ï~~I..................... 11 FI.............. It........... IIIiFIi.......... IIIII............ II.......... IIIIII14............................ IIII......... I.......... 1, j-A............... IIIF.................... I;1k IFIF'I. ji 4'A............. IIi ft II!; 4 4 v II76- IIII. IIIII.......... -417 ----- - It7 W 4 'e,............. IItitI41. I'5t F.......... i j r r g, a-K;Z1 - "An, IIV ï~~,. ï~~ ï~~ ï~~AN ESSAY ON THE TRIAL BY JURY ï~~CIVIL LIBERTIES IN AMERICAN HISTORY (' iriut ( jlaeAbn ï~~z Q -. x E APOW NN r Ong* OMOWN AM* w F ï~~A Da Capo Press Reprint Edition This Da Capo Press edition of An Essay on the Trial by Jury is an unabridged republication of the first edition published in Boston in 1852. It is reprinted by permission from a copy of the original edition owned by the Library of the University of Michigan. Library of Congress Catalog Card Number 70-166097 ISBN 0-306-70320-3 Published by Da Capo Press, Inc. A Subsidiary of Plenum Publishing Corporation 27 West 17th Street, New York, N.Y. 10011 All Rights Reserved Manufactured in the United States of America ï~~AN ESSAY ON THE TRIAL BY JURY ï~~ ï~~AN ESSAY ON TILE TRIAL B3Y JURY. BY LYSANDER SPOONER. BOSTON: JOHN P. JEWETT AND COMPANY. CLEVELAND, O111: JEWEIT, PROCTOR & WORTHINGTON. 18352. ï~~Entered acording to Act of Congreos, in the year 1852, by LYSANDTER SPOON ER, In the Clerk's Office of the District Court of Massachusetts. NOTICE TO ENGLISH PUB3LISHIERS. The author claims the copyright of tli )iS)hok in IEng;land, on Common Law principles, without regard to acts o)f parliament and if' the main principle of the hook itself he true, viz., that nol legislaation, in conflicjt with the Common Law, is of any validity, his elaini is aL legal oneIle fibrhids any one to reprint the book without liis consent. Stereotyped by nosoi3r & ROE fINS; New Eo!-lani't'ype r i nd ieoype Eisndery 1STON. ï~~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 reeistablished. ï~~CONTENTS. PAGE CHAPTER I. THIE RIGHT OF JURIES TO JUDGE OF TlHE JUSTICE OF LAWS,........ SECTION 1,............ SECTION 2,........... CHAPTER II. THE TRIAL BY JURY, AS DEFINED BY MAGNA CARTA,.......... SECTION 1. The History of Alagn a Carta,.. SECTION 2. The Language f lMagna Carta,.. 5.5 11 20 20 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 SE:CTION 5. The Oaths of Judges,..... 98 SECTION. The Coronation Oath,..... 102 TIlE RIGHTS AND DUTIES OF JURIES IN CIVIL SUITS,.......... 110 CIIAPTER IV. CHAPTER V. CHIAPTER VI. CHtAPTER VII. CHAPTER VIII. CHAPTER IX. CHAPTER X. CHAPTER XI. CHAPTER XII. OBJECTIONS ANSWERED,... JURIES OF THE PRESENT DAY ILLEGAL, ILLEGAL JUDGES,......... THE FREE ADMINISTRATION OF JUSTICE, TIHE CRIMINAL INTENT..........123. 142.157. 172.178 MORAL CONSIDERATIONS FOR JURORS,. 189 AUTHORITY OF MAGNA CARTA,.......192 LIMITATIONS IMPOSED UPON THE MAJORITY BY THE TRIAL BY JURY,....... 206 APPENDIX -- TAXATION,. A-.........222 ï~~TRIAL BY JURY. CHAPTER I. TILE 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 ï~~TRIAL BY JURY. 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." T'he 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 efect this end, it is indispensable that the people, or " the country," judge of and determine their own. liberties against the government; instead of the govern ment's judg ing of and det/erminin, g its orwn powers over the people. fow is it possible that juries can do anthingr 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, ally 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. ï~~JURIES JUDGES OF THE JUSTICE OF LAWS. This is done to prevent the government's constituting a jury of its own partisans or friends; in other words, to prevent the governments 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, b y lot, from the mnass of the people, without the possibility of any previous knowledge choice, or selection of them, on the part of the governmient, the jury will hbe 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, wviii be represented in tihe 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 stibstantially 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 govcrilrnelnt, 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 whlole 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 ï~~8 TRIAL BY JURY. 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 governrment may decide who may, anld who may not, be jurors, it will of course select only its partisans, arid 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.* So, also, if the government may dictate to the jury what laws they are to enforce, it is no longer a " trial by the country," * To show that this supposition is not an extravagant one, it may be mentioned that courts have repeatedly questioned jurors to ascertain whether they were prejudiced against the ga'overnrnmcnt -- 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 I nited States district judge, in empanelling three several juries for the trials of Scott, 1layden, and Morris, charged with having aided in the rescue of a fugitive slave from the custody of the United States deputy marsh'rl. 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. " P 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, ar! 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 u ited States Circuit Court for the District of Massachusetts, by I Benjamin R. Curti-, one of the Justices of the Supreme Court of the United States, in empanelling a ju y for the trial of the aforesaid Morris on the charge before mentioned; and those who lid not answer the question favorably for the government were again excluded from the panel. It has also been an habitual practice with the Supreme Court of Massachusetts, in empanelling juries for the trial of capital offences, to inquire of the persons drawn as jurors whether they had any conscientious scruples against finding verdicts of guilty ï~~JURIES JUDGES OF THE JUSTICE OF LAWS. but a trial by the government; because the jury then try the accused, not by any standard of their owni-not by th ir owi judgieints of their rightful liberties hilt by a standard dictated to their by the goverrnment. And the standard, thus dictated b)y the govern ment, becomles the measlure of thle petple's liberties. If tihe 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 lvower over the people, instead of the peoples delerininiig what are their own liberties against the government. In short, if tl.e jury have no right to judge of the justice of a law of the gover nent, they p)lainly can do notliiiig to Protect the people against the opp))ressiolis of the government; for there are no oppressions whiici the government may not authorize by law. 1Tile jury are also to judge whether the laws are rightly expdo inded to them by the court. Unless they judge on this point, they do nothing to protect their liberties aga'inst the oppressions that are capable of being practised tinder cover of a corrupt exposition of the laws. If the judiciary can authoritatively dictate to a jury atny exposition of thle law, they can dictate to them thee law itself, andti such laws as they iplease; because laws are, in practice, one thingor anot'her, according as they are expouiided. in such cases; that is, whether they had any conscientious scruples against sustaining the law prescril ing death as thle punishment of the (rimno to be tried and to exclude from the panel all who answered in the affirmative. The only principle upon wh0Eich 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, hoowver cruel r tyrannical it may be. W hat is such a jury g,,ood fior, as protection against the tyranny of the government 1 A jury like that is palpalily 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 nit a trial by the coutintry - because it is a trial only by mien specially selected by the governient fr 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. ï~~10 TRIAL BY JURY. 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 govcrnment; 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, ahd trial by the government, is simply a question between liberty and despotism. The authority to judge what are the powers of the government, and what the liberties of the people, must necessarily be vested in one or the other of the parties themselves - the government, or the people; because there is no third party to whom it can be entrusted. If the authority be vested in the government, the government is absolute, and the people have no liberties except such as the government sees fit to indulge them with. If, on the other hand, that authority be vested in the people, then the people have all liberties, (as against the government,) except such as substan ï~~JURIES JUDGES OF THE JUSTICE OF LAWS. 11 tially the whole people (through a jury) choose to disclaim; and the government can exercise no power except suchl as substantially the whole people (through a jury) consent thrt it may exercise. SECTION 11. FThe force and justice of the precediing arlgumewnt cannot be evaded by saying that the government is (chosen by thle people; that, in thleory, it represents the people that it is (lesigned to do thle will of tihe people; that its iembers are all sworn to observe the fundamental or constitutional law instituted by the people; that its acts are thlerefore etltitled to be cotnsidered thle acts of the people; and( that to allow a jury, representilig the people, to invalidate thle acts of the guvertlunent, would therefore be arraving the people against tlhemselves. T'here are two answers to such an ar u1neut. One answer is, tllat, in a representative goverunment, there is no absurdity or contradiction, nor any arraying of thle 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 thlley are to have the force of laws. Our American constitutions have provided five of these separate tribunals, to wit, representatives, setnate, executive, jury, and judges; a nd hiave made it necessary that each enactment shall pass the ordeal of all these separate tribtunals, before its authority can be established by the pun ishulent of those who choose to transgress it. And there is no more absurdity or inconsistency in making a jury one of tlhese several tribunals, tlhan there is in nakine g the representatives, or thle senate, or the executive, or the jtdges, one of therm. pThere is no more absurdity in givilng 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, wthen a jury puts its veto upon a statute, which the other tribuials have sanctionIed, than they are when the * The executive has a qualified veto upon the passage of laws, in most of our governments, and an absolute veto, in all of thetn, upon the execution of any laws which ho deems unconstitutional; because his oath to support the constitution (as he understands it) forbids him to execute any law that he deems unconstitutionaL ï~~12 TRIAL BY JURY. same veto is exercised by the representatives, the senate, the executive, or the judges. I at 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 tile 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 individ lals - 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 purnish 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 ï~~JURIES JIUDGES OF TIHE JUSTICE OF LA WVS. 13 limnits of its power, if it were perrnuitted to determine that quleslion for itself? Neither is it of any avail to say, that, if the government abuse its ower, arid enllact jilijlist a d oppressive laws, the gover1mnerit lmay be chlanged by the intlueien(e of disclssiOn, and the exercise of the right of suffrage. l)isclssion can do nothing to prevent the enaetnilent, or procure the repeal, of unjust law\s, unless it be itnderstoo dl that the (isciissioi is to be followed by resistance. Tyrants care notlhirig for disenssios that are to end only in discussion. I)iscussioi5s, lwhich do not interfere with the enforcement of their laws, are but idle windl( to them. Stufl'rage is equally lpow rless and uinreliable. It can be exercised only periodically; a;nd the tyratnny must at least be borne until the time for suffrage cones. Besides, when the suffrage is exercised, it gives no guaranty for the repeal of existinlg laws that are oppressive, an d io security against the enactnment 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 tile second body may be chosetn for their integrity, thle answer is, that the first were chosen for that very reason, and yet proved tyrants. Tlhe 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 hlotest than those thlat lpreceded them 7 What is there in the nature of men or thinus to make them so? If it be said that tile first body were chosen from motives of injustice, that fact proves that there is a portion of society who desire to establishl injustice; and if they were powerful or artful enough to procure the election of their instruments to compose the first legislature, th ey wviii 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 ï~~14 TRIAL BY JURY. 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. ï~~JURIES JUDGES OF THE JUSTICE OF LAWS. 15 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 thle people,) for their consent, is, in theory, an absolute governnent,, irresponsible to the people, and can perpetuate its power at pleasure. The trial by jury is based upon a recognition of this pritnciple, and therefore forbids the governentl to execute any of its laws, by punishing violators, in atny case whatever, without first getting thie consent of " the country," or the people, through a jury. In this way, the people, at all times, hold their liberties ir 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.* 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 * 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 dearly within the limits of justice, if it would ask a jury to enforce them. ï~~16 TRIAL BY TJURY. legal defence whatsoever against oppression. The right of revolution, which tyrants, in mockery, acco)r(d 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 praetically established only when and because the governmenit no longer exists to call it in question. The right, therefore, can e 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. Tr'le 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 he 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 ï~~JURIES JUDGES OF THE JUSTICE OF LAWS. 17 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.* 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 * 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 longenduring 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 reoognition of such a right as that of insuarrection 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.~ 240. ï~~18 TRIAL BY JURY. 