{"collection":"philosophy-ethics","full_text_available":true,"graph_url":"https://unchartedknowledge.5gfusion.net/v2/api/page/gutenberg_32984/graph","html_url":"https://unchartedknowledge.5gfusion.net/v2/page/gutenberg_32984","id":"gutenberg_32984","license":"Public Domain (US)","rights_basis":"gutenberg_metadata_copyright_false","source":"gutenberg","source_url":"https://www.gutenberg.org/ebooks/32984","summary":null,"tags":["Category: History - British","Category: Law & Criminology","Category: Philosophy & Ethics","Jury -- Great Britain","Jury -- United States"],"text":"Produced by Susan Goble, Curtis Weyant, Graeme Mackreth\nand the Online Distributed Proofreading Team at\nhttps://www.pgdp.net\n\n\n\n\n\n\n\nAN ESSAY\n\nON THE\n\nTRIAL BY JURY.\n\n\nBY LYSANDER SPOONER.\n\n\n BOSTON:\n JOHN P. JEWETT AND COMPANY.\n CLEVELAND, OHIO:\n JEWETT, PROCTOR & WORTHINGTON.\n 1852.\n\n\n Entered according to Act of Congress, in the year 1852, by\n LYSANDER SPOONER,\n In the Clerk's Office of the District Court of Massachusetts.\n\n\nNOTICE TO ENGLISH PUBLISHERS.\n\nThe author claims the copyright of this book in England, on Common Law\nprinciples, without regard to acts of parliament; and if the main\nprinciple of the book itself be true, viz., that no legislation, in\nconflict with the Common Law, is of any validity, his claim is a legal\none. He forbids any one to reprint the book without his consent.\n\n\n Stereotyped by\n HOBART & ROBBINS;\n New England Type and Stereotype Foundery,\n BOSTON.\n\n\nNOTE.\n\nThis volume, it is presumed by the author, gives what will generally be\nconsidered satisfactory evidence,--though not all the evidence,--of what\nthe Common Law trial by jury really is. In a future volume, if it should\nbe called for, it is designed to corroborate the grounds taken in this;\ngive a concise view of the English constitution; show the\nunconstitutional character of the existing government in England, and\nthe unconstitutional means by which the trial by jury has been broken\ndown in practice; prove that, neither in England nor the United States,\nhave legislatures ever been invested by the people with any authority to\nimpair the powers, change the oaths, or (with few exceptions) abridge\nthe jurisdiction, of juries, or select jurors on any other than Common\nLaw principles; and, consequently, that, in both countries, legislation\nis still constitutionally subordinate to the discretion and consciences\nof Common Law juries, in all cases, both civil and criminal, in which\njuries sit. The same volume will probably also discuss several political\nand legal questions, which will naturally assume importance if the trial\nby jury should be reestablished.\n\n\n\n\nCONTENTS.\n\n                                                                       PAGE\n\n\nCHAPTER I.   THE RIGHT OF JURIES TO JUDGE OF THE JUSTICE OF LAWS,         5\n\n             SECTION 1,                                                   5\n\n             SECTION 2,                                                  11\n\n\nCHAPTER II.  THE TRIAL BY JURY, AS DEFINED BY MAGNA CARTA,               20\n\n             SECTION 1. _The History of Magna Carta_,                    20\n\n             SECTION 2. _The Language of Magna Carta_,                   25\n\n\nCHAPTER III.  ADDITIONAL PROOFS OF THE RIGHTS AND DUTIES OF JURORS,      51\n\n              SECTION 1. _Weakness of the Regal Authority_,              51\n\n              SECTION 2. _The Ancient Common Law Juries were mere\n              Courts of Conscience_,                                     63\n\n              SECTION 3. _The Oaths of Jurors_,                          85\n\n              SECTION 4. _The Right of Jurors to fix the Sentence_,      91\n\n              SECTION 5. _The Oaths of Judges_,                          98\n\n              SECTION 6. _The Coronation Oath_,                         102\n\n\nCHAPTER IV.   THE RIGHTS AND DUTIES OF JURIES IN CIVIL SUITS,           110\n\n\nCHAPTER V.    OBJECTIONS ANSWERED,                                      128\n\n\nCHAPTER VI.   JURIES OF THE PRESENT DAY ILLEGAL,                        142\n\n\nCHAPTER VII.  ILLEGAL JUDGES,                                           157\n\n\nCHAPTER VIII. THE FREE ADMINISTRATION OF JUSTICE,                       172\n\n\nCHAPTER IX.   THE CRIMINAL INTENT,                                      178\n\n\nCHAPTER X.    MORAL CONSIDERATIONS FOR JURORS,                          189\n\n\nCHAPTER XI.   AUTHORITY OF MAGNA CARTA,                                 192\n\n\nCHAPTER XII.  LIMITATIONS IMPOSED UPON THE MAJORITY BY\n              THE TRIAL BY JURY,                                        206\n\n\nAPPENDIX--TAXATION,                                                     222\n\n\n\n\nTRIAL BY JURY.\n\n\n\n\nCHAPTER I.\n\nTHE RIGHT OF JURIES TO JUDGE OF THE JUSTICE OF LAWS.\n\n\nSECTION I.\n\nFor more than six hundred years--that is, since Magna Carta, in\n1215--there has been no clearer principle of English or American\nconstitutional law, than that, in criminal cases, it is not only the\nright and duty of juries to judge what are the facts, what is the law,\nand what was the moral intent of the accused; _but that it is also their\nright, and their primary and paramount duty, to judge of the justice of\nthe law, and to hold all laws invalid, that are, in their opinion,\nunjust or oppressive, and all persons guiltless in violating, or\nresisting the execution of, such laws_.\n\nUnless such be the right and duty of jurors, it is plain that, instead\nof juries being a \"palladium of liberty\"--a barrier against the tyranny\nand oppression of the government--they are really mere tools in its\nhands, for carrying into execution any injustice and oppression it may\ndesire to have executed.\n\nBut for their right to judge of the law, _and the justice of the law_,\njuries would be no protection to an accused person, _even as to matters\nof fact_; for, if the government can dictate to a jury any law whatever,\nin a criminal case, it can certainly dictate to them the laws of\nevidence. That is, it can dictate what evidence is admissible, and what\ninadmissible, _and also what force or weight is to be given to the\nevidence admitted_. And if the government can thus dictate to a jury the\nlaws of evidence, it can not only make it necessary for them to convict\non a partial exhibition of the evidence rightfully pertaining to the\ncase, but it can even require them to convict on any evidence whatever\nthat it pleases to offer them.\n\nThat the rights and duties of jurors must necessarily be such as are\nhere claimed for them, will be evident when it is considered what the\ntrial by jury is, and what is its object.\n\n_\"The trial by jury,\" then, is a \"trial by the country\"--that is, by the\npeople--as distinguished from a trial by the government._\n\nIt was anciently called \"trial _per pais_\"--that is, \"trial by the\ncountry.\" And now, in every criminal trial, the jury are told that the\naccused \"has, for trial, put himself upon the _country_; which _country_\nyou (the jury) are.\"\n\n_The object of this trial \"by the country\" or by the people, in\npreference to a trial by the government, is to guard against every\nspecies of oppression by the government. In order to effect this end, it\nis indispensable that the people, or \"the country,\" judge of and\ndetermine their own liberties against the government; instead of the\ngovernment's judging of and determining its own powers over the people.\nHow is it possible that juries can do anything to protect the liberties\nof the people against the government, if they are not allowed to\ndetermine what those liberties are?_\n\nAny government, that is its own judge of, and determines authoritatively\nfor the people, what are its own powers over the people, is an absolute\ngovernment of course. It has all the powers that it chooses to exercise.\nThere is no other--or at least no more accurate--definition of a\ndespotism than this.\n\nOn the other hand, any people, that judge of, and determine\nauthoritatively for the government, what are their own liberties against\nthe government, of course retain all the liberties they wish to enjoy.\n_And this is freedom._ At least, it is freedom _to them_; because,\nalthough it may be theoretically imperfect, it, nevertheless,\ncorresponds to _their_ highest notions of freedom.\n\nTo secure this right of the people to judge of their own liberties\nagainst the government, the jurors are taken, (or must be, to make them\nlawful jurors,) from the body of the people, _by lot_, or by some\nprocess that precludes any previous knowledge, choice, or selection of\nthem, on the part of the government. This is done to prevent the\ngovernment's constituting a jury of its own partisans or friends; in\nother words, to prevent the government's _packing_ a jury, with a view\nto maintain its own laws, and accomplish its own purposes.\n\nIt is supposed that, if twelve men be taken, _by lot_, from the mass of\nthe people, without the possibility of any previous knowledge, choice,\nor selection of them, on the part of the government, the jury will be a\nfair epitome of \"the country\" at large, and not merely of the party or\nfaction that sustain the measures of the government; that substantially\nall classes of opinions, prevailing among the people, will be\nrepresented in the jury; and especially that the opponents of the\ngovernment, (if the government have any opponents,) will be represented\nthere, as well as its friends; that the classes, who are oppressed by\nthe laws of the government, (if any are thus oppressed,) will have their\nrepresentatives in the jury, as well as those classes, who take sides\nwith the oppressor--that is, with the government.\n\nIt is fairly presumable that such a tribunal will agree to no conviction\nexcept such as _substantially the whole country_ would agree to, if they\nwere present, taking part in the trial. A trial by such a tribunal is,\ntherefore, in effect, \"a trial by the country.\" In its results it\nprobably comes as near to a trial by the _whole_ country, as any trial\nthat it is practicable to have, without too great inconvenience and\nexpense. And as unanimity is required for a conviction, it follows that\nno one can be convicted, except for the violation of such laws as\nsubstantially the whole country wish to have maintained. The government\ncan enforce none of its laws, (by punishing offenders, through the\nverdicts of juries,) except such as substantially the whole people wish\nto have enforced. The government, therefore, consistently with the trial\nby jury, can exercise no powers over the people, (or, what is the same\nthing, over the accused person, who represents the rights of the\npeople,) except such as substantially the whole people of the country\nconsent that it may exercise. In such a trial, therefore, \"the country,\"\nor the people, judge of and determine their own liberties against the\ngovernment, instead of the government's judging of and determining its\nown powers over the people.\n\nBut all this \"trial by the country\" would be no trial at all \"by the\ncountry,\" but only a trial by the government, if the government could\neither declare who may, and who may not, be jurors, or could dictate to\nthe jury anything whatever, either of law or evidence, that is of the\nessence of the trial.\n\nIf the government may decide who may, and who may not, be jurors, it\nwill of course select only its partisans, and those friendly to its\nmeasures. It may not only prescribe who may, and who may not, be\neligible to be drawn as jurors; but it may also question each person\ndrawn as a juror, as to his sentiments in regard to the particular law\ninvolved in each trial, before suffering him to be sworn on the panel;\nand exclude him if he be found unfavorable to the maintenance of such a\nlaw.[1]\n\nSo, also, if the government may dictate to the jury _what laws they are\nto enforce_, it is no longer a \"trial by the country,\" but a trial by\nthe government; because the jury then try the accused, not by any\nstandard of their own--not by their own judgments of their rightful\nliberties--but by a standard dictated to them by the government. And the\nstandard, thus dictated by the government, becomes the measure of the\npeople's liberties. If the government dictate the standard of trial, it\nof course dictates the results of the trial. And such a trial is no\ntrial by the country, but only a trial by the government; and in it the\ngovernment determines what are its own powers over the people, instead\nof the people's determining what are their own liberties against the\ngovernment. In short, if the jury have no right to judge of the justice\nof a law of the government, they plainly can do nothing to protect the\npeople against the oppressions of the government; for there are no\noppressions which the government may not authorize by law.\n\nThe jury are also to judge whether the laws are rightly expounded to\nthem by the court. Unless they judge on this point, they do nothing to\nprotect their liberties against the oppressions that are capable of\nbeing practised under cover of a corrupt exposition of the laws. If the\njudiciary can authoritatively dictate to a jury any exposition of the\nlaw, they can dictate to them the law itself, and such laws as they\nplease; because laws are, in practice, one thing or another, according\nas they are expounded.\n\nThe jury must also judge whether there really be any such law, (be it\ngood or bad,) as the accused is charged with having transgressed. Unless\nthey judge on this point, the people are liable to have their liberties\ntaken from them by brute force, without any law at all.\n\nThe jury must also judge of the laws of evidence. If the government can\ndictate to a jury the laws of evidence, it can not only shut out any\nevidence it pleases, tending to vindicate the accused, but it can\nrequire that any evidence whatever, that it pleases to offer, be held as\nconclusive proof of any offence whatever which the government chooses to\nallege.\n\nIt is manifest, therefore, that the jury must judge of and try the whole\ncase, and every part and parcel of the case, free of any dictation or\nauthority on the part of the government. They must judge of the\nexistence of the law; of the true exposition of the law; _of the justice\nof the law_; and of the admissibility and weight of all the evidence\noffered; otherwise the government will have everything its own way; the\njury will be mere puppets in the hands of the government; and the trial\nwill be, in reality, a trial by the government, and not a \"trial by the\ncountry.\" By such trials the government will determine its own powers\nover the people, instead of the people's determining their own liberties\nagainst the government; and it will be an entire delusion to talk, as\nfor centuries we have done, of the trial by jury, as a \"palladium of\nliberty,\" or as any protection to the people against the oppression and\ntyranny of the government.\n\nThe question, then, between trial by jury, as thus described, and trial\nby the government, is simply a question between liberty and despotism.\nThe authority to judge what are the powers of the government, and what\nthe liberties of the people, must necessarily be vested in one or the\nother of the parties themselves--the government, or the people; because\nthere is no third party to whom it can be entrusted. If the authority be\nvested in the government, the government is absolute, and the people\nhave no liberties except such as the government sees fit to indulge them\nwith. If, on the other hand, that authority be vested in the people,\nthen the people have all liberties, (as against the government,) except\nsuch as substantially the whole people (through a jury) choose to\ndisclaim; and the government can exercise no power except such as\nsubstantially the whole people (through a jury) consent that it may\nexercise.\n\n\nSECTION II.\n\nThe force and justice of the preceding argument cannot be evaded by\nsaying that the government is chosen by the people; that, in theory, it\nrepresents the people; that it is designed to do the will of the people;\nthat its members are all sworn to observe the fundamental or\nconstitutional law instituted by the people; that its acts are therefore\nentitled to be considered the acts of the people; and that to allow a\njury, representing the people, to invalidate the acts of the government,\nwould therefore be arraying the people against themselves.\n\nThere are two answers to such an argument.\n\nOne answer is, that, in a representative government, there is no\nabsurdity or contradiction, nor any arraying of the people against\nthemselves, in requiring that the statutes or enactments of the\ngovernment shall pass the ordeal of any number of separate tribunals,\nbefore it shall be determined that they are to have the force of laws.\nOur American constitutions have provided five of these separate\ntribunals, to wit, representatives, senate, executive,[2] jury, and\njudges; and have made it necessary that each enactment shall pass the\nordeal of all these separate tribunals, before its authority can be\nestablished by the punishment of those who choose to transgress it. And\nthere is no more absurdity or inconsistency in making a jury one of\nthese several tribunals, than there is in making the representatives, or\nthe senate, or the executive, or the judges, one of them. There is no\nmore absurdity in giving a jury a veto upon the laws, than there is in\ngiving a veto to each of these other tribunals. The people are no more\narrayed against themselves, when a jury puts its veto upon a statute,\nwhich the other tribunals have sanctioned, than they are when the same\nveto is exercised by the representatives, the senate, the executive, or\nthe judges.\n\nBut another answer to the argument that the people are arrayed against\nthemselves, when a jury hold an enactment of the government invalid, is,\nthat the government, and all the departments of the government, _are\nmerely the servants and agents of the people_; not invested with\narbitrary or absolute authority to bind the people, but required to\nsubmit all their enactments to the judgment of a tribunal more fairly\nrepresenting the whole people, before they carry them into execution, by\npunishing any individual for transgressing them. If the government were\nnot thus required to submit their enactments to the judgment of \"the\ncountry,\" before executing them upon individuals--if, in other words,\nthe people had reserved to themselves no veto upon the acts of the\ngovernment, the government, instead of being a mere servant and agent of\nthe people, would be an absolute despot over the people. It would have\nall power in its own hands; because the power to _punish_ carries all\nother powers with it. A power that can, of itself, and by its own\nauthority, punish disobedience, can compel obedience and submission, and\nis above all responsibility for the character of its laws. In short, it\nis a despotism.\n\nAnd it is of no consequence to inquire how a government came by this\npower to punish, whether by prescription, by inheritance, by usurpation,\nor by delegation from the people? _If it have now but got it_, the\ngovernment is absolute.\n\nIt is plain, therefore, that if the people have invested the government\nwith power to make laws that absolutely bind the people, and to punish\nthe people for transgressing those laws, the people have surrendered\ntheir liberties unreservedly into the hands of the government.\n\nIt is of no avail to say, in answer to this view of the case, that in\nsurrendering their liberties into the hands of the government, the\npeople took an oath from the government, that it would exercise its\npower within certain constitutional limits; for when did oaths ever\nrestrain a government that was otherwise unrestrained? Or when did a\ngovernment fail to determine that all its acts were within the\nconstitutional and authorized limits of its power, if it were permitted\nto determine that question for itself?\n\nNeither is it of any avail to say, that, if the government abuse its\npower, and enact unjust and oppressive laws, the government may be\nchanged by the influence of discussion, and the exercise of the right of\nsuffrage. Discussion can do nothing to prevent the enactment, or procure\nthe repeal, of unjust laws, unless it be understood that the discussion\nis to be followed by resistance. Tyrants care nothing for discussions\nthat are to end only in discussion. Discussions, which do not interfere\nwith the enforcement of their laws, are but idle wind to them. Suffrage\nis equally powerless and unreliable. It can be exercised only\nperiodically; and the tyranny must at least be borne until the time for\nsuffrage comes. Besides, when the suffrage is exercised, it gives no\nguaranty for the repeal of existing laws that are oppressive, and no\nsecurity against the enactment of new ones that are equally so. The\nsecond body of legislators are liable and likely to be just as\ntyrannical as the first. If it be said that the second body may be\nchosen for their integrity, the answer is, that the first were chosen\nfor that very reason, and yet proved tyrants. The second will be exposed\nto the same temptations as the first, and will be just as likely to\nprove tyrannical. Who ever heard that succeeding legislatures were, on\nthe whole, more honest than those that preceded them? What is there in\nthe nature of men or things to make them so? If it be said that the first\nbody were chosen from motives of injustice, that fact proves that there is\na portion of society who desire to establish injustice; and if they were\npowerful or artful enough to procure the election of their instruments to\ncompose the first legislature, they will be likely to be powerful or\nartful enough to procure the election of the same or similar instruments\nto compose the second. The right of suffrage, therefore, and even a change\nof legislators, guarantees no change of legislation--certainly no change\nfor the better. Even if a change for the better actually comes, it comes\ntoo late, because it comes only after more or less injustice has been\nirreparably done.\n\nBut, at best, the right of suffrage can be exercised only periodically;\nand between the periods the legislators are wholly irresponsible. No\ndespot was ever more entirely irresponsible than are republican\nlegislators during the period for which they are chosen. They can\nneither be removed from their office, nor called to account while in\ntheir office, nor punished after they leave their office, be their\ntyranny what it may. Moreover, the judicial and executive departments of\nthe government are equally irresponsible _to the people_, and are only\nresponsible, (by impeachment, and dependence for their salaries), to\nthese irresponsible legislators. This dependence of the judiciary and\nexecutive upon the legislature is a guaranty that they will always\nsanction and execute its laws, whether just or unjust. Thus the\nlegislators hold the whole power of the government in their hands, and\nare at the same time utterly irresponsible for the manner in which they\nuse it.\n\nIf, now, this government, (the three branches thus really united in\none), can determine the validity of, and enforce, its own laws, it is,\nfor the time being, entirely absolute, and wholly irresponsible to the\npeople.\n\nBut this is not all. These legislators, and this government, so\nirresponsible while in power, can perpetuate their power at pleasure, if\nthey can determine what legislation is authoritative upon the people,\nand can enforce obedience to it; for they can not only declare their\npower perpetual, but they can enforce submission to all legislation that\nis necessary to secure its perpetuity. They can, for example, prohibit\nall discussion of the rightfulness of their authority; forbid the use of\nthe suffrage; prevent the election of any successors; disarm, plunder,\nimprison, and even kill all who refuse submission. If, therefore, the\ngovernment (all departments united) be absolute for a day--that is, if\nit can, for a day, enforce obedience to its own laws--it can, in that\nday, secure its power for all time--like the queen, who wished to reign\nbut for a day, but in that day caused the king, her husband, to be\nslain, and usurped his throne.\n\nNor will it avail to say that such acts would be unconstitutional, and\nthat unconstitutional acts may be lawfully resisted; for everything a\ngovernment pleases to do will, of course, be determined to be\nconstitutional, if the government itself be permitted to determine the\nquestion of the constitutionality of its own acts. Those who are capable\nof tyranny, are capable of perjury to sustain it.\n\nThe conclusion, therefore, is, that any government, that can, _for a\nday_, enforce its own laws, without appealing to the people, (or to a\ntribunal fairly representing the people,) for their consent, is, in\ntheory, an absolute government, irresponsible to the people, and can\nperpetuate its power at pleasure.\n\nThe trial by jury is based upon a recognition of this principle, and\ntherefore forbids the government to execute any of its laws, by\npunishing violators, in any case whatever, without first getting the\nconsent of \"the country,\" or the people, through a jury. In this way,\nthe people, at all times, hold their liberties in their own hands, and\nnever surrender them, even for a moment, into the hands of the\ngovernment.\n\nThe trial by jury, then, gives to any and every individual the liberty,\nat any time, to disregard or resist any law whatever of the government,\nif he be willing to submit to the decision of a jury, the questions,\nwhether the law be intrinsically just and obligatory? and whether his\nconduct, in disregarding or resisting it, were right in itself? And any\nlaw, which does not, in such trial, obtain the unanimous sanction of\ntwelve men, taken at random from the people, and judging according to\nthe standard of justice in their own minds, free from all dictation and\nauthority of the government, may be transgressed and resisted with\nimpunity, by whomsoever pleases to transgress or resist it.[3]\n\nThe trial by jury authorizes all this, or it is a sham and a hoax,\nutterly worthless for protecting the people against oppression. If it do\nnot authorize an individual to resist the first and least act of\ninjustice or tyranny, on the part of the government, it does not\nauthorize him to resist the last and the greatest. If it do not\nauthorize individuals to nip tyranny in the bud, it does not authorize\nthem to cut it down when its branches are filled with the ripe fruits of\nplunder and oppression.\n\nThose who deny the right of a jury to protect an individual in resisting\nan unjust law of the government, deny him all _legal_ defence\nwhatsoever against oppression. The right of revolution, which tyrants,\nin mockery, accord to mankind, is no _legal_ right _under_ a government;\nit is only a _natural_ right to overturn a government. The government\nitself never acknowledges this right. And the right is practically\nestablished only when and because the government no longer exists to\ncall it in question. The right, therefore, can be exercised with\nimpunity, only when it is exercised victoriously. All _unsuccessful_\nattempts at revolution, however justifiable in themselves, are punished\nas treason, if the government be permitted to judge of the treason. The\ngovernment itself never admits the injustice of its laws, as a legal\ndefence for those who have attempted a revolution, and failed. The right\nof revolution, therefore, is a right of no practical value, except for\nthose who are stronger than the government. So long, therefore, as the\noppressions of a government are kept within such limits as simply not to\nexasperate against it a power greater than its own, the right of\nrevolution cannot be appealed to, and is therefore inapplicable to the\ncase. This affords a wide field for tyranny; and if a jury cannot _here_\nintervene, the oppressed are utterly defenceless.\n\nIt is manifest that the only security against the tyranny of the\ngovernment lies in forcible resistance to the execution of the\ninjustice; because the injustice will certainly be executed, _unless it\nbe forcibly resisted_. And if it be but suffered to be executed, it must\nthen be borne; for the government never makes compensation for its own\nwrongs.\n\nSince, then, this forcible resistance to the injustice of the government\nis the only possible means of preserving liberty, it is indispensable to\nall _legal_ liberty that this _resistance_ should be _legalized_. It is\nperfectly self-evident that where there is no _legal_ right to resist\nthe oppression of the government, there can be no _legal_ liberty. And\nhere it is all-important to notice, that, _practically speaking_, there\ncan be no _legal_ right to resist the oppressions of the government,\nunless there be some _legal_ tribunal, other than the government, and\nwholly independent of, and _above_, the government, to judge between the\ngovernment and those who resist its oppressions; in other words, to\njudge what laws of the government are to be obeyed, and what may be\nresisted and held for nought. The only tribunal known to our laws, for\nthis purpose, is a jury. If a jury have not the right to judge between\nthe government and those who disobey its laws, and resist its\noppressions, the government is absolute, and the people, _legally\nspeaking_, are slaves. Like many other slaves they may have sufficient\ncourage and strength to keep their masters somewhat in check; but they\nare nevertheless _known to the law_ only as slaves.\n\nThat this right of resistance was recognized as a common law right, when\nthe ancient and genuine trial by jury was in force, is not only proved\nby the nature of the trial itself, but is acknowledged by history.