prevail
at the same time, and among a rude people, whose judicial proceedings
would naturally be of the simplest kind. But if this trial really were
any other than the trial by jury, it must have been nearly or quite
extinct at the time of Magna Carta; and there is no probability that it
was included in "_legem terræ_."]

[Footnote 28: Coke attempts to show that there is a distinction between
amercements and fines--admitting that amercements must be fixed by one's
peers, but claiming that fines may be fixed by the government. (_2
Inst._ 27, _8 Coke's Reports_ 38.) But there seems to have been no
ground whatever for supposing that any such distinction existed at the
time of Magna Carta. If there were any such distinction in the time of
Coke, it had doubtless grown up within the four centuries that had
elapsed since Magna Carta, and is to be set down as one of the
numberless inventions of government for getting rid of the restraints of
Magna Carta, and for taking men out of the protection of their peers,
and subjecting them to such punishments as the government chooses to
inflict.

The first statute of Westminster, passed sixty years after Magna Carta,
treats the fine and amercement as synonymous, as follows:

"Forasmuch as _the common fine and amercement_ of the whole county in
Eyre of the justices for false judgments, or for other trespass, is
unjustly assessed by sheriffs and baretors in the shires, * * it is
provided, and the king wills, that from henceforth such sums shall be
assessed before the justices in Eyre, afore their departure, _by the
oath of knights and other honest men_," &c.--_3 Edward I., Ch._ 18.
(1275.)

And in many other statutes passed after Magna Carta, the terms _fine_
and _amercement_ seem to be used indifferently, in prescribing the
punishment for offences. As late as 1461, (246 years after Magna Carta,)
the statute _1 Edward IV., Ch._ 2, speaks of "_fines, ransoms, and
amerciaments_" as being levied upon criminals, as if they were the
common punishments of offences.

_St._ 2 and 3 _Philip and Mary, Ch._ 8, uses the terms, "_fines,
forfeitures, and amerciaments_" five times. (1555.)

_St. 5 Elizabeth, Ch._ 13, _Sec._ 10, uses the terms "_fines,
forfeitures, and amerciaments_."

That amercements were fines, or pecuniary punishments, inflicted for
offences, is proved by the following statutes, (all supposed to have
been passed within one hundred and fifteen years after Magna Carta,)
which speak of amercements as a species of "_judgment_," or punishment,
and as being inflicted for the same offences as other "judgments."

Thus one statute declares that a baker, for default in the weight of his
bread, "ought to be _amerced_, or suffer the _judgment_ of the pillory;"
and that a brewer, for "selling ale contrary to the assize," "ought to
be _amerced_, or suffer the _judgment_ of the tumbrel."--_51 Henry III.,
St._ 6. (1266.)

Among the "_Statutes of Uncertain Date_," but supposed to be prior to
Edward III., (1326,) are the following:

_Chap._ 6 provides that "if a brewer break the assize, (fixing the price
of ale,) the first, second, and third time, he shall be _amerced_; but
the fourth time he shall suffer _judgment_ of the pillory without
redemption."

_Chap._ 7 provides that "a butcher that selleth swine's flesh measled,
or flesh dead of the murrain, or that buyeth flesh of Jews, and selleth
the same unto Christians, after he shall be convict thereof, for the
first time he shall be grievously _amerced_; the second time he shall
suffer _judgment_ of the pillory; and the third time he shall be
imprisoned and make _fine_; and the fourth time he shall forswear the
town."

_Chap. 10_, a statute against _forestalling_, provides that,

"He that is convict thereof, the first time shall be _amerced_, and
shall lose the thing so bought, and that according to the custom of the
town; he that is convicted the second time shall have _judgment_ of the
pillory; at the third time he shall be imprisoned and make _fine_; the
fourth time he shall abjure the town. And this _judgment_ shall be given
upon all manner of forestallers, and likewise upon them that have given
them counsel, help, or favor."--_1 Ruffhead's Statutes_, 187, 188. _1
Statutes of the Realm_, 203.]

[Footnote 29: 1 Hume, Appendix, 1.]

[Footnote 30: Blackstone says, "Our ancient Saxon laws nominally
punished theft with death, if above the value of twelve pence; but the
criminal was permitted to redeem his life by a pecuniary ransom, as
among their ancestors, the Germans, by a stated number of cattle. But in
the ninth year of Henry the First, (1109,) this power of redemption was
taken away, and all persons guilty of larceny above the value of twelve
pence were directed to be hanged, which law continues in force to this
day."--_4 Blackstone_, 238.

I give this statement of Blackstone, because the latter clause may seem
to militate with the idea, which the former clause corroborates, viz.,
that at the time of Magna Carta, fines were the usual punishments of
offences. But I think there is no probability that a law so unreasonable
in itself, (unreasonable even after making all allowance for the
difference in the value of money,) and so contrary to immemorial custom,
could or did obtain any general or speedy acquiescence among a people
who cared little for the authority of kings.

Maddox, writing of the period from William the Conqueror to John, says:

"The amercements in criminal and common pleas, which were wont to be
imposed during this first period and afterwards, were of so many several
sorts, that it is not easy to place them under distinct heads. Let them,
for method's sake, be reduced to the heads following: Amercements for or
by reason of murders and manslaughters, for misdemeanors, for
disseisins, for recreancy, for breach of assize, for defaults, for
non-appearance, for false judgment, and for not making suit, or hue and
cry. To them may be added miscellaneous amercements, for trespasses of
divers kinds."--_1 Maddox' History of the Exchequer_, 542.]

[Footnote 31: Coke, in his exposition of the words _legem terræ_, gives
quite in detail the principles of the common law governing _arrests_;
and takes it for granted that the words "_nisi per legem terræ_" are
applicable to arrests, as well as to the indictment, &c.--2 _Inst._,
51,52.]

[Footnote 32: I cite the above extract from Mr. Hallam solely for the
sake of his authority for rendering the word _vel_ by _and_; and not by
any means for the purpose of indorsing the opinion he suggests, that
_legem terræ_ authorized "judgments by default or demurrer," _without
the intervention of a jury_. He seems to imagine that _lex terræ_, the
common law, at the time of Magna Carta, included everything, even to the
practice of courts, that is, _at this day_, called by the name of
_Common Law_; whereas much of what is _now_ called Common Law has grown
up, by usurpation, since the time of Magna Carta, in palpable violation
of the authority of that charter. He says, "Certainly there are many
legal procedures, besides _trial_ by jury, through which a party's goods
or person may be taken." Of course there are _now_ many such ways, in
which a party's goods or person _are_ taken, besides by the judgment of
a jury; but the question is, whether such takings are not in violation
of Magna Carta.

He seems to think that, in cases of "judgment by default or demurrer,"
there is no need of a jury, and thence to infer that _legem terræ_ may
not have required a jury in those cases. But this opinion is founded on
the erroneous idea that juries are required only for determining
contested _facts_, and not for judging of the law. In case of default,
the plaintiff must present a _prima facie_ case before he is entitled to
a judgment; and Magna Carta, (supposing it to require a jury trial in
civil cases, as Mr. Hallam assumes that it does,) as much requires that
this _prima facie_ case, both law and fact, be made out to the
satisfaction of a jury, as it does that a contested case shall be.

As for a demurrer, the jury must try a demurrer (having the advice and
assistance of the court, of course) as much as any other matter of law
arising in a case.

Mr. Hallam evidently thinks there is no use for a jury, except where
there is a "_trial_"--meaning thereby a contest on matters of _fact_.
His language is, that "there are many legal procedures, besides _trial_
by jury, through which a party's goods or person may be taken." Now
Magna Carta says nothing of _trial_ by jury; but only of the _judgment_,
or sentence, of a jury. It is only _by inference_ that we come to the
conclusion that there must be a _trial_ by jury. Since the jury alone
can give the _judgment_, or _sentence_, we _infer_ that they must _try_
the case; because otherwise they would be incompetent, and would have no
moral right, to give _judgment_. They must, therefore, examine the
grounds, (both of law and fact,) or rather _try_ the grounds, of every
action whatsoever, whether it be decided on "default, demurrer," or
otherwise, and render their judgment, or sentence, thereon, before any
judgment can be a legal one, on which "to take a party's goods or
person." In short, the principle of Magna Carta is, that no judgment can
be valid _against a party's goods or person_, (not even a judgment for
costs,) except a judgment rendered by a jury. Of course a jury must try
every question, both of law and fact, that is involved in the rendering
of that judgment. They are to have the assistance and advice of the
judges, so far as they desire them; but the judgment itself must be
theirs, and not the judgment of the court.

As to "process of attachment for contempt," it is of course lawful for a
judge, in his character of a peace officer, to issue a warrant for the
arrest of a man guilty of a contempt, as he would for the arrest of any
other offender, and hold him to bail, (or, in default of bail, commit
him to prison,) to answer for his offence before a jury. Or he may order
him into custody without a warrant when the offence is committed in the
judge's presence. But there is no reason why a judge should have the
power of _punishing_ for contempt, any more than for any other offence.
And it is one of the most dangerous powers a judge can have, because it
gives him absolute authority in a court of justice, and enables him to
tyrannize as he pleases over parties, counsel, witnesses, and jurors. If
a judge have power to punish for contempt, and to determine for himself
what is a contempt, the whole administration of justice (or injustice,
if he choose to make it so) is in his hands. And all the rights of
jurors, witnesses, counsel, and parties, are held subject to his
pleasure, and can be exercised only agreeably to his will. He can of
course control the entire proceedings in, and consequently the decision
of, every cause, by restraining and punishing every one, whether party,
counsel, witness, or juror, who presumes to offer anything contrary to
his pleasure.

This arbitrary power, which has been usurped and exercised by judges to
punish for contempt, has undoubtedly had much to do in subduing counsel
into those servile, obsequious, and cowardly habits, which so
universally prevail among them, and which have not only cost so many
clients their rights, but have also cost the people so many of their
liberties.

If any _summary_ punishment for contempt be ever necessary, (as it
probably is not,) beyond exclusion for the time being from the
court-room, (which should be done, not as a punishment, but for
self-protection, and the preservation of order,) the judgment for it
should be given by the jury, (where the trial is before a jury,) and not
by the court, for the jury, and not the court, are really the judges.
For the same reason, exclusion from the court-room should be ordered
only by the jury, in cases when the trial is before a jury, because
they, being the real judges and triers of the cause, are entitled, if
anybody, to the control of the court-room. In appeal courts, where no
juries sit, it may be necessary--not as a punishment, but for
self-protection, and the maintenance of order--that the court should
exercise the power of excluding a person, for the time being, from the
court-room; but there is no reason why they should proceed to sentence
him as a criminal, without his being tried by a jury.

If the people wish to have their rights respected and protected in
courts of justice, it is manifestly of the last importance that they
jealously guard the liberty of parties, counsel, witnesses, and jurors,
against all arbitrary power on the part of the court.

Certainly Mr. Hallam may very well say that "one may doubt whether these
(the several cases he has mentioned) were in contemplation of the
framers of Magna Carta"--that is, as exceptions to the rule requiring
that all judgments, that are to be enforced "_against a party's goods or
person_," be rendered by a jury.

Again, Mr. Hallam says, if the word _vel_ be rendered by _and_, "the
meaning will be, that no person shall be disseized, &c., _except upon a
lawful cause of action_." This is true; but it does not follow that any
cause of action, founded on _statute only_, is therefore a "_lawful_
cause of action," within the meaning of _legem terræ_, or the _Common
Law_. Within the meaning of the _legem terræ_ of Magna Carta, nothing
but a _common law_ cause of action is a "_lawful_" one.]

[Footnote 33: Hallam says, "It appears as if the ordeal were permitted
to persons already convicted by this verdict of a jury."--_2 Middle
Ages_, 446, _note_.]




CHAPTER III.

ADDITIONAL PROOFS OF THE RIGHTS AND DUTIES OF JURORS.


If any evidence, extraneous to the history and language of Magna Carta,
were needed to prove that, by that chapter which guaranties the trial by
jury, all was meant that has now been ascribed to it, and _that the
legislation of the king was to be of no authority with the jury beyond
what they chose to allow to it_, and that the juries were to limit the
punishments to be inflicted, we should find that evidence in various
sources, such as the laws, customs, and characters of their ancestors on
the continent, and of the northern Europeans generally; in the
legislation and customs that immediately succeeded Magna Carta; in the
oaths that have at different times been administered to jurors, &c., &c.
This evidence can be exhibited here but partially. To give it all would
require too much space and labor.


SECTION I.

_Weakness of the Regal Authority._

Hughes, in his preface to his translation of Horne's "_Mirror of
Justices_," (a book written in the time of Edward I., 1272 to 1307,)
giving a concise view of the laws of England generally, says:

   "Although in the Saxon's time I find the usual words of the acts then
   to have been _edictum_, (edict,) _constitutio_, (statute,) little
   mention being made of the commons, yet I further find that, _tum
   demum leges vim et vigerem habuerunt, cum fuerunt non modo institutæ
   sed firmatæ approbatione communitatis_." (The laws had force and
   vigor only when they were not only enacted, but confirmed by the
   approval of the community.)

The _Mirror of Justices_ itself also says, (ch. 1, sec. 3,) in speaking
"_Of the first Constitutions of the Ancient Kings_:"

   "Many ordinances were made by many kings, until the time of the king
   that now is (Edward I.); the which ordinances were abused, _or not
   used by many, nor very current_, because they were not put in
   writing, and certainly published."--_Mirror of Justices_, p. 6.

Hallam says:

   "The Franks, Lombards, and Saxons seem alike to have been jealous of
   judicial authority; and averse to surrendering what concerned every
   man's private right, out of the hands of his neighbors and
   equals."--_1 Middle Ages_, 271.

The "judicial authority," here spoken of, was the authority of the
kings, (who at that time united the office of both legislators and
judges,) and not of a separate department of government, called the
judiciary, like what has existed in more modern times.[34]

Hume says:

   "The government of the Germans, and that of all the northern nations,
   who established themselves on the ruins of Rome, was always extremely
   free; and those fierce people, accustomed to independence and inured
   to arms, _were more guided by persuasion than authority, in the
   submission which they paid to their princes_. The military despotism,
   which had taken place in the Roman empire, and which, previously to
   the irruption of those conquerors, had sunk the genius of men, and
   destroyed every noble principle of science and virtue, was unable to
   resist the vigorous efforts of a free people, and Europe, as from a
   new epoch, rekindled her ancient spirit, and shook off the base
   servitude to arbitrary will and authority under which she had so long
   labored. The free constitutions then established, however impaired by
   the encroachments of succeeding princes, still preserve an air of
   independence and legal administration, which distinguished the
   European nations; and if that part of the globe maintain sentiments
   of liberty, honor, equity, and valor, superior to the rest of
   mankind, it owes these advantages chiefly to the seeds implanted by
   those generous barbarians.

   "_The Saxons, who subdued Britain, as they enjoyed great liberty in
   their own country, obstinately retained that invaluable possession in
   their new settlement; and they imported into this island the same
   principles of independence, which they had inherited from their
   ancestors. The chieftains, (for such they were, more than kings or
   princes,) who commanded them in those military expeditions, still
   possessed a very limited authority_; and as the Saxons exterminated,
   rather than subdued the ancient inhabitants, they were, indeed,
   transplanted into a new territory, _but preserved unaltered all their
   civil and military institutions_. The language was pure Saxon; even
   the names of places, which often remain while the tongue entirely
   changes, were almost all affixed by the conquerors; the manners and
   customs were wholly German; and the same picture of a fierce and bold
   liberty, which is drawn by the masterly pen of Tacitus, will suit
   those founders of the English government. _The king, so far from
   being invested with arbitrary power, was only considered as the first
   among the citizens; his authority depended more on his personal
   qualities than on his station; he was even so far on a level with the
   people, that a stated price was fixed for his head, and a legal fine
   was levied upon his murderer, which though proportionate to his
   station, and superior to that paid for the life of a subject, was a
   sensible mark of his subordination to the community._"--_1 Hume_,
   _Appendix_, 1.

Stuart says:

   "The Saxons brought along with them into Britain their own customs,
   language, and civil institutions. Free in Germany, they renounced not
   their independence, when they had conquered. Proud from victory, and
   with their swords in their hands, would they surrender their
   liberties to a private man? Would temporary leaders, limited in their
   powers, and unprovided in resources, ever think to usurp an authority
   over warriors, who considered themselves as their equals, were
   impatient of control, and attached with devoted zeal to their
   privileges? Or, would they find leisure to form resolutions, or
   opportunities to put them in practice, amidst the tumult and
   confusion of those fierce and bloody wars, which their nations first
   waged with the Britons, and then engaged in among themselves?
   Sufficiently flattered in leading the armies of their countrymen, the
   ambition of commanders could as little suggest such designs, as the
   liberty of the people could submit to them. The conquerors of Britain
   retained their independence; and this island saw itself again in
   that free state in which the Roman arms had discovered it.

   "The same firmness of character, and generosity of manners, which, in
   general, distinguished the Germans, were possessed in an eminent
   degree by the Saxons; and while we endeavor to unfold their political
   institutions, we must perpetually turn our observation to that
   masterly picture in which the Roman historian has described these
   nations. In the woods of Germany shall we find the principles which
   directed the state of land, in the different kingdoms of Europe; and
   there shall we find the foundation of those ranks of men, and of
   those civil arrangements, which the barbarians everywhere
   established; and which the English alone have had the good fortune,
   or the spirit, to preserve."--_Stuart on the Constitution of
   England_, p. 59-61.

   "Kings they (the Germans) respected as the first magistrates of the
   state; but the authority possessed by them was narrow and
   limited."--_Ditto_, p. 134.

   "Did he, (the king,) at any time, relax his activity and martial
   ardor, did he employ his abilities to the prejudice of his nation, or
   fancy he was superior to the laws; the same power which raised him to
   honor, humbled and degraded him. The customs and councils of his
   country pointed out to him his duty; and if he infringed on the
   former, or disobeyed the latter, a fierce people set aside his
   authority. * *

   "His long hair was the only ornament he affected, and to be foremost
   to attack an enemy was his chief distinction. Engaged in every
   hazardous expedition, he was a stranger to repose; and, rivalled by
   half the heroes of his tribe, he could obtain little power. Anxious
   and watchful for the public interest, he felt every moment his
   dependence, and gave proofs of his submission.

   "He attended the general assembly of his nation, and was allowed the
   privilege to harangue it first; but the arts of persuasion, though
   known and respected by a rude people, were unequally opposed to the
   prejudices and passions of men."--_Ditto_, p. 135-6.

   "_The authority of a Saxon monarch was not more considerable. The
   Saxons submitted not to the arbitrary rule of princes. They
   administered an oath to their sovereigns, which bound them to
   acknowledge the laws, and to defend the rights of the church and
   people; and if they forgot this obligation, they forfeited their
   office._ In both countries, a price was affixed on kings, a fine
   expiated their murder, as well as that of the meanest citizen; and
   the smallest violation of ancient usage, or the least step towards
   tyranny, was always dangerous, and often fatal to them."--_Ditto_, p.
   139-40.

   "They were not allowed to impose taxes on the kingdom."--_Ditto_, p.
   146.

   "Like the German monarchs, they deliberated in the general assembly
   of the nation; _but their legislative authority was not much
   respected_; and their assent was considered in no better light than
   as a form. This, however, was their chief prerogative; and they
   employed it to acquire an ascendant in the state. To art and
   insinuation they turned, as their only resource, and flattered a
   people whom they could not awe; but address, and the abilities to
   persuade, were a weak compensation for the absence of real power.

   "They declared war, it is said, and made peace. In both cases,
   however, they acted as the instruments of the state, and put in
   execution the resolutions which its councils had decreed. If, indeed,
   an enemy had invaded the kingdom, and its glory and its safety were
   concerned, the great lords took the field at the call of their
   sovereign. But had a sovereign declared war against a neighboring
   state, without requiring their advice, or if he meant to revenge by
   arms an insult offered to him by a subject, a haughty and independent
   nobility refused their assistance. These they considered as the
   quarrels of the king, and not of the nation; and in all such
   emergencies he could only be assisted by his retainers and
   dependents."--_Ditto_, p. 147-8.

   "Nor must we imagine that the Saxon, any more than the German
   monarchs, succeeded each other in a lineal descent,[35] or that they
   disposed of the crown at their pleasure. In both countries, the free
   election of the people filled the throne; and their choice was the
   only rule by which princes reigned. The succession, accordingly, of
   their kings was often broken and interrupted, and their depositions
   were frequent and groundless. The will of a prince whom they had long
   respected, and the favor they naturally transferred to his
   descendant, made them often advance him to the royal dignity; but the
   crown of his ancestor he considered as the gift of the people, and
   neither expected nor claimed it as a right."--_Ditto_, p. 151-3.

In Germany "It was the business of the great to command in war, and in
peace they distributed justice. * *

   "The _princes_ in Germany were _earls_ in England. The great
   contended in both countries in the number of their retainers, and in
   that splendor and magnificence which are so alluring to a rude
   people; and though they joined to set bounds to regal power, they
   were often animated against each other with the fiercest hatred. To a
   proud and impatient nobility it seemed little and unsuiting to give
   or accept compositions for the injuries they committed or received;
   and their vassals adopting their resentment and passions, war and
   bloodshed alone could terminate their quarrels. What necessarily
   resulted from their situation in society, was continued as a
   _privilege_; and the great, in both countries, made war, of their
   private authority, on their enemies. The Saxon earls even carried
   their arms against their sovereigns; and, surrounded with retainers,
   or secure in fortresses and castles, they despised their resentment,
   and defied their power.

   "The judges of the people, they presided in both countries in courts
   of law.[36] The particular districts over which they exerted their
   authority were marked out in Germany by the council of the state; and
   in England their jurisdiction extended over the fiefs and other
   territories they possessed. All causes, both civil and criminal, were
   tried before them; and they judged, except in cases of the utmost
   importance, without appeal. They were even allowed to grant pardon to
   criminals, and to correct by their clemency the rigors of justice.
   Nor did the sovereign exercise any authority in their lands. In these
   his officers formed no courts, and his _writ_ was disregarded. * *

   "They had officers, as well as the king, who collected their
   revenues, and added to their greatness; and the inhabitants of their
   lands they distinguished by the name of _subjects_.

   "But to attend the general assembly of their nation was the chief
   prerogative of the German and Saxon princes; and as they consulted
   the interest of their country, and deliberated concerning matters of
   state, so in the _king's court_, of which also they were members,
   they assisted to pronounce judgment in the complaints and appeals
   which were lodged in it."--_Ditto_, p. 158 to 165.

Henry says:

   "Nothing can be more evident than this important truth; that our
   Anglo-Saxon kings were not absolute monarchs; but that their powers
   and prerogatives were limited by the laws and customs of the country.
   Our Saxon ancestors had been governed by limited monarchs in their
   native seats on the continent; and there is not the least appearance
   or probability that they relinquished their liberties, and submitted
   to absolute government in their new settlements in this island. It is
   not to be imagined that men, whose reigning passion was the love of
   liberty, would willingly resign it; and their new sovereigns, who had
   been their fellow-soldiers, had certainly no power to compel them to
   such a resignation."--_3 Henry's History of Great Britain_, 358.

   Mackintosh says: "The Saxon chiefs, who were called kings, originally
   acquired power by the same natural causes which have gradually, and
   everywhere, raised a few men above their fellows. They were,
   doubtless, more experienced, more skilful, more brave, or more
   beautiful, than those who followed them. * * A king was powerful in
   war by the lustre of his arms, and the obvious necessity of
   obedience. His influence in peace fluctuated with his personal
   character. In the progress of usage his power became more fixed and
   more limited. * * It would be very unreasonable to suppose that the
   northern Germans who had conquered England, had so far changed their
   characteristic habits from the age of Tacitus, that the victors
   became slaves, and that their generals were converted into
   tyrants."--_Mackintosh's Hist. of England, Ch. 2._ _45 Lardner's Cab.
   Cyc._, 73-4.

Rapin, in his discourse on the "Origin and Nature of the English
Constitution," says:

   "There are but two things the Saxons did not think proper to trust
   their kings with; for being of like passions with other men, they
   might very possibly abuse them; namely, the power of changing the
   laws enacted by consent of king and people; and the power of raising
   taxes at pleasure. From these two articles sprung numberless branches
   concerning the liberty and property of the subject, which the king
   cannot touch, without breaking the constitution, and they are the
   distinguishing character of the English monarchy. The prerogatives of
   the crown, and the rights and privileges of the people, flowing from
   the two fore-mentioned articles, are the ground of all the laws that
   from time to time have been made by unanimous consent of king and
   people. The English government consists in the strict union of the
   king's prerogatives with the people's liberties. * * But when kings
   arose, as some there were, that aimed at absolute power, by changing
   the old, and making new laws, at pleasure; by imposing illegal taxes
   on the people; this excellent government being, in a manner,
   dissolved by these destructive measures, confusion and civil wars
   ensued, which some very wrongfully ascribe to the fickle and restless
   temper of the English."--_Rapin's Preface to his History of England._

Hallam says that among the Saxons, "the royal authority was weak."--_2
Middle Ages_, 403.

But although the king himself had so little authority, that it cannot be
supposed for a moment that his laws were regarded as imperative by the
people, it has nevertheless been claimed, in modern times, by some who
seem determined to find or make a precedent for the present legislative
authority of parliament, that his laws were authoritative, _when
assented to_ by the _Witena-gemote_, or assembly of wise men--that is,
the bishops and barons. But this assembly evidently had no legislative
power whatever. The king would occasionally invite the bishops and
barons to meet him for consultation on public affairs, _simply as a
council_, and not as a legislative body. Such as saw fit to attend, did
so. If they were agreed upon what ought to be done, the king would pass
a law accordingly, and the barons and bishops would then return and
inform the people orally what laws had been passed, and use their
influence with them to induce them to conform to the law of the king,
and the recommendation of the council. And the people no doubt were much
more likely to accept a law of the king, if it had been approved by this
council, than if it had not. But it was still only a law of the king,
which they obeyed or disregarded according to their own notions of
expediency. The numbers who usually attended this council were too small
to admit of the supposition that they had any legislative authority
whatever, to impose laws upon the people against their will.

Lingard says:

   "It was necessary that the king should obtain the assent of these
   (the members of the Witena-gemotes) to all legislative enactments;
   _because, without their acquiescence and support, it was impossible
   to carry them into execution_. To many charters (laws) we have the
   signatures of the Witan. _They seldom exceed thirty in number; they
   never amount to sixty._"--_1 Lingard_, 486.

It is ridiculous to suppose that the assent of such an assembly gave any
_authority_ to the laws of the king, or had any influence in securing
obedience to them, otherwise than by way of persuasion. If this body had
had any real legislative authority, such as is accorded to legislative
bodies of the present day, they would have made themselves at once the
most conspicuous portion of the government, and would have left behind
them abundant evidence of their power, instead of the evidence simply of
their assent to a few laws passed by the king.

More than this. If this body had had any real legislative authority,
they would have constituted an aristocracy, having, in conjunction with
the king, absolute power over the people. Assembling voluntarily, merely
on the invitation of the king; deputed by nobody but themselves;
representing nobody but themselves; responsible to nobody but
themselves; their legislative authority, if they had had any, would of
necessity have made the government the government of an aristocracy
merely, _and the people slaves, of course_. And this would necessarily
have been the picture that history would have given us of the
Anglo-Saxon government, _and of Anglo-Saxon liberty_.

The fact that the people had no representation in this assembly, and the
further fact that, through their juries alone, they nevertheless
maintained that noble freedom, the very tradition of which (after the
substance of the thing itself has ceased to exist) has constituted the
greatest pride and glory of the nation to this day, _prove_ that this
assembly exercised no authority which juries of the people acknowledged,
except at their own discretion.[37]

There is not a more palpable truth, in the history of the Anglo-Saxon
government, than that stated in the Introduction to Gilbert's History of
the Common Pleas,[38] viz., "_that the County and Hundred Courts_," (to
which should have been added the other courts in which juries sat, the
courts-baron and court-leet,) "_in those times were the real and only
Parliaments of the kingdom_." And why were they the real and only
parliaments of the kingdom? Solely because, as will be hereafter shown,
the juries in those courts tried causes on their intrinsic merits,
according to their own ideas of justice, irrespective of the laws agreed
upon by kings, priests, and barons; and whatever principles they
uniformly, or perhaps generally, enforced, _and none others_, became
practically the law of the land as matter of course.[39]

Finally, on this point. Conclusive proof that the legislation of the
king was of little or no authority, is found in the fact _that the kings
enacted so few laws_. If their laws had been received as authoritative,
in the manner that legislative enactments are at this day, they would
have been making laws continually. Yet the codes of the most celebrated
kings are very small, and were little more than compilations of
immemorial customs. The code of Alfred would not fill twelve pages of
the statute book of Massachusetts, and was little or nothing else than a
compilation of the laws of Moses, and the Saxon customs, evidently
collected from considerations of convenience, rather than enacted on the
principle of authority. The code of Edward the Confessor would not fill
twenty pages of the statute book of Massachusetts, and, says Blackstone,
"seems to have been no more than a new edition, or fresh promulgation of
Alfred's code, or _dome-book_, with such additions and improvements as
the experience of a century and a half suggested."--_1 Blackstone_,
66.[40]

The Code of William the Conqueror[41] would fill less than seven pages
of the statute book of Massachusetts; and most of the laws contained in
it are taken from the laws of the preceding kings, and especially of
Edward the Confessor (whose laws William swore to observe); but few of
his own being added.

The codes of the other Saxon and Norman kings were, as a general rule,
less voluminous even than these that have been named; and probably did
not exceed them in originality.[42] The Norman princes, from William the
Conqueror to John, I think without exception, bound themselves, and, in
order to maintain their thrones, were obliged to bind themselves, to
observe the ancient laws and customs, in other words, the "_lex terræ_,"
or "_common law_" of the kingdom. Even Magna Carta contains hardly
anything other than this same "_common law_," with some new securities
for its observance.

How is this abstinence from legislation, on the part of the ancient
kings, to be accounted for, except on the supposition that the people
would accept, and juries enforce, few or no new laws enacted by their
kings? Plainly it can be accounted for in no other way. In fact, all
history informs us that anciently the attempts of the kings to introduce
or establish new laws, met with determined resistance from the people,
and generally resulted in failure. "_Nolumus Leges Angliæ mutari_," (we
will that the laws of England be not changed,) was a determined
principle with the Anglo-Saxons, from which they seldom departed, up to
the time of Magna Carta, and indeed until long after.[43]


SECTION II.

_The Ancient Common Law Juries were mere Courts of Conscience._

But it is in the administration of justice, or of law, that the freedom
or subjection of a people is tested. If this administration be in
accordance with the arbitrary will of the legislator--that is, if his
will, as it appears in his statutes, be the highest rule of decision
known to the judicial tribunals,--the government is a despotism, and the
people are slaves. If, on the other hand, the rule of decision be those
principles of natural equity and justice, which constitute, or at least
are embodied in, the general conscience of mankind, the people are free
in just so far as that conscience is enlightened.

That the authority of the king was of little weight with the _judicial
tribunals_, must necessarily be inferred from the fact already stated,
that his authority over the _people_ was but weak. If the authority of
his laws had been paramount in the judicial tribunals, it would have
been paramount with the people, of course; because they would have had
no alternative but submission. The fact, then, that his laws were _not_
authoritative with the people, is proof that they were _not_
authoritative with the tribunals--in other words, that they were not, as
matter of course, enforced by the tribunals.

But we have additional evidence that, up to the time of Magna Carta, the
laws of the king were not binding upon the judicial tribunals; and if
they were not binding before that time, they certainly were not
afterwards, as has already been shown from Magna Carta itself. It is
manifest from all the accounts we have of the courts in which juries
sat, prior to Magna Carta, such as the court-baron, the hundred court,
the court-leet, and the county court, _that they were mere courts of
conscience, and that the juries were the judges, deciding causes
according to their own notions of equity, and not according to any laws
of the king, unless they thought them just_.

These courts, it must be considered, were very numerous, and held very
frequent sessions. There were probably seven, eight, or nine hundred
courts _a month_, in the kingdom; the object being, as Blackstone says,
"_to bring justice home to every man's door_." (_3 Blackstone_, 30.) The
number of the _county_ courts, of course, corresponded to the number of
counties, (36.) The _court-leet_ was the criminal court for a district
less than a county. The _hundred court_ was the court for one of those
districts anciently called a _hundred_, because, at the time of their
first organization for judicial purposes, they comprised (as is
supposed) but a hundred families.[44] The court-baron was the court for
a single manor, and there was a court for every manor in the kingdom.
All these courts were holden as often as once in three or five weeks;
the county court once a month. The king's judges were present at none of
these courts; the only officers in attendance being sheriffs, bailiffs,
and stewards, merely ministerial, and not judicial, officers; doubtless
incompetent, and, if not incompetent, untrustworthy, for giving the
juries any reliable information in matters of law, beyond what was
already known to the jurors themselves. And yet these were the courts,
in which was done all the judicial business, both civil and criminal, of
the nation, except appeals, and some of the more important and difficult
cases.[45] It is plain that the juries, in these courts, must, of
necessity, have been the sole judges of all matters of law whatsoever;
because there was no one present, but sheriffs, bailiffs, and stewards,
to give them any instructions; and surely it will not be pretended that
the jurors were bound to take their law from such sources as these.

In the second place, it is manifest that the principles of law, by which
the juries determined causes, were, as a general rule, nothing else than
their own ideas of natural equity, _and not any laws of the king_;
because but few laws were enacted, and many of those were not written,
but only agreed upon in council.[46] Of those that were written, few
copies only were made, (printing being then unknown,) and not enough to
supply all, or any considerable number, of these numerous courts. Beside
and beyond all this, few or none of the jurors could have read the laws,
if they had been written; because few or none of the common people
could, at that time, read. Not only were the common people unable to
read their own language, but, at the time of Magna Carta, the laws were
written in Latin, a language that could be read by few persons except
the priests, who were also the lawyers of the nation. Mackintosh says,
"the first act of the House of Commons composed and recorded in the
English tongue," was in 1415, two centuries after Magna Carta.[47] Up to
this time, and for some seventy years later, the laws were generally
written either in Latin or French; both languages incapable of being
read by the common people, as well Normans as Saxons; and one of them,
the Latin, not only incapable of being read by them, but of being even
understood when it was heard by them.

To suppose that the people were bound to obey, and juries to enforce,
laws, many of which were unwritten, none of which _they_ could read, and
the larger part of which (those written in Latin) they could not
translate, or understand when they heard them read, is equivalent to
supposing the nation sunk in the most degrading slavery, instead of
enjoying a liberty of their own choosing.

Their knowledge of the laws passed by the king was, of course, derived
only from oral information; and "_the good laws_," as some of them were
called, in contradistinction to others--those which the people at large
esteemed to be good laws--were doubtless enforced by the juries, and the
others, as a general thing, disregarded.[48]

That such was the nature of judicial proceedings, and of the power of
juries, up to the time of Magna Carta, is further shown by the following
authorities.

   "The sheriffs and bailiffs caused the free tenants of their bailiwics
   to meet at their counties and hundreds; _at which justice was so
   done, that every one so judged his neighbor by such judgment as a man
   could not elsewhere receive in the like cases_, until such times as
   the customs of the realm were put in writing, and certainly
   published.

   "And although a freeman commonly was not to serve (as a juror or
   judge) without his assent, nevertheless it was assented unto that
   free tenants should meet together in the counties and hundreds, and
   lords courts, if they were not specially exempted to do such suits,
   and _there judged their neighbors_."--_Mirror of Justices_, p. 7, 8.

Gilbert, in his treatise on the Constitution of England, says:

   "In the county courts, if the debt was above forty shillings, there
   issued a _justicies_ (a commission) to the sheriff, to enable him to
   hold such a plea, _where the suitors_ (_jurors_) _are judges of the
   law and fact_."--_Gilbert's Cases in Law and Equity, &c., &c._, 456.

All the ancient writs, given in Glanville, for summoning jurors,
indicate that the jurors judged of everything, _on their consciences
only_. The writs are in this form:

   "Summon twelve free and legal men (or sometimes twelve knights) to be
   in court, _prepared upon their oaths to declare whether A or B have
   the greater right to the land_ (_or other thing_) _in question_." See
   Writs in Beames' Glanville, p. 54 to 70, and 233-306 to 332.

Crabbe, speaking of the time of Henry I., (1100 to 1135,) recognizes the
fact that the jurors were the judges. He says:

   "By one law, every one was to be tried by his peers, who were of the
   same neighborhood as himself. * * By another law, _the judges, for so
   the jury were called_, were to be chosen by the party impleaded,
   after the manner of the Danish _nembas_; by which, probably, is to be
   understood that the defendant had the liberty of taking exceptions
   to, or challenging the jury, as it was afterwards called."--_Crabbe's
   History of the English Law_, p. 55.

Reeve says:

   "The great court for _civil_ business was the _county court_; held
   once every four weeks. Here the sheriff presided; _but the suitors of
   the court, as they were called, that is, the freemen or landholders
   of the county, were the judges_; and the sheriff was to execute the
   judgment. * *

   "The _hundred court_ was held before _some bailiff_; the _leet_
   before the lord of the manor's steward.[49] * *

   "Out of the county court was derived an inferior court of _civil_
   jurisdiction, called the _court-baron_. This was held from three
   weeks to three weeks, and _was in every respect like the county
   court_;" (_that is, the jurors were judges in it_;) "only the lord to
   whom this franchise was granted, or _his steward_, _presided instead
   of the sheriff_."--_1 Reeve's History of the English Law_, p. 7.

Chief Baron Gilbert says:

   "Besides the tenants of the king, which held _per baroniam_, (by the
   right of a baron,) and did suit and service (served as judges) at his
   own court; and the burghers and tenants in ancient demesne, that did
   suit and service (served as jurors or judges) in their own court in
   person, and in the king's by proxy, there was also a set of
   freeholders, that did suit and service (served as jurors) at the
   county court. These were such as anciently held of the lord of the
   county, and by the escheats of earldoms had fallen to the king; or
   such as were granted out by service to hold of the king, but with
   particular reservation to do suit and service (serve as jurors)
   before the king's bailiff; _because it was necessary the sheriff, or
   bailiff of the king, should have suitors_ (_jurors_) _at the county
   court, that the business might be despatched. These suitors are the
   pares_ (_peers_) _of the county court, and indeed the judges of it;
   as the pares_ (_peers_) _were the judges in every court-baron_; and
   therefore the king's bailiff having a court before him, there must be
   _pares or judges, for the sheriff himself is not a judge_; and though
   the style of the court is _Curia prima Comitatus E.C. Milit.'
   vicecom' Comitat' præd' Tent' apud B._, &c. (First Court of the
   county, E.C. knight, sheriff of the aforesaid county, held at B., &c.);
   by which it appears that the court was the sheriff's; _yet, by
   the old feudal constitutions, the lord was not judge, but the pares_
   (_peers_) _only_; so that, even in a _justicies_, which was a
   commission to the sheriff to hold plea of more than was allowed by
   the natural jurisdiction of a county court, _the pares_ (_peers,
   jurors_) _only were judges, and not the sheriff_; because it was to
   hold plea in the same manner as they used to do in that (the lord's)
   court."--_Gilbert on the Court of Exchequer_, ch. 5, p. 61-2.

   "It is a distinguishing feature of the feudal system, to make civil
   jurisdiction necessarily, and criminal jurisdiction ordinarily,
   coëxtensive with tenure; and accordingly there is inseparably
   incident to every manor a court-baron (curia baronum), _being a court
   in which the freeholders of the manor are the sole judges_, but in
   which the lord, by himself, or more commonly by his steward,
   presides."--_Political Dictionary_, word _Manor_.

The same work, speaking of the county court, says: "_The judges were the
freeholders who did suit to the court._" See word _Courts_.

   "In the case of freeholders attending as suitors, the county court
   or court-baron, (as in the case of the ancient tenants _per baroniam_
   attending Parliament,) _the suitors are the judges of the court, both
   for law and for fact_, and the sheriff or the under sheriff in the
   county court, and the lord or his steward in the court-baron, are
   only presiding officers, _with no judicial authority_."--_Political
   Dictionary_, word _Suit_.

   "COURT, (curtis, curia aula); the space enclosed by the walls of a
   feudal residence, in which the followers of a lord used to assemble
   in the middle ages, to administer justice, and decide respecting
   affairs of common interest, &c. It was next used for those who stood
   in immediate connexion with the lord and master, the _pares curiæ_,
   (peers of the court,) the limited portion of the general assembly, to
   which was entrusted the pronouncing of judgment," &c.--_Encyclopedia
   Americana_, word _Court_.

   "In court-barons or county courts _the steward was not judge, but the
   pares_ (_peers_, _jurors_); nor was the speaker in the House of Lords
   judge, but the barons only."--_Gilbert on the Court of Exchequer_,
   ch. 3, p. 42.

Crabbe, speaking of the Saxon times, says:

   "The sheriff presided at the _hundred court_, * * and sometimes sat
   in the place of the alderman (earl) in the _county
   court_."--_Crabbe_, 23.

The sheriff afterwards became the sole presiding officer of the county
court.

Sir Thomas Smith, Secretary of State to Queen Elizabeth, writing more
than three hundred years after Magna Carta, in describing the difference
between the Civil Law and the English Law, says:

   "_Judex_ is of us called Judge, but our fashion is so divers, that
   they which give the deadly stroke, and either condemn or acquit the
   man for guilty or not guilty, _are not called judges, but the twelve
   men. And the same order as well in civil matters and pecuniary, as in
   matters criminal_."--_Smith's Commonwealth of England_, ch. 9, p. 53,
   Edition of 1621.