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. ï~~JURIES JUDGES OF THE JUSTICE OF LAWS. 19 The constitutions of New Hampshire and Tennessee also declare that " The doctrine of non-resistance against arbitrary power and oppression is absurd, slavish, and destructive of the good and happiness of mankind." The legal effect of these constitutional recognitions of the right of individuals to defend their property, liberties, and lives, against the government, is to legalize resistance to all injustice and oppression, of every name and nature whatsoever, on the part of the government. But for this right of resistance, on the part of the people, all governments would become tyrannical to a degree of which few people are aware. Constitutions are utterly worthless to restrain the tyranny of governments, unless it be understood that the people will, by force, compel the government to keep within the constitutional limits. Practically speaking, no government knows any limits to its power, except the endurance of the people. But that the people are stronger than the government, and will resist in extreme cases, our 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. ï~~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 Carla. In order to judge of the object and meaning of that chapter of Magna Carta which secures the trial by jury, it is to be borne in mind that, at the time of Magna Carta, the king (with exceptions immaterial to this discussion, but which will appear hereafter) was, constitutionally, the entire government; the sole legislative, judicial, and executive power of the nation. The executive and judicial officers were merely his servants, appointed by him, and removable at his pleasure. In addition to this, " the king himself often sat in his court, which always attended his person. He there heard causes, and pronounced judgment; and though he was assisted by the advice of other members, it is not to be imagined that a decision could be obtained contrary to his inclination or opinion."* Judges were in those days, and afterwards, such abject servants of the king, that " we find that King Edward I. (1272 to 1307) fined and imprisoned his judges, in the same manner as Alfred the Great, among the Saxons, had done before him, by the sole exercise of his authority."f * 1 Hume, Appendix 2. f Crabbe's History of the English Law, 2$6. ï~~HISTORY OF MAGNA CARTA. 21 Parliament, so far as there was a parliament, was a mere council of tile king.* It assembled only at the pleasure of the king; sat only during his pleasure; and when sitting had no power, so far as general legislation was concerned, beyond that of sirmply advising the king. The only legislation to which their assent was constitutionally necessary, was demands for money and military services for extraordinary occasions. EIven ilagna Carta itself makes no provisions whatever for any parliamlllents, except when the king should want means to carry oti war, or to meet some other extraordinary necessity.t Ile ihad no need of parliaments to raise taxes for the ordinary purposes of governnlent; 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 king(dom, unlless the king chose to invite others.t There was no Hlouse of Commons at that time, and the people had no right to be heard, unless as petitioners.Â~ * 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 Anglice, (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 conc(ilium 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. t 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.: The Magna Carta of John, (;h. 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. Â~ 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 ï~~22 TRIAL BY JURY. Even when laws were made at the time of a parliament, they were made in the name of the king alone. Sometimes it was inserted in the laws, that they were made with the consent or advice of the bishops, barons, and others 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 subrnissioti 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." * And other authorities abundantly corroborate this assertion.t The king was, therefore, constitutionally the government; and the only legal limitation upon his power seems to have been simply the Common Law, usually called "the law of the land," which he was bound by oath to maintain; (which oath had about the same practical value as similar oaths have always had.) This "law of the land" seems not to have been regarded at all by many of the kings, except so far as they found it convenient to do so, or were constrained to observe it by the fear of arousing resistance. But as all people are slow in making resistance, oppression and usurpation often reached a great height; and, in the case of John, they had become so intolerable as to enlist the nation almost universally against him; and he was reduced to the necessity of complying with any terms the barons saw fit to dictate to him. It was under these circumstances, that the Great Charter of cheer all evening, in some big royal hall of Westminster, Winchester, or wherever it might be, with log fires, huge rounds of roast and boiled, not lacking malmsey and other generous liquor, they took counsel concerning the arduous matters of the kingdom." * IHume, Appendix 2. t This point will be more fully established hereafter. ï~~HISTORY OF MAGNA CARTA. 23 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 pulnish no freeman for a violation of any of his laws, unless with the consent of the peers -that is, the equals - of the accused. Trle 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 enforce7 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 ï~~24 TRIAL BY JURY. must have been, if the jury had lad no power to judge of the justice of the laws the people were required to obey l )id it not rathtler imply that the jury were to judge inldepeldently and fearlessly as to everything involved in the clharge, and especially as to its intrinsic ju1stice, anld tlhereon give their decision, (unbiased by any legislation of the king,) whlethller the accused might be punished? Thle reason of the thling, no less than the historical celebrity of the events, as securillg the liberties of the people, and the veneration with whlich 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? lie evidently ndlerstood that the juries were to veto his laws, and paralyze hlis l ver, at discretion, by forming their own opinions as to the true character of the offlb.ences they were to try, and the laws they were to be called on to enforce; and that "the kin witrills and commands " was to have no weight with them contrary to their own judgments of what was intrinsically right.* The barons and people having obtained by the charter all the liberties they had demanded of the king, it was further * 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. WVhen 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, IWhy the barons did not with these exactions dimand his kingdomn? * * and with a sol/en oath protested, that he would never grant such liherties as would make himseldf a slave." * * But afterwards, " seeing himself deserted, and fearing they would seize his castles, hlie sent the Earl of Pembroke and other fitthful 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." '* * Hlie applied "to the ï~~LANGUAGE OF MAGNA CARTA. 25 provided by the charter itself that twenty-five barons should be appointed by the barons, out of their numl)er, 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 hlim, as to authorize and require them to swear to obey the twenty-five barons, in case they should make war upon the king for ilnfringement 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. 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 uwould 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, Wnless juries should freely consent to their enforcement. ï~~26 TRIAL BY JURY. The chapter guaranteeing the trial by jury is in these words: " Nullus liber homo capiatur, vel imprisonetur, alt disseisetur, aut utlagetur, aut exuletur, aut aliquo modo destruatur; nec super eum ibimus, nec super eum mittemrus, nisi per legale judicium parium suorum, vel per legem terrm."* The corresponding chapter in the Great Charter, granted by Henry 111., (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: SNullus liber homo capiatur, vel imprisonetur, aut disseisetur de libero tenemento, vel libertatibus, vel liberis consuetudinibus suis, ant utlagetur, ant exuletur, ant aliquo modo destruatur, nec super eum ibimus, nec super eum mittemus, nisi per legale judiciumrn parium suorum, vel per legemn terra." 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 etm ibimus, nec super enm mittemus." There has been much confusion and doubt as to the true meaning of the words, "nec super eum ibimus, nec super eun mittemus." The more common rendering has been, " nor wile we pass upon him, nor condemn him." Butesome have translated them to mean, " nor will we pass upon him, nor comnir 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." t But all these translations are clearly erroneous. In the first * The laws were, at that time, all written in Latin. "No manshallbe condemned at the king's suit, either before the king in his beneh, 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. ï~~LANGUAGE OF MAGNA CARTA. 27 place, " nor wrill we pass upon him," - meaning thereby to decide upon his guiilt or itnnocenlce jdiciallyq - is not a correct rendering of the words, " nec suipr (um, ibins.''" TIllere is niothing whatever, in these latter words, that indicatesjudiirl action or opinion at all. The words, in their common sig ificatioln, describe physicd action alone. And the true translation of them, as will hereafter be seen, is, " nor will we proceed against himn," e.veclticely. In the second place, the rendering, " nor will we condemn kirn," bears little or no analogy to any coninmon, or event uncommnion, signification of the words " nec super euit mnittenmus." 'There is nothing in these latter words that indicates judicial action or decision. Their common signification, like that of the words nec super eumn ibimuns, describes physical action alone. " Nor will we send upon (or againsi) hintm," 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 lhas it, "nor will we cornmmit him to prison; " for that would be a mnere repetition of what had been already declared by the words "nec iminprisonetur." Besides, there is nothing about prisons in the words "nee super eum mittemus; " nothing about sending him anywhere; but only about sending (something or somebody) upon him, or aainsi him - that is, exzecutivly. Coke's rendering is, if possible, the most absurd and gratuitons of all. What is there in the words, " nec super enii, mittemnus," that can be made to mean " nor shall he be condemned before any other commissioner or judge wrhatsoeer? " 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 ean ibimas, nec s,,' e1m nittentntus," nor any other words in the whole chapter, a uthorize, provide for, describe, or suggest, aiy.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 ï~~TRIAL BY JURY, the king's judges at all. And there is nothing whatever, in the whole chapter, so far as relates to the action of the king, that describes or suggests anything but executive action.* But that all these translations are certainly erroneous, is proved by a temporary charter, granted by John a short time previous to the Great Charter, for the purpose of giving an opportunity for conference, arbitration, and reconciliation between him and his barons. It was to have force until the matters in controversy between them could be submitted to the Pope, and to other persons to be chosen, soime by the king, and some by the barons. The words of the charter are as follows: "Sciatis nos.eoncessisse baron ibus nostris qui contra nos sunt quod nec cos nec hllomines suos capiemus, nec disseisiemus nec super cos per vim vel per arma ibimus nisi per legemni regrii nostri vel per judicium pariurn suorum in curia nostra donec consideratio facta fuerit," &c., &c. That is, "Know that we have granted to our barons who are opposed to ns, that we will neither arrest them nor their men, nor disseize them, nor will we proceed against them by force or by arms, unless by the law of our kingdom, or by the judgment of their peers in our court, until consideration shall be had," &c., &c. A copy of this charter is given in a note in Blackstone's Introduction to the Charters.t Mr. Christian speaks of this charter as settling the true meaning of the corresponding clause of Magna 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. * Perhaps the assertion in the text should be made with this qualification - that the words "per legem terrce," (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 strietly 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. t See Blackstone's Law Tracts, page 294, Oxford Edition. ï~~LANGUAGE OF MAGNA CARTA. 29 The truite meanin of the words, nec super aem ibimus, nec super eum maittmus, is also proved by the ' Articles of the (Great Chtarter of Liberties," (lenialled of the king by the barons, and agreed to by the kitng, under seal, a few days before the date of the Charter, andt from which the( Charter was framed.* Here the words used are these: " Ne corpus liberi lhominis capiatir n ec imnprisonetir lnec disseisetur nec utlagetur nee exuiletur nec ali(ll) o d( o (lestruatur nec rex eat vel mnittlt super euman vi nisi per jud iciili parilun suorum vel per legem terro." That is, " The body of a freeman shall not be arrested, nor imprisoned, nor disseized, nor outlawed, nor exiled, 1101or i aiy manner destroyed, nor shall the king proceed or send (any tone) against him WITH FORCE, unless by the jtiudgmnelit of his peers, or the law of the land." The true translation of the words nec snper eumn ibiuns, nec super eumn mittemus, in Magna Carta, is thus made certain, as follows, " nor will we (the khing) proceed against him, nor send (any one) against him WITH FORCE OR ARMS." It is evident that the difference between the true and false translations of the words, nec super eum ibimnus, nec super cun 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 thejudglment 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 * 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 AngloSaxons, p. 356. f Lingard says, "The words, ' We will not destroy him, nor will we go upm him, nor twill we nd 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... nee super eos per i rod per arma ibimus, nisi per legem regni nostri, vel per judioium 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. ï~~30 TRIAL BY JURY. part of the king, to which the king had no right, but which, according to the true translation, belongs wholly to the jury. "Per legale judicium parium suorum." The foregoing interpretation is corroborated, (if it were not already too plain to be susceptible of corroboration,) by the true interpretation of the phrase "per legale judicium parium suorurn." 