[4]\n\nThis right of resistance is recognized by the constitution of the United\nStates, as a strictly legal and constitutional right. It is so\nrecognized, first by the provision that \"the trial of all crimes, except\nin cases of impeachment, shall be by jury\"--that is, by the country--and\nnot by the government; secondly, by the provision that \"the right of the\npeople to keep and bear arms shall not be infringed.\" This\nconstitutional security for \"the right to keep and bear arms,\" implies\nthe right to use them--as much as a constitutional security for the\nright to buy and keep food would have implied the right to eat it. The\nconstitution, therefore, takes it for granted that the people will\njudge of the conduct of the government, and that, as they have the\nright, they will also have the sense, to use arms, whenever the\nnecessity of the case justifies it. And it is a sufficient and _legal_\ndefence for a person accused of using arms against the government, if he\ncan show, to the satisfaction of a jury, _or even any one of a jury_,\nthat the law he resisted was an unjust one.\n\nIn the American _State_ constitutions also, this right of resistance to\nthe oppressions of the government is recognized, in various ways, as a\nnatural, legal, and constitutional right. In the first place, it is so\nrecognized by provisions establishing the trial by jury; thus requiring\nthat accused persons shall be tried by \"the country,\" instead of the\ngovernment. In the second place, it is recognized by many of them, as,\nfor example, those of Massachusetts, Maine, Vermont, Connecticut,\nPennsylvania, Ohio, Indiana, Michigan, Kentucky, Tennessee, Arkansas,\nMississippi, Alabama, and Florida, by provisions expressly declaring\nthat the people shall have the right to bear arms. In many of them also,\nas, for example, those of Maine, New Hampshire, Vermont, Massachusetts,\nNew Jersey, Pennsylvania, Delaware, Ohio, Indiana, Illinois, Florida,\nIowa, and Arkansas, by provisions, in their bills of rights, declaring\nthat men have a natural, inherent, and inalienable right of \"_defending_\ntheir lives and liberties.\" This, of course, means that they have a\nright to defend them against any injustice _on the part of the\ngovernment_, and not merely on the part of private individuals; because\nthe object of all bills of rights is to assert the rights of individuals\nand the people, _as against the government_, and not as against private\npersons. It would be a matter of ridiculous supererogation to assert, in\na constitution of government, the natural right of men to defend their\nlives and liberties against private trespassers.\n\nMany of these bills of rights also assert the natural right of all men\nto protect their property--that is, to protect it _against the\ngovernment_. It would be unnecessary and silly indeed to assert, in a\nconstitution of government, the natural right of individuals to protect\ntheir property against thieves and robbers.\n\nThe constitutions of New Hampshire and Tennessee also declare that \"The\ndoctrine of non-resistance against arbitrary power and oppression is\nabsurd, slavish, and destructive of the good and happiness of mankind.\"\n\nThe legal effect of these constitutional recognitions of the right of\nindividuals to defend their property, liberties, and lives, against the\ngovernment, is to legalize resistance to all injustice and oppression,\nof every name and nature whatsoever, on the part of the government.\n\nBut for this right of resistance, on the part of the people, all\ngovernments would become tyrannical to a degree of which few people are\naware. Constitutions are utterly worthless to restrain the tyranny of\ngovernments, unless it be understood that the people will, by force,\ncompel the government to keep within the constitutional limits.\nPractically speaking, no government knows any limits to its power,\nexcept the endurance of the people. But that the people are stronger\nthan the government, and will resist in extreme cases, our governments\nwould be little or nothing else than organized systems of plunder and\noppression. All, or nearly all, the advantage there is in fixing any\nconstitutional limits to the power of a government, is simply to give\nnotice to the government of the point at which it will meet with\nresistance. If the people are then as good as their word, they may keep\nthe government within the bounds they have set for it; otherwise it will\ndisregard them--as is proved by the example of all our American\ngovernments, in which the constitutions have all become obsolete, at the\nmoment of their adoption, for nearly or quite all purposes except the\nappointment of officers, who at once become practically absolute, except\nso far as they are restrained by the fear of popular resistance.\n\nThe bounds set to the power of the government, by the trial by jury, as\nwill hereafter be shown, are these--that the government shall never\ntouch the property, person, or natural or civil rights of an individual,\nagainst his consent, (except for the purpose of bringing them before a\njury for trial,) unless in pursuance and _execution_ of a judgment, or\ndecree, rendered by a jury in each individual case, upon such evidence,\nand such law, as are satisfactory to their own understandings and\nconsciences, irrespective of all legislation of the government.\n\n[Footnote 1: To show that this supposition is not an extravagant one, it\nmay be mentioned that courts have repeatedly questioned jurors to\nascertain whether they were prejudiced _against the government_--that\nis, whether they were in favor of, or opposed to, such laws of the\ngovernment as were to be put in issue in the then pending trial. This\nwas done (in 1851) in the United States District Court for the District\nof Massachusetts, by Peleg Sprague, the United States district judge, in\nempanelling three several juries for the trials of Scott, Hayden, and\nMorris, charged with having aided in the rescue of a fugitive slave from\nthe custody of the United States deputy marshal. This judge caused the\nfollowing question to be propounded to all the jurors separately; and\nthose who answered unfavorably for the purposes of the government, were\nexcluded from the panel.\n\n   \"Do you hold any opinions upon the subject of the Fugitive Slave Law,\n   so called, which will induce you to refuse to convict a person\n   indicted under it, if the facts set forth in the indictment, _and\n   constituting the offence_, are proved against him, and the court\n   direct you that the law is constitutional?\"\n\nThe reason of this question was, that \"the Fugitive Slave Law, so\ncalled,\" was so obnoxious to a large portion of the people, as to render\na conviction under it hopeless, if the jurors were taken\nindiscriminately from among the people.\n\nA similar question was soon afterwards propounded to the persons drawn\nas jurors in the United States _Circuit_ Court for the District of\nMassachusetts, by Benjamin R. Curtis one of the Justices of the Supreme\nCourt of the United States, in empanelling a jury for the trial of the\naforesaid Morris on the charge before mentioned; and those who did not\nanswer the question favorably for the government were again excluded\nfrom the panel.\n\nIt has also been an habitual practice with the Supreme Court of\nMassachusetts, in empanelling juries for the trial of _capital_\noffences, to inquire of the persons drawn as jurors whether they had any\nconscientious scruples against finding verdicts of guilty in such cases;\nthat is, whether they had any conscientious scruples against sustaining\nthe law prescribing death as the punishment of the crime to be tried;\nand to exclude from the panel all who answered in the affirmative.\n\nThe only principle upon which these questions are asked, is this--that\nno man shall be allowed to serve as juror, unless he be ready to enforce\nany enactment of the government, however cruel or tyrannical it may be.\n\nWhat is such a jury good for, as a protection against the tyranny of the\ngovernment? A jury like that is palpably nothing but a mere tool of\noppression in the hands of the government. A trial by such a jury is\nreally a trial by the government itself--and not a trial by the\ncountry--because it is a trial only by men specially selected by the\ngovernment for their readiness to enforce its own tyrannical measures.\n\nIf that be the true principle of the trial by jury, the trial is utterly\nworthless as a security to liberty. The Czar might, with perfect safety\nto his authority, introduce the trial by jury into Russia, if he could\nbut be permitted to select his jurors from those who were ready to\nmaintain his laws, without regard to their injustice.\n\nThis example is sufficient to show that the very pith of the trial by\njury, as a safeguard to liberty, consists in the jurors being taken\nindiscriminately from the whole people, and in their right to hold\ninvalid all laws which they think unjust.]\n\n[Footnote 2: The executive has a qualified veto upon the passage of\nlaws, in most of our governments, and an absolute veto, in all of them,\nupon the execution of any laws which he deems unconstitutional; because\nhis oath to support the constitution (as he understands it) forbids him\nto execute any law that he deems unconstitutional.]\n\n[Footnote 3: And if there be so much as a reasonable _doubt_ of the\njustice of the laws, the benefit of that doubt must be given to the\ndefendant, and not to the government. So that the government must keep\nits laws _clearly_ within the limits of justice, if it would ask a jury\nto enforce them.]\n\n[Footnote 4: _Hallam_ says, \"The relation established between a lord and\nhis vassal by the feudal tenure, far from containing principles of any\nservile and implicit obedience, permitted the compact to be dissolved in\ncase of its violation by either party. This extended as much to the\nsovereign as to inferior lords. * * If a vassal was aggrieved, and if\njustice was denied him, he sent a defiance, that is, a renunciation of\nfealty to the king, and was entitled to enforce redress at the point of\nhis sword. It then became a contest of strength as between two\nindependent potentates, and was terminated by treaty, advantageous or\notherwise, according to the fortune of war. * * There remained the\noriginal principle, that allegiance depended conditionally upon good\ntreatment, and that an appeal might be _lawfully_ made to arms against\nan oppressive government. Nor was this, we may be sure, left for extreme\nnecessity, or thought to require a long-enduring forbearance. In modern\ntimes, a king, compelled by his subjects' swords to abandon any\npretension, would be supposed to have ceased to reign; and the express\nrecognition of such a right as that of insurrection has been justly\ndeemed inconsistent with the majesty of law. But ruder ages had ruder\nsentiments. Force was necessary to repel force; and men accustomed to\nsee the king's authority defied by a private riot, were not much shocked\nwhen it was resisted in defence of public freedom.\"--_3 Middle Ages_,\n240-2.]\n\n\n\n\nCHAPTER II.\n\nTHE TRIAL BY JURY, AS DEFINED BY MAGNA CARTA.\n\n\nThat the trial by jury is all that has been claimed for it in the\npreceding chapter, is proved both by the history and the language of the\nGreat Charter of English Liberties, to which we are to look for a true\ndefinition of the trial by jury, and of which the guaranty for that\ntrial is the vital, and most memorable, part.\n\n\nSECTION I.\n\n_The History of Magna Carta._\n\nIn order to judge of the object and meaning of that chapter of Magna\nCarta which secures the trial by jury, it is to be borne in mind that,\nat the time of Magna Carta, the king (with exceptions immaterial to this\ndiscussion, but which will appear hereafter) was, constitutionally, the\nentire government; the sole _legislative_, _judicial_, and executive\npower of the nation. The executive and judicial officers were merely his\nservants, appointed by him, and removable at his pleasure. In addition\nto this, \"the king himself often sat in his court, which always attended\nhis person. He there heard causes, and pronounced judgment; and though\nhe was assisted by the advice of other members, it is not to be imagined\nthat a decision could be obtained contrary to his inclination or\nopinion.\"[5] Judges were in those days, and afterwards, such abject\nservants of the king, that \"we find that King Edward I. (1272 to 1307)\nfined and imprisoned his judges, in the same manner as Alfred the Great,\namong the Saxons, had done before him, by the sole exercise of his\nauthority.\"[6]\n\nParliament, so far as there was a parliament, was a mere _council_ of\nthe king.[7] It assembled only at the pleasure of the king; sat only\nduring his pleasure; and when sitting had no power, so far as _general_\nlegislation was concerned, beyond that of simply _advising_ the king.\nThe only legislation to which their assent was constitutionally\nnecessary, was demands for money and military services for\n_extraordinary_ occasions. Even Magna Carta itself makes no provisions\nwhatever for any parliaments, except when the king should want means to\ncarry on war, or to meet some other _extraordinary_ necessity.[8] He had\nno need of parliaments to raise taxes for the _ordinary_ purposes of\ngovernment; for his revenues from the rents of the crown lands and other\nsources, were ample for all except extraordinary occasions. Parliaments,\ntoo, when assembled, consisted only of bishops, barons, and other great\nmen of the kingdom, unless the king chose to invite others.[9] There was\nno House of Commons at that time, and the people had no right to be\nheard, unless as petitioners.[10]\n\nEven when laws were made at the time of a parliament, they were made in\nthe name of the king alone. Sometimes it was inserted in the laws, that\nthey were made with the _consent_ or _advice_ of the bishops, barons,\nand others assembled; but often this was omitted. Their consent or\nadvice was evidently a matter of no legal importance to the enactment or\nvalidity of the laws, but only inserted, when inserted at all, with a\nview of obtaining a more willing submission to them on the part of the\npeople. The style of enactment generally was, either \"_The King wills\nand commands_,\" or some other form significant of the sole legislative\nauthority of the king. The king could pass laws at any time when it\npleased him. The presence of a parliament was wholly unnecessary. Hume\nsays, \"It is asserted by Sir Harry Spelman, as an undoubted fact, that,\nduring the reigns of the Norman princes, every order of the king, issued\nwith the consent of his privy council, had the full force of law.\"[11]\nAnd other authorities abundantly corroborate this assertion.[12]\n\nThe king was, therefore, constitutionally the government; and the only\nlegal limitation upon his power seems to have been simply the _Common\nLaw_, usually called \"_the law of the land_,\" which he was bound by oath\nto maintain; (which oath had about the same practical value as similar\noaths have always had.) This \"law of the land\" seems not to have been\nregarded at all by many of the kings, except so far as they found it\nconvenient to do so, or were constrained to observe it by the fear of\narousing resistance. But as all people are slow in making resistance,\noppression and usurpation often reached a great height; and, in the case\nof John, they had become so intolerable as to enlist the nation almost\nuniversally against him; and he was reduced to the necessity of\ncomplying with any terms the barons saw fit to dictate to him.\n\nIt was under these circumstances, that the Great Charter of English\nLiberties was granted. The barons of England, sustained by the common\npeople, having their king in their power, compelled him, as the price of\nhis throne, to pledge himself that he would punish no freeman for a\nviolation of any of his laws, unless with the consent of the peers--that\nis, the equals--of the accused.\n\nThe question here arises, Whether the barons and people intended that\nthose peers (the jury) should be mere puppets in the hands of the king,\nexercising no opinion of their own as to the intrinsic merits of the\naccusations they should try, or the _justice_ of the laws they should be\ncalled on to enforce? Whether those haughty and victorious barons, when\nthey had their tyrant king at their feet, gave back to him his throne,\nwith full power to enact any tyrannical laws he might please, reserving\nonly to a jury (\"the country\") the contemptible and servile privilege of\nascertaining, (under the dictation of the king, or his judges, as to the\nlaws of evidence), the simple _fact_ whether those laws had been\ntransgressed? Was this the only restraint, which, when they had all\npower in their hands, they placed upon the tyranny of a king, whose\noppressions they had risen in arms to resist? Was it to obtain such a\ncharter as that, that the whole nation had united, as it were, like one\nman, against their king? Was it on such a charter that they intended to\nrely, for all future time, for the security of their liberties? No. They\nwere engaged in no such senseless work as that. On the contrary, when\nthey required him to renounce forever the power to punish any freeman,\nunless by the consent of his peers, they intended those peers should\njudge of, and try, the whole case on its merits, independently of all\narbitrary legislation, or judicial authority, on the part of the king.\nIn this way they took the liberties of each individual--and thus the\nliberties of the whole people--entirely out of the hands of the king,\nand out of the power of his laws, and placed them in the keeping of the\npeople themselves. And this it was that made the trial by jury the\npalladium of their liberties.\n\nThe trial by jury, be it observed, was the only real barrier interposed\nby them against absolute despotism. Could this trial, then, have been\nsuch an entire farce as it necessarily must have been, if the jury had\nhad no power to judge of the justice of the laws the people were\nrequired to obey? Did it not rather imply that the jury were to judge\nindependently and fearlessly as to everything involved in the charge,\nand especially as to its intrinsic justice, and thereon give their\ndecision, (unbiased by any legislation of the king,) whether the accused\nmight be punished? The reason of the thing, no less than the historical\ncelebrity of the events, as securing the liberties of the people, and\nthe veneration with which the trial by jury has continued to be\nregarded, notwithstanding its essence and vitality have been almost\nentirely extracted from it in practice, would settle the question, if\nother evidences had left the matter in doubt.\n\nBesides, if his laws were to be authoritative with the jury, why should\nJohn indignantly refuse, as at first he did, to grant the charter, (and\nfinally grant it only when brought to the last extremity,) on the ground\nthat it deprived him of all power, and left him only the name of a king?\n_He_ evidently understood that the juries were to veto his laws, and\nparalyze his power, at discretion, by forming their own opinions as to\nthe true character of the offences they were to try, and the laws they\nwere to be called on to enforce; and that \"_the king wills and\ncommands_\" was to have no weight with them contrary to their own\njudgments of what was intrinsically right.[13]\n\nThe barons and people having obtained by the charter all the liberties\nthey had demanded of the king, it was further provided by the charter\nitself that twenty-five barons should be appointed by the barons, out of\ntheir number, to keep special vigilance in the kingdom to see that the\ncharter was observed, with authority to make war upon the king in case\nof its violation. The king also, by the charter, so far absolved all the\npeople of the kingdom from their allegiance to him, as to authorize and\nrequire them to swear to obey the twenty-five barons, in case they\nshould make war upon the king for infringement of the charter. It was\nthen thought by the barons and people, that something substantial had\nbeen done for the security of their liberties.\n\nThis charter, in its most essential features, and without any abatement\nas to the trial by jury, has since been confirmed more than thirty\ntimes; and the people of England have always had a traditionary idea\nthat it was of some value as a guaranty against oppression. Yet that\nidea has been an entire delusion, unless the jury have had the right to\njudge of the justice of the laws they were called on to enforce.\n\n\nSECTION II.\n\n_The Language of Magna Carta._\n\nThe language of the Great Charter establishes the same point that is\nestablished by its history, viz., that it is the right and duty of the\njury to judge of the justice of the laws.\n\nThe chapter guaranteeing the trial by jury is in these words:\n\n   \"Nullus liber homo capiatur, vel imprisonetur, aut disseisetur, aut\n   utlagetur, aut exuletur, aut aliquo modo destruatur; nec super eum\n   ibimus, nec super eum mittemus, nisi per legale judicium parium\n   suorum, vel per legem terrae.\"[14]\n\nThe corresponding chapter in the Great Charter, granted by Henry III.,\n(1225,) and confirmed by Edward I., (1297,) (which charter is now\nconsidered the basis of the English laws and constitution,) is in nearly\nthe same words, as follows:\n\n   \"Nullus liber homo capiatur, vel imprisonetur, aut disseisetur de\n   libero tenemento, vel libertatibus, vel liberis consuetudinibus suis,\n   aut utlagetur, aut exuletur, aut aliquo modo destruatur, nec super\n   eum ibimus, nec super eum mittemus, nisi per legale judicium parium\n   suorum, vel per legem terrae.\"\n\nThe most common translation of these words, at the present day, is as\nfollows:\n\n   \"No freeman shall be arrested, or imprisoned, or deprived of his\n   freehold, or his liberties, or free customs, or outlawed, or exiled,\n   or in any manner destroyed, _nor will we (the king) pass upon him,\n   nor condemn him_, unless by the judgment of his peers, or the law of\n   the land.\"\n\n   \"_Nec super eum ibimus, nec super eum mittemus._\"\n\nThere has been much confusion and doubt as to the true meaning of the\nwords, \"_nec super eum ibimus, nec super eum mittemus_.\" The more common\nrendering has been, \"_nor will we pass upon him, nor condemn him_.\" But\nsome have translated them to mean, \"_nor will we pass upon him, nor\ncommit him to prison_.\" Coke gives still a different rendering, to the\neffect that \"No man shall be condemned at the king's suit, either before\nthe king in his bench, nor before any other commissioner or judge\nwhatsoever.\"[15]\n\nBut all these translations are clearly erroneous. In the first place,\n\"_nor will we pass upon him_,\"--meaning thereby to decide upon his guilt\nor innocence _judicially_--is not a correct rendering of the words,\n\"_nec super eum ibimus_.\" There is nothing whatever, in these latter\nwords, that indicates _judicial_ action or opinion at all. The words, in\ntheir common signification, describe _physical_ action alone. And the\ntrue translation of them, as will hereafter be seen, is, _\"nor will we\nproceed against him,\" executively_.\n\nIn the second place, the rendering, \"_nor will we condemn him_,\" bears\nlittle or no analogy to any common, or even uncommon, signification of\nthe words \"_nec super eum mittemus_.\" There is nothing in these latter\nwords that indicates _judicial_ action or decision. Their common\nsignification, like that of the words _nec super eum ibimus_, describes\n_physical_ action alone. \"_Nor will we send upon (or against) him_,\"\nwould be the most obvious translation, and, as we shall hereafter see,\nsuch is the true translation.\n\nBut although these words describe _physical_ action, on the part of the\nking, as distinguished from judicial, they nevertheless do not mean, as\none of the translations has it, \"_nor will we commit him to prison_;\"\nfor that would be a mere repetition of what had been already declared by\nthe words \"_nec imprisonetur_.\" Besides, there is nothing about prisons\nin the words \"_nec super eum mittemus_;\" nothing about sending _him_\nanywhere; but only about sending (something or somebody) _upon_ him, or\n_against_ him--that is, _executively_.\n\nCoke's rendering is, if possible, the most absurd and gratuitous of all.\nWhat is there in the words, \"_nec super eum mittemus_\" that can be made\nto mean \"_nor shall he be condemned before any other commissioner or\njudge whatsoever_?\" Clearly there is nothing. The whole rendering is a\nsheer fabrication. And the whole object of it is to give color for the\nexercise of a _judicial_ power, by the king, or his judges, which is\nnowhere given them.\n\nNeither the words, \"_nec super eum ibimus, nec super eum mittemus_,\" nor\nany other words in the whole chapter, authorize, provide for, describe,\nor suggest, any _judicial_ action whatever, on the part either of the\nking, or of his judges, or of anybody, _except the peers, or jury_.\nThere is nothing about the king's _judges_ at all. And there is nothing\nwhatever, in the whole chapter, _so far as relates to the action of the\nking_, that describes or suggests anything but _executive_ action.[16]\n\nBut that all these translations are certainly erroneous, is proved by a\ntemporary charter, granted by John a short time previous to the Great\nCharter, for the purpose of giving an opportunity for conference,\narbitration, and reconciliation between him and his barons. It was to\nhave force until the matters in controversy between them could be\nsubmitted to the Pope, and to other persons to be chosen, some by the\nking, and some by the barons. The words of the charter are as follows:\n\n\"Sciatis nos concessisse baronibus nostris qui contra nos sunt quod nec\neos nec homines suos capiemus, nec disseisiemus _nec super eos per vim\nvel per arma ibimus_ nisi per legem regni nostri vel per judicium parium\nsuorum in curia nostra donec consideratio facta fuerit,\" &c., &c.\n\nThat is, \"Know that we have granted to our barons who are opposed to us,\nthat we will neither arrest them nor their men, nor disseize them, _nor\nwill we proceed against them by force or by arms_, unless by the law of\nour kingdom, or by the judgment of their peers in our court, until\nconsideration shall be had,\" &c., &c.\n\nA copy of this charter is given in a note in Blackstone's Introduction\nto the Charters.[17]\n\nMr. Christian speaks of this charter as settling the true meaning of the\ncorresponding clause of Magna Carta, on the principle that laws and\ncharters on the same subject are to be construed with reference to each\nother. See _3 Christian's Blackstone_, 41, _note_.\n\nThe true meaning of the words, _nec super eum ibimus, nec super eum\nmittemus_, is also proved by the \"_Articles of the Great Charter of\nLiberties_,\" demanded of the king by the barons, and agreed to by the\nking, under seal, a few days before the date of the Charter, and from\nwhich the Charter was framed.[18] Here the words used are these:\n\n   \"Ne corpus liberi hominis capiatur nec imprisonetur nec disseisetur\n   nec utlagetur nec exuletur nec aliquo modo destruatur _nec rex eat\n   vel mittat super eum vi_ nisi per judicium parium suorum vel per\n   legem terrae.\"\n\n   That is, \"The body of a freeman shall not be arrested, nor\n   imprisoned, nor disseized, nor outlawed, nor exiled, nor in any\n   manner destroyed, _nor shall the king proceed or send (any one)\n   against him_ WITH FORCE, unless by the judgment of his peers, or the\n   law of the land.\"\n\nThe true translation of the words _nec super eum ibimus, nec super eum\nmittemus_, in Magna Carta, is thus made certain, as follows, \"_nor will\nwe (the king) proceed against him, nor send (any one) against him_ WITH\nFORCE OR ARMS.\"[19]\n\nIt is evident that the difference between the true and false\ntranslations of the words, _nec super eum ibimus, nec super eum\nmittemus_, is of the highest legal importance, inasmuch as the true\ntranslation, _nor will we (the king) proceed against him, nor send (any\none) against him by force or arms_, represents the king only in an\n_executive_ character, _carrying the judgment of the peers and \"the law\nof the land\" into execution_; whereas the false translation, _nor will\nwe pass upon him, nor condemn him_, gives color for the exercise of a\n_judicial_ power, on the part of the king, to which the king had no\nright, but which, according to the true translation, belongs wholly to\nthe jury.\n\n   \"_Per legale judicium parium suorum._\"\n\nThe foregoing interpretation is corroborated, (if it were not already\ntoo plain to be susceptible of corroboration,) by the true\ninterpretation of the phrase \"_per legale judicium parium suorum_.\"\n\nIn giving this interpretation, I leave out, for the present, the word\n_legale_, which will be defined afterwards.\n\nThe true meaning of the phrase, _per judicium parium suorum_, is,\n_according to the sentence of his peers_. The word _judicium, judgment_,\nhas a technical meaning in the law, signifying the decree rendered in\nthe decision of a cause. In civil suits this decision is called a\n_judgment_; in chancery proceedings it is called a _decree_; in criminal\nactions it is called a _sentence_, or _judgment_, indifferently. Thus,\nin a criminal suit, \"a motion in arrest of _judgment_\" means a motion in\narrest of _sentence_.[20]\n\nIn cases of sentence, therefore, in criminal suits, the words _sentence_\nand _judgment_ are synonymous terms. They are, to this day, commonly\nused in law books as synonymous terms. And the phrase _per judicium\nparium suorum_, therefore, implies that the jury are to fix the\nsentence.