   _Court-Leet._ "That the _leet_ is the most ancient court in the land
   for _criminal_ matters, (the court-baron being of no less antiquity
   in _civil_,) has been pronounced by the highest legal authority. * *
   Lord Mansfield states that this court was coeval with the
   establishment of the Saxons here, and its activity marked very
   visibly both among the Saxons and Danes. * * The leet is a court of
   record for the cognizance of criminal matters, or pleas of the crown;
   and necessarily belongs to the king; though a subject, usually the
   lord of the manor, may be, and is, entitled to the profits,
   consisting of the essoign pence, fines, and amerciaments.

   "_It is held before the steward, or was, in ancient times, before the
   bailiff, of the lord._"--_Tomlin's Law Dict._, word _Court-Leet_.

Of course the jury were the judges in this court, where only a "steward"
or "bailiff" of a manor presided.

   "No cause of consequence was determined without the king's writ; for
   even in the county courts, of the debts, which were above forty
   shillings, there issued a _Justicies_ (commission) to the sheriff, to
   enable him to hold such plea, _where the suitors are judges of the
   law and fact_."--_Gilbert's History of the Common Pleas,
   Introduction_, p. 19.

   "This position" (that "the matter of law was decided by the King's
   Justices, but the matter of fact by the pares") "_is wholly
   incompatible with the common law, for the Jurata (jury) were the sole
   judges both of the law and the fact_."--_Gilbert's History of the
   Common Pleas_, p. 70, _note_.

   We come now to the challenge; and of old _the suitors in court, who
   were judges_, could not be challenged; nor by the feudal law could
   the _pares_ be even challenged, _Pares qui ordinariam jurisdictionem
   habent recusari non possunt_; (the peers who have ordinary
   jurisdiction cannot be rejected;) "_but those suitors who are judges
   of the court_, could not be challenged; and the reason is, that there
   are several qualifications required by the writ, viz., that they be
   _liberos et legales homines de vincineto_ (free and legal men of the
   neighborhood) of the place laid in the declaration," &c.,
   &c.--_Ditto_, p. 93.

   "_Ad questionem juris non respondent Juratores._" (To the question of
   law the jurors do not answer.) "The Annotist says, that this is
   indeed a maxim in the Civil-Law Jurisprudence, _but it does not bind
   an English jury, for by the common law of the land the jury are
   judges as well of the matter of law, as of the fact_, with this
   difference only, that the (a Saxon word) or judge on the bench is to
   give them no assistance in determining the matter of _fact_, but if
   they have any doubt among themselves relating to matter of _law_,
   they may then request him to explain it to them, which when he hath
   done, and they are thus become well informed, they, and they only,
   become competent judges of the matter of _law_. And this is the
   province of the judge on the bench, namely, to show, or _teach_ the
   law, but not to take upon him the trial of the delinquent, either in
   matter of fact or in matter of law." (Here various Saxon laws are
   quoted.) "In neither of these fundamental laws is there the least
   word, hint, or idea, that the earl or alderman (that is to say, the
   _Prepositus_ (presiding officer) of the court, which is tantamount to
   _the judge on the bench_) is to take upon him to judge the delinquent
   in any sense whatever, the sole purport of his office is to _teach_
   the secular or worldly law."--_Ditto_, p. 57, _note_.

   "The administration of justice was carefully provided for; it was not
   the caprice of their lord, _but the sentence of their peers, that
   they obeyed. Each was the judge of his equals, and each by his equals
   was judged._"--_Introd. to Gilbert on Tenures_, p. 12.

   Hallam says: "A respectable class of free socagers, having, in
   general, full rights of alienating their lands, and holding them
   probably at a small certain rent from the lord of the manor,
   frequently occur in Domes-day Book. * * They undoubtedly were suitors
   to the court-baron of the lord, to whose soc, or right of justice,
   they belonged. _They were consequently judges in civil causes,
   determined before the manorial tribunal._"--_2 Middle Ages_, 481.

Stephens adopts as correct the following quotations from Blackstone:

   "The _Court-Baron_ is a court incident to every manor in the kingdom,
   to be holden by the steward within the said manor." * * _It "is a
   court of common law, and it is the court before the freeholders who
   owe suit and service to the manor_," (are bound to serve as jurors in
   the courts of the manor,) "_the steward being rather the registrar
   than the judge_. * * The freeholders' court was composed of the
   lord's tenants, who were the _pares_ (equals) of each other, and were
   bound by their feudal tenure to assist their lord in the dispensation
   of domestic justice. This was formerly held every three weeks; _and
   its most important business was to determine, by writ of right, all
   controversies relating to the right of lands within the manor_."--_3
   Stephens' Commentaries_, 392-3. _3 Blackstone_, 32-3.

   "A _Hundred Court_ is only a larger court-baron, being held for all
   the inhabitants of a particular hundred, instead of a manor. _The
   free suitors (jurors) are here also the judges, and the steward the
   register._"--_3 Stephens_, 394. _3 Blackstone_, 33.

   "The _County Court_ is a court incident to the jurisdiction of the
   sheriff. * * _The freeholders of the county are the real judges in
   this court, and the sheriff is the ministerial officer._"--_3
   Stephens_, 395-6. _3 Blackstone_, 35-6.

Blackstone describes these courts, as courts "_wherein injuries were
redressed in an easy and expeditious manner, by the suffrage of
neighbors and friends_."--_3 Blackstone_, 30.

   "When we read of a certain number of _freemen_ chosen by the parties
   to decide in a dispute--all bound by oath to vote _in foro
   conscientia_--and that _their_ decision, _not the will of the judge
   presiding, ended the suit_, we at once perceive that a great
   improvement has been made in the old form of compurgation--an
   improvement which impartial observation can have no hesitation to
   pronounce as identical in its main features with the trial by
   jury."--_Dunham's Middle Ages_, Sec. 2, B. 2, Ch. 1. _57 Lardner's
   Cab. Cyc._, 60.

   "The bishop and the earl, or, in his absence, the gerefa, (sheriff,)
   and sometimes both the earl and the gerefa, presided at the
   _schyre-mote_ (county court); the gerefa (sheriff) usually alone
   presided at the _mote_ (meeting or court) of the hundred. In the
   cities and towns which were not within any peculiar jurisdiction,
   there was held, at regular stated intervals, a _burgh mote_, (borough
   court,) for the administration of justice, at which a gerefa, or a
   magistrate appointed by the king, presided."--_Spence's Origin of the
   Laws and Political Institutions of Modern Europe_, p. 444.

   "The right of the plaintiff and defendant, and of the prosecutor and
   criminal, _to challenge the judices_, (judges,) _or assessors,[50]
   appointed to try the cause in civil matters, and to decide upon the
   guilt or innocence of the accused in criminal matters_, is recognized
   in the treatise called the Laws of Henry the First; but I cannot
   discover, from the Anglo-Saxon laws or histories, that before the
   Conquest the parties had any general right of challenge; _indeed, had
   such right existed, the injunctions to all persons standing in the
   situation of judges (jurors) to do right according to their
   conscience_, would scarcely have been so frequently and anxiously
   repeated."--_Spence_, 456.

Hale says:

   "The administration of the common justice of the kingdom seems to be
   wholly dispensed in the county courts, hundred courts, and
   courts-baron; except some of the greater crimes reformed by the laws
   of King Henry I., and that part thereof which was sometimes taken up
   by the _Justitiarius Angliæ_."

   This doubtless bred great inconvenience, uncertainty, and variety in
   the laws, viz.:

   "_First, by the ignorance of the judges, which were the freeholders
   of the county._ * *

   "Thirdly, a third inconvenience was, that all the business of any
   moment was carried by parties and factions. _For the freeholders
   being generally the judges_, and conversing one among another, _and
   being as it were the chief judges, not only of the fact, but of the
   law_; every man that had a suit there, sped according as he could
   make parties."--_1 Hale's History of the Common Law_, p. 246.

   "In all these tribunals," (county court, hundred court, &c.,) "_the
   judges were the free tenants_, owing suit to the court, and
   afterwards called its peers."--_1 Lingard's History of England_, 488.

Henry calls the twelve jurors "assessors," and says:

   "These assessors, _who were in reality judges_, took a solemn oath,
   that they would faithfully discharge the duties of their office, and
   not suffer an innocent man to be condemned, nor any guilty person to
   be acquitted."--_3 Henry's History of Great Britain_, 346.

Tyrrell says:

   "Alfred cantoned his kingdom, first into _Trihings_ and _Lathes_, as
   they are still called in Kent and other places, consisting of three
   or four Hundreds; _in which, the freeholders being judges_, such
   causes were brought as could not be determined in the Hundred
   court."--_Tyrrell's Introduction to the History of England_, p. 80.

Of the _Hundred Court_ he says:

   "In this court anciently, _one of the principal inhabitants, called
   the alderman, together with the barons of the Hundred[51]--id est the
   freeholders--was judge_."--_Ditto_, p. 80.

Also he says:

   "By a law of Edward the Elder, 'Every sheriff shall convene the
   people once a month, and do equal right to all, putting an end to
   controversies at times appointed.'"--_Ditto_, p. 86.

   "A statute, emphatically termed the 'Grand Assize,' enabled the
   defendant, if he thought proper, to abide by the testimony of the
   twelve good and lawful knights, chosen by four others of the
   vicinage, _and whose oaths gave a final decision to the contested
   claim_."--_1 Palgrave's Rise and Progress of the English
   Commonwealth_, 261.

   "From the moment when the crown became accustomed to the 'Inquest,' a
   restraint was imposed upon every branch of the prerogative. _The king
   could never be informed of his rights, but through the medium of the
   people._ Every 'extent' by which he claimed the profits and
   advantages resulting from the casualties of tenure, every process by
   which he repressed the usurpations of the baronage, depended upon the
   'good men and true' who were impanelled to 'pass' between the subject
   and the sovereign; and the thunder of the Exchequer at Westminster
   might be silenced by the honesty, the firmness, or the obstinacy, of
   one sturdy knight or yeoman in the distant shire.

   Taxation was controlled in the same manner by the voice of those who
   were most liable to oppression. * * A jury was impanelled to adjudge
   the proportion due to the sovereign; and this course was not
   essentially varied, even after the right of granting aids to the
   crown was fully acknowledged to be vested in the parliament of the
   realm. The people taxed themselves; and the collection of the grants
   was checked and controlled, and, perhaps, in many instances evaded,
   by these virtual representatives of the community.

   The principle of the jury was, therefore, not confined to its mere
   application as a mode of trying contested facts, whether in civil or
   criminal cases; and, both in its form and in its consequences, it had
   a very material influence upon the general constitution of the realm.
   * * The main-spring of the machinery of remedial justice existed in
   the franchise of the lower and lowest orders of the political
   hierarchy. Without the suffrage of the yeoman, the burgess, and the
   churl, the sovereign could not exercise the most important and most
   essential function of royalty; from them he received the power of
   life and death; he could not wield the sword of justice until the
   humblest of his subjects placed the weapon in his hand."--_1
   Palgrave's Rise and Progress of the English Constitution_, 274-7.

Coke says, "The court of the county is no court of record,[52] _and the
suitors are the judges thereof_."--_4 Inst._, 266.

Also, "The court of the Hundred is no court of record, _and the suitors
be thereof judges_."--_4 Inst._, 267.

Also, "The court-baron is a court incident to every manor, and is not of
record, _and the suitors be thereof judges_."--_4 Inst._, 268.

Also, "The court of ancient demesne is in the nature of a court-baron,
_wherein the suitors are judges_, and is no court of record."--_4
Inst._, 269.

Millar says, "Some authors have thought that jurymen were originally
_compurgators_, called by a defendant to swear that they believed him
innocent of the facts with which he was charged.... But ... compurgators
were merely witnesses; _jurymen were, in reality, judges_. The former
were called to confirm the oath of the party by swearing, according to
their belief, that he had told the truth, (in his oath of purgation;)
_the latter were appointed to try, by witnesses, and by all other means
of proof, whether he was innocent or guilty_.... Juries were accustomed
to ascertain the truth of facts, by the defendant's oath of purgation,
together with that of his compurgators.... Both of them (jurymen and
compurgators) were obliged to swear that they would _tell the truth_....
According to the simple idea of our forefathers, guilt or innocence was
regarded as a mere matter of fact; and it was thought that no man, who
knew the real circumstances of a case, could be at a loss to determine
whether the culprit ought to be condemned or acquitted."--_1 Millar's
Hist. View of Eng. Gov._, ch. 12, p. 332-4.

Also, "The same form of procedure, which took place in the
administration of justice among the vassals of a barony, was gradually
extended to the courts held in the _trading towns_."--_Same_, p. 335.

Also, "The same regulations, concerning the distribution of justice by
the intervention of juries, ... _were introduced into the baron courts
of the king_, as into those of the nobility, or such of his subjects as
retained their allodial property."--_Same_, p. 337.

Also. "This tribunal" (the _aula regis_, or king's court, afterwards
divided into the courts of King's Bench, Common Pleas, and Exchequer)
"was properly the ordinary baron-court of the king; and, being in the
same circumstances with the baron-courts of the nobility, it was under
the same necessity of trying causes by the intervention of a
jury."--_Same_, vol. 2, p. 292.

Speaking of the times of Edward the First, (1272 to 1307,) Millar says:

"What is called the petty jury was therefore introduced into these
tribunals, (the King's Bench, the Common Pleas, and the _Exchequer_,) as
well as into their auxiliary courts employed to distribute justice in
the circuits; and was thus rendered essentially necessary in determining
causes of every sort, whether civil, criminal, or _fiscal_."--_Same_,
vol. 2, p. 293-4.

Also, "That this form of trial (by jury) obtained universally in all the
feudal governments, as well as in that of England, there can be no
reason to doubt. In France, in Germany, and in other European countries,
where we have any accounts of the constitution and procedure of the
feudal courts, it appears that lawsuits of every sort concerning the
freemen or vassals of a barony, were determined by the _pares curiæ_
(peers of the court;) _and that the judge took little more upon him than
to regulate the method of proceeding, or to declare the verdict of the
jury_."--_Same_, vol. 1, ch. 12, p. 329.

Also, "Among the Gothic nations of modern Europe, the custom of deciding
lawsuits by a jury seems to have prevailed universally; first in the
allodial courts of the county, or of the hundred, and afterwards in the
baron-courts of every feudal superior."--_Same_, vol. 2, p. 296.

Palgrave says that in Germany "The Graff (gerefa, sheriff) placed
himself in the seat of judgment, and gave the charge to the assembled
free Echevins, warning them to pronounce judgment according to right and
justice."--2 _Palgrave_, 147.

Also, that, in Germany, "The Echevins were composed of the villanage,
somewhat obscured in their functions by the learning of the grave
civilian who was associated to them, and somewhat limited by the
encroachments of modern feudality; _but they were still substantially
the judges of the court_."--_Same_, 148.

Palgrave also says, "Scotland, in like manner, had the laws of Burlaw,
or Birlaw, which were made and determined by the neighbors, elected by
common consent, in the Burlaw or Birlaw courts, wherein knowledge was
taken of complaints between neighbor and neighbor, _which men, so
chosen, were judges and arbitrators_, and called Birlaw men."--1
_Palgrave's Rise_, &c., p. 80.

But, in order to understand the common law trial by jury, as it existed
prior to Magna Carta, and as it was guaranteed by that instrument, it is
perhaps indispensable to understand more fully the nature of the courts
in which juries sat, and the extent of the powers exercised by juries in
those courts. I therefore give in a note extended extracts, on these
points, from Stuart on the Constitution of England, and from
Blackstone's Commentaries.[53]

That all these courts were mere _courts of conscience, in which the
juries were sole judges, administering justice according to their own
ideas of it_, is not only shown by the extracts already given, but is
explicitly acknowledged in the following one, in which the _modern
"courts of conscience"_ are compared with the _ancient hundred and
county courts_, and the preference given to the latter, on the ground
that the duties of the jurors in the one case, and of the commissioners
in the other, are the same, and that the consciences of a jury are a
safer and purer tribunal than the consciences of individuals specially
appointed, and holding permanent offices.

   "But there is one species of courts constituted by act of Parliament,
   in the city of London, and other trading and populous districts,
   which, in their proceedings, so vary from the course of the common
   law, that they deserve a more particular consideration. I mean the
   court of requests, _or courts of conscience_, for the recovery of
   small debts. The first of these was established in London so early as
   the reign of Henry VIII., by an act of their common council; which,
   however, was certainly insufficient for that purpose, and illegal,
   till confirmed by statute 3 Jac. I., ch. 15, which has since been
   explained and amended by statute 14 Geo. II., ch. 10. The
   constitution is this: two aldermen and four commoners sit twice a
   week to hear all causes of debt not exceeding the value of forty
   shillings; which they examine in a summary way, by the oath of the
   parties or other witnesses, _and make such order therein as is
   consonant to equity and good conscience_.* * Divers trading towns and
   other districts have obtained acts of Parliament, for establishing
   in them _courts of conscience_ upon nearly the same plan as that in
   the city of London.

   "The anxious desire that has been shown to obtain these several acts,
   proves clearly that the nation, in general, is truly sensible of the
   great inconvenience arising from the disuse of the ancient county and
   hundred courts, wherein causes of this small value were always
   formerly decided with very little trouble and expense to the parties.
   But it is to be feared that the general remedy, which of late hath
   been principally applied to this inconvenience, (the erecting these
   new jurisdictions,) may itself be attended in time with very ill
   consequences; as the method of proceeding therein is entirely in
   derogation of the common law; and their large discretionary powers
   create a petty tyranny in a set of standing commissioners; and as the
   disuse of the trial by jury may tend to estrange the minds of the
   people from that valuable prerogative of Englishmen, which has
   already been more than sufficiently excluded in many instances. _How
   much rather is it to be wished that the proceedings in the county and
   hundred courts could be again revived_, without burdening the
   freeholders with too frequent and tedious attendances; and at the
   same time removing the delays that have insensibly crept into their
   proceedings, and the power that either party has of transferring at
   pleasure their suits to the courts at Westminster! _And we may, with
   satisfaction, observe, that this experiment has been actually tried,
   and has succeeded in the populous county of Middlesex_, which might
   serve as an example for others. For by statute 23 Geo. II., ch. 33,
   it is enacted:

   1. That a special county court shall be held at least once in a
   month, in every hundred of the county of Middlesex, _by the county
   clerk_.

   2. _That twelve freeholders of that hundred, qualified to serve on
   juries, and struck by the sheriff, shall be summoned to appear at
   such court by rotation_; so as none shall be summoned oftener than
   once a year.

   3. That in all causes not exceeding the value of forty shillings,
   _the county clerk and twelve suitors (jurors) shall proceed in a
   summary way_, examining the parties and witnesses on oath, without
   the formal process anciently used; _and shall make such order therein
   as they shall judge agreeable to conscience_."--_3 Blackstone_,
   81-83.

What are these but courts of conscience? And yet Blackstone tells us
they are a _revival of the ancient hundred and county courts_. And what
does this fact prove, but that the ancient common law courts, in which
juries sat, were mere courts of conscience?

It is perfectly evident that in all these courts the jurors were the
judges, and determined all questions of law for themselves; because the
only alternative to that supposition is, _that the jurors took their law
from sheriffs, bailiffs, and stewards_, of which there is not the least
evidence in history, nor the least probability in reason. It is evident,
also, that they judged independently of the laws of the king, for the
reasons before given, viz., that the authority of the king was held in
very little esteem; and, secondly, that the laws of the king (not being
printed, and the people being unable to read them if they had been
printed) must have been in a great measure unknown to them, and could
have been received by them only on the authority of the sheriff,
bailiff, or steward. If laws were to be received by them on the
authority of these officers, the latter would have imposed such laws
upon the people as they pleased.

These courts, that have now been described, were continued in full power
long after Magna Carta, no alteration being made in them by that
instrument, _nor in the mode of administering justice in them_.

There is no evidence whatever, so far as I am aware, that the juries had
any _less_ power in the courts held by the king's justices, than in
those held by sheriffs, bailiffs, and stewards; and there is no
probability whatever that they had. All the difference between the
former courts and the latter undoubtedly was, that, in the former, the
juries had the benefit of the advice and assistance of the justices,
which would, of course, be considered valuable in difficult cases, on
account of the justices being regarded as more learned, not only in the
laws of the king, but also in the common law, or "law of the land."

The conclusion, therefore, I think, inevitably must be, that neither the
laws of the king, nor the instructions of his justices, had any
authority over jurors beyond what the latter saw fit to accord to them.
And this view is confirmed by this remark of Hallam, the truth of which
all will acknowledge:

   "The rules of legal decision, among a rude people, are always very
   simple; not serving much to guide, far less to control the feelings
   of natural equity."--_2 Middle Ages_, ch. 8, part 2, p. 465.

It is evident that it was in this way, _by the free and concurrent
judgments of juries, approving and enforcing certain laws and rules of
conduct, corresponding to their notions of right and justice_, that the
laws and customs, which, for the most part, made up the _common law_,
and were called, at that day, "_the good laws, and good customs_," and
"_the law of the land_," were established. How otherwise could they ever
have become established, as Blackstone says they were, "_by long and
immemorial usage, and by their universal reception throughout the
kingdom_,"[54] when, as the Mirror says, "_justice was so done, that
every one so judged his neighbor, by such judgment as a man could not
elsewhere receive in the like cases, until such times as the customs of
the realm were put in writing and certainly published_?"

The fact that, in that dark age, so many of the principles of natural
equity, as those then embraced in the _Common Law_, should have been so
uniformly recognized and enforced by juries, as to have become
established by general consent as "_the law of the land_;" and the
further fact that this "law of the land" was held so sacred that even
the king could not lawfully infringe or alter it, but was required to
swear to maintain it, are beautiful and impressive illustrations of the
truth that men's minds, even in the comparative infancy of other
knowledge, have clear and coincident ideas of the elementary principles,
and the paramount obligation, of justice. The same facts also prove that
the common mind, and the general, or, perhaps, rather, the universal
conscience, as developed in the untrammelled judgments of juries, may be
safely relied upon for the preservation of individual rights in civil
society; and that there is no necessity or excuse for that deluge of
arbitrary legislation, with which the present age is overwhelmed, under
the pretext that unless laws be _made_, the law will not be known; a
pretext, by the way, almost universally used for overturning, instead of
establishing, the principles of justice.


SECTION III.

_The Oaths of Jurors._

The oaths that have been administered to jurors, in England, and which
are their _legal_ guide to their duty, _all_ (so far as I have
ascertained them) corroborate the idea that the jurors are to try all
cases on their intrinsic merits, independently of any laws that they
deem unjust or oppressive. It is probable that an oath was never
administered to a jury in England, either in a civil or criminal case,
to try it _according to law_.

The earliest oath that I have found prescribed by law to be administered
to jurors is in the laws of Ethelred, (about the year 1015,) which
require that the jurors "_shall swear, with their hands upon a holy
thing, that they will condemn no man that is innocent, nor acquit any
that is guilty_."--_4 Blackstone_, 302. _2 Turner's History of the
Anglo-Saxons, 155. Wilkins' Laws of the Anglo-Saxons_, 117. _Spelman's
Glossary_, word _Jurata_.

Blackstone assumes that this was the oath of the _grand_ jury (_4
Blackstone_, 302); but there was but one jury at the time this oath was
ordained. The institution of two juries, grand and petit, took place
after the Norman Conquest.

Hume, speaking of the administration of justice in the time of Alfred,
says that, in every hundred,

   "Twelve freeholders were chosen, who, having sworn, together with the
   hundreder, or presiding magistrate of that division, _to administer
   impartial justice_, proceeded to the examination of that cause which
   was submitted to their jurisdiction."--_Hume_, ch. 2.

By a law of Henry II., in 1164, it was directed that the sheriff
"_faciet jurare duodecim legales homines de vicineto seu de villa, quod
inde veritatem secundum conscientiam suam manifestabunt_," (shall make
twelve legal men from the neighborhood _to swear that they will make
known the truth according to their conscience_.)--_Crabbe's History of
the English Law_, 119. _1 Reeves_, 87. _Wilkins_, 321-323.

Glanville, who wrote within the half century previous to Magna Carta,
says:

   "Each of the knights summoned for this purpose (as jurors) ought to
   swear that he will neither utter that which is false, nor knowingly
   conceal the truth."--_Beames' Glanville_, 65.

Reeve calls the trial by jury "_the trial by twelve men sworn to speak
the truth_."--_1 Reeve's History of the English Law_, 87.

Henry says that the jurors "took a solemn oath, that they would
faithfully discharge the duties of their office, and not suffer an
innocent man to be condemned, nor any guilty person to be
acquitted."--_3 Henry's Hist. of Great Britain_, 346.

The _Mirror of Justices_, (written within a century after Magna Carta,)
in the chapter on the abuses of the Common Law, says:

   "It is abuse to use the words, _to their knowledge_, in their oaths,
   to make the jurors speak upon thoughts, _since the chief words of
   their oaths be that they speak the truth_."--p. 249.

Smith, writing in the time of Elizabeth, says that, in _civil_ suits,
the jury "be sworn to declare the truth of that issue according to the
evidence, and their conscience."--_Smith's Commonwealth of England_,
edition of 1621, p. 73.

In _criminal_ trials, he says:

   "The clerk giveth the juror an oath to go uprightly betwixt the
   prince and the prisoner."--_Ditto_, p. 90.[55]

Hale says:

   "Then twelve, and no less, of such as are indifferent and are
   returned upon the principal panel, or the _tales_, are sworn to try
   the same according to the evidence."--_2 Hale's History of the Common
   Law_, 141.

It appears from Blackstone that, even _at this day, neither in civil nor
criminal cases_, are jurors in England sworn to try causes _according to
law_. He says that in civil suits the jury are

   "Sworn well and truly to _try the issue_ between the parties, and a
   true verdict to give according to the evidence."--_3 Blackstone_,
   365.

"_The issue_" to be tried is whether A owes B anything; and if so, how
much? or whether A has in his possession anything that belongs to B; or
whether A has wronged B, and ought to make compensation; and if so, how
much?

No statute passed by a legislature, simply as a legislature, can alter
either of these "issues" in hardly any conceivable case, perhaps in
none. No _unjust_ law could ever alter them in any. They are all mere
questions of natural justice, which legislatures have no power to alter,
and with which they have no right to interfere, further than to provide
for having them settled by the most competent and impartial tribunal
that it is practicable to have, and then for having all just decisions
enforced. And any tribunal, whether judge or jury, that attempts to try
these issues, has no more moral right to be swerved from the line of
justice, by the will of a legislature, than by the will of any other
body of men whatever. And this oath does not require or permit a jury to
be so swerved.

In criminal cases, Blackstone says the oath of the jury in England is:

   "Well and truly to try, and true deliverance make, between our
   sovereign lord, the king, and the prisoner whom they have in charge,
   and a true verdict to give according to the evidence."--_4
   Blackstone_, 355.

"The issue" to be tried, in a criminal case, is "_guilty_," or "_not
guilty_." The laws passed by a legislature can rarely, if ever, have
anything to do with this issue. "_Guilt_" is an _intrinsic_ quality of
actions, and can neither be created, destroyed, nor changed by
legislation. And no tribunal that attempts to try this issue can have
any moral right to declare a man _guilty_, for an act that is
intrinsically innocent, at the bidding of a legislature, any more than
at the bidding of anybody else. And this oath does not require or permit
a jury to do so.

The words, "_according to the evidence_," have doubtless been introduced
into the above oaths in modern times. They are unquestionably in
violation of the Common Law, and of Magna Carta, if by them be meant
such evidence only as the government sees fit to allow to go to the
jury. If the government can dictate the evidence, and require the jury
to decide according to that evidence, it necessarily dictates the
conclusion to which they must arrive. In that case the trial is really a
trial by the government, and not by the jury. _The jury_ cannot _try an
issue_, unless _they_ determine what evidence shall be admitted. The
ancient oaths, it will be observed, say nothing about "_according to the
evidence_." They obviously take it for granted that the jury try the
whole case; and of course that _they_ decide what evidence shall be
admitted. It would be intrinsically an immoral and criminal act for a
jury to declare a man guilty, or to declare that one man owed money to
another, unless all the evidence were admitted, which _they_ thought
ought to be admitted, for ascertaining the truth.[56]

_Grand Jury._--If jurors are bound to enforce all laws passed by the
legislature, it is a very remarkable fact that the oath of grand juries
does not require them to be governed by the laws in finding indictments.
There have been various forms of oath administered to grand jurors; but
by none of them that I recollect ever to have seen, except those of the
States of Connecticut and Vermont, are they sworn to present men
_according to law_. The English form, as given in the essay on Grand
Juries, written near two hundred years ago, and supposed to have been
written by _Lord Somers_, is as follows:

   "You shall diligently inquire, and true presentment make, of all such
   articles, matters, and things, as shall be given you in charge, and
   of all other matters and things as shall come to your knowledge
   touching this present service. The king's council, your fellows, and
   your own, you shall keep secret. You shall present no person for
   hatred or malice; neither shall you leave any one unpresented for
   favor, or affection, for love or gain, or any hopes thereof; but in
   all things you shall present the truth, the whole truth, and nothing
   but the truth, to the best of your knowledge. So help you God."

This form of oath is doubtless quite ancient, for the essay says "our
ancestors appointed" it.--_See Essay_, p. 33-34.

On the obligations of this oath, the essay says:

   "If it be asked how, or in what manner, the (grand) juries shall
   inquire, the answer is ready, _according to the best of their
   understandings_. They only, not the judges, are sworn to search
   diligently to find out all treasons, &c., within their charge, and
   they must and ought to use their own discretion in the way and manner
   of their inquiry. _No directions can legally be imposed upon them by
   any court or judges_; an honest jury will thankfully accept good
   advice from judges, as their assistants; but they are bound by their
   oaths to present the truth, the whole truth, and nothing but the
   truth, to the best of their own, not the judge's, knowledge. Neither
   can they, without breach of that oath, resign their consciences, or
   blindly submit to the dictates of others; and therefore ought to
   receive or reject such advices, as they judge them good or bad. * *
   Nothing can be more plain and express than the words of the oath are
   to this purpose. The jurors need not search the law books, nor tumble
   over heaps of old records, for the explanation of them. Our greatest
   lawyers may from hence learn more certainly our ancient law in this
   case, than from all the books in their studies. The language wherein
   the oath is penned is known and understood by every man, and the
   words in it have the same signification as they have wheresoever else
   they are used. The judges, without assuming to themselves a
   legislative power, cannot put a new sense upon them, other than
   according to their genuine, common meaning. They cannot magisterially
   impose their opinions upon the jury, and make them forsake the direct
   words of their oath, to pursue their glosses. The grand inquest are
   bound to observe alike strictly every part of their oath, and to use
   all just and proper ways which may enable them to perform it;
   otherwise it were to say, that after men had sworn to inquire
   diligently after the truth, according to the best of their knowledge,
   they were bound to forsake all the natural and proper means which
   their understandings suggest for the discovery of it, if it be
   commanded by the judges."--_Lord Somers' Essay on Grand Juries_, p.
   38.

What is here said so plainly and forcibly of the oath and obligations of
grand juries, is equally applicable to the oath and obligations of petit
juries. In both cases the simple oaths of the jurors, and not the
instructions of the judges, nor the statutes of kings nor legislatures,
are their legal guides to their duties.[57]


SECTION IV.

_The Right of Juries to fix the Sentence._

The nature of the common law courts existing prior to Magna Carta, such
as the county courts, the hundred courts, the court-leet, and the
court-baron, all prove, what has already been proved from Magna Carta,
that, in jury trials, the juries fixed the sentence; because, in those
courts, there was no one but the jury who could fix it, unless it were
the sheriff, bailiff, or steward; and no one will pretend that it was
fixed by them. The juries unquestionably gave the "judgment" in both
civil and criminal cases.

That the juries were to fix the sentence under Magna Carta, is also
shown by statutes subsequent to Magna Carta.

A statute passed fifty-one years after Magna Carta, says that a baker,
for default in the weight of his bread, "_debeat_ amerciari vel subire
judicium pilloræ,"--that is, "_ought_ to be amerced, or suffer the
sentence of the pillory." And that a brewer, for "selling ale, contrary
to the assize," "_debeat_ amerciari, vel pati judicium tumbrelli;" that
is, "_ought_ to be amerced, or suffer judgment of the tumbrel."--_51
Henry III._, st. 6. (1266.)

If the king (the legislative power) had had authority to fix the
punishments of these offences imperatively, he would naturally have said
these offenders _shall_ be amerced, and _shall_ suffer judgment of the
pillory and tumbrel, instead of thus simply expressing the opinion that
they _ought_ to be punished in that manner.

The statute of Westminster, passed sixty years after Magna Carta,
provides that,

   "No city, borough, nor town, _nor any man_, be amerced, without
   reasonable cause, and according to the quantity of the trespass; that
   is to say, every freeman saving his freehold, a merchant saving his
   merchandise, a villein his waynage, _and that by his or their
   peers_."--_3 Edward I._, ch. 6. (1275.)

The same statute (ch. 18) provides further, that,

   "Forasmuch as the _common fine and amercement_ of the whole county in
   Eyre of the justices for false judgments, or for other trespass, is
   unjustly assessed by sheriffs and baretors in the shires, so that the
   sum is many times increased, and the parcels otherwise assessed than
   they ought to be, to the damage of the people, which be many times
   paid to the sheriffs and baretors, which do not acquit the payers; it
   is provided, and the king wills, that from henceforth such sums shall
   be assessed before the justices in Eyre, afore their departure, _by
   the oath of knights and other honest men_, upon all such as ought to
   pay; and the justices shall cause the parcels to be put into their
   estreats, which shall be delivered up unto the exchequer, and not the
   whole sum."--_St. 3 Edward I._, ch. 18, (1275.)[58]

The following statute, passed in 1341, one hundred and twenty-five years
after Magna Carta, providing for the trial of peers of the realm, and
the king's ministers, contains a recognition of the principle of Magna
Carta, that the jury are to fix the sentence.

   "Whereas before this time the peers of the land have been arrested
   and imprisoned, and their temporalities, lands, and tenements, goods
   and cattels, asseized in the king's hands, and some put to death
   without judgment of their peers: It is accorded and assented, that no
   peer of the land, officer, nor other, because of his office, nor of
   things touching his office, nor by other cause, shall be brought in
   judgment to lose his temporalities, lands, tenements, goods and
   cattels, nor to be arrested, nor imprisoned, outlawed, exiled, nor
   forejudged, nor put to answer, nor be judged, but by _award_
   (_sentence_) of the said peers in Parliament."--_15 Edward III._, st.
   1, sec. 2.

Section 4, of the same statute provides,

   "That in every Parliament, at the third day of every Parliament, the
   king shall take in his hands the offices of all the ministers
   aforesaid," (that is, "the chancellor, treasurer, barons, and
   chancellor of the exchequer, the justices of the one bench and of the
   other, justices assigned in the country, steward and chamberlain of
   the king's house, keeper of the privy seal, treasurer of the
   wardrobe, controllers, and they that be chief deputed to abide nigh
   the king's son, Duke of Cornwall,") "and so they shall abide four or
   five days; except the offices of justices of the one place or the
   other, justices assigned, barons of exchequer; so always that they
   and all other ministers be put to answer to every complaint; and if
   default be found in any of the said ministers, by complaint or other
   manner, and of that attainted in Parliament, he shall be punished by
   judgment of the peers, and put out of his office, and another
   convenient put in his place. And upon the same our said sovereign
   lord the king shall do (cause) to be pronounced and made execution
   without delay, _according to the judgment_ (_sentence_) of the said
   peers in the Parliament."

Here is an admission that the peers were to fix the sentence, or
judgment, and the king promises to make execution "_according to_" that
sentence.

And this appears to be the law, under which peers of the realm and the
great officers of the crown were tried and sentenced, for four hundred
years after its passage, and, for aught I know, until this day.

The first case given in Hargrave's collection of English State Trials,
is that of _Alexander Nevil_, Archbishop of York, _Robert Vere_, Duke
of Ireland, _Michael de la Pole_, Earl of Suffolk, and _Robert
Tresilian_, Lord Chief Justice of England, with several others,
convicted of treason, before "the Lords of Parliament," in 1388. The
sentences in these cases were adjudged by the "Lords of Parliament," in
the following terms, as they are reported.

   "Wherefore the said _Lords of Parliament_, there present, as judges
   in Parliament, in this case, _by assent of the king, pronounced their
   sentence_, and did adjudge the said archbishop, duke, and earl, with
   Robert Tresilian, so appealed, as aforesaid, to be guilty, and
   convicted of treason, and to be drawn and hanged, as traitors and
   enemies to the king and kingdom; and that their heirs should be
   disinherited forever, and their lands and tenements, goods and
   chattels, forfeited to the king, and that the temporalities of the
   Archbishop of York should be taken into the king's hands."

   Also, in the same case, Sir _John Holt_, Sir _William Burgh_, Sir
   _John Cary_, Sir _Roger Fulthorpe_, and _John Locton_, "_were by the
   lords temporal, by the assent of the king_, adjudged to be drawn and
   hanged, as traitors, their heirs disinherited, and their lands and
   tenements, goods and chattels, to be forfeited to the king."

   Also, in the same case, _John Blake_, "of council for the king," and
   _Thomas Uske_, under sheriff of Middlesex, having been convicted of
   treason,

   "_The lords awarded, by assent of the king_, that they should both be
   hanged and drawn as traitors, as open enemies to the king and
   kingdom, and their heirs disinherited forever, and their lands and
   tenements, goods and chattels, forfeited to the king."

   Also, "_Simon Burleigh_, the king's chamberlain," being convicted of
   treason, "_by joint consent of the king and the lords_, sentence was
   pronounced against the said Simon Burleigh, that he should be drawn
   from the town to Tyburn, and there be hanged till he be dead, and
   then have his head struck from his body."

   Also, "_John Beauchamp_, steward of the household to the king, _James
   Beroverse_, and _John Salisbury_, knights, gentlemen of the privy
   chamber, _were in like manner condemned_."--_1 Hargrave's State
   Trials_, first case.

Here the sentences were all fixed by the peers, _with the assent of the
king_. But that the king should be consulted, and his assent obtained to
the sentence pronounced by the peers, does not imply any deficiency of
power on their part to fix the sentence independently of the king. There
are obvious reasons why they might choose to consult the king, and
obtain his approbation of the sentence they were about to impose,
without supposing any legal necessity for their so doing.

So far as we can gather from the reports of state trials, peers of the
realm were usually sentenced by those who tried them, _with the assent
of the king_. But in some instances no mention is made of the assent of
the king, as in the case of "Lionel, Earl of Middlesex, Lord High
Treasurer of England," in 1624, (four hundred years after Magna Carta,)
where the sentence was as follows:

   "This High Court of Parliament doth adjudge, that Lionel, Earl of
   Middlesex, now Lord Treasurer of England, shall lose all his offices
   which he holds in this kingdom, and shall, hereafter, be made
   incapable of any office, place, or employment in the state and
   commonwealth. That he shall be imprisoned in the tower of London,
   during the king's pleasure. That he shall pay unto our sovereign lord
   the king a fine of 50,000 pounds. That he shall never sit in
   Parliament any more, and that he shall never come within the verge of
   the court."--_2 Howell's 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 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:

   "This sentence being read, the president (of the court) spake as
   followeth: 'This sentence now read and published, is the act,
   sentence, judgment and resolution of the whole court.'"--_1
   Hargrave's State Trials_, 1037.

Unless it had been the received "_law of the land_" that those who tried
a man should fix his sentence, it would have required an act of
Parliament to fix the sentence of Charles, and his sentence would have
been declared to be "_the sentence of the law_," instead of "_the act,
sentence, judgment, and resolution of the court_."

But the report of the proceedings in "the trial of Thomas, Earl of
Macclesfield, Lord High Chancellor of Great Britain, before the House of
Lords, for high crimes and misdemeanors in the execution of his office,"
in 1725, is so full on this point, and shows so clearly that it rested
wholly with the lords to fix the sentence, and that the assent of the
king was wholly unnecessary, that I give the report somewhat at length.

_After being found guilty_, the earl addressed the _lords_, for a
_mitigation of sentence_, as follows:

   "'I am now to expect your lordships' judgment; and I hope that you
   will be pleased to consider that I have suffered no small matter
   already in the trial, in the expense I have been at, the fatigue, and
   what I have suffered otherways. * * I have paid back 10,800 pounds of
   the money already; I have lost my office; I have undergone the
   censure of both houses of Parliament, which is in itself a severe
   punishment,'" &c., &c.

On being interrupted, he proceeded:

   "'My lords, I submit whether this be not proper in _mitigation of
   your lordships' sentence_; but whether it be or not, I leave myself
   to your lordships' justice and mercy; I am sure neither of them will
   be wanting, and I entirely submit.' * *

   "Then the said earl, as also the managers, were directed to withdraw;
   and the House (of Lords) ordered Thomas, Earl of Macclesfield, to be
   committed to the custody of the gentleman usher of the black rod; and
   then proceeded to the consideration of what _judgment_," (that is,
   _sentence_, for he had already been found _guilty_,) "to give upon
   the impeachment against the said earl." * *

   "The next day, the Commons, with their speaker, being present at the
   bar of the House (of Lords), * * the speaker of the House of Commons
   said as follows:

   "'My Lords, the knights, citizens, and burgesses in Parliament
   assembled, in the name of themselves, and of all the commons of Great
   Britain, did at this bar impeach Thomas, Earl of Macclesfield, of
   high crimes and misdemeanors, and did exhibit articles of impeachment
   against him, and have made good their charge. I do, therefore, in the
   name of the knights, citizens, and burgesses, in Parliament
   assembled, and of all the commons of Great Britain, demand _judgment_
   (_sentence_) of your lordships against Thomas, Earl of Macclesfield,
   for the said high crimes and misdemeanors.'

   "Then the Lord Chief Justice King, Speaker of the House of Lords,
   said: 'Mr. Speaker, the Lords are now ready to proceed to judgment in
   the case by you mentioned.