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.* 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 * "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 ï~~LANGUAGE OF MAGNA CARTA. 31 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 fIor/ce or 'arims, by a judgment of his peers; but there is sense in saying that the king may imprison, disseize, and punish a mlanl, or proceed against him, or send any one against him, by force or arms, according to a judgment, or sententce, of his peers; because in that case the king would be merely carrying tihe sentence or judgment of the peers into execution. The word per, in the phrase "' per judicium parium sorum," of course means precisely what it does in the next phrase, "per legem terra;" 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 hlie may proceed against him, by force or arms, according to the law of the land; because tihe 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 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 ainerced, 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, "Judgmrent (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. ï~~32 TRIAL BY JURY. to be done; that is, nothing can be done by authority of law, except simply to carry the law itself into execution. So nothing could be done by authority of the sentence of the peers, or by authority of " the law of the land," except what the sentence of the peers, or the law of the land, themselves authorized or directed to be done; nothing, in short, but to carry the 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,* 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 s'uorum." That is, No one shall lose his estate, t unless according to ("secundum") the custom (or law) of our ancestors, and (according to) the sentence (or judgment) of his peers. The evidence is therefore conclusive that the phrase per 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 contene* 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. t Benejicium was the legal name of an estate held by a feudal tenure. See Spelaman's Glossary. ï~~LANGUAGE OF MAGNA CARTA. 33 ment;* 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,t if he fall under our mercy; and none of the aforesaid amercements shall be imposed, (o"r assessed, ponatur,) but by the oath of hottest men of the neighborhood. Earls and Barons shall not be amerced but by their peers, and according to the degree of their crime."$ 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. ' "Legale." The word " legale," in the phrase "per legale judicium * Contenement of a freeman was the means of living in the condition of a freeman. t Waynage was a villein's plough-tackle and carts. $ Tomlin says, "The ancient practice was, when any such fine was imposed, to inquire by a jury quantum inde regi dare valeat per annum, salva sustentatione sua 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. Â~ 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. ï~~34 TRIAL BY JURY. parium suorum," doubtless means two things. 1. That the sentence must be given in a legal manner; that is, by the legal number of jurors, legally empanelled and sworn to try the cause; and that they give their judgment or sentence after a legal trial, both in form and substance, has been had. 2. That the sentence shall be for a legal cause or offence. If, 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 legalejudicium, 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 pronounee; for in that case the sentence would not be the sentence of the peers, but only the sentence of the law, (that is, of the king); and the peers would be only a mouthpiece of the law, (that is, of the king,) in uttering it. "Per legem terrae." One other phrase remains to be explained, viz., "per legem terra," "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 terrce, as in the statute of Magna Carta, chap. 29, where certainly the common law is principally intended by those words, aut per legem terra; as appears by the exposition thereof in several subsequent statutes; and particularly in the statute of 2S Edward III., chap. 3, which is but an exposition and explanation of that statute. Sometimes it is called lev Anglice, as in the statute of Merton, cap. 9, "Nolumus leges Angliw mutari," &c., (We will that the laws of England be not changed). Sometimes it is called lex et consuetude regni (the law and custom of the kingdom); as in all commissions of oyer and termniner; and in the statutes of 18 Edward I., cap. -, and de quo warranto, and divers others. But most ï~~LANGUAGE OF MAGNA CARTA. 35 commonly it is called the Common Law, or the Common Law of luglaud; as in the statute Articuli super Chartas, cap. 15, in the statute 25 Edward Ill., cap. 5, (4,) and infinite more records and statutes." - 1 Hale's History of the Common Law, 12S. 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 ill 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 terrce, 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 legemrn terrce 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 ï~~36 TRIAL BY JURY. afforded the slightest protection to the liberties of the people, if the laws of the king had been embraced in the term legem terra. But if legemn terra, 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 legern terro, 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 terra " 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 terra 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 "le gem terra," as that term is used in that instrument. But if they were included in it, they have now been long obsolete, and were such as neither this nor any future age will ever return to.* For all practical purposes of * 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 ï~~LANGUAGE OF MAGNA CARTA. 37 the present day, therefore, it may be asserted that Magna Carta allows no trial whatever but trial by jury. Whether Magna Carta allowed sentence to be fixed otherwise than by the jury. Still another question arises on the words legem terrce, 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 terra, 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 terrce, the comthemselves; 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 terre " of Magna Carta, although such duels have occasionally occurred since that time, and have, by some, been supposed to be lawful. I apprehend that nothing can be properly said to be a part of lex terre, 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 ter," 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 a n appeal-to (;d, from the judgment of a jury.* The trial by compurg ators 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 terre." * Hallam says, " It appears as if the ordeal were permitted to persons already convicted by the Verdict of a jury." -2 Middle Ages, 446, note. ï~~38 TRIAL BY JURY. mon law, fixed the punishment in cases where the question of guilt was tried by a jury; or, indeed, that it did in any olther case. D)oubtless certain punishlmenlts were common and usual fr certain offences; but I do not think it can be shown that the comiwmon tla, the lc terra, which the king was sworn to miaintain, required any one specific punish mient, or any precise amnouit of punislhment, for anlly one specific offence. If such a thing be claimed, it must be shown, for it cannot be prestmiied. In fact, the contrary must be presumed, because, in the nature of things, the amount of punishment proper to be infilicted 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 nental and moral coustitutios 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 aumerced for a small crime, but according to the degree of the crime an d for a great crime in proportion to the mag'nitude of it;" and that "' none of the aforesaid amercen'n ts shall be imposed (or assessed() but by the oaths of honest mcYi of tihe neigtborhood;"' 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 thlie punishment was to he fixed by lthe discretion of the peers, or jury, and not by any such unvaryiig ru le as a commion law rule would be. I tlhink thcerefore, it must be conceded that, in all cases, tried by a jury, Magna Carla intended that the punishment should be fixed by the jury, and not by the common law, for these several reasons. 1. It is unceertain whether the common law fixed the punishment of any offence whatever. 2. The words "' per judieium 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. ï~~LANGUAGE OF MAGNA CARTA. 39 3. The express provisions of Magna Carta, before adverted to, that no aniercements, or fines, should be imposed upon freemen, merchants, or villeins, " but by thle oath of honest men of the neighborhood," and "accordinlg 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 jfines, or, if there were, that it was to be no longer in force. And if there was no common law fixing the amnotunt 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 punislhment or that it was to be no longer in force for that purpose.* Under the Saxon laws, fines, payable to the injured party, seem to have been the common punishments for all oflences. Even murder was punishable by a fine payable to the relatives of the deceased. The murder of the king even was punishable SCoke attempts to show that there is a distinction between amnercements and fines - admitting that atmerements must be fixed by one's peers, but claiming that fines may be fixed by the government. (2 lust. 27, 8 Coke's Rprts 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, nd subjecting them to such punishminents as the government chooses to inflict. The first statute of Westminster, passed sixty years after Magna Carta, treats the fine and amuerecenut as synonymous, as follows: " Forasmuch as the cominon ti se and amnercemrncnt 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 hoist men," &c. - 3 Edward I., Ch. 18. (1275.) And in many other statutes passed after Magna Carta, the terms fne and amnrcement secem to be usod indifferently, in prescribing the punishments for offences. As late as 141til, (246 years after Mlagna Carta,) the statute 1 Edward IV., Ch. 2, speaksof fines, ransors, and a'rcia'enwnts " as being levied upon criminals, as if they were the common punishments of offences. St. 2 and ihilip and Mary, Ch. 8, uses the terms, "fines, forfeitures, and amerciaments " five times. (1555.) St. 5 Elizabeth, C(i. 13, Sec. 10, uses the terms "fines, forfeitures, and amerciaments." That amnercemnents were fines, or peuniary punishments, inflicted for offences, is proved by the following statutes, (all supposed to have been passed within one hundred ï~~40 TRIAL BY JURY, 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 ease 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 ofTehces.* 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 lon-payment.t and fifteen years after MIagna Carta,) which speak of amercements as a species of " juwfgnent," or punishment, and as being inflicted for the same effenees as other ",judgments." Thus one statute declares that a baker, for default in the weight of his bread, "ought to be amerced, or suffer the judgment of the pillory;" and that a brewer, for " selling ale contrary to the assize," "ought to be amerced, or suffer the judgment of the tumbrol." - 51 Henry IlL, 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 anerced; but the fourth time he shall suffer judgment of the pillory without redemption." Chap. 7 provides that " 1a butcher that selleth swine's flesh measled, or flesh dead of the murrain, or that buyeth flesh of Jews, and selieth 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, " lie 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 judgnent of the pillory; at the third time he shall be imprisoned an4d makefine; 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 R1Jufhead's Statutes, 187, 188. 1 Statutes of the Realm, 203. * 1 Hume, Appendix, 1. f 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 ï~~LANGUAGE OF MAGNA CARTA. 41 Judging, therefore, from the special provisions in Magna Carta, requiring fines, or amercenments, 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 terrce." 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 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, 23:18. I give this statement of lIlackstone, 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 nonappearance, 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. ï~~42 TRIAL BY JURY. 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 terrce did authorize. But here the question arises, What then did "legem terrcea" 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 terrce 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 terre, 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 ï~~LANGUAGE OF MAGNA CARTA. 43 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 tihe ruilty. This was the oath in the Saxon times, and probably continued to be until Magna Carta. We also know that, in case of conriction, 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 leemn terra of Magna Carta, we know with reasonable certainty. We also know that Magna Carta provides that "No bailiff (balivuiis) 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 notre imposed to the ruin of the criminal; that, in the case of a freeman, his contenemnent, 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 ï~~44 TRIAL BY JURY. now, the man and his family would probably have been liable to starvation, if these means of subsistence had been taken from him. We also know, generally, that, at the time of Magna Carta, all acts intrinsically criminal, all trespasses against persons and property, were crimes, according to lex terra, or the common law. Beyond the points now given, we hardly know anything, probably nothing with certainty, as to what the "legem terrae" 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 terrce," the common law. The trial by peers was a part of legem terra., 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 terra, 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 terrae means unless by due process of law. Thus, he says: "Nisi per legem terrce. But by the law of the land. For ï~~LANGUAGE OF MAGNA CARTA. 