\n\nThe word _per_ means _according to_. Otherwise there is no sense in the\nphrase _per judicium parium suorum_. There would be no sense in saying\nthat a king might imprison, disseize, outlaw, exile, or otherwise punish\na man, or proceed against him, or send any one against him, _by force or\narms, by_ a judgment of his peers; but there is sense in saying that the\nking may imprison, disseize, and punish a man, or proceed against him,\nor send any one against him, by force or arms, _according to_ a\njudgment, or _sentence_, of his peers; because in that case the king\nwould be merely carrying the sentence or judgment of the peers into\nexecution.\n\nThe word _per_, in the phrase \"_per_ judicium parium suorum,\" of course\nmeans precisely what it does in the next phrase, \"_per_ legem terrae;\"\nwhere it obviously means _according to_, and not _by_, as it is usually\ntranslated. There would be no sense in saying that the king might\nproceed against a man by force or arms, _by_ the law of the land; but\nthere is sense in saying that he may proceed against him, by force or\narms, _according to_ the law of the land; because the king would then be\nacting only as an executive officer, carrying the law of the land into\nexecution. Indeed, the true meaning of the word _by_, as used in similar\ncases now, always is _according to_; as, for example, when we say a\nthing was done by the government, or by the executive, _by law_, we mean\nonly that it was done by them _according to law_; that is, that they\nmerely executed the law.\n\nOr, if we say that the word _by_ signifies _by authority of_, the result\nwill still be the same; for nothing can be done _by authority of_ law,\nexcept what the law itself authorizes or directs to be done; that is,\nnothing can be done by authority of law, except simply to carry the law\nitself into execution. So nothing could be done _by authority of_ the\nsentence of the peers, or _by authority of_ \"the law of the land,\"\nexcept what the sentence of the peers, or the law of the land,\nthemselves authorized or directed to be done; nothing, in short, but to\ncarry the sentence of the peers, or the law of the land, themselves into\nexecution.\n\nDoing a thing _by_ law, or _according to_ law, is only carrying the law\ninto execution. And punishing a man _by_, or _according to_, the\nsentence or judgment of his peers, is only carrying that sentence or\njudgment into execution.\n\nIf these reasons could leave any doubt that the word _per_ is to be\ntranslated _according to_, that doubt would be removed by the terms of\nan antecedent guaranty for the trial by jury, granted by the Emperor\nConrad, of Germany,[21] two hundred years before Magna Carta. Blackstone\ncites it as follows:--(_3 Blackstone_, 350.)\n\n\"Nemo beneficium suum perdat, nisi _secundum_ consuetudinem antecessorum\nnostrorum, et judicium parium suorum.\" That is, No one shall lose his\nestate,[22] unless _according to_ (\"_secundum_\") the custom (or law) of\nour ancestors, and (_according to_) the sentence (or judgment) of his\npeers.\n\nThe evidence is therefore conclusive that the phrase _per judicium\nparium suorum_ means _according to the sentence of his peers_; thus\nimplying that the jury, and not the government, are to fix the sentence.\n\nIf any additional proof were wanted that juries were to fix the\nsentence, it would be found in the following provisions of Magna Carta,\nviz.:\n\n   \"A freeman shall not be amerced for a small crime, (_delicto_,) but\n   according to the degree of the crime; and for a great crime in\n   proportion to the magnitude of it, saving to him his\n   _contenement_;[23] and after the same manner a merchant, saving to\n   him his merchandise. And a villein shall be amerced after the same\n   manner, saving to him his waynage,[24] if he fall under our mercy;\n   _and none of the aforesaid amercements shall be imposed, (or\n   assessed, ponatur,) but by the oath of honest men of the\n   neighborhood. Earls and Barons shall not be amerced but by their\n   peers_, and according to the degree of their crime.\"[25]\n\nPecuniary punishments were the most common punishments at that day, and\nthe foregoing provisions of Magna Carta show that the amount of those\npunishments was to be fixed by the jury.\n\nFines went to the king, and were a source of revenue; and if the amounts\nof the fines had been left to be fixed by the king, he would have had a\npecuniary temptation to impose unreasonable and oppressive ones. So,\nalso, in regard to other punishments than fines. If it were left to the\nking to fix the punishment, he might often have motives to inflict cruel\nand oppressive ones. As it was the object of the trial by jury to\nprotect the people against all possible oppression from the king, it was\nnecessary that the jury, and not the king, should fix the\npunishments.[26]\n\n\"_Legale._\"\n\nThe word \"_legale_,\" in the phrase \"_per legale judicium parium\nsuorum_,\" doubtless means two things. 1. That the sentence must be given\nin a legal manner; that is, by the legal number of jurors, legally\nempanelled and sworn to try the cause; and that they give their judgment\nor sentence after a legal trial, both in form and substance, has been\nhad. 2. That the sentence shall be for a legal cause or offence. If,\ntherefore, a jury should convict and sentence a man, either without\ngiving him a legal trial, or for an act that was not really and legally\ncriminal, the sentence itself would not be legal; and consequently this\nclause forbids the king to carry such a sentence into execution; for the\nclause guarantees that he will execute no judgment or sentence, except\nit be _legale judicium_, a legal sentence. Whether a sentence be a legal\none, would have to be ascertained by the king or his judges, on appeal,\nor might be judged of informally by the king himself.\n\nThe word \"_legale_\" clearly did not mean that the _judicium parium\nsuorum_ (judgment of his peers) should be a sentence which any law (of\nthe king) should _require_ the peers to pronounce; for in that case the\nsentence would not be the sentence of the peers, but only the sentence\nof the law, (that is, of the king); and the peers would be only a\nmouthpiece of the law, (that is, of the king,) in uttering it.\n\n   \"_Per legem terrae._\"\n\nOne other phrase remains to be explained, viz., \"_per legem terrae_,\"\n\"_by the law of the land_.\"\n\nAll writers agree that this means the _common law_. Thus, Sir Matthew\nHale says:\n\n   \"The common law is sometimes called, by way of eminence, _lex terrae_,\n   as in the statute of _Magna Carta_, chap. 29, where certainly the\n   common law is principally intended by those words, _aut per legem\n   terrae_; as appears by the exposition thereof in several subsequent\n   statutes; and particularly in the statute of 28 Edward III., chap. 3,\n   which is but an exposition and explanation of that statute. Sometimes\n   it is called _lex Angliae_, as in the statute of Merton, cap. 9,\n   \"_Nolumus leges Angliae mutari_,\" &c., (We will that the laws of\n   England be not changed). Sometimes it is called _lex et consuetudo\n   regni_ (the law and custom of the kingdom); as in all commissions of\n   oyer and terminer; and in the statutes of 18 Edward I., cap.--, and\n   _de quo warranto_, and divers others. But most commonly it is called\n   the Common Law, or the Common Law of England; as in the statute\n   _Articuli super Chartas_, cap. 15, in the statute 25 Edward III.,\n   cap. 5, (4,) and infinite more records and statutes.\"--1 _Hale's\n   History of the Common Law_, 128.\n\nThis common law, or \"law of the land,\" _the king was sworn to maintain_.\nThis fact is recognized by a statute made at Westminster, in 1346, by\nEdward III., which commences in this manner:\n\n   \"Edward, by the Grace of God, &c., &c., to the Sheriff of Stafford,\n   Greeting: Because that by divers complaints made to us, we have\n   perceived that _the law of the land, which we by oath are bound to\n   maintain_,\" &c.--_St. 20 Edward III._\n\nThe foregoing authorities are cited to show to the unprofessional\nreader, what is well known to the profession, that _legem terrae, the law\nof the land_, mentioned in Magna Carta, was the common, ancient,\nfundamental law of the land, which the kings were bound by oath to\nobserve; _and that it did not include any statutes or laws enacted by\nthe king himself, the legislative power of the nation_.\n\nIf the term _legem terrae_ had included laws enacted by the king himself,\nthe whole chapter of Magna Carta, now under discussion, would have\namounted to nothing as a protection to liberty; because it would have\nimposed no restraint whatever upon the power of the king. The king could\nmake laws at any time, and such ones as he pleased. He could, therefore,\nhave done anything he pleased, _by the law of the land_, as well as in\nany other way, if his own laws had been \"_the law of the land_.\" If his\nown laws had been \"the law of the land,\" within the meaning of that term\nas used in Magna Carta, this chapter of Magna Carta would have been\nsheer nonsense, inasmuch as the whole purport of it would have been\nsimply that \"no man shall be arrested, imprisoned, or deprived of his\nfreehold, or his liberties, or free customs, or outlawed, or exiled, or\nin any manner destroyed (by the king); nor shall the king proceed\nagainst him, nor send any one against him with force and arms, unless by\nthe judgment of his peers, _or unless the king shall please to do so_.\"\n\nThis chapter of Magna Carta would, therefore, have imposed not the\nslightest restraint upon the power of the king, or afforded the\nslightest protection to the liberties of the people, if the laws of the\nking had been embraced in the term _legem terrae_. But if _legem terrae_\nwas the common law, which the king was sworn to maintain, then a real\nrestriction was laid upon his power, and a real guaranty given to the\npeople for their liberties.\n\nSuch, then, being the meaning of _legem terrae_, the fact is established\nthat Magna Carta took an accused person entirely out of the hands of the\nlegislative power, that is, of the king; and placed him in the power and\nunder the protection of his peers, and the common law alone; that, in\nshort, Magna Carta suffered no man to be punished for violating any\nenactment of the legislative power, unless the peers or equals of the\naccused freely consented to it, or the common law authorized it; that\nthe legislative power, _of itself_, was wholly incompetent to _require_\nthe conviction or punishment of a man for any offence whatever.\n\n_Whether Magna Carta allowed of any other trial than by jury._\n\nThe question here arises, whether \"_legem terrae_\" did not allow of some\nother mode of trial than that by jury.\n\nThe answer is, that, at the time of Magna Carta, it is not probable,\n(for the reasons given in the note,) that _legem terrae_ authorized, in\ncriminal cases, any other trial than the trial by jury; but, if it did,\nit certainly authorized none but the trial by battle, the trial by\nordeal, and the trial by compurgators. These were the only modes of\ntrial, except by jury, that had been known in England, in criminal\ncases, for some centuries previous to Magna Carta. All of them had\nbecome nearly extinct at the time of Magna Carta, and it is not probable\nthat they were included in \"_legem terrae_\" as that term is used in that\ninstrument. But if they were included in it, they have now been long\nobsolete, and were such as neither this nor any future age will ever\nreturn to.[27] For all practical purposes of the present day,\ntherefore, it may be asserted that Magna Carta allows no trial whatever\nbut trial by jury.\n\n_Whether Magna Carta allowed sentence to be fixed otherwise than by the\njury._\n\nStill another question arises on the words _legem terrae_, viz., whether,\nin cases where the question of guilt was determined by the jury, the\namount of _punishment_ may not have been fixed by _legem terrae_, the\nCommon Law, instead of its being fixed by the jury.\n\nI think we have no evidence whatever that, at the time of Magna Carta,\nor indeed at any other time, _lex terrae_, the common law, fixed the\npunishment in cases where the question of guilt was tried by a jury; or,\nindeed, that it did in any other case. Doubtless certain punishments\nwere common and usual for certain offences; but I do not think it can be\nshown that the _common law_, the _lex terrae_, which the king was sworn\nto maintain, required any one specific punishment, or any precise amount\nof punishment, for any one specific offence. If such a thing be claimed,\nit must be shown, for it cannot be presumed. In fact, the contrary must\nbe presumed, because, in the nature of things, the amount of punishment\nproper to be inflicted in any particular case, is a matter requiring the\nexercise of discretion at the time, in order to adapt it to the moral\nquality of the offence, which is different in each case, varying with\nthe mental and moral constitutions of the offenders, and the\ncircumstances of temptation or provocation. And Magna Carta recognizes\nthis principle distinctly, as has before been shown, in providing that\nfreemen, merchants, and villeins, \"shall not be amerced for a small\ncrime, but according to the degree of the crime; and for a great crime\nin proportion to the magnitude of it;\" and that \"none of the aforesaid\namercements shall be imposed (or assessed) but by the oaths of honest\nmen of the neighborhood;\" and that \"earls and barons shall not be\namerced but by their peers, and according to the quality of the\noffence.\"\n\nAll this implies that the moral quality of the offence was to be judged\nof at the trial, and that the punishment was to be fixed by the\ndiscretion of the peers, or jury, and not by any such unvarying rule as\na common law rule would be.\n\nI think, therefore, it must be conceded that, in all cases, tried by a\njury, Magna Carta intended that the punishment should be fixed by the\njury, and not by the common law, for these several reasons.\n\n1. It is uncertain whether the _common law_ fixed the punishment of any\noffence whatever.\n\n2. The words \"_per judicium parium suorum_,\" _according to the sentence\nof his peers_, imply that the jury fixed the sentence in _some_ cases\ntried by them; and if they fixed the sentence in some cases, it must be\npresumed they did in all, unless the contrary be clearly shown.\n\n3. The express provisions of Magna Carta, before adverted to, that no\namercements, or fines, should be imposed upon freemen, merchants, or\nvilleins, \"but by the oath of honest men of the neighborhood,\" and\n\"according to the degree of the crime,\" and that \"earls and barons\nshould not be amerced but by their peers, and according to the quality\nof the offence,\" _proves_ that, at least, there was no common law fixing\nthe amount of _fines_, or, if there were, that it was to be no longer in\nforce. And if there was no common law fixing the amount of _fines_, or\nif it was to be no longer in force, it is reasonable to infer, (in the\nabsence of all evidence to the contrary,) either that the common law did\nnot fix the amount of any other punishment, or that it was to be no\nlonger in force for that purpose.[28]\n\nUnder the Saxon laws, fines, payable to the injured party, seem to have\nbeen the common punishments for all offences. Even murder was punishable\nby a fine payable to the relatives of the deceased. The murder of the\nking even was punishable by fine. When a criminal was unable to pay his\nfine, his relatives often paid it for him. But if it were not paid, he\nwas put out of the protection of the law, and the injured parties, (or,\nin the case of murder, the kindred of the deceased,) were allowed to\ninflict such punishment as they pleased. And if the relatives of the\ncriminal protected him, it was lawful to take vengeance on them also.\nAfterwards the custom grew up of exacting fines also to the king as a\npunishment for offences.[29] And this latter was, doubtless, the usual\npunishment at the time of Magna Carta, as is evidenced by the fact that\nfor many years immediately following Magna Carta, nearly or quite all\nstatutes that prescribed any punishment at all, prescribed that the\noffender should \"be grievously amerced,\" or \"pay a great fine to the\nking,\" or a \"grievous ransom,\"--with the alternative in some cases\n(perhaps _understood_ in all) of imprisonment, banishment, or outlawry,\nin case of non-payment.[30]\n\nJudging, therefore, from the special provisions in Magna Carta,\nrequiring _fines_, or amercements, to be imposed only by juries,\n(without mentioning any other punishments;) judging, also, from the\nstatutes which immediately followed Magna Carta, it is probable that the\nSaxon custom of punishing all, or nearly all, offences by _fines_, (with\nthe alternative to the criminal of being imprisoned, banished, or\noutlawed, and exposed to private vengeance, in case of non-payment,)\ncontinued until the time of Magna Carta; and that in providing expressly\nthat _fines_ should be fixed by the juries, Magna Carta provided for\nnearly or quite all the punishments that were expected to be inflicted;\nthat if there were to be any others, they were to be fixed by the\njuries; and consequently that nothing was left to be fixed by \"_legem\nterrae_.\"\n\nBut whether the common law fixed the punishment of any offences, or not,\nis a matter of little or no practical importance at this day; because we\nhave no idea of going back to any common law punishments of six hundred\nyears ago, if, indeed, there were any such at that time. It is enough\nfor us to know--_and this is what it is material for us to know_--that\nthe jury fixed the punishments, in all cases, unless they were fixed by\nthe _common law_; that Magna Carta allowed no punishments to be\nprescribed by statute--that is, by the legislative power--nor in any\nother manner by the king, or his judges, in any case whatever; and,\nconsequently, that all statutes prescribing particular punishments for\nparticular offences, or giving the king's judges any authority to fix\npunishments, were void.\n\nIf the power to fix punishments had been left in the hands of the king,\nit would have given him a power of oppression, which was liable to be\ngreatly abused; which there was no occasion to leave with him; and which\nwould have been incongruous with the whole object of this chapter of\nMagna Carta; which object was to take all discretionary or arbitrary\npower over individuals entirely out of the hands of the king, and his\nlaws, and entrust it only to the common law, and the peers, or\njury--that is, the people.\n\n_What lex terrae did authorize._\n\nBut here the question arises, What then did \"_legem terrae_\" authorize\nthe king, (that is, the government,) to do in the case of an accused\nperson, if it neither authorized any other trial than that by jury, nor\nany other punishments than those fixed by juries?\n\nThe answer is, that, owing to the darkness of history on the point, it\nis probably wholly impossible, at this day, to state, _with any\ncertainty or precision_, anything whatever that the _legem terrae_ of\nMagna Carta did authorize the king, (that is, the government,) to do,\n(if, indeed, it authorized him to do anything,) in the case of\ncriminals, _other than to have them tried and sentenced by their peers,\nfor common law crimes_; and to carry that sentence into execution.\n\nThe trial by jury was a part of _legem terrae_, and we have the means of\nknowing what the trial by jury was. The fact that the jury were to fix\nthe sentence, implies that they were to _try_ the accused; otherwise\nthey could not know what sentence, or whether any sentence, ought to be\ninflicted upon him. Hence it follows that the jury were to judge of\neverything involved in the trial; that is, they were to judge of the\nnature of the offence, of the admissibility and weight of testimony, and\nof everything else whatsoever that was of the essence of the trial. If\nanything whatever could be dictated to them, either of law or evidence,\nthe sentence would not be theirs, but would be dictated to them by the\npower that dictated to them the law or evidence. The trial and sentence,\nthen, were wholly in the hands of the jury.\n\nWe also have sufficient evidence of the nature of the oath administered\nto jurors in criminal cases. It was simply, that _they would neither\nconvict the innocent, nor acquit the guilty_. This was the oath in the\nSaxon times, and probably continued to be until Magna Carta.\n\nWe also know that, in case of _conviction_, the sentence of the jury was\nnot necessarily final; that the accused had the right of appeal to the\nking and his judges, and to demand either a new trial, or an acquittal,\nif the trial or conviction had been against law.\n\nSo much, therefore, of the _legem terrae_ of Magna Carta, we know with\nreasonable certainty.\n\nWe also know that Magna Carta provides that \"No bailiff (_balivus_)\nshall hereafter put any man to his law, (put him on trial,) on his\nsingle testimony, without credible witnesses brought to support it.\"\nCoke thinks \"that under this word _balivus_, in this act, is\ncomprehended every justice, minister of the king, steward of the king,\nsteward and bailiff.\" (2 Inst. 44.) And in support of this idea he\nquotes from a very ancient law book, called the Mirror of Justices,\nwritten in the time of Edward I., within a century after Magna Carta.\nBut whether this were really a common law principle, or whether the\nprovision grew out of that jealousy of the government which, at the time\nof Magna Carta, had reached its height, cannot perhaps now be\ndetermined.\n\nWe also know that, by Magna Carta, amercements, or fines, could not be\nimposed to the ruin of the criminal; that, in the case of a freeman, his\n_contenement_, or means of subsisting in the condition of a freeman,\nmust be saved to him; that, in the case of a merchant, his merchandise\nmust be spared; and in the case of a villein, his _waynage_, or\nplough-tackle and carts. This also is likely to have been a principle of\nthe common law, inasmuch as, in that rude age, when the means of getting\nemployment as laborers were not what they are now, the man and his\nfamily would probably have been liable to starvation, if these means of\nsubsistence had been taken from him.\n\nWe also know, _generally_, that, at the time of Magna Carta, _all acts\nintrinsically criminal_, all trespasses against persons and property,\nwere crimes, according to _lex terrae_, or the common law.\n\nBeyond the points now given, we hardly know anything, probably nothing\n_with certainty_, as to what the \"_legem terrae_\" of _Magna Carta_ did\nauthorize, in regard to crimes. There is hardly anything extant that can\ngive us any real light on the subject.\n\nIt would seem, however, that there were, even at that day, some common\nlaw principles governing arrests; and some common law forms and rules as\nto holding a man for trial, (by bail or imprisonment;) putting him on\ntrial, such as by indictment or complaint; summoning and empanelling\njurors, &c., &c. Whatever these common law principles were, Magna Carta\nrequires them to be observed; for Magna Carta provides for the whole\nproceedings, commencing with the arrest, (\"no freeman shall be\n_arrested_,\" &c.,) and ending with the execution of the sentence. And it\nprovides that nothing shall be done, by the government, from beginning\nto end, unless according to the sentence of the peers, or \"_legem\nterrae_,\" the common law. The trial by peers was a part of _legem terrae_,\nand we have seen that the peers must necessarily have governed the whole\nproceedings at the trial. But all the proceedings for arresting the man,\nand bringing him to trial, must have been had before the case could come\nunder the cognizance of the peers, and they must, therefore, have been\ngoverned by other rules than the discretion of the peers. We may\n_conjecture_, although we cannot perhaps know with much certainty, that\nthe _lex terrae_, or common law, governing these other proceedings, was\nsomewhat similar to the common law principles, on the same points, at\nthe present day. Such seem to be the opinions of Coke, who says that the\nphrase _nisi per legem terrae_ means _unless by due process of law_.\n\nThus, he says:\n\n\"_Nisi per legem terrae. But by the law of the land._ For the true sense\nand exposition of these words, see the statute of 37 Edw. III., cap. 8,\nwhere the words, _by the law of the land_, are rendered _without due\nprocess of law_; for there it is said, though it be contained in the\nGreat Charter, that no man be taken, imprisoned, or put out of his\nfreehold, _without process of the law; that is, by indictment or\npresentment of good and lawful men, where such deeds be done in due\nmanner, or by writ original of the common law_.\n\n\"Without being brought in to answer but by due process of the common\nlaw.\n\n\"No man be put to answer without presentment before justices, or thing\nof record, or by due process, or by writ original, _according to the old\nlaw of the land_.\"--_2 Inst._ 50.\n\nThe foregoing interpretations of the words _nisi per legem terrae_ are\ncorroborated by the following statutes, enacted in the next century\nafter Magna Carta.\n\n\"That no man, from henceforth, shall be attached by any accusation, nor\nforejudged of life or limb, nor his land, tenements, goods, nor\nchattels, seized into the king's hands, against the form of the Great\nCharter, _and the law of the land_.\"--_St. 5 Edward III., Ch._ 9.\n(1331.)\n\n\"Whereas it is contained in the Great Charter of the franchises of\nEngland, that none shall be imprisoned, nor put out of his freehold, nor\nof his franchises, nor free customs, _unless it be by the law of the\nland_; it is accorded, assented, and established, that from henceforth\nnone shall be taken by petition, or suggestion made to our lord the\nking, or to his council, _unless it be by indictment or presentment of\ngood and lawful people of the same neighborhood where such deeds be done\nin due manner, or by process made by writ original at the common law_;\nnor that none be put out of his franchises, nor of his freehold, _unless\nhe be duly brought into answer, and forejudged of the same by the course\nof the law_; and if anything be done against the same, it shall be\nredressed and holden for none.\"--_St. 25 Edward III., Ch._ 4. (1350.)\n\n\"That no man, of what estate or condition that he be, shall be put out\nof land or tenement, nor taken, nor imprisoned, nor disinherited, nor\nput to death, without being brought in answer _by due process of\nlaw_.\"--_St. 28 Edward III., Ch._ 3. (1354.)\n\n\"That no man be put to answer without presentment before justices, or\nmatter of record, or by due process and writ original, according to the\n_old law of the land_. And if anything from henceforth be done to the\ncontrary, it shall be void in law, and holden for error.\"--_St. 42\nEdward III., Ch._ 3. (1368.)\n\nThe foregoing interpretation of the words _nisi per legem terrae_--that\nis, _by due process of law_--including indictment, &c., has been adopted\nas the true one by modern writers and courts; as, for example, by Kent,\n(2 _Comm._ 13,) Story, (3 _Comm._ 661,) and the Supreme Court of New\nYork, (19 _Wendell_, 676; 4 _Hill_, 146.)\n\nThe fifth amendment to the constitution of the United States seems to\nhave been framed on the same idea, inasmuch as it provides that \"no\nperson shall be deprived of life, liberty, or property, _without due\nprocess of law_.\"[31]\n\n_Whether the word_ VEL _should be rendered by_ OR, _or by_ AND.\n\nHaving thus given the meanings, or rather the applications, which the\nwords _vel per legem terrae_ will reasonably, and perhaps must\nnecessarily, bear, it is proper to suggest, that it has been supposed by\nsome that the word _vel_, instead of being rendered by _or_, as it\nusually is, ought to be rendered by _and_, inasmuch as the word _vel_ is\noften used for _et_, and the whole phrase _nisi per judicium parium\nsuorum, vel per legem terrae_, (which would then read, unless by the\nsentence of his peers, _and_ the law of the land,) would convey a more\nintelligible and harmonious meaning than it otherwise does.\n\nBlackstone suggests that this may be the true reading. (_Charters_, p.\n41.) Also Mr. Hallam, who says:\n\n   \"Nisi per legale judicium parium suorum, _vel_ per legem terrae.\n   Several explanations have been offered of the alternative clause;\n   which some have referred to judgment by default, or demurrer; others\n   to the process of attachment for contempt. Certainly there are many\n   legal procedures besides trial by jury, through which a party's goods\n   or person may be taken. But one may doubt whether these were in\n   contemplation of the framers of Magna Carta. In an entry of the\n   Charter of 1217 by a contemporary hand, preserved in the Town-clerk's\n   office in London, called Liber Custumarum et Regum antiquarum, a\n   various reading, _et_ per legem terrae, occurs. _Blackstone's\n   Charters_, p. 42 (41.) And the word _vel_ is so frequently used for\n   _et_, that I am not wholly free from a suspicion that it was so\n   intended in this place. The meaning will be, that no person shall be\n   disseized, &c., except upon a lawful cause of action, found by the\n   verdict of a jury. This really seems as good as any of the\n   disjunctive interpretations; but I do not offer it with much\n   confidence.\"--2 _Hallam's Middle Ages, Ch._ 8, _Part_ 2, p. 449,\n   _note_.[32]\n\nThe idea that the word _vel_ should be rendered by _and_, is\ncorroborated, if not absolutely confirmed, by the following passage in\nBlackstone, which has before been cited. Speaking of the trial by jury,\nas established by Magna Carta, he calls it,\n\n   \"A privilege which is couched in almost the same words with that of\n   the Emperor Conrad two hundred years before: 'nemo beneficium suum\n   perdat, nisi secundum consuetudinem antecessorum nostrorum, _et_\n   judicium parium suorum.'\" (No one shall lose his estate unless\n   according to the custom of our ancestors, and the judgment of his\n   peers.)--_3 Blackstone_, 350.