   "'Thomas, Earl of Macclesfield, the Lords have unanimously found you
   guilty of high crimes and misdemeanors, charged on you by the
   impeachment of the House of Commons, and do now, according to law,
   proceed to _judgment_ against you, which I am ordered to pronounce.
   Their lordships' _judgment_ is, and this high court doth adjudge,
   that you, Thomas, Earl of Macclesfield, be fined in the sum of thirty
   thousand pounds unto our sovereign lord the king; and that you shall
   be imprisoned in the tower of London, and there kept in safe custody,
   until 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 hundred years after Magna Carta,) so
far as it applied to a _peer of the realm_.

But the same principle, on this point, that applies to a peer of the
realm, applies to every freeman. The only difference between the two is,
that the peers of the realm have had influence enough to preserve their
constitutional rights; while the constitutional rights of the people
have been trampled upon and rendered obsolete by the usurpation and
corruption of the government and the courts.


SECTION V.

_The Oaths of Judges._

As further proof that the legislation of the king, whether enacted with
or without the assent and advice of his parliaments, was of no authority
unless it were consistent with the _common law_, and unless juries and
judges saw fit to enforce it, it may be mentioned that it is probable
that no judge in England was ever sworn to observe the laws enacted
either by the king alone, or by the king with the advice and assent of
parliament.

The judges were sworn to "_do equal law, and execution of right, to all
the king's subjects, rich and poor, without having regard to any
person_;" and that they will "_deny no man common right_;"[59] but they
were _not_ sworn to obey or execute any statutes of the king, or of the
king and parliament. Indeed, they are virtually sworn _not_ to obey any
statutes that are against "_common right_," or contrary to "_the common
law_," or "_law of the land_;" but to "certify the king thereof"--that
is, notify him that his statutes are against the common law;--and then
proceed to execute the _common law_, notwithstanding such legislation to
the contrary. The words of the oath on this point are these:

   "_That ye deny no man common right by (virtue of) the king's letters,
   nor none other man's, nor for none other cause; and in case any
   letters come to you contrary to the law_, (that is, the common law,
   as will be seen on reference to the entire oath given in the note,)
   _that ye do nothing by such letters, but certify the king thereof
   and proceed to execute the law_, (that is, the common law,)
   _notwithstanding the same letters_."

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
disregard any legislation that was contrary to "_common right_," or
"_the common law_," and notify the king that it was contrary to common
right, or the common law, and then proceed to execute the common law,
notwithstanding such legislation.[60]

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 greatly moved of conscience in this
   matter, and for this cause desiring as much for the pleasure of God,
   and ease and quietness of our subjects, as to save our conscience,
   and for to save and keep our said oath, by the assent of the great
   men and other wise men of our council, we have ordained these things
   following:

   "First, we have commanded all our justices, that they shall from
   henceforth _do equal law and execution of right_ to all our subjects,
   rich and poor, without having regard to any person, _and without
   omitting to do right for any letters or commandment which may come to
   them from us, or from any other, or by any other cause. And if that
   any letters, writs, or commandments come to the justices, or to other
   deputed to do law and right according to the usage of the realm, in
   disturbance of the law, or of the execution of the same, or of right
   to the parties, the justices and other aforesaid shall proceed and
   hold their courts and processes, where the pleas and matters be
   depending before them, as if no such letters, writs, or commandments
   were come to them; and they shall certify us and our council of such
   commandments which be contrary to the law_, (that is, "the law of the
   land," or common law,) _as afore is said_.[61] And to the intent that
   our justices shall do even right to all people in the manner
   aforesaid, without more favor showing to one than to another, we have
   ordained and caused our said justices to be sworn, that they shall
   not from henceforth, as long as they shall be in the office of
   justice, take fee nor robe of any man, but of ourself, and that they
   shall take no gift nor reward by themselves, nor by other, privily
   nor apertly, of any man that hath to do before them by any way,
   except meat and drink, and that of small value; and that they shall
   give no counsel to great men or small, in case where we be party, or
   which do or may touch us in any point, upon pain to be at our will,
   body, lands, and goods, to do thereof as shall please us, in case
   they do contrary. And for this cause we have increased the fees of
   the same, our justices, in such manner as it ought reasonably to
   suffice them."--_20 Edward III._, ch. 1. (1346.)

Other statutes of similar tenor have been enacted, as follows:

   "It is accorded and established, that it shall not be commanded by
   the great seal, nor the little seal, to disturb or delay _common
   right_; and though such commandments do come, the justices shall not
   therefore leave (omit) to do right in any point."--_St. 2 Edward
   III._, ch. 8. (1328.)

   "That by commandment of the great seal, or privy seal, no point of
   this statute shall be put in delay; nor that the justices of
   whatsoever place it be shall let (omit) to do the _common law_, by
   commandment, which shall come to them under the great seal, or the
   privy seal."--_14 Edward III._, st. 1, ch. 14. (1340.)

   "It is ordained and established, that neither letters of the signet,
   nor of the king's privy seal, shall be from henceforth sent in damage
   or prejudice of the realm, nor in disturbance of the law" (the common
   law).--_11 Richard II._, ch. 10. (1387.)

It is perfectly apparent from these statutes, and from the oath
administered to the justices, that it was a matter freely confessed by
the king himself, that his statutes were of no validity, if contrary to
the common law, or "common right."

The oath of the justices, before given, is, I presume, the same that has
been administered to judges in England from the day when it was first
prescribed to them, (1344,) until now. I do not find from the English
statutes that the oath has ever been changed. The Essay on Grand Juries,
before referred to, and supposed to have been written by _Lord Somers_,
mentions this oath (page 73) as being still administered to judges, that
is, in the time of Charles II., more than three hundred years after the
oath was first ordained. If the oath has never been changed, it follows
that judges have not only never been sworn to support any statutes
whatever of the king, or of parliament, but that, for five hundred
years past, they actually have been sworn to treat as invalid all
statutes that were contrary to the common law.


SECTION VI.

_The Coronation Oath._

That the legislation of the king was of no authority over a jury, is
further proved by the oath taken by the kings at their coronation. This
oath seems to have been substantially the same, from the time of the
_Saxon_ kings, down to the seventeenth century, as will be seen from the
authorities hereafter given.

The purport of the oath is, that the king swears _to maintain the law of
the land_--that is, _the common law_. In other words, he swears "_to
concede and preserve to the English people the laws and customs conceded
to them by the ancient, just, and pious English kings, * * and
especially the laws, customs, and liberties conceded to the clergy and
people by the illustrious king Edward;" * * and "the just laws and
customs which the common people have chosen, (quas vulgus elegit)_."

These are the same laws and customs which were called by the general
name of "_the law of the land_," or "_the common law_," and, with some
slight additions, were embodied in _Magna Carta_.

This oath not only forbids the king to enact any statutes contrary to
the common law, but it proves that his statutes could be of no authority
over the consciences of a jury; since, as has already been sufficiently
shown, it was one part of this very common law itself,--that is, of the
ancient "laws, customs, and liberties," mentioned in the oath,--that
juries should judge of all questions that came before them, according to
their own consciences, independently of the legislation of the king.

It was impossible that this right of the jury could subsist consistently
with any right, on the part of the king, to impose any authoritative
legislation upon them. His oath, therefore, to maintain the law of the
land, or the ancient "laws, customs, and liberties," was equivalent to
an oath that he would never _assume_ to impose laws upon juries, as
imperative rules of decision, or take from them the right to try all
cases according to their own consciences. It is also an admission that
he had no constitutional power to do so, if he should ever desire it.
This oath, then, is conclusive proof that his legislation was of no
authority with a jury, and that they were under no obligation whatever
to enforce it, unless it coincided with their own ideas of justice.

The ancient coronation oath is printed with the Statutes of the Realm,
vol. i., p. 168, and is as follows:[62]

TRANSLATION.

   "_Form of the Oath of the King of England, on his Coronation._

   (The Archbishop of Canterbury, to whom, of right and custom of the
   Church of Canterbury, ancient and approved, it pertains to anoint and
   crown the kings of England, on the day of the coronation of the king,
   and before the king is crowned, shall propound the underwritten
   questions to the king.)

   The laws and customs, conceded to the English people by the ancient,
   just, and pious English kings, will you concede and preserve to the
   same people, with the confirmation of an oath? and especially the
   laws, customs, and liberties conceded to the clergy and people by the
   illustrious king Edward?

   (And the king shall answer,) I do concede, and will preserve them,
   and confirm them by my oath.

   Will 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, according to your powers?

   (And the king shall answer,) I will.

   Do you concede that the just laws and customs, _which the common
   people have chosen_, shall be preserved; and do you promise that they
   shall be protected by you, and strengthened to the honor of God,
   according to your powers?

   (And the king shall answer,) I concede and promise."

The language used in the last of these questions, "Do you concede that
the just laws and customs, _which the common people have chosen_, (_quas
vulgus elegit_,) shall be preserved?" &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 approbation or selection
of these laws? Plainly, in no other way than this--_that the juries
composed of the common people had voluntarily enforced them_. The common
people had no other legal form of making known their approbation of
particular laws.

The word "concede," too, is an important word. In the English statutes
it is usually translated _grant_--as if with an intention to indicate
that "the laws, customs, and liberties" of the English people were mere
_privileges, granted_ to them by the king; whereas it should be
translated _concede_, to indicate simply an _acknowledgment_, on the
part of the king, that such were the laws, customs, and liberties, which
had been chosen and established by the people themselves, and of right
belonged to them, and which he was bound to respect.

I will now give some authorities to show that the foregoing oath has,
_in substance_, been the coronation oath from the times of William the
Conqueror, (1066,) down to the time of James the First, and probably
until 1688.

It will be noticed, in the quotation from Kelham, that he says this oath
(or the oath of William the Conqueror) is "in sense and substance the
very same with that which the _Saxon_ kings used to take at their
coronations."

Hale says:

   "Yet the English were very zealous for them," (that is, for the laws
   of Edward the Confessor,) "no less or otherwise than they are at this
   time for the Great Charter; insomuch that they were never satisfied
   till the said laws were reënforced, and mingled, for the most part,
   with the coronation oath of king William I., and some of his
   successors."--_1 Hale's History of Common Law_, 157.

   Also, "William, on his coronation, had sworn to govern by the laws of
   Edward the Confessor, some of which had been reduced into writing,
   but the greater part consisted of the immemorial customs of the
   realm."--_Ditto_, p. 202, note L.

Kelham says:

   "Thus stood the laws of England at the entry of William I., and it
   seems plain that the laws, commonly called the laws of Edward the
   Confessor, were at that time the standing laws of the kingdom, and
   considered the great rule of their rights and liberties; and that the
   English were so zealous for them, 'that they were never satisfied
   till the said laws were reënforced, and mingled, for the most part,
   with the coronation oath.' Accordingly, we find that this great
   conqueror, at his coronation on the Christmas day succeeding his
   victory, took an oath at the altar of St. Peter, Westminster, _in
   sense and substance the very same with that which the Saxon kings
   used to take at their coronations_. * * And at Barkhamstead, in the
   fourth year of his reign, in the presence of Lanfranc, Archbishop of
   Canterbury, for the quieting of the people, he swore that he would
   inviolably observe the good and approved ancient laws which had been
   made by the devout and pious kings of England, his ancestors, and
   chiefly by King Edward; and we are told that the people then departed
   in good humor."--_Kelham's Preliminary Discourse to the Laws of
   William the Conqueror._ See, also, _1 Hale's History of the Common
   Law_, 186.

Crabbe says that William the Conqueror "solemnly swore that he would
observe the good and approved laws of Edward the Confessor."--_Crabbe's
History of the English Law_, p. 43.

The successors of William, up to the time of Magna Carta, probably all
took the same oath, according to the custom of the kingdom; although
there may be no historical accounts extant of the oath of each separate
king. But history tells us specially that Henry I., Stephen, and Henry
II., confirmed these ancient laws and customs. It appears, also, that
the barons desired of John (what he afterwards granted by Magna Carta)
"_that the laws and liberties of King Edward_, with other privileges
granted to the kingdom and church of England, might be confirmed, as
they were contained in the charters of Henry the First; further
alleging, _that at the time of his absolution, he promised by his oath
to observe these very laws and liberties_."--_Echard's History of
England_, p. 105-6.

It would appear, from the following authorities, that since Magna Carta
the form of the coronation oath has been "_to maintain the law of the
land_,"--meaning that law as embodied in Magna Carta. Or perhaps it is
more probable that the ancient form has been still observed, but that,
as its substance and purport were "_to maintain the law of the land_,"
this latter form of expression has been used, in the instances here
cited, from motives of brevity and convenience. This supposition is the
more probable, from the fact that I find no statute prescribing a change
in the form of the oath until 1688.

That Magna Carta was considered as embodying "the law of the land," or
"common law," is shown by a statute passed by Edward I., wherein he
"grants," or concedes,

   "That the Charter of Liberties and the Charter of the Forest * *
   shall be kept in every point, without breach, * * and that our
   justices, sheriffs, mayors, and other ministers, which, under us,
   have the _laws of our land_[63] to guide, shall allow the said
   charters pleaded before them in judgment, in all their points, that
   is, to wit, _the Great Charter as the Common Law_, and the Charter of
   the Forest for the wealth of the realm.

   "And we will, that if any judgment be given from henceforth, contrary
   to the points of the charters aforesaid, by the justices, or by any
   other our ministers that hold plea before them against the points of
   the charters, it shall be undone, and holden for naught."--_25 Edward
   I._, ch. 1 and 2. (1297.)

Blackstone also says:

   "It is agreed by all our historians that the Great Charter of King
   John was, for the most part, _compiled from the ancient customs of
   the realm, or the laws of Edward the Confessor; by which they usually
   mean the old common law which was established under our Saxon
   princes_."--_Blackstone's Introduction to the Charters._ See
   _Blackstone's Law Tracts_, 289.

Crabbe says:

   "It is admitted, on all hands, that it (Magna Carta) contains nothing
   but what was confirmatory of the common law, and the ancient usages
   of the realm, and is, properly speaking, only an enlargement of the
   charter of Henry I., and his successors."--_Crabbe's History of the
   English Law_, p. 127.

That the coronation oath of the kings subsequent to Magna Carta was, in
substance, if not in form, "_to maintain this law of the land, or common
law_," is shown by a statute of Edward Third, commencing as follows:

   "Edward, by the Grace of God, &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._ (1346.)

The following extract from Lord Somers' tract on Grand Juries shows that
the coronation oath continued the same as late as 1616, (four hundred
years after Magna Carta.) He says:

   "King James, in his speech to the judges, in the Star Chamber, Anno
   1616, told them, 'That he had, after many years, resolved to renew
   his oath, made at his coronation, concerning justice, and the promise
   therein contained for _maintaining the law of the land_.' And, in the
   next page save one, says, '_I was sworn to maintain the law of the
   land_, and therefore had been perjured if I had broken it. God is my
   judge, I never intended it.'"--_Somers on Grand Juries_, p. 82.

In 1688, the coronation oath was changed by act of Parliament, and the
king was made to swear:

   "To govern the people of this kingdom of England, and the dominions
   thereto belonging, _according to the statutes in Parliament agreed
   on, and the laws and customs of the same_."--_St. 1 William and
   Mary_, ch. 6. (1688.)

The effect and legality of this oath will hereafter be considered. For
the present it is sufficient to show, as has been already sufficiently
done, that from the Saxon times until at least as lately as 1616, the
coronation oath has been, in substance, _to maintain the law of the
land, or the common law_, meaning thereby the ancient Saxon customs, as
embodied in the laws of Alfred, of Edward the Confessor, and finally in
Magna Carta.

It may here be repeated that this oath plainly proves that the statutes
of the king were of no authority over juries, if inconsistent with their
ideas of right; because it was one part of the common law that juries
should try all causes according to their own consciences, any
legislation of the king to the contrary notwithstanding.[64]

[Footnote 34: 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.]

[Footnote 35: "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."]

[Footnote 36: This office was afterwards committed to sheriffs. But even
while the court was held by the lord, "_the Lord was not judge, but the
Pares (peers) only_."--_Gilbert on the Court of Exchequer_, 61-2.]

[Footnote 37: The opinion expressed in the text, that the Witan had no
legislative authority, is corroborated by the following authorities:

"From the fact that the new laws passed by the king and the Witan were
laid before the shire-mote, (county court,) we should be almost
justified in the inference that a second sanction was necessary before
they could have the effect of law in that particular county."--_Dunham's
Middle Ages, Sec._ 2, _B._ 2, _Ch._ 1. _57 Lardner's Cab. Cyc._, 53.

The "_second sanction_" required to give the legislation of the king and
Witan the effect of law, was undoubtedly, I think, _as a general thing,
the sanction of a jury_. I know of no evidence whatever that laws were
ever submitted to popular vote in the county courts, as this author
seems to suppose possible. Another mode, sometimes resorted to for
obtaining the sanction of the people to the laws of the Witan, was, it
seems, to persuade the people themselves to swear to observe them.
Mackintosh says:

"The preambles of the laws (of the Witan) speak of the infinite number
of _liegemen_ who attended, as only applauding the measures of the
assembly. But this applause was neither so unimportant to the success of
the measures, nor so precisely distinguished from a share in
legislation, as those who read history with a modern eye might imagine.
It appears that under Athelstan expedients were resorted to, to obtain a
consent to the law from great bodies of the people in their districts,
which their numbers rendered impossible in a national assembly. That
monarch appears to have sent commissioners to hold _shire-gemotes_ or
county meetings, where they proclaimed the laws made by the king and his
counsellors, which, being acknowledged and sworn to at these
_folk-motes_ (meetings of the people) became, by their assent,
completely binding on the whole nation."--_Mackintosh's Hist. of
England_, _Ch._ 2. _45 Lardner's Cab. Cyc._, 75.]

[Footnote 38: Page 31.]

[Footnote 39: 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 questions of civil right."--_Ditto_, 395.

Also, "The liberties of these Anglo-Saxon thanes were chiefly secured,
next to their swords and their free spirits, by the inestimable right of
deciding civil and criminal suits in their own county courts."--_Ditto_,
399.]

[Footnote 40: "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, collected the good laws of our
forefathers into one code, and also I wrote them down_'--which is a
decisive fact in the history of our laws well worth noting."--_Introduction
to Gilbert's History of the Common Pleas_, p. 2, _note_.

Kelham says, "Let us consult our own lawyers and historians, and they
will tell 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 William the Conqueror_, p. 12.
_Appendix to Kelham's Dictionary of the Norman Language._

"He (Alfred) also, like another Theodosius, _collected the various
customs_ that he found dispersed in the kingdom, and reduced and
digested them into one uniform system, or code of laws, in his
_som-bec_, or _liber judicialis_ (judicial book). This he _compiled_ for
the use of the court baron, hundred and county court, the court-leet and
sheriff's 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
commanded many of those to be written down which our forefathers
observed--those which I liked--and those which I did not like, by the
advice of my Witan, I threw aside. For I durst not venture to set down
in writing over many of my own, since I knew not what among them would
please those that should come after us. But those which I met with
either of the days of me, my kinsman, or of Offa, King of Mercia, or of
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._ 1. _45 Lardner's Cab. Cyc._

"King Edward * * projected and begun what his grandson, King Edward the
Confessor, afterwards completed, viz., one uniform digest or body of
laws to be observed throughout the whole kingdom, _being probably no
more than a revival of King Alfred's code_, with some improvements
suggested by necessity and experience, particularly the incorporating
some of the British, or, rather, Mercian _customs_, and also _such of
the Danish_ (customs) as were reasonable and approved, into the _West
Saxon Lage_, which was still the ground-work of the whole. And this
appears to be the best supported and most plausible conjecture, (for
certainty is not to be expected,) of the rise and original of that
admirable system of maxims and unwritten customs which is now known by
the name of the _common law_, as extending its authority universally
over all the realm, and which is doubtless of Saxon parentage."--_4
Blackstone_, 412.

"By the _Lex 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_.]

[Footnote 41: 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.]

[Footnote 42: For all these codes see Wilkins' Laws of the Anglo-Saxons.

"Being regulations adapted to existing institutions, the Anglo-Saxon
statutes are concise and technical, alluding to the law which was then
living and in vigor, rather than defining it. The same clauses and
chapters are often repeated word for word, in the statutes of subsequent
kings, showing that enactments which bear the appearance of novelty are
merely declaratory. Consequently the appearance of a law, seemingly for
the first time, is by no means to be considered as a proof that the
matter which it contains is new; nor can we trace the progress of the
Anglo-Saxon institutions with any degree of certainty, by following the
dates of the statutes in which we find them first noticed. All arguments
founded on the apparent chronology of the subjects included in the laws,
are liable to great fallacies. Furthermore, a considerable portion of
the Anglo-Saxon law was never recorded in writing. There can be no doubt
but that the rules of inheritance were well established and defined; yet
we have not a single law, and hardly a single document from which the
course of the descent of land can be inferred. * * Positive proof cannot
be obtained of the commencement of any institution, because the first
written law relating to it may possibly be merely confirmatory or
declaratory; neither can the non-existence of any institution be
inferred from the absence of direct evidence. Written laws were modified
and controlled by customs of which no trace can be discovered, until
after the lapse of centuries, although those usages must have been in
constant vigor during the long interval of silence."--_1 Palgrave's Rise
and Progress of the English Commonwealth_, 58-9.]

[Footnote 43: Rapin says, "The customs now practised in England are, for
the most part, the same as the Anglo-Saxons brought with them from
Germany."--_Rapin's Dissertation on the Government of the Anglo-Saxons_,
vol. 2, Oct. Ed., p. 198. See _Kelham's Discourse before named_.]

[Footnote 44: 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.]

[Footnote 45: Excepting also matters pertaining to the collection of the
revenue, which were determined in the king's court of exchequer. But
even in this court it was the law "_that none be amerced but by his
peers_."--_Mirror of Justices_, 49.]

[Footnote 46: "For the English laws, _although not written_, may, as it
should seem, and that without any absurdity, be termed laws, (since this
itself is law--that which pleases the prince has the force of law,) I
mean those laws which it is evident were 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 only,
they should not be considered laws, then, unquestionably, writing would
seem to confer more authority upon laws themselves, than either the
equity of the persons constituting, or the reason of those framing
them."--_Glanville's Preface_, p. 38. (Glanville was chief justice of
Henry II., 1180.) _2 Turner's History of the Anglo-Saxons_, 280.]

[Footnote 47: Mackintosh's History of England, ch. 3. Lardner's Cabinet
Cyclopædia, 266.]

[Footnote 48: 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.]

[Footnote 49: 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.]

[Footnote 50: The jurors were sometimes called "assessors," because they
assessed, or determined the amount of fines and amercements to be
imposed.]

[Footnote 51: "The barons of the Hundred" were the freeholders. Hallam
says: "The word _baro_, originally meaning only a man, was of very large
significance, and is not unfrequently applied to common freeholders, as
in the phrase _court-baron_."--_3 Middle Ages_, 14-15.

_Blackstone_ says: "The _court-baron_ * * is a court of common law, and
it is the court of the barons, by which name the freeholders were
sometimes anciently called; for that it is held before the freeholders
who owe suit and service to the manor."--_3 Blackstone_, 33.]

[Footnote 52: The ancient jury courts kept no records, because those who
composed the courts could neither make nor read records. Their decisions
were preserved by the memories of the jurors and other persons present.]

[Footnote 53: Stuart says:

"The courts, or civil arrangements, which were modelled in Germany,
preserved the independence of the people; and having followed the Saxons
into England, and continuing their importance, they supported the envied
liberty we boast of. * *

"As a chieftain led out his retainers to the field, and governed them
during war; so in peace he summoned them together, and exerted a civil
jurisdiction. He was at once their captain and their judge. They
constituted his court; and having inquired with him into the guilt of
those of their order whom justice had accused, they assisted him to
enforce his decrees.

"This court (the court-baron) was imported into England; but the
innovation which conquest introduced into the fashion of the times
altered somewhat its appearance. * *

"The head or lord of the manor called forth his attendants to his hall.
* * He inquired into the breaches of custom, and of justice, which were
committed within the precincts of his territory; and with his followers,
_who sat with him as judges_, he determined in all matters of debt, and
of trespass to a certain amount. He possessed a similar jurisdiction
with the chieftain in Germany, and his tenants enjoyed an equal
authority with the German retainers.

"But a mode of administration which intrusted so much power to the great
could not long be exercised without blame or injustice. The German,
guided by the candor of his mind, and entering into all his engagements
with the greatest ardor, perceived not, at first, that the chieftain to
whom he submitted his disputes might be swayed, in the judgments he
pronounced, by partiality, prejudice, or interest; and that the
influence he maintained with his followers was too strong to be
restrained by justice. Experience instructed him of his error; he
acknowledged the necessity of appealing from his lord; and the court of
the Hundred was erected.

"This establishment was formed both in Germany and England, by the
inhabitants of a certain division, who extended their jurisdiction over
the territory they occupied.[65] They bound themselves under a penalty
to assemble at stated times; _and having elected the wisest to preside
over them, they judged, not only all civil and criminal matters_, but of
those also which regarded religion and the priesthood. The judicial
power thus invested in the people was extensive; they were able to
preserve their rights, and attended this court in arms.

"As the communication, however, and intercourse, of the individuals of a
German community began to be wider, and more general, as their dealings
enlarged, and as disputes arose among the members of different hundreds,
the insufficiency of these courts for the preservation of order was
gradually perceived. The _shyre mote_, therefore, or _county court_, was
instituted; and it formed the chief source of justice both in Germany
and England.

"The powers, accordingly, which had been enjoyed by the court of the
_hundred_, were considerably impaired. It decided no longer concerning
capital offences; it decided not concerning matters of liberty, and the
property of estates, or of slaves; its judgments, in every case, became
subject to review; and it lost entirely the decision of causes, when it
delayed too long to consider them.

"Every subject of claim or contention was brought, in the first
instance, or by appeal, to the _county court_; and the _earl_, or
_eorldorman_, who presided there, was active to put the laws in
execution. He repressed the disorders which fell out within the circuit
of his authority; and the least remission in 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
justice. Every man, in his district, was bound to inform him concerning
criminals, and to assist him to bring them to trial; and, as in rude and
violent times the poor and helpless were ready to be oppressed by the
strong, he was instructed particularly to defend them.

"His court was ambulatory, and assembled only twice a year, unless the
distribution of justice required that its meetings should be oftener.
Every freeholder in the county was obliged to attend it; and should he
refuse this service, his possessions were seized, and he was forced to
find surety for his appearance. The neighboring earls held not their
courts on the same day; and, what seems very singular, no judge was
allowed, after meals, to exercise his office.

"The druids also, or priests, in Germany, as we had formerly occasion to
remark, and the clergy in England, exercised a jurisdiction in the
_hundred_ and _county_ courts. They instructed the people in religious
duties, and in matters regarding the priesthood; and the princes, earls,
or _eorldormen_, related to them the laws and customs of the community.
These judges were mutually a check to each other; but it was expected
that they should agree in their judgments, and should willingly unite
their efforts for the public interest.[66]

"_But the prince or earl performed not, at all times, in person, the
obligations of his office._ The enjoyment of ease and of pleasure, to
which in Germany he had delivered himself over, when disengaged from
war, and the mean idea he conceived of the drudgery of civil affairs,
_made him often delegate to an inferior person the distribution of
justice in his district_. The same sentiments were experienced by the
Saxon nobility; and the service which they owed by their tenures, and
the high employments they sustained, called them often from the
management of their counties. The progress, too, of commerce, giving an
intricacy to cases, and swelling the civil code, added to the difficulty
of their office, and made them averse to its duties. _Sheriffs,
therefore, or deputies, were frequently appointed to transact their
business; and though these were at first under some subordination to the
earls, they grew at length to be entirely independent of them. The
connection of jurisdiction and territory ceasing to prevail, and the
civil being separated from the ecclesiastical power, they became the
sole and proper officers for the direction of justice in the counties._

"The _hundred_, however, and _county_ courts, were not equal of
themselves for the purposes of jurisdiction and order. It was necessary
that a court should be erected, of supreme authority, where the disputes
of the great should be decided, where the disagreeing sentiments of
judges should be reconciled, and where protection should be given to the
people against their fraud and injustice.

"The princes accordingly, or chief nobility, in the German communities,
assembled together to judge of such matters. The Saxon nobles continued
this prerogative; and the king, or, in his absence, the chief
_justiciary_, watched over their deliberations. But it was not on every
trivial occasion that this court interested itself. In smaller concerns,
justice was refused during three sessions of the _hundred_, and claimed
without effect, at four courts of the county, before there could lie an
appeal to it.

"So gradually were these arrangements established, and so naturally did
the varying circumstances in the situation of the Germans and
Anglo-Saxons direct those successive improvements which the preservation
of order, and the advantage of society, called them to adopt. The
admission of the people into the courts of justice preserved, among the
former, that equality of ranks for which they were remarkable; and it
helped to overturn, among the latter, those envious distinctions which
the feudal system tended to introduce, and prevented that venality in
judges, and those arbitrary proceedings, which the growing attachment to
interest, and the influence of the crown, might otherwise have
occasioned."--_Stuart on the Constitution of England_, p. 222 to 245.

"In the Anglo-Saxon period, accordingly, _twelve_ only were elected; and
these, together with the judge, or presiding officer of the district,
being sworn to regard justice, and the voice of reason, or conscience,
all causes were submitted to them."--_Ditto_, p. 260.

"Before the orders of men were very nicely distinguished, the jurors
were elected from the same rank. When, however, a regular subordination
of orders was established, and when a knowledge of property had inspired
the necessitous with envy, and the rich with contempt, _every man was
tried by his equals_. The same spirit of liberty which gave rise to this
regulation attended its progress. Nor could monarchs assume a more
arbitrary method of proceeding. 'I will not' (said the Earl of Cornwall
to his sovereign) 'render up my castles, nor depart the kingdom, but by
judgment of my peers.' Of this institution, so wisely calculated for the
preservation of liberty, all our historians have pronounced the
eulogium."--_Ditto_, p. 262-3.

Blackstone says:

"The policy of our ancient constitution, as regulated and established by
the great Alfred, was to bring justice home to every man's door, by
constituting as many courts of judicature as there are manors and towns
in the kingdom; _wherein injuries were redressed in an easy and
expeditious manner, by the suffrage of neighbors and friends_. These
little courts, however, communicated with others of a larger
jurisdiction, and those with others of a still greater power; ascending
gradually from the lowest to the supreme courts, which were respectively
constituted to correct the errors of the inferior ones, and to determine
such causes as, by reason of their weight and difficulty, demanded a
more solemn discussion. The course of justice flowing in large streams
from the king, as the fountain, to his superior courts of record; and
being then subdivided into smaller channels, till the whole and every
part of the kingdom were plentifully watered and refreshed. An
institution that seems highly agreeable to the dictates of natural
reason, as well as of more enlightened policy. * *

"These inferior courts, at least the name and form of them, still
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,[67]) will be by beginning with the lowest, and those whose
jurisdiction, though public and generally dispersed through the kingdom,
is yet (with regard to each particular court) confined to very narrow
limits; and so ascending gradually to those of the most extensive and
transcendent power."--3 _Blackstone_, 30 to 32.

"The _court-baron_ is a court incident to every manor in the kingdom,
_to be holden by the steward within the said manor_. This court-baron is
of two natures; the one is a customary court, of which we formerly
spoke, appertaining entirely to the copy-holders, in which their estates
are transferred by surrender and admittance, and other matters
transacted relative to their tenures only. The other, of which we now
speak, is a court of common law, and it is a court of the barons, by
which name the freeholders were sometimes anciently called; _for that it
is held by the freeholders who owe suit and service to 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 considering, viz., the freeholders court, was composed of the
lord's tenants, who were the pares_ (equals) _of each other, and were
bound by their feudal tenure to assist their lord in the dispensation of
domestic justice_. This was formerly held every three weeks; and its
most important business is to determine, by writ of right, all
controversies relating to the right of lands within the manor. It may
also hold plea of any personal actions, of debt, trespass in the case,
or the like, where the debt or damages do not amount to forty shillings;
which is the same sum, or three marks, that bounded the jurisdiction of
the ancient Gothic courts in their lowest instance, or _fierding
courts_, so called because four were 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,
resembling the former at all points, except that in point of territory
it is of greater jurisdiction. This is said by Sir Edward Coke to have
been derived out of the county court for the ease of the people, that
they might have justice done to them at their own doors, without any
charge or loss of time; but its institution was probably coeval with
that of hundreds themselves, which were formerly observed to have been
introduced, though not invented, by Alfred, being derived from the
polity of the ancient Germans. The _centeni_, we may remember, were the
principal inhabitants of a district composed of different villages,
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 controversies.) And Tacitus, who had examined their constitution
still more attentively, informs us not only of the authority of the
lords, but that of the _centeni_, the hundreders, or jury, _who were
taken out of the common freeholders, and had themselves a share in the
determination. 'Eliguntur in conciliis et principes, qui jura per pagos
vicosque reddunt, centeni 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 _hæreda_ 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 shillings; 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 same writ of false judgment may be had in nature of a writ of
error, this has occasioned the same disuse of bringing actions
therein."--_3 Blackstone_, 36, 37.

"Upon the whole, we cannot but admire the wise economy and admirable
provision of our ancestors in settling the distribution of justice in a
method so well calculated for cheapness, expedition, and ease. By the
constitution which they established, all trivial debts, and injuries of
small consequence, were to be recovered or redressed in every man's own
county, hundred, or perhaps parish."--_3 Blackstone_, 59.]

[Footnote 54: 1 Blackstone, 63-67.]

[Footnote 55: This quaint and curious book (Smith's Commonwealth of
England) describes the _minutiæ_ of trials, giving in detail the mode of
impanelling the jury, and then the conduct of the lawyers, witnesses,
and court. I give the following extracts, _tending to show that the
judges impose no law upon the juries, in either civil or criminal cases,
but only require them to determine the causes according to their
consciences_.

In civil causes he says:

   "When it is thought that it is enough pleaded before them, and the
   witnesses have said what they can, one of the judges, with a brief
   and pithy recapitulation, reciteth to the twelve in sum the arguments
   of the sergeants of either side, that which the witnesses have
   declared, and the chief points of the evidence showed in writing, and
   once again putteth them in mind of the issue, and sometime giveth it
   them in writing, delivering to them the evidence which is showed on
   either part, if any be, (evidence here is called writings of
   contracts, authentical after the manner of England, that is to say,
   written, sealed, and delivered,) and biddeth them go together."--p.
   74.

This is the whole account given of the charge to the jury.

In criminal 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 according to their consciences, and not to submit to any dictation
from the court, either as to law or fact.

   "If having pregnant evidence, nevertheless, the twelve do acquit the
   malefactor, which they will do sometime, especially if they perceive
   either one of the justices or of the judges, or some other man, to
   pursue too much and too maliciously the death of the prisoner, * *
   the prisoner escapeth; but the twelve (are) not only rebuked by the
   judges, but also threatened of punishment; and many times commanded
   to appear in the Star-Chamber, or before the Privy Council for the
   matter. But this threatening chanceth oftener than the execution
   thereof; _and the twelve answer with most gentle words, they did it
   according to their consciences_, and pray the judges to be good unto
   them, _they did as they thought right, and as they accorded all_, and
   so it passeth away for the most part."--p. 100.

The account given of the trial of a peer of the realm corroborates the
same point:

   "If any duke, marquis, or any other of the degrees of a baron, or
   above, lord of the Parliament, be appeached of treason, or any other
   capital crime, he is judged by his peers and equals; that is, the
   yeomanry doth not go upon him, but an inquest of the Lords of
   Parliament, and they give their voice not one for all, but each
   severally as they do in Parliament, being (beginning) at the youngest
   lord. And for judge one lord sitteth, who is constable of England for
   that day. The judgment once given, he breaketh his staff, and
   abdicateth his office. In the rest there is no difference from that
   above written," (that is, in the case of a freeman.)--p. 98.]

[Footnote 56: "The present form of the jurors' oath is that they shall
'give a true verdict _according to the evidence_.' At what time this
form was introduced is uncertain; but for several centuries after the
Conquest, the jurors, _both in civil and criminal cases_, were sworn
merely to _speak the truth_. (Glanville, lib. 2, cap. 17; Bracton, lib.
3, cap. 22; lib. 4, p. 287, 291; Britton, p. 135.) Hence their decision
was accurately termed _veredictum_, or verdict, that is, 'a thing truly
said'; whereas the phrase 'true verdict' in the modern oath is not an
accurate expression."--_Political Dictionary_, word _Jury_.]

[Footnote 57: 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_."]

[Footnote 58: _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 numerous, running through
the three or four hundred years immediately succeeding Magna Carta, in
which fines, ransoms, and amercements are spoken of as if they were the
common punishments of offences, and as if they all meant the same thing.
If, however, any technical difference could be made out between them,
there is clearly none in principle; and the word amercement, as used in
Magna Carta, must be taken in its most comprehensive sense.]

[Footnote 59: "_Common right_" was the common law. _1 Coke's Inst._ 142
a. 2 _do._ 55, 6.]

[Footnote 60: The oath of the justices is in these words:

"Ye shall swear, that well and lawfully ye shall serve our lord the king
_and his people_, in the office of justice, and that lawfully ye shall
counsel the king in his business, and that ye shall not counsel nor
assent to anything which may turn him in damage or disherison in any
manner, way, or color. And that ye shall not know the damage or
disherison of him, whereof ye shall not cause him to be warned by
yourself, or by other; _and that ye shall do equal law and execution of
right to all his subjects, rich and poor, without having regard to any
person_. And that ye take not by yourself, or by other, privily nor
apertly, gift nor reward of gold nor silver, nor of any other thing that
may turn to your profit, unless it be meat or drink, and that of small
value, of any man that shall have any plea or process hanging before
you, as long as the same process shall be so hanging, nor after for the
same cause. And that ye take no fee, as long as ye shall be justice, nor
robe of any man great or small, but of the king himself. And that ye
give none advice or counsel to no man great or small, in no case where
the king is party. And in case that any, of what estate or condition
they be, come before you in your sessions with force and arms, or
otherwise against the peace, or against the form of the statute thereof
made, _to disturb execution of the common law_," (mark the term,
"_common law_,") "or to menace the people that they may not pursue the
law, that ye 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 that ye deny no man
common right by the king's letters, nor none other man's, nor for none
other cause; and in case any letters come to you contrary to the law,"
(that is, the "common law" before mentioned,) "that ye do nothing by
such letters, but certify the king thereof, and proceed to execute the
law," (the "common law" before mentioned,) "notwithstanding the same
letters._ And that ye shall do and procure the profit of the king and of
his crown, with all things where ye may reasonably do the same. And in
case ye be from henceforth found in default in any of the points
aforesaid, ye shall be at the king's will of body, lands, and goods,
thereof to be done as shall please him, as God you help and all
saints."--_18 Edward III._, st. 4. (1344.)]

[Footnote 61: That the terms "_Law_" and "_Right_," as used in this
statute, mean the _common law_, is shown by the preamble, which declares
the motive of the statute to be that "_the Law of the Land, (the common
law,) which we (the king) by our oath are bound to maintain_," may be
the better kept, &c.]

[Footnote 62: 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, antiqua et approbata, pertinet Reges Angliæ inungere et
   coronare, die coronacionis Regis, anteque Rex coronetur, faciet Regi
   Interrogationes subscriptas.)

   Si leges et consuetudines ab antiquis justis et Deo devotis Regibus
   plebi Anglicano concessas, cum sacramenti confirmacione eidem plebi
   concedere et servare (volueris:) Et præsertim leges et consuetudines
   et libertates a glorioso Rege Edwardo clero populoque 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."]

[Footnote 63: It would appear, from the text, that the Charter of
Liberties and the Charter of the Forest were sometimes called "_laws of
the land_."]

[Footnote 64: As the ancient coronation oath, given in the text, has
come down from the Saxon 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 the laws of the
king:

"The Imperial Witenagemot was not a legislative assembly, in the strict
sense of the term, for the whole Anglo-Saxon empire. Promulgating his
edicts amidst his peers and prelates, the king uses the language of
command; but the theoretical prerogative was modified by usage, and the
practice of the constitution required that the law should be accepted by
the legislatures (courts) of the several kingdoms. * * The 'Basileus'
speaks in the tone of prerogative: Edgar does not merely recommend, he
commands that the law shall be adopted by all the people, whether
English, Danes, or Britons, in every part of his empire. Let this
statute be observed, he continues, by Earl Oslac, and all the host who
dwell under his government, and let it be transmitted by writ to the
ealdormen of the other subordinate states. And yet, in defiance of this
positive 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 exception to the general rule; but in the
scanty and imperfect annals of Anglo-Saxon legislation, we shall be able
to find so many examples of similar proceedings, _that this mode of
enactment must be considered as dictated by the constitution of the
empire_. Edward was the supreme lord of the Northumbrians, but more than
a century elapsed before they obeyed his decrees. The laws of the
glorious Athelstane had no effect in Kent, (county,) the dependent
appanage of his crown, until sanctioned by the _Witan_ of the _shire_
(county court). And the power of Canute himself, the 'King of all
England,' does not seem to have compelled the Northumbrians to receive
his code, until the reign of the Confessor, when such acceptance became
a part of the compact upon the accession of a new earl.

Legislation constituted but a small portion of the ordinary business
transacted by the Imperial Witenagemot. The wisdom of the assembly was
shown in avoiding unnecessary change. _Consisting principally of
traditionary usages and ancestorial customs, the law was upheld by
opinion. The people considered their jurisprudence as a part of their
inheritance._ Their privileges and their duties were closely conjoined;
_most frequently, the statutes themselves were only affirmances of
ancient customs, or declaratory enactments_. In the Anglo-Saxon
commonwealth, therefore, the legislative functions of the Witenagemot
were of far less importance than the other branches of its authority. *
* The members of the Witenagemot were the 'Pares 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, who submitted his
Charter to the judgment of the _Proceres_, professed to be guided by the
opinion which they gave. As the '_Pares_' of the empire, the Witenagemot
decided the disputes between the great vassals of the crown. * * The
jurisdiction exercised in the Parliament of Edward I., when the barony
of a _Lord-Marcher_ became the subject of litigation, is entirely
analogous to the proceedings thus adopted by the great council of
Edward, the son of Alfred, the Anglo-Saxon king.