45 the true sense and exposition of these words, see the statute of 37 Edw. llI., cap. 8, where the words, by the law of the land, are rendered without d(ie 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 origrinal of the common law. " Without being brought in to answer but by due process of the conmmon law. " No manl 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 terra 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 Ill, 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.) ï~~46 TRIAL BY JURY. The foregoing interpretation of the words nisi per legem terra; - 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 WTendell, 676; 4 Hill, 146.) The fifth amendment to the constitution of the United States seems to have been framed on the same idea, inasmuch as it provides that "no person shall be deprived of life, liberty, or property, without due process of law." Whether the word VEL should be rendered by OR, or by AND. Having thus given the meanings, or rather the applications, which the words vel per legem terrce 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 terrae, (which would then read, unless by the sentence of his peers, and the law of the land,) would convey a more intelligible and harmonious meaning than it otherwise does. Blackstone suggests that this may be the true reading. (Charters, p. 41.) Also Mr. Hallam, who says: "Nisi per legale judicium parium suorum, velper legem term. 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 takein. 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 terra, 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 * Coke, in his exposition of the words legem terrae, gives quite in detail the principles of the common law governing arrests; and takes it for granted that the words "nisi per legem terrme" are applicable to arrests, as well as to the indictment, &c. - 2 Inst., 51, 52. ï~~L ANGUAGE OF MAGNA CAItTA. was tSso llltendeld in this place. Ihile wem11in zWill be, that no personi shall he isetizl, ('.,(exce(pt 1 illa hitvhIl cause Cof Vitol J~l Yt e rdtftict ol iii Tis eal 1seems as goodits ially of, the (IisjiliiCtive llll( 11)1 1 IioliS;hilt 1I(10 not oiler it With itutohi coifihdtice. -2 lc~ftt. -It//ait8 Jddc J1; es, G~.,P r,1)..Pt oc I cite the above extitra it tir I lal iu shlly hr the sake f his utitority for rendering the word r a by and; and nut hy any means ifr the puposste of osiorsig the opinion he suggests, that len i terra or izIed '' jutl 'itents hy defat ior demturrer,"' with al the ii torst tiittof a Jary. ilie scents to(, ntsquetht eafi, terra, the cotmtnon law, at the time of i1 cyni Carta, include d iteiythingceven to the pracli ie of courts, that is, at this lainy, cailetd by the name if t u Lawi; a hereas mouch of what is now cailed CiiiiitmLtaw has gruown up, hy usurpa titt, inletihe tinme i't Iagna Carta, in Italtahleeviotation of the authiirity ott that eciter. lb says, "Certainty there arte manty legal procedures, besides trial by jury, throughi which a Iparty'., gods ior Iterston may be taken.''Of course tiiere 'are nietomany isc ayisintwhicha atiy 's L7iotls ttr person are taken, besides by the jtudgmient of a jury; but the q~uestin is, whither such takings are ntot ill violationt of Magna Carta. lie sets to thiiik that, in eases otf "judgment by defanlt (trtdemurrer," there is no need of a jury, and thtence to inter that icgt'itt terr tony not bave req~uiretlia jury ini those eases,.liut tihis oipinionr is founded othel errotneotus idea that juries are retquired only for determining conitcsted facts, toil not fior judging oif the law. Iii ease if default, the plainttiff must ptresent a pri.stia fitcicasc before lie is entitled toi a jodgiet'i; and Magna Carta, (sultlosing it tt require a jury trial ini civil cases, as 11lr. I susi assunles thsat it discs,) as mtuchi requires that tiiis primat facie case, bthl law andtlfact, bte tmade out to the satisfactiont of a jury, as it does thtat a contestedt case shtalibe. As for a dlemuirrer, the jury msust try a ilcemurrer (having thte adrice and assistance of the court, of course) as itiucti as any oilier matter of law aristig ini a case. Mr. Hlallamn evidently thinks there is not use for a jury, except whcre there is a trial ''-tteaninig thereby a cointest on matters of fact. His langugei, titat 11 there are many legal ptrcedeures, besides trial bty jury, tltrough which a ptarty's gooids or iterson may be taken." Now Magna Carta says ntothintg tf trial by jury; lbnt only oif the jacignivuit, or sentence, oif a jury. It is only by infierenice that we cote to the cosnelusiion that there must be a trial by jury. Since the jury aloine cen give the judgtne'nt, or sentence, we infer that they mnus t try the case; because otherwise they woutld be incompetent, a~nd would have no moral riglit, tot give judgmntt. They mlust, therefore, examine the grounids, (both of law and flet,) oir rather try the grounds, of every action whatsoever, whether it be decided on "default, demurrer," or otherwise, anti render their judgment, or sentence, thereon, before any judgment can be a legal one, ont which totke a party's goods or prson." In short, the principle of Magna Carta is, that no judgmeutt cant. 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 assist'ance sand advice of the jud,,es, so far as they desire them; but the judgment itself must be theirs, and not the judgment of the court. As to " process of atttahment for contempt," it is of course lawful for a judge, in Iis 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 ï~~48 TRIAL BY JURY. The idea that the word vel should be rendered by and, is corroborated, if not absolutely confirmed, by the following passage in Blackstone, which has before been cited. Speaking of the trial by jury, as established by Magna Carla, he calls it, " A privilege which is couched in almost the same words 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 eel be rendered by and, "the meaning will be, that no person shall be disseized, Ac., 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 terre, or the Common Law. Within the meaning of the legem terra of Magna Carta, nothing but a common law cause of action is a "lawful " one. ï~~LANGUAGE OF MAGNA CARTA. 49 with that of the Emperor Conrad two hundred years before: 'nemo beneficium snum perdat, nisi secundum consuetudinem antecessorum nostrorum, et judicium pariumn 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, ï~~50 TRIAL BY JU-RYd or exiled, or in any manner destroyed, (harmed,) nor will we (tile king) proceed against him, nor send any one against him7 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.) ï~~CHAPTER III. iDDITIONAL 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 thie king was to be of no authority with the jury beyond what they chose lo 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; iÂ~ 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 1. Weakness of the Regal Authority. Hughes, in his preface to his translation of Horne's "Mirror of Justices," (a book written in the time of Edward I., 1272 to 1307,) giving a concise view of the laws of 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, turn demum leges vim et vigorem habuerunt, cum fuerunt non modo institute sed firmatae approbatione communitatis." (The laws had force and vigor only when they were not only enacted, but confirmed by the approval of the community.) ï~~52 TRIAL BY JURY. 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 ordi-. nances were abused, or not used by many, nor very cunrrent, because they were not p)it inl writing, and certainly published." --1 Mirror of Justices, p. 6. Hlallanm 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 aind equals." - 1 Middle Ages, 271. T'ie "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.* Hlume says: " The government of the Germans, and that of all the northcrn 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 g uided 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 * 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: u 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. ï~~WEAKNESS OF THE REGAL AUTIORTTY.~ 53 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 sutch 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 milinary 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 governmnent. 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 vpon 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, Appendir, 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, amid 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 Co them. The conquerors of Britain retained their independ ï~~54 TRIAL BY JURY. ence; and this island saw itself again in that free state in which the Roman arms had discovered it. " The same firmness of character, and generosity of manners, which, in general. distinguished the Germans, were possessed in an eminent degree by the Saxons; and while we endeavor to 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 fiunidation of those ranks of men, and of those civil arrangements, which the barbarians everywhere established; and which thle English alone have had the good fortune, or the spirit, to preserve." S - tuart 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. 1)id lie, (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 lie infringed on the former, or disobeyed the latter, a tierce 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: amid, rivalled by half the heroes of his tribe, he could obtain little power. Anxious and watchful for the public interest, lie felt every moment is 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 umequally opposed to the prejudices and passions of men." - I)itto, p. 135-6. " The authority of a Saxon monarch was not more considerable. The &Saxons submitted not to the arbitrary rule of princes. T/ hy dlminiisere(l aV i oath to their soereigns, which bound them to acknowledge the laws, an(d to dfnd the rights of the hrcich.((d peop/; and if they torgot 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, ï~~WEAKNESS OF THE REGAL AUTHORITY. 55 or the least step towards tyranny, was always dangerous, and often fatal to them." - Ditto, p. 139-40. "They were not allowed to impose taxes on the 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,* 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 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." ï~~56 TRIAL BY JURY. " The princes in Germany were earls in England. The great contended in both countries in the number of their retainers, and in that splendor and magnificence which are so alluring to a rude people; and though they joined to set bounds to regal power, they were often animated against each other with the fiercest hatred. To a proud and 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 pricilere; 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 couirts of law.* The particular districts over which they exerted their authority were marked out in Germany by the counrcil 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 * 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. ï~~WEAKNESS OF THE REGAL AUTHORITY. 57 that their powers and prerogatives were limited by the laws and customs of the country. Our Saxon ancestors had been governed by limited monarchs in their native seats on the 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 Li istory 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. lThey 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 EEngland, Ch. 2. 45 Lardaer'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 ï~~58 TRIAL BY JURY. taxes on the people; this excellent government being, in a manner, dissolved by these destructive measures, confusion and civil wars ensued, which some very wrongfully ascribe to the fickle and restless temper of the English." - Rapin's Preface to his History of England. Hallam says that among the Saxons, " the royal authority was weak." -2 Middle Ages, 403. But although the king himself had so little authority, that it cannot be supposed for a moment that his laws were regarded as imperative by the people, it has nevertheless been claimed, in modern times, by some who seem determined to find or make a precedent for the present legislative authority of parliament, that his laws were authoritative, when assented to by the Widena-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 sup/)ort, it was impossible to carry themn into execution. To many charters (laws) we have the signatures of the IVitan. They, seldomt exceed thirty in number; they never amount to sixty.'- - 1 Liigard, 46. ï~~WEAKNESS OF THE REGAL AUTHORITY. 59 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.* * 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 hlaw 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 oounty courts, as this author seems to suppose possible. Another mode, sometimes re ï~~60 TRIAL BY JURY. There is not a more palpable truth, in the history of the Anglo-Saxon government, than that stated in the Introduction to Gilbert's History of the Common Pleas,* viz., "that the County and Hundred Courts," (to which should have been added the other courts in which juries sat, the courts-baron and court-leet,) "in those times were the real and only 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.f 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 sorted to for obtaining the sanction of the people to the laws of the Witan, was, it seems, to persuade the people themselves to swear to observe them. Mackintosh says: "The preambles of the laws (of the Witan) speak of the infinite number of 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 (neetings 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. SPage 31. Hallam saya, "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. ï~~WEAKNESS OF THE REGAL AUTHORITY. 61 pages of the statute book of Massachusetts, and was little or nothing else than a compilation of the laws of Moses, and the Saxon customs, evidently collected from considerations of 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. * "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 uwrote 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 Theodxosius, 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 _Ethelbert, 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 ï~~62 TRIAL BY JURY. Thle Code of William the Conqueror would fill less than seven pages of the statute book of Massachusetts; and most of the laws contained in it are taken froum the laws of the preceding kings, and especially of Edward the Confessor (whose laws \Villiam swore to observe); but few of his own being added. The codes of the other Saxon and Nornmaii kings were, as a general rule, less voluminous even than these that have been named; and probably did not exceed them in originality. The Norman princes, from William the Conqueror to John, I think without exception, bound themselves, and, in order to maintain their thrones, were obliged to bind themselves, to observe the ancient laws and customs, in other words, the 'lex terra," or " comnmon law " of the kingdom. E1ven Magna Carta contains hardly anything other than this same "comnwn law," with some new securities for its observance. name of the common lawu, as extending its authority universally over all the realm, and which is doubtless of Saxon parentage." - 4 Blackastone, 412. " By the Lex Terre and Lex Regni is understood the laws of Edward the Confessor, confirmed and enlarged as they were by William the Conqueror; and this Constitution? or Code of Laws is what even to this day are called ' The Common Law of the Land.' " - Introduction to Gilbert's History of the Common Pleas, p. 22, note. * Not the conqueror of the English people, (as the friends of liberty maintain,) but only of Harold the usurper. - See Hile's History of the Common Law, ch. 5. f 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 posssibly 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. ï~~ANCIENT COMMON LAW JURIES COUiRS OF CONSCIENCE. 