\n\nIf the word _vel_ be rendered by _and_, (as I think it must be, at least\nin some cases,) this chapter of Magna Carta will then read that no\nfreeman shall be arrested or punished, \"unless according to the sentence\nof his peers, _and_ the law of the land.\"\n\nThe difference between this reading and the other is important. In the\none case, there would be, at first view, some color of ground for saying\nthat a man might be punished in either of two ways, viz., according to\nthe sentence of his peers, _or_ according to the law of the land. In the\nother case, it requires both the sentence of his peers _and_ the law of\nthe land (common law) to authorize his punishment.\n\nIf this latter reading be adopted, the provision would seem to exclude\nall trials except trial by jury, and all causes of action except those\nof the _common law_.\n\nBut I apprehend the word vel must be rendered both by _and_, and by\n_or_; that in cases of a _judgment_, it should be rendered by _and_, so\nas to require the concurrence both of \"the judgment of the peers _and_\nthe law of the land,\" to authorize the king to make execution upon a\nparty's goods or person; but that in cases of arrest and imprisonment,\nsimply for the purpose of bringing a man to trial, _vel_ should be\nrendered by or, because there can have been no judgment of a jury in\nsuch a case, and \"the law of the land\" must therefore necessarily be the\nonly guide to, and restraint upon, the king. If this guide and restraint\nwere taken away, the king would be invested with an arbitrary and most\ndangerous power in making arrests, and confining in prison, under\npretence of an intention to bring to trial.\n\nHaving thus examined the language of this chapter of Magna Carta, so far\nas it relates to criminal cases, its legal import may be stated as\nfollows, viz.:\n\nNo freeman shall be arrested, or imprisoned, or deprived of his\nfreehold, or his liberties, or free customs, or be outlawed, or exiled,\nor in any manner destroyed, (harmed,) nor will we (the king) proceed\nagainst him, nor send any one against him, by force or arms, unless\naccording to (that is, in execution of) the sentence of his peers, _and_\n(or _or_, as the case may require) the Common Law of England, (as it was\nat the time of Magna Carta, in 1215.)\n\n[Footnote 5: 1 Hume, Appendix 2.]\n\n[Footnote 6: Crabbe's History of the English Law, 236.]\n\n[Footnote 7: Coke says, \"The king of England is armed with divers\ncouncils, one whereof is called _commune concilium_, (the common\ncouncil,) and that is the court of parliament, and so it is _legally_\ncalled in writs and judicial proceedings _commune concilium regni\nAngliae_, (the common council of the kingdom of England.) And another is\ncalled _magnum concilium_, (great council;) this is sometimes applied to\nthe upper house of parliament, and sometimes, out of parliament time, to\nthe peers of the realm, lords of parliament, who are called _magnum\nconcilium regis_, (the great council of the king;) * * Thirdly, (as\nevery man knoweth,) the king hath a privy council for matters of state.\n* * The fourth council of the king are his judges for law matters.\"\n\n_1 Coke's Institutes, 110 a._]\n\n[Footnote 8: The Great Charter of Henry III., (1216 and 1225,) confirmed\nby Edward I., (1297,) makes no provision whatever for, or mention of, a\nparliament, unless the provision, (Ch. 37,) that \"Escuage, (a military\ncontribution,) from henceforth shall be taken like as it was wont to be\nin the time of King Henry our grandfather,\" mean that a parliament shall\nbe summoned for that purpose.]\n\n[Footnote 9: The Magna Carta of John, (Ch. 17 and 18,) defines those who\nwere entitled to be summoned to parliament, to wit, \"The Archbishops,\nBishops, Abbots, Earls, and Great Barons of the Realm, * * and all\nothers who hold of us _in chief_.\" Those who held land of the king _in\nchief_ included none below the rank of knights.]\n\n[Footnote 10: The parliaments of that time were, doubtless, such as\nCarlyle describes them, when he says, \"The parliament was at first a\nmost simple assemblage, quite cognate to the situation; that Red\nWilliam, or whoever had taken on him the terrible task of being King of\nEngland, was wont to invite, oftenest about Christmas time, his\nsubordinate Kinglets, Barons as he called them, to give him the pleasure\nof their company for a week or two; there, in earnest conference all\nmorning, in freer talk over Christmas cheer all evening, in some big\nroyal hall of Westminster, Winchester, or wherever it might be, with log\nfires, huge rounds of roast and boiled, not lacking malmsey and other\ngenerous liquor, they took counsel concerning the arduous matters of the\nkingdom.\"]\n\n[Footnote 11: Hume, Appendix 2.]\n\n[Footnote 12: This point will be more fully established hereafter.]\n\n[Footnote 13: It is plain that the king and all his partisans looked\nupon the charter as utterly prostrating the king's legislative supremacy\nbefore the discretion of juries. When the schedule of liberties demanded\nby the barons was shown to him, (of which the trial by jury was the most\nimportant, because it was the only one that protected all the rest,)\n\"the king, falling into a violent passion, asked, _Why the barons did\nnot with these exactions demand his kingdom?_ * * _and with a solemn\noath protested, that he would never grant such liberties as would make\nhimself a slave_.\" * * But afterwards, \"seeing himself deserted, and\nfearing they would seize his castles, he sent the Earl of Pembroke and\nother faithful messengers to them, to let them know _he would grant them\nthe laws and liberties they desired_.\" * * But after the charter had\nbeen granted, \"the king's mercenary soldiers, desiring war more than\npeace, were by their leaders continually whispering in his ears, _that\nhe was now no longer king, but the scorn of other princes; and that it\nwas more eligible to be no king, than such a one as he_.\" * * He applied\n\"to the Pope, that he might by his apostolic authority make void what\nthe barons had done. * * At Rome he met with what success he could\ndesire, where all the transactions with the barons were fully\nrepresented to the Pope, and the Charter of Liberties shown to him, in\nwriting; which, when he had carefully perused, he, with a furious look,\ncried out, _What! Do the barons of England endeavor to dethrone a king,\nwho has taken upon him the Holy Cross, and is under the protection of\nthe Apostolic See; and would they force him to transfer the dominions of\nthe Roman Church to others? By St. Peter, this injury must not pass\nunpunished._ Then debating the matter with the cardinals, he, by a\ndefinitive sentence, damned and cassated forever the Charter of\nLiberties, and sent the king a bull containing that sentence at\nlarge.\"--_Echard's History of England_, p. 106-7.\n\nThese things show that the nature and effect of the charter were well\nunderstood by the king and his friends; that they all agreed that he was\neffectually stripped of power. _Yet the legislative power had not been\ntaken from him; but only the power to enforce his laws, unless juries\nshould freely consent to their enforcement._]\n\n[Footnote 14: The laws were, at that time, all written in Latin.]\n\n[Footnote 15: \"No man shall be condemned at the king's suit, either\nbefore the king in his bench, where pleas are _coram rege_, (before the\nking,) (and so are the words _nec super eum ibimus_, to be understood,)\nnor before any other commissioner or judge whatsoever, and so are the\nwords _nec super eum mittemus_, to be understood, but by the judgment of\nhis peers, that is, equals, or according to the law of the land.\"--_2\nCoke's Inst._, 46.]\n\n[Footnote 16: Perhaps the assertion in the text should be made with this\nqualification--that the words \"_per legem terrae_,\" (according to the law\nof the land,) and the words \"_per legale judicium parium suorum_,\"\n(according to the _legal_ judgment of his peers,) imply that the king,\nbefore proceeding to any _executive_ action, will take notice of \"the\nlaw of the land,\" and of the _legality_ of the judgment of the peers,\nand will _execute_ upon the prisoner nothing except what the law of the\nland authorizes, and no judgments of the peers, except _legal_ ones.\nWith this qualification, the assertion in the text is strictly\ncorrect--that there is nothing in the whole chapter that grants to the\nking, or his judges, any _judicial_ power at all. The chapter only\ndescribes and _limits_ his _executive_ power.]\n\n[Footnote 17: See Blackstone's Law Tracts, page 294, Oxford Edition.]\n\n[Footnote 18: These Articles of the Charter are given in Blackstone's\ncollection of Charters, and are also printed with the _Statutes of the\nRealm_. Also in Wilkins' Laws of the Anglo-Saxons, p. 356.]\n\n[Footnote 19: Lingard says, \"The words, '_We will not destroy him, nor\nwill we go upon him, nor will we send upon him_,' have been very\ndifferently expounded by different legal authorities. Their real meaning\nmay be learned from John himself, who the next year promised by his\nletters patent ... nec super eos _per vim vel per arma_ ibimus, nisi per\nlegem regni nostri, vel per judicium parium suorum in curia nostra, (nor\nwill we go upon them _by force or by arms_, unless by the law of our\nkingdom, or the judgment of their peers in our court.) Pat. 16 Johan,\napud Drad. 11, app. no. 124. He had hitherto been in the habit of\n_going_ with an armed force, or _sending_ an armed force on the lands,\nand against the castles, of all whom he knew or suspected to be his\nsecret enemies, without observing any form of law.\"--3 Lingard, 47\nnote.]\n\n[Footnote 20: \"_Judgment, judicium._ * * The sentence of the law,\npronounced by the court, upon the matter contained in the record.\"--3\n_Blackstone_, 395. _Jacob's Law Dictionary. Tomlin's do._\n\n\"_Judgment_ is the decision or sentence of the law, given by a court of\njustice or other competent tribunal, as the result of the proceedings\ninstituted therein, for the redress of an injury.\"--_Bouvier's Law\nDict._\n\n\"_Judgment, judicium._ * * Sentence of a judge against a criminal. * *\nDetermination, decision in general.\"--_Bailey's Dict._\n\n\"_Judgment._ * * In a legal sense, a sentence or decision pronounced by\nauthority of a king, or other power, either by their own mouth, or by\nthat of their judges and officers, whom they appoint to administer\njustice in their stead.\"--_Chambers' Dict._\n\n\"_Judgment._ * * In law, the sentence or doom pronounced in any case,\ncivil or criminal, by the judge or court by which it is\ntried.\"--_Webster's Dict._\n\nSometimes the punishment itself is called _judicium_, _judgment_; or,\nrather, it was at the time of Magna Carta. For example, in a statute\npassed fifty-one years after Magna Carta, it was said that a baker, for\ndefault in the weight of his bread, \"debeat amerciari vel subire\n_judicium_ pillorie;\" that is, ought to be amerced, or suffer the\npunishment, or judgment, of the pillory. Also that a brewer, for\n\"selling ale contrary to the assize,\" \"debeat amerciari, vel pati\n_judicium_ tumbrelli\"; that is, ought to be amerced, or suffer the\npunishment, or judgment, of the tumbrel.--51 _Henry_ 3, _St._ 6. (1266.)\n\nAlso the \"_Statutes of uncertain date_,\" (but supposed to be prior to\nEdward III., or 1326,) provide, in chapters 6, 7, and 10, for\n\"_judgment_ of the pillory.\"--_See 1 Ruffhead's Statutes_, 187, 188. 1\n_Statutes of the Realm_, 203.\n\nBlackstone, in his chapter \"Of _Judgment_, and its Consequences,\" says,\n\n\"_Judgment_ (unless any matter be offered in arrest thereof) follows\nupon conviction; being the pronouncing of that punishment which is\nexpressly ordained by law.\"--_Blackstone's Analysis of the Laws of\nEngland, Book 4, Ch. 29, Sec. 1. Blackstone's Law Tracts_, 126.\n\nCoke says, \"_Judicium_ ... the judgment is the guide and direction of\nthe execution.\" 3 _Inst._ 210.]\n\n[Footnote 21: This precedent from Germany is good authority, because the\ntrial by jury was in use, in the northern nations of Europe generally,\nlong before Magna Carta, and probably from time immemorial; and the\nSaxons and Normans were familiar with it before they settled in\nEngland.]\n\n[Footnote 22: _Beneficium_ was the legal name of an estate held by a\nfeudal tenure. See Spelman's Glossary.]\n\n[Footnote 23: _Contenement_ of a freeman was the means of living in the\ncondition of a freeman.]\n\n[Footnote 24: _Waynage_ was a villein's plough-tackle and carts.]\n\n[Footnote 25: Tomlin says, \"The ancient practice was, when any such fine\nwas imposed, to inquire by a jury _quantum inde regi dare valeat per\nannum, salva sustentatione sua et uxoris et liberorum suorum_, (how much\nis he able to give to the king per annum, saving his own maintenance,\nand that of his wife and children). And since the disuse of such\ninquest, it is never usual to assess a larger fine than a man is able to\npay, without touching the implements of his livelihood; but to inflict\ncorporal punishment, or a limited imprisonment, instead of such a fine\nas might amount to imprisonment for life. And this is the reason why\nfines in the king's courts are frequently denominated ransoms, because\nthe penalty must otherwise fall upon a man's person, unless it be\nredeemed or ransomed by a pecuniary fine.\"--_Tomlin's Law Dict., word\nFine._]\n\n[Footnote 26: Because juries were to fix the sentence, it must not be\nsupposed that the king was _obliged_ to carry the sentence into\nexecution; _but only that he could not go beyond the sentence_. He might\npardon, or he might acquit on grounds of law, notwithstanding the\nsentence; but he could not punish beyond the extent of the sentence.\nMagna Carta does not prescribe that the king _shall punish_ according to\nthe sentence of the peers; but only that he shall not punish _\"unless\naccording to\" that sentence_. He may acquit or pardon, notwithstanding\ntheir sentence or judgment; but he cannot punish, except according to\ntheir judgment.]\n\n[Footnote 27: _The trial by battle_ was one in which the accused\nchallenged his accuser to single combat, and staked the question of his\nguilt or innocence on the result of the duel. This trial was introduced\ninto England by the Normans, within one hundred and fifty years before\nMagna Carta. It was not very often resorted to even by the Normans\nthemselves; probably never by the Anglo-Saxons, unless in their\ncontroversies with the Normans. It was strongly discouraged by some of\nthe Norman princes, particularly by Henry II., by whom the trial by jury\nwas especially favored. It is probable that the trial by battle, so far\nas it prevailed at all in England, was rather tolerated as a matter of\nchivalry, than authorized as a matter of law. At any rate, it is not\nlikely that it was included in the \"_legem terrae_\" of Magna Carta,\nalthough such duels have occasionally occurred since that time, and\nhave, by some, been supposed to be lawful. I apprehend that nothing can\nbe properly said to be a part of _lex terrae_, unless it can be shown\neither to have been of Saxon origin, or to have been recognized by Magna\nCarta.\n\n_The trial by ordeal_ was of various kinds. In one ordeal the accused\nwas required to take hot iron in his hand; in another to walk blindfold\namong red-hot ploughshares; in another to thrust his arm into boiling\nwater; in another to be thrown, with his hands and feet bound, into cold\nwater; in another to swallow the _morsel of execration_; in the\nconfidence that his guilt or innocence would be miraculously made known.\nThis mode of trial was nearly extinct at the time of Magna Carta, and it\nis not likely that it was included in \"_legem terrae_,\" as that term is\nused in that instrument. This idea is corroborated by the fact that the\ntrial by ordeal was specially prohibited only four years after Magna\nCarta, \"by act of Parliament in 3 Henry III., according to Sir Edward\nCoke, or rather by an order of the king in council.\"--_3 Blackstone_\n345, _note_.\n\nI apprehend that this trial was never forced upon accused persons, but\nwas only allowed to them, _as an appeal to God_, from the judgment of a\njury.[33]\n\n_The trial by compurgators_ was one in which, if the accused could bring\ntwelve of his neighbors, who would make oath that they believed him\ninnocent, he was held to be so. It is probable that this trial was\nreally the trial by jury, or was allowed as an appeal from a jury. It is\nwholly improbable that two different modes of trial, so nearly\nresembling each other as this and the trial by jury do, should prevail\nat the same time, and among a rude people, whose judicial proceedings\nwould naturally be of the simplest kind. But if this trial really were\nany other than the trial by jury, it must have been nearly or quite\nextinct at the time of Magna Carta; and there is no probability that it\nwas included in \"_legem terrae_.\"]\n\n[Footnote 28: Coke attempts to show that there is a distinction between\namercements and fines--admitting that amercements must be fixed by one's\npeers, but claiming that fines may be fixed by the government. (_2\nInst._ 27, _8 Coke's Reports_ 38.) But there seems to have been no\nground whatever for supposing that any such distinction existed at the\ntime of Magna Carta. If there were any such distinction in the time of\nCoke, it had doubtless grown up within the four centuries that had\nelapsed since Magna Carta, and is to be set down as one of the\nnumberless inventions of government for getting rid of the restraints of\nMagna Carta, and for taking men out of the protection of their peers,\nand subjecting them to such punishments as the government chooses to\ninflict.\n\nThe first statute of Westminster, passed sixty years after Magna Carta,\ntreats the fine and amercement as synonymous, as follows:\n\n\"Forasmuch as _the common fine and amercement_ of the whole county in\nEyre of the justices for false judgments, or for other trespass, is\nunjustly assessed by sheriffs and baretors in the shires, * * it is\nprovided, and the king wills, that from henceforth such sums shall be\nassessed before the justices in Eyre, afore their departure, _by the\noath of knights and other honest men_,\" &c.--_3 Edward I., Ch._ 18.\n(1275.)\n\nAnd in many other statutes passed after Magna Carta, the terms _fine_\nand _amercement_ seem to be used indifferently, in prescribing the\npunishment for offences. As late as 1461, (246 years after Magna Carta,)\nthe statute _1 Edward IV., Ch._ 2, speaks of \"_fines, ransoms, and\namerciaments_\" as being levied upon criminals, as if they were the\ncommon punishments of offences.\n\n_St._ 2 and 3 _Philip and Mary, Ch._ 8, uses the terms, \"_fines,\nforfeitures, and amerciaments_\" five times. (1555.)\n\n_St. 5 Elizabeth, Ch._ 13, _Sec._ 10, uses the terms \"_fines,\nforfeitures, and amerciaments_.\"\n\nThat amercements were fines, or pecuniary punishments, inflicted for\noffences, is proved by the following statutes, (all supposed to have\nbeen passed within one hundred and fifteen years after Magna Carta,)\nwhich speak of amercements as a species of \"_judgment_,\" or punishment,\nand as being inflicted for the same offences as other \"judgments.\"\n\nThus one statute declares that a baker, for default in the weight of his\nbread, \"ought to be _amerced_, or suffer the _judgment_ of the pillory;\"\nand that a brewer, for \"selling ale contrary to the assize,\" \"ought to\nbe _amerced_, or suffer the _judgment_ of the tumbrel.\"--_51 Henry III.,\nSt._ 6. (1266.)\n\nAmong the \"_Statutes of Uncertain Date_,\" but supposed to be prior to\nEdward III., (1326,) are the following:\n\n_Chap._ 6 provides that \"if a brewer break the assize, (fixing the price\nof ale,) the first, second, and third time, he shall be _amerced_; but\nthe fourth time he shall suffer _judgment_ of the pillory without\nredemption.\"\n\n_Chap._ 7 provides that \"a butcher that selleth swine's flesh measled,\nor flesh dead of the murrain, or that buyeth flesh of Jews, and selleth\nthe same unto Christians, after he shall be convict thereof, for the\nfirst time he shall be grievously _amerced_; the second time he shall\nsuffer _judgment_ of the pillory; and the third time he shall be\nimprisoned and make _fine_; and the fourth time he shall forswear the\ntown.\"\n\n_Chap. 10_, a statute against _forestalling_, provides that,\n\n\"He that is convict thereof, the first time shall be _amerced_, and\nshall lose the thing so bought, and that according to the custom of the\ntown; he that is convicted the second time shall have _judgment_ of the\npillory; at the third time he shall be imprisoned and make _fine_; the\nfourth time he shall abjure the town. And this _judgment_ shall be given\nupon all manner of forestallers, and likewise upon them that have given\nthem counsel, help, or favor.\"--_1 Ruffhead's Statutes_, 187, 188. _1\nStatutes of the Realm_, 203.]\n\n[Footnote 29: 1 Hume, Appendix, 1.]\n\n[Footnote 30: Blackstone says, \"Our ancient Saxon laws nominally\npunished theft with death, if above the value of twelve pence; but the\ncriminal was permitted to redeem his life by a pecuniary ransom, as\namong their ancestors, the Germans, by a stated number of cattle. But in\nthe ninth year of Henry the First, (1109,) this power of redemption was\ntaken away, and all persons guilty of larceny above the value of twelve\npence were directed to be hanged, which law continues in force to this\nday.\"--_4 Blackstone_, 238.\n\nI give this statement of Blackstone, because the latter clause may seem\nto militate with the idea, which the former clause corroborates, viz.,\nthat at the time of Magna Carta, fines were the usual punishments of\noffences. But I think there is no probability that a law so unreasonable\nin itself, (unreasonable even after making all allowance for the\ndifference in the value of money,) and so contrary to immemorial custom,\ncould or did obtain any general or speedy acquiescence among a people\nwho cared little for the authority of kings.\n\nMaddox, writing of the period from William the Conqueror to John, says:\n\n\"The amercements in criminal and common pleas, which were wont to be\nimposed during this first period and afterwards, were of so many several\nsorts, that it is not easy to place them under distinct heads. Let them,\nfor method's sake, be reduced to the heads following: Amercements for or\nby reason of murders and manslaughters, for misdemeanors, for\ndisseisins, for recreancy, for breach of assize, for defaults, for\nnon-appearance, for false judgment, and for not making suit, or hue and\ncry. To them may be added miscellaneous amercements, for trespasses of\ndivers kinds.\"--_1 Maddox' History of the Exchequer_, 542.]\n\n[Footnote 31: Coke, in his exposition of the words _legem terrae_, gives\nquite in detail the principles of the common law governing _arrests_;\nand takes it for granted that the words \"_nisi per legem terrae_\" are\napplicable to arrests, as well as to the indictment, &c.--2 _Inst._,\n51,52.]\n\n[Footnote 32: I cite the above extract from Mr. Hallam solely for the\nsake of his authority for rendering the word _vel_ by _and_; and not by\nany means for the purpose of indorsing the opinion he suggests, that\n_legem terrae_ authorized \"judgments by default or demurrer,\" _without\nthe intervention of a jury_. He seems to imagine that _lex terrae_, the\ncommon law, at the time of Magna Carta, included everything, even to the\npractice of courts, that is, _at this day_, called by the name of\n_Common Law_; whereas much of what is _now_ called Common Law has grown\nup, by usurpation, since the time of Magna Carta, in palpable violation\nof the authority of that charter. He says, \"Certainly there are many\nlegal procedures, besides _trial_ by jury, through which a party's goods\nor person may be taken.\" Of course there are _now_ many such ways, in\nwhich a party's goods or person _are_ taken, besides by the judgment of\na jury; but the question is, whether such takings are not in violation\nof Magna Carta.\n\nHe seems to think that, in cases of \"judgment by default or demurrer,\"\nthere is no need of a jury, and thence to infer that _legem terrae_ may\nnot have required a jury in those cases. But this opinion is founded on\nthe erroneous idea that juries are required only for determining\ncontested _facts_, and not for judging of the law. In case of default,\nthe plaintiff must present a _prima facie_ case before he is entitled to\na judgment; and Magna Carta, (supposing it to require a jury trial in\ncivil cases, as Mr. Hallam assumes that it does,) as much requires that\nthis _prima facie_ case, both law and fact, be made out to the\nsatisfaction of a jury, as it does that a contested case shall be.\n\nAs for a demurrer, the jury must try a demurrer (having the advice and\nassistance of the court, of course) as much as any other matter of law\narising in a case.\n\nMr. Hallam evidently thinks there is no use for a jury, except where\nthere is a \"_trial_\"--meaning thereby a contest on matters of _fact_.\nHis language is, that \"there are many legal procedures, besides _trial_\nby jury, through which a party's goods or person may be taken.\" Now\nMagna Carta says nothing of _trial_ by jury; but only of the _judgment_,\nor sentence, of a jury. It is only _by inference_ that we come to the\nconclusion that there must be a _trial_ by jury. Since the jury alone\ncan give the _judgment_, or _sentence_, we _infer_ that they must _try_\nthe case; because otherwise they would be incompetent, and would have no\nmoral right, to give _judgment_. They must, therefore, examine the\ngrounds, (both of law and fact,) or rather _try_ the grounds, of every\naction whatsoever, whether it be decided on \"default, demurrer,\" or\notherwise, and render their judgment, or sentence, thereon, before any\njudgment can be a legal one, on which \"to take a party's goods or\nperson.\" In short, the principle of Magna Carta is, that no judgment can\nbe valid _against a party's goods or person_, (not even a judgment for\ncosts,) except a judgment rendered by a jury. Of course a jury must try\nevery question, both of law and fact, that is involved in the rendering\nof that judgment. They are to have the assistance and advice of the\njudges, so far as they desire them; but the judgment itself must be\ntheirs, and not the judgment of the court.\n\nAs to \"process of attachment for contempt,\" it is of course lawful for a\njudge, in his character of a peace officer, to issue a warrant for the\narrest of a man guilty of a contempt, as he would for the arrest of any\nother offender, and hold him to bail, (or, in default of bail, commit\nhim to prison,) to answer for his offence before a jury. Or he may order\nhim into custody without a warrant when the offence is committed in the\njudge's presence. But there is no reason why a judge should have the\npower of _punishing_ for contempt, any more than for any other offence.\nAnd it is one of the most dangerous powers a judge can have, because it\ngives him absolute authority in a court of justice, and enables him to\ntyrannize as he pleases over parties, counsel, witnesses, and jurors. If\na judge have power to punish for contempt, and to determine for himself\nwhat is a contempt, the whole administration of justice (or injustice,\nif he choose to make it so) is in his hands. And all the rights of\njurors, witnesses, counsel, and parties, are held subject to his\npleasure, and can be exercised only agreeably to his will. He can of\ncourse control the entire proceedings in, and consequently the decision\nof, every cause, by restraining and punishing every one, whether party,\ncounsel, witness, or juror, who presumes to offer anything contrary to\nhis pleasure.\n\nThis arbitrary power, which has been usurped and exercised by judges to\npunish for contempt, has undoubtedly had much to do in subduing counsel\ninto those servile, obsequious, and cowardly habits, which so\nuniversally prevail among them, and which have not only cost so many\nclients their rights, but have also cost the people so many of their\nliberties.\n\nIf any _summary_ punishment for contempt be ever necessary, (as it\nprobably is not,) beyond exclusion for the time being from the\ncourt-room, (which should be done, not as a punishment, but for\nself-protection, and the preservation of order,) the judgment for it\nshould be given by the jury, (where the trial is before a jury,) and not\nby the court, for the jury, and not the court, are really the judges.\nFor the same reason, exclusion from the court-room should be ordered\nonly by the jury, in cases when the trial is before a jury, because\nthey, being the real judges and triers of the cause, are entitled, if\nanybody, to the control of the court-room. In appeal courts, where no\njuries sit, it may be necessary--not as a punishment, but for\nself-protection, and the maintenance of order--that the court should\nexercise the power of excluding a person, for the time being, from the\ncourt-room; but there is no reason why they should proceed to sentence\nhim as a criminal, without his being tried by a jury.\n\nIf the people wish to have their rights respected and protected in\ncourts of justice, it is manifestly of the last importance that they\njealously guard the liberty of parties, counsel, witnesses, and jurors,\nagainst all arbitrary power on the part of the court.\n\nCertainly Mr. Hallam may very well say that \"one may doubt whether these\n(the several cases he has mentioned) were in contemplation of the\nframers of Magna Carta\"--that is, as exceptions to the rule requiring\nthat all judgments, that are to be enforced \"_against a party's goods or\nperson_,\" be rendered by a jury.\n\nAgain, Mr. Hallam says, if the word _vel_ be rendered by _and_, \"the\nmeaning will be, that no person shall be disseized, &c., _except upon a\nlawful cause of action_.\" This is true; but it does not follow that any\ncause of action, founded on _statute only_, is therefore a \"_lawful_\ncause of action,\" within the meaning of _legem terrae_, or the _Common\nLaw_. Within the meaning of the _legem terrae_ of Magna Carta, nothing\nbut a _common law_ cause of action is a \"_lawful_\" one.]