In this assembly, the king, the prelates, the dukes, the ealdormen, and
the optimates passed judgment upon all great offenders. * *

_The sovereign could not compel the obedience of the different nations
composing the Anglo-Saxon empire._ Hence, it became more necessary for
him to _conciliate their opinions_, if he solicited any service from a
vassal prince or a vassal state beyond the ordinary terms of the
compact; still more so, when he needed the support of a free burgh or
city. And we may view the assembly (the Witenagemot) as partaking of the
character of a political congress, in which the liegemen of the crown,
or the communities protected by the 'Basileus,' (sovereign,) were asked
or persuaded to relieve the exigences of the state, or to consider those
measures which might be required for the common weal. The sovereign was
compelled to parley with his dependents.

It may be doubted whether any one member of the empire had power to
legislate for any other member. The Regulus of Cumbria was unaffected by
the vote of the Earl of East 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 contracted with his superior did not involve any pecuniary
subsidy, but only rendered him liable to perform service in the
field."--_1 Palgrave's Rise and Progress of the English Commonwealth_,
637 to 642.]

[Footnote 65: "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."]

[Footnote 66: It would be wholly erroneous, I think, to infer from this
statement of Stuart, that either the "priests, princes, earls, or
_eorldormen_" exercised any authority over the jury in the trial of
causes, in the way of dictating the law to them. Henry's account of this
matter doubtless gives a much more accurate representation of the truth.
He says that _anciently_

   "The meeting (the county court) was opened with a discourse by the
   bishop, explaining, out of the Scriptures and ecclesiastical canons,
   their several duties as good Christians and members of the church.
   After this, the alderman, or one of his assessors, made a discourse
   on the laws of the land, and the duties of good subjects and good
   citizens. _When these preliminaries were over, they 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.]

[Footnote 67: There was no distinction between the civil and criminal
counts, as to the rights or powers of juries.]




CHAPTER IV.

THE RIGHTS AND DUTIES OF JURIES IN CIVIL SUITS.


The evidence already given in the preceding chapters proves that the
rights and duties of jurors, in civil suits, were anciently the same as
in criminal ones; that the laws of the king were of no obligation upon
the consciences of the jurors, any further than the laws were seen by
them to be just; that very few laws were enacted applicable to civil
suits; that when a new law was enacted, the nature of it could have been
known to the jurors only by report, and was very likely not to be known
to them at all; that nearly all the law involved in civil suits was
_unwritten_; that there was _usually_ no one in attendance upon juries
who could possibly enlighten them, unless it were sheriffs, stewards,
and bailiffs, who were unquestionably too ignorant and untrustworthy to
instruct them authoritatively; that the jurors must therefore
necessarily have judged for themselves of the whole case; and that, _as
a general rule_, they could judge of it by no law but the law of nature,
or the principles of justice as they existed in their own minds.

The ancient oath of jurors in civil suits, viz., that "_they would make
known the truth according to their consciences_," implies that the
jurors were above the authority of all legislation. The modern oath, in
England, viz., that they "_will well and truly try the issue between the
parties, and a true verdict give, according to the evidence_," implies
the same thing. If the laws of the king had been binding upon a jury,
they would have been sworn to try the cases _according to law_, or
according to the laws.

The ancient writs, in civil suits, as given in Glanville, (within the
half century before Magna Carta,) to wit, "Summon twelve free and legal
men, (or sometimes twelve knights,) to be in court, _prepared upon their
oaths to declare whether A or B have the greater right to the land in
question_," indicate that the jurors judged of the whole matter on their
consciences only.

The language of Magna Carta, already discussed, establishes the same
point; for, although some of the words, such as "outlawed," and
"exiled," would apply only to criminal cases, nearly the whole chapter
applies as well to civil as to criminal suits. For example, how could
the payment of a debt ever be enforced against an unwilling debtor, if
he could neither be "arrested, imprisoned, nor deprived of his
freehold," and if the king could neither "proceed against him, nor send
any one against him, by force or arms"? Yet Magna Carta as much forbids
that any of these things shall be done against a debtor, as against a
criminal, _except according to, or in execution of_, "_a judgment of his
peers, or the law of the land_,"--a provision which, it has been shown,
gave the jury the free and absolute right to give or withhold "judgment"
according to their consciences, irrespective of all legislation.

The following provisions, in the Magna Carta of John, illustrate the
custom of referring the most important matters of a civil nature, even
where the king was a party, to the determination of the peers, or of
twelve men, acting by no rules but their own consciences. These examples
at least show that there is nothing improbable or unnatural in the idea
that juries should try all civil suits according to their own judgments,
independently of all laws of the king.

   _Chap. 65._ "If we have disseized or dispossessed the Welsh of any
   lands, liberties, or other things, without the legal judgment of
   their peers, they shall be immediately restored to them. And if any
   dispute arises upon this head, the matter shall be determined in the
   Marches,[68] _by the judgment of their peers_," &c.

   _Chap. 68._ "We shall treat with Alexander, king of Scots, concerning
   the restoring of his sisters, and hostages, and rights and liberties,
   in the same form and manner as we shall do to the rest of our barons
   of England; unless by the engagements, which his father William, late
   king of Scots, hath entered into with us, it ought to be otherwise;
   _and this shall be left to the determination of his peers in our
   court_."

   _Chap. 56._ "All evil customs concerning forests, warrens, and
   foresters, warreners, sheriffs, and their officers, rivers and their
   keepers, shall forthwith be inquired into in each county, _by twelve
   knights of the same shire_, chosen by the most creditable persons in
   the same county, _and upon oath_; and within forty days after the
   said inquest, be utterly abolished, so as never to be restored."

There is substantially the same reason why a jury _ought_ to judge of
the justice of laws, and hold all unjust laws invalid, in civil suits,
as in criminal ones. That reason is the necessity of guarding against
the tyranny of the government. Nearly the same oppressions can be
practised in civil suits as in criminal ones. For example, individuals
may be deprived of their liberty, and robbed of their property, by
judgments rendered in civil suits, as well as in criminal ones. If the
laws of the king were imperative upon a jury in civil suits, the king
might enact laws giving one man's property to another, or confiscating
it to the king himself, and authorizing civil suits to obtain possession
of it. Thus a man might be robbed of his property at the arbitrary
pleasure of the king. In fact, all the property of the kingdom would be
placed at the arbitrary disposal of the king, through the judgments of
juries in civil suits, if the laws of the king were imperative upon a
jury in such suits.[69]

Furthermore, it would be absurd and inconsistent to make a jury
paramount to legislation in _criminal_ suits, and subordinate to it in
_civil_ suits; because an individual, by resisting the execution of a
_civil_ judgment, founded upon an unjust law, could give rise to a
_criminal_ suit, in which the jury would be bound to hold the same law
invalid. So that, if an unjust law were binding upon a jury in _civil_
suits, a defendant, by resisting the execution of the judgment, could,
_in effect_, convert the civil action into a criminal one, in which the
jury would be paramount to the same legislation, to which, in the
_civil_ suit, they were subordinate. In other words, in the _criminal_
suit, the jury would be obliged to justify the defendant in resisting a
law, which, in the _civil_ suit, they had said he was bound to submit
to.

To make this point plain to the most common mind--suppose a law be
enacted that the property of A shall be given to B. B brings a civil
action to obtain possession of it. If the jury, in this _civil_ suit,
are bound to hold the law obligatory, they render a judgment in favor of
B, that he be put in possession of the property; _thereby declaring that
A is bound to submit to a law depriving him of his property_. But when
the execution of that judgment comes to be attempted--that is, when the
sheriff comes to take the property for the purpose of delivering it to
B--A acting, as he has a _natural_ right to do, in defence of his
property, resists and kills the sheriff. He is thereupon indicted for
murder. On this trial his plea is, that in killing the sheriff, he was
simply exercising his _natural_ right of defending his property against
an unjust law. The jury, not being bound, in a _criminal_ case, by the
authority of an unjust law, judge the act on its merits, and acquit the
defendant--thus declaring that he was _not_ bound to submit to the same
law which the jury, in the _civil_ suit, had, by their judgment,
declared that he _was_ bound to submit to. Here is a contradiction
between the two judgments. In the _civil_ suit, the law is declared to
be obligatory upon A; in the _criminal_ suit, the same law is declared
to be of no obligation.

It would be a solecism and absurdity in government to allow such
consequences as these. Besides, it would be practically impossible to
maintain government on such principles; for no government could enforce
its _civil_ judgments, unless it could support them by _criminal_ ones,
in case of resistance. A jury must therefore be paramount to legislation
in both civil and criminal cases, or in neither. If they are paramount
in neither, they are no protection to liberty. If they are paramount in
both, then all legislation goes only for what it may chance to be worth
in the estimation of a jury.

Another reason why Magna Carta makes the discretion and consciences of
juries paramount to all legislation in _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 unwritten, or at least not so many copies
written as that juries could be supplied with them)--would have been
necessitated--at least in those courts in which the king's justices
sat--to take the word of those justices as to what the laws of the king
really were. In other words, they would have been necessitated _to take
the law from the court_, as jurors do now.

Now there were two reasons why, as we may rationally suppose, the people
did not wish juries to take their law from the king's judges. One was,
that, at that day, the people probably had sense enough to see, (what
we, at this day, have not sense enough to see, although we have the
evidence of it every day before our eyes,) that those judges, being
dependent upon the legislative power, (the king,) being appointed by it,
paid by it, and removable by it at pleasure, would be mere tools of that
power, and would hold all its legislation obligatory, whether it were
just or unjust. This was one reason, doubtless, why Magna Carta made
juries, in civil suits, paramount to all instructions of the king's
judges. The reason was precisely the same as that for making them
paramount to all instructions of judges in criminal suits, viz., that
the people did not choose to subject their rights of property, and all
other rights involved in civil suits, to the operation of such laws as
the king might please to enact. It was seen that to allow the king's
judges to dictate the law to the jury would be equivalent to making the
legislation of the king imperative upon the jury.

Another reason why the people did not wish juries, in civil suits, to
take their law from the king's judges, doubtless was, that, knowing the
dependence of the judges upon the king, and knowing that the king would,
of course, tolerate no judges who were not subservient to his will, they
necessarily inferred that the king's judges would be as corrupt, in the
administration of justice, as was the king himself, or as he wished them
to be. And how corrupt that was, may be inferred from the following
historical facts.

Hume says:

  "It appears that the ancient kings of England put themselves entirely
   upon the footing of the barbarous Eastern princes, whom no man must
   approach without a present, who sell all their good offices, and who
   intrude themselves into every business that they may have a pretence
   for extorting money. Even justice was avowedly bought and sold; the
   king's court itself, though the supreme judicature of the kingdom,
   was open to none that brought not presents to the king; the bribes
   given for expedition, delay, suspension, and doubtless for the
   perversion of justice, were entered in the public registers of the
   royal revenue, and remain as monuments of the perpetual iniquity and
   tyranny of the times. The barons of the exchequer, for instance, the
   first nobility of the kingdom, were not ashamed to insert, as an
   article in their records, that the county of Norfolk paid a sum that
   they might be fairly dealt with; the borough of Yarmouth, that the
   king's charters, which they have for their liberties, might not be
   violated; Richard, son of Gilbert, for the king's helping him to
   recover his debt from the Jews; * * 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 inquest to find whether he were accused of the death of
   one Godwin, out of ill-will, or for just cause. I have selected these
   few instances from a great number of the like kind, which Madox had
   selected from a still greater number, preserved in the ancient rolls
   of the exchequer.

   Sometimes a party litigant offered the king a certain portion, a
   half, a third, a fourth, payable out of the debts which he, as the
   executor of justice, should assist in recovering. Theophania de
   Westland agreed to pay the half of two hundred and twelve marks, that
   she might recover that sum against James de Fughleston; Solomon, the
   Jew, engaged to pay one mark out of every seven that he should
   recover against Hugh de la Hose; Nicholas Morrel promised to pay
   sixty pounds, that the Earl of Flanders might be distrained to pay
   him three hundred and forty-three pounds, which the earl had taken
   from him; and these sixty pounds were to be paid out of the first
   money that Nicholas should recover from the earl."--_Hume, Appendix
   2._

   "In the reign of Henry II., the best and most just of these (the
   Norman) princes, * * Peter, of Blois, a judicious and even elegant
   writer, of that age, gives a pathetic description of the _venality of
   justice_, and the oppressions of the poor, * * and he scruples not to
   complain to the king himself of these abuses. We may judge what the
   case would be under the government of worse princes."--_Hume,
   Appendix 2._

Carte says:

   "The crown exercised in those days an exorbitant and inconvenient
   power, ordering the justices of the king's court, in suits about
   lands, to turn out, put, and keep in possession, which of the
   litigants they pleased; to send contradictory orders; and take large
   sums of money from each; to respite proceedings; to direct sentences;
   and the judges, acting by their commission, conceived themselves
   bound to observe such orders, to the great delay, interruption, and
   preventing of justice; at least, this was John's practice."--_Carte's
   History of England_, vol. 1, p. 832.

Hallam says:

   "But of all the abuses that deformed the Anglo-Saxon government, none
   was so flagitious as the sale of judicial redress. The king, we are
   often told, is the fountain of justice; but in those ages it was one
   which gold alone could unseal. Men fined (paid fines) to have right
   done them; to sue in a certain court; to implead a certain person; to
   have restitution of land which they had recovered at law. From the
   sale of that justice which every citizen has a right to demand, it
   was an easy transition to withhold or deny it. Fines were received
   for the king's help against the adverse suitor; that is, for
   perversion of justice, or for delay. Sometimes they were paid by
   opposite parties, and, of course, for opposite ends."--_2 Middle
   Ages_, 438.

In allusion to the provision of Magna Carta on this subject, Hallam
says:

   "A law which enacts that justice shall neither be sold, denied, nor
   delayed, stamps with infamy that government under which it had become
   necessary."--_2 Middle Ages_, 451.

Lingard, speaking of the times of Henry II., (say 1184,) says:

   "It was universally understood that money possessed greater influence
   than justice in the royal courts, and instances are on record, in
   which one party has made the king a present to accelerate, and the
   other by a more valuable offer has succeeded in retarding a decision.
   * * But besides the fines paid to the sovereigns, _the judges often
   exacted presents for themselves_, and loud complaints existed against
   their venality and injustice."--_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 following items:

   "To Ralph, the king's physician, I gave thirty-six marks and one
   half; to the king an hundred marks; and to the queen one mark of
   gold." The result is thus stated. "At last, thanks to our lord the
   king, and by judgment of his court, my uncle's land was adjudged to
   me."--_2 Palgrave's Rise and Progress of the English Commonwealth_,
   p. 9 and 24.

Palgrave also says:

   "The precious ore was cast into the scales of justice, even when held
   by the most conscientious of our Anglo-Saxon kings. A single case
   will exemplify the practices which prevailed. Alfric, the heir of
   'Aylwin, the black,' seeks to set aside the death-bed bequest, by
   which his kinsman bestowed four rich and fertile manors upon St.
   Benedict. Alfric, the claimant, was supported by extensive and
   powerful connexions; and Abbot Alfwine, the defendant, was well aware
   that there would be _danger_ in the discussion of the dispute in
   public, or before the Folkmoot, (people's meeting, or county court);
   or, in other words, that the Thanes of the shire would do their best
   to give a judgment in favor of their compeer. The plea being removed
   into the Royal Court, the abbot acted with that prudence which so
   often calls forth the praises of the monastic scribe. He gladly
   emptied twenty marks of gold into the sleeve of the Confessor,
   (Edward,) and five marks of gold presented to Edith, the Fair,
   encouraged her to aid the bishop, and to exercise her gentle
   influence in his favor. Alfric, with equal wisdom, withdrew from
   prosecuting the hopeless cause, in which his opponent might possess
   an advocate in the royal judge, and a friend in the king's consort.
   Both parties, therefore, found it desirable to come to an
   agreement."--_1 Palgrave's Rise and Progress, &c._, p. 650.

But Magna Carta has another provision for the trial of _civil_ suits,
that obviously had its origin in the corruption of the king's judges.
The provision is, that four knights, to be chosen in every county, by
the people of the county, shall sit with the king's judges, in the
Common Pleas, in jury trials, (assizes,) on the trial of three certain
kinds of suits, that were among the most important that were tried at
all. The reason for this provision undoubtedly was, that the corruption
and subserviency of the king's judges were so well known, that the
people would not even trust them to sit alone in a jury trial of any
considerable importance. The provision is this:

   _Chap. 22_, (of John's Charter.) "Common Pleas shall not follow our
   court, but shall be holden in some certain place. Trials upon the
   writ of _novel disseisin_, and of _Mort d'Ancester_, and of _Darrein
   Presentment_, shall be taken but in their proper counties, and after
   this manner: We, or, if we should be out of our realm, our chief
   justiciary, shall send two justiciaries through every county four
   times a year;[70] _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.[71]

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._[72]

But the following chapter of John's charter, which immediately succeeds
the one just quoted, and refers to the same suits, affords very strong,
not to say conclusive, proof, that juries judged of the law in civil
suits--that is, _made the law_, so far as their deciding according to
their own notions of justice could make the law.

   _Chap. 23._ "And if, on the county day, the aforesaid assizes cannot
   be taken, _so many knights and freeholders shall remain, of those who
   shall have been present on said day, as that the judgments may be
   rendered by them_, whether the business be more or less."

The meaning of this chapter is, that so many of the _civil_ suits, as
could not be tried on the day when the king's justices were present,
should be tried afterwards, _by the four knights before mentioned, and
the freeholders, that is, the jury_. It must be admitted, of course,
that the juries, in these cases, judged the matters of law, as well as
fact, unless it be presumed that the _knights_ dictated the law to the
jury--a thing of which there is no evidence at all.

As a final proof on this point, there is a statute enacted seventy years
after Magna Carta, which, although it is contrary to the common law, and
therefore void, is nevertheless good evidence, inasmuch as it contains
an acknowledgment, on the part of the king himself, that juries had a
right to judge of the whole matter, law and fact, in civil suits. The
provision is this:

   "It is ordained, that the justices assigned to take the assizes,
   shall not compel the jurors to say precisely whether it be disseisin,
   or not, so that they do show the truth of the deed, and seek aid of
   the justices. But if they will, of their own accord, say that it is
   disseisin, or not, their verdict shall be admitted at their own
   peril."--_13 Edward I._, st. 1, ch. 3, sec. 2. (1285.)

The question of "disseisin, or not," was a question of law, as well as
fact. This statute, therefore, admits that the law, as well as the fact,
was in the hands of the jury. The statute is nevertheless void, because
the king had no authority to give jurors a dispensation from the
obligation imposed upon them by their oaths and the "law of the land,"
that they should "make known the truth according their (own)
consciences." This they were bound to do, and there was no power in the
king to absolve them from the duty. And the attempt of the king thus to
absolve them, and authorize them to throw the case into the hands of the
judges for decision, was simply an illegal and unconstitutional attempt
to overturn the "law of the land," which he was sworn to maintain, and
gather power into his own hands, through his judges. He had just as much
constitutional power to enact that the jurors should not be compelled to
declare the _facts_, but that they might leave _them_ to be determined
by the king's judges, as he had to enact that they should not be
compelled to declare the _law_, but might leave _it_ to be decided by
the king's judges. It was as much the legal duty of the jury to decide
the law as to decide the fact; and no law of the king could affect their
obligation to do either. And this statute is only one example of the
numberless contrivances and usurpations which have been resorted to, for
the purpose of destroying the original and genuine trial by jury.

[Footnote 68: _Marches_, the limits, or boundaries, between England and
Wales.]

[Footnote 69: That the kings would have had no scruples to enact laws
for the special purpose of plundering the people, by means of the
judgments of juries, if they could have got juries to acknowledge the
authority of their laws, is evident from the audacity with which they
plundered them, without any judgments of juries to authorize them.

It is not necessary to occupy space here to give details as to these
robberies; but only some evidence of the general fact.

   Hallam says, that "For the first three reigns (of the Norman kings) *
   * the intolerable exactions of tribute, the rapine of purveyance, the
   iniquity of royal courts, are continually in the mouths of the
   historians. 'God sees the wretched people,' says the Saxon
   Chronicler, 'most unjustly oppressed; first they are despoiled of
   their possessions, and then butchered.' This was a grievous year
   (1124). Whoever had any property, lost it by heavy taxes and unjust
   decrees."--_2 Middle Ages_, 435-6.

   "In the succeeding reign of _John_, all the rapacious exactions usual
   to these Norman kings were not only redoubled, but mingled with
   outrages of tyranny still more intolerable. * *

   "In 1207 John took a seventh of the movables of lay and spiritual
   persons, all murmuring, but none daring to speak against
   it."--_Ditto_, 446.

In Hume's account of the extortions of those times, the following
paragraph occurs:

   "But the most barefaced acts of tyranny and oppression were practised
   against the Jews, who were entirely out of the protection of the law,
   and were abandoned to the immeasurable rapacity of the king and his
   ministers. Besides many other indignities, to which they were
   continually exposed, it appears that they were once all thrown into
   prison, and the sum of 66,000 marks exacted for their liberty. At
   another time, Isaac, the Jew, paid alone 5100 marks; Brun, 3000
   marks; Jurnet, 2000; Bennet, 500. At another, Licorica, widow of
   David, the Jew of Oxford, was required to pay 6000 marks."--_Hume's
   Hist. Eng., Appendix_ 2.

Further accounts of the extortions and oppressions of the kings may be
found in Hume's History, Appendix 2, and in Hallam's Middle Ages, vol.
2, p. 435 to 446.

By Magna Carta John bound himself to make restitution for some of the
spoliations he had committed upon individuals "_without the legal
judgment of their peers_."--_See Magna Carta of John_, ch. 60, 61, 65
and 66.

One of the great charges, on account of which the nation rose against
John, was, that he plundered individuals of their property, "_without
legal judgment of their peers_." Now it was evidently very weak and
short-sighted in John to expose himself to such charges, _if his laws
were really obligatory upon the peers_; because, in that case, he could
have enacted any laws that were necessary for his purpose, and then, by
civil suits, have brought the cases before juries for their "judgment,"
and thus have accomplished all his robberies in a perfectly legal
manner.

There would evidently have been no sense in these complaints, that he
deprived men of their property "_without legal judgment of their
peers_," if his laws had been binding upon the peers; because he could
then have made the same spoliations as well with the judgment of the
peers as without it. Taking the judgment of the peers in the matter,
would have been only a ridiculous and useless formality, if they were to
exercise no discretion or conscience of their own, independently of the
laws of the king.

It may here be mentioned, in passing, that the same would be true in
criminal matters, if the king's laws were obligatory upon juries.

As an illustration of what tyranny the kings would sometimes practise,
Hume says:

   "It appears from the Great Charter itself, that not only John, a
   tyrannical prince, and Richard, a violent one, but their father
   Henry, under whose reign the prevalence of gross abuses is the least
   to be suspected, were accustomed, from their sole authority, without
   process of law, to imprison, banish, and attaint the freemen of their
   kingdom."--_Hume, Appendix_ 2.

The provision, also, in the 64th chapter of Magna Carta, that "all
unjust and illegal fines, and all amercements, _imposed unjustly, and
contrary to the Law of the Land, shall be entirely forgiven_," &c.; and
the provision, in chapter 61, that the king "will cause full justice to
be administered" in regard to "all those things, of which any person
has, without legal judgment of his peers, been dispossessed or deprived,
either by King Henry, our father, or our brother, King Richard,"
indicate the tyrannical practices that prevailed.

   We are told also that John himself "had dispossessed several great
   men without any judgment of their peers, condemned others to cruel
   deaths, * * insomuch that his tyrannical will stood instead of a
   law."--_Echard's History of England_, 106.

Now all these things were very unnecessary and foolish, if his laws were
binding upon juries; because, in that case, he could have procured the
conviction of these men in a legal manner, and thus have saved the
necessity of such usurpation. In short, if the laws of the king had been
binding upon juries, there is no robbery, vengeance, or oppression,
which he could not have accomplished through the judgments of juries.
This consideration is sufficient, of itself, to prove that the laws of
the king were of no authority over a jury, in either civil or criminal
cases, unless the juries regarded the laws as just in themselves.]

[Footnote 70: By the Magna Carta of Henry III. this is changed to once a
year.]

[Footnote 71: 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.]

[Footnote 72: "The earls, sheriffs, and head-boroughs were annually
elected in the full folcmote, (people's meeting)."--_Introduction to
Gilbert's History of the Common Pleas_, p. 2, _note_.

"It was the especial province of the earldomen or earl to attend the
shyre-meeting, (the county court,) twice a year, and there officiate as
the county judge in expounding the secular laws, as appears by the fifth
of Edgar's laws."--_Same_, p. 2, _note_.

"Every ward had its proper alderman, who was _chosen_, and not imposed
by the prince."--_Same_, p. 4, _text_.

"As the aldermen, or earls, were always _chosen_" (by the people) "from
among the greatest thanes, who in those times were generally more
addicted to arms than to letters, they were but ill-qualified for the
administration of justice, and performing the civil duties of their
office."--_3 Henry's History of Great Britain_, 343.

"But none of these thanes were annually elected in the full folcmote,
(people's meeting,) _as the earls, sheriffs, and head-boroughs were_;
nor did King Alfred (as this author suggests) deprive the people of the
election of those last mentioned magistrates and nobles, much less did
he appoint them himself."--_Introd. to Gilbert's Hist. Com. Pleas_, p.
2, _note_.

"The sheriff was usually not appointed by the lord, but elected by the
freeholders of the district."--_Political Dictionary_, word _Sheriff_.

"Among the most remarkable of the Saxon laws we may reckon * * the
election of their magistrates by the people, originally even that of
their kings, till dear-bought experience evinced the convenience and
necessity of establishing an hereditary succession to the crown. But
that (the election) of all subordinate magistrates, their military
officers or heretochs, their sheriffs, their conservators of the peace,
their coroners, their portreeves, (since changed into mayors and
bailiffs,) and even their tithing-men and borsholders at the last,
continued, some, till the Norman conquest, others for two centuries
after, and some remain to this day."--_4 Blackstone_, 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.]




CHAPTER V.

OBJECTIONS ANSWERED


The following objections will be made to the doctrines and the evidence
presented in the preceding chapters.

1. That it is a _maxim_ of the law, that the judges respond to the
question of law, and juries only to the question of fact.

The answer to this objection is, that, since Magna Carta, judges have
had more than six centuries in which to invent and promulgate pretended
maxims to suit themselves; and this is one of them. Instead of
expressing the law, it expresses nothing but the ambitious and lawless
will of the judges themselves, and of those whose instruments they
are.[73]

2. It will be asked, Of what use are the justices, if the jurors judge
both of law and fact?

The answer is, that they are of use, 1. To assist and enlighten the
jurors, if they can, by their advice and information; such advice and
information to be received only for what they may chance to be worth in
the estimation of the jurors. 2. To do anything that may be necessary in
regard to granting appeals and new trials.

3. It is said that it would be absurd that twelve ignorant men should
have power to judge of the law, while justices learned in the law should
be compelled to sit by and see the law decided erroneously.

One answer to this objection is, that the powers of juries are not
granted to them on the supposition that they know the law better than
the justices; but on the ground that the justices are untrustworthy,
that they are exposed to bribes, are themselves fond of power and
authority, and are also the dependent and subservient creatures of the
legislature; and that to allow them to dictate the law, would not only
expose the rights of parties to be sold for money, but would be
equivalent to surrendering all the property, liberty, and rights of the
people, unreservedly into the hands of arbitrary power, (the
legislature,) to be disposed of at its pleasure. The powers of juries,
therefore, not only place a curb upon the powers of legislators and
judges, but imply also an imputation upon their integrity and
trustworthiness; and _these_ are the reasons why legislators and judges
have formerly entertained the intensest hatred of juries, and, so fast
as they could do it without alarming the people for their liberties,
have, by indirection, denied, undermined, and practically destroyed
their power. And it is only since all the real power of juries has been
destroyed, and they have become mere tools in the hands of legislators
and judges, that they have become favorites with them.

Legislators and judges are necessarily exposed to all the temptations of
money, fame, and power, to induce them to disregard justice between
parties, and sell the rights, and violate the liberties of the people.
Jurors, on the other hand, are exposed to none of these temptations.
They are not liable to bribery, for they are unknown to the parties
until they come into the jury-box. They can rarely gain either fame,
power, or money, by giving erroneous decisions. Their offices are
temporary, and they know that when they shall have executed them, they
must return to the people, to hold all their own rights in life subject
to the liability of such judgments, by their successors, as they
themselves have given an example for. The laws of human nature do not
permit the supposition that twelve men, taken by lot from the mass of
the people, and acting under such circumstances, will _all_ prove
dishonest. It is a supposable case that they may not be sufficiently
enlightened to know and do their whole duty, in all cases whatsoever;
but that they should _all_ prove _dishonest_, is not within the range
of probability. A jury, therefore, insures to us--what no other court
does--that first and indispensable requisite in a judicial tribunal,
integrity.

4. It is alleged that if juries are allowed to judge of the law, _they
decide the law absolutely; that their decision must necessarily stand,
be it right or wrong_; and that this power of absolute decision would be
dangerous in their hands, by reason of their ignorance of the law.

One answer is, that this power, which juries have of _judging_ of the
law, is not a power of _absolute decision in all cases_. For example, it
is a power to declare imperatively that a man's property, liberty, or
life, shall _not_ be taken from him; but it is not a power to declare
imperatively that they _shall_ be taken from him.

Magna Carta does not provide that the judgments of the peers _shall be
executed_; but only that _no other than their judgments_ shall ever be
executed, _so far as to take a party's goods, rights, or person,
thereon_.

A judgment of the peers may be reviewed, and invalidated, and a new
trial granted. So that practically a jury has no absolute power to take
a party's goods, rights, or person. They have only an absolute veto upon
their being taken by the government. The government is not bound to do
everything that a jury may adjudge. It is only prohibited from doing
anything--(that is, from taking a party's goods, rights, or
person)--unless a jury have first adjudged it to be done.

But it will, perhaps, be said, that if an erroneous judgment of one jury
should be reaffirmed by another, on a new trial, it must _then_ be
executed. But Magna Carta does not command even this--although it might,
perhaps, have been reasonably safe for it to have done so--for if two
juries unanimously affirm the same thing, after all the light and aid
that judges and lawyers can afford them, that fact probably furnishes as
strong a presumption in favor of the correctness of their opinion, as
can ordinarily be obtained in favor of a judgment, by any measures of a
practical character for the administration of justice. Still, there is
nothing in Magna Carta that _compels_ the execution of even a second
judgment of a jury. The only injunction of Magna Carta upon the
government, as to what it _shall do_, on this point, is that it shall
"do justice and right," without sale, denial, or delay. But this leaves
the government all power of determining what is justice and right,
except that it shall not consider anything as justice and right--so far
as to carry it into execution against the goods, rights, or person of a
party--unless it be something which a jury have sanctioned.

If the government had no alternative but to execute all judgments of a
jury indiscriminately, the power of juries would unquestionably be
dangerous; for there is no doubt that they may sometimes give hasty and
erroneous judgments. But when it is considered that their judgments can
be reviewed, and new trials granted, this danger is, for all practical
purposes, obviated.

If it be said that juries may _successively_ give erroneous judgments,
and that new trials cannot be granted indefinitely, the answer is, that
so far as Magna Carta is concerned, there is nothing to prevent the
granting of new trials indefinitely, if the judgments of juries are
contrary to "justice and right." So that Magna Carta does not _require_
any judgment whatever to be executed--so far as to take a party's goods,
rights, or person, thereon--unless it be concurred in by both court and
jury.

Nevertheless, we may, for the sake of the argument, suppose the
existence of a _practical_, if not _legal_, necessity, for executing
_some_ judgment or other, in cases where juries persist in disagreeing
with the courts. In such cases, the principle of Magna Carta
unquestionably is, that the uniform judgments of _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 established and enforced; that the concurrent judgments of
successive juries, given in opposition to all the reasoning which judges
and lawyers can offer to the contrary, must necessarily be presumed to
be a truer exposition of the will of the country, than are the opinions
of the judges.

But it may be said that, unless jurors submit to the control of the
court, in matters of law, they may disagree among 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 succession of juries
are not likely to disagree--that is, _on matters of natural law, or
abstract justice_.[74] If such a thing should occur, it would almost
certainly be owing to the attempt of the court to mislead them. It is
hardly possible that any other cause should be adequate to produce such
an effect; because justice comes very near to being a self-evident
principle. The mind perceives it almost intuitively. If, in addition to
this, the court be uniformly on the side of justice, it is not a
reasonable supposition that a succession of juries should disagree about
it. If, therefore, a succession of juries do disagree on the law of any
case, the presumption is, not that justice fails of being done, but that
injustice is prevented--_that_ injustice, which would be done, if the
opinion of the court were suffered to control the jury.

For the sake of the argument, however, it may be admitted to be possible
that justice should sometimes fail of being done through the
disagreements of jurors, notwithstanding all the light which judges and
lawyers can throw upon the question in issue. If it be asked what
provision the trial by jury makes for such cases, the answer is, _it
makes none; and justice must fail of being done, from the want of its
being made sufficiently intelligible_.

Under the trial by jury, justice can never be done--that is, by a
judgment that shall take a party's goods, rights, or person--until that
justice can be made intelligible or perceptible to the minds of _all_
the jurors; or, at least, until it obtain the voluntary assent of
all--an assent, which ought not to be given until the justice itself
shall have become perceptible to all.

The principles of the trial by jury, then, are these:

1. That, in criminal cases, the accused is presumed innocent.

2. That, in civil cases, possession is presumptive proof of property;
or, in other words, every man is presumed to be the rightful proprietor
of whatever he has in his possession.

3. That these presumptions shall be overcome, in a court of justice,
only by evidence, the sufficiency of which, and by law, the justice of
which, are satisfactory to the understanding 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 independence of judges, and the intelligence of jurors.
This much, however, may be said in favor of these precautions, viz.,
that the history of the past, as well as our constant present
experience, prove how much injustice may, and certainly will, be done,
systematically and continually, _for the want of these precautions_--that
is, while the law is authoritatively made and expounded by legislators and
judges. On the other hand, we have no such evidence of how much justice
may fail to be done, _by reason of these precautions_--that is, by reason
of the law being left to the judgments and consciences of jurors. We can
determine the former point--that is, how much positive injustice is done
under the first of these two systems--because the system is in full
operation; but we cannot determine how much justice would fail to be
done under the latter system, because we have, in modern times, had no
experience of the use of the precautions themselves. In ancient times,
when these precautions were _nominally_ in force, such was the tyranny of
kings, and such the poverty, ignorance, and the inability of concert and
resistance, on the part of the people, that the system had no full or fair
operation. It, nevertheless, under all these disadvantages, impressed
itself upon the understandings, and imbedded itself in the hearts, of the
people, so as no other system of civil liberty has ever done.

But this view of the two systems compares only the injustice done, and
the justice omitted to be done, in the individual cases adjudged,
without looking beyond them. And some persons might, on first thought,
argue that, if justice failed of being done under the one system,
oftener than positive injustice were done under the other, the balance
was in favor of the latter system. But such a weighing of the two
systems against each other gives no true idea of their comparative
merits or demerits; for, possibly, in this view alone, the balance would
not be very great in favor of either. To compare, or rather to contrast,
the two, we must consider that, under the jury system, the failures to
do justice would be only rare and exceptional cases; and would be owing
either to the intrinsic difficulty of the questions, or to the fact that
the parties had transacted their business in a manner unintelligible to
the jury, and the effects would be confined to the individual or
individuals interested in the particular suits. No permanent law would
be established thereby destructive of the rights of the people in other
like cases. And the people at large would continue to enjoy all their
natural rights as before. But under the other system, whenever an unjust
law is enacted by the legislature, and the judge imposes it upon the
jury as authoritative, and they give a judgment in accordance therewith,
the authority of the law is thereby established, and the whole people
are thus brought under the yoke of that law; because they then
understand that the law will be enforced against them in future, if they
presume to exercise their rights, or refuse to comply with the
exactions of the law. In this manner all unjust laws are established,
and made operative against the rights of the people.

The difference, then, between the two systems is this: Under the one
system, a jury, at distant intervals, would (not enforce any positive
injustice, but only) fail of enforcing justice, in a dark and difficult
case, or in consequence of the parties not having transacted their
business in a manner intelligible to a jury; and the plaintiff would
thus fail of obtaining what was rightfully due him. And there the matter
would end, _for evil_, though not for good; for thenceforth parties,
warned of the danger of losing their rights, would be careful to
transact their business in a more clear and intelligible manner. Under
the other system--the system of legislative and judicial
authority--positive injustice is not only done in every suit arising
under unjust laws,--that is, men's property, liberty, or lives are not
only unjustly taken on those particular judgments,--but the rights of
the whole people are struck down by the authority of the laws thus
enforced, and a wide-sweeping tyranny at once put in operation.

But there is another ample and conclusive answer to the argument that
justice would often fail to be done, if jurors were allowed to be
governed by their own consciences, instead of the direction of the
justices, in matters of law. That answer is this:

Legitimate government can be formed only by the voluntary association of
all who contribute to its support. As a voluntary association, it can
have for its objects only those things in which the members of the
association are _all agreed_. If, therefore, there be any _justice_, in
regard to which all the parties to the government _are not agreed_, the
objects of the association do not extend to it.[75]

If any of the members wish more than this,--if they claim to have
acquired a more extended knowledge of justice than is common to all, and
wish to have their pretended discoveries carried into effect, in
reference to themselves,--they must either form a separate association
for that purpose, or be content to wait until they can make their views
intelligible to the people at large. They cannot claim or expect that
the whole people shall practise the folly of taking on trust their
pretended superior knowledge, and of committing blindly into their hands
all their own interests, liberties, and rights, to be disposed of on
principles, the justness of which the people themselves cannot
comprehend.

A government of the whole, therefore, must necessarily confine itself to
the administration of such principles of law as _all_ the people, who
contribute to the support of the government, can comprehend and see the
justice of. And it can be confined within those limits only by allowing
the jurors, who represent all the parties to the compact, to judge of
the law, and the justice of the law, in all cases whatsoever. And if any
justice be left undone, under these circumstances, it is a justice for
which the nature of the association does not provide, which the
association does not undertake to do, and which, as an association, it
is under no obligation to do.

The people at large, the unlearned and common people, have certainly an
indisputable right to associate for the establishment and maintenance of
such a government as _they themselves_ see the justice of, and feel the
need of, for the promotion of their own interests, and the safety of
their own rights, without at the same time surrendering all their
property, liberty, and rights into the hands of men, who, under the
pretence of a superior and incomprehensible knowledge of justice, may
dispose of such property, liberties, and rights, in a manner to suit
their own selfish and dishonest purposes.

If a government were to be established and supported _solely_ by that
portion of the people who lay claim to superior knowledge, there would
be some consistency in their saying that the common people should not be
received as jurors, with power to judge of the justice of the laws. But
so long as the whole people (or all the male adults) are presumed to be
voluntary parties to the government, and voluntary contributors to 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 association, and voluntary
support, (as all the North American governments are,) no law can
rightfully be enforced by the association in its corporate capacity,
against the goods, rights, or person of any individual, except it be
such as _all_ the members of the association agree that it may enforce.
To enforce any other law, to the extent of taking a man's goods, rights,
or person, would be making _some_ of the parties to the association
accomplices in what they regard as acts of injustice. It would also be
making them consent to what they regard as the destruction of their own
rights. These are things which no legitimate system or theory of
government can require of any of the parties to it.

The mode adopted, by the trial by jury, for ascertaining whether all the
parties to the government do approve of a particular law, is to take
twelve men at random from the whole people, and accept their unanimous
decision as representing the opinions of the whole. Even this mode is
not theoretically accurate; for theoretical accuracy would require that
every man, who was a party to the government, should individually give
his consent to the enforcement of every law in every separate case. But
such a thing would be impossible in practice. The consent of twelve men
is therefore taken instead; with the privilege of appeal, and (in case
of error found by the appeal court) a new trial, to guard against
possible mistakes. This system, it is assumed, will ascertain the sense
of the whole people--"the country"--with sufficient accuracy for all
practical purposes, and with as much accuracy as is practicable without
too great inconvenience and expense.

5. Another objection that will perhaps be made to allowing jurors to
judge of the law, and the justice of the law, is, that the law would be
uncertain.

If, by this objection, it be meant that the law would be uncertain to
the minds of the people at large, so that they would not know what the
juries would sanction and what condemn, and would not therefore know
practically what their own rights and liberties were under the law, the
objection is thoroughly baseless and false. No system of law that was
ever devised could be so entirely intelligible and certain to the minds
of the people at large as this. Compared with it, the complicated
systems of law that are compounded of the law of nature, of
constitutional grants, of innumerable and incessantly changing
legislative enactments, and of countless and contradictory judicial
decisions, with no uniform principle of reason or justice running
through them, are among the blindest of all the mazes in which
unsophisticated minds were ever bewildered and lost. The uncertainty of
the law under these systems has become a proverb. So great is this
uncertainty, that nearly all men, learned as well as unlearned, shun the
law as their enemy, instead of resorting to it for protection. They
usually go into courts of justice, so called, only as men go into
battle--when there is no alternative left for them. And even then they
go into them as men go into dark labyrinths and caverns--with no
knowledge of their own, but trusting wholly to their guides. Yet, less
fortunate than other adventurers, they can have little confidence even
in their guides, for the reason that the guides themselves know little
of the mazes they are threading. They know the mode and place of
entrance; but what they will meet with on their way, and what will be
the time, mode, place, or condition of their exit; whether they will
emerge into a prison, or not; whether _wholly_ naked and destitute, or
not; whether with their reputations left to them, or not; and whether in
time or eternity; experienced and honest guides rarely venture to
predict. Was there ever such fatuity as that of a nation of men madly
bent on building up such labyrinths as these, for no other purpose than
that of exposing all their rights of reputation, property, liberty, and
life, to the hazards of being lost in them, instead of being content to
live in the light of the open day of their own understandings?