63 how is this albstinlence from le islation t1,07 the part of the ancient kings, to be acco 1111ted 1'or, exceplt 01n the si I ppos it i( that the pleople would accep~t, and jurlies enlfO ce, lowe or nto new laws enacted by their kiiios. Plainly it can ho acconit ted for iii 110 other way. InI fact, all liisto ry in formis ts that ancienotl yrthe attemipts of tlhe0 ii i s to int roduiwe or estalisli nuew laws, met with(Iternilnod resistaince f romt the people, and generallIy resulted int 1ail ire. A oois Leff s A /it(t midt rri,' (we will that the laws of Eiuglatnd be tot clhatigd,) was a determined principle with the Aniglo-Saxons, frot which they seldom departed, IIp to the time of M~agna Ciarta, and indeed until long after.* SECTION 11. The Ancient Common Law.Jeries wee mere Courts of ("Onsctllnc. But it is in the administration of justice, or of law. that the freedom or subjection of a people is tested. If tlins admn1ustrationi be in accordance with the arbitrary will of the l'vislator-- thlat is, if his will, as it appears ins ins statutes, be the hiighiest rule of decisiotn known to the judicial tribunals,- the governmient is a despotism, and the people are slaves. 1f, on the other hland, the rule of decision be those printcipfles of natural,equity aid justice, which constitute, or at least are embiodied in, the general coniscienice of man kind(, thle people are free InI just so far as that conscience is enlightened. 't'hat the authority of the king was of little tweighlt with the Judicial /rihunuds, miust necessarily he inferred froint the fact already stated, that his authority over the peIople was bit weak. If the authority of his laws had keen pharamnount in the judicial tribunals, it would have lbeenu paramouunt with the people, of course; because they would have had no alternative * Ttapin says, " The customs now practised in England are, for the most part, the same as the Anglo-Saxons brought with them from G;ermiany." -- Ripin's Dissertation on the Goversnent of te Angi -Sax'u s, vol. 21, Oct. Ed., p. 138. Neec Kdlhcoo's Doscoursef be named. ï~~64 TRIAL BY JURY. 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 tile 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 t/hey 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.* 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. * 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. ï~~ANCIENT COMMON LAW JURIES COURTS OF CONSCIENCE. 65 And yet these were the courts, in which was done all the judicial business, both civil and criminal, of the nation, except appeals, and some of the more important and difficult cases.* It is plain that the juries, in these courts, must, of necessity, have been the sole judges of all matters of law whatsoever; because there was no one present, but sheriffs, bailiffs, and stewards, to give them any instructions; and surely it will not be pretended that the jurors were bound to take their law from such sources as these. In the second place, it is manifest that the principles of law, by which the juries determined causes, were, as a general rule, nothing else than their own ideas of natural equity, and not any laws of the king; because but few laws were enacted, and many of those were not written, but only agreed upon in council.f 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.-1 Up to this time, and for some seventy years later, the laws were generally written * 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. t " 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, t Mackintosh's History of England, ch. 3. Lardner's Cabinet Cyolopsedia, 266, ï~~66 TRIAL BY JURY. either in Latin or French; both languages incapable of being read by the common people, as well Normans as Saxons; and one of them, thIe Latin, not only incapable of being read by them, but of being even understood when it was heard by therni. ''o sllltppose that tile people were bound to obey, and juries to enforce, laws, many of which were unwritten, none of whichl th/e! could read, and tile larger part of which (those written iii Latin) they could not translate, or understand when they leard them read, is equivalent to s I pposiag the nation sunk in tihe most degrading slavery, instead of enjoying a liberty of their own lchoosirrg. 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 tihe people at large esteemed to be good laws - were doubtless enforced by the juries, and the others, as a general tlhinrg, disregarded.* Thrat 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 baili wics to meet at thleir counties and hundreds; at which justice was so done, that ecery one so judged his neighbor by such judgment as a nnin could not elsewhere receive in the likce cases, until such times as tihe customs of the realm were put in writi ig, antd certainly published. " And although a freemnan 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 hirndreds, and lords courts, if they were not specially exempted to do such suits, and there judged their neighbors." JIMirror of Justices, p. 7, 8. * If the laws of the king were received as authoritative by the juries, what occasion was there for his appointing special conmmissioners 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. ï~~ANCIENT COMMON LAW JURIES COURTS OF CONSCIENCE. 67 Gilbert, in his treatise on the Constitution of England, says: " In the county courts, if tile debt was above forty shillings, there issued( a justicics (a commission) to the sheriff, to enable lhimn to 1old such a plea, where the suitors (jurors) are judges of the law and fact." - Gilbert's Cases in Law and Equity, -c., 4 c., 156. All the ancient writs, given in Glanville, for summoning jurors, inldicate that the jurors judged of everything, on their consciences only. The writs are in this form" " Summon twelve free and legal men (or sometimes twelve knights) to be in court, prepared upon their oaths to declare whether A or B hare the greater right to the land (or other thing) in question." See Writs in Beames' Glanville, p. 54 to 70, and 233-306 to 332. Crabbe, speaking of the time of Henry I., (1100 to 1135,) recognizes tile 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 nleighborhood 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 D)anish 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. ~ "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, f Of course, Mr. Reeve means to be understood that, in the hundred court, and courtleet, 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. ï~~68 TRIAL BY JURY. presided instead of the sherif." - 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 p)roxy, 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 kiug'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.' vicecomn' Comitat' prwd' 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, coextensive with tenure; and accordingly there is inseparably incident to every manor a court-baron (curia baronum), being a court in which the freeholders of the manor are the sole judges, but in which the lord, by himself, or more commonly by his steward, presides." - Political Dictionary, word Manor. The same work, speaking of the county court, says: " The judges were the freeholders who did suit to the court." See word Courts. "In the case of freeholders attending as suitors, the county ï~~ANCIENT COMMON LAW JURIES COURTS OF CONSCIENCE. 69 court or court-baron, (as in the case of the ancient tenants per baroniam attending Parliament,) the suitors are the judges of the court, both for law and for fact, and the sheriff or the under sheriff in the county court, and the lord or his steward in the court-baron, are only presiding officers, with no judicial 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 curice, (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 ï~~70 TRIAL BY JURY. of the manor, may be, and is, entitled to the profits, consisting of the essoign pence, fines, and amerciaments. "It is held before the steward, or was, in ancient times, before the bailif; of the lord." - Tomlin's Law Dict., word CourtLeet. 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." - Gilberts 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 ordinaria, jurisdictionemn habent recusari non possunt; (the peers who have ordinary jurisdiction cannot be rejected;) "but those suitors who are judges of the court, could not he challenged; and the reason is, that there are several qualifications required by the writ, viz., that they be liberos et legales homnines 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 commono. 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 Saxoni 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 thlen request him to explain it to them, which when he hath done, and they are thus become well informed, they, anrid 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 funda ï~~ANCIENT COMMON LAW JURIES COURTS OF CONSCIENCE. 71 mental laws is there the least word, hint, or idea, that the earl or alderman (that is to say, the Prepositus (presiding officer) of the court, which is tantamount to the judge on the bench) is to take upon him to judge the delinquent in any sense 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 sherif is the ministerial officer."- 3 Stephens, 395-6. 3 Blackstone, 35-6. ï~~72 TRIAL BY JURY. 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. "C 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." - S'pence's Origin of the Laws and Political Institulions of Modern Europe, p. 444. " The right of the plaintiff and defendant, and of the prosecutor and criminal, to challenge the judices, (judges,) or a(ssessors,* 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 F'irst; 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 Anglice. * The jurors were sometimes called "assessors," because they assessed, or determined the amount of fines and amercements to be imposed. ï~~ANCIENT COMMON LAW JURIES COURTS OF CONSCIENCE. 73 This doubtless bred great inconvenience, uncertainty, and variety in the laws, viz. "First, by the ignorance of the judges, which were the 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 anlother, 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 mnake parties." - 1 1tale'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 thle 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 1hndred * -id est the freeholders - was judge." - Ditto, p. 80. Also he says: " By a law of Ed ward the Elder, ' Every sheriff shall conc "The barons of the Hundred " were the freeholders. IHallam 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. ï~~74 TRIAL BY JURY. vene the people once a month, and do equal right to all, putting an end to controversies at times appointed.'" - Ditto, p. 86. "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 Eng lish 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. ï~~ANCIENT COMMON LAW JURIES COURTS OF CONSCIENCE. 75 Coke says, "The court of the county is no court of record,* and the suitors are the judges there " - 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, aid the suitors be tereof.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 origitinally comp//rators, called by a defentidatnt to swear that they believed hit innocent of the facts with which lie was charged... But.. conmplirgators were nmerely witnesses; jurymen were, in relity, judges. The f ormer were called to confirmn the oath of tile party by swearing, according to their belief, that he had told tile truth, (il his oath of pirgation;) the latter were appointed to try, by w'itnesses, and by all other means of proof, whether he was innocent or guilty. SJuries were accustomed to ascertain tile truth of facts, by the defetdant's oath of purgatio, together with that of his comptirgators... Both of themn (jurynenu and conpurgators) were obliged to swear that they would tell the tr'th./.. 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 ease, could be at a loss to determine whether the culprit ought to be condemned or acquitted." - 1 MIillar's ist. View of Eng. Gov., ch. 12, p. 392-4. Also, "The same form of procedure, whlich took place i1 the administration of justice among the vassals of a barony, w.as gradually extended to the courts held in the trading towns." - Sae, p. 335. Also, " The same regulations, concerning the distribution of justice by the intervention of juries,.. were introduced into the baron courts of the kin g, as into those of thie nobility, or such of his subjects as retained their allodial property." - Same, p. 337. Also, " This tribunal " (the aula reg"is, or king's court, afterwards divided into the courts of King's tcich, Commoltn * The aneient 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. ï~~76 TRIAL BY JURY. Pleas, and Exchequer) "was properly the ordinary baroncourt 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 jfiscal." - Swame, 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 curic (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. ï~~ANCIENT COMMON LAW JUJRIES COIURTS OF CONSCIENCE. 77 But, in order to unlderstand tlie commo law trial by jury, as it existed prior to Magna Carta. and as it was gllaratlteed by that instriinent, it is perliaps ilidispent'lsable to unl(erstand more fully the nature of the courts in which juries sat, and the extent of the powers exercised b)y juries in those courts. I therefore give in a note extended extracts, on these points, from Stuart on the Constitution of Enlglalld, aud from Blackstone's Cominetltaries.* * 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. * * "Asa 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, lie 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 Englaud; 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. * * le inquired into the breaches of custom, and of justice, which were comunmitted within the precincts of his territory; and with his followers, who sat with him as jilges, he determined in all matters of debt, and of trespass to a certain amount. Ite 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. E.xperience 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 awlnd England, by the inhabitants of a certain division, who extended their jurisdiction over the territory they occupied.