\n\n[Footnote 33: Hallam says, \"It appears as if the ordeal were permitted\nto persons already convicted by this verdict of a jury.\"--_2 Middle\nAges_, 446, _note_.]\n\n\n\n\nCHAPTER III.\n\nADDITIONAL PROOFS OF THE RIGHTS AND DUTIES OF JURORS.\n\n\nIf any evidence, extraneous to the history and language of Magna Carta,\nwere needed to prove that, by that chapter which guaranties the trial by\njury, all was meant that has now been ascribed to it, and _that the\nlegislation of the king was to be of no authority with the jury beyond\nwhat they chose to allow to it_, and that the juries were to limit the\npunishments to be inflicted, we should find that evidence in various\nsources, such as the laws, customs, and characters of their ancestors on\nthe continent, and of the northern Europeans generally; in the\nlegislation and customs that immediately succeeded Magna Carta; in the\noaths that have at different times been administered to jurors, &c., &c.\nThis evidence can be exhibited here but partially. To give it all would\nrequire too much space and labor.\n\n\nSECTION I.\n\n_Weakness of the Regal Authority._\n\nHughes, in his preface to his translation of Horne's \"_Mirror of\nJustices_,\" (a book written in the time of Edward I., 1272 to 1307,)\ngiving a concise view of the laws of England generally, says:\n\n   \"Although in the Saxon's time I find the usual words of the acts then\n   to have been _edictum_, (edict,) _constitutio_, (statute,) little\n   mention being made of the commons, yet I further find that, _tum\n   demum leges vim et vigerem habuerunt, cum fuerunt non modo institutae\n   sed firmatae approbatione communitatis_.\" (The laws had force and\n   vigor only when they were not only enacted, but confirmed by the\n   approval of the community.)\n\nThe _Mirror of Justices_ itself also says, (ch. 1, sec. 3,) in speaking\n\"_Of the first Constitutions of the Ancient Kings_:\"\n\n   \"Many ordinances were made by many kings, until the time of the king\n   that now is (Edward I.); the which ordinances were abused, _or not\n   used by many, nor very current_, because they were not put in\n   writing, and certainly published.\"--_Mirror of Justices_, p. 6.\n\nHallam says:\n\n   \"The Franks, Lombards, and Saxons seem alike to have been jealous of\n   judicial authority; and averse to surrendering what concerned every\n   man's private right, out of the hands of his neighbors and\n   equals.\"--_1 Middle Ages_, 271.\n\nThe \"judicial authority,\" here spoken of, was the authority of the\nkings, (who at that time united the office of both legislators and\njudges,) and not of a separate department of government, called the\njudiciary, like what has existed in more modern times.[34]\n\nHume says:\n\n   \"The government of the Germans, and that of all the northern nations,\n   who established themselves on the ruins of Rome, was always extremely\n   free; and those fierce people, accustomed to independence and inured\n   to arms, _were more guided by persuasion than authority, in the\n   submission which they paid to their princes_. The military despotism,\n   which had taken place in the Roman empire, and which, previously to\n   the irruption of those conquerors, had sunk the genius of men, and\n   destroyed every noble principle of science and virtue, was unable to\n   resist the vigorous efforts of a free people, and Europe, as from a\n   new epoch, rekindled her ancient spirit, and shook off the base\n   servitude to arbitrary will and authority under which she had so long\n   labored. The free constitutions then established, however impaired by\n   the encroachments of succeeding princes, still preserve an air of\n   independence and legal administration, which distinguished the\n   European nations; and if that part of the globe maintain sentiments\n   of liberty, honor, equity, and valor, superior to the rest of\n   mankind, it owes these advantages chiefly to the seeds implanted by\n   those generous barbarians.\n\n   \"_The Saxons, who subdued Britain, as they enjoyed great liberty in\n   their own country, obstinately retained that invaluable possession in\n   their new settlement; and they imported into this island the same\n   principles of independence, which they had inherited from their\n   ancestors. The chieftains, (for such they were, more than kings or\n   princes,) who commanded them in those military expeditions, still\n   possessed a very limited authority_; and as the Saxons exterminated,\n   rather than subdued the ancient inhabitants, they were, indeed,\n   transplanted into a new territory, _but preserved unaltered all their\n   civil and military institutions_. The language was pure Saxon; even\n   the names of places, which often remain while the tongue entirely\n   changes, were almost all affixed by the conquerors; the manners and\n   customs were wholly German; and the same picture of a fierce and bold\n   liberty, which is drawn by the masterly pen of Tacitus, will suit\n   those founders of the English government. _The king, so far from\n   being invested with arbitrary power, was only considered as the first\n   among the citizens; his authority depended more on his personal\n   qualities than on his station; he was even so far on a level with the\n   people, that a stated price was fixed for his head, and a legal fine\n   was levied upon his murderer, which though proportionate to his\n   station, and superior to that paid for the life of a subject, was a\n   sensible mark of his subordination to the community._\"--_1 Hume_,\n   _Appendix_, 1.\n\nStuart says:\n\n   \"The Saxons brought along with them into Britain their own customs,\n   language, and civil institutions. Free in Germany, they renounced not\n   their independence, when they had conquered. Proud from victory, and\n   with their swords in their hands, would they surrender their\n   liberties to a private man? Would temporary leaders, limited in their\n   powers, and unprovided in resources, ever think to usurp an authority\n   over warriors, who considered themselves as their equals, were\n   impatient of control, and attached with devoted zeal to their\n   privileges? Or, would they find leisure to form resolutions, or\n   opportunities to put them in practice, amidst the tumult and\n   confusion of those fierce and bloody wars, which their nations first\n   waged with the Britons, and then engaged in among themselves?\n   Sufficiently flattered in leading the armies of their countrymen, the\n   ambition of commanders could as little suggest such designs, as the\n   liberty of the people could submit to them. The conquerors of Britain\n   retained their independence; and this island saw itself again in\n   that free state in which the Roman arms had discovered it.\n\n   \"The same firmness of character, and generosity of manners, which, in\n   general, distinguished the Germans, were possessed in an eminent\n   degree by the Saxons; and while we endeavor to unfold their political\n   institutions, we must perpetually turn our observation to that\n   masterly picture in which the Roman historian has described these\n   nations. In the woods of Germany shall we find the principles which\n   directed the state of land, in the different kingdoms of Europe; and\n   there shall we find the foundation of those ranks of men, and of\n   those civil arrangements, which the barbarians everywhere\n   established; and which the English alone have had the good fortune,\n   or the spirit, to preserve.\"--_Stuart on the Constitution of\n   England_, p. 59-61.\n\n   \"Kings they (the Germans) respected as the first magistrates of the\n   state; but the authority possessed by them was narrow and\n   limited.\"--_Ditto_, p. 134.\n\n   \"Did he, (the king,) at any time, relax his activity and martial\n   ardor, did he employ his abilities to the prejudice of his nation, or\n   fancy he was superior to the laws; the same power which raised him to\n   honor, humbled and degraded him. The customs and councils of his\n   country pointed out to him his duty; and if he infringed on the\n   former, or disobeyed the latter, a fierce people set aside his\n   authority. * *\n\n   \"His long hair was the only ornament he affected, and to be foremost\n   to attack an enemy was his chief distinction. Engaged in every\n   hazardous expedition, he was a stranger to repose; and, rivalled by\n   half the heroes of his tribe, he could obtain little power. Anxious\n   and watchful for the public interest, he felt every moment his\n   dependence, and gave proofs of his submission.\n\n   \"He attended the general assembly of his nation, and was allowed the\n   privilege to harangue it first; but the arts of persuasion, though\n   known and respected by a rude people, were unequally opposed to the\n   prejudices and passions of men.\"--_Ditto_, p. 135-6.\n\n   \"_The authority of a Saxon monarch was not more considerable. The\n   Saxons submitted not to the arbitrary rule of princes. They\n   administered an oath to their sovereigns, which bound them to\n   acknowledge the laws, and to defend the rights of the church and\n   people; and if they forgot this obligation, they forfeited their\n   office._ In both countries, a price was affixed on kings, a fine\n   expiated their murder, as well as that of the meanest citizen; and\n   the smallest violation of ancient usage, or the least step towards\n   tyranny, was always dangerous, and often fatal to them.\"--_Ditto_, p.\n   139-40.\n\n   \"They were not allowed to impose taxes on the kingdom.\"--_Ditto_, p.\n   146.\n\n   \"Like the German monarchs, they deliberated in the general assembly\n   of the nation; _but their legislative authority was not much\n   respected_; and their assent was considered in no better light than\n   as a form. This, however, was their chief prerogative; and they\n   employed it to acquire an ascendant in the state. To art and\n   insinuation they turned, as their only resource, and flattered a\n   people whom they could not awe; but address, and the abilities to\n   persuade, were a weak compensation for the absence of real power.\n\n   \"They declared war, it is said, and made peace. In both cases,\n   however, they acted as the instruments of the state, and put in\n   execution the resolutions which its councils had decreed. If, indeed,\n   an enemy had invaded the kingdom, and its glory and its safety were\n   concerned, the great lords took the field at the call of their\n   sovereign. But had a sovereign declared war against a neighboring\n   state, without requiring their advice, or if he meant to revenge by\n   arms an insult offered to him by a subject, a haughty and independent\n   nobility refused their assistance. These they considered as the\n   quarrels of the king, and not of the nation; and in all such\n   emergencies he could only be assisted by his retainers and\n   dependents.\"--_Ditto_, p. 147-8.\n\n   \"Nor must we imagine that the Saxon, any more than the German\n   monarchs, succeeded each other in a lineal descent,[35] or that they\n   disposed of the crown at their pleasure. In both countries, the free\n   election of the people filled the throne; and their choice was the\n   only rule by which princes reigned. The succession, accordingly, of\n   their kings was often broken and interrupted, and their depositions\n   were frequent and groundless. The will of a prince whom they had long\n   respected, and the favor they naturally transferred to his\n   descendant, made them often advance him to the royal dignity; but the\n   crown of his ancestor he considered as the gift of the people, and\n   neither expected nor claimed it as a right.\"--_Ditto_, p. 151-3.\n\nIn Germany \"It was the business of the great to command in war, and in\npeace they distributed justice. * *\n\n   \"The _princes_ in Germany were _earls_ in England. The great\n   contended in both countries in the number of their retainers, and in\n   that splendor and magnificence which are so alluring to a rude\n   people; and though they joined to set bounds to regal power, they\n   were often animated against each other with the fiercest hatred. To a\n   proud and impatient nobility it seemed little and unsuiting to give\n   or accept compositions for the injuries they committed or received;\n   and their vassals adopting their resentment and passions, war and\n   bloodshed alone could terminate their quarrels. What necessarily\n   resulted from their situation in society, was continued as a\n   _privilege_; and the great, in both countries, made war, of their\n   private authority, on their enemies. The Saxon earls even carried\n   their arms against their sovereigns; and, surrounded with retainers,\n   or secure in fortresses and castles, they despised their resentment,\n   and defied their power.\n\n   \"The judges of the people, they presided in both countries in courts\n   of law.[36] The particular districts over which they exerted their\n   authority were marked out in Germany by the council of the state; and\n   in England their jurisdiction extended over the fiefs and other\n   territories they possessed. All causes, both civil and criminal, were\n   tried before them; and they judged, except in cases of the utmost\n   importance, without appeal. They were even allowed to grant pardon to\n   criminals, and to correct by their clemency the rigors of justice.\n   Nor did the sovereign exercise any authority in their lands. In these\n   his officers formed no courts, and his _writ_ was disregarded. * *\n\n   \"They had officers, as well as the king, who collected their\n   revenues, and added to their greatness; and the inhabitants of their\n   lands they distinguished by the name of _subjects_.\n\n   \"But to attend the general assembly of their nation was the chief\n   prerogative of the German and Saxon princes; and as they consulted\n   the interest of their country, and deliberated concerning matters of\n   state, so in the _king's court_, of which also they were members,\n   they assisted to pronounce judgment in the complaints and appeals\n   which were lodged in it.\"--_Ditto_, p. 158 to 165.\n\nHenry says:\n\n   \"Nothing can be more evident than this important truth; that our\n   Anglo-Saxon kings were not absolute monarchs; but that their powers\n   and prerogatives were limited by the laws and customs of the country.\n   Our Saxon ancestors had been governed by limited monarchs in their\n   native seats on the continent; and there is not the least appearance\n   or probability that they relinquished their liberties, and submitted\n   to absolute government in their new settlements in this island. It is\n   not to be imagined that men, whose reigning passion was the love of\n   liberty, would willingly resign it; and their new sovereigns, who had\n   been their fellow-soldiers, had certainly no power to compel them to\n   such a resignation.\"--_3 Henry's History of Great Britain_, 358.\n\n   Mackintosh says: \"The Saxon chiefs, who were called kings, originally\n   acquired power by the same natural causes which have gradually, and\n   everywhere, raised a few men above their fellows. They were,\n   doubtless, more experienced, more skilful, more brave, or more\n   beautiful, than those who followed them. * * A king was powerful in\n   war by the lustre of his arms, and the obvious necessity of\n   obedience. His influence in peace fluctuated with his personal\n   character. In the progress of usage his power became more fixed and\n   more limited. * * It would be very unreasonable to suppose that the\n   northern Germans who had conquered England, had so far changed their\n   characteristic habits from the age of Tacitus, that the victors\n   became slaves, and that their generals were converted into\n   tyrants.\"--_Mackintosh's Hist. of England, Ch. 2._ _45 Lardner's Cab.\n   Cyc._, 73-4.\n\nRapin, in his discourse on the \"Origin and Nature of the English\nConstitution,\" says:\n\n   \"There are but two things the Saxons did not think proper to trust\n   their kings with; for being of like passions with other men, they\n   might very possibly abuse them; namely, the power of changing the\n   laws enacted by consent of king and people; and the power of raising\n   taxes at pleasure. From these two articles sprung numberless branches\n   concerning the liberty and property of the subject, which the king\n   cannot touch, without breaking the constitution, and they are the\n   distinguishing character of the English monarchy. The prerogatives of\n   the crown, and the rights and privileges of the people, flowing from\n   the two fore-mentioned articles, are the ground of all the laws that\n   from time to time have been made by unanimous consent of king and\n   people. The English government consists in the strict union of the\n   king's prerogatives with the people's liberties. * * But when kings\n   arose, as some there were, that aimed at absolute power, by changing\n   the old, and making new laws, at pleasure; by imposing illegal taxes\n   on the people; this excellent government being, in a manner,\n   dissolved by these destructive measures, confusion and civil wars\n   ensued, which some very wrongfully ascribe to the fickle and restless\n   temper of the English.\"--_Rapin's Preface to his History of England._\n\nHallam says that among the Saxons, \"the royal authority was weak.\"--_2\nMiddle Ages_, 403.\n\nBut although the king himself had so little authority, that it cannot be\nsupposed for a moment that his laws were regarded as imperative by the\npeople, it has nevertheless been claimed, in modern times, by some who\nseem determined to find or make a precedent for the present legislative\nauthority of parliament, that his laws were authoritative, _when\nassented to_ by the _Witena-gemote_, or assembly of wise men--that is,\nthe bishops and barons. But this assembly evidently had no legislative\npower whatever. The king would occasionally invite the bishops and\nbarons to meet him for consultation on public affairs, _simply as a\ncouncil_, and not as a legislative body. Such as saw fit to attend, did\nso. If they were agreed upon what ought to be done, the king would pass\na law accordingly, and the barons and bishops would then return and\ninform the people orally what laws had been passed, and use their\ninfluence with them to induce them to conform to the law of the king,\nand the recommendation of the council. And the people no doubt were much\nmore likely to accept a law of the king, if it had been approved by this\ncouncil, than if it had not. But it was still only a law of the king,\nwhich they obeyed or disregarded according to their own notions of\nexpediency. The numbers who usually attended this council were too small\nto admit of the supposition that they had any legislative authority\nwhatever, to impose laws upon the people against their will.\n\nLingard says:\n\n   \"It was necessary that the king should obtain the assent of these\n   (the members of the Witena-gemotes) to all legislative enactments;\n   _because, without their acquiescence and support, it was impossible\n   to carry them into execution_. To many charters (laws) we have the\n   signatures of the Witan. _They seldom exceed thirty in number; they\n   never amount to sixty._\"--_1 Lingard_, 486.\n\nIt is ridiculous to suppose that the assent of such an assembly gave any\n_authority_ to the laws of the king, or had any influence in securing\nobedience to them, otherwise than by way of persuasion. If this body had\nhad any real legislative authority, such as is accorded to legislative\nbodies of the present day, they would have made themselves at once the\nmost conspicuous portion of the government, and would have left behind\nthem abundant evidence of their power, instead of the evidence simply of\ntheir assent to a few laws passed by the king.\n\nMore than this. If this body had had any real legislative authority,\nthey would have constituted an aristocracy, having, in conjunction with\nthe king, absolute power over the people. Assembling voluntarily, merely\non the invitation of the king; deputed by nobody but themselves;\nrepresenting nobody but themselves; responsible to nobody but\nthemselves; their legislative authority, if they had had any, would of\nnecessity have made the government the government of an aristocracy\nmerely, _and the people slaves, of course_. And this would necessarily\nhave been the picture that history would have given us of the\nAnglo-Saxon government, _and of Anglo-Saxon liberty_.\n\nThe fact that the people had no representation in this assembly, and the\nfurther fact that, through their juries alone, they nevertheless\nmaintained that noble freedom, the very tradition of which (after the\nsubstance of the thing itself has ceased to exist) has constituted the\ngreatest pride and glory of the nation to this day, _prove_ that this\nassembly exercised no authority which juries of the people acknowledged,\nexcept at their own discretion.[37]\n\nThere is not a more palpable truth, in the history of the Anglo-Saxon\ngovernment, than that stated in the Introduction to Gilbert's History of\nthe Common Pleas,[38] viz., \"_that the County and Hundred Courts_,\" (to\nwhich should have been added the other courts in which juries sat, the\ncourts-baron and court-leet,) \"_in those times were the real and only\nParliaments of the kingdom_.\" And why were they the real and only\nparliaments of the kingdom? Solely because, as will be hereafter shown,\nthe juries in those courts tried causes on their intrinsic merits,\naccording to their own ideas of justice, irrespective of the laws agreed\nupon by kings, priests, and barons; and whatever principles they\nuniformly, or perhaps generally, enforced, _and none others_, became\npractically the law of the land as matter of course.[39]\n\nFinally, on this point. Conclusive proof that the legislation of the\nking was of little or no authority, is found in the fact _that the kings\nenacted so few laws_. If their laws had been received as authoritative,\nin the manner that legislative enactments are at this day, they would\nhave been making laws continually. Yet the codes of the most celebrated\nkings are very small, and were little more than compilations of\nimmemorial customs. The code of Alfred would not fill twelve pages of\nthe statute book of Massachusetts, and was little or nothing else than a\ncompilation of the laws of Moses, and the Saxon customs, evidently\ncollected from considerations of convenience, rather than enacted on the\nprinciple of authority. The code of Edward the Confessor would not fill\ntwenty pages of the statute book of Massachusetts, and, says Blackstone,\n\"seems to have been no more than a new edition, or fresh promulgation of\nAlfred's code, or _dome-book_, with such additions and improvements as\nthe experience of a century and a half suggested.\"--_1 Blackstone_,\n66.[40]\n\nThe Code of William the Conqueror[41] would fill less than seven pages\nof the statute book of Massachusetts; and most of the laws contained in\nit are taken from the laws of the preceding kings, and especially of\nEdward the Confessor (whose laws William swore to observe); but few of\nhis own being added.\n\nThe codes of the other Saxon and Norman kings were, as a general rule,\nless voluminous even than these that have been named; and probably did\nnot exceed them in originality.[42] The Norman princes, from William the\nConqueror to John, I think without exception, bound themselves, and, in\norder to maintain their thrones, were obliged to bind themselves, to\nobserve the ancient laws and customs, in other words, the \"_lex terrae_,\"\nor \"_common law_\" of the kingdom. Even Magna Carta contains hardly\nanything other than this same \"_common law_,\" with some new securities\nfor its observance.\n\nHow is this abstinence from legislation, on the part of the ancient\nkings, to be accounted for, except on the supposition that the people\nwould accept, and juries enforce, few or no new laws enacted by their\nkings? Plainly it can be accounted for in no other way. In fact, all\nhistory informs us that anciently the attempts of the kings to introduce\nor establish new laws, met with determined resistance from the people,\nand generally resulted in failure. \"_Nolumus Leges Angliae mutari_,\" (we\nwill that the laws of England be not changed,) was a determined\nprinciple with the Anglo-Saxons, from which they seldom departed, up to\nthe time of Magna Carta, and indeed until long after.[43]\n\n\nSECTION II.\n\n_The Ancient Common Law Juries were mere Courts of Conscience._\n\nBut it is in the administration of justice, or of law, that the freedom\nor subjection of a people is tested. If this administration be in\naccordance with the arbitrary will of the legislator--that is, if his\nwill, as it appears in his statutes, be the highest rule of decision\nknown to the judicial tribunals,--the government is a despotism, and the\npeople are slaves. If, on the other hand, the rule of decision be those\nprinciples of natural equity and justice, which constitute, or at least\nare embodied in, the general conscience of mankind, the people are free\nin just so far as that conscience is enlightened.\n\nThat the authority of the king was of little weight with the _judicial\ntribunals_, must necessarily be inferred from the fact already stated,\nthat his authority over the _people_ was but weak. If the authority of\nhis laws had been paramount in the judicial tribunals, it would have\nbeen paramount with the people, of course; because they would have had\nno alternative but submission. The fact, then, that his laws were _not_\nauthoritative with the people, is proof that they were _not_\nauthoritative with the tribunals--in other words, that they were not, as\nmatter of course, enforced by the tribunals.\n\nBut we have additional evidence that, up to the time of Magna Carta, the\nlaws of the king were not binding upon the judicial tribunals; and if\nthey were not binding before that time, they certainly were not\nafterwards, as has already been shown from Magna Carta itself. It is\nmanifest from all the accounts we have of the courts in which juries\nsat, prior to Magna Carta, such as the court-baron, the hundred court,\nthe court-leet, and the county court, _that they were mere courts of\nconscience, and that the juries were the judges, deciding causes\naccording to their own notions of equity, and not according to any laws\nof the king, unless they thought them just_.\n\nThese courts, it must be considered, were very numerous, and held very\nfrequent sessions. There were probably seven, eight, or nine hundred\ncourts _a month_, in the kingdom; the object being, as Blackstone says,\n\"_to bring justice home to every man's door_.\" (_3 Blackstone_, 30.) The\nnumber of the _county_ courts, of course, corresponded to the number of\ncounties, (36.) The _court-leet_ was the criminal court for a district\nless than a county. The _hundred court_ was the court for one of those\ndistricts anciently called a _hundred_, because, at the time of their\nfirst organization for judicial purposes, they comprised (as is\nsupposed) but a hundred families.[44] The court-baron was the court for\na single manor, and there was a court for every manor in the kingdom.\nAll these courts were holden as often as once in three or five weeks;\nthe county court once a month. The king's judges were present at none of\nthese courts; the only officers in attendance being sheriffs, bailiffs,\nand stewards, merely ministerial, and not judicial, officers; doubtless\nincompetent, and, if not incompetent, untrustworthy, for giving the\njuries any reliable information in matters of law, beyond what was\nalready known to the jurors themselves. And yet these were the courts,\nin which was done all the judicial business, both civil and criminal, of\nthe nation, except appeals, and some of the more important and difficult\ncases.[45] It is plain that the juries, in these courts, must, of\nnecessity, have been the sole judges of all matters of law whatsoever;\nbecause there was no one present, but sheriffs, bailiffs, and stewards,\nto give them any instructions; and surely it will not be pretended that\nthe jurors were bound to take their law from such sources as these.\n\nIn the second place, it is manifest that the principles of law, by which\nthe juries determined causes, were, as a general rule, nothing else than\ntheir own ideas of natural equity, _and not any laws of the king_;\nbecause but few laws were enacted, and many of those were not written,\nbut only agreed upon in council.[46] Of those that were written, few\ncopies only were made, (printing being then unknown,) and not enough to\nsupply all, or any considerable number, of these numerous courts. Beside\nand beyond all this, few or none of the jurors could have read the laws,\nif they had been written; because few or none of the common people\ncould, at that time, read. Not only were the common people unable to\nread their own language, but, at the time of Magna Carta, the laws were\nwritten in Latin, a language that could be read by few persons except\nthe priests, who were also the lawyers of the nation. Mackintosh says,\n\"the first act of the House of Commons composed and recorded in the\nEnglish tongue,\" was in 1415, two centuries after Magna Carta.[47] Up to\nthis time, and for some seventy years later, the laws were generally\nwritten either in Latin or French; both languages incapable of being\nread by the common people, as well Normans as Saxons; and one of them,\nthe Latin, not only incapable of being read by them, but of being even\nunderstood when it was heard by them.\n\nTo suppose that the people were bound to obey, and juries to enforce,\nlaws, many of which were unwritten, none of which _they_ could read, and\nthe larger part of which (those written in Latin) they could not\ntranslate, or understand when they heard them read, is equivalent to\nsupposing the nation sunk in the most degrading slavery, instead of\nenjoying a liberty of their own choosing.