What honest, unsophisticated man ever found himself involved in a
lawsuit, that he did not desire, of all things, that his cause might be
judged of on principles of natural justice, as those principles were
understood by plain men like himself? He would then feel that he could
foresee the result. These plain men are the men who pay the taxes, and
support the government. Why should they not have such an administration
of justice as they desire, and can understand?

If the jurors were to judge of the law, and the justice of the law,
there would be something like certainty in the administration of
justice, and in the popular knowledge of the law, and men would govern
themselves accordingly. There would be something like certainty, because
every man has himself something like definite and clear opinions, and
also knows something of the opinions of his neighbors, on matters of
justice. And he would know that no statute, unless it were so clearly
just as to command the unanimous assent of twelve men, who should be
taken at random from the whole community, could be enforced so as to
take from him his reputation, property, liberty, or life. What greater
certainty can men require or need, as to the laws under which they are
to live? If a statute were enacted by a legislature, a man, in order to
know what was its true interpretation, whether it were constitutional,
and whether it would be enforced, would not be under the necessity of
waiting for years until some suit had arisen and been carried through
all the stages of judicial proceeding, to a final decision. He would
need only to use his own reason as to its meaning and its justice, and
then talk with his neighbors on the same points. Unless he found them
nearly unanimous in their interpretation and approbation of it, he would
conclude that juries would not unite in enforcing it, and that it would
consequently be a dead letter. And he would be safe in coming to this
conclusion.

There would be something like certainty in the administration of
justice, and in the popular knowledge of the law, for the further reason
that there would be little legislation, and men's rights would be left
to stand almost solely upon the law of nature, or what was once called
in England "the _common law_," (before so much legislation and
usurpation had become incorporated into the common law,)--in other
words, upon the principles of natural justice.

Of the certainty of this law of nature, or the ancient English common
law, I may be excused for repeating here what I have said on another
occasion.

   "Natural law, so far from being uncertain, when compared with
   statutory and constitutional law, is the only thing that gives any
   certainty at all to a very large portion of our statutory and
   constitutional law. The reason is this. The words in which statutes
   and constitutions are written are susceptible of so many different
   meanings,--meanings widely different from, often directly opposite
   to, each other, in their bearing upon men's rights,--that, unless
   there were some rule of interpretation for determining which of these
   various and opposite meanings are the true ones, there could be no
   certainty at all as to the meaning of the statutes and constitutions
   themselves. Judges could make almost anything they should please out
   of them. Hence the necessity of a rule of interpretation. _And this
   rule is, that the language of statutes and constitutions shall be
   construed, as nearly as possible, consistently with natural law._

   The rule assumes, what is true, that natural law is a thing certain
   in itself; also that it is capable of being learned. It assumes,
   furthermore, that it actually is understood by the legislators and
   judges who make and interpret the written law. Of necessity,
   therefore, it assumes further, that they (the legislators and judges)
   are _incompetent_ to make and interpret the _written_ law, unless
   they previously understand the natural law applicable to the same
   subject. It also assumes that the _people_ must understand the
   natural law, before they can understand the written law.

   It is a principle perfectly familiar to lawyers, and one that must be
   perfectly obvious to every other man that will reflect a moment,
   that, as a general rule, _no one can know what the written law is,
   until he knows what it ought to be_; that men are liable to be
   constantly misled by the various and conflicting senses of the same
   words, unless they perceive the true legal sense in which the words
   _ought to be taken_. And this true legal sense is the sense that is
   most nearly consistent with natural law of any that the words can be
   made to bear, consistently with the laws of language, and
   appropriately to the subjects to which they are applied.

   Though the words _contain_ the law, the _words_ themselves are not
   the law. Were the words themselves the law, each single written law
   would be liable to embrace many different laws, to wit, as many
   different laws as there were different senses, and different
   combinations of senses, in which each and all the words were capable
   of being taken.

   Take, for example, the Constitution of the United States. By adopting
   one or another sense of the single word "_free_," the whole
   instrument is changed. Yet the word _free_ is capable of some ten or
   twenty different senses. So that, by changing the sense of that
   single word, some ten or twenty different constitutions could be made
   out of the same written instrument. But there are, we will suppose, a
   thousand other words in the constitution, each of which is capable of
   from two to ten different senses. So that, by changing the sense of
   only a single word at a time, several thousands of different
   constitutions would be made. But this is not all. Variations could
   also be made by changing the senses of two or more words at a time,
   and these variations could be run through all the changes and
   combinations of senses that these thousand words are capable of. We
   see, then, that it is no more than a literal truth, that out of that
   single instrument, as it now stands, without altering the location of
   a single word, might be formed, by construction and interpretation,
   more different constitutions than figures can well estimate.

   But each written law, in order to be a law, must be taken only in
   some _one_ definite and distinct sense; and that definite and
   distinct sense must be selected from the almost infinite variety of
   senses which its words are capable of. How is this selection to be
   made? It can be only by the aid of that perception of natural law, or
   natural justice, which men naturally possess.

   Such, then, is the comparative certainty of the natural and the
   written law. Nearly all the certainty there is in the latter, so far
   as it relates to principles, is based upon, and derived from, the
   still greater certainty of the former. In fact, nearly all the
   uncertainty of the laws under which we live,--which are a mixture of
   natural and written laws,--arises from the difficulty of construing,
   or, rather, from the facility of misconstruing, the _written_ law;
   while natural law has nearly or quite the same certainty as
   mathematics. On this point, Sir William Jones, one of the most
   learned judges that have ever lived, learned in Asiatic as well as
   European law, says,--and the fact should be kept forever in mind, as
   one of the most important of all truths:--"_It is pleasing to remark
   the similarity, or, rather, the identity of those conclusions which
   pure, unbiassed reason, in all ages and nations, seldom fails to
   draw, in such juridical inquiries as are not fettered and manacled by
   positive institutions._"[76] In short, the simple fact that the
   written law must be interpreted by the natural, is, of itself, a
   sufficient confession of the superior certainty of the latter.

   The written law, then, even where it can be construed consistently
   with the natural, introduces labor and obscurity, instead of shutting
   them out. And this must always be the case, because words do not
   create ideas, but only recall them; and the same word may recall many
   different ideas. For this reason, nearly all abstract principles can
   be seen by the single mind more clearly than they can be expressed by
   words to another. This is owing to the imperfection of language, and
   the different senses, meanings, and shades of meaning, which
   different individuals attach to the same words, in the same
   circumstances.[77]

   Where the written law cannot be construed consistently with the
   natural, there is no reason why it should ever be enacted at all. It
   may, indeed, be sufficiently plain and certain to be easily
   understood; but its certainty and plainness are but a poor
   compensation for its injustice. Doubtless a law forbidding men to
   drink water, on pain of death, might be made so intelligible as to
   cut off all discussion as to its meaning; but would the
   intelligibleness of such a law be any equivalent for the right to
   drink water? The principle is the same in regard to all unjust laws.
   Few persons could reasonably feel compensated for the arbitrary
   destruction of their rights, by having the order for their
   destruction made known beforehand, in terms so distinct and
   unequivocal as to admit of neither mistake nor evasion. Yet this is
   all the compensation that such laws offer.

   Whether, therefore, written laws correspond with, or differ from, the
   natural, they are to be condemned. In the first case, they are
   useless repetitions, introducing labor and obscurity. In the latter
   case, they are positive violations of men's rights.

   There would be substantially the same reason in enacting mathematics
   by statute, that there is in enacting natural law. Whenever the
   natural law is sufficiently certain to all men's minds to justify its
   being enacted, it is sufficiently certain to need no enactment. On
   the other hand, until it be thus certain, there is danger of doing
   injustice by enacting it; it should, therefore, be left open to be
   discussed by anybody who may be disposed to question it, and to be
   judged of by the proper tribunal, the judiciary.[78]

   It is not necessary that legislators should enact natural law in
   order that it may be known to the _people_, because that would be
   presuming that the legislators already understand it better than the
   people,--a fact of which I am not aware that they have ever
   heretofore given any very satisfactory evidence. The same sources of
   knowledge on the subject are open to the people that are open to the
   legislators, and the people must be presumed to know it as well as
   they.

   The objections made to natural law, on the ground of obscurity, are
   wholly unfounded. It is true, it must be learned, like any other
   science; but it is equally true that it is very easily learned.
   Although as illimitable in its applications as the infinite relations
   of men to each other, it is, nevertheless, made up of simple
   elementary principles, of the truth and justice of which every
   ordinary mind has an almost intuitive perception. _It is the science
   of justice_,--and almost all men have the same perceptions of what
   constitutes justice, or of what justice requires, when they
   understand alike the facts from which their inferences are to be
   drawn. Men living in contact with each other, and having intercourse
   together, _cannot avoid_ learning natural law, to a very great
   extent, even if they would. The dealings of men with men, their
   separate possessions, and their individual wants, are continually
   forcing upon their minds the questions,--Is this act just? or is it
   unjust? Is this thing mine? or is it his? And these are questions of
   natural law; questions, which, in regard to the great mass of cases,
   are answered alike by the human mind everywhere.

   Children learn many principles of natural law at a very early age.
   For example: they learn that when one child has picked up an apple or
   a flower, it is his, and that his associates must not take it from
   him against his will. They also learn that if he voluntarily exchange
   his apple or flower with a playmate, for some other article of
   desire, he has thereby surrendered his right to it, and must not
   reclaim it. These are fundamental principles of natural law, which
   govern most of the greatest interests of individuals and society; yet
   children learn them earlier than they learn that three and three are
   six, or five and five, ten. Talk of enacting natural law by statute,
   that it may be known! It would hardly be extravagant to say, that, in
   nine cases in ten, men learn it before they have learned the language
   by which we describe it. Nevertheless, numerous treatises are written
   on it, as on other sciences. The decisions of courts, containing
   their opinions upon the almost endless variety of cases that have
   come before them, are reported; and these reports are condensed,
   codified, and digested, so as to give, in a small compass, the facts,
   and the opinions of the courts as to the law resulting from them. And
   these treatises, codes, and digests are open to be read of all men.
   And a man has the same excuse for being ignorant of arithmetic, or
   any other science, that he has for being ignorant of natural law. He
   can learn it as well, if he will, without its being enacted, as he
   could if it were.

   If our governments would but themselves adhere to natural law, there
   would be little occasion to complain of the ignorance of the people
   in regard to it. The popular ignorance of law is attributable mainly
   to the innovations that have been made upon natural law by
   legislation; whereby our system has become an incongruous mixture of
   natural and statute law, with no uniform principle pervading it. To
   learn such a system,--if system it can be called, and if learned it
   can be,--is a matter of very similar difficulty to what it would be
   to learn a system of mathematics, which should consist of the
   mathematics of nature, interspersed with such other mathematics as
   might be created by legislation, in violation of all the natural
   principles of numbers and quantities.

   But whether the difficulties of learning natural law be greater or
   less than here represented, they exist in the nature of things, and
   cannot be removed. Legislation, instead of removing, only increases
   them. This it does by innovating upon natural truths and principles,
   and introducing jargon and contradiction, in the place of order,
   analogy, consistency, and uniformity.

   Further than this; legislation does not even profess to remove the
   obscurity of natural law. That is no part of its object. It only
   professes to substitute something arbitrary in the place of natural
   law. Legislators generally have the sense to see that legislation
   will not make natural law any clearer than it is. Neither is it the
   object of legislation to establish the authority of natural law.
   Legislators have the sense to see that they can add nothing to the
   authority of natural law, and that it will stand on its own
   authority, unless they overturn it.

   The whole object of legislation, excepting that legislation which
   merely makes regulations, and provides instrumentalities for carrying
   other laws into effect, is to overturn natural law, and substitute
   for it the arbitrary will of power. In other words, the whole object
   of it is to destroy men's rights. At least, such is its only effect;
   and its designs must be inferred from its effect. Taking all the
   statutes in the country, there probably is not one in a
   hundred,--except the auxiliary ones just mentioned,--that does not
   violate natural law; that does not invade some right or other.

   Yet the advocates of arbitrary legislation are continually practising
   the fraud of pretending that unless the legislature _make_ the laws,
   the laws will not be known. The whole object of the fraud is to
   secure to the government the authority of making 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 Common Law, that
   Lord Coke has gone so far as to assert, (and Lord Bacon nearly
   seconds him in observing,) that 'he never knew two questions arise
   merely upon common law; but that they were mostly owing to statutes
   ill-penned and overladen with provisos.'"--_3 Eunomus_, 157-8.

If it still be said that juries would disagree, as to what was natural
justice, and that one jury would decide one way, and another jury
another; the answer is, that such a thing is hardly credible, as that
twelve men, taken at random from the people at large, should
_unanimously_ decide a question of natural justice one way, and that
twelve other men, selected in the same manner, should _unanimously_
decide the same question the other way, _unless they were misled by the
justices_. If, however, such things should sometimes happen, from any
cause whatever, the remedy is by appeal, and new trial.

[Footnote 73: Judges do not even live up to that part of their own
maxim, which requires jurors to try the matter of fact. By dictating to
them the laws of evidence,--that is, by dictating what evidence they may
hear, and what they may not hear, and also by dictating to them rules
for weighing such evidence as they permit them to hear,--they of
necessity dictate the conclusion to which they shall arrive. And thus
the court really tries the question of fact, as well as the question of
law, in every cause. It is clearly impossible, in the nature of things,
for a jury to try a question of fact, without trying every question of
law on which the fact depends.]

[Footnote 74: Most disagreements of juries are on matters of fact, which
are admitted to be within their province. We have little or no evidence
of their disagreements on matters of natural justice. The disagreements
of _courts_ on matters of law, afford little or no evidence that juries
would also disagree on matters of law--that is, _of justice_; because
the disagreements of courts are generally on matters of _legislation_,
and not on those principles of abstract justice, by which juries would
be governed, and in regard to which the minds of men are nearly
unanimous.]

[Footnote 75: This is the principle of all voluntary associations
whatsoever. No voluntary association was ever formed, and in the nature
of things there never can be one formed, for the accomplishment of any
objects except those in which all the parties to the association are
agreed. Government, therefore, must be kept within these limits, or it
is no longer a voluntary association of all who contribute to its
support, but a mere 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 means to be used to accomplish the
ends in view; but _the ends themselves to be accomplished_ are always
precisely defined, and are such as every member necessarily agrees to,
else he would not voluntarily join the association.

Justice is the object of government, and those who support the
government, must be agreed as to the justice to be executed by it, or
they cannot rightfully unite in maintaining the government itself.]

[Footnote 76: Jones on Bailments, 133.]

[Footnote 77: Kent, describing the difficulty of construing the written
law, says:

"Such is the imperfection of language, and the want of technical skill
in the makers of the law, that statutes often give occasion to the most
perplexing and distressing doubts and discussions, arising from the
ambiguity that attends them. It requires great experience, as well as
the command of a perspicuous diction, to frame a law in such clear and
precise terms, as to secure it from ambiguous expressions, and from all
doubts and criticisms upon its meaning."--_Kent_, 460.

The following extract from a speech of Lord Brougham, in the House of
Lords, confesses the same difficulty:

"There was another subject, well worthy of the consideration of
government during the recess,--the expediency, _or rather the absolute
necessity_, of some arrangement for the preparation of bills, not merely
private, but public bills, _in order that legislation might be
consistent and systematic, and that the courts might not have so large a
portion of their time occupied in endeavoring to construe acts of
Parliament, in many cases unconstruable, and in most cases difficult to
be construed_."--_Law Reporter_, 1848, p. 525.]

[Footnote 78: This condemnation of written laws must, of course, be
understood as applying only to cases where principles and rights are
involved, and not as condemning any governmental arrangements, or
instrumentalities, that are consistent with natural right, and which
must be agreed upon for the purpose of carrying natural law into effect.
These things may be varied, as expediency may dictate, so only that they
be allowed to infringe no principle of justice. And they must, of
course, be written, because they do not exist as fixed principles, or
laws in nature.]




CHAPTER VI.

JURIES OF THE PRESENT DAY ILLEGAL.


It may probably be safely asserted that there are, at this day, no legal
juries, either in England or America. And if there are no legal juries,
there is, of course, no legal trial, nor "judgment," by jury.

In saying that there are probably no legal juries, I mean that there are
probably no juries appointed in conformity with the principles of the
_common law_.

The term _jury_ is a technical one, derived from the common law; and
when the American constitutions provide for the trial by jury, they
provide for the _common law_ trial by jury; and not merely for any trial
by jury that the government itself may chance to invent, and call by
that name. It is the _thing_, and not merely the _name_, that is
guarantied. Any legislation, therefore, that infringes any _essential
principle_ of the _common law_, in the selection of jurors, is
unconstitutional; and the juries selected in accordance with such
legislation are, of course, illegal, and their judgments void.

It will also be shown, in a subsequent chapter,[79] that since Magna
Carta, the legislative power in England (whether king or parliament) has
never had any constitutional authority to infringe, by legislation, any
essential principle of the common law in the selection of jurors. All
such legislation is as much unconstitutional and void, as though it
abolished the trial by jury altogether. In reality it does abolish it.

What, then, are the _essential principles_ of the common law,
controlling the selection of jurors?

They are two.

1. That _all_ the freemen, or adult male members of the state, shall be
eligible as jurors.[80]

Any legislation which requires the selection of jurors to be made from a
less number of freemen than the whole, makes the jury selected an
illegal one.

If a part only of the freemen, or members of the state, are eligible as
jurors, the jury no longer represent "the country," but only a part of
"the country."

If the selection of jurors can be restricted to any less number of
freemen than the whole, it can be restricted to a very small proportion
of the whole; and thus the government be taken out of the hands of "the
country," or the whole people, and be thrown into the hands of a few.

That, at common law, the whole body of freemen were eligible as jurors
is sufficiently proved, not only by the reason of the thing, but by the
following evidence:

1. Everybody must be presumed eligible, until the contrary be shown. We
have no evidence, that I am aware of, of a prior date to Magna Carta, to
_disprove_ that all freemen were eligible as jurors, unless it be the
law of Ethelred, which requires that they be elderly[81] men. Since no
specific age is given, it is probable, I think, that this statute meant
nothing more than that they be more than twenty-one years old. If it
meant anything more, it was probably contrary to the common law, and
therefore void.

2. Since Magna Carta, we have evidence showing quite conclusively that
all freemen, above the age of twenty-one years, were eligible as jurors.

The _Mirror of Justices_, (written within a century after Magna Carta,)
in the section "_Of Judges_"--that is, _jurors_--says:

   "All those who are not forbidden by law may be judges (jurors). To
   women it is forbidden by law that they be judges; and thence it is,
   that feme coverts are exempted to do suit in inferior courts. On the
   other part, a villein cannot be a judge, by reason of the two
   estates, which are repugnants; persons attainted of false judgments
   cannot be judges, nor infants, nor any under the age of twenty-one
   years, nor infected persons, nor idiots, nor madmen, nor deaf, nor
   dumb, nor parties in the pleas, nor men excommunicated by the bishop,
   nor criminal persons. * * And those who are not of the Christian
   faith cannot be judges, nor those who are out of the king's
   allegiance."--_Mirror of Justices_, 59-60.

In the section "_Of Inferior Courts_," it is said:

   "From the first assemblies came consistories, which we now call
   courts, and that in divers places, and in divers manners; whereof the
   sheriffs held one monthly, or every five weeks, according to the
   greatness or largeness of the shires. And these courts are called
   county courts, _where the judgment is by the suitors_, if there be no
   writ, and is by warrant of jurisdiction ordinary. The other inferior
   courts are the courts of every lord of the fee, to the likeness of
   the hundred courts. * * There are other inferior courts which the
   bailiffs hold in every hundred, from three weeks to three weeks, _by
   the suitors of the freeholders of the hundred. All the tenants within
   the fees are bounden to do their suit there_, and that not for the
   service of their persons, but for the service of their fees. But
   women, infants within the age of twenty-one years, deaf, dumb,
   idiots, those who are indicted or appealed of mortal felony, before
   they be acquitted, diseased persons, and excommunicated persons are
   exempted from doing suit."--_Mirror of Justices_, 50-51.

In the section "_Of the Sheriff's Turns_," it is said:

   "The 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 money from some of them, for letting them go
   in peace, and so the assizes and juries pass many times by poor men,
   and the rich abide at home by reason of their bribes; it is ordained
   that from henceforth in one assize no more shall be summoned than
   four and twenty; and old men above three score and ten years, being
   continually sick, or being diseased at the time of the summons, or
   not dwelling in that country, shall not be put in juries of petit
   assizes."--_St. 13 Edward I._, ch. 38. (1285.)

Although this command to the 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
nevertheless carry a seeming confession with them that, at common law,
all male adults were eligible as jurors.

But the main principle of the feudal system itself shows that _all_ the
full and free adult male members of the state--that is, all who were
free born, and had not lost their civil rights by crime, or
otherwise--_must_, at common law, have been eligible as jurors. What was
that principle? It was, that the state rested for support upon the land,
and not upon taxation levied upon the people personally. The lands of
the country were considered the property of the state, and were made to
support the state _in this way_. A portion of them was set apart to the
king, the rents of which went to pay his personal and official
expenditures, not including the maintenance of armies, or the
administration of justice. War and the administration of justice were
provided for in the following manner. The freemen, or the freeborn adult
male members of the state--who had not forfeited their political
rights--were entitled to land _of right_, (until all the land was taken
up,) on condition of their rendering certain military and civil services
to the state. The military services consisted in serving personally as
soldiers, or contributing an equivalent in horses, provisions, or other
military supplies. The civil services consisted, among other things, in
serving as jurors (and, it would appear, as witnesses) in the courts of
justice. For these services they received no compensation other than
the use of their lands. In this way the state was sustained; and the
king had no power to levy additional burdens or taxes upon the people.
The persons holding lands on these terms were called _freeholders_--in
later times _freemen_--meaning free and full members of the state.

Now, as the principle of the system was that the freeholders held their
lands of the state, on the condition of rendering these military and
civil services as _rents_ for their lands, the principle implies that
_all_ the freeholders were liable to these rents, and were therefore
eligible as jurors. Indeed, I do not know that it has ever been doubted
that, at common law, _all_ the freeholders were eligible as jurors. If
all had not been eligible, we unquestionably should have had abundant
evidence of the exceptions. And if anybody, at this day, allege any
exceptions, the burden will be on him to prove them. The presumption
clearly is that _all_ were eligible.

The first invasion, which I find made, by the English statutes, upon
this common law principle, was made in 1285, seventy years after Magna
Carta. It was then enacted as follows:

   "Nor shall any be put in assizes or juries, though they ought to be
   taken in their own shire, that hold a tenement of less than the value
   of _twenty shillings yearly_. And if such assizes and juries be taken
   out of the shire, no one shall be placed in them who holds a tenement
   of less value than forty shillings yearly at the least, except such
   as be witnesses in deeds or other writings, whose presence is
   necessary, so that they be able to travel."--_St. 13 Edward I._, ch.
   38. (1285.)

The next invasion of the common law, in this particular, was made in
1414, about two hundred years after Magna Carta, when it was enacted:

   "That no person shall be admitted to pass in any inquest upon trial
   of the death of a man, nor in any inquest betwixt party and party in
   plea real, nor in plea personal, whereof the debt or the damage
   declared amount to forty marks, if the same person have not lands or
   tenements of the yearly value of _forty shillings above all charges
   of the same_."--_2 Henry V._, st. 2, ch. 3. (1414.)

Other statutes on this subject of the property qualifications of jurors,
are given in the note.[82]

From these statutes it will be seen that, since 1285, seventy years
after Magna Carta, the common law right of all free British subjects to
eligibility as jurors has been abolished, and the qualifications of
jurors have been made a subject of arbitrary legislation. In other
words, the government has usurped the authority of _selecting_ the
jurors that were to sit in judgment upon its own acts. This is
destroying the vital principle of the trial by jury itself, which is
that the legislation of the government shall be subjected to the
judgment of a tribunal, taken indiscriminately from the whole people,
without any choice by the government, and over which the government can
exercise no control. If the government can select the jurors, it will,
of course, select those whom it supposes will be favorable to its
enactments. And an exclusion of _any_ of the freemen from eligibility is
a _selection_ of those not excluded.

It will be seen, from the statutes cited, that the most absolute
authority over the jury box--that is, over the right of the people to
sit in juries--has been usurped by the government; that the
qualifications of jurors have been repeatedly changed, and made to vary
from a freehold of _ten shillings yearly_, to one of "_twenty pounds by
the year at least above reprises_." They have also been made different,
in the counties of Southampton, Surrey, and Sussex, from what they were
in the other counties; different in Wales from what they were in
England; and different in the city of London, and in the county of
Middlesex, from what they were in any other part of the kingdom.

But this is not all. The government has not only assumed arbitrarily to
classify the people, on the basis of property, but it has even assumed
to give to some of its judges entire and absolute personal discretion in
the selection of the jurors to be impanelled in criminal cases, as the
following statutes show.

   "Be it also ordained and enacted by the same authority, that all
   panels hereafter to be returned, which be not at the suit of any
   party, that shall be made and put in afore any justice of gaol
   delivery or justices of peace in their open sessions _to inquire for
   the king, shall hereafter be reformed by additions and taking out of
   names of persons by discretion of the same justices before whom such
   panel shall be returned; and the same justices shall hereafter
   command the sheriff, or his ministers in his absence, to put other
   persons in the same panel by their discretions; and that panel so
   hereafter to be made, to be good and lawful_. This act to endure only
   to the next Parliament."--_11 Henry VII._, ch. 24, sec. 6. (1495.)

This act was continued in force by 1 Henry VIII., ch. 11, (1509,) to the
end of the then next Parliament.

It was reënacted, and made perpetual, by 3 Henry VIII., ch. 12. (1511.)

_These acts gave unlimited authority to the king's justices to pack
juries at their discretion; and abolished the last vestige of the common
law right of the people to sit as jurors, and judge of their own
liberties, in the courts to which the acts applied._

Yet, as matters of law, these statutes were no more clear violations of
the common law, the fundamental and paramount "law of the land," than
were those statutes which affixed the property qualifications before
named; because, if the king, or the government, can select the jurors on
the ground of property, it can select them on any other ground
whatever.

Any infringement or restriction of the common law right of the whole
body of the freemen of the kingdom to eligibility as jurors, was legally
an abolition of the trial by jury itself. The juries no longer
represented "the country," but only a part of the country; that part,
too, on whose favor the government chose to rely for the maintenance of
its power, and which it therefore saw fit to select as being the most
reliable instruments for its purposes of oppression towards the rest.
And the selection was made on the same principle, on which tyrannical
governments generally select their supporters, viz., that of
conciliating those who would be most dangerous as enemies, and most
powerful as friends--that is, the wealthy.[83]

These restrictions, or indeed any one of them, of the right of
eligibility as jurors, was, in principle, a complete abolition of the
English constitution; or, at least, of its most vital and valuable part.
It was, in principle, an assertion of a right, on the part of the
government, to _select_ the individuals who were to determine the
authority of its own laws, and the extent of its own powers. It was,
therefore, _in effect_, the assertion of a right, on the part of the
government itself, to determine its own powers, and the authority of its
own legislation, over the people; and a denial of all right, on the part
of the people, to judge of or determine their own liberties against the
government. It was, therefore, in reality, a declaration of entire
absolutism on the part of the government. It was an act as purely
despotic, _in principle_, as would have been the express abolition of
all juries whatsoever. By "the law of the land," which the kings were
sworn to maintain, every free adult male British subject was eligible to
the jury box, with full power to exercise his own judgment as to the
authority and obligation of every statute of the king, which might come
before him. But the principle of these statutes (fixing the
qualifications of jurors) is, that nobody is to sit in judgment upon the
acts or legislation of the king, or the government, except those whom
the government itself shall select for that purpose. A more complete
subversion of the essential principles of the English constitution could
not be devised.

The juries of England are illegal for another reason, viz., that the
statutes cited require the jurors (except in London and a few other
places) to be _freeholders_. All the other free British subjects are
excluded; whereas, at common law, all such subjects are eligible to sit
in juries, whether they be freeholders or not.

It is true, the ancient common law required the jurors to be
freeholders; but the term _freeholder_ no longer expresses the same idea
that it did in the ancient common law; because no land is now holden in
England on the same principle, or by the same tenure, as that on which
all the land was held in the early times of the common law.

As has heretofore been mentioned, in the early times of the common law
the land was considered the property of the state; and was all holden by
the _tenants_, so called, (that is, _holders_,) on the condition of
their rendering certain military and civil services to the state, (or to
the king as the representative of the state,) under the name of _rents_.
Those who held lands on these terms were called free _tenants_, that is,
_free holders_--meaning free persons, or members of the state, holding
lands--to distinguish them from villeins, or serfs, who were not members
of the state, but held their lands by a more servile tenure, and also to
distinguish them from persons of foreign birth, outlaws, and all other
persons, who were not members of the state.

Every freeborn adult male Englishman (who had not lost his civil 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 land was an incident to his _civil freedom_; not his
civil freedom an incident to his right to land. He was a freeholder
because he was a _freeborn_ member of the state; and not a freeborn
member of the state because he was a freeholder; for this last would be
an absurdity.

As the tenures of lands changed, the term _freeholder_ lost its original
significance, and no longer described a man who held land of the state
by virtue of his civil freedom, but only one who held it in
fee-simple--that is, free of any liability to military or civil
services. But the government, in fixing the qualifications of jurors,
has adhered to the term _freeholder_ after that term has ceased to
express the _thing_ originally designated by it.

The principle, then, of the common law, was, that every freeman, or
freeborn male Englishman, of adult age, &c., was eligible to sit in
juries, by virtue of his civil freedom, or his being a member of the
state, or body politic. But the principle of the present English
statutes is, that a man shall have a right to sit in juries because he
owns lands in fee-simple. At the common law a man was _born_ to the
right to sit in juries. By the present statutes he _buys_ that right
when he buys his land. And thus this, the greatest of all the political
rights of an Englishman, has become a mere article of merchandise; a
thing that is bought and sold in the market for what it will bring.

Of course, there can be no legality in such juries as these; but only in
juries to which every free or natural born adult male Englishman is
eligible.

The second essential principle of the common law, controlling the
selection of jurors, is, that when the selection of the actual jurors
comes to be made, (from the whole body of male adults,) that selection
shall be made in some mode that excludes the possibility of choice _on
the part of the government_.

Of course, this principle forbids the selection to be made _by any
officer of the government_.

There seem to have been at least three modes of selecting the jurors, at
the common law. 1. By lot.[84] 2. Two knights, or other freeholders,
were appointed, (probably by the sheriff,) to select the jurors. 3. By
the sheriff, bailiff, or other person, who held the court, or rather
acted as its ministerial officer. Probably the latter mode may have been
the most common, although there may be some doubt on this point.

At the common law the sheriffs, bailiffs, and other officers _were
chosen by the people, instead of being appointed by the king_. (_4
Blackstone_, 413. _Introduction to Gilbert's History of the Common
Pleas_, p. 2, _note_, and p. 4.) This has been shown in a former
chapter.[85] At common law, therefore, jurors selected by these officers
were legally selected, so far as the principle now under discussion is
concerned; that is, they were not selected by any officer who was
dependent on the government.

But in the year 1315, one hundred years after Magna Carta, the choice of
sheriffs was taken from the people, and it was enacted:

   "That the sheriffs shall henceforth be assigned by the chancellor,
   treasurer, barons of the exchequer, and by the justices. And in the
   absence of the chancellor, by the treasurer, barons and
   justices."--_9 Edward II._, st. 2. (1315.)

These officers, who appointed the sheriffs, were themselves appointed by
the king, and held their offices during his pleasure. Their appointment
of sheriffs was, therefore, equivalent to an appointment by the king
himself. And the sheriffs, thus appointed, held their offices only
during the pleasure of the king, and were of course mere tools of the
king; and their selection of jurors was really a selection by the king
himself. In this manner the king usurped the selection of the jurors who
were to sit in judgment upon his own laws.

Here, then, was another usurpation, by which the common law trial by
jury was destroyed, so far as related to the county courts, in which the
sheriffs presided, and which were the most important courts of the
kingdom. From this cause alone, if there were no other, there has not
been a legal jury in a _county_ court in England, for more than five
hundred years.

In nearly or quite all the States of the United States the juries are
illegal, for one or the other of the same reasons that make the juries
in England illegal.

In order that the juries in the United States may be legal--that is, in
accordance with the principles of the common law--it is necessary that
every adult male member of the state should have his name in the jury
box, or be eligible as a juror. Yet this is the case in hardly a single
state.

In New Jersey, Maryland, North Carolina, Tennessee, and Mississippi, the
jurors are required to be _freeholders_. But this requirement is
illegal, for the reason that the term _freeholder_, in this country, has
no meaning analogous to the meaning it had in the ancient common law.

In Arkansas, Missouri, Indiana, and Alabama, jurors are required to be
"freeholders or householders." Each of these requirements is illegal.

In Florida, they are required to be "householders."

In Connecticut, Maine, Ohio, and Georgia, jurors are required to have
the qualifications of "electors."

In Virginia, they are required to have a property qualification of one
hundred dollars.

In Maine, Massachusetts, Vermont, Connecticut, New York, Ohio, Indiana,
Michigan, and Wisconsin, certain civil authorities of the towns, cities,
and counties are authorized to select, once in one, two, or three years,
a certain number of the people--a small number compared with the
whole--from whom jurors are to be taken when wanted; thus disfranchising
all except the few thus selected.

In Maine and Vermont, the inhabitants, by vote in town meeting, have a
veto upon the jurors selected by the authorities of the town.

In Massachusetts, the inhabitants, by vote in town meeting, can strike
out any names inserted by the authorities, and insert others; thus
making jurors elective by the people, and, of course, representatives
only of a majority of the people.

In Illinois, the jurors are selected, for each term of court, by the
county commissioners.

In North Carolina, "_the courts of pleas and quarter sessions_ * * shall
select the names of such persons only as are freeholders, and as are
well qualified to act as jurors, &c.; thus giving the courts power to
pack the juries."--(_Revised Statutes_, 147.)

In Arkansas, too, "It shall be the duty of the _county court_ of each
county * * to make out and cause to be delivered to the sheriff a list
of not less than sixteen, nor more than twenty-three persons, qualified
to serve as _grand_ jurors;" and the sheriff is to summon such persons
to serve as _grand_ jurors.

In Tennessee, also, the jurors are to be selected by the _county
courts_.

In Georgia, the jurors are to be selected by "the justices of the
inferior courts of each county, together with the sheriff and clerk, or
a majority of them."

In Alabama, "the sheriff, judge of the county court, and clerks of the
circuit and county courts," or "a majority of" them, select the jurors.

In Virginia, the jurors are selected by the sheriffs; but the sheriffs
are appointed by the governor of the state, and that is enough to make
the juries illegal. Probably the same objection lies against the
legality of the juries in some other states.

How jurors are appointed, and what are their qualifications, in New
Hampshire, Rhode Island, Pennsylvania, Delaware, South Carolina,
Kentucky, Iowa, Texas, and California, I know not. There is little doubt
that there is some valid objection to them, of the kinds already
suggested, in all these states.

In regard to jurors in the courts of the United States, it is enacted,
by act of Congress:

   "That jurors to serve in the courts of the United States, in each
   state respectively, shall have the like qualifications, and be
   entitled to the like exemptions, as jurors of the highest court of
   law of such state now have and are entitled to, and shall hereafter,
   from time to time, have and be entitled to, and shall be designated
   by ballot, lot, or otherwise, according to the mode of forming such
   juries now practised and hereafter to be practised therein, in so far
   as such mode may be practicable by the courts of the United States,
   or the officers thereof; and for this purpose, the said courts shall
   have power to make all necessary rules and regulations for conforming
   the designation and empanelling of jurors, in substance, to the laws
   and usages now in force in such state; and, further, shall have
   power, by 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.

In this corrupt and lawless manner, Congress, instead of taking care to
preserve the trial by jury, so far as they might, by providing for the
appointment of legal juries--incomparably the most important of all our
judicial tribunals, and the only ones on which the least reliance can be
placed for the preservation of liberty--have given the selection of them
over entirely to the control of an indefinite number of state
legislatures, and thus authorized each state legislature to adapt the
juries of the United States to the maintenance of any and every system
of tyranny that may prevail in such state.

Congress have as much constitutional right to give over all the
functions of the United States government into the 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 legislatures the selection of juries for the
courts of the United States.

There has, probably, never been a legal jury, nor a legal trial by jury,
in a single court of the United States, since the adoption of the
constitution.

These facts show how much reliance can be placed in written
constitutions, to control the action of the government, and preserve the
liberties of the people.

If the real trial by jury had been preserved in the courts of the United
States--that is, if we had had legal juries, and the jurors had known
their rights--it is hardly probable that one tenth of the past
legislation of Congress would ever have been enacted, or, at least,
that, if enacted, it could have been enforced.

Probably the best mode of appointing jurors would be this: Let the names
of _all_ the adult male 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."

[Footnote 79: On the English Constitution.]

[Footnote 80: Although all the freemen are legally eligible as jurors,
any one may nevertheless be challenged and set aside, at the trial, for
any special _personal_ disqualification; such as mental or physical
inability to perform the duties; having been convicted, or being under
charge, of crime; interest, bias, &c. But it is clear that the common
law allows none of these points to be determined by the court, but only
by "_triers_."]

[Footnote 81: 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.]

[Footnote 82: In 1483 it was enacted, by a 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 henceforth return or impanel
   any such person in any shire of England, to be taken or put in or
   upon any inquiry in any of the said Turns, but such as be of good
   name and fame, and having lands and tenements of freehold within the
   same shires, to the yearly value of _twenty shillings_ at the least,
   or else lands and tenements holden by custom of manor, commonly
   called _copy-hold_, within the said shires, to the yearly value of
   twenty-six shillings eight pence over all charges at the least."--_1
   Richard III._, ch. 4. (1483.)

   In 1486 it was enacted, "That the justices of the peace of every
   shire of this realm for the time being may take, by their discretion,
   an inquest, whereof every man shall have lands and tenements to the
   yearly value of _forty shillings_ at the least, to inquire of the
   concealments of others," &c., &c.--_3 Henry VII._, ch. 1 (1486.)

A statute passed in 1494, in regard to jurors in the city of London,
enacts:

   "That no person nor persons hereafter be impanelled, summoned, or
   sworn in any jury or inquest in courts within the same city, (of
   London,) except he be of lands, tenements, or goods and chattels, to
   the value of _forty marks_;[86] and that no person or persons
   hereafter be impanelled, summoned, nor sworn in any jury or inquest
   in any court within the said city, for lands or tenements, or action
   personal, wherein the debt or damage amounteth to the sum of forty
   marks, or above, except he be in lands, tenements, goods, or
   chattels, to the value of _one hundred marks_."--_11 Henry VII._, ch.
   21. (1494.)

The statute _4 Henry VIII._, ch. 3, sec. 4, (1512) requires jurors in
London to have "_goods_ to the value of one hundred marks."

   In 1494 it was enacted that "It shall be lawful to every sheriff of
   the counties of _Southampton_, _Surrey_, _and Sussex_, to impanel and
   summons twenty-four lawful men of such, inhabiting within the
   precinct of his or their turns, as owe suit to the same turn, whereof
   every one hath lands or freehold to the yearly value of _ten_
   shillings, or copy-hold lands to the yearly value of _thirteen
   shillings four pence_, above all charges within any of the said
   counties, or men of less livelihood, if there be not so many there,
   notwithstanding 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 corporate, where he dwelleth
   and maketh his abode, being worth in _movable goods and substance_ to
   the clear value of _forty pounds_, be henceforth admitted in trials
   of murders and felonies in every sessions and gaol delivery, to be
   kept and holden in and for the liberty of such cities, boroughs, and
   towns corporate, albeit they have no freehold; any act, statute, use,
   custom, or ordinance to the contrary hereof notwithstanding."--_23
   Henry VIII._, ch. 13. (1531.)

   In 1585 it was enacted, "That in all cases where any jurors to be
   returned for trial of any issue or issues joined in any of the
   Queen's majesty's courts of King's Bench, Common Pleas, and the
   Exchequer, or before justices of assize, by the laws of this realm
   now in force, ought to have estate of freehold in lands, tenements,
   or hereditaments, of the clear yearly value of _forty shillings_,
   that in every such case the jurors that shall be returned from and
   after the end of this present session of parliament, shall every of
   them have estate of freehold in lands, tenements, or hereditaments,
   to the clear yearly value of _four pounds_ at the least."--_27
   Elizabeth_, ch. 6. (1585.)

   In 1664-5 it was enacted, "That all jurors (other than strangers upon
   trials _per medietatem linguæ_) who are to be returned for the trials
   of issues joined in any of (his) majesty's courts of king's bench,
   common pleas, or the exchequer, or before justices of assize, or nisi
   prius, oyer and terminer, gaol delivery, or general or quarter
   sessions of the peace, from and after the twentieth day of April,
   which shall be in the year of our Lord one thousand six hundred and
   sixty-five, in any county of this realm of England, shall every of
   them thon have, in their own name, or in trust for them, within the
   same county, _twenty pounds by the year_, at least, above reprises,
   in their own or their wives' right, of freehold lands, or of ancient
   demesne, or of rents in fee, fee-tail, or for life. And that in every
   county within the dominion of Wales every such juror shall then have,
   within the same, _eight pounds by the year_, at the least, above
   reprises, in manner aforesaid. All which persons having such estate
   as aforesaid are hereby enabled and made liable to be returned and
   serve as jurors for the trial of issues before the justices
   aforesaid, any law or statute to the contrary in any wise
   notwithstanding."--_16 and 17 Charles II._, ch. 3. (1664-5.)