* They bound themselves under a penalty to assemble at stated times; and haing 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. u 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 * "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." ï~~78 TRIAL BY JURY. 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 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 earldorman, who presided there, was active to put the laws in execution. Ile repressed the disorders which fell out within the circuit of his authority; and the least remission in his duty, or the least fraud he conmmitted, was complained of and punished. Ile 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 help. less were ready to be oppressed by the strong, he was instructed particularly to defend them. " His court was ambulatory, and assembled only twice a year, unless the distribution of justice required that its meetings should be oftener. Every freeholder in the county was obliged to attend it; and should he refuse this service, his possessions were seized, and he was forced to find surety for his appearance. The neighboring earls held not their courts on the same day; and, what seems very singular, no judge was allowed, 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.* " 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 min his district. The same sentiments were experienced by the Saxon nobility; and the service which they owed by their tenures, and the high employments they sustained, called them often from the management of their counties. The progress, too, of commerce, * It would be wholly erroneous, I think, to infer from this statement of Stuart, that either the "priests, princes, earls, or eorldormen" exercised any authority over the jury in the trial of causes, in the way of dictating the law to them. HIenry's account of this matter doubtless gives a much more accurate -ypresentation 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 ï~~ANCIENT COMMON LAW JURIES COURTS OF CONSCIENCE. 79 already given, but is explicitly acknowledged in the following 011,one il whicl tile 'imodern rcourts o cosll eI tce" are compared with the ancient IhundcredC and coun/lily cou ts, sid the preferenlce giving an intricacy to cases, and swelling the civil code, added to the difficulty of their othefice, and made them averse to its duties. Sheriqs, therefore, or deputie s, cre 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. Th e connection of jurisdiction and territory ceasing to prevail, and the civil bein separateld from the ecclesiastical power, they became the sole and Proper offcers 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 couryt 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 piroteetion 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 thic. prerogative; and the king, or, in his absence, the chief justiciary, watcbed over their deliberations. But it was not on every trivial occasion that this court interested itself. In smaller concerns, justice was refiused 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 suecessive 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 fcr 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 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, andl 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. ï~~80 TRIAL BY JURY. given to the latter, on the ground that the duties of the jurors in the one case, and of the commissioners in the other, are the same, and that the consciences of a jury are a safer and purer sovereign) 'render up my castles, nor depart the kingdom, but by judgment of my peers.' Of this institution, so wisely calculated for the preservation of liberty, all our historians have pronounced the eulogiumn." - Ditto, p. 262-3. Blackstone says: SThe 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,*) 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, siz., the freeholders court, was composed of the lord's tenants, who were the pares (equals) * There was no distinction between the civil and criminal courrts, as to the rights or powers of Jaries ï~~ANCIENT COMMON LAW JURIES COURTS OF CONSCIENCE. 81 tribunal than the consciences of individualsspeciallyappointed, and holding permanent offices. 1" 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. 1 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. 1., chl. 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 thie 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 Parliaof 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. Csesar 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 pagoe vicosque reddunt, centeni ï~~82 TRIAL BY JURY. ment, 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 singulis, ex plebe comites concilium simul et auctoritas adsunt.' (The princes are chosen in the assemblies, who administer the laws throughout the towns and villages, and with each one are associated an hundred companions, taken from the people, for purposes both of counsel and authority.) This hundred court was denominated hereda in the Gothic constitution. But this court, as causes are equally liable to removal from hence as from the common court-baron, and by the same writs, and may also be reviewed by writ of false judgment, is therefore fallen into equal disuse with regard to the trial of actions." - 3 Blackstone, 34, 35. "The county court is a court incident to the jurisdiction of the sheriff. It is not a court of record, but may hold pleas of debt, or damages, under the value of forty 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 juti ies, 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. ï~~ANCIENT COMMON LAW JURIES COURTS OF CONSCIENCE. 83 revived, without burdening the freeholders with too frequent and tedious attendances; and at the same time removing the delays that have insensibly crept into their proceedings, and the power that either party has of transferring at pleasure their suits to the courts at Westminster! And we may, with satisfaction, observe, 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. IL., 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 sherifs, 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, ï~~84 TRIAL BY JURY. 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,"* when, as the Mirror says, "justice was so done, that every one so judged his neighbor, by such judgment as a man could not elsewhere receive in the like cases, until such * 1 Blackstone, 63-67. ï~~OATHS OF JURORS. 85 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 tha 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 de 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 ï~~86 TRIAL BY JURY. that is innocent, nor acquit any that is guilty." - 4 Blackstone, 302. 2 Turner's History of the A nglo-Saxons, 155. lVilkins' Laws of the Anglo-Saxons, 117. Spelman's Glo.sary, word Jurata. lBlackstone assumes that this was the oath of the grand jury (4 Blackstone, 302); but there was but one jury at the timne this oath was ordained. The institution of two juries, grand and petit, took place after the Norman Conquest. Ilume, speaking of the administration of justice in the time of Alfred, says that, in every hundred, " Twelve freeholders were chosen, who, having sworrrn, together with the hundreder, or presiding magistrate of that division, to administer impartialjustice, proceeded to the examinlation 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 legals homines de vicineto seu de villa, quod inde veritatem secujndumn canscientiam suaim man ifestabunt,"' (shall make twelve legal men from the neighborhood to swear that they will make know,n 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." B 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. ï~~OATHS OF JURORS. 87 Smith, writing in the time of Elizabeth, says that, in civil suits, the jury " he sworn to declare the truth of that issue according to the evidence, and their conscience." - Smith's Commonwealth tJf England, edition of 1621, p. 73. In criminal trials, he says: "The clerk giveth the juror an oath to go uprightly betwixt the prince and the prisoner." - Ditto, p. 90.* *This quaint and curious book (Smith's Cnmmonwealth of England) describes the ninutice of trials, giving in detail the mode of impanelling the jury, and then the conduct of the lawyers, witnesses, and court. I give the foxllowing extracts, tezding to show that the judges iapcse no law upon the juries, in either civil or criminal cases, but only require them to dleterine 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 recapituiation, reciteth to the twelve in sumn 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 somintiine giveth it them in writing, delivering to them the evidence which is showed on either part, if any be, (evidence here is called writings of contracts, authentical after the manner of England, that is to say, written, sealed, and delivered,) and biddeth them go together" - p. 74. This is the whole account given of the charge to the jury. In criminal eases, after the witnesses have been heard, and the prisoner has said what he pleases in his defence, the book proceeds: " When the judge hath heard them say enough, he asketh if they can say any more: If they say no, then he turneth his speech to the inquest. ' Good men, (saith he,) ye of the inquest, ye have heard what these men say against the prisoner. You have also heard what the prisoner can say for himself. Have an eye to your oath, and to your duty, and do that which God shall put in your mixds to the discharge of your coasoiences, and mark well what is said.' "- p. 92. This is the whole account given of the ehr.rge in a criminal case. The following statement goes to confirm the same idea, that jurors in England have formerly understood it to be their right and duty to judge only aceording to their 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; arnd 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 Lo)rds 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 tfbr that (day. The judgment once given, he breaketh his staff, and labdicateth his office. In the rest there is no difference from that above written," (that is, in the case of a freeman.) - p. 98. ï~~88 TRIAL BY JURY. Hale says: " Then twelve, and no less, of such as are indifferent and are returned upon the principal panel, or the tales, 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, n;either 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, ho.w 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 havo in charge, and a true verdict to give according to the evidenoe." - 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 ï~~OATHS OF JURORS. 8 9 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.* 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 *" 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. ï~~90 TRIAL BY JURY. of Connecticut and Vermont, are they sworn to present men according to law. The English form, as given in the essay on Grand Juries, written near two hundred years ago, and 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 shal 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 tise their own discretion in the way and manner of their inquiry. No directions can legally be imposed upon them nby 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 ï~~RIGHT OF JURIES TO FIX SENTENCE. 91 words of their oath, to pursue their glosses. The grand inquest are bound to observe alike strictly every part of their oath, and to use all just and proper ways which may enable them to perform it; otherwise it were to say, that after men had sworn to inquire diligently after the truth, according to the best of their knowledge, they were bound to forsake all the natural and proper means which their understandings suggest for the discovery of it, if it be commanded by the judges." - Lord Somers' Essay on Grand Juries, p. 38. What is here said so plainly and forcibly of the oath and obligations of grand juries, is equally applicable to the oath and obligations of petit juries. In both cases the simple oaths of the jurors, and not the instructions of the judges, nor the statutes of kings nor legislatures, are their legal guides to their duties.* 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 pillora," - 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 * 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." ï~~TRIAL BY JURY. amerced, or suffer judgment of the tumbrel." -51 Henry Ill1., 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 wvhole 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 'he exchequer, and not the whole sum." - St. 3 Edward I., ch. 18, (1275.)* The following statute, passed in 1341, one hundred and twenty-five years after Magna Carta, providing for the trial of peers of the realm, and the king's ministers, contains a re* Coke, as late as 1588, admits that amercements must be fixed by the peers (8 Coke's Rep. 38, 2 Inst. 27); but he attempts, wholly without success, as it seems to me, to show a difference between fines and amercements. The statutes are very 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 piinciple; and the word amercement, as used in Magna Carta, must be taken in its most comprehensive sense. ï~~RIGHT OF JURIES TO FIX SENTENCE. 93 cognition of the principle of Magna Carta, that the jury are to fix the sentence. " Whereas before this time the peers of the land have been arrested and imprisoned, and their temporalities, lands, and tenements, goods and cattels. asseized in the king's hands, and some put to death withouit 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 b)y other cause, shall be brouglht in judgment to lose his temp)oralilies, lands, tenements, goods arid 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, "t 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, I)tuke 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, ï~~94 TRIAL BY JURY. Robert Vere, Duke of Ireland, Michael de la Pole, Earl of Suffolk, and Robert Tresilian, Lord Chief Justice of England, with several others, convicted of treason, before " the Lords of Parliament," in 1388. The sentences in these cases were adjudged by the "Lords of Parliament," in the following terms, as they are reported. "Wherefore the said Lords of Parliament, there present, as judges in Parliament, in this case, by assent of the king, 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 kinlg, and that the temporalities of the Archbishop of York should be taken into the king's hands." Also, in the same case, Sir John Ilolt, Sir WVilliam 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 he 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, ï~~RIGHT OF JURIES TO FIX SENTENCE. 