\n\nTheir knowledge of the laws passed by the king was, of course, derived\nonly from oral information; and \"_the good laws_,\" as some of them were\ncalled, in contradistinction to others--those which the people at large\nesteemed to be good laws--were doubtless enforced by the juries, and the\nothers, as a general thing, disregarded.[48]\n\nThat such was the nature of judicial proceedings, and of the power of\njuries, up to the time of Magna Carta, is further shown by the following\nauthorities.\n\n   \"The sheriffs and bailiffs caused the free tenants of their bailiwics\n   to meet at their counties and hundreds; _at which justice was so\n   done, that every one so judged his neighbor by such judgment as a man\n   could not elsewhere receive in the like cases_, until such times as\n   the customs of the realm were put in writing, and certainly\n   published.\n\n   \"And although a freeman commonly was not to serve (as a juror or\n   judge) without his assent, nevertheless it was assented unto that\n   free tenants should meet together in the counties and hundreds, and\n   lords courts, if they were not specially exempted to do such suits,\n   and _there judged their neighbors_.\"--_Mirror of Justices_, p. 7, 8.\n\nGilbert, in his treatise on the Constitution of England, says:\n\n   \"In the county courts, if the debt was above forty shillings, there\n   issued a _justicies_ (a commission) to the sheriff, to enable him to\n   hold such a plea, _where the suitors_ (_jurors_) _are judges of the\n   law and fact_.\"--_Gilbert's Cases in Law and Equity, &c., &c._, 456.\n\nAll the ancient writs, given in Glanville, for summoning jurors,\nindicate that the jurors judged of everything, _on their consciences\nonly_. The writs are in this form:\n\n   \"Summon twelve free and legal men (or sometimes twelve knights) to be\n   in court, _prepared upon their oaths to declare whether A or B have\n   the greater right to the land_ (_or other thing_) _in question_.\" See\n   Writs in Beames' Glanville, p. 54 to 70, and 233-306 to 332.\n\nCrabbe, speaking of the time of Henry I., (1100 to 1135,) recognizes the\nfact that the jurors were the judges. He says:\n\n   \"By one law, every one was to be tried by his peers, who were of the\n   same neighborhood as himself. * * By another law, _the judges, for so\n   the jury were called_, were to be chosen by the party impleaded,\n   after the manner of the Danish _nembas_; by which, probably, is to be\n   understood that the defendant had the liberty of taking exceptions\n   to, or challenging the jury, as it was afterwards called.\"--_Crabbe's\n   History of the English Law_, p. 55.\n\nReeve says:\n\n   \"The great court for _civil_ business was the _county court_; held\n   once every four weeks. Here the sheriff presided; _but the suitors of\n   the court, as they were called, that is, the freemen or landholders\n   of the county, were the judges_; and the sheriff was to execute the\n   judgment. * *\n\n   \"The _hundred court_ was held before _some bailiff_; the _leet_\n   before the lord of the manor's steward.[49] * *\n\n   \"Out of the county court was derived an inferior court of _civil_\n   jurisdiction, called the _court-baron_. This was held from three\n   weeks to three weeks, and _was in every respect like the county\n   court_;\" (_that is, the jurors were judges in it_;) \"only the lord to\n   whom this franchise was granted, or _his steward_, _presided instead\n   of the sheriff_.\"--_1 Reeve's History of the English Law_, p. 7.\n\nChief Baron Gilbert says:\n\n   \"Besides the tenants of the king, which held _per baroniam_, (by the\n   right of a baron,) and did suit and service (served as judges) at his\n   own court; and the burghers and tenants in ancient demesne, that did\n   suit and service (served as jurors or judges) in their own court in\n   person, and in the king's by proxy, there was also a set of\n   freeholders, that did suit and service (served as jurors) at the\n   county court. These were such as anciently held of the lord of the\n   county, and by the escheats of earldoms had fallen to the king; or\n   such as were granted out by service to hold of the king, but with\n   particular reservation to do suit and service (serve as jurors)\n   before the king's bailiff; _because it was necessary the sheriff, or\n   bailiff of the king, should have suitors_ (_jurors_) _at the county\n   court, that the business might be despatched. These suitors are the\n   pares_ (_peers_) _of the county court, and indeed the judges of it;\n   as the pares_ (_peers_) _were the judges in every court-baron_; and\n   therefore the king's bailiff having a court before him, there must be\n   _pares or judges, for the sheriff himself is not a judge_; and though\n   the style of the court is _Curia prima Comitatus E.C. Milit.'\n   vicecom' Comitat' praed' Tent' apud B._, &c. (First Court of the\n   county, E.C. knight, sheriff of the aforesaid county, held at B., &c.);\n   by which it appears that the court was the sheriff's; _yet, by\n   the old feudal constitutions, the lord was not judge, but the pares_\n   (_peers_) _only_; so that, even in a _justicies_, which was a\n   commission to the sheriff to hold plea of more than was allowed by\n   the natural jurisdiction of a county court, _the pares_ (_peers,\n   jurors_) _only were judges, and not the sheriff_; because it was to\n   hold plea in the same manner as they used to do in that (the lord's)\n   court.\"--_Gilbert on the Court of Exchequer_, ch. 5, p. 61-2.\n\n   \"It is a distinguishing feature of the feudal system, to make civil\n   jurisdiction necessarily, and criminal jurisdiction ordinarily,\n   coextensive with tenure; and accordingly there is inseparably\n   incident to every manor a court-baron (curia baronum), _being a court\n   in which the freeholders of the manor are the sole judges_, but in\n   which the lord, by himself, or more commonly by his steward,\n   presides.\"--_Political Dictionary_, word _Manor_.\n\nThe same work, speaking of the county court, says: \"_The judges were the\nfreeholders who did suit to the court._\" See word _Courts_.\n\n   \"In the case of freeholders attending as suitors, the county court\n   or court-baron, (as in the case of the ancient tenants _per baroniam_\n   attending Parliament,) _the suitors are the judges of the court, both\n   for law and for fact_, and the sheriff or the under sheriff in the\n   county court, and the lord or his steward in the court-baron, are\n   only presiding officers, _with no judicial authority_.\"--_Political\n   Dictionary_, word _Suit_.\n\n   \"COURT, (curtis, curia aula); the space enclosed by the walls of a\n   feudal residence, in which the followers of a lord used to assemble\n   in the middle ages, to administer justice, and decide respecting\n   affairs of common interest, &c. It was next used for those who stood\n   in immediate connexion with the lord and master, the _pares curiae_,\n   (peers of the court,) the limited portion of the general assembly, to\n   which was entrusted the pronouncing of judgment,\" &c.--_Encyclopedia\n   Americana_, word _Court_.\n\n   \"In court-barons or county courts _the steward was not judge, but the\n   pares_ (_peers_, _jurors_); nor was the speaker in the House of Lords\n   judge, but the barons only.\"--_Gilbert on the Court of Exchequer_,\n   ch. 3, p. 42.\n\nCrabbe, speaking of the Saxon times, says:\n\n   \"The sheriff presided at the _hundred court_, * * and sometimes sat\n   in the place of the alderman (earl) in the _county\n   court_.\"--_Crabbe_, 23.\n\nThe sheriff afterwards became the sole presiding officer of the county\ncourt.\n\nSir Thomas Smith, Secretary of State to Queen Elizabeth, writing more\nthan three hundred years after Magna Carta, in describing the difference\nbetween the Civil Law and the English Law, says:\n\n   \"_Judex_ is of us called Judge, but our fashion is so divers, that\n   they which give the deadly stroke, and either condemn or acquit the\n   man for guilty or not guilty, _are not called judges, but the twelve\n   men. And the same order as well in civil matters and pecuniary, as in\n   matters criminal_.\"--_Smith's Commonwealth of England_, ch. 9, p. 53,\n   Edition of 1621.\n\n   _Court-Leet._ \"That the _leet_ is the most ancient court in the land\n   for _criminal_ matters, (the court-baron being of no less antiquity\n   in _civil_,) has been pronounced by the highest legal authority. * *\n   Lord Mansfield states that this court was coeval with the\n   establishment of the Saxons here, and its activity marked very\n   visibly both among the Saxons and Danes. * * The leet is a court of\n   record for the cognizance of criminal matters, or pleas of the crown;\n   and necessarily belongs to the king; though a subject, usually the\n   lord of the manor, may be, and is, entitled to the profits,\n   consisting of the essoign pence, fines, and amerciaments.\n\n   \"_It is held before the steward, or was, in ancient times, before the\n   bailiff, of the lord._\"--_Tomlin's Law Dict._, word _Court-Leet_.\n\nOf course the jury were the judges in this court, where only a \"steward\"\nor \"bailiff\" of a manor presided.\n\n   \"No cause of consequence was determined without the king's writ; for\n   even in the county courts, of the debts, which were above forty\n   shillings, there issued a _Justicies_ (commission) to the sheriff, to\n   enable him to hold such plea, _where the suitors are judges of the\n   law and fact_.\"--_Gilbert's History of the Common Pleas,\n   Introduction_, p. 19.\n\n   \"This position\" (that \"the matter of law was decided by the King's\n   Justices, but the matter of fact by the pares\") \"_is wholly\n   incompatible with the common law, for the Jurata (jury) were the sole\n   judges both of the law and the fact_.\"--_Gilbert's History of the\n   Common Pleas_, p. 70, _note_.\n\n   We come now to the challenge; and of old _the suitors in court, who\n   were judges_, could not be challenged; nor by the feudal law could\n   the _pares_ be even challenged, _Pares qui ordinariam jurisdictionem\n   habent recusari non possunt_; (the peers who have ordinary\n   jurisdiction cannot be rejected;) \"_but those suitors who are judges\n   of the court_, could not be challenged; and the reason is, that there\n   are several qualifications required by the writ, viz., that they be\n   _liberos et legales homines de vincineto_ (free and legal men of the\n   neighborhood) of the place laid in the declaration,\" &c.,\n   &c.--_Ditto_, p. 93.\n\n   \"_Ad questionem juris non respondent Juratores._\" (To the question of\n   law the jurors do not answer.) \"The Annotist says, that this is\n   indeed a maxim in the Civil-Law Jurisprudence, _but it does not bind\n   an English jury, for by the common law of the land the jury are\n   judges as well of the matter of law, as of the fact_, with this\n   difference only, that the (a Saxon word) or judge on the bench is to\n   give them no assistance in determining the matter of _fact_, but if\n   they have any doubt among themselves relating to matter of _law_,\n   they may then request him to explain it to them, which when he hath\n   done, and they are thus become well informed, they, and they only,\n   become competent judges of the matter of _law_. And this is the\n   province of the judge on the bench, namely, to show, or _teach_ the\n   law, but not to take upon him the trial of the delinquent, either in\n   matter of fact or in matter of law.\" (Here various Saxon laws are\n   quoted.) \"In neither of these fundamental laws is there the least\n   word, hint, or idea, that the earl or alderman (that is to say, the\n   _Prepositus_ (presiding officer) of the court, which is tantamount to\n   _the judge on the bench_) is to take upon him to judge the delinquent\n   in any sense whatever, the sole purport of his office is to _teach_\n   the secular or worldly law.\"--_Ditto_, p. 57, _note_.\n\n   \"The administration of justice was carefully provided for; it was not\n   the caprice of their lord, _but the sentence of their peers, that\n   they obeyed. Each was the judge of his equals, and each by his equals\n   was judged._\"--_Introd. to Gilbert on Tenures_, p. 12.\n\n   Hallam says: \"A respectable class of free socagers, having, in\n   general, full rights of alienating their lands, and holding them\n   probably at a small certain rent from the lord of the manor,\n   frequently occur in Domes-day Book. * * They undoubtedly were suitors\n   to the court-baron of the lord, to whose soc, or right of justice,\n   they belonged. _They were consequently judges in civil causes,\n   determined before the manorial tribunal._\"--_2 Middle Ages_, 481.\n\nStephens adopts as correct the following quotations from Blackstone:\n\n   \"The _Court-Baron_ is a court incident to every manor in the kingdom,\n   to be holden by the steward within the said manor.\" * * _It \"is a\n   court of common law, and it is the court before the freeholders who\n   owe suit and service to the manor_,\" (are bound to serve as jurors in\n   the courts of the manor,) \"_the steward being rather the registrar\n   than the judge_. * * The freeholders' court was composed of the\n   lord's tenants, who were the _pares_ (equals) of each other, and were\n   bound by their feudal tenure to assist their lord in the dispensation\n   of domestic justice. This was formerly held every three weeks; _and\n   its most important business was to determine, by writ of right, all\n   controversies relating to the right of lands within the manor_.\"--_3\n   Stephens' Commentaries_, 392-3. _3 Blackstone_, 32-3.\n\n   \"A _Hundred Court_ is only a larger court-baron, being held for all\n   the inhabitants of a particular hundred, instead of a manor. _The\n   free suitors (jurors) are here also the judges, and the steward the\n   register._\"--_3 Stephens_, 394. _3 Blackstone_, 33.\n\n   \"The _County Court_ is a court incident to the jurisdiction of the\n   sheriff. * * _The freeholders of the county are the real judges in\n   this court, and the sheriff is the ministerial officer._\"--_3\n   Stephens_, 395-6. _3 Blackstone_, 35-6.\n\nBlackstone describes these courts, as courts \"_wherein injuries were\nredressed in an easy and expeditious manner, by the suffrage of\nneighbors and friends_.\"--_3 Blackstone_, 30.\n\n   \"When we read of a certain number of _freemen_ chosen by the parties\n   to decide in a dispute--all bound by oath to vote _in foro\n   conscientia_--and that _their_ decision, _not the will of the judge\n   presiding, ended the suit_, we at once perceive that a great\n   improvement has been made in the old form of compurgation--an\n   improvement which impartial observation can have no hesitation to\n   pronounce as identical in its main features with the trial by\n   jury.\"--_Dunham's Middle Ages_, Sec. 2, B. 2, Ch. 1. _57 Lardner's\n   Cab. Cyc._, 60.\n\n   \"The bishop and the earl, or, in his absence, the gerefa, (sheriff,)\n   and sometimes both the earl and the gerefa, presided at the\n   _schyre-mote_ (county court); the gerefa (sheriff) usually alone\n   presided at the _mote_ (meeting or court) of the hundred. In the\n   cities and towns which were not within any peculiar jurisdiction,\n   there was held, at regular stated intervals, a _burgh mote_, (borough\n   court,) for the administration of justice, at which a gerefa, or a\n   magistrate appointed by the king, presided.\"--_Spence's Origin of the\n   Laws and Political Institutions of Modern Europe_, p. 444.\n\n   \"The right of the plaintiff and defendant, and of the prosecutor and\n   criminal, _to challenge the judices_, (judges,) _or assessors,[50]\n   appointed to try the cause in civil matters, and to decide upon the\n   guilt or innocence of the accused in criminal matters_, is recognized\n   in the treatise called the Laws of Henry the First; but I cannot\n   discover, from the Anglo-Saxon laws or histories, that before the\n   Conquest the parties had any general right of challenge; _indeed, had\n   such right existed, the injunctions to all persons standing in the\n   situation of judges (jurors) to do right according to their\n   conscience_, would scarcely have been so frequently and anxiously\n   repeated.\"--_Spence_, 456.\n\nHale says:\n\n   \"The administration of the common justice of the kingdom seems to be\n   wholly dispensed in the county courts, hundred courts, and\n   courts-baron; except some of the greater crimes reformed by the laws\n   of King Henry I., and that part thereof which was sometimes taken up\n   by the _Justitiarius Angliae_.\"\n\n   This doubtless bred great inconvenience, uncertainty, and variety in\n   the laws, viz.:\n\n   \"_First, by the ignorance of the judges, which were the freeholders\n   of the county._ * *\n\n   \"Thirdly, a third inconvenience was, that all the business of any\n   moment was carried by parties and factions. _For the freeholders\n   being generally the judges_, and conversing one among another, _and\n   being as it were the chief judges, not only of the fact, but of the\n   law_; every man that had a suit there, sped according as he could\n   make parties.\"--_1 Hale's History of the Common Law_, p. 246.\n\n   \"In all these tribunals,\" (county court, hundred court, &c.,) \"_the\n   judges were the free tenants_, owing suit to the court, and\n   afterwards called its peers.\"--_1 Lingard's History of England_, 488.\n\nHenry calls the twelve jurors \"assessors,\" and says:\n\n   \"These assessors, _who were in reality judges_, took a solemn oath,\n   that they would faithfully discharge the duties of their office, and\n   not suffer an innocent man to be condemned, nor any guilty person to\n   be acquitted.\"--_3 Henry's History of Great Britain_, 346.\n\nTyrrell says:\n\n   \"Alfred cantoned his kingdom, first into _Trihings_ and _Lathes_, as\n   they are still called in Kent and other places, consisting of three\n   or four Hundreds; _in which, the freeholders being judges_, such\n   causes were brought as could not be determined in the Hundred\n   court.\"--_Tyrrell's Introduction to the History of England_, p. 80.\n\nOf the _Hundred Court_ he says:\n\n   \"In this court anciently, _one of the principal inhabitants, called\n   the alderman, together with the barons of the Hundred[51]--id est the\n   freeholders--was judge_.\"--_Ditto_, p. 80.\n\nAlso he says:\n\n   \"By a law of Edward the Elder, 'Every sheriff shall convene the\n   people once a month, and do equal right to all, putting an end to\n   controversies at times appointed.'\"--_Ditto_, p. 86.\n\n   \"A statute, emphatically termed the 'Grand Assize,' enabled the\n   defendant, if he thought proper, to abide by the testimony of the\n   twelve good and lawful knights, chosen by four others of the\n   vicinage, _and whose oaths gave a final decision to the contested\n   claim_.\"--_1 Palgrave's Rise and Progress of the English\n   Commonwealth_, 261.\n\n   \"From the moment when the crown became accustomed to the 'Inquest,' a\n   restraint was imposed upon every branch of the prerogative. _The king\n   could never be informed of his rights, but through the medium of the\n   people._ Every 'extent' by which he claimed the profits and\n   advantages resulting from the casualties of tenure, every process by\n   which he repressed the usurpations of the baronage, depended upon the\n   'good men and true' who were impanelled to 'pass' between the subject\n   and the sovereign; and the thunder of the Exchequer at Westminster\n   might be silenced by the honesty, the firmness, or the obstinacy, of\n   one sturdy knight or yeoman in the distant shire.\n\n   Taxation was controlled in the same manner by the voice of those who\n   were most liable to oppression. * * A jury was impanelled to adjudge\n   the proportion due to the sovereign; and this course was not\n   essentially varied, even after the right of granting aids to the\n   crown was fully acknowledged to be vested in the parliament of the\n   realm. The people taxed themselves; and the collection of the grants\n   was checked and controlled, and, perhaps, in many instances evaded,\n   by these virtual representatives of the community.\n\n   The principle of the jury was, therefore, not confined to its mere\n   application as a mode of trying contested facts, whether in civil or\n   criminal cases; and, both in its form and in its consequences, it had\n   a very material influence upon the general constitution of the realm.\n   * * The main-spring of the machinery of remedial justice existed in\n   the franchise of the lower and lowest orders of the political\n   hierarchy. Without the suffrage of the yeoman, the burgess, and the\n   churl, the sovereign could not exercise the most important and most\n   essential function of royalty; from them he received the power of\n   life and death; he could not wield the sword of justice until the\n   humblest of his subjects placed the weapon in his hand.\"--_1\n   Palgrave's Rise and Progress of the English Constitution_, 274-7.\n\nCoke says, \"The court of the county is no court of record,[52] _and the\nsuitors are the judges thereof_.\"--_4 Inst._, 266.\n\nAlso, \"The court of the Hundred is no court of record, _and the suitors\nbe thereof judges_.\"--_4 Inst._, 267.\n\nAlso, \"The court-baron is a court incident to every manor, and is not of\nrecord, _and the suitors be thereof judges_.\"--_4 Inst._, 268.\n\nAlso, \"The court of ancient demesne is in the nature of a court-baron,\n_wherein the suitors are judges_, and is no court of record.\"--_4\nInst._, 269.\n\nMillar says, \"Some authors have thought that jurymen were originally\n_compurgators_, called by a defendant to swear that they believed him\ninnocent of the facts with which he was charged.... But ... compurgators\nwere merely witnesses; _jurymen were, in reality, judges_. The former\nwere called to confirm the oath of the party by swearing, according to\ntheir belief, that he had told the truth, (in his oath of purgation;)\n_the latter were appointed to try, by witnesses, and by all other means\nof proof, whether he was innocent or guilty_.... Juries were accustomed\nto ascertain the truth of facts, by the defendant's oath of purgation,\ntogether with that of his compurgators.... Both of them (jurymen and\ncompurgators) were obliged to swear that they would _tell the truth_....\nAccording to the simple idea of our forefathers, guilt or innocence was\nregarded as a mere matter of fact; and it was thought that no man, who\nknew the real circumstances of a case, could be at a loss to determine\nwhether the culprit ought to be condemned or acquitted.\"--_1 Millar's\nHist. View of Eng. Gov._, ch. 12, p. 332-4.\n\nAlso, \"The same form of procedure, which took place in the\nadministration of justice among the vassals of a barony, was gradually\nextended to the courts held in the _trading towns_.\"--_Same_, p. 335.\n\nAlso, \"The same regulations, concerning the distribution of justice by\nthe intervention of juries, ... _were introduced into the baron courts\nof the king_, as into those of the nobility, or such of his subjects as\nretained their allodial property.\"--_Same_, p. 337.\n\nAlso. \"This tribunal\" (the _aula regis_, or king's court, afterwards\ndivided into the courts of King's Bench, Common Pleas, and Exchequer)\n\"was properly the ordinary baron-court of the king; and, being in the\nsame circumstances with the baron-courts of the nobility, it was under\nthe same necessity of trying causes by the intervention of a\njury.\"--_Same_, vol. 2, p. 292.\n\nSpeaking of the times of Edward the First, (1272 to 1307,) Millar says:\n\n\"What is called the petty jury was therefore introduced into these\ntribunals, (the King's Bench, the Common Pleas, and the _Exchequer_,) as\nwell as into their auxiliary courts employed to distribute justice in\nthe circuits; and was thus rendered essentially necessary in determining\ncauses of every sort, whether civil, criminal, or _fiscal_.\"--_Same_,\nvol. 2, p. 293-4.\n\nAlso, \"That this form of trial (by jury) obtained universally in all the\nfeudal governments, as well as in that of England, there can be no\nreason to doubt. In France, in Germany, and in other European countries,\nwhere we have any accounts of the constitution and procedure of the\nfeudal courts, it appears that lawsuits of every sort concerning the\nfreemen or vassals of a barony, were determined by the _pares curiae_\n(peers of the court;) _and that the judge took little more upon him than\nto regulate the method of proceeding, or to declare the verdict of the\njury_.\"--_Same_, vol. 1, ch. 12, p. 329.\n\nAlso, \"Among the Gothic nations of modern Europe, the custom of deciding\nlawsuits by a jury seems to have prevailed universally; first in the\nallodial courts of the county, or of the hundred, and afterwards in the\nbaron-courts of every feudal superior.\"--_Same_, vol. 2, p. 296.\n\nPalgrave says that in Germany \"The Graff (gerefa, sheriff) placed\nhimself in the seat of judgment, and gave the charge to the assembled\nfree Echevins, warning them to pronounce judgment according to right and\njustice.\"--2 _Palgrave_, 147.\n\nAlso, that, in Germany, \"The Echevins were composed of the villanage,\nsomewhat obscured in their functions by the learning of the grave\ncivilian who was associated to them, and somewhat limited by the\nencroachments of modern feudality; _but they were still substantially\nthe judges of the court_.\"--_Same_, 148.\n\nPalgrave also says, \"Scotland, in like manner, had the laws of Burlaw,\nor Birlaw, which were made and determined by the neighbors, elected by\ncommon consent, in the Burlaw or Birlaw courts, wherein knowledge was\ntaken of complaints between neighbor and neighbor, _which men, so\nchosen, were judges and arbitrators_, and called Birlaw men.\"--1\n_Palgrave's Rise_, &c., p. 80.\n\nBut, in order to understand the common law trial by jury, as it existed\nprior to Magna Carta, and as it was guaranteed by that instrument, it is\nperhaps indispensable to understand more fully the nature of the courts\nin which juries sat, and the extent of the powers exercised by juries in\nthose courts. I therefore give in a note extended extracts, on these\npoints, from Stuart on the Constitution of England, and from\nBlackstone's Commentaries.[53]\n\nThat all these courts were mere _courts of conscience, in which the\njuries were sole judges, administering justice according to their own\nideas of it_, is not only shown by the extracts already given, but is\nexplicitly acknowledged in the following one, in which the _modern\n\"courts of conscience\"_ are compared with the _ancient hundred and\ncounty courts_, and the preference given to the latter, on the ground\nthat the duties of the jurors in the one case, and of the commissioners\nin the other, are the same, and that the consciences of a jury are a\nsafer and purer tribunal than the consciences of individuals specially\nappointed, and holding permanent offices.\n\n   \"But there is one species of courts constituted by act of Parliament,\n   in the city of London, and other trading and populous districts,\n   which, in their proceedings, so vary from the course of the common\n   law, that they deserve a more particular consideration. I mean the\n   court of requests, _or courts of conscience_, for the recovery of\n   small debts. The first of these was established in London so early as\n   the reign of Henry VIII., by an act of their common council; which,\n   however, was certainly insufficient for that purpose, and illegal,\n   till confirmed by statute 3 Jac. I., ch. 15, which has since been\n   explained and amended by statute 14 Geo. II., ch. 10. The\n   constitution is this: two aldermen and four commoners sit twice a\n   week to hear all causes of debt not exceeding the value of forty\n   shillings; which they examine in a summary way, by the oath of the\n   parties or other witnesses, _and make such order therein as is\n   consonant to equity and good conscience_.* * Divers trading towns and\n   other districts have obtained acts of Parliament, for establishing\n   in them _courts of conscience_ upon nearly the same plan as that in\n   the city of London.\n\n   \"The anxious desire that has been shown to obtain these several acts,\n   proves clearly that the nation, in general, is truly sensible of the\n   great inconvenience arising from the disuse of the ancient county and\n   hundred courts, wherein causes of this small value were always\n   formerly decided with very little trouble and expense to the parties.\n   But it is to be feared that the general remedy, which of late hath\n   been principally applied to this inconvenience, (the erecting these\n   new jurisdictions,) may itself be attended in time with very ill\n   consequences; as the method of proceeding therein is entirely in\n   derogation of the common law; and their large discretionary powers\n   create a petty tyranny in a set of standing commissioners; and as the\n   disuse of the trial by jury may tend to estrange the minds of the\n   people from that valuable prerogative of Englishmen, which has\n   already been more than sufficiently excluded in many instances. _How\n   much rather is it to be wished that the proceedings in the county and\n   hundred courts could be again revived_, without burdening the\n   freeholders with too frequent and tedious attendances; and at the\n   same time removing the delays that have insensibly crept into their\n   proceedings, and the power that either party has of transferring at\n   pleasure their suits to the courts at Westminster! _And we may, with\n   satisfaction, observe, that this experiment has been actually tried,\n   and has succeeded in the populous county of Middlesex_, which might\n   serve as an example for others. For by statute 23 Geo. II., ch. 33,\n   it is enacted:\n\n   1. That a special county court shall be held at least once in a\n   month, in every hundred of the county of Middlesex, _by the county\n   clerk_.