By a statute passed in 1692, jurors in England are to have landed
estates of the value of _ten pounds a year_; and jurors in Wales to have
similar estates of the realm of _six pounds a year_.--_4 and 5 William
and Mary_, ch. 24, sec. 14. (1692.)

By the same statute, (sec. 18,) persons may be returned to serve upon
the _tales_ in any county of England, who shall have, within the same
county, _five pounds by the year_, above reprises, in the manner
aforesaid.

By _St_. 3 _George II_., ch. 25, sec. 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 reservations payable by virtue of the said
   leases, shall be liable and obliged to serve upon juries when they
   shall be legally summoned for that purpose."--_4 George II._, ch. 7,
   sec. 3. (1731.)]

[Footnote 83: Suppose these statutes, instead of disfranchising all
whose freeholds were of less than the standard value fixed by the
statutes, had disfranchised all whose freeholds were of greater value
than the same standard--would anybody ever have doubted that such
legislation was inconsistent with the English constitution; or that it
amounted to an entire abolition of the trial by jury? Certainly not. Yet
it was as clearly inconsistent with the common law, or the English
constitution, to disfranchise those whose freeholds fell below any
arbitrary standard fixed by the government, as it would have been to
disfranchise all whose freeholds rose above that standard.]

[Footnote 84: _Lingard_ says: "These compurgators or jurors * * were
sometimes * * _drawn by lot_."--_1 Lingard's History of England_, p.
300.]

[Footnote 85: Chapter 4, p. 120, note.]

[Footnote 86: A mark was thirteen shillings and four pence.]




CHAPTER VII.

ILLEGAL JUDGES.


It is a principle of Magna Carta, and therefore of the trial by jury,
(for all parts of Magna Carta must be construed together,) that no judge
or other officer _appointed by the king_, shall preside in jury trials,
_in criminal cases_, or "pleas of the crown."

This provision is contained in the great charters of both John and
Henry, and is second in importance only to the provision guaranteeing
the trial by jury, of which it is really a part. Consequently, without
the observance of this prohibition, there can be no genuine or
_legal_--that is, _common law_--trial by jury.

At the common law, all officers who held jury trials, whether in civil
or criminal cases, were chosen by the people.[87]

But previous to Magna Carta, the kings had adopted the practice of
sending officers of their own appointment, called justices, into the
counties, to hold jury trials in some cases; and Magna Carta authorizes
this practice to be continued so far as it relates to _three_ kinds of
_civil_ actions, to wit: "novel disseisin, mort de ancestor, and darrein
presentment;"[88] 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, constable,
   coroner, _or other our bailiffs_, shall hold pleas of our
   crown.)--_John's Charter_, ch. 53. _Henry's ditto_, ch. 17.

Some persons seem to have supposed that this was a prohibition merely
upon officers _bearing the specific names of_ "_sheriffs, constables,
coroners and bailiffs_," to hold criminal trials. But such is not the
meaning. If it were, the _name_ could be changed, and the _thing_
retained; and thus the prohibition be evaded. The prohibition applies
(as will presently be seen) to all officers of the king whatsoever; and
it sets up a distinction between officers _of the king_, ("_our_
bailiffs,") and officers chosen by the people.

The prohibition upon the king's _justices_ sitting in criminal trials,
is included in the words "_vel alii balivi nostri_," (or other our
bailiffs.) The word _bailiff_ was anciently a sort of general name for
_judicial officers_ and persons employed in and about the administration
of justice. In modern times its use, as applied to the higher grades of
judicial officers, has been superseded by other words; and it therefore
now, more generally, if not universally, signifies an executive or
police officer, _a servant of courts_, rather than one whose functions
are purely judicial.

The word is a French word, brought into England by the Normans.

   Coke says, "_Baylife_ is a French word, and signifies an officer
   concerned in the administration of justice of a certain province; and
   because a sheriff hath an office concerning the administration of
   justice within his county, or bailiwick, therefore he called his
   county _baliva sua_, (his bailiwick.)

   "I have heard great question made what the true exposition of this
   word _balivus_ is. In the statute of Magna Carta, cap. 28, the letter
   of that statute is, _nullus balivus de cætero ponat aliquem ad legem
   manifestam nec ad juramentum simplici loquela sua sine testibus
   fidelibus ad hoc inductis_." (No bailiff from henceforth shall put
   any one to his open law, nor to an oath (of self-exculpation) upon
   his own simple accusation, or complaint, without faithful witnesses
   brought in for the same.) "And some have said that _balivus_ in this
   statute signifieth _any judge_; for the law must be waged and made
   before the judge. And this statute (say they) extends to _the courts
   of common pleas_, _king's bench_, &c., for they must bring with them
   _fideles testes_, (faithful witnesses,) &c., _and so hath been the
   usage to this day_."--_1 Coke's Inst._, 168 b.

Coke makes various references, in his margin to Bracton, Fleta, and
other authorities, which I have not examined, but which, I presume,
support the opinion expressed in this quotation.

Coke also, in another place, under the head of the chapter just cited
from Magna Carta, that "_no bailiff shall put any man to his open law_,"
&c., gives the following commentary upon it, from the _Mirror of
Justices_, from which it appears that in the time of Edward I., (1272 to
1307,) this word _balivus_ was understood to include _all judicial_, as
well as all other, officers of the king.

   The Mirror says: "The point which forbiddeth that no _bailiff_ put a
   freeman to his oath without suit, is to be understood in this
   manner,--_that no justice, no minister of the king_, nor other
   steward, nor bailiff, have power to make a freeman make oath, (of
   self-exculpation,) _without the king's command_,[89] nor receive any
   plaint, without witnesses present who testify the plaint to be
   true."--_Mirror of Justices_, ch. 5, sec. 2, p. 257.

Coke quotes this commentary, (in the original French,) and then endorses
it in these words:

   "By this it appeareth, that under this word _balivus_, in this act,
   is comprehended _every justice, minister of the king_, steward, and
   bailiff."--2 _Inst._, 44.

Coke also, in his commentary upon this very chapter of Magna Carta, that
provides that "_no sheriff, constable, coroner, or other our bailiffs,
shall hold pleas of our crown_," expresses the opinion that it "_is a
general law_," (that is, applicable to all officers of the king,) "by
reason of the words _vel alii balivi nostri_, (or other our bailiffs,)
_under which words are comprehended all judges or justices of any courts
of justice_." And he cites a decision in the king's bench, in the 17th
year of Edward I., (1289,) as authority; which decision he calls "a
notable and leading judgment."--_2 Inst._, 30--1.

And yet Coke, in flat contradiction of this decision, which he quotes
with such emphasis and approbation, and in flat contradiction also of
the definition he repeatedly gives of the word _balivus_, showing that
it embraced _all ministers of the king whatsoever_, whether high or low,
judicial or executive, fabricates an entirely gratuitous interpretation
of this chapter of Magna Carta, and pretends that after all it only
required that _felonies_ should 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 definition of the term
"pleas of the crown," applies to all criminal cases without distinction,
and which, therefore, forbids any officer or minister of the king to
preside in a jury trial in any criminal case whatsoever, he coolly and
gratuitously interprets into a mere senseless provision for simply
restricting the discretion of the king in giving _names_ to his own
officers who should preside at the trials of particular offences; as if
the king, who made and unmade all his officers by a word, could not
defeat the whole object of the prohibition, by appointing such
individuals as he pleased, to try such causes as he pleased, and calling
them by such names as he pleased, _if he were but permitted to appoint
and name such officers at all_; and as if it were of the least
importance what _name_ an officer bore, whom the king might appoint to a
particular duty.[90]

Coke evidently gives this interpretation solely because, as he was
giving a general commentary on Magna Carta, he was bound to give some
interpretation or other to every chapter of it; and for this chapter he
could invent, or fabricate, (for it is a sheer fabrication,) no
interpretation better suited to his purpose than this. It seems never to
have entered his mind, (or if it did, he intended that it should never
enter the mind of anybody else,) that the object of the chapter could be
to deprive the king of the power of putting his creatures into criminal
courts, to pack, cheat, and browbeat juries, and thus maintain his
authority by procuring the conviction of those who should transgress his
laws, or incur his displeasure.

This example of Coke tends to show how utterly blind, or how utterly
corrupt, English judges, (dependent upon the crown and the legislature),
have been in regard to everything in Magna Carta, that went to secure
the liberties of the people, or limit the power of the government.

Coke's interpretation of this chapter of Magna Carta is of a piece with
his absurd and gratuitous interpretation of the words "_nec super eum
ibimus, nec super eum mittemus_," which was pointed out in a former
article, and by which he attempted to give a _judicial_ power to the
king and his judges, where Magna Carta had given it only to a jury. It
is also of a piece with his pretence that there was a difference
between _fine_ and _amercement_, and that _fines_ might be imposed by
the king, and that juries were required only for fixing _amercements_.

These are some of the innumerable frauds by which the English people
have been cheated out of the trial by jury.

_Ex uno disce omnes._ From one judge learn the characters of all.[91]

I give in the note additional and abundant authorities for the meaning
ascribed to the word _bailiff_. The importance of the principle involved
will be a sufficient excuse for such an accumulation of authorities as
would otherwise be tedious and perhaps unnecessary.[92]

The foregoing interpretation of the chapter of Magna Carta now under
discussion, is corroborated by another chapter of Magna Carta, which
specially provides that the king's justices shall "go through every
county" to "take the assizes" (hold jury trials) in three kinds of
_civil_ actions, to wit, "novel disseisin, mort de ancestor, and darrein
presentment;" but makes no mention whatever of their holding jury trials
in _criminal_ cases,--an omission wholly unlikely to be made, if it
were designed they should attend the trial of such causes. Besides, the
chapter here spoken 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 with them to keep
them honest. When the king's justices were known to be so corrupt and
servile that the people would not even trust them to sit alone, in jury
trials, in _civil_ actions, how preposterous is it to suppose that they
would not only suffer them to sit, but to sit alone, in _criminal_ ones.

It is entirely incredible that Magna Carta, which makes such careful
provision in regard to the king's justices sitting in civil actions,
should make no provision whatever as to their sitting in _criminal_
trials, if they were to be allowed to sit in them at all. Yet Magna
Carta has no provision whatever on the subject.[93]

But what would appear to make this matter absolutely certain is, that
unless the prohibition that "no bailiff, &c., _of ours_ shall hold pleas
of our crown," apply to all officers of the king, justices as well as
others, it would be wholly nugatory for any practical or useful purpose,
because the prohibition could be evaded by the king, at any time, by
simply changing the titles of his officers. Instead of calling them
"sheriffs, coroners, constables and bailiffs," he could call them
"_justices_," or anything else he pleased; and this prohibition, so
important to the liberty of the people, would then be entirely defeated.
The king also could make and unmake "justices" at his pleasure; and if
he could appoint any officers whatever to preside over juries in
criminal trials, he could appoint any tool that he might at any time
find adapted to his purpose. It was as easy to make justices of Jeffreys
and Scroggs, as of any other material; and to have prohibited all the
king's officers, _except his justices_, from presiding in criminal
trials, would therefore have been mere fool's play.

We can all perhaps form some idea, though few of us will be likely to
form any adequate idea, of what a different thing the trial by jury
would have been _in practice_, and of what would have been the
difference to the liberties of England, for five hundred years last
past, had this prohibition of Magna Carta, upon the king's officers
sitting in the trial of criminal cases, been observed.

The principle of this chapter of Magna Carta, as applicable to the
governments of the United States of America, forbids that any officer
appointed either by the executive or _legislative_ power, or dependent
upon them for their salaries, or responsible to them by impeachment,
should preside over a jury in criminal trials. To have the trial a legal
(that is, a _common law_) and true trial by jury, the presiding officers
must be chosen by the people, and be entirely free from all dependence
upon, and all accountability to, the executive and legislative branches
of the government.[94]

[Footnote 87: The proofs of this principle of the common law have
already been given on page 120, _note_.

There is much confusion and contradiction among authors as to the manner
in which sheriffs and other officers were appointed; some maintaining
that they were appointed by the king, others that they were elected by
the people. I imagine that both these opinions are correct, and that
several of the king's officers bore the same official names as those
chosen by the people; and that this is the cause of the confusion that
has arisen on the subject.

It seems to be a perfectly well established fact that, at common law,
several magistrates, bearing the names of aldermen, sheriffs, stewards,
coroners and bailiffs, were chosen by the people; and yet it appears,
from Magna Carta itself, that some of the _king's_ officers (of whom he
must have had many) were also called "sheriffs, constables, coroners,
and bailiffs."

But Magna Carta, in various instances, speaks of sheriffs and bailiffs
as "_our_ 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 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 character. On the other hand, it is evident that
the king, the executive power of the nation, must have had large numbers
of officers of his own in every part of the kingdom. And it is perfectly
natural that these different sets of officers should, in many instances,
bear the same official names; and, consequently that the king, when
speaking of his own officers, as distinguished from those chosen by the
people, should call them "our sheriffs, bailiffs," &c., as he does in
Magna Carta.

I apprehend that inattention to these considerations has been the cause
of all the confusion of ideas that has arisen on this subject,--a
confusion very evident in the following paragraph from Dunham, which may
be given as an illustration of that which is exhibited by others on the
same points.

   "Subordinate to the ealdormen were the _gerefas_, the sheriffs, or
   reeves, _of whom there were several in every shire, or county_.
   _There was one in every borough, as a judge._ There was one at every
   gate, who witnessed purchases outside the walls; and there was one,
   higher than either,--the high sheriff,--who was probably the reeve of
   the shire. This last _appears_ to have been appointed by the king.
   Their functions were to execute the decrees of the king, or
   ealdormen, to arrest prisoners, to require bail for their appearance
   at the sessions, to collect fines or penalties levied by the court of
   the shire, to preserve the public peace, _and to preside in a
   subordinate tribunal of their own_."--_Dunham's Middle Ages_, sec. 2,
   B. 2, ch. 1. 57 _Lardner's Cab. Cyc._, p. 41.

The confusion of _duties_ attributed to these officers indicates clearly
enough that different officers, bearing, the same official names, must
have had different duties, and have derived their authority from
different sources,--to wit, the king, and the people.]

[Footnote 88: _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.]

[Footnote 89: He has no power to do it, _either with, or without, the
king's command_. The prohibition is absolute, containing no such
qualification as is here interpolated, viz., "_without the king's
command_." If it could be done _with_ the king's command, the king would
be invested with arbitrary power in the matter.]

[Footnote 90: The absurdity of this doctrine of Coke is made more
apparent by the fact that, at that time, the "justices" and other
persons appointed by the king to hold courts were not only dependent
upon the king for their offices, and removable at his pleasure, _but
that the usual custom was, not to appoint them with any view to
permanency, but only to give them special commissions for trying a
single cause, or for holding a single term of a court, or for making a
single circuit; which, being done, their commissions expired_. The king,
therefore, could, _and undoubtedly did, appoint any individual he
pleased, to try any cause he pleased, with a special view to the
verdicts he desired to obtain in the particular cases_.

This custom of commissioning particular persons to hold jury trials, in
_criminal_ cases, (and probably also in _civil_ ones,) was of course a
usurpation upon the common law, but had been practised more or less from
the time of William the Conqueror. Palgrave says:

   "The frequent absence of William from his insular dominions
   occasioned another mode of administration, _which ultimately produced
   still greater changes in the law_. It was the practice of appointing
   justiciars to represent the king's person, to hold his court, to
   decide his pleas, to dispense justice on his behalf, to command the
   military levies, and to act as conservators of the peace in the
   king's name.[95] ... The justices who were assigned in the name of
   the sovereign, and whose powers were revocable at his pleasure,
   derived their authority merely from their grant.... Some of those
   judges were usually deputed for the purpose of relieving the king
   from the burden of his judicial functions.... The number as well as
   the variety of names of the justices appearing in the early
   chirographs of 'Concords,' leave reason for doubting whether,
   anterior to the reign of Henry III., (1216 to 1272,) _a court, whose
   members were changing at almost every session, can be said to have
   been permanently constituted. It seems more probable that the
   individuals who composed the tribunal were selected as suited the
   pleasure of the sovereign, and the convenience of the clerks and
   barons_; and the history of our legal administration will be much
   simplified, if we consider all those courts which were afterwards
   denominated the Exchequer, the King's Bench, the Common Pleas, and
   the Chancery, _as being originally committees, selected by the king
   when occasion required_, out of a large body, for the despatch of
   peculiar branches of business, _and which committees, by degrees,
   assumed an independent and permanent existence_.... Justices
   itinerant, who, despatched throughout the land, decided the 'Pleas of
   the Crown,' may be obscurely traced in the reign of the Conqueror;
   _not, perhaps, appointed with much regularity, but despatched upon
   peculiar occasions and emergencies_."--_1 Palgrave's Rise and
   Progress_, &c., p. 289 to 293.

The following statute, passed in 1354, (139 years after Magna Carta,)
shows that even after this usurpation of appointing "justices" of his
own, to try criminal cases, had probably become somewhat established in
practice, in defiance of Magna Carta, the king was in the habit of
granting special commissions to still other persons, (especially to
sheriffs,--_his_ sheriffs, no doubt,) to try particular cases:

   "Because that the people of the realm have suffered many evils and
   mischiefs, for that sheriffs of divers counties, by virtue of
   commissions and general writs granted to them at their own suit, for
   their singular profit to gain of the people, have made and taken
   divers inquests to cause to indict the people at their will, and have
   taken fine and ransom of them to their own use, and have delivered
   them; whereas such persons indicted were not brought before the
   king's justices to have their deliverance, it is accorded and
   established, for to eschew all such evils and mischiefs, that such
   commissions and writs before this time made shall be utterly
   repealed, and that from henceforth no such commissions shall be
   granted."--_St. 28 Edward III._, ch. 9, (1354.)

How silly to suppose that the illegality of these commissions to try
criminal cases, could have been avoided by simply granting them to
persons under the title of "_justices_," instead of granting them to
"_sheriffs_." The statute was evidently a cheat, or at least designed as
such, inasmuch as it virtually asserts the right of the king to appoint
his tools, under the name of "justices," to try criminal cases, while it
_disavows_ his right to appoint them under the name of "sheriffs."

   Millar says: "When the king's bench came to have its usual residence
   at Westminster, the sovereign was induced to _grant special
   commissions, for trying particular crimes_, in such parts of the
   country as were found most convenient; and this practice was
   _gradually_ modelled into a regular appointment of certain
   commissioners, empowered, at stated seasons, to perform circuits over
   the kingdom, and to hold courts in particular towns, for the trial of
   all sorts of crimes. These judges of the circuit, however, _never
   obtained an ordinary jurisdiction, but continued, on every occasion,
   to derive their authority from two special commissions_: that of
   _oyer and terminer_, by which they were appointed to hear and
   determine all treasons, felonies and misdemeanors, within certain
   districts; and that of _gaol delivery_, by which they were directed
   to try every prisoner confined in the gaols of the several towns
   falling under their inspection."--_Millar's Hist. View of Eng. Gov._,
   vol. 2, ch. 7, p. 282.

The following extract from Gilbert shows to what lengths of usurpation
the kings would sometimes go, in their attempts to get the judicial
power out of the hands of the people, and entrust it to instruments of
their own choosing:

   "From the time of the _Saxons_," (that is, from the commencement of
   the reign of William the Conqueror,) "till the reign of Edward the
   first, (1272 to 1307,) the several county courts and sheriffs courts
   did decline in their interest and authority. The methods by which
   they were broken were two-fold. _First, by granting commissions to
   the sheriffs by writ of_ JUSTICIES, _whereby the sheriff had a
   particular jurisdiction granted him to be judge of a particular
   cause, independent of the suitors of the county court_," (that is,
   without a jury;) "_and these commissions were after the Norman form,
   by which (according to which) all power of judicature was immediately
   derived from the king_."--_Gilbert on the Court of Chancery_, p. 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.]

[Footnote 91: The opinions and decisions of judges and courts are
undeserving of the least reliance, (beyond the intrinsic merit of the
arguments offered to sustain them,) and are unworthy even to be quoted
as evidence of the law, _when those opinions or decisions are favorable
to the power of the government, or unfavorable to the liberties of the
people_. The only reasons that their opinions, _when in favor of
liberty_, are entitled to any confidence, are, first, that all
presumptions of law are in favor of liberty; and, second, that the
admissions of all men, the innocent and the criminal alike, _when made
against their own interests_, are entitled to be received as true,
because it is contrary to human nature for a man to confess anything but
truth against himself.

More solemn farces, or more gross impostures, were never practised upon
mankind, than are all, or very nearly all, those oracular responses by
which courts assume to determine that certain statutes, in restraint of
individual liberty, are within the constitutional power of the
government, and are therefore valid and binding upon the people.

The reason why these courts are so intensely servile and corrupt, is,
that they are not only parts of, but the veriest creatures of, the very
governments whose oppressions they are thus seeking to uphold. They
receive their offices and salaries from, and are impeachable and
removable by, the very governments upon whose acts they affect to sit in
judgment. Of course, no one with his eyes open ever places himself in a
position so incompatible with the liberty of declaring his honest
opinion, unless he do it with the intention of becoming a mere
instrument in the hands of the government for the execution of all its
oppressions.

As proof of this, look at the judicial history of England for the last
five hundred years, and of America from its settlement. In all that time
(so far as I know, or presume) no bench of judges, (probably not even
any single judge,) dependent upon the legislature that passed the
statute, has ever declared a single _penal_ statute invalid, on account
of its being in conflict either with the common law, which the judges in
England have been sworn to preserve, or with the written constitutions,
(recognizing men's natural rights,) which the American judges were under
oath to maintain. Every oppression, every atrocity even, that has ever
been enacted in either country, by the legislative power, in the shape
of a criminal law, (or, indeed, in almost any other shape,) has been as
sure of a sanction from the judiciary that was dependent upon, and
impeachable by, the legislature that enacted the law, as if there were a
physical necessity that the legislative enactment and the judicial
sanction should go together. Practically speaking, the sum of their
decisions, all and singular, has been, that there are no limits to the
power of the government, and that the people have no rights except what
the government pleases to allow to them.

It is extreme folly for a people to allow such dependent, servile, and
perjured creatures to sit either in civil or criminal trials; but to
allow them to sit in criminal trials, and judge of the people's
liberties, is not merely fatuity,--it is suicide.]

[Footnote 92: Coke, speaking of the word _bailiffs_, as used in the
statute of 1 _Westminster_, ch. 35, (1275,) says:

   "Here _bailiffs_ are taken for the _judges of the court_, as
   manifestly appeareth hereby."--2 _Inst._, 229.

Coke also says, "It is a maxim in law, _aliquis non debet esse judex in
propria causa_, (no one ought to be judge in his own cause;) and
therefore a fine levied before the _baylifes of Salop_ was reversed,
because one of the _baylifes_ was party to the fine, _quia non potest
esse judex et pars_," (because one cannot be _judge_ and party.)--_1
Inst._, 141 a.

In the statute of Gloucester, ch. 11 and 12, (1278,) "the mayor and
_bailiffs_ of London (undoubtedly chosen by the people, or at any rate
not appointed by the king) are manifestly spoken of as _judges_, or
magistrates, holding _jury_ trials, as follows:

   _Ch. II._ "It is provided, also, that if any man lease his tenement
   in the city of London, for a term of years, and he to whom the
   freehold belongeth causeth himself to be impleaded by collusion, and
   maketh default after default, or cometh into court and giveth it up,
   for to make the termor (lessee) lose his term, (lease,) and the
   demandant hath his suit, so that the termor may recover by writ of
   covenant; _the mayor and bailiffs may inquire by a good inquest_,
   (_jury_,) in the presence of the termor and the demandant, whether
   the demandant moved his plea upon good right that he had, or by
   collusion, or fraud, to make the termor lose his term; and if it be
   found by the inquest (jury) that the demandant moved his plea upon
   good right that he had, the judgment shall be given forthwith; and if
   it be found by the inquest (jury) that he impleaded him (self) by
   fraud, to put the termor from his term, then shall the termor enjoy
   his term, and the execution of judgment for the demandant shall be
   suspended until the term be expired."--_6 Edward I._, ch. 11, (1278.)

   Coke, in his commentary on this chapter, calls this court of "the
   mayor and _bailiffs_" of London, "_the court of the hustings, the
   greatest and highest court in London;_" and adds, "other cities have
   the like court, and so called, as York, Lincoln, Winchester, &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, such as have such privilege to hold plea as
   London hath."--_2 Inst._, 322.

The 12th chapter of the same statute is in the following words, which
plainly recognize the fact that "the mayor and _bailiffs_ of London" are
judicial officers holding courts in London.

   "It is provided, also, that if a man, impleaded for a tenement in the
   same city, (London,) doth vouch a foreigner to warranty, that he
   shall come into the chancery, and have a writ to summon his warrantor
   at a certain day before the justices of the bench, _and another writ
   to the mayor and bailiffs of London, that they shall surcease_
   (suspend proceedings) _in the matter that is before them by writ_,
   until the plea of the warrantee be determined before the justices of
   the bench; and when the plea at the bench shall be determined, then
   shall he that is vouched be commanded to go into the city," (that is,
   before "the mayor and _bailiffs'_" court,) "to answer unto the chief
   plea; and a writ shall be awarded at the suit of the demandant by the
   justices _unto the mayor and bailiffs, that they shall proceed in the
   plea_," &c.--_6 Edward I._, ch. 12, (1278.)

Coke, in his commentary on this chapter, also speaks repeatedly of "the
mayor and _bailiffs_" _as judges holding courts_; and also speaks of
this chapter as applicable not only to "the citie of London, specially
named for the cause aforesaid, but extended by equity to all other
privileged places," (that is, privileged to have a court of "mayor and
_bailiffs_,") "where foreign voucher is made, as to Chester, Durham,
Salop," &c.--_2 Inst._, 325-7.

BAILIE.--In Scotch law, a municipal magistrate, corresponding with the
English _alderman_.[96]--_Burrill's Law Dictionary_.

BAILIFFE.--_Baillif._ Fr. A bailiff: a ministerial officer with duties
similar to those of a sheriff.... _The judge of a court._ A municipal
magistrate, &c.--_Burrill's Law Dict._

BAILIFF.... The word _bailiff_ is of Norman origin, and was applied in
England, at an early period, (after the example, it is said, of the
French,) to the chief magistrates of counties, or shires, such as the
alderman, the reeve, or sheriff, and also of inferior jurisdictions,
such as hundreds and wapentakes.--_Spelman, voc. Balivus; 1 Bl. Com._,
344. _See Bailli_, _Ballivus_. The Latin _ballivus_ occurs, indeed, in
the laws of Edward the Confessor, but Spelman thinks it was introduced
by a later hand. _Balliva_ (bailiwick) was the word formed from
_ballivus_, to denote the extent of territory comprised within a
bailiff's jurisdiction; and _bailiwick_ is still retained in writs and
other proceedings, as the name of a sheriff's county.--_1 Bl. Com._,
344. _See Balliva._ _The office of bailiff was at first strictly, though
not exclusively, a judicial one._ In France, the word had the sense of
what Spelman calls _justitia tutelaris_. _Ballivus_ occurs frequently in
the _Regiam Majestatem_, in the sense of a _judge_.--_Spelman._ In its
sense of a _deputy_, it was formerly applied, in England, to those
officers who, by virtue of a deputation, either from the sheriff or the
lords of private jurisdictions, exercised within the hundred, or
whatever might be the limits of their bailiwick, certain _judicial_ and
ministerial functions. With the disuse of private and local
jurisdictions, the meaning of the term became commonly restricted to
such persons as were deputed by the sheriff to assist him in the merely
ministerial portion of his duty; such as the summoning of juries, and
the execution of writs.--_Brande._ ... The word _bailiff_ is also
applied in England to the chief magistrates of certain towns and
jurisdictions, to the keepers of castles, forests and other places, and
to the stewards or agents of lords of manors.--_Burrill's Law Dict._

"BAILIFF, (from the Lat. _ballivus_; Fr. _baillif_, i.e., _Præfectus
provinciæ_,) signifies an officer appointed for the administration of
justice within a certain district. The office, as well as the name,
appears to have been derived from the French," &c.,--_Brewster's
Encyclopedia._

Millar says, "The French monarchs, about this period, were not content
with the power of receiving appeals from the several courts of their
barons. An expedient was devised of sending royal _bailiffs_ into
different parts of the kingdom, with a commission to take cognizance of
all those causes in which the sovereign was interested, and in reality
for the purpose of abridging and limiting the subordinate jurisdiction
of the neighboring feudal superiors. By an edict of Phillip Augustus, in
the year 1190, those _bailiffs_ were appointed in all the principal
towns of the kingdom."--_Millar's Hist. View of the Eng. Gov._, vol.
ii., ch. 3, p. 126.

   "BAILIFF-_office_.--Magistrates who formerly administered justice in
   the parliaments or courts of France, answering to the English
   sheriffs, as mentioned by Bracton."--_Bouvier's Law Dict._

   "There be several officers called _bailiffs_, whose offices and
   employments seem quite different from each other.... The chief
   magistrate, in divers ancient corporations, are called _bailiffs_, as
   in Ipswich, Yarmouth, Colchester, &c. There are, likewise, officers
   of the forest, who are termed bailiffs."--_1 Bacon's Abridgment_,
   498-9.

   "BAILIFF signifies a keeper or superintendent, and is directly
   derived from the French word _bailli_, which appears to come from the
   word _balivus_, and that from _bagalus_, a Latin word signifying
   generally a governor, tutor, or superintendent.... The French word
   _bailli_ is thus explained by Richelet, (_Dictionaire_, &c.:)
   _Bailli._--_He who in a province has the superintendence of justice,
   who is the ordinary judge of the nobles_, who is their head for the
   _ban_ and _arriere ban_,[97] and who maintains the right and property
   of others against those who attack them.... All the various officers
   who are called by this name, though differing as to the nature of
   their employments, seem to have some kind of superintendence
   intrusted to them by their superior."--_Political Dictionary._

"BAILIFF, _balivus_. From the French word _bayliff_, that is, _præfectus
provinciæ_, and as the name, so the office itself was answerable to that
of France, where there were eight parliaments, which were high courts
from whence there lay no appeal, and within the precincts of the several
parts of that kingdom which belonged to each parliament, _there were
several provinces to which justice was administered by certain officers
called bailiffs_; and in England we have several counties in which
justice hath been, and still is, in small suits, administered to the
inhabitants by the officer whom we now call _sheriff_, or _viscount_;
(one of which names descends from the Saxons, the other from the
Normans.) And, though the sheriff is not called _bailiff_, yet it was
probable that was one of his names also, because the county is often
called _balliva_; as in the return of a writ, where the person is not
arrested, the sheriff saith, _infra-nominatus_, _A.B. non est inventus
in balliva mea_, &c.; (the within named A.B. is not found in my
bailiwick, &c.) And in the statute of Magna Carta, ch. 28, and 14 Ed. 3,
ch. 9, the word _bailiff_ seems to comprise as well sheriffs, as
bailiffs of hundreds.

"_Bailies_, in Scotland, are magistrates of burghs, possessed of certain
jurisdictions, having the same power within their territory as sheriffs
in the county....

"As England is divided into counties, so every county is divided into
hundreds; within which, in ancient times, the people had justice
administered to them by the several officers of every hundred, which
were the _bailiffs_. And it appears by Bracton, (_lib. 3, tract_. 2, ch.
34,) that _bailiffs_ of hundreds might anciently hold plea of appeal and
approvers; but since that time the hundred courts, except certain
franchises, are swallowed in the county courts; and now the _bailiff's_
name and office is grown into contempt, they being generally officers to
serve writs, &c., within their liberties; though, in other respects, the
name is still in good esteem, for the chief magistrates in divers towns
are called _bailiffs_; and sometimes the persons to whom the king's
castles are committed are termed _bailiffs_, as the _bailiff_ of Dover
Castle, &c.

"Of the ordinary _bailiffs_ there are several sorts, viz., _bailiffs_ of
liberties; sheriffs' _bailiffs_; _bailiffs_ of lords of manors;
_bailiffs_ of husbandry, &c....

"_Bailiffs_ of liberties or franchises are to be sworn to take
distresses, truly impanel jurors, make returns by indenture between them
and sheriffs, &c....

"_Bailiffs of courts baron_ summon those courts, and execute the process
thereof....

"Besides these, there are also _bailiffs of the forest_ ..."--_Jacob's
Law Dict. Tomlin's do._

"BAILIWICK, _balliva_,--is not only taken for the county, but signifies
generally that liberty which is exempted from the sheriff of the county,
over which the lord of the liberty appointeth a _bailiff_, with such
powers within his precinct as an under-sheriff exerciseth under the
sheriff of the county; such as the _bailiff_ of Westminster."--_Jacob's
Law Dict. Tomlin's do._

"_A bailiff of a Leet, Court-baron, Manor, Balivus Letæ, Baronis,
Manerii._--He is one that is appointed by the lord, or his steward,
within every manor, to do such offices as appertain thereunto, as to
summon the court, warn the tenants and resiants; also, to summon the
Leet and Homage, levy fines, and make distresses, &c., of which you may
read at large in _Kitchen's Court-leet and Court-baron_."--_A Law
Dictionary, anonymous_, (_in Suffolk Law Library_.)

"BAILIFF.--In England an officer appointed by the sheriff. Bailiffs are
either special, and appointed, for their adroitness, to arrest persons;
or bailiffs of hundreds, who collect fines, summon juries, attend the
assizes, and execute writs and processes. _The sheriff in England is the
king's bailiff...._

"_The office of bailiff formerly was high and honorable in England, and
officers under that title on the continent are still invested with
important functions._"--_Webster._

"BAILLI, (Scotland.)--An alderman; a magistrate who is second in rank in
a royal burgh."--_Worcester._

"_Baili, or Bailiff._--(Sorte d'officier de justice.) A bailiff; a sort
of magistrate."--_Boyer's French Dict._

"By some opinions, a _bailiff_, in Magna Carta, ch. 28, signifies _any
judge_."--_Cunningham's Law Dict._

"BAILIFF.--In the court of the Greek emperors there was a grand
_bajulos_, first tutor of the emperor's children. The superintendent of
foreign merchants seems also to have been called _bajulos_; and, as he
was appointed by the Venetians, this title (balio) was transferred to
the Venetian ambassador. From Greece, the official _bajulos_
(_ballivus_, _bailli_, in France; _bailiff_, in England,) was introduced
into the south of Europe, and denoted a superintendent; hence the eight
_ballivi_ of the knights of St. John, which constitute its supreme
council. In France, the royal bailiffs were commanders of the militia,
administrators or stewards of the domains, _and judges of their
districts_. In the course of time, only the first duty remained to the
bailiff; hence he was _bailli d'épée_, _and laws were administered in
his name by a lawyer, as his deputy, lieutenant de robe_. The
seigniories, with which high courts were connected, employed bailiffs,
who thus constituted, almost everywhere, _the lowest order of judges_.
From the courts of the nobility, the appellation passed to the royal
courts; from thence to the parliaments. In the greater bailiwicks of
cities of importance, Henry II. established a collegial constitution
under the name of _presidial courts_.... _The name of bailiff was
introduced into England with William I._ The counties were also called
_bailiwicks_, (_ballivæ_,) while the subdivisions were called
_hundreds_; but, as the courts of the hundreds have long since ceased,
the English bailiffs are only a kind of subordinate officers of justice,
like the French _huissiers_. These correspond very nearly to the
officers called _constables_ in the United States. Every sheriff has
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 jurisdiction of the city, in the court of
old Bailey_, where there are, annually, eight sittings of the court, for
the city of London and the county of Middlesex. _Usually, the recorder
of London supplies his place as judge._ In some instances the term
_bailiff_, in England, is applied to the chief magistrates of towns, or
to the commanders of particular castles, as that of Dover. The term
_baillie_, in Scotland, is applied to a judicial police-officer, having
powers very similar to those of justices of peace in the United
States."--_Encyclopædia Americana._]

[Footnote 93: Perhaps it may be said (and such, it has already been
seen, is the opinion of Coke and others) that the chapter of Magna
Carta, that "no _bailiff_ from henceforth shall put any man to his open
law, (put him on trial,) nor to an oath (that is, an oath of
self-exculpation) upon his (the bailiff's) own accusation or testimony,
without credible witnesses brought in to prove the charge," _is itself_
a "provision in regard to the king's justices sitting in criminal
trials," and therefore implies that _they 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.[98]

It will be noticed that the words of this chapter are _not_, "no bailiff
_of ours_,"--that is, _of the king_,--as in some other chapters of Magna
Carta; but simply "no bailiff," &c. The prohibition, therefore, applies
to all "bailiffs,"--to those chosen by the people, as well as those
appointed by the king. And the prohibition is obviously founded upon the
idea (a very sound one in that age certainly, and probably also in this)
that public officers (whether appointed by king or people) have
generally, or at least frequently, too many interests and animosities
against accused persons, to make it safe to convict any man on their
testimony alone.

The idea of Coke and others, that the object of this chapter was simply
to forbid _magistrates_ to put a man on trial, when there were no
witnesses against him, but only the simple accusation or testimony of
the magistrates themselves, before whom he was to be tried, is
preposterous; for that would be equivalent to supposing that magistrates
acted in the triple character of judge, jury and witnesses, _in the same
trial_; and that, therefore, _in such cases_, they needed to be
prohibited from condemning a man on their own accusation or testimony
alone. But such a provision would have been unnecessary and senseless,
for two reasons; first, because the bailiffs or magistrates had no power
to "hold pleas of the crown," still less to try or condemn a man; that
power resting wholly with the juries; second, because if bailiffs or
magistrates could try and condemn a man, without a jury, the prohibition
upon their doing so upon their own accusation or testimony alone, would
give no additional protection to the accused, so long as these same
bailiffs or magistrates were allowed to decide what weight should be
given, _both to their own testimony and that of other witnesses_; for,
if they wished to convict, they would of course decide that any
testimony, however frivolous or irrelevant, _in addition to their own_,
was sufficient. Certainly a magistrate could always procure witnesses
enough to testify to something or other, which _he himself_ could decide
to be corroborative of his own testimony. And thus the prohibition would
be defeated in fact, though observed in form.]

[Footnote 94: 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.]

[Footnote 95: In this extract, Palgrave seems to assume that the king
himself had a right to sit as judge, in _jury_ trials, in the _county_
courts, in both civil and criminal cases. I apprehend he had no such
power at the _common law_, but only to sit in the trial of appeals, and
in the trial of peers, and of civil suits in which peers were parties,
and possibly in the courts of ancient demesne.]

[Footnote 96: _Alderman_ was a title anciently given to various
_judicial_ officers, as the Alderman of all England, Alderman of the
King, Alderman of the County, Alderman of the City or Borough, Alderman
of the Hundred or Wapentake. These were all _judicial_ officers. See Law
Dictionaries.]

[Footnote 97: "_Ban and arriere ban_, a proclamation, whereby all that
hold lands of the crown, (except some privileged officers and citizens,)
are summoned to meet at a certain place in order to serve the king in
his wars, either personally, or by proxy."--_Boyer._]

[Footnote 98: 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 reëstablished.]




CHAPTER VIII.

THE FREE ADMINISTRATION OF JUSTICE.


The free administration of justice was a principle of the common law;
and it must necessarily be a part of every system of government which is
not designed to be an engine in the hands of the rich for the oppression
of the poor.

In saying that the free administration of justice was a principle of the
common law, I mean only that parties were subjected to no costs for
jurors, witnesses, writs, or other necessaries for the trial,
_preliminary to the trial itself_. Consequently, no one could lose the
benefit of a trial, for the want of means to defray expenses. _But after
the trial_, the plaintiff or defendant was liable to be amerced, (by the
jury, of course,) for having troubled the court with the prosecution or
defence of an unjust suit.[99] 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 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
transactions. Most contracts in regard to lands were made at the courts,
in the presence of the freeholders there assembled.[100]

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.[101])

_This principle of the free administration of justice connects itself
necessarily with the trial by jury, because a jury could not rightfully
give judgment against any man, in either a civil or criminal case, if
they had any reason to suppose he had been unable to procure his
witnesses._

The true trial by jury would also compel the free administration of
justice from another necessity, viz., that of preventing private
quarrels; because, unless the government enforced a man's rights and
redressed his wrongs, _free of expense to him_, a jury would be bound to
protect him in taking the law into his own hands. A man has a natural
right to enforce his own rights and redress his own wrongs. If one man
owe another a debt, and refuse to pay it, the creditor has a natural
right to seize sufficient property of the debtor, wherever he can find
it, to satisfy the debt. If one man commit a trespass upon the person,
property or character of another, the injured party has a natural right,
either to chastise the aggressor, or to take compensation for the injury
out of his property. But as the government is an impartial party as
between these individuals, it is more likely to do _exact_ justice
between them than the injured individual himself would do. The
government, also, having more power at its command, is likely to right a
man's wrongs more peacefully than the injured party himself could do it.
If, therefore, the government will do the work of enforcing a man's
rights, and redressing his wrongs, _promptly, and free of expense to
him_, he is under a moral obligation to leave the work in the hands of
the government; but not otherwise. When the government forbids him to
enforce his own rights or redress his own wrongs, and deprives him of
all means of obtaining justice, except on the condition of his employing
the government to obtain it for him, _and of paying the government for
doing it_, the government becomes itself the protector and accomplice of
the wrong-doer. If the government will forbid a man to protect his own
rights, it is bound to do it for him, _free of expense to him_. And so
long as government refuses to do this, juries, if they knew their
duties, would protect a man in defending his own rights.

Under the prevailing system, probably one half of the community are
virtually deprived of all protection for their rights, except what the
criminal law affords them. Courts of justice, for all civil suits, are
as effectually shut against them, as though it were done by bolts and
bars. Being forbidden to maintain their own rights by force,--as, for
instance, to compel the payment of debts,--and being unable to pay the
expenses of civil suits, they have no alternative but submission to many
acts of injustice, against which the government is bound either to
protect them, _free of expense_, or allow them to protect themselves.