905 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 conslult the king, and obtaill 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 thelm, witih the assent cof the/ king. Butt in some instances no mention is made of the assent of the king, as in the case of " 1,ionel, Earl of Middlesex, Lord Iligh Treasurer of England," in 1624, (four lhundred 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 50,0)00 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 kcing. The sentence is in these words: "And, therefore, this High Court doth adjudge, That the Lord Viscount St. Albans, Lord Chancellor of England, shall utndergo 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 ï~~96 TRIAL BY JURY. 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 lHargrave'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/i 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 Ilargrave'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 backi 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., &e. ï~~RIGHT OF JURIES TO FIX SENTENCE. 97 On being interrupted, he proceeded: "'My lords, I submit whether this be not proper in mitigation of your lordships' sentence; but whether it be or not, I leave myself to your lordships' justice and mercy; I am sure neither of them will be wanting, and I entirely submit.' * * " Then the said earl, as also the managers, were directed to withdraw; and the House (of Lords) ordered Thomas, Earl of Macclesfield, to be committed to the custody of the gentleman usher of the black rod; and then proceeded to the consideration of what judgment," (that is, sentence, for he had already been found guilty,) "to give upon the impeachment against the said earl." * * "The next day, the Commons, with their speaker, being present at the bar of the House (of Lords), * * the speaker of the House of Commons said as follows: "'My Lords, the knights, citizens, and burgesses in 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, atid 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. ï~~9l TRIAL BY JURY. 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 inifluence 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 mau common right;" * 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 comnmor 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 * Common right" was the common law. 1 Coke's Inst. 142 a. 2 f&.. 55,6. ï~~OATHS OF JUDGES. 99 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 oftentimes to some sheriff, or other person, and that his commands, when communicated to his justices, or any other person, "by letters," or writs, under seal, had as much legal authority as laws promulgated in any other form whatever, it will be seen that this oath of the justices absolutely required that they disregard any legislation that was contrary to "common right," or "the common law," and notify the king that it was contrary to common right, or the common law, and then proceed to execute the common law, notwithstanding such legislation.* 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 procuremcnt, as well in the court as in the country; we * 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 s.mall, 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, Jaw," (mark the term, " common law,") " or to menace the people tbhat they may nob ï~~10()0 TRIAL BY JURY. greatly moved of conscience in this matter, and for this cause desirinlg as much for the pleasure of (od, 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 arid o)tlier wise men of our council, we have ordained these things followiing: " First, we have commanded all our jnstices. that they shall fromi heniceforth ldo eil lw r(nd execution o right to all (our sliIjccts, rich and poor, withouit havinig regard to any personl, and without omit/in e to do right for any letlrs or cornmnu,,diirlnt which may come to them from tus, or from any other, or ij ainy rtother caurtse. And if that am, letters, writs, or imniiiiidmi ents co0ei to /thejistices, or to other de l.ut'd 'to do law rt nd 1riit criccordiiig" to the usagoe of the realm, in disturbance of the lair, or of the e.rettion of the same, or of right to the parties, the jiistices and oter aforesaid shall proceed and hold their courts (intd p)roccses, wthere the pleas cnd m(tlcrters be deipenidins before them, as if no such letters, writs, or commandments were come to themi; and they shall certify us and our (oit,.il of such / CO essor; by which 1they usually nean the old commont laair whic,'h was(1 established under our Saxon prii%'es." - Bhul,'stoue's Introductiont to the Chariters. See Blackstote's Law Trcts, 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 realmn, and is, properly speaking, only an enlargement of the charter of Henry I., and his successors." - (Jrabbe's History of the Entglish Law, p. 1"27. That the coronation oath of the kings subsequent to Magna Carta was, in substance, if not in form, ' to maintait this law of the lad, or conmmon law,," is shown by a statute of Edward Third, commencing as follows SEdward, by the Grace of God, &c., &c., to the Sheriff of Stafbford, Greeting: Because that by divers complaints made to us, we have perceived that the la, of the land, which e byin oath are bound to maintain," L(c. - St. 20 Edward IIL (1316.) The following extract from Lord Somers' tract on Grand Juries shows that the coronation oath continued the same as late as 1616, (four hundred years after Magna Carta.) lie says: "D King James, in his speech to the judges, in the Star Chamber, Atno 1616, told them, 'That lie 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 sEicorn to maintain the law of the land, and therefore had been perjured if I had broken it. God is my judge, I never inttended it.' " - Somers on Grand Juries, p. 82. In 168S, 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.) ï~~108 TRIAL BY JURY. 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 beet), 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.* * 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: " Thl Imperial Witenagemot was not a legislative assembly, in the strict sense of the term, fbr the whole Anglo-S axon 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 accepl)ted by the legislatures (courts) of the several kingdoms. * * The ' asileus ' speaks in the tone of prcrogative: Edgar does not merely recomnimend, he commands that the law slhall 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 Oslae, and all the host who dwell under his government, and let it be transmitted by writ hto the ealdiorrmen of the other subordinate states. And yet, in defiance of this lsitive 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 te 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 msade of nactmaent imunst 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. Tihe laws of the glorious Athelstane had no effect in Kent, (county,) the dependent appanage of his crown, until sanctioned by the 1Uitan of the s/hire (county court). And the power of Canute himself, the 'King of all England,' does not seem to have compelled the Northurnbriarns 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 Witenagemnot. The wisdom of the assembly was shown in avoiding unnecessary change. Consisting principally of traditionary usages and ancestorial cu stomrns, 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; mist frequently, the statutes themselves were only ofirmances of ancient crustoms, or declaratory enactmnts. 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 mnembers of the Witenagemot were the ' Pares Curia ' (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 tihe 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 ï~~THE CORONATION OVILI. 109 oipinion whinch they g'ave. A the 'Pares' of the empire, the Witerci emit decided the (lispiutes hetwei th eeait v assals of the crown. * IThe jurisdlict ion exercised in the 'arliaieiit o f Eiwarid I.,wihen theyi irn i f a 1, ri!- lirs/crhe waiiie the subject of litigationi, is e(lirely alit 'iio to the nseoiei ii's thus rislipted hy the great cIiuncil of, Edward, tie sof tlfrIted, the iioii o-tit kiiiIn this asseiubly, the kiii' tie lrelat istie iukes, the eaidoriueii,and the optiIThe soierricoii hul nut i iuijl the ohs/ire ofIthe di/frentciit li c iil hiiifi t/ithe Anglo iS(sirou suprliri 11eice, it hecame more iiecessary tor hm to csi t i th/ieir ojnniriu, i f hie so)licited aniy selrvice tromiiiasisial rice ir a vassal state heyounid the ordinary terms ot the complact; still mire si, whien lie iieeded the suppiort of 1itiire'iurgh or city. And wein t y iew the asenibly (the WXitena-enill) as puirtthmiii it the chiaracter iif a politiical ci ucreso, in wtiiihItiie lii eme ith te en iwn, or tin ci iinuiiit ies protectedl bivthe I itasiieuo '(sovereign,) were askdor jiersuadrdto relievethie exigentce, of the state, or tiiciiiiiiler tiiioe mleasures winch miight he reqiried tiir the cuommon weal Thelisoveremg was comnpelle d tio parley winth his depenileit. It may hieidiuittd whether aeny one meminher of tue empire itadipower to legislate fur any other membner. The Regulus of tuimhrit, was umiatfectid by he iivoiteif the Earl otf Easot A nia,, if lie citose to staiind(lltutaaiiist it. These diigiitaries constituteid a congress, ini which the sovereign ciiild treiit more ciinveniently anil etfectually with his vassals than by separiate inegotiationis. * *lint the determninatiiins of the Witan bounil those only who were presenit, or who eoncurreid in thle priipositiiini and a vassal denying his asseiit to the grant, might assert that the engagement which lie had contracteid with his superior ilid not involve any pecuniary suhsiidy, hut oily rendered hint liahie to perfiirmn service in the field." - 1 Palgrcmre's Rinse and Progress r/' the English Corn nnwealth, 6i37 to 642. ï~~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 ï~~RIGHTS AND DUTIES OF JURIEiS IN CIVIL SLITS. 1i1 07' 13aUve fle; grea/ler rig/lif to rc tIW(111/1 (r1( st. l 1(4/ind~icate that the jurors judged of the whole nmatter oii their conlTh~le lanIgulage of: griJ 'arta, alrea~~dy iscufssed.( stab lishes tile sailie Poilit; for, alhtilil sonme of the \xords Suck as "'outlawed,' nd1(1 'exiled,''would1)1apply only to ciIminl Cases, nearly the whole chlapjter a81)1)1 Cs 85wel11to (ivIillas to crimiual shits. 1 or ( \8111lple, how (c111( the pavzIerIt of a delbt ever he etlorced aga~inlst all til~l illitlLg Idebt(r, if lhe eould neither bie " arrestedIiprisofled. nor deprived of his freehold,' and if thle king~cotul d 11(1thCer l~roCetCC(1 11 iilst lissII1101, selld any~ 01(0 aginlst hill1 by forXc or 8(1118' ' Yet. Mla Ila ('arta as much fo lhilds that any o#' these things shall be (cle i~Caiist a dehtor, as agailst all (liilal, e((Yet of o COdiai/Jto, 0o' in ex - C,111ioi of',.'' a j7rdg)11(?iif f his peers. or th/Ii( (1r of the land.' -a prviin hih, i asbensowa the jur(y the free acid( absolute righlt to give or Xiilllold 'l jeln't accord ing to tiheir coInscicesC, irrespectivye of all legislation. r-"ie fol lowing provisions, ilntile Ma gna 'a rta of John, illustrate the culstomi of referring the most imuport aIit matters of a civil nature, even where the king wvas a party, to tile determinitationl of the peers, or of tweve thenIl, ac1t ing bt)y n10rumles but thleir ownl consciecesCC. 'These examuples at least show that there is nlothling improhable or lIllatliral ilntile idea that juries should try all civil suits according to thleir own jnldgznents, independenltly of all laws of the(kiin. (ilup. 6y. "If we have disseized 01 tlispossessed the Welsh of any 1alnds, liherties, or' other thlirlm~s, willt i he legal jrldlgmilent of thleir peers, they shlall I i nlre(litelyv restored to them. And if any dispute arises 11pon11tis ihead, tile matter shall be determined in the Marchles, * by Me/a /I!rm,,fn~ of f/air peers,'" &c. Ch/ap. 68. "' We shall treat witih Alexanider king of Scots, concrnig te restoring of' his sisters, and hostages, and rights and lihertiesinIlltile satie formn and 1118l1I1Cr as we shailll do to the rest of our haro115 of' lKnrianld;111nless hbytile engageCmnents, which. ilis fatiler Williami. late king Oft Scots, hatli entered into withIIu11. it ouigh~t to he otherwise: rud(fti~s/ihall he left to the determinaftionlof 1 his peris 1i1,(101/' e oii'f' * Alarches, the limits, or boundaries, between EnglIand and Wales. ï~~112 TRIAL BY JURY. Chap. 56. "All evil customs concerning forests, warrens, and foresters, warreners, sheriffs, and their officers, rivers and their keepers, shall forthwith be inqulired into in each county, by twelve kInihts of the sa(me shire, chosen by the most creditable persons in the same counlty, and Iupon oath; and within forty days after the said inquest, be ultterly abolished, so as never to be restored." 'Thlere is substantially the same reason why a jury oughtl to judge of the justice of laws, and hold all unjust laws invalid, in civil suits, as inr criminal ones. That reason is the necessity of guardiing against the tyranny of the government. Nearly the same oppressionls can be practised in civil suits as in crimiial ones. For example, individuals may be deprived of their liberty, and robbed of their property, by judgments rendered ii civil suits, as well as in criminal ones. If the laws of the king were imperative upon a jury in civit suits, the king might enact laws giving one man's property to another, or confiscating it to tihe king himself, and authorizing civil suits to obtain possession of it. irtils a man might be robbed of hip 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 it civil suits: if tlte laws of the king were imperative upon a jury int such suits.