\n\n   2. _That twelve freeholders of that hundred, qualified to serve on\n   juries, and struck by the sheriff, shall be summoned to appear at\n   such court by rotation_; so as none shall be summoned oftener than\n   once a year.\n\n   3. That in all causes not exceeding the value of forty shillings,\n   _the county clerk and twelve suitors (jurors) shall proceed in a\n   summary way_, examining the parties and witnesses on oath, without\n   the formal process anciently used; _and shall make such order therein\n   as they shall judge agreeable to conscience_.\"--_3 Blackstone_,\n   81-83.\n\nWhat are these but courts of conscience? And yet Blackstone tells us\nthey are a _revival of the ancient hundred and county courts_. And what\ndoes this fact prove, but that the ancient common law courts, in which\njuries sat, were mere courts of conscience?\n\nIt is perfectly evident that in all these courts the jurors were the\njudges, and determined all questions of law for themselves; because the\nonly alternative to that supposition is, _that the jurors took their law\nfrom sheriffs, bailiffs, and stewards_, of which there is not the least\nevidence in history, nor the least probability in reason. It is evident,\nalso, that they judged independently of the laws of the king, for the\nreasons before given, viz., that the authority of the king was held in\nvery little esteem; and, secondly, that the laws of the king (not being\nprinted, and the people being unable to read them if they had been\nprinted) must have been in a great measure unknown to them, and could\nhave been received by them only on the authority of the sheriff,\nbailiff, or steward. If laws were to be received by them on the\nauthority of these officers, the latter would have imposed such laws\nupon the people as they pleased.\n\nThese courts, that have now been described, were continued in full power\nlong after Magna Carta, no alteration being made in them by that\ninstrument, _nor in the mode of administering justice in them_.\n\nThere is no evidence whatever, so far as I am aware, that the juries had\nany _less_ power in the courts held by the king's justices, than in\nthose held by sheriffs, bailiffs, and stewards; and there is no\nprobability whatever that they had. All the difference between the\nformer courts and the latter undoubtedly was, that, in the former, the\njuries had the benefit of the advice and assistance of the justices,\nwhich would, of course, be considered valuable in difficult cases, on\naccount of the justices being regarded as more learned, not only in the\nlaws of the king, but also in the common law, or \"law of the land.\"\n\nThe conclusion, therefore, I think, inevitably must be, that neither the\nlaws of the king, nor the instructions of his justices, had any\nauthority over jurors beyond what the latter saw fit to accord to them.\nAnd this view is confirmed by this remark of Hallam, the truth of which\nall will acknowledge:\n\n   \"The rules of legal decision, among a rude people, are always very\n   simple; not serving much to guide, far less to control the feelings\n   of natural equity.\"--_2 Middle Ages_, ch. 8, part 2, p. 465.\n\nIt is evident that it was in this way, _by the free and concurrent\njudgments of juries, approving and enforcing certain laws and rules of\nconduct, corresponding to their notions of right and justice_, that the\nlaws and customs, which, for the most part, made up the _common law_,\nand were called, at that day, \"_the good laws, and good customs_,\" and\n\"_the law of the land_,\" were established. How otherwise could they ever\nhave become established, as Blackstone says they were, \"_by long and\nimmemorial usage, and by their universal reception throughout the\nkingdom_,\"[54] when, as the Mirror says, \"_justice was so done, that\nevery one so judged his neighbor, by such judgment as a man could not\nelsewhere receive in the like cases, until such times as the customs of\nthe realm were put in writing and certainly published_?\"\n\nThe fact that, in that dark age, so many of the principles of natural\nequity, as those then embraced in the _Common Law_, should have been so\nuniformly recognized and enforced by juries, as to have become\nestablished by general consent as \"_the law of the land_;\" and the\nfurther fact that this \"law of the land\" was held so sacred that even\nthe king could not lawfully infringe or alter it, but was required to\nswear to maintain it, are beautiful and impressive illustrations of the\ntruth that men's minds, even in the comparative infancy of other\nknowledge, have clear and coincident ideas of the elementary principles,\nand the paramount obligation, of justice. The same facts also prove that\nthe common mind, and the general, or, perhaps, rather, the universal\nconscience, as developed in the untrammelled judgments of juries, may be\nsafely relied upon for the preservation of individual rights in civil\nsociety; and that there is no necessity or excuse for that deluge of\narbitrary legislation, with which the present age is overwhelmed, under\nthe pretext that unless laws be _made_, the law will not be known; a\npretext, by the way, almost universally used for overturning, instead of\nestablishing, the principles of justice.\n\n\nSECTION III.\n\n_The Oaths of Jurors._\n\nThe oaths that have been administered to jurors, in England, and which\nare their _legal_ guide to their duty, _all_ (so far as I have\nascertained them) corroborate the idea that the jurors are to try all\ncases on their intrinsic merits, independently of any laws that they\ndeem unjust or oppressive. It is probable that an oath was never\nadministered to a jury in England, either in a civil or criminal case,\nto try it _according to law_.\n\nThe earliest oath that I have found prescribed by law to be administered\nto jurors is in the laws of Ethelred, (about the year 1015,) which\nrequire that the jurors \"_shall swear, with their hands upon a holy\nthing, that they will condemn no man that is innocent, nor acquit any\nthat is guilty_.\"--_4 Blackstone_, 302. _2 Turner's History of the\nAnglo-Saxons, 155. Wilkins' Laws of the Anglo-Saxons_, 117. _Spelman's\nGlossary_, word _Jurata_.\n\nBlackstone assumes that this was the oath of the _grand_ jury (_4\nBlackstone_, 302); but there was but one jury at the time this oath was\nordained. The institution of two juries, grand and petit, took place\nafter the Norman Conquest.\n\nHume, speaking of the administration of justice in the time of Alfred,\nsays that, in every hundred,\n\n   \"Twelve freeholders were chosen, who, having sworn, together with the\n   hundreder, or presiding magistrate of that division, _to administer\n   impartial justice_, proceeded to the examination of that cause which\n   was submitted to their jurisdiction.\"--_Hume_, ch. 2.\n\nBy a law of Henry II., in 1164, it was directed that the sheriff\n\"_faciet jurare duodecim legales homines de vicineto seu de villa, quod\ninde veritatem secundum conscientiam suam manifestabunt_,\" (shall make\ntwelve legal men from the neighborhood _to swear that they will make\nknown the truth according to their conscience_.)--_Crabbe's History of\nthe English Law_, 119. _1 Reeves_, 87. _Wilkins_, 321-323.\n\nGlanville, who wrote within the half century previous to Magna Carta,\nsays:\n\n   \"Each of the knights summoned for this purpose (as jurors) ought to\n   swear that he will neither utter that which is false, nor knowingly\n   conceal the truth.\"--_Beames' Glanville_, 65.\n\nReeve calls the trial by jury \"_the trial by twelve men sworn to speak\nthe truth_.\"--_1 Reeve's History of the English Law_, 87.\n\nHenry says that the jurors \"took a solemn oath, that they would\nfaithfully discharge the duties of their office, and not suffer an\ninnocent man to be condemned, nor any guilty person to be\nacquitted.\"--_3 Henry's Hist. of Great Britain_, 346.\n\nThe _Mirror of Justices_, (written within a century after Magna Carta,)\nin the chapter on the abuses of the Common Law, says:\n\n   \"It is abuse to use the words, _to their knowledge_, in their oaths,\n   to make the jurors speak upon thoughts, _since the chief words of\n   their oaths be that they speak the truth_.\"--p. 249.\n\nSmith, writing in the time of Elizabeth, says that, in _civil_ suits,\nthe jury \"be sworn to declare the truth of that issue according to the\nevidence, and their conscience.\"--_Smith's Commonwealth of England_,\nedition of 1621, p. 73.\n\nIn _criminal_ trials, he says:\n\n   \"The clerk giveth the juror an oath to go uprightly betwixt the\n   prince and the prisoner.\"--_Ditto_, p. 90.[55]\n\nHale says:\n\n   \"Then twelve, and no less, of such as are indifferent and are\n   returned upon the principal panel, or the _tales_, are sworn to try\n   the same according to the evidence.\"--_2 Hale's History of the Common\n   Law_, 141.\n\nIt appears from Blackstone that, even _at this day, neither in civil nor\ncriminal cases_, are jurors in England sworn to try causes _according to\nlaw_. He says that in civil suits the jury are\n\n   \"Sworn well and truly to _try the issue_ between the parties, and a\n   true verdict to give according to the evidence.\"--_3 Blackstone_,\n   365.\n\n\"_The issue_\" to be tried is whether A owes B anything; and if so, how\nmuch? or whether A has in his possession anything that belongs to B; or\nwhether A has wronged B, and ought to make compensation; and if so, how\nmuch?\n\nNo statute passed by a legislature, simply as a legislature, can alter\neither of these \"issues\" in hardly any conceivable case, perhaps in\nnone. No _unjust_ law could ever alter them in any. They are all mere\nquestions of natural justice, which legislatures have no power to alter,\nand with which they have no right to interfere, further than to provide\nfor having them settled by the most competent and impartial tribunal\nthat it is practicable to have, and then for having all just decisions\nenforced. And any tribunal, whether judge or jury, that attempts to try\nthese issues, has no more moral right to be swerved from the line of\njustice, by the will of a legislature, than by the will of any other\nbody of men whatever. And this oath does not require or permit a jury to\nbe so swerved.\n\nIn criminal cases, Blackstone says the oath of the jury in England is:\n\n   \"Well and truly to try, and true deliverance make, between our\n   sovereign lord, the king, and the prisoner whom they have in charge,\n   and a true verdict to give according to the evidence.\"--_4\n   Blackstone_, 355.\n\n\"The issue\" to be tried, in a criminal case, is \"_guilty_,\" or \"_not\nguilty_.\" The laws passed by a legislature can rarely, if ever, have\nanything to do with this issue. \"_Guilt_\" is an _intrinsic_ quality of\nactions, and can neither be created, destroyed, nor changed by\nlegislation. And no tribunal that attempts to try this issue can have\nany moral right to declare a man _guilty_, for an act that is\nintrinsically innocent, at the bidding of a legislature, any more than\nat the bidding of anybody else. And this oath does not require or permit\na jury to do so.\n\nThe words, \"_according to the evidence_,\" have doubtless been introduced\ninto the above oaths in modern times. They are unquestionably in\nviolation of the Common Law, and of Magna Carta, if by them be meant\nsuch evidence only as the government sees fit to allow to go to the\njury. If the government can dictate the evidence, and require the jury\nto decide according to that evidence, it necessarily dictates the\nconclusion to which they must arrive. In that case the trial is really a\ntrial by the government, and not by the jury. _The jury_ cannot _try an\nissue_, unless _they_ determine what evidence shall be admitted. The\nancient oaths, it will be observed, say nothing about \"_according to the\nevidence_.\" They obviously take it for granted that the jury try the\nwhole case; and of course that _they_ decide what evidence shall be\nadmitted. It would be intrinsically an immoral and criminal act for a\njury to declare a man guilty, or to declare that one man owed money to\nanother, unless all the evidence were admitted, which _they_ thought\nought to be admitted, for ascertaining the truth.[56]\n\n_Grand Jury._--If jurors are bound to enforce all laws passed by the\nlegislature, it is a very remarkable fact that the oath of grand juries\ndoes not require them to be governed by the laws in finding indictments.\nThere have been various forms of oath administered to grand jurors; but\nby none of them that I recollect ever to have seen, except those of the\nStates of Connecticut and Vermont, are they sworn to present men\n_according to law_. The English form, as given in the essay on Grand\nJuries, written near two hundred years ago, and supposed to have been\nwritten by _Lord Somers_, is as follows:\n\n   \"You shall diligently inquire, and true presentment make, of all such\n   articles, matters, and things, as shall be given you in charge, and\n   of all other matters and things as shall come to your knowledge\n   touching this present service. The king's council, your fellows, and\n   your own, you shall keep secret. You shall present no person for\n   hatred or malice; neither shall you leave any one unpresented for\n   favor, or affection, for love or gain, or any hopes thereof; but in\n   all things you shall present the truth, the whole truth, and nothing\n   but the truth, to the best of your knowledge. So help you God.\"\n\nThis form of oath is doubtless quite ancient, for the essay says \"our\nancestors appointed\" it.--_See Essay_, p. 33-34.\n\nOn the obligations of this oath, the essay says:\n\n   \"If it be asked how, or in what manner, the (grand) juries shall\n   inquire, the answer is ready, _according to the best of their\n   understandings_. They only, not the judges, are sworn to search\n   diligently to find out all treasons, &c., within their charge, and\n   they must and ought to use their own discretion in the way and manner\n   of their inquiry. _No directions can legally be imposed upon them by\n   any court or judges_; an honest jury will thankfully accept good\n   advice from judges, as their assistants; but they are bound by their\n   oaths to present the truth, the whole truth, and nothing but the\n   truth, to the best of their own, not the judge's, knowledge. Neither\n   can they, without breach of that oath, resign their consciences, or\n   blindly submit to the dictates of others; and therefore ought to\n   receive or reject such advices, as they judge them good or bad. * *\n   Nothing can be more plain and express than the words of the oath are\n   to this purpose. The jurors need not search the law books, nor tumble\n   over heaps of old records, for the explanation of them. Our greatest\n   lawyers may from hence learn more certainly our ancient law in this\n   case, than from all the books in their studies. The language wherein\n   the oath is penned is known and understood by every man, and the\n   words in it have the same signification as they have wheresoever else\n   they are used. The judges, without assuming to themselves a\n   legislative power, cannot put a new sense upon them, other than\n   according to their genuine, common meaning. They cannot magisterially\n   impose their opinions upon the jury, and make them forsake the direct\n   words of their oath, to pursue their glosses. The grand inquest are\n   bound to observe alike strictly every part of their oath, and to use\n   all just and proper ways which may enable them to perform it;\n   otherwise it were to say, that after men had sworn to inquire\n   diligently after the truth, according to the best of their knowledge,\n   they were bound to forsake all the natural and proper means which\n   their understandings suggest for the discovery of it, if it be\n   commanded by the judges.\"--_Lord Somers' Essay on Grand Juries_, p.\n   38.\n\nWhat is here said so plainly and forcibly of the oath and obligations of\ngrand juries, is equally applicable to the oath and obligations of petit\njuries. In both cases the simple oaths of the jurors, and not the\ninstructions of the judges, nor the statutes of kings nor legislatures,\nare their legal guides to their duties.[57]\n\n\nSECTION IV.\n\n_The Right of Juries to fix the Sentence._\n\nThe nature of the common law courts existing prior to Magna Carta, such\nas the county courts, the hundred courts, the court-leet, and the\ncourt-baron, all prove, what has already been proved from Magna Carta,\nthat, in jury trials, the juries fixed the sentence; because, in those\ncourts, there was no one but the jury who could fix it, unless it were\nthe sheriff, bailiff, or steward; and no one will pretend that it was\nfixed by them. The juries unquestionably gave the \"judgment\" in both\ncivil and criminal cases.\n\nThat the juries were to fix the sentence under Magna Carta, is also\nshown by statutes subsequent to Magna Carta.\n\nA statute passed fifty-one years after Magna Carta, says that a baker,\nfor default in the weight of his bread, \"_debeat_ amerciari vel subire\njudicium pillorae,\"--that is, \"_ought_ to be amerced, or suffer the\nsentence of the pillory.\" And that a brewer, for \"selling ale, contrary\nto the assize,\" \"_debeat_ amerciari, vel pati judicium tumbrelli;\" that\nis, \"_ought_ to be amerced, or suffer judgment of the tumbrel.\"--_51\nHenry III._, st. 6. (1266.)\n\nIf the king (the legislative power) had had authority to fix the\npunishments of these offences imperatively, he would naturally have said\nthese offenders _shall_ be amerced, and _shall_ suffer judgment of the\npillory and tumbrel, instead of thus simply expressing the opinion that\nthey _ought_ to be punished in that manner.\n\nThe statute of Westminster, passed sixty years after Magna Carta,\nprovides that,\n\n   \"No city, borough, nor town, _nor any man_, be amerced, without\n   reasonable cause, and according to the quantity of the trespass; that\n   is to say, every freeman saving his freehold, a merchant saving his\n   merchandise, a villein his waynage, _and that by his or their\n   peers_.\"--_3 Edward I._, ch. 6. (1275.)\n\nThe same statute (ch. 18) provides further, that,\n\n   \"Forasmuch as the _common fine and amercement_ of the whole county in\n   Eyre of the justices for false judgments, or for other trespass, is\n   unjustly assessed by sheriffs and baretors in the shires, so that the\n   sum is many times increased, and the parcels otherwise assessed than\n   they ought to be, to the damage of the people, which be many times\n   paid to the sheriffs and baretors, which do not acquit the payers; it\n   is provided, and the king wills, that from henceforth such sums shall\n   be assessed before the justices in Eyre, afore their departure, _by\n   the oath of knights and other honest men_, upon all such as ought to\n   pay; and the justices shall cause the parcels to be put into their\n   estreats, which shall be delivered up unto the exchequer, and not the\n   whole sum.\"--_St. 3 Edward I._, ch. 18, (1275.)[58]\n\nThe following statute, passed in 1341, one hundred and twenty-five years\nafter Magna Carta, providing for the trial of peers of the realm, and\nthe king's ministers, contains a recognition of the principle of Magna\nCarta, that the jury are to fix the sentence.\n\n   \"Whereas before this time the peers of the land have been arrested\n   and imprisoned, and their temporalities, lands, and tenements, goods\n   and cattels, asseized in the king's hands, and some put to death\n   without judgment of their peers: It is accorded and assented, that no\n   peer of the land, officer, nor other, because of his office, nor of\n   things touching his office, nor by other cause, shall be brought in\n   judgment to lose his temporalities, lands, tenements, goods and\n   cattels, nor to be arrested, nor imprisoned, outlawed, exiled, nor\n   forejudged, nor put to answer, nor be judged, but by _award_\n   (_sentence_) of the said peers in Parliament.\"--_15 Edward III._, st.\n   1, sec. 2.\n\nSection 4, of the same statute provides,\n\n   \"That in every Parliament, at the third day of every Parliament, the\n   king shall take in his hands the offices of all the ministers\n   aforesaid,\" (that is, \"the chancellor, treasurer, barons, and\n   chancellor of the exchequer, the justices of the one bench and of the\n   other, justices assigned in the country, steward and chamberlain of\n   the king's house, keeper of the privy seal, treasurer of the\n   wardrobe, controllers, and they that be chief deputed to abide nigh\n   the king's son, Duke of Cornwall,\") \"and so they shall abide four or\n   five days; except the offices of justices of the one place or the\n   other, justices assigned, barons of exchequer; so always that they\n   and all other ministers be put to answer to every complaint; and if\n   default be found in any of the said ministers, by complaint or other\n   manner, and of that attainted in Parliament, he shall be punished by\n   judgment of the peers, and put out of his office, and another\n   convenient put in his place. And upon the same our said sovereign\n   lord the king shall do (cause) to be pronounced and made execution\n   without delay, _according to the judgment_ (_sentence_) of the said\n   peers in the Parliament.\"\n\nHere is an admission that the peers were to fix the sentence, or\njudgment, and the king promises to make execution \"_according to_\" that\nsentence.\n\nAnd this appears to be the law, under which peers of the realm and the\ngreat officers of the crown were tried and sentenced, for four hundred\nyears after its passage, and, for aught I know, until this day.\n\nThe first case given in Hargrave's collection of English State Trials,\nis that of _Alexander Nevil_, Archbishop of York, _Robert Vere_, Duke\nof Ireland, _Michael de la Pole_, Earl of Suffolk, and _Robert\nTresilian_, Lord Chief Justice of England, with several others,\nconvicted of treason, before \"the Lords of Parliament,\" in 1388. The\nsentences in these cases were adjudged by the \"Lords of Parliament,\" in\nthe following terms, as they are reported.\n\n   \"Wherefore the said _Lords of Parliament_, there present, as judges\n   in Parliament, in this case, _by assent of the king, pronounced their\n   sentence_, and did adjudge the said archbishop, duke, and earl, with\n   Robert Tresilian, so appealed, as aforesaid, to be guilty, and\n   convicted of treason, and to be drawn and hanged, as traitors and\n   enemies to the king and kingdom; and that their heirs should be\n   disinherited forever, and their lands and tenements, goods and\n   chattels, forfeited to the king, and that the temporalities of the\n   Archbishop of York should be taken into the king's hands.\"\n\n   Also, in the same case, Sir _John Holt_, Sir _William Burgh_, Sir\n   _John Cary_, Sir _Roger Fulthorpe_, and _John Locton_, \"_were by the\n   lords temporal, by the assent of the king_, adjudged to be drawn and\n   hanged, as traitors, their heirs disinherited, and their lands and\n   tenements, goods and chattels, to be forfeited to the king.\"\n\n   Also, in the same case, _John Blake_, \"of council for the king,\" and\n   _Thomas Uske_, under sheriff of Middlesex, having been convicted of\n   treason,\n\n   \"_The lords awarded, by assent of the king_, that they should both be\n   hanged and drawn as traitors, as open enemies to the king and\n   kingdom, and their heirs disinherited forever, and their lands and\n   tenements, goods and chattels, forfeited to the king.\"\n\n   Also, \"_Simon Burleigh_, the king's chamberlain,\" being convicted of\n   treason, \"_by joint consent of the king and the lords_, sentence was\n   pronounced against the said Simon Burleigh, that he should be drawn\n   from the town to Tyburn, and there be hanged till he be dead, and\n   then have his head struck from his body.\"\n\n   Also, \"_John Beauchamp_, steward of the household to the king, _James\n   Beroverse_, and _John Salisbury_, knights, gentlemen of the privy\n   chamber, _were in like manner condemned_.\"--_1 Hargrave's State\n   Trials_, first case.\n\nHere the sentences were all fixed by the peers, _with the assent of the\nking_. But that the king should be consulted, and his assent obtained to\nthe sentence pronounced by the peers, does not imply any deficiency of\npower on their part to fix the sentence independently of the king. There\nare obvious reasons why they might choose to consult the king, and\nobtain his approbation of the sentence they were about to impose,\nwithout supposing any legal necessity for their so doing.\n\nSo far as we can gather from the reports of state trials, peers of the\nrealm were usually sentenced by those who tried them, _with the assent\nof the king_. But in some instances no mention is made of the assent of\nthe king, as in the case of \"Lionel, Earl of Middlesex, Lord High\nTreasurer of England,\" in 1624, (four hundred years after Magna Carta,)\nwhere the sentence was as follows:\n\n   \"This High Court of Parliament doth adjudge, that Lionel, Earl of\n   Middlesex, now Lord Treasurer of England, shall lose all his offices\n   which he holds in this kingdom, and shall, hereafter, be made\n   incapable of any office, place, or employment in the state and\n   commonwealth. That he shall be imprisoned in the tower of London,\n   during the king's pleasure. That he shall pay unto our sovereign lord\n   the king a fine of 50,000 pounds. That he shall never sit in\n   Parliament any more, and that he shall never come within the verge of\n   the court.\"--_2 Howell's State Trials_, 1250.\n\nHere was a peer of the realm, and a minister of the king, of the highest\ngrade; and if it were ever _necessary_ to obtain the assent of the king\nto sentences pronounced by the peers, it would unquestionably have been\nobtained in this instance, and his assent would have appeared in the\nsentence.\n\n_Lord Bacon_ was sentenced by the House of Lords, (1620,) _no mention\nbeing made of the assent of the king_. The sentence is in these words:\n\n   \"And, therefore, this High Court doth adjudge, That the Lord Viscount\n   St. Albans, Lord Chancellor of England, shall undergo fine and ransom\n   of 40,000 pounds. That he shall be imprisoned in the tower during the\n   king's pleasure. That he shall forever be incapable of any office,\n   place, or employment in the state or commonwealth. That he shall\n   never sit in Parliament, nor come within the verge of the court.\"\n\nAnd when it was demanded of him, before sentence, whether it were his\nhand that was subscribed to his confession, and whether he would stand\nto it; he made the following answer, which implies that the lords were\nthe ones to determine his sentence.\n\n   \"My lords, it is my act, my hand, my heart. _I beseech your lordships\n   to be merciful to a broken reed._\"--_1 Hargrave's State Trials_,\n   386-7.\n\nThe sentence against Charles the First, (1648,) after reciting the\ngrounds of his condemnation, concludes in this form:\n\n   \"For all which treasons and crimes, _this court doth adjudge_, that\n   he, the said Charles Stuart, as a tyrant, traitor, murderer, and\n   public enemy to the good people of this nation, shall be put to death\n   by the severing his head from his body.\"\n\nThe report then adds:\n\n   \"This sentence being read, the president (of the court) spake as\n   followeth: 'This sentence now read and published, is the act,\n   sentence, judgment and resolution of the whole court.'\"--_1\n   Hargrave's State Trials_, 1037.\n\nUnless it had been the received \"_law of the land_\" that those who tried\na man should fix his sentence, it would have required an act of\nParliament to fix the sentence of Charles, and his sentence would have\nbeen declared to be \"_the sentence of the law_,\" instead of \"_the act,\nsentence, judgment, and resolution of the court_.\"\n\nBut the report of the proceedings in \"the trial of Thomas, Earl of\nMacclesfield, Lord High Chancellor of Great Britain, before the House of\nLords, for high crimes and misdemeanors in the execution of his office,\"\nin 1725, is so full on this point, and shows so clearly that it rested\nwholly with the lords to fix the sentence, and that the assent of the\nking was wholly unnecessary, that I give the report somewhat at length.\n\n_After being found guilty_, the earl addressed the _lords_, for a\n_mitigation of sentence_, as follows:\n\n   \"'I am now to expect your lordships' judgment; and I hope that you\n   will be pleased to consider that I have suffered no small matter\n   already in the trial, in the expense I have been at, the fatigue, and\n   what I have suffered otherways. * * I have paid back 10,800 pounds of\n   the money already; I have lost my office; I have undergone the\n   censure of both houses of Parliament, which is in itself a severe\n   punishment,'\" &c., &c.\n\nOn being interrupted, he proceeded:\n\n   \"'My lords, I submit whether this be not proper in _mitigation of\n   your lordships' sentence_; but whether it be or not, I leave myself\n   to your lordships' justice and mercy; I am sure neither of them will\n   be wanting, and I entirely submit.' * *\n\n   \"Then the said earl, as also the managers, were directed to withdraw;\n   and the House (of Lords) ordered Thomas, Earl of Macclesfield, to be\n   committed to the custody of the gentleman usher of the black rod; and\n   then proceeded to the consideration of what _judgment_,\" (that is,\n   _sentence_, for he had already been found _guilty_,) \"to give upon\n   the impeachment against the said earl.\" * *\n\n   \"The next day, the Commons, with their speaker, being present at the\n   bar of the House (of Lords), * * the speaker of the House of Commons\n   said as follows:\n\n   \"'My Lords, the knights, citizens, and burgesses in Parliament\n   assembled, in the name of themselves, and of all the commons of Great\n   Britain, did at this bar impeach Thomas, Earl of Macclesfield, of\n   high crimes and misdemeanors, and did exhibit articles of impeachment\n   against him, and have made good their charge. I do, therefore, in the\n   name of the knights, citizens, and burgesses, in Parliament\n   assembled, and of all the commons of Great Britain, demand _judgment_\n   (_sentence_) of your lordships against Thomas, Earl of Macclesfield,\n   for the said high crimes and misdemeanors.'