There would be the same reason in compelling a party to pay the judge
and jury for their services, that there is in compelling him to pay the
witnesses, or any other _necessary_ charges.[102]

This compelling parties to pay the expenses of civil suits is one of the
many cases in which government is false to the fundamental principles on
which free government is based. What is the object of government, but to
protect men's rights? On what principle does a man pay his taxes to the
government, except on that of contributing his proportion towards the
necessary cost of protecting the rights of all? Yet, when his own rights
are actually invaded, the government, which he contributes to support,
instead of fulfilling its implied contract, becomes his enemy, and not
only refuses to protect his rights, (except at his own cost,) but even
forbids him to do it himself.

All free government is founded on the theory of voluntary association;
and on the theory that all the parties to it _voluntarily_ pay their
taxes for its support, on the condition of receiving protection in
return. But the idea that any _poor_ man would voluntarily pay taxes to
build up a government, which will neither protect his rights, (except at
a cost which he cannot meet,) nor suffer himself to protect them by such
means as may be in his power, is absurd.

Under the prevailing system, a large portion of the lawsuits determined
in courts, are mere contests of purses rather than of rights. And a
jury, sworn to decide causes "according to the evidence" produced, are
quite likely, _for aught they themselves can know_, to be deciding
merely the comparative length of the parties' purses, rather than the
intrinsic strength of their respective rights. Jurors ought to refuse to
decide a cause at all, except upon the assurance that all the evidence,
necessary to a full knowledge of the cause, is produced. This assurance
they can seldom have, unless the government itself produces all the
witnesses the parties desire.

In criminal cases, the atrocity of accusing a man of crime, and then
condemning him unless he prove his innocence at his own charges, is so
evident that a jury could rarely, if ever, be justified in convicting a
man under such circumstances.

But the free administration of justice is not only indispensable to the
maintenance of right between man and man; it would also promote
simplicity and stability in the laws. The mania for legislation would
be, in an important degree, restrained, if the government were compelled
to pay the expenses of all the suits that grew out of it.

The free administration of justice would diminish and nearly extinguish
another great evil,--that of malicious _civil_ suits. It is an old
saying, that "_multi litigant in foro, non ut aliquid lucrentur, sed ut
vexant alios_." (Many litigate in court, not that they may gain
anything, but that they may harass others.) Many men, from motives of
revenge and oppression, are willing to spend their own money in
prosecuting a groundless suit, if they can thereby compel their victims,
who are less able than themselves to bear the loss, to spend money in
the defence. Under the prevailing system, in which the parties pay the
expenses of their suits, nothing but money is necessary to enable any
malicious man to commence and prosecute a groundless suit, to the
terror, injury, and perhaps ruin, of another man. In this way, a court
of justice, into which none but a conscientious _plaintiff_ certainly
should ever be allowed to enter, becomes an arena into which any rich
and revengeful oppressor may drag any man poorer than himself, and
harass, terrify, and impoverish him, to almost any extent. It is a
scandal and an outrage, that government should suffer itself to be made
an instrument, in this way, for the gratification of private malice. We
might nearly as well have no courts of justice, as to throw them open,
as we do, for such flagitious uses. Yet the evil probably admits of no
remedy except a free administration of justice. Under a free system,
plaintiffs could rarely be influenced by motives of this kind; because
they could put their victim to little or no expense, _neither pending
the suit_, (which it is the object of the oppressor to do,) nor at its
termination. Besides, if the ancient common law practice should be
adopted, of amercing a party for troubling the courts with groundless
suits, the prosecutor himself would, in the end, be likely to be amerced
by the jury, in such a manner as to make courts of justice a very
unprofitable place for a man to go to seek revenge.

In estimating the evils of this kind, resulting from the present system,
we are to consider that they are not, by any means, confined to the
actual suits in which this kind of oppression is practised; but we are
to include all those cases in which the fear of such oppression is used
as a weapon to compel men into a surrender of their rights.

[Footnote 99: _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 case of failure.]

[Footnote 100: When any other witnesses than freeholders were required
in a civil suit, I am not aware of the manner in which their attendance
was procured; but it was doubtless done at the expense either of the
state or of the witnesses themselves. And it was doubtless the same in
criminal cases.]

[Footnote 101: "All claims were established in the first stage by the
oath of the plaintiff, except when otherwise specially directed by the
law. The oath, by which any claim was supported, was called the
fore-oath, or 'Præjuramentum,' and it was the foundation of his suit.
One of the cases which did not require this initiatory confirmation, was
when cattle could be tracked into another man's land, and then the
foot-mark stood for the fore-oath."--_2 Palgrave's Rise and Progress_,
&c., 114.]

[Footnote 102: Among the necessary expenses of suits, should be reckoned
reasonable compensation to counsel, for they are nearly or quite as
important to the administration of justice, as are judges, jurors, or
witnesses; and the universal practice of employing them, both on the
part of governments and of private persons, shows that their importance
is generally understood. As a mere matter of economy, too, it would be
wise for the government to pay them, rather than they should not be
employed; because they collect and arrange the testimony and the law
beforehand, so as to be able to present the whole case to the court and
jury intelligibly, and in a short space of time. Whereas, if they were
not employed, the court and jury would be under the necessity either of
spending much more time than now in the investigation of causes, or of
despatching them in haste, and with little regard to justice. They would
be very likely to do the latter, thus defeating the whole object of the
people in establishing courts.

To prevent the abuse of this right, it should perhaps be left
discretionary with the jury in each case to determine whether the
counsel should receive any pay--and, if any, how much--from the
government.]




CHAPTER IX.

THE CRIMINAL INTENT.


It is a maxim of the common law that there can be no crime without a
criminal intent. And it is a perfectly clear principle, although one
which judges have in a great measure overthrown in practice, that
_jurors_ are to judge of the moral intent of an accused person, and hold
him guiltless, whatever his act, unless they find him to have acted with
a criminal intent; that is, with a design to do what he knew to be
criminal.

This principle is clear, because the question for a jury to determine
is, whether the accused be _guilty_, or _not guilty_. _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 committed, if he have done
it without any criminal intent. There can be no _moral justice_ in
punishing for such an act, because, there having been no _criminal
motive_, there can have been no other motive which justice can take
cognizance of, as demanding or justifying punishment. There can be no
_political necessity_ for punishing, to warn against similar acts in
future, because, if one man have injured another, however
unintentionally, he is liable, and justly liable, to a _civil_ suit for
damages; and in this suit he will be compelled to make compensation for
the injury, notwithstanding his innocence of any intention to injure. He
must bear the consequences of his own act, instead of throwing them upon
another, however innocent he may have been of any intention to do
wrong. And the damages he will have to pay will be a sufficient warning
to him not to do the like act again.

If it be alleged that there are crimes against the public, (as treason,
for example, or any other resistance to government,) for which private
persons can recover no damages, and that there is a political necessity
for punishing for such offences, even though the party acted
conscientiously, the answer is,--the government must bear with all
resistance that is not so clearly wrong as to give evidence of criminal
intent. In other words, the government, in all its acts, must keep
itself so _clearly_ within the limits of justice, as that twelve men,
taken at random, will all agree that it is in the right, or it must
incur the risk of resistance, without any power to punish it. This is
the mode in which the trial by jury operates to prevent the government
from falling into the hands of a party, or a faction, and to keep it
within such limits as _all_, or substantially _all_, the people are
agreed that it may occupy.

This necessity for a criminal intent, to justify conviction, is proved
by the issue which the jury are to try, and the verdict they are to
pronounce. The "issue" they are to try is, "_guilty_" or "_not guilty_."
And those are the terms they are required to use in rendering their
verdicts. But it is a plain falsehood to say that a man is "_guilty_,"
unless he have done an act which he knew to be criminal.

This necessity for a criminal intent--in other words, for _guilt_--as a
preliminary to conviction, makes it impossible that a man can be
rightfully convicted for an act that is intrinsically innocent, though
forbidden by the government; because guilt is an intrinsic quality of
actions and motives, and not one that can be imparted to them by
arbitrary legislation. All the efforts of the government, therefore, to
"_make offences by statute_," out of acts that are not criminal by
nature, must necessarily be ineffectual, unless a jury will declare a
man "_guilty_" for an act that is really innocent.

The corruption of judges, in their attempts to uphold the arbitrary
authority of the government, by procuring the conviction of individuals
for acts innocent in themselves, and forbidden only by some tyrannical
statute, and the commission of which therefore indicates no criminal
intent, is very apparent.

To accomplish this object, they have in modern times held it to be
unnecessary that indictments should charge, as by the common law they
were required to do, that an act was done "_wickedly_," "_feloniously_,"
"_with malice aforethought_," or in any other manner that implied a
criminal intent, without which there can be no criminality; but that it
is sufficient to charge simply that it was done "_contrary to the form
of the statute in such case made and provided_." This form of indictment
proceeds plainly upon the assumption that the government is absolute,
and that it has authority to prohibit any act it pleases, however
innocent in its nature the act may be. Judges have been driven to the
alternative of either sanctioning this new form of indictment, (which
they never had any constitutional right to sanction,) or of seeing the
authority of many of the statutes of the government fall to the ground;
because the acts forbidden by the statutes were so plainly innocent in
their nature, that even the government itself had not the face to allege
that the commission of them implied or indicated any criminal intent.

To get rid of the necessity of showing a criminal intent, and thereby
further to enslave the people, by reducing them to the necessity of a
blind, unreasoning submission to the arbitrary will of the government,
and of a surrender of all right, on their own part, to judge what are
their constitutional and natural rights and liberties, courts have
invented another idea, which they have incorporated among the pretended
_maxims_, upon which they act in criminal trials, viz., that "_ignorance
of the law excuses no one_." As if it were in the nature of things
possible that there could be an excuse more absolute and complete. What
else than ignorance of the law is it that excuses persons under the
years of discretion, and men of imbecile minds? What else than ignorance
of the law is it that excuses judges themselves for all their erroneous
decisions? Nothing. They are every day committing errors, which would be
crimes, but for their ignorance of the law. And yet these same judges,
who claim to be _learned_ in the law, and who yet could not hold their
offices for a day, but for the allowance which the law makes for their
ignorance, are continually asserting it to be a "maxim" that "ignorance
of the law excuses no one;" (by which, of course, they really mean that
it excuses no one but themselves; and especially that it excuses no
_unlearned_ man, who comes before them charged with crime.)

This preposterous doctrine, that "ignorance of the law excuses no one,"
is asserted by courts because it is an indispensable one to the
maintenance of absolute power in the government. It is indispensable for
this purpose, because, if it be once admitted that the people _have_ any
rights and liberties which the government cannot lawfully take from
them, then the question arises in regard to every statute of the
government, whether it be law, or not; that is, whether it infringe, or
not, the rights and liberties of the people. Of this question every man
must of course judge according to the light in his own mind. And no man
can be convicted unless the jury find, not only that the statute is
_law_,--that it does _not_ infringe the rights and liberties of the
people,--but also that it was so clearly law, so clearly consistent with
the rights and liberties of the people, as that the individual himself,
who transgressed it, _knew it to be so_, and therefore had no moral
excuse for transgressing it. Governments see that if ignorance of the
law were allowed to excuse a man for any act whatever, it must excuse
him for transgressing all statutes whatsoever, which he himself thinks
inconsistent with his rights and liberties. But such a doctrine would of
course be inconsistent with the maintenance of arbitrary power by the
government; and hence governments will not allow the plea, although they
will not confess their true reasons for disallowing it.

The only reasons, (if they deserve the name of reasons), that I ever
knew given for the doctrine that ignorance of the law excuses no one,
are these:

   1. "The reason for the maxim is that of necessity. It prevails, 'not
   that all men know the law, but because it is an excuse which every
   man will make, and no man can tell how to confute him.'--_Selden_,
   (as quoted in the 2d edition of _Starkie on Slander_, Prelim. Disc.,
   p. 140, note.)"--_Law Magazine_, (_London_,) vol. 27, p. 97.

This reason impliedly admits that ignorance of the law is,
_intrinsically_, an ample and sufficient excuse for a crime; and that
the excuse ought to be allowed, if the fact of ignorance could but be
ascertained. But it asserts that this fact is incapable of being
ascertained, and that therefore there is a necessity for punishing the
ignorant and the knowing--that is, the innocent and the guilty--without
discrimination.

This reason is worthy of the doctrine it is used to uphold; as if a plea
of ignorance, any more than any other plea, must necessarily be believed
simply because it is urged; and as if it were not a common and every-day
practice of courts and juries, in both civil and criminal cases, to
determine the mental capacity of individuals; as, for example, to
determine whether they are of sufficient mental capacity to make
reasonable contracts; whether they are lunatic; whether they are
_compotes mentis_, "of sound mind and memory," &c. &c. And there is
obviously no more difficulty in a jury's determining whether an accused
person knew the law in a criminal case, than there is in determining any
of these other questions that are continually determined in regard to a
man's mental capacity. For the question to be settled by the jury is not
whether the accused person knew the particular _penalty_ attached to his
act, (for at common law no one knew what penalty a _jury_ would attach
to an offence,) but whether he knew that his act was _intrinsically
criminal_. If it were _intrinsically criminal_, it was criminal at
common law. If it was not intrinsically criminal, it was not criminal at
common law. (At least, such was the general principle of the common law.
There may have been exceptions in practice, owing to the fact that the
opinions of men, as to what was intrinsically criminal, may not have
been in all cases correct.)

A jury, then, in judging whether an accused person knew his act to be
illegal, were bound first to use their own judgments, as to whether the
act were _intrinsically_ criminal. If their own judgments told them the
act was _intrinsically_ and _clearly_ criminal, they would naturally and
reasonably infer that the accused also understood that it was
intrinsically criminal, (and consequently illegal,) unless it should
appear that he was either below themselves in the scale of intellect, or
had had less opportunities of knowing what acts were criminal. In
short, they would judge, from any and every means they might have of
judging; and if they had any reasonable doubt that he knew his act to be
criminal in itself, they would be bound to acquit him.

The second reason that has been offered for the doctrine that ignorance
of the law excuses no one, is this:

   "Ignorance of the municipal law of the kingdom, or of the penalty
   thereby inflicted on offenders, doth not excuse any that is of the
   age of discretion and compos mentis, from the penalty of the breach
   of it; because every person, of the age of discretion and compos
   mentis, _is bound to know the law_, and presumed to do so.
   _Ignorantia eorum, quæ quis scire tenetur non excusat_." (Ignorance
   of those things which every one is bound to know, does not
   excuse.)--_1 Hale's Pleas of the Crown_, 42. _Doctor and Student,
   Dialog. 2_, ch. 46. _Law Magazine_, (_London_,) vol. 27, p. 97.

The sum of this reason is, that ignorance of the law excuses no one,
(who is of the age of discretion and is compos mentis,) because every
such person "_is bound to know the law_." But this is giving no reason
at all for the doctrine, since saying that a man "is bound to know the
law," is only saying, _in another form_, that "ignorance of the law does
not excuse him." There is no difference at all in the two ideas. To say,
therefore, that "ignorance of the law excuses no one, _because_ every
one is bound to know the law," is only equivalent to saying that
"ignorance of the law excuses no one, _because_ ignorance of the law
excuses no one." It is merely reässerting the doctrine, without giving
any reason at all.

And yet these reasons, which are really no reasons at all, are the only
ones, so far as I know, that have ever been offered for this absurd and
brutal doctrine.

The idea suggested, that "the age of discretion" determines the guilt of
a person,--that there is a particular age, prior to which _all_ persons
alike should be held incapable of knowing _any_ crime, and subsequent to
which _all_ persons alike should be held capable of knowing _all_
crimes,--is another of this most ridiculous nest of ideas. All mankind
acquire their knowledge of crimes, as they do of other things,
_gradually_. Some they learn at an early age; others not till a later
one. One individual acquires a knowledge of crimes, as he does of
arithmetic, at an earlier age than others do. And to apply the same
presumption to all, on the ground of age alone, is not only gross
injustice, but gross folly. A universal presumption might, with nearly
or quite as much reason, be founded upon weight, or height, as upon
age.[103]

This doctrine, that "ignorance of the law excuses no one," is constantly
repeated in the form that "every one is bound to know the law." The
doctrine is true in civil matters, especially in contracts, so far as
this: that no man, who has the _ordinary_ capacity to make reasonable
contracts, can escape the consequences of his own agreement, on the
ground that he did not know the law applicable to it. When a man makes a
contract, he gives the other party rights; and he must of necessity
judge for himself, and take his own risk, as to what those rights
are,--otherwise the contract would not be binding, and men could not
make contracts that would convey rights to each other. Besides, the
capacity to make reasonable contracts, _implies and includes_ a
capacity to form a reasonable judgment as to the law applicable to them.
But in _criminal_ matters, where the question is one of punishment, or
not; where no second party has acquired any right to have the crime
punished, unless it were committed with criminal intent, (but only to
have it compensated for by damages in a civil suit;) and when the
criminal intent is the only moral justification for the punishment, the
principle does not apply, and a man is bound to know the law _only as
well as he reasonably may_. The criminal law requires neither
impossibilities nor extraordinaries of any one. It requires only
thoughtfulness and a good conscience. It requires only that a man fairly
and properly use the judgment he possesses, and the means he has of
learning his duty. It requires of him only the same care to know his
duty in regard to the law, that he is morally bound to use in other
matters of equal importance. _And this care it does require of him._ Any
ignorance of the law, therefore, that is unnecessary, or that arises
from indifference or disregard of one's duty, is no excuse. An accused
person, therefore, may be rightfully held responsible for such a
knowledge of the law as is common to men in general, having no greater
natural capacities than himself, and no greater opportunities for
learning the law. And he can rightfully be held to no greater knowledge
of the law than this. To hold him responsible for a greater knowledge of
the law than is common to mankind, when other things are equal, would be
gross injustice and cruelty. The mass of mankind can give but little of
their attention to acquiring a knowledge of the law. Their other duties
in life forbid it. Of course, they cannot investigate abstruse or
difficult questions. All that can rightfully be required of each of
them, then, is that he exercise such a candid and conscientious judgment
as it is common 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
contrary to the first principles of a free government (that is, a
government formed by voluntary association) to punish men in such cases,
because it would be absurd to suppose that any man would voluntarily
assist to establish or support a government that would punish himself
for acts which he himself did not know to be crimes. But a man may
reasonably unite with his fellow-men to maintain a government to punish
those acts which he himself considers criminal, and may reasonably
acquiesce in his own liability to be punished for such acts. As those
are the only grounds on which any one can be supposed to render any
voluntary support to a government, it follows that a government formed
by voluntary association, and of course having no powers except such as
_all_ the associates have consented that it may have, can have no power
to punish a man for acts which he did not himself know to be criminal.

The safety of society, which is the only object of the criminal law,
requires only that those acts _which are understood by mankind at large
to be intrinsically criminal_, should be punished as crimes. The
remaining few (if there are any) may safely be left to go unpunished.
Nor does the safety of society require that any individuals, other than
those who have sufficient mental capacity to understand that their acts
are criminal, should be criminally punished. All others may safely be
left to their liability, under the _civil_ law, to compensate for their
unintentional wrongs.

The only real object of this absurd and atrocious doctrine, that
"ignorance of the law (that is, of crime) excuses no one," and that
"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
consistent or inconsistent with their own rights and liberties; and thus
to reduce the people to the condition of mere slaves to a despotic
power, such as the people themselves would never have voluntarily
established, and the justice of whose laws the people themselves cannot
understand.

Under the true trial by jury all tyranny of this kind would be
abolished. A jury would not only judge what acts were really criminal,
but they would judge of the mental capacity of an accused person, and of
his opportunities for understanding 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.[104]

[Footnote 103: This presumption, founded upon age alone, is as absurd in
civil matters as in criminal. What can be more entirely ludicrous than
the idea that all men (not manifestly imbecile) become mentally
competent to make all contracts whatsoever on the day they become
twenty-one years of age?--and that, previous to that day, no man becomes
competent to make any contract whatever, except for the present supply
of the most obvious wants of nature? In reason, a man's _legal_
competency to make _binding_ contracts, in any and every case whatever,
depends wholly upon his _mental_ capacity to make _reasonable_ contracts
in each particular case. It of course requires more capacity to make a
reasonable contract in some cases than in others. It requires, for
example, more capacity to make a reasonable contract in the purchase of
a large estate, than in the purchase of a pair of shoes. But the mental
capacity to make a reasonable contract, in any particular case, is, in
reason, the only legal criterion of the legal competency to make a
binding contract in that case. The age, whether more or less than
twenty-one years, is of no legal consequence whatever, except that it is
entitled to some consideration as _evidence of capacity_.

It may be mentioned, in this connection, that the rules that prevail,
that every man is entitled to freedom from parental authority at
twenty-one years of age, and no one before that age, are of the same
class of absurdities with those that have been mentioned. The only
ground on which a parent is ever entitled to exercise authority over his
child, is that the child is incapable of taking reasonable care of
himself. The child would be entitled to his freedom from his birth, if
he were at that time capable of taking reasonable care of himself. Some
become capable of taking care of themselves at an earlier age than
others. And whenever any one becomes capable of taking reasonable care
of himself, and not until then, he is entitled to his freedom, be his
age more or less.

These principles would prevail under the true trial by jury, the jury
being the judges of the capacity of every individual whose capacity
should be called in question.]

[Footnote 104: In contrast to the doctrines of the text, it may be
proper to present more distinctly the doctrines that are maintained by
judges, and that prevail in courts of justice.

Of course, no judge, either of the present day, or perhaps within the
last five hundred years, has admitted the right of a jury to judge of
the _justice_ of a law, or to hold any law invalid for its injustice.
Every judge asserts the power of the government to punish for acts that
are intrinsically innocent, and which therefore involve or evince no
criminal intent. To accommodate the administration of law to this
principle, all judges, so far as I am aware, hold it to be unnecessary
that an indictment should charge, or that a jury should find, that an
act was done with a criminal intent, except in those cases where the act
is _malum in se_,--criminal in itself. In all other cases, so far as I
am aware, they hold it sufficient that the indictment charge, and
consequently that the jury find, simply that the act was done "contrary
to the form of the statute in such case made and provided;" in other
words, contrary to the orders of the government.

All these doctrines prevail universally among judges, and are, I think,
uniformly practised upon in courts of justice; and they plainly involve
the most absolute despotism on the part of the government.

But there is still another doctrine that extensively, and perhaps most
generally, prevails in practice, although judges are not agreed in
regard to its soundness. It is this: that it is not even necessary that
the jury should see or know, _for themselves_, what the law _is_ that is
charged to have been violated; nor to see or know, _for themselves_,
that the act charged was in violation of any law whatever;--but that it
is sufficient that they be simply _told by the judge_ that any act
whatever, charged in an indictment, is in violation of law, and that
they are then bound blindly to receive the declaration as true, and
convict a man accordingly, if they find that he has done the act
charged.

This doctrine is adopted by many among the most eminent judges, and the
reasons for it are thus given by Lord Mansfield:

   "They (the jury) do not know, and are not presumed to know, the law.
   They are not sworn to decide the law;[105] they are not required to
   do it.... The jury ought not to assume the jurisdiction of law. They
   do not know, and are not presumed to know, anything of the matter.
   They do not understand the language in which it is conceived, or the
   meaning of the terms. They have no rule to go by but their passions
   and wishes."--_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 the slaves of a despotic power, whose arbitrary
commands even they are not supposed competent to understand, but for the
transgression of which they are nevertheless to be punished as
criminals?

This is plainly the sum of the doctrine, because the jury are the peers
(equals) of the accused, and are therefore supposed to know the law as
well as he does, and as well as it is known by the people at large. If
_they_ (the jury) are not presumed to know the law, neither the accused
nor the people at large can be presumed to know it. Hence, it follows
that one principle of the _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.]

[Footnote 105: 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.]




CHAPTER X.

MORAL CONSIDERATIONS FOR JURORS.


The trial by jury must, if possible, be construed to be such that a man
can rightfully sit in a jury, and unite with his fellows in giving
judgment. But no man can rightfully do this, unless he hold in his own
hand alone a veto upon any judgment or sentence whatever to be rendered
by the jury against a defendant, which veto he must be permitted to use
according to his own discretion and conscience, and not bound to use
according to the dictation of either legislatures or judges.

The prevalent idea, that a juror may, at the mere dictation of a
legislature or a judge, and without the concurrence of his own
conscience or understanding, declare a man "_guilty_," and thus in
effect license the government to punish him; and that the legislature or
the judge, and not himself, has in that case all the moral
responsibility for the correctness of the principles on which the
judgment was rendered, is one of the many gross impostures by which it
could hardly have been supposed that any sane man could ever have been
deluded, but which governments have nevertheless succeeded in inducing
the people at large to receive and act upon.

As a moral proposition, it is perfectly self-evident that, unless juries
have all the legal rights that have been claimed for them in the
preceding chapters,--that is, the rights of judging what the law is,
whether the law be a just one, what evidence is admissible, what weight
the evidence is entitled to, whether an act were done with a criminal
intent, and the right also to _limit_ the sentence, free of all
dictation from any quarter,--they have no _moral_ right to sit in the
trial at all, and cannot do so without making themselves accomplices in
any injustice that they may have reason to believe may result from
their verdict. It is absurd to say that they have no moral
responsibility for the use that may be made of their verdict by the
government, when they have reason to suppose it will be used for
purposes of injustice.

It is, for instance, manifestly absurd to say that jurors have no moral
responsibility for the enforcement of an unjust law, when they consent
to render a verdict of _guilty_ for the transgression of it; which
verdict they know, or have good reason to believe, will be used by the
government as a justification for inflicting a penalty.

It is absurd, also, to say that jurors have no moral responsibility for
a punishment 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 responsibility for
the conviction and punishment of an innocent man, when they consent to
render a verdict against him on the strength of evidence, or laws of
evidence, dictated to them by the court, if any evidence or laws of
evidence have been excluded, which _they_ (the jurors) think ought to
have been admitted in his defence.

It is absurd to say that jurors have no moral responsibility for
rendering a verdict of "_guilty_" against a man, for an act which he did
not know to be a crime, and in the commission of which, therefore, he
could have had no criminal intent, in obedience to the instructions of
courts that "ignorance of the law (that is, of crime) excuses no one."

It is absurd, also, to say that jurors have no moral responsibility for
any cruel or unreasonable _sentence_ that may be inflicted even upon a
_guilty_ man, when they consent to render a verdict which they have
reason to believe will be used by the government as a justification for
the infliction of such sentence.

The consequence is, that jurors must have the whole case in their hands,
and judge of law, evidence, and sentence, or they incur the moral
responsibility of accomplices in any injustice which they have reason to
believe will be done by the government on the authority of their
verdict.

The same principles apply to civil cases as to criminal. If a jury
consent, at the dictation of the court, as to either law or evidence, to
render a verdict, on the strength of which they have reason to believe
that a man's property will be taken from him and given to another,
against their own notions of justice, they make themselves morally
responsible for the wrong.

Every man, therefore, ought to refuse to sit in a jury, and to take the
oath of a juror, unless the form of the oath be such as to allow him to
use his own judgment, on every part of the case, free of all dictation
whatsoever, and to hold in his own hand a veto upon any verdict that can
be rendered against a defendant, and any sentence that can be inflicted
upon him, even if he be guilty.

Of course, no man can rightfully take an oath as juror, to try a case
"according to law," (if by law be meant anything other than his own
ideas of justice,) nor "according to the law and the evidence, _as they
shall be given him_." Nor can he rightfully take an oath even to try a
case "_according to the evidence_," because in all cases he may have
good reason to believe that a party has been unable to produce all the
evidence legitimately entitled to be received. The only oath which it
would seem that a man can rightfully take as juror, in either a civil or
criminal case, is, that he "will try the case _according to his
conscience_." Of course, the form may admit of variation, but this
should be the substance. Such, we have seen, were the ancient common law
oaths.




CHAPTER XI.

AUTHORITY OF MAGNA CARTA.


Probably no political compact between king and people was ever entered
into in a manner to settle more authoritatively the fundamental law of a
nation, than was Magna Carta. Probably no people were ever more united
and resolute in demanding from their king a definite and unambiguous
acknowledgment of their rights and liberties, than were the English at
that time. Probably no king was ever more completely stripped of all
power to maintain his throne, and at the same time resist the demands of
his people, than was John on the 15th day of June, 1215. Probably no
king ever consented, more deliberately or explicitly, to hold his throne
subject to specific and enumerated limitations upon his power, than did
John when he put his seal to the Great Charter of the Liberties of
England. And if any political compact between king and people was ever
valid to settle the liberties of the people, or to limit the power of
the crown, that compact is now to be found in Magna Carta. If,
therefore, the constitutional authority of Magna Carta had rested solely
upon the compact of John with his people, that authority would have been
entitled to stand forever as the supreme law of the land, unless revoked
by the will of the people themselves.

But the authority of Magna Carta does not rest alone upon the compact
with _John_. When, in the next year, (1216,) his son, Henry III., came
to the throne, the charter was ratified by him, and again in 1217, and
again in 1225, in substantially the same form, and especially without
allowing any new powers, legislative, judicial, or executive, to the
king or his judges, and without detracting in the least from the powers
of the jury. And from the latter date to this, the charter has remained
unchanged.

In the course of two hundred years the charter was confirmed by Henry
and his successors more than thirty times. And although they were guilty
of numerous and almost continual breaches of it, and were constantly
seeking to evade it, yet such were the spirit, vigilance and courage of
the nation, that the kings held their thrones only on the condition of
their renewed and solemn promises of observance. And it was not until
1429, (as will be more fully shown hereafter,) when a truce between
themselves, and a formal combination against the mass of the people, had
been entered into, by the king, the nobility, and the "_forty shilling
freeholders_," (a class whom Mackintosh designates as "_a few
freeholders then accounted wealthy_,"[106]) by the exclusion of all
others than such freeholders from all voice in the election of knights
to represent the counties in the House of Commons, that a repetition of
these confirmations of Magna Carta ceased to be demanded and
obtained.[107]

The terms and the formalities of some of these "confirmations" make them
worthy of insertion at length.

Hume thus describes one which took place in the 38th year of Henry III.
(1253):

   "But as they (the barons) had experienced his (the king's) frequent
   breach of promise, they required that he should ratify the Great
   Charter in a manner still more authentic and solemn than any which he
   had hitherto employed. All the prelates and abbots were assembled.
   They held burning tapers in their hands. The Great Charter was read
   before them. They denounced the sentence of excommunication against
   every one who should thenceforth violate that fundamental law. They
   threw their tapers on the ground, and exclaimed, _May the soul of
   every one who incurs this sentence so stink and corrupt in hell!_ The
   king bore a part in this ceremony, and subjoined, 'So help me God! I
   will keep all these articles inviolate, as I am a man, as I am a
   Christian, as I am a knight, and as I am a king crowned and
   anointed.'"--_Hume_, ch. 12. See also _Blackstone's Introd. to the
   Charters. Black. Law Tracts_, Oxford ed., p. 332. _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 excommunication" referred
to by Hume:

   "_The Sentence of Curse, Given by the Bishops, against the Breakers
   of the Charters._

   "The year of our Lord a thousand two hundred and fifty-three, the
   third day of May, in the great Hall of the King at Westminster, _in
   the presence, and by the assent, of the Lord Henry, by the Grace of
   God King of England_, and the Lords Richard, Earl of Cornwall, his
   brother, Roger (Bigot) Earl of Norfolk and Suffolk, marshal of
   England, Humphrey, Earl of Hereford, Henry, Earl of Oxford, John,
   Earl of Warwick, and other estates of the Realm of England: We,
   Boniface, by the mercy of God Archbishop of Canterbury, Primate of
   all England, F. of London, H. of Ely, S. of Worcester, 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 Pontificals, with tapers burning,
   against the breakers of the Church's Liberties, and of the Liberties
   or free customs of the Realm of England, and especially of those
   which are contained in the Charter of the Common Liberties of the
   Realm, and the Charter of the Forest, have solemnly denounced the
   sentence of Excommunication in this form. By the authority of
   Almighty God, the Father, the Son, and the Holy Ghost, and of the
   glorious Mother of God, and perpetual Virgin Mary, of the blessed
   Apostles Peter and Paul, and of all apostles, of the blessed Thomas,
   Archbishop and Martyr, and of all martyrs, of blessed Edward of
   England, and of all Confessors and virgins, and of all the saints of
   heaven: We excommunicate, accurse, and from the thresholds
   (liminibus) of our Holy Mother the Church, We sequester, all those
   that hereafter willingly and maliciously deprive or spoil the Church
   of her right: And all those that by any craft or wiliness do violate,
   break, diminish, or change the Church's Liberties, or the ancient
   approved customs of the Realm, and especially the Liberties and free
   Customs contained in the Charters of the Common Liberties, and of the
   Forest, conceded by our Lord the King, to Archbishops, Bishops, and
   other Prelates of England; and likewise to the Earls, Barons,
   Knights, and other Freeholders of the Realm: And all that secretly,
   or openly, by deed, word, or counsel, _do make statutes, or observe
   them being made_, and that bring in Customs, or keep them when they
   be brought in, against the said Liberties, or any of them, the
   Writers and Counsellors of said statutes, and the Executors of them,
   and all those that shall presume to judge according to them. All and
   every which persons before mentioned, that wittingly shall commit
   anything of the premises, let them well know that they incur the
   aforesaid sentence, _ipso facto_, (i.e., upon the deed being done.)
   And those that ignorantly do so, and be admonished, except they
   reform themselves within fifteen days after the time of the
   admonition, and make full satisfaction for that they have done, at
   the will of the ordinary, shall be from that time forth included in
   the same sentence. And with the same sentence we burden all those
   that presume to perturb the peace of our sovereign Lord the King, and
   of the Realm. To the perpetual memory of which thing, We, the
   aforesaid Prelates, have put our seals to these presents."--_Statutes
   of the Realm_, vol. 1, p. 6. _Ruffhead's Statutes_, vol. 1, p. 20.

One of the Confirmations of the Charters, by Edward I., was by statute,
in the 25th year of his reign, (1297,) in the following terms. The
statute is usually entitled "_Confirmatio Cartarum_," (Confirmation of
the Charters.)

   _Ch. 1._ "Edward, by the Grace of God, King of England, Lord of
   Ireland, and Duke of Guyan, To all those that these presents shall
   hear or see, Greeting. Know ye, that We, to the honor of God, and of
   Holy Church, and to the profit of our Realm, have granted, for us and
   our heirs, that the Charter of Liberties, and the Charter of the
   Forest, which were made by common assent of all the Realm, in the
   time of King Henry our Father, shall be kept in every point without
   breach. And we will that the same Charters shall be sent under our
   seal, as well to our justices of the Forest, as to others, and to all
   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 Charters to be
   published, and to declare to the people that We have confirmed them
   at all points; and to our Justices, Sheriffs, Mayors, and other
   ministers, which under us have the Laws of our Land to guide, that
   they allow the same Charters, in all their points, in pleas before
   them, and in judgment; that is, to wit, the Great Charter as the
   Common Law, and the Charter of the Forest for the wealth of our
   Realm.

   _Ch. 2._ "And we will that if any judgment be given from henceforth
   contrary to the points of the charters aforesaid by the justices, or
   by any others our ministers that hold plea before them, against the
   points of the Charters, it shall be undone and holden for naught.

   _Ch. 3._ "And we will, that the same Charters shall be sent, under
   our seal, to Cathedral Churches throughout our 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 pronounce the
   sentence of excommunication against all those that by word, deed, or
   counsel, do contrary to the foresaid charters, or that in any point
   break or undo them. And that the said Curses be twice a year
   denounced and published by the prelates aforesaid. And if the same
   prelates, or any of them, be remiss in the denunciation of the said
   sentences, the Archbishops of Canterbury and York, for the time
   being, shall compel and distrain them to make the denunciation in the
   form aforesaid."--_St. 25 Edward I._, (1297.) _Statutes of the
   Realm_, vol. 1, p. 123.

It is unnecessary to repeat the terms of the various confirmations, most
of which were less formal than those that have been given, though of
course equally authoritative. Most of them are brief, and in the form of
a simple statute, or promise, to the effect that "The Great Charter, and
the Charter of the Forest, shall be firmly kept and maintained in all
points." They are to be found printed with the other statutes of the
realm. One of them, after having "again granted, renewed and confirmed"
the charters, requires as follows:

   "That the Charters be delivered to every sheriff of England under the
   king's seal, to be read four times in the year before the people in
   the full county," (that is, at the county court,) "that is, to wit,
   the next county (court) after the feast of Saint Michael, and the
   next county (court) after Christmas, and at the next county (court)
   after Easter, and at the next county (court) after the feast of Saint
   John."--_28 Edward I._, ch. 1, (1300.)

   Lingard says, "The Charter was ratified four times by Henry III.,
   twice by Edward I., fifteen times by Edward III., seven times by
   Richard II., six times by Henry IV., and once by Henry V.;" making
   thirty-five times in all.--_3 Lingard_, 50, note, Philad. ed.

Coke says Magna Carta was confirmed thirty-two times.--Preface_ to_ 2
_Inst_., p. 6.

   Lingard calls these "thirty-five successive ratifications" of the
   charter, "a sufficient proof how much its provisions were abhorred
   by the sovereign, and how highly they were prized by the nation."--_3
   Lingard_, 50.

   Mackintosh says, "For almost five centuries (that is, until 1688) it
   (Magna Carta) was appealed to as the decisive authority on behalf of
   the people, though commonly so far only as the necessities of each
   case demanded."--_Mackintosh's Hist. of Eng._ ch. 3. _45 Lardner's
   Cab. Cyc._, 221.

Coke, who has labored so hard to overthrow the most vital principles of
Magna Carta, and who, therefore, ought to be considered good authority
when he speaks in its favor,[108] says:

   "It is called Magna Carta, not that it is great in quantity, for
   there be many voluminous charters commonly passed, specially in these
   later times, longer than this is; nor comparatively in respect that
   it is greater than _Charta de Foresta_, but in respect of the great
   importance and weightiness of the matter, as hereafter shall appear;
   and likewise for the same cause _Charta de Foresta_; and both of them
   are called _Magnæ Chartæ Libertatum Angliæ_, (The Great Charters of
   the Liberties of England.) ...

   "And it is also called _Charta Libertatum regni_, (Charter of the
   Liberties of the kingdom;) and upon great reason it is so called of
   the effect, _quia liberos facit_, (because it makes men free.)
   Sometime for the same cause (it is called) _communis libertas_,
   (common liberty,) and _le chartre des franchises_, (the charter of
   franchises.) ...

   "It was for the most part declaratory of the principal grounds of the
   fundamental laws of England, and for the residue it is additional to
   supply some defects of the common law....

   "Also, by the said act of 25 Edward I., (called _Confirmatio
   Chartarum_,) it is adjudged in parliament that the Great Charter and
   the Charter of the Forest shall be taken as the common law....

   "They (Magna Carta and Carta de Foresta) were, for the most part, but
   declarations of the ancient common laws of England, to the
   observation and keeping whereof, the king was bound and sworn.

   "After the making of Magna Charta, and Charta de Foresta, divers
   learned men in the laws, that I may use the words of the record, kept
   schools of the law in the city of London, and taught such as resorted
   to them the laws of the realm, taking their foundation of Magna
   Charta and Charta de Foresta.

   "And the said two charters have been confirmed, established, and
   commanded to be put in execution by thirty-two several acts of
   parliament in all.

   "This appeareth partly by that which hath been said, for that it hath
   so often been confirmed by the wise providence of so many acts of
   parliament.

   "And albeit judgments in the king's courts are of high regard in law,
   and _judicia_ (judgments) are accounted as _jurisdicta_, (the speech
   of the law itself,) yet it is provided by act of parliament, that if
   any judgment be given contrary to any of the points of the Great
   Charter and Charta de Foresta, by the justices, or by any other of
   the king's ministers, &c., it shall be undone, and holden for naught.

   "And that both the said charters shall be sent under the great seal
   to all cathedral churches throughout the realm, there to remain, and
   shall be read to the people twice every year.

   "The highest and most binding laws are the statutes which are
   established by parliament; and by authority of that highest court it
   is enacted (only to show their tender care of Magna Carta and Carta
   de Foresta) that if any statute be made contrary to the Great
   Charter, or the Charter of the Forest, that shall be holden for none;
   by which words all former statutes made against either of those
   charters are now repealed; and the nobles and great officers were to
   be sworn to the observation of Magna Charta and Charta de Foresta.

   "_Magna fuit quondam magnæ reverentia chartæ._" (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.[109]

To give all the evidence of the authority of Magna Carta, it would be
necessary to give the constitutional history of England since the year
1215. This history would show that Magna Carta, although continually
violated and evaded, was still acknowledged as law by the government,
and was held up by the people as the great standard and proof of their
rights and liberties. It would show also that the judicial tribunals,
_whenever it suited their purposes to do so_, were in the habit of
referring to Magna Carta as authority, in the same manner, and with the
same real or pretended veneration, with which American courts now refer
to the constitution of the United States, or the constitutions of the
states. And, what is equally to the point, it would show that these same
tribunals, the mere tools of kings and parliaments, would resort to the
same artifices of assumption, _precedent_, construction, and false
interpretation, to evade the requirements of Magna Carta, and to
emasculate it of all its power for the preservation of liberty, that are
resorted to by American courts to accomplish the same work on our
American constitutions.

I take it for granted, therefore, that if the authority of Magna Carta
had rested simply upon its character as a _compact_ between the king and
the people, it would have been forever binding upon the king, (that is,
upon the government, for the king was the government,) in his
legislative, judicial, and executive character; and that there was no
_constitutional_ possibility of his escaping from its restraints, unless
the people themselves should freely discharge him from them.