* * 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 seiome evidence of the general fact. Halahun 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 wretohed 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 Afiddle Ages, 4,5-6. "In the succeeding reign of Jh, 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 ï~~'RIGHTS AND DUTIES OF JURIES IN CIVIL SUITS 113 Furthermore, it would be absurd and inconsistent to make a jury paramount to legislation in criminal suits, and subordinate to it in ciil suits- becausv an individtal, by resisting the execution of a civil judgment, founded upon an unjust Jews, who were entirely ont of the protection of the law, and were abandoned to the rimmeasurable rapacity of the king and his ministers. l Besides many other indignities, to which they were continually exposxled, it appears that they were once all thrown into prison, arnd the stun of t0;,0)0) marks exacted for their liberty. At anodier time, Isaac, the Jew, paid alone 5100 narks; Brun, 3000 marks; Jurnet, 2000; lennet, 50)0. At another, Licorice, widow of David, the Jew of Oxford, was required to pay 6000 marks." - lHum 's tHit. Enag., Appendix 2. Further accounts of the extortions and oppressions of the kings may be found in Ilume's History, Appendix 2, and in Ilallam'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 " oi nain) princes, * * Peter, of Blois, a judicious and even elegant writer, of that age, gives a pathetic description of he f'//yli of just ice, and the oppressions of the poor, * * and he scrplles not to complain to the king himself of these abuses. We may judge what the case would be under the goverinuent 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 conimission, 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 titles) 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. ï~~118 TRIAL BY JURY. 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 slucceeded in retarding a decision. * * But besides the fines paid to the sovereigns, the, judges often eacted presents for thermselvyes, and loud complaints existed against their venality and injustice." -2 Lin.gard, 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; arid 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 Commnonwealthl, 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 claimiant, 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 otlher words, that the Thanes of the shire woudi 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 prutdence which so often calls forth the praises of the monastic scribe. le 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 ï~~RIGHTS AND DUTIES OF JURIES IN CIVIL SUITS. 119 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, 4c., 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 manlier: We, or, if we should be out of our realm, our chief justiciary, shall send two justiciaries through every county four times a year; * who, with four knights chosen out of every shire, by the people, shall hold the assizes (juries) in the county, on the day and at the place appointed." It would be very unreasonable to suppose that the king's judges were allowed to dictate the law to the juries, when the people would not even sutffer them to sit alone in jury trials, but themselves chose four men to sit with them, to keep them honest. + * By the Magna Carta of Itenry III. this is changed to once a year. t 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. ï~~120 TRIAL BY JURY. 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 p)eop/le. * But the following chapter of John's charter, which immediately succeeds the one just quoted, and refers to the same suits, aIffords 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 sake the law. Chap. 23. "And if, on the county day, the aforesaid assizes canlnot be taken, so manty knights aid Jreeholdcers shall remain, of those witho shall have been present on said day, as that the, zjudgments may be rendered by them, whether the business be more or less." * "The earls, sheriffs, and head-boroughs were annually elected in the full folcmote, (ip ple's meeting)."' - Introduction to Gilbert's History of the Common Pleas, p. 2, note. " It was the cspecial province of the earldomen or earl to attend the shyre-meeting, (the county court,) twice a year, and there officiate as the county judlge in expounding the secular laws, as appears by the fifth of Edgar's laws."- Same, p. 2, note. " Every wo'rad had its proper alderman, who was chosen, and not imposed by the prince."- ' Name, p. 4, text. " s the ahlcrmuen, or earls, were always chosen " (by the people) "from among the greatest thanes, wh in those timnes were generally more addicted to arms than to letters, they were obut ill-qualiied f1or the administration of justice, and performing the civil duties of their oitce." -3 hlenry's History of Great Britain, 343. " ut ine of these thanes were annually elected in the full folcmote, (people's meeting,) a.so the carls, sheriffs, and hcad-boroughs were; nor did King Alfred (as this author sug.gests) delrive the peolple of the election of those last mentioned magistrates mand n!oblcs, much less did hlie appoint them himself." - Introd. to Gilbert's Hist. Conm. Pleas, p. 2, ntc. " The siherilf was usually not appointed by the lord, but elected by the freeholders of the district." - Pitical Dictionary, word Sheniff. " Amnong the niost 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 sheriffts, their conservators of the peace, their coroners, their portreeves, (since changed into mayors and bailitffs,) 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. ï~~RIGHTS AND DUTIES OF JURIES IN CIVIL SUITS. 121 The meaning of this chapter is, that so many of the civil suits, as could not be tried onl tihe day whlen the king's j istices were present, should be tried afterwardls, by the i/or knights beJore mcIintionicd, and the fr'ceholdcrs, 11(11 is. /he jir/. It must be admitted, of course, that the juries, iI n theise cases, judged the nmatters of law, as well as fact, iniless it be p(esumled1 that the kniights 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 neivertlheless 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 thle 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 Eduward I., st. 1, cli. 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, atnd there was no power in the king to absolve them from the duity. 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. Hie had just as mnuch 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 ï~~122 TRIAL BY JURY. should not be compelled to declare the law, but might leave it to be decided by the king's judges. It was as much the legal duty of the jury to decide the law as to decide the fact; and no law of the king could affect their obligation to do either. And this statute is only one example of. the numberless contrivances and usurpations which have been resorted to, for the purpose of destroying the original and genuine trial by jury. ï~~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 maximnt of the law, that the judges respond to the question of law, and juries only to the question of fact. The answer to this objection is, that, since Magna Carta, judges have had more than six centuries in which to invent and promulgate pretended maxims to suit themselves; and this is one of them. Instead of expressing the law, it expresses nothing but the ambitious and lawless will of the judges themselves, and of those whose instruments they are.* 2. It will be asked, Of what 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 * 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 wlhat they mniy not hear, anl also by dietating 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. ï~~124 TRIAL BY JURY. 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 foud 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 lhave 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 exec'uted 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 dishontest, is not witlhin ï~~OBJECTIONS ANSWERED. 125 the range of probability. A jury, therefore, insures to us - what no other court does - that first an11d indispensable requisite in a judicial tribunal, in tegrity. 4. It is alleged that if juries are allowed to judge of the law, they deride the lu, absolute.oly; that their (ldcis=/ioil nust necessarily sta7d, he it rihit or wrong; and that this power of absolute decision would be dangerous in their hands, by reason of their ignorance of the law. Onte 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 mian'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 ï~~126 TRIAL BY JURY. 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 wvill 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 ï~~OBJECTIONS ANSWERED. 127 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, altliougl one jury nay disagree, a succession of juries are not likely to disagree - that is, on ma/ters of natural law, or abstract jstice.* 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, notwithlstanding 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 mka/ces no1ne; and jiustice mnust 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. * 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. ï~~128 TRIAL BY JURY. 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 ï~~OBJECTIONS ANSWERED. 129 systems - because the system is in full operation; but we cannot determine how much justice would fail to be done under the latter system, because we have, in modern times, had no experience of the use of the precautions themselves. In ancient times, when these precautions were nominally in force, such was the tyranny of kings, and such the poverty, ignorance, and the inability of concert and resistance, on the part of the people, that the system had no full or fair 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 ï~~130 TRIAL BY JURY. 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 rightfillly 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 widesweeping 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.* * This is the principle of all voluntary asssoeiations 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 ï~~OBJECTIONS ANSWERED. 131 If any of the members wish more than this,- if they claim to have acquired a more extended knowledge of justice than is common to all, and wish to have their pretended discoveries carried into effect, in reference to themselves, - they must either form a separate association for that purpose, or be content to wait until they can make their views intelligible to the people at large. They cannot claim or expect that the whole people shall practise the folly of taking on trust their pretended 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. means to be used to accomplish the ends in view; but the ends themselsdves to be accomplished are always precisely defined, and are such as every member neoessarily 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. ï~~132 TRIAL BY JURY. If a government were to be established and supported solely by that portion of the people who lay claim to superior 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 enfo)rce 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 re(quire 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 the appeal court) a new trial, to guard against possible mistakes. This system, it is assumed, will ascertain the sense of ï~~OBJECTIONS ANSWERED. 133 the whole people - "the country " - with sufficient accuracy for all practical purposes, and with as much accuracy as is practicable without too great inconvenience and expense. 5. Another objection that will perhaps be made to allowing jurors to judge of the law, and the justice of the law, is, that 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 becomne 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 ï~~I r TRIAL BY JURY. miadly bent on building up such labyrinths as these, for no othler purpose than that of exposing all their rights of reputationi, property, liberty, anid lite, to the hazards of being lost it heni, instead ot" beiiig content to live in the light of the opetl day of thuer owni understandings? tWhat lhoiest, unsoplhisticated 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: lHe would then feel that he could foresee the result. These plain men are the men who pay the taxes, and support the gover nment. Why should they not have such an administrationt 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 hiimself something like definite and clear opinions, and also knows soimethiing of the opilions of his neighbors, on matters of justice. And lie would know that no statute, unless it were so clearly just as to command the utanimous 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, l rop,,ty, liberty, or life. What greater certainty can met requt re 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 constititionaal, and whether it would be enforced, would not 1e under the necessity of waiting for years until some suit had arisen and been carried through all the stages of judicial proceedinig, 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 hie found them nearly ulaaimous in their interpretation and approbation of it, he would conclude that juries would not unite in enforcing it, and that it would consequently be a dead letter. And he would be safe in coming to this conclusion. There would be something like certainty in the administra ï~~OBJECTIONS ANSWrERED. 135 tion of justice, and in the popular knowwledge 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 l egislation and usurpation had become incorporated into the common law,) - in other words, uporn 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 porti of our statntory and constitutional law. The r eason is this. The words in which statutes alnd constitutions are written are susceptible of so many different meanings, - meanings wi(dely 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 mneanings 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 ahem. iHence the necessity of a rule of interpretation. And this rule is, that the lanbuage of statutes aid constitutions shall he conshrued, as inearly as possible, consistently with:?Iat( ral 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 assunmes further, that they (the legisAators and judges) are inconimpetet to make and interpret the written law, unless they previously understand the natural 4aw 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. o one can. know what the written law is, until he knows what it oug/ht to be; that men are liable to be constantly misled by the various atnd 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 ï~~136 TRIAL BY JURY. natural law of any that the words can be made to bear, consistently witlh the laws of language, and appropriately to the subljects to wlhich they are applied. 'I'Tlh ougli the words contain the law, the words themselves are not the law. \YWere the words tlhemselves the law, each sin Ie lwritten law would1 he liable to embrace many different laws, to wit. as many different laws as there were dltiferent sentsces, a I ai ii. fit I;1 La nrl an officer apporintedl hy the sheriff. Bail id's are either spfiiI, ia poir1nited r, fr their ardroitness, to arrest persons; or hailiffs oft hundredls, wholrrerlect ties, Sumrioni juries, attend the assizes, and execute writs and processes. PiThy or vftf ill / r t ris Itrh rin 1g's baiiiff. //it (ct/jrf// ruI I rntr i/teas high rrnr honra~~ble in Eu0/and, aour!fficers ur that title on there cu/n r it raire stilircstcr/ with im zrnjsitrit fnctions.'' - Webster. <