\n\n   \"Then the Lord Chief Justice King, Speaker of the House of Lords,\n   said: 'Mr. Speaker, the Lords are now ready to proceed to judgment in\n   the case by you mentioned.\n\n   \"'Thomas, Earl of Macclesfield, the Lords have unanimously found you\n   guilty of high crimes and misdemeanors, charged on you by the\n   impeachment of the House of Commons, and do now, according to law,\n   proceed to _judgment_ against you, which I am ordered to pronounce.\n   Their lordships' _judgment_ is, and this high court doth adjudge,\n   that you, Thomas, Earl of Macclesfield, be fined in the sum of thirty\n   thousand pounds unto our sovereign lord the king; and that you shall\n   be imprisoned in the tower of London, and there kept in safe custody,\n   until you shall pay the said fine.'\"--_6 Hargrave's State Trials_,\n   762-3-4.\n\nThis case shows that the principle of Magna Carta, that a man should be\n_sentenced only_ by his peers, was in force, and acted upon as law, in\nEngland, so lately as 1725, (five hundred years after Magna Carta,) so\nfar as it applied to a _peer of the realm_.\n\nBut the same principle, on this point, that applies to a peer of the\nrealm, applies to every freeman. The only difference between the two is,\nthat the peers of the realm have had influence enough to preserve their\nconstitutional rights; while the constitutional rights of the people\nhave been trampled upon and rendered obsolete by the usurpation and\ncorruption of the government and the courts.\n\n\nSECTION V.\n\n_The Oaths of Judges._\n\nAs further proof that the legislation of the king, whether enacted with\nor without the assent and advice of his parliaments, was of no authority\nunless it were consistent with the _common law_, and unless juries and\njudges saw fit to enforce it, it may be mentioned that it is probable\nthat no judge in England was ever sworn to observe the laws enacted\neither by the king alone, or by the king with the advice and assent of\nparliament.\n\nThe judges were sworn to \"_do equal law, and execution of right, to all\nthe king's subjects, rich and poor, without having regard to any\nperson_;\" and that they will \"_deny no man common right_;\"[59] but they\nwere _not_ sworn to obey or execute any statutes of the king, or of the\nking and parliament. Indeed, they are virtually sworn _not_ to obey any\nstatutes that are against \"_common right_,\" or contrary to \"_the common\nlaw_,\" or \"_law of the land_;\" but to \"certify the king thereof\"--that\nis, notify him that his statutes are against the common law;--and then\nproceed to execute the _common law_, notwithstanding such legislation to\nthe contrary. The words of the oath on this point are these:\n\n   \"_That ye deny no man common right by (virtue of) the king's letters,\n   nor none other man's, nor for none other cause; and in case any\n   letters come to you contrary to the law_, (that is, the common law,\n   as will be seen on reference to the entire oath given in the note,)\n   _that ye do nothing by such letters, but certify the king thereof\n   and proceed to execute the law_, (that is, the common law,)\n   _notwithstanding the same letters_.\"\n\nWhen it is considered that the king was the sole legislative power, and\nthat he exercised this power, to a great extent, by orders in council,\nand by writs and \"letters\" addressed often-times to some sheriff, or\nother person, and that his commands, when communicated to his justices,\nor any other person, \"by letters,\" or writs, _under seal_, had as much\nlegal authority as laws promulgated in any other form whatever, it will\nbe seen that this oath of the justices _absolutely required_ that they\ndisregard any legislation that was contrary to \"_common right_,\" or\n\"_the common law_,\" and notify the king that it was contrary to common\nright, or the common law, and then proceed to execute the common law,\nnotwithstanding such legislation.[60]\n\nIf there could be any doubt that such was the meaning of this oath, that\ndoubt would be removed by a statute passed by the king two years\nafterwards, which fully explains this oath, as follows:\n\n   \"Edward, by the Grace of God, &c., to the Sheriff of _Stafford_,\n   greeting: Because that by divers complaints made to us, we have\n   perceived that _the Law of the Land, which we by our oath are bound\n   to maintain_, is the less well kept, and the execution of the same\n   disturbed many times by maintenance and procurement, as well in the\n   court as in the country; we greatly moved of conscience in this\n   matter, and for this cause desiring as much for the pleasure of God,\n   and ease and quietness of our subjects, as to save our conscience,\n   and for to save and keep our said oath, by the assent of the great\n   men and other wise men of our council, we have ordained these things\n   following:\n\n   \"First, we have commanded all our justices, that they shall from\n   henceforth _do equal law and execution of right_ to all our subjects,\n   rich and poor, without having regard to any person, _and without\n   omitting to do right for any letters or commandment which may come to\n   them from us, or from any other, or by any other cause. And if that\n   any letters, writs, or commandments come to the justices, or to other\n   deputed to do law and right according to the usage of the realm, in\n   disturbance of the law, or of the execution of the same, or of right\n   to the parties, the justices and other aforesaid shall proceed and\n   hold their courts and processes, where the pleas and matters be\n   depending before them, as if no such letters, writs, or commandments\n   were come to them; and they shall certify us and our council of such\n   commandments which be contrary to the law_, (that is, \"the law of the\n   land,\" or common law,) _as afore is said_.[61] And to the intent that\n   our justices shall do even right to all people in the manner\n   aforesaid, without more favor showing to one than to another, we have\n   ordained and caused our said justices to be sworn, that they shall\n   not from henceforth, as long as they shall be in the office of\n   justice, take fee nor robe of any man, but of ourself, and that they\n   shall take no gift nor reward by themselves, nor by other, privily\n   nor apertly, of any man that hath to do before them by any way,\n   except meat and drink, and that of small value; and that they shall\n   give no counsel to great men or small, in case where we be party, or\n   which do or may touch us in any point, upon pain to be at our will,\n   body, lands, and goods, to do thereof as shall please us, in case\n   they do contrary. And for this cause we have increased the fees of\n   the same, our justices, in such manner as it ought reasonably to\n   suffice them.\"--_20 Edward III._, ch. 1. (1346.)\n\nOther statutes of similar tenor have been enacted, as follows:\n\n   \"It is accorded and established, that it shall not be commanded by\n   the great seal, nor the little seal, to disturb or delay _common\n   right_; and though such commandments do come, the justices shall not\n   therefore leave (omit) to do right in any point.\"--_St. 2 Edward\n   III._, ch. 8. (1328.)\n\n   \"That by commandment of the great seal, or privy seal, no point of\n   this statute shall be put in delay; nor that the justices of\n   whatsoever place it be shall let (omit) to do the _common law_, by\n   commandment, which shall come to them under the great seal, or the\n   privy seal.\"--_14 Edward III._, st. 1, ch. 14. (1340.)\n\n   \"It is ordained and established, that neither letters of the signet,\n   nor of the king's privy seal, shall be from henceforth sent in damage\n   or prejudice of the realm, nor in disturbance of the law\" (the common\n   law).--_11 Richard II._, ch. 10. (1387.)\n\nIt is perfectly apparent from these statutes, and from the oath\nadministered to the justices, that it was a matter freely confessed by\nthe king himself, that his statutes were of no validity, if contrary to\nthe common law, or \"common right.\"\n\nThe oath of the justices, before given, is, I presume, the same that has\nbeen administered to judges in England from the day when it was first\nprescribed to them, (1344,) until now. I do not find from the English\nstatutes that the oath has ever been changed. The Essay on Grand Juries,\nbefore referred to, and supposed to have been written by _Lord Somers_,\nmentions this oath (page 73) as being still administered to judges, that\nis, in the time of Charles II., more than three hundred years after the\noath was first ordained. If the oath has never been changed, it follows\nthat judges have not only never been sworn to support any statutes\nwhatever of the king, or of parliament, but that, for five hundred\nyears past, they actually have been sworn to treat as invalid all\nstatutes that were contrary to the common law.\n\n\nSECTION VI.\n\n_The Coronation Oath._\n\nThat the legislation of the king was of no authority over a jury, is\nfurther proved by the oath taken by the kings at their coronation. This\noath seems to have been substantially the same, from the time of the\n_Saxon_ kings, down to the seventeenth century, as will be seen from the\nauthorities hereafter given.\n\nThe purport of the oath is, that the king swears _to maintain the law of\nthe land_--that is, _the common law_. In other words, he swears \"_to\nconcede and preserve to the English people the laws and customs conceded\nto them by the ancient, just, and pious English kings, * * and\nespecially the laws, customs, and liberties conceded to the clergy and\npeople by the illustrious king Edward;\" * * and \"the just laws and\ncustoms which the common people have chosen, (quas vulgus elegit)_.\"\n\nThese are the same laws and customs which were called by the general\nname of \"_the law of the land_,\" or \"_the common law_,\" and, with some\nslight additions, were embodied in _Magna Carta_.\n\nThis oath not only forbids the king to enact any statutes contrary to\nthe common law, but it proves that his statutes could be of no authority\nover the consciences of a jury; since, as has already been sufficiently\nshown, it was one part of this very common law itself,--that is, of the\nancient \"laws, customs, and liberties,\" mentioned in the oath,--that\njuries should judge of all questions that came before them, according to\ntheir own consciences, independently of the legislation of the king.\n\nIt was impossible that this right of the jury could subsist consistently\nwith any right, on the part of the king, to impose any authoritative\nlegislation upon them. His oath, therefore, to maintain the law of the\nland, or the ancient \"laws, customs, and liberties,\" was equivalent to\nan oath that he would never _assume_ to impose laws upon juries, as\nimperative rules of decision, or take from them the right to try all\ncases according to their own consciences. It is also an admission that\nhe had no constitutional power to do so, if he should ever desire it.\nThis oath, then, is conclusive proof that his legislation was of no\nauthority with a jury, and that they were under no obligation whatever\nto enforce it, unless it coincided with their own ideas of justice.\n\nThe ancient coronation oath is printed with the Statutes of the Realm,\nvol. i., p. 168, and is as follows:[62]\n\nTRANSLATION.\n\n   \"_Form of the Oath of the King of England, on his Coronation._\n\n   (The Archbishop of Canterbury, to whom, of right and custom of the\n   Church of Canterbury, ancient and approved, it pertains to anoint and\n   crown the kings of England, on the day of the coronation of the king,\n   and before the king is crowned, shall propound the underwritten\n   questions to the king.)\n\n   The laws and customs, conceded to the English people by the ancient,\n   just, and pious English kings, will you concede and preserve to the\n   same people, with the confirmation of an oath? and especially the\n   laws, customs, and liberties conceded to the clergy and people by the\n   illustrious king Edward?\n\n   (And the king shall answer,) I do concede, and will preserve them,\n   and confirm them by my oath.\n\n   Will you preserve to the church of God, the clergy, and the people,\n   entire peace and harmony in God, according to your powers?\n\n   (And the king shall answer,) I will.\n\n   In all your judgments, will you cause equal and right justice and\n   discretion to be done, in mercy and truth, according to your powers?\n\n   (And the king shall answer,) I will.\n\n   Do you concede that the just laws and customs, _which the common\n   people have chosen_, shall be preserved; and do you promise that they\n   shall be protected by you, and strengthened to the honor of God,\n   according to your powers?\n\n   (And the king shall answer,) I concede and promise.\"\n\nThe language used in the last of these questions, \"Do you concede that\nthe just laws and customs, _which the common people have chosen_, (_quas\nvulgus elegit_,) shall be preserved?\" &c., is worthy of especial notice,\nas showing that the laws, which were to be preserved, were not\nnecessarily _all_ the laws which the kings enacted, _but only such of\nthem as the common people had selected or approved_.\n\nAnd how had the common people made known their approbation or selection\nof these laws? Plainly, in no other way than this--_that the juries\ncomposed of the common people had voluntarily enforced them_. The common\npeople had no other legal form of making known their approbation of\nparticular laws.\n\nThe word \"concede,\" too, is an important word. In the English statutes\nit is usually translated _grant_--as if with an intention to indicate\nthat \"the laws, customs, and liberties\" of the English people were mere\n_privileges, granted_ to them by the king; whereas it should be\ntranslated _concede_, to indicate simply an _acknowledgment_, on the\npart of the king, that such were the laws, customs, and liberties, which\nhad been chosen and established by the people themselves, and of right\nbelonged to them, and which he was bound to respect.\n\nI will now give some authorities to show that the foregoing oath has,\n_in substance_, been the coronation oath from the times of William the\nConqueror, (1066,) down to the time of James the First, and probably\nuntil 1688.\n\nIt will be noticed, in the quotation from Kelham, that he says this oath\n(or the oath of William the Conqueror) is \"in sense and substance the\nvery same with that which the _Saxon_ kings used to take at their\ncoronations.\"\n\nHale says:\n\n   \"Yet the English were very zealous for them,\" (that is, for the laws\n   of Edward the Confessor,) \"no less or otherwise than they are at this\n   time for the Great Charter; insomuch that they were never satisfied\n   till the said laws were reenforced, and mingled, for the most part,\n   with the coronation oath of king William I., and some of his\n   successors.\"--_1 Hale's History of Common Law_, 157.\n\n   Also, \"William, on his coronation, had sworn to govern by the laws of\n   Edward the Confessor, some of which had been reduced into writing,\n   but the greater part consisted of the immemorial customs of the\n   realm.\"--_Ditto_, p. 202, note L.\n\nKelham says:\n\n   \"Thus stood the laws of England at the entry of William I., and it\n   seems plain that the laws, commonly called the laws of Edward the\n   Confessor, were at that time the standing laws of the kingdom, and\n   considered the great rule of their rights and liberties; and that the\n   English were so zealous for them, 'that they were never satisfied\n   till the said laws were reenforced, and mingled, for the most part,\n   with the coronation oath.' Accordingly, we find that this great\n   conqueror, at his coronation on the Christmas day succeeding his\n   victory, took an oath at the altar of St. Peter, Westminster, _in\n   sense and substance the very same with that which the Saxon kings\n   used to take at their coronations_. * * And at Barkhamstead, in the\n   fourth year of his reign, in the presence of Lanfranc, Archbishop of\n   Canterbury, for the quieting of the people, he swore that he would\n   inviolably observe the good and approved ancient laws which had been\n   made by the devout and pious kings of England, his ancestors, and\n   chiefly by King Edward; and we are told that the people then departed\n   in good humor.\"--_Kelham's Preliminary Discourse to the Laws of\n   William the Conqueror._ See, also, _1 Hale's History of the Common\n   Law_, 186.\n\nCrabbe says that William the Conqueror \"solemnly swore that he would\nobserve the good and approved laws of Edward the Confessor.\"--_Crabbe's\nHistory of the English Law_, p. 43.\n\nThe successors of William, up to the time of Magna Carta, probably all\ntook the same oath, according to the custom of the kingdom; although\nthere may be no historical accounts extant of the oath of each separate\nking. But history tells us specially that Henry I., Stephen, and Henry\nII., confirmed these ancient laws and customs. It appears, also, that\nthe barons desired of John (what he afterwards granted by Magna Carta)\n\"_that the laws and liberties of King Edward_, with other privileges\ngranted to the kingdom and church of England, might be confirmed, as\nthey were contained in the charters of Henry the First; further\nalleging, _that at the time of his absolution, he promised by his oath\nto observe these very laws and liberties_.\"--_Echard's History of\nEngland_, p. 105-6.\n\nIt would appear, from the following authorities, that since Magna Carta\nthe form of the coronation oath has been \"_to maintain the law of the\nland_,\"--meaning that law as embodied in Magna Carta. Or perhaps it is\nmore probable that the ancient form has been still observed, but that,\nas its substance and purport were \"_to maintain the law of the land_,\"\nthis latter form of expression has been used, in the instances here\ncited, from motives of brevity and convenience. This supposition is the\nmore probable, from the fact that I find no statute prescribing a change\nin the form of the oath until 1688.\n\nThat Magna Carta was considered as embodying \"the law of the land,\" or\n\"common law,\" is shown by a statute passed by Edward I., wherein he\n\"grants,\" or concedes,\n\n   \"That the Charter of Liberties and the Charter of the Forest * *\n   shall be kept in every point, without breach, * * and that our\n   justices, sheriffs, mayors, and other ministers, which, under us,\n   have the _laws of our land_[63] to guide, shall allow the said\n   charters pleaded before them in judgment, in all their points, that\n   is, to wit, _the Great Charter as the Common Law_, and the Charter of\n   the Forest for the wealth of the realm.\n\n   \"And we will, that if any judgment be given from henceforth, contrary\n   to the points of the charters aforesaid, by the justices, or by any\n   other our ministers that hold plea before them against the points of\n   the charters, it shall be undone, and holden for naught.\"--_25 Edward\n   I._, ch. 1 and 2. (1297.)\n\nBlackstone also says:\n\n   \"It is agreed by all our historians that the Great Charter of King\n   John was, for the most part, _compiled from the ancient customs of\n   the realm, or the laws of Edward the Confessor; by which they usually\n   mean the old common law which was established under our Saxon\n   princes_.\"--_Blackstone's Introduction to the Charters._ See\n   _Blackstone's Law Tracts_, 289.\n\nCrabbe says:\n\n   \"It is admitted, on all hands, that it (Magna Carta) contains nothing\n   but what was confirmatory of the common law, and the ancient usages\n   of the realm, and is, properly speaking, only an enlargement of the\n   charter of Henry I., and his successors.\"--_Crabbe's History of the\n   English Law_, p. 127.\n\nThat the coronation oath of the kings subsequent to Magna Carta was, in\nsubstance, if not in form, \"_to maintain this law of the land, or common\nlaw_,\" is shown by a statute of Edward Third, commencing as follows:\n\n   \"Edward, by the Grace of God, &c., &c., to the Sheriff of Stafford,\n   Greeting: Because that by divers complaints made to us, we have\n   perceived that _the law of the land, which we by oath are bound to\n   maintain_,\" &c.--_St. 20 Edward III._ (1346.)\n\nThe following extract from Lord Somers' tract on Grand Juries shows that\nthe coronation oath continued the same as late as 1616, (four hundred\nyears after Magna Carta.) He says:\n\n   \"King James, in his speech to the judges, in the Star Chamber, Anno\n   1616, told them, 'That he had, after many years, resolved to renew\n   his oath, made at his coronation, concerning justice, and the promise\n   therein contained for _maintaining the law of the land_.' And, in the\n   next page save one, says, '_I was sworn to maintain the law of the\n   land_, and therefore had been perjured if I had broken it. God is my\n   judge, I never intended it.'\"--_Somers on Grand Juries_, p. 82.\n\nIn 1688, the coronation oath was changed by act of Parliament, and the\nking was made to swear:\n\n   \"To govern the people of this kingdom of England, and the dominions\n   thereto belonging, _according to the statutes in Parliament agreed\n   on, and the laws and customs of the same_.\"--_St. 1 William and\n   Mary_, ch. 6. (1688.)\n\nThe effect and legality of this oath will hereafter be considered. For\nthe present it is sufficient to show, as has been already sufficiently\ndone, that from the Saxon times until at least as lately as 1616, the\ncoronation oath has been, in substance, _to maintain the law of the\nland, or the common law_, meaning thereby the ancient Saxon customs, as\nembodied in the laws of Alfred, of Edward the Confessor, and finally in\nMagna Carta.\n\nIt may here be repeated that this oath plainly proves that the statutes\nof the king were of no authority over juries, if inconsistent with their\nideas of right; because it was one part of the common law that juries\nshould try all causes according to their own consciences, any\nlegislation of the king to the contrary notwithstanding.[64]\n\n[Footnote 34: Hale says:\n\n   \"The trial by jury of twelve men was the usual trial among the\n   Normans, in most suits; especially in assizes, et juris utrum.\"--_1\n   Hale's History of the Common Law_, 219.\n\nThis was in Normandy, before the conquest of England by the Normans.\n_See Ditto_, p. 218.\n\nCrabbe says:\n\n   \"It cannot be denied that the practice of submitting causes to the\n   decision of twelve men was universal among all the northern tribes\n   (of Europe) from the very remotest antiquity.\"--_Crabbe's History of\n   the English Law_, p. 32.]\n\n[Footnote 35: \"The people, who in every general council or assembly\ncould oppose and dethrone their sovereigns, were in little dread of\ntheir encroachments on their liberties; and kings, who found sufficient\nemployment in keeping possession of their crowns, would not likely\nattack the more important privileges of their subjects.\"]\n\n[Footnote 36: This office was afterwards committed to sheriffs. But even\nwhile the court was held by the lord, \"_the Lord was not judge, but the\nPares (peers) only_.\"--_Gilbert on the Court of Exchequer_, 61-2.]\n\n[Footnote 37: The opinion expressed in the text, that the Witan had no\nlegislative authority, is corroborated by the following authorities:\n\n\"From the fact that the new laws passed by the king and the Witan were\nlaid before the shire-mote, (county court,) we should be almost\njustified in the inference that a second sanction was necessary before\nthey could have the effect of law in that particular county.\"--_Dunham's\nMiddle Ages, Sec._ 2, _B._ 2, _Ch._ 1. _57 Lardner's Cab. Cyc._, 53.\n\nThe \"_second sanction_\" required to give the legislation of the king and\nWitan the effect of law, was undoubtedly, I think, _as a general thing,\nthe sanction of a jury_. I know of no evidence whatever that laws were\never submitted to popular vote in the county courts, as this author\nseems to suppose possible. Another mode, sometimes resorted to for\nobtaining the sanction of the people to the laws of the Witan, was, it\nseems, to persuade the people themselves to swear to observe them.\nMackintosh says:\n\n\"The preambles of the laws (of the Witan) speak of the infinite number\nof _liegemen_ who attended, as only applauding the measures of the\nassembly. But this applause was neither so unimportant to the success of\nthe measures, nor so precisely distinguished from a share in\nlegislation, as those who read history with a modern eye might imagine.\nIt appears that under Athelstan expedients were resorted to, to obtain a\nconsent to the law from great bodies of the people in their districts,\nwhich their numbers rendered impossible in a national assembly. That\nmonarch appears to have sent commissioners to hold _shire-gemotes_ or\ncounty meetings, where they proclaimed the laws made by the king and his\ncounsellors, which, being acknowledged and sworn to at these\n_folk-motes_ (meetings of the people) became, by their assent,\ncompletely binding on the whole nation.\"--_Mackintosh's Hist. of\nEngland_, _Ch._ 2. _45 Lardner's Cab. Cyc._, 75.]\n\n[Footnote 38: Page 31.]\n\n[Footnote 39: Hallam says, \"It was, however, to the county court that an\nEnglish freeman chiefly looked for the maintenance of his civil\nrights.\"--_2 Middle Ages_, 392.\n\nAlso, \"This (the county court) was the great constitutional judicature\nin all questions of civil right.\"--_Ditto_, 395.\n\nAlso, \"The liberties of these Anglo-Saxon thanes were chiefly secured,\nnext to their swords and their free spirits, by the inestimable right of\ndeciding civil and criminal suits in their own county courts.\"--_Ditto_,\n399.]\n\n[Footnote 40: \"Alfred may, in one sense, be called the founder of these\nlaws, (the Saxon,) for until his time they were an unwritten code, but\nhe expressly says, '_that I, Alfred, collected the good laws of our\nforefathers into one code, and also I wrote them down_'--which is a\ndecisive fact in the history of our laws well worth noting.\"--_Introduction\nto Gilbert's History of the Common Pleas_, p. 2, _note_.\n\nKelham says, \"Let us consult our own lawyers and historians, and they\nwill tell us * * that Alfred, Edgar, and Edward the Confessor, were the\ngreat _compilers and restorers_ of the English Laws.\"--_Kelham's\nPreliminary Discourse to the Laws of William the Conqueror_, p. 12.\n_Appendix to Kelham's Dictionary of the Norman Language._\n\n\"He (Alfred) also, like another Theodosius, _collected the various\ncustoms_ that he found dispersed in the kingdom, and reduced and\ndigested them into one uniform system, or code of laws, in his\n_som-bec_, or _liber judicialis_ (judicial book). This he _compiled_ for\nthe use of the court baron, hundred and county court, the court-leet and\nsheriff's tourn, tribunals which he established for the trial of all\ncauses, civil and criminal, in the very districts wherein the complaints\narose.\"--_4 Blackstone_, 411.\n\nAlfred himself says, \"Hence I, King Alfred, gathered these together, and\ncommanded many of those to be written down which our forefathers\nobserved--those which I liked--and those which I did not like, by the\nadvice of my Witan, I threw aside. For I durst not venture to set down\nin writing over many of my own, since I knew not what among them would\nplease those that should come after us. But those which I met with\neither of the days of me, my kinsman, or of Offa, King of Mercia, or of\nAEthelbert, who was the first of the English who received baptism--those\nwhich appeared to me the justest--I have here collected, and abandoned\nthe others. Then I, Alfred, King of the West Saxons, showed these to all\nmy Witan, and they then said that they were all willing to observe\nthem.\"--_Laws of Alfred, translated by R. Price, prefixed to\nMackintosh's History of England_, _vol._ 1. _45 Lardner's Cab. Cyc._\n\n\"King Edward * * projected and begun what his grandson, King Edward the\nConfessor, afterwards completed, viz., one uniform digest or body of\nlaws to be observed throughout the whole kingdom, _being probably no\nmore than a revival of King Alfred's code_, with some improvements\nsuggested by necessity and experience, particularly the incorporating\nsome of the British, or, rather, Mercian _customs_, and also _such of\nthe Danish_ (customs) as were reasonable and approved, into the _West\nSaxon Lage_, which was still the ground-work of the whole. And this\nappears to be the best supported and most plausible conjecture, (for\ncertainty is not to be expected,) of the rise and original of that\nadmirable system of maxims and unwritten customs which is now known by\nthe name of the _common law_, as extending its authority universally\nover all the realm, and which is doubtless of Saxon parentage.\"--_4\nBlackstone_, 412.\n\n\"By the _Lex Terrae_ and _Lex Regni_ is understood the laws of Edward the\nConfessor, confirmed and enlarged as they were by William the Conqueror;\nand this Constitution or Code of Laws is what even to this day are\ncalled '_The Common Law of the Land_.'\"--_Introduction to Gilbert's\nHistory of the Common Pleas_, p. 22, _note_.]\n\n[Footnote 41: Not the conqueror of the English people, (as the friends\nof liberty maintain,) but only of Harold the usurper.--See _Hale's\nHistory of the Common Law_, ch. 5.]\n\n[Footnote 42: For all these codes see Wilkins' Laws of the Anglo-Saxons.\n\n\"Being regulations adapted to existing institutions, the Anglo-Saxon\nstatutes are concise and technical, alluding to the law which was then\nliving and in vigor, rather than defining it. The same clauses and\nchapters