But the authority of Magna Carta does not rest, either wholly or mainly,
upon its character as a compact. For centuries before the charter was
granted, its main principles constituted "the Law of the Land,"--the
fundamental and constitutional law of the realm, which the kings were
sworn to maintain. And the principal benefit of the charter was, that it
contained a _written_ description and acknowledgment, by the king
himself, of what the constitutional law of the kingdom was, which his
coronation oath bound him to observe. Previous to Magna Carta, this
constitutional law rested mainly in precedents, customs, and the
memories of the people. And if the king could but make one innovation
upon this law, without arousing resistance, and being compelled to
retreat from his usurpation, he would cite that innovation as a
precedent for another act of the same kind; next, assert a custom; and,
finally, raise a controversy as to what the Law of the Land really was.
The great object of the barons and people, in demanding from the king a
written description and acknowledgment of the Law of the Land, was to
put an end to all disputes of this kind, and to put it out of the power
of the king to plead any misunderstanding of the constitutional law of
the kingdom. And the charter, no doubt, accomplished very much in this
way. After Magna Carta, it required much more audacity, cunning, or
strength, on the part of the king, than it had before, to invade the
people's liberties with impunity. Still, Magna Carta, like all other
written constitutions, proved inadequate to the full accomplishment of
its purpose; for when did a parchment ever have power adequately to
restrain a government, that had either cunning to evade its
requirements, or strength to overcome those who attempted its defence?
The work of usurpation, therefore, though seriously checked, still went
on, to a great extent, after Magna Carta. Innovations upon the Law of
the Land are still made by the government. One innovation was cited as a
precedent; precedents made customs; and customs became laws, so far as
practice was concerned; until the government, composed of the king, the
high functionaries of the church, the nobility, a House of Commons
representing the "forty shilling freeholders," and a dependent and
servile judiciary, all acting in conspiracy against the mass of the
people, became practically absolute, as it is at this day.

As proof that Magna Carta embraced little else than what was previously
recognized as the common law, or Law of the Land, I repeat some
authorities that have been already cited.

   Crabbe says, "It is admitted on all hands that it (Magna Carta)
   contains nothing but what was confirmatory of the common law and the
   ancient usages of the realm; and is, properly speaking, only an
   enlargement of the charter of Henry I. and his
   successors."--_Crabbe's Hist. of the Eng. Law_, p. 127.

   Blackstone says, "It is agreed by all our historians that the Great
   Charter of King John was, for the most part, compiled from the
   ancient customs of the realm, or the laws of Edward the Confessor; by
   which they mean the old common law which was established under our
   Saxon princes."--_Blackstone's Introd. to the Charters._ See
   _Blackstone's Law Tracts_, Oxford ed., p. 289.

   Coke says, "The common law is the most general and ancient law of
   the realm.... The common law appeareth in the statute of _Magna
   Carta_, and other ancient statutes, (which for the most part are
   affirmations of the common law,) in the original writs, in judicial
   records, and in our books of terms and years."--_1 Inst._, 115 b.

   Coke also says, "It (Magna Carta) was for the most part declaratory
   of the principal grounds of the fundamental laws of England, and for
   the residue it was additional to supply some defects of the common
   law.... They (Magna Carta and Carta de Foresta) were, for the most
   part, but declarations of the ancient common laws of England, _to the
   observation and keeping whereof the king was bound and
   sworn_."--_Preface to 2 Inst._, p. 3 and 5.

   Hume says, "We may now, from the tenor of this charter, (Magna
   Carta,) conjecture what those laws were of King Edward, (the
   Confessor,) which the English nation during so many generations still
   desired, with such an obstinate perseverance, to have recalled and
   established. They were chiefly these latter articles of Magna Carta;
   and the barons who, at the beginning of these commotions, demanded
   the revival of the Saxon laws, undoubtedly thought that they had
   sufficiently satisfied the people, by procuring them this concession,
   which comprehended the principal objects to which they had so long
   aspired."--_Hume_, ch. 11.

Edward the First confessed that the Great Charter was substantially
identical with the common law, as far as it went, when he commanded his
justices to allow "the Great Charter as the Common Law," "in pleas
before them, and in judgment," as has been already cited in this
chapter.--_25 Edward_ I., ch. 1, (1297.)

In conclusion of this chapter, it may be safely asserted that the
veneration, attachment, and pride, which the English nation, for more
than six centuries, have felt towards Magna Carta, are in their nature
among the most irrefragable of all proofs that it was the fundamental
law of the land, and constitutionally binding upon the government; for,
otherwise, it would have been, in their eyes, an unimportant and
worthless thing. What those sentiments were I will use the words of
others to describe,--the words, too, of men, who, like all modern
authors who have written on the same topic, had utterly inadequate ideas
of the true character of the instrument on which they lavished their
eulogiums.

Hume, speaking of the Great Charter and the Charter of the Forest, as
they were confirmed by Henry III., in 1217, says:

   "Thus these famous charters were brought nearly to the shape in which
   they have ever since stood; and they were, during many generations,
   the peculiar favorites of the English nation, and esteemed the most
   sacred rampart to national liberty and independence. As they secured
   the rights of all orders of men, they were anxiously defended by all,
   and became the basis, in a manner, of the English monarchy, and a
   kind of original contract, which both limited the authority of the
   king and ensured the conditional allegiance of his subjects. Though
   often violated, they were still claimed by the nobility and people;
   and, as no precedents were supposed valid that infringed them, they
   rather acquired than lost authority, from the frequent attempts made
   against them in several ages, by regal and arbitrary power."--_Hume_,
   ch. 12.

   Mackintosh says, "It was understood by the simplest of the unlettered
   age for whom it was intended. It was remembered by them.... For
   almost five centuries it was appealed to as the decisive authority on
   behalf of the people.... To have produced it, to have preserved it,
   to have matured it, constitute the immortal claim of England on the
   esteem of mankind. Her Bacons 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 inferior value when
   compared with the subjection of men and their rulers to the
   principles of justice; if, indeed, it be not more true that these
   mighty spirits could not have been formed except under equal laws,
   nor roused to full activity without the influence of that spirit
   which the Great Charter breathed over their
   forefathers."--_Mackintosh's Hist. of Eng._, ch. 3.[110]

Of the Great Charter, the trial by jury is the vital part, and the only
part that places the liberties of the people in their own keeping. Of
this Blackstone says:

   "The trial by jury, or the country, _per patriam_, is also that trial
   by the peers of every Englishman, which, as the grand bulwark of his
   liberties, is secured to him by the Great Charter; _nullus liber homo
   capiatur, vel imprisonetur, aut exuletur, aut aliquo modo destruatur,
   nisi per legale judicium parium suorum, vel per legem terrae...._

   The liberties of England cannot but subsist so long as this palladium
   remains sacred and inviolate, not only from all open attacks, which
   none will be so hardy as to make, but also from all secret
   machinations which may sap and undermine it."[111]

   "The trial by jury ever has been, and I trust ever will be, looked
   upon as the glory of the English law.... It is the most transcendent
   privilege which any subject can enjoy or wish for, that he cannot be
   affected in his property, his liberty, or his person, but by the
   unanimous consent of twelve of his neighbors and equals."[112]

   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."[113]

An old book, called "English Liberties," says:

   "English Parliaments have all along been most zealous for preserving
   this great Jewel of Liberty, trials by juries having no less than
   fifty-eight several times, since the Norman Conquest, been
   established and confirmed by the legislative power, no one privilege
   besides having been ever so often remembered in parliament."[114]

[Footnote 106: _Mackintosh's Hist. of Eng._, ch. 3. _45 Lardner's Cab.
Cyc._, 354.]

[Footnote 107: "_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_.]

[Footnote 108: He probably speaks in its favor only to blind the eyes of
the people to the frauds he has attempted upon its true meaning.]

[Footnote 109: It will be noticed that Coke calls these confirmations of
the charter "acts of parliament," instead of acts of the king alone.
This needs explanation.

It was one of Coke's ridiculous pretences, that laws anciently enacted
by the king, at the request, or with the consent, or by the advice, of
his parliament, was "an act of parliament," instead of the act of the
king. And in the extracts cited, he carries this idea so far as to
pretend that the various confirmations of the Great Charter were "acts
of parliament," instead of the acts of the kings. He might as well have
pretended that the original grant of the Charter was an "act of
parliament;" because it was not only granted at the request, and with
the consent, and by the advice, but on the compulsion even, of those who
commonly constituted his parliaments. Yet this did not make the grant of
the charter "an act of parliament." It was simply an act of the king.

The object of Coke, in this pretence, was to furnish some color for the
palpable falsehood that the legislative authority, which parliament was
trying to assume in his own day, and which it finally succeeded in
obtaining, had a precedent in the ancient constitution of the kingdom.

There would be as much reason in saying that, because the ancient kings
were in the habit of passing laws in special answer to the _petitions_
of their subjects, therefore those _petitioners_ were a part of the
legislative power of the kingdom.

One great objection to this argument of Coke, for the legislative
authority of the ancient parliaments, is that a very large--probably
much the larger--number of legislative acts were done _without_ the
advice, consent, request, or even presence, of a parliament. Not only
were many formal statutes passed without any mention of the consent or
advice of parliament, but a simple order of the king in council, or a
simple proclamation, writ, or letter under seal, issued by his command,
had the same force as what Coke calls "an act of parliament." And this
practice continued, to a considerable extent at least, down to Coke's
own time.

The kings were always in the habit of consulting their parliaments, more
or less, in regard to matters of legislation,--not because their consent
was constitutionally necessary, but in order to make influence in favor
of their laws, and thus induce the people to observe them, and the
juries to enforce them.

The general duties of the ancient parliaments were not legislative, but
judicial, as will be shown more fully hereafter. The _people_ were not
represented in the parliaments at the time of Magna Carta, but only the
archbishops, bishops, earls, barons, and knights; so that little or
nothing would have been gained for liberty by Coke's idea that
parliament had a legislative power. He would only have substituted an
aristocracy for a king. Even after the Commons were represented in
parliament, they for some centuries appeared only as _petitioners_,
except in the matter of taxation, when their _consent_ was asked. And
almost the only source of their influence on legislation was this: that
they would sometimes refuse their consent to the taxation, unless the
king would pass such laws as they petitioned for; or, as would seem to
have been much more frequently the case, unless he would abolish such
laws and practices as they remonstrated against.

The _influence_ or power of parliament, and especially of the Commons,
in the general legislation of the country, was a thing of slow growth,
having its origin in a device of the king to get money contrary to law,
(as will be seen in the next volume,) and not at all a part of the
constitution of the kingdom, nor having its foundation in the consent of
the people. The power, _as at present exercised_, was not fully
established until 1688, (near five hundred years after Magna Carta,)
when the House of Commons (falsely so called) had acquired such
influence as the representative, _not of the people, but of the wealth,
of the nation_, that they compelled the king to discard the oath fixed
by the constitution of the kingdom; (which oath has been already given
in a former chapter,(page 101) and was, in substance, to preserve and
execute the Common Law, the Law of the Land,--or, in the words of the
oath, "_the just laws and customs which the common people had chosen_;")
and to swear that he would "govern the people of this kingdom of
England, and the dominions thereto belonging, _according to the statutes
in parliament agreed on_, and the laws and customs of the same."[115]

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_,"[116] he
was perhaps honest in holding that it was safer to trust this terrific
power in the hands of parliament, than in the hands of the king. His
error consisted in holding that either the king or parliament had any
such power, or that they had any power at all to pass laws that should
be binding upon a jury.

These declarations of Coke, that the charter was confirmed by thirty-two
"acts of parliament," have a mischievous bearing in another respect.
They tend to weaken the authority of the charter, by conveying the
impression that the charter itself might be _abolished_ by "act of
parliament." Coke himself admits that it could not be revoked or
rescinded by the _king_; for he says, "All pretence of prerogative
against Magna Carta is taken away." (_2 Inst._, 36.)

He knew perfectly well, and the whole English nation knew, that the
_king_ could not lawfully infringe Magna Carta. Magna Carta, therefore,
made it impossible that absolute power could ever be practically
established in England, _in the hands of the king_. Hence, as Coke was
an advocate for absolute power,--that is, for a legislative power "so
transcendent and absolute as (that) it cannot be confined, either for
causes or persons, within any bounds,"--there was no alternative for him
but to vest this absolute power in parliament. Had he not vested it in
parliament, he would have been obliged to abjure it altogether, and to
confess that the people, _through their juries_, had the right to judge
of the obligation of all legislation whatsoever; in other words, that
they had the right to confine the government within the limits of "those
just laws and customs which the common people (acting as jurors) had
chosen." True to his instincts, as a judge, and as a tyrant, he assumed
that this absolute power was vested in the hands of parliament.

But the truth was that, as by the English constitution parliament had no
authority at all for _general_ legislation, it could no more confirm,
than it could abolish, Magna Carta.

These thirty-two confirmations of Magna Carta, which Coke speaks of as
"acts of parliament," were merely acts of the king. The parliaments,
indeed, by refusing to grant him money, except on that condition, and
otherwise, had contributed to oblige him to make the confirmations; just
as they had helped to oblige him by arms to grant the charter in the
first place. But the confirmations themselves were nevertheless
constitutionally, as well as formally, the acts of the king alone.]

[Footnote 110: Under the head of "_John._"]

[Footnote 111: _4 Blackstone_, 349-50.]

[Footnote 112: _3 Blackstone_, 379.]

[Footnote 113: _Hume_, ch. 2.]

[Footnote 114: Page 203, 5th edition, 1721.]

[Footnote 115: St. 1 _William and Mary_, ch. 6, (1688.)]

[Footnote 116: 4 _Inst._, 36.]




CHAPTER XII.

LIMITATIONS IMPOSED UPON THE MAJORITY BY THE TRIAL BY JURY.


The principal objection, that will be made to the doctrine of this
essay, is, that under it, a jury would paralyze the power of the
majority, and veto all legislation that was not in accordance with the
will of the whole, or nearly the whole, people.

The answer to this objection is, that the limitation, which would be
thus imposed upon the legislative power, (whether that power be vested
in the majority, or minority, of the people,) is the crowning merit of
the trial by jury. It has other merits; but, though important in
themselves, they are utterly insignificant and worthless in comparison
with this.

It is this power of vetoing all partial and oppressive legislation, and
of restricting the government to the maintenance of such laws as the
_whole_, or substantially the whole, people _are agreed in_, that makes
the trial by jury "the palladium of liberty." Without this power it
would never have deserved that name.

The will, or the pretended will, of the majority, is the last lurking
place of tyranny at the present day. The dogma, that certain individuals
and families have a divine appointment to govern the rest of mankind, is
fast giving place to the one that the larger number have a right to
govern the smaller; a dogma, which may, or may not, be less oppressive
in its practical operation, but which certainly is no less false or
tyrannical in principle, than the one it is so rapidly supplanting.
Obviously there is nothing in the nature of majorities, that insures
justice at their hands. They have the same passions as minorities, and
they have no qualities whatever that should be expected to prevent them
from practising the same tyranny as minorities, if they think it will
be for their interest to do so.

There is no particle of truth in the notion that the majority have a
_right_ to rule, or to exercise arbitrary power over, the minority,
simply because the former are more numerous than the latter. Two men
have no more natural right to rule one, than one has to rule two. Any
single man, or any body of men, many or few, have a natural right to
maintain justice for themselves, and for any others who may need their
assistance, against the injustice of any and all other men, without
regard to their numbers; and majorities have no right to do any more
than this. The relative numbers of the opposing parties have nothing to
do with the question of right. And no more tyrannical principle was ever
avowed, than that the will of the majority ought to have the force of
law, without regard to its justice; or, what is the same thing, that the
will of the majority ought always to be presumed to be in accordance
with justice. Such a doctrine is only another form of the doctrine that
might makes right.

When _two_ men meet _one_ upon the highway, or in the wilderness, have
they a right to dispose of his life, liberty, or property at their
pleasure, simply because they are the more numerous party? Or is he
bound to submit to lose his life, liberty, or property, if they demand
it, merely because he is the less numerous party? Or, because they are
more numerous than he, is he bound to presume that they are governed
only by superior wisdom, and the principles of justice, and by no
selfish passion that can lead them to do him a wrong? Yet this is the
principle, which it is claimed should govern men in all their civil
relations to each other. Mankind fall in company with each other on the
highway or in the wilderness of life, and it is claimed that the more
numerous party, simply by virtue of their superior numbers, have the
right arbitrarily to dispose of the life, liberty, and property of the
minority; and that the minority are bound, by reason of their inferior
numbers, to practise abject submission, and consent to hold their
natural rights,--any, all, or none, as the case may be,--at the mere
will and pleasure of the majority; as if all a man's natural rights
expired, or were suspended by the operation of a paramount law, the
moment he came into the presence of superior numbers.

If such be the true nature of the relations men hold to each other in
this world, it puts an end to all such things as crimes, unless they be
perpetrated upon those who are equal or superior, in number, to the
actors. All acts committed against persons _inferior_ in number to the
aggressors, become but the exercise 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 conscience the
same rule is equally binding upon governments, for governments are mere
associations of individuals. This is the rule on which the trial by jury
is based. And it is plainly the only rule that ought to induce a man to
submit his rights to the adjudication of his fellow-men, or dissuade him
from a forcible defence of them.

Another answer is, that if two opposing parties could be supposed to
have no personal interests or passions involved, to warp their
judgments, or corrupt their motives, the fact that one of the parties
was more numerous than the other, (a fact that leaves the comparative
intellectual competency of the two parties entirely out of
consideration,) might, perhaps, furnish a slight, but at best only a
very slight, probability that such party was on the side of justice. But
when it is considered that the parties are liable to differ in their
intellectual capacities, and that one, or the other, or both, are
undoubtedly under the influence of such passions as rivalry, hatred,
avarice, and ambition,--passions that are nearly certain to pervert
their judgments, and very likely to corrupt their motives,--all
probabilities founded upon a mere numerical majority, in one party, or
the other, vanish at once; and the decision of the majority becomes, to
all practical purposes, a mere decision of chance. And to dispose of
men's properties, liberties, and lives, by the mere process of
enumerating such parties, is not only as palpable gambling as was ever
practised, but it is also the most atrocious that was ever practised,
except in matters of government. And where government is instituted on
this principle, (as in the United States, for example,) the nation is at
once converted into one great gambling establishment; where all the
rights of men are the stakes; a few bold bad men throw the dice--(dice
loaded with all the hopes, fears, interests, and passions which rage in
the breasts of ambitious and desperate men,)--and all the people, from
the interests they have depending, become enlisted, excited, agitated,
and generally corrupted, by the hazards of the game.

The trial by jury disavows the majority principle altogether; and
proceeds upon the ground that every man should be presumed to be
entitled to life, liberty, and such property as he has in his
possession; and that the government should lay its hand upon none of
them, (except for the purpose of bringing them before a tribunal for
adjudication,) unless it be first ascertained, _beyond a reasonable
doubt_, in every individual case, that justice requires it.

To ascertain whether there be such reasonable doubt, it takes twelve men
_by lot_ from the whole body of mature men. If any of these twelve are
proved to be under the influence of any _special_ interest or passion,
that may either pervert their judgments, or corrupt their motives, they
are set aside as unsuitable for the performance of a duty requiring such
absolute impartiality and integrity; and others substituted in their
stead. When the utmost practicable impartiality is attained on the part
of the whole twelve, they are sworn to the observance of justice; and
their unanimous concurrence is then held to be necessary to remove that
reasonable doubt, which, unremoved, would forbid the government to lay
its hand on its victim.

Such is the caution which the trial by jury both practises and
inculcates, against the violation of justice, on the part of the
government, towards the humblest individual, in the smallest matter
affecting his civil rights, his property, liberty, or life. And such is
the contrast, which the trial by jury presents, to that gambler's and
robber's rule, that the majority have a right, by virtue of their
superior numbers, and without regard to justice, to dispose at pleasure
of the property and persons of all bodies of men less numerous than
themselves.

The difference, in short, between the two systems, is this. The trial by
jury protects person and property, inviolate to their possessors, from
the hand of the law, unless _justice, beyond a reasonable doubt_,
require them to be taken. The majority principle takes person and
property from their possessors, at the mere arbitrary will of a
majority, who are liable and likely to be influenced, in taking them, by
motives of oppression, avarice, and ambition.

If the relative numbers of opposing parties afforded sufficient evidence
of the comparative justice of their claims, the government should carry
the principle into its courts of justice; and instead of referring
controversies to impartial and disinterested men,--to judges and jurors,
sworn to do justice, and bound patiently to hear and weigh all the
evidence and arguments that can be offered on either side,--it should
simply _count_ the 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 plaintiffs and defendants
to reason with, flatter, cheat, threaten, and bribe each other, by way
of inducing them to change sides. Such a process would be just as
rational in courts of justice, as in halls of legislation; for it is of
no importance to a man, who has his rights taken from him, whether it be
done by a legislative enactment, or a judicial decision.

In legislation, the people are all arranged as 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 determined by the relative number of plaintiffs and
defendants.

If this mode of decision were introduced into courts of justice, we
should see a parallel, and only a parallel, to that system of
legislation which we witness daily. We should see large bodies of men
conspiring to bring perfectly groundless suits, against other bodies of
men, for large sums of money, and to carry them by sheer force of
numbers; just as we now continually see large bodies of men conspiring
to carry, by mere force of numbers, some scheme of legislation that
will, directly or indirectly, take money out of other men's pockets, and
put it into their own. And we should also see distinct bodies of men,
parties in separate suits, combining and agreeing all to appear and be
counted as plaintiffs or defendants in each other's suits, for the
purpose of ekeing out the necessary majority; just as we now see
distinct bodies of men, interested in separate schemes of ambition or
plunder, conspiring to carry through a batch of legislative enactments,
that shall accomplish their several purposes.

This system of combination and conspiracy would go on, until at length
whole states and a whole nation would become divided into two great
litigating parties, each party composed of several smaller bodies,
having their separate suits, but all confederating for the purpose of
making up the necessary majority in each case. The individuals composing
each of these two great parties, would at length become so accustomed to
acting together, and so well acquainted with each others' schemes, and
so mutually dependent upon each others' fidelity for success, that they
would become organized as permanent associations; bound together by that
kind of honor that prevails among thieves; and pledged by all their
interests, sympathies, and animosities, to mutual fidelity, and to
unceasing hostility to their opponents; and exerting all their arts and
all their resources of threats, injuries, promises, and bribes, to drive
or seduce from the other party enough to enable their own to retain or
acquire such a majority as would be necessary to gain their own suits,
and defeat the suits of their opponents. All the wealth and talent of
the country would become enlisted in the service of these rival
associations; and both would at length become so compact, so well
organized, so powerful, and yet always so much in need of recruits,
that a private person would be nearly or quite unable to obtain justice
in the most paltry suit with his neighbor, except on the condition of
joining one of these great litigating associations, who would agree to
carry through his cause, on condition of his assisting them to carry
through all the others, good and bad, which they had already undertaken.
If he refused this, they would threaten to make a similar offer to his
antagonist, and suffer their whole numbers to be counted against him.

Now this picture is no caricature, but a true and honest likeness. And
such a system of administering justice, would be no more false, absurd,
or atrocious, than that system of working by majorities, which seeks to
accomplish, by legislation, the same ends which, in the case supposed,
would be accomplished by judicial decisions.

Again, the doctrine that the minority ought to submit to the will of the
majority, proceeds, not upon the principle that government is formed by
voluntary association, and for an _agreed purpose_, on the part of all
who contribute to its support, but upon the presumption that all
government must be practically a state of war and plunder between
opposing parties; and that, in order to save blood, and prevent mutual
extermination, the parties come to an agreement that they will count
their respective numbers periodically, and the one party shall then be
permitted quietly to rule and plunder, (restrained only by their own
discretion,) and the other submit quietly to be ruled and plundered,
until the time of the next enumeration.

Such an agreement may possibly be wiser than unceasing and deadly
conflict; it nevertheless partakes too much of the ludicrous to deserve
to be seriously considered as an expedient for the maintenance of civil
society. It would certainly seem that mankind might agree upon a
cessation of hostilities, upon more rational and equitable terms than
that of unconditional submission on the part of the less numerous body.
Unconditional submission is usually the last act of one who confesses
himself subdued and enslaved. How any one ever came to imagine that
condition to be one of freedom, has never been explained. And as for the
system being adapted to the maintenance of justice among men, it is a
mystery that any human mind could ever have been visited with an
insanity wild enough to originate the idea.

If it be said that other corporations, than governments, surrender their
affairs into the hands of the majority, the answer is, that they allow
majorities to determine only trifling matters, that are in their nature
mere questions of discretion, and where there is no natural presumption
of justice or right on one side rather than the other. They _never_
surrender to the majority the power to dispose of, or, what is
practically the same thing, to _determine_, the _rights_ of any
individual member. The _rights_ of every member are determined by the
written compact, to which all the members have voluntarily agreed.

For example. A banking corporation allows a majority to determine such
questions of discretion as whether the note of A or of B shall be
discounted; whether notes shall be discounted on one, two, or six days
in the week; how many hours in a day their banking-house shall be kept
open; how many clerks shall be employed; what salaries they shall
receive, and such like matters, which are in their nature mere subjects
of discretion, and where there are no natural presumptions of justice or
right in favor of one course over the other. But no banking corporation
allows a majority, or any other number of its members less than the
whole, to divert the funds of the corporation to any other purpose than
the one to which _every member_ of the corporation has legally agreed
that they may be devoted; nor to take the stock of one member and give
it to another; nor to distribute the dividends among the stockholders
otherwise than to each one the proportion which he has agreed to accept,
and all the others have agreed that he shall receive. Nor does any
banking corporation allow a majority to impose taxes upon the members
for the payment of the corporate expenses, except in such proportions as
_every member_ has consented that they may be imposed. All these
questions, involving the _rights_ of the members as against each other,
are fixed by the articles of the association,--that is, by the agreement
to which _every member_ has personally assented.

What is also specially to be noticed, and what constitutes a vital
difference between the banking corporation and the political
corporation, or government, is, that in case of controversy among the
members of the banking corporation, as to the _rights_ of any member,
the question is determined, not by any number, either majority, or
minority, of the corporation itself, _but by persons out of the
corporation_; by twelve men acting as jurors, or by other tribunals of
justice, of which no member of the corporation is allowed to be a part.
But in the case of the political corporation, controversies among the
parties to it, as to the rights of individual members, must of necessity
be settled by members of the corporation itself, because there are no
persons out of the corporation to whom the question can be referred.

Since, then, all questions as to the _rights_ of the members of the
political corporation, must be determined by members of the corporation
itself, the trial by jury says that no man's _rights_,--neither his
right to his life, his liberty, nor his property,--shall be determined
by any such standard as the mere will and pleasure of majorities; but
only by the unanimous verdict of a tribunal fairly representing the
whole people,--that is, a tribunal of twelve men, taken, at random from
the whole body, and ascertained to be as impartial as the nature of the
case will admit, _and sworn to the observance of justice_. Such is the
difference in the two kinds of corporations; and the custom of managing
by majorities the mere discretionary matters of business corporations,
(the majority having no power to determine the _rights_ of any member,)
furnishes no analogy to the practice, adopted by political corporations,
of disposing of all the _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 a veto upon the
acts of the majority. Political liberty is liberty for the _weaker
party_ in a nation. It is only the weaker party that lose their
liberties, when a government becomes oppressive. The stronger party, in
all governments, are free by virtue of their superior strength. They
never oppress themselves.

Legislation is the work of this stronger party; and if, in addition to
the sole power of legislating, they have the sole power of determining
what legislation shall be enforced, they have all power in their hands,
and the weaker party are the subjects of an absolute government.

Unless the weaker party have a veto, either upon the making, or the
enforcement of laws, they have no power whatever in the government, and
can of course have no liberties except such as the stronger party, in
their arbitrary discretion, see fit to permit them to enjoy.

In England and the United States, the trial by jury is the only
institution that gives the weaker party any veto upon the power of the
stronger. Consequently it is the only institution, that gives them any
effective voice in the government, or any guaranty against oppression.

Suffrage, however free, is of no avail for this purpose; because the
suffrage of the minority is overborne by the suffrage of the majority,
and is thus rendered powerless for purposes of legislation. The
responsibility of officers can be made of no avail, because they are
responsible only to the majority. The minority, therefore, are wholly
without rights in the government, wholly at the mercy of the majority,
unless, through the trial by jury, they have a veto upon such
legislation as they think unjust.

Government is established for the protection of the weak against the
strong. This is the principal, if not the sole, motive for the
establishment of all legitimate government. Laws, that are sufficient
for the protection of the weaker party, are of course sufficient for the
protection of the stronger party; because the strong can certainly need
no more protection than the weak. It is, therefore, right that the
weaker party should be represented in the tribunal which is finally to
determine what legislation may be enforced; and that no legislation
shall be enforced against their consent. They being presumed to be
competent judges of what kind of legislation makes for their safety, and
what for their injury, it must be presumed that any legislation, which
_they_ object to enforcing, tends to their oppression, and not to their
security.

There is still another reason why the weaker party, or the minority,
should have a veto upon all legislation which they disapprove. _That
reason is, that that is the only means by which the government can be
kept within the limits of the contract, compact, or constitution, by
which the whole people agree to establish government._ If the majority
were allowed to interpret the compact for themselves, and enforce it
according to their own interpretation, they would, of course, make it
authorize them to do whatever they wish to do.

The theory of free government is that it is formed by the voluntary
contract of the people individually with each other. This is the theory,
(although it is not, as it ought to be, the fact,) in all the
governments in the United States, as also in the government of England.
The theory assumes that each man, who is a party to the government, and
contributes to its support, has individually and freely consented to it.
Otherwise the government would have no right to tax him for its
support,--for taxation without consent is robbery. This theory, then,
necessarily supposes that this government, which is formed by the free
consent of all, has no powers except such as _all_ the parties to it
have individually agreed that it shall have; and especially that it has
no power to pass any _laws_, except such as _all_ the parties have
agreed that it may pass.

This theory supposes that there may be certain laws that will be
beneficial to _all_,--so beneficial that _all_ consent to be taxed for
their maintenance. For the maintenance of these specific laws, in which
all are interested, all associate. And they associate for the
maintenance of those laws _only_, in which _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 consented
that it may do. And if any portion of the people,--no matter how large
their number, if it be less than the whole,--desire a government for any
purposes other than those that are common to all, and desired by all,
they must form a separate association for those purposes. They have no
right,--by perverting this government of the whole, to the
accomplishment of purposes desired only by a part,--to compel any one to
contribute to purposes that are either useless or injurious to himself.

Such being the principles on which the government is formed, the
question arises, how shall this government, 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 aggrandizement of the rest? Its laws must be,
(or at least now are,) passed, and most of its other acts performed, by
mere agents,--agents chosen by a part of the people, and not by the
whole. How can these agents be restrained from seeking their own
interests, and the interests of those who elected them, at the expense
of the rights of the remainder of the people, by the passage and
enforcement of laws that shall be partial, unequal, and unjust in their
operation? That is the great question. And the trial by jury answers it.
And how does the trial by jury answer it? It answers it, as has already
been shown throughout this volume, by saying that these mere agents and
attorneys, who are chosen by a part only of the people, and are liable
to be influenced by partial and unequal purposes, shall not have
unlimited authority in the enactment and enforcement of laws; that they
shall not exercise _all_ the functions of government. It says that they
shall never exercise that ultimate power of compelling obedience to the
laws by punishing for disobedience, or of executing the laws against the
person or property of any man, without first getting the consent of the
people, through a tribunal that may fairly be presumed to represent the
whole, or substantially the whole, people. It says that if the power to
make laws, and the power also to enforce them, were committed to these
agents, they would have all power,--would be absolute masters of the
people, and could deprive them of their rights at pleasure. It says,
therefore, that the people themselves will hold a veto upon the
enforcement of any and every law, which these agents may enact, and that
whenever the occasion arises for them to give or withhold their
consent,--inasmuch as the whole people cannot assemble, or devote the
time and attention necessary to the investigation of each case,--twelve
of their number shall be taken by lot, or otherwise at random, from the
whole body; that they shall not be chosen by majorities, (the same
majorities that elected the agents who enacted the laws to be put in
issue,) nor by any interested or suspected party; that they shall not be
appointed by, or be in any way dependent upon, those who enacted the
law; that their opinions, whether for or against the law that is in
issue, shall not be inquired of beforehand; and that if these twelve men
give their consent to the enforcement of the law, their consent shall
stand for the consent of the whole.

This is the mode, which the trial by jury provides, for keeping the
government within the limits designed by the whole people, who have
associated for its establishment. And it is the only mode, provided
either by the English or American constitutions, for the accomplishment
of that object.

But it will, perhaps, be said that if the minority can defeat the will
of the majority, then the minority _rule_ the majority. But this is not
true in any unjust sense. The minority enact no laws of their own. They
simply refuse their assent to such laws of the majority as they do not
approve. The minority assume no authority over the majority; they simply
defend themselves. They do not interfere with the right of the majority
to seek their own happiness in their own way, so long as they (the
majority) do not interfere with the minority. They claim simply not to
be oppressed, and not to be compelled to assist in doing anything which
they do not approve. They say to the majority, "We will unite with you,
if you desire it, for the accomplishment of all those purposes, in
which we have a common interest with you. You can certainly expect us to
do nothing more. If you do not choose to associate with us on those
terms, there must be two separate associations. You must associate for
the accomplishment of your purposes; we for the accomplishment of ours."

In this case, the minority assume no authority over the majority; they
simply refuse to surrender their own liberties into the hands of the
majority. They propose a union; but decline submission. The majority are
still at liberty to refuse the connection, and to seek their own
happiness in their own way, except that they cannot be gratified in
their desire to become absolute masters of the minority.

But, it may be asked, how can the minority be trusted to enforce even
such legislation as is equal and just? The answer is, that they are as
reliable for that purpose as are the majority; they are as much presumed
to have associated, and are as likely to have associated, for that
object, as are the majority; and they have as much interest in such
legislation as have the majority. They have even more interest in it;
for, being the weaker party, they must rely on it for their
security,--having no other security on which they can rely. Hence their
consent to the establishment of government, and to the _taxation_
required for its support, is _presumed_, (although it ought not to be
presumed,) without any express consent being given. This presumption of
their consent to be taxed for the maintenance of laws, would be absurd,
if they could not themselves be trusted to act in good faith in
enforcing those laws. And hence they cannot be presumed to have
consented to be taxed for the maintenance of any laws, except such as
they are themselves ready to aid in enforcing. It is therefore unjust to
tax them, unless they are eligible to seats in a jury, with power to
judge of the justice of the laws. Taxing them for the support of the
laws, on the assumption that they are in favor of the laws, and at the
same time refusing them the right, as jurors, to judge of the justice of
the laws, on the assumption that they are opposed to the laws, are flat
contradictions.

But, it will be asked, what motive have the majority, when they have
all power in their own hands, to submit their will to the veto of the
minority?

One answer is, that they have the motive of justice. It would be
_unjust_ to compel the minority to contribute, by taxation, to the
support of any laws which they did not approve.

Another answer is, that if the stronger party wish to use their power
only for purposes of justice, they have no occasion to fear the veto of
the weaker party; for the latter have as strong motives for the
maintenance of _just_ government, as have the former.

Another answer is, that if the stronger party use their power
_unjustly_, they will hold it by an uncertain tenure, especially in a
community where knowledge is diffused; for knowledge will enable the
weaker party to make itself in time the stronger party. It also enables
the weaker party, even while it remains the weaker party, perpetually to
annoy, alarm, and injure their oppressors. Unjust power,--or rather
power that is _grossly_ unjust, and that is known to be so by the
minority,--can be sustained only at the expense of standing armies, and
all the other machinery of force; for the oppressed party are always
ready to risk their lives for purposes of vengeance, and the acquisition
of their rights, whenever there is any tolerable chance of success.
Peace, safety, and quiet for all, can be enjoyed only under laws that
obtain the consent of all. Hence tyrants frequently yield to the demands
of justice from those weaker than themselves, as a means of buying peace
and safety.

Still another answer is, that those who are in the majority on one law,
will be in the minority on another. All, therefore, need the benefit of
the veto, at some time or other, to protect themselves from injustice.

That the limits, within which legislation would, by this process, be
confined, would be exceedingly narrow, in comparison with those it at
present occupies, there can be no doubt. All monopolies, all special
privileges, all sumptuary laws, all restraints upon any traffic,
bargain, or contract, that was naturally lawful,[117] all restraints
upon men's natural rights, the whole catalogue of _mala prohibita_, and
all taxation to which the taxed parties had not individually, severally,
and freely consented, would be at an end; because all such legislation
implies a violation of the rights of a greater or less minority. This
minority would disregard, trample upon, or resist, the execution of such
legislation, and then throw themselves upon a jury of the whole people
for justification and protection. In this way all legislation would be
nullified, except the legislation of that general nature which
impartially protected the rights, and subserved the interests, of all.
The only legislation that could be sustained, would probably be such as
tended directly to the maintenance of justice and liberty; such, for
example, as should contribute to the enforcement of contracts, the
protection of property, and the prevention and punishment of acts
intrinsically criminal. In short, government in practice would be
brought to the necessity of a strict adherence to natural law, and
natural justice, instead of being, as it now is, a great battle, in
which avarice and ambition are constantly fighting for and obtaining
advantages over the natural rights of mankind.

[Footnote 117: Such as restraints upon banking, upon the rates of
interest, upon traffic with foreigners, &c., &c.]




APPENDIX.

TAXATION.


It was a principle of the Common Law, as it is of the law of nature, and
of common sense, that no man can be taxed without his personal consent.
The Common Law knew nothing of that system, which now prevails in
England, of _assuming_ a man's own consent to be taxed, because some
pretended representative, whom he never authorized to act for him, has
taken it upon himself to consent that he may be taxed. That is one of
the many frauds on the Common Law, and the English constitution, which
have been introduced since Magna Carta. Having finally established
itself in England, it has been stupidly and servilely copied and
submitted to in the United States.

If the trial by jury were 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, acting on his own responsibility, and calling himself a
highwayman. Neither the numbers engaged in the act, nor the different
characters they assume as a cover for the act, alter the nature of the
act itself.

If the government can take a man's money without his consent, there is
no limit to the additional tyranny it may practise upon him; for, with
his money, it can hire soldiers to stand over him, keep him in
subjection, plunder him at discretion, and kill him if he resists. And
governments always will do this, as they everywhere and always have done
it, except where the Common Law principle has been established. It is
therefore a first principle, a very _sine qua non_ of political freedom,
that a man can be taxed only by his personal consent. And the
establishment of this principle, with _trial by jury_, insures freedom
of course; because: 1. No man would pay his money unless he had first
contracted for such a government as he was willing to support; and, 2.
Unless the government then kept itself within the terms of its contract,
juries would not enforce the payment of the tax. Besides, the agreement
to be taxed would probably be entered into but for a year at a time. If,
in that year, the government proved itself either inefficient or
tyrannical, to any serious degree, the contract would not be renewed.
The dissatisfied parties, if sufficiently numerous for a new
organization, would form themselves into a separate association for
mutual protection. If not sufficiently numerous for that purpose, those
who were conscientious would forego all governmental protection, rather
than contribute to the support of a government which they deemed unjust.

All legitimate government is a mutual insurance company, voluntarily
agreed upon by the parties to it, for the protection of their rights
against wrong-doers. In its voluntary character it is precisely similar
to an association for mutual protection against fire or shipwreck.
Before a man will join an association for these latter purposes, and pay
the premium for being insured, he will, if he be a man of sense, look at
the articles of the association; see what the company promises to do;
what it is likely to do; and what are the rates of insurance. If he be
satisfied on all these points, he will become a member, pay his premium
for a year, and then hold the company to its contract. If the conduct of
the company prove unsatisfactory, he will let his policy expire at the
end of the year for which he has paid; will decline to pay any further
premiums, and either seek insurance elsewhere, or take his own risk
without any insurance. And as men act in the insurance of their ships
and dwellings, they would act in the insurance of their properties,
liberties and lives, in the political association, or government.

The political insurance company, or government, have no more right, in
nature or reason, to _assume_ a man's consent to be protected by them,
and to be taxed for that protection, when he has given no actual
consent, than a fire or marine insurance company have to assume a man's
consent to be protected by them, and to pay the premium, when his actual
consent has never been given. To take a man's property without his
consent is robbery; and to assume his consent, where no actual consent
is given, makes the taking none the less robbery. If it did, the
highwayman has the same right to assume a man's consent to part with his
purse, that any other man, or body of men, can have. And his assumption
would afford as much moral justification for his robbery as does a like
assumption, on the part of the government, for taking a man's property
without his consent. The government's pretence of protecting him, as an
equivalent for the taxation, affords no justification. It is for himself
to decide whether he desires such protection as the government offers
him. If he do not desire it, or do not bargain for it, the government
has no more right than any other insurance company to impose it upon
him, or make him pay for it.

Trial by the country, and no taxation without consent, were the two
pillars of English liberty, (when England had any liberty,) and the
first principles of the Common Law. They mutually sustain each other;
and neither can stand without the other. Without both, no people have
any guaranty for their freedom; with both, no people can be otherwise
than free.[118]

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.

[Footnote 118: Trial by the country, and no taxation without consent,
mutually sustain each other, and can be sustained only by each other,
for these reasons: 1. Juries would refuse to enforce a tax against a man
who had never agreed to pay it. They would also protect men in forcibly
resisting the collection of taxes to which they had never consented.
Otherwise the jurors would authorize the government to tax themselves
without their consent,--a thing which no jury would be likely to do. In
these two ways, then, trial by the country would sustain the principle
of no taxation without consent. 2. On the other hand, the principle of
no taxation without consent would sustain the trial by the country,
because men in general would not consent to be taxed for the support of
a government under which trial by the country was not secured. Thus
these two principles mutually sustain each other.

But, if either of these principles were broken down, the other would
fall with it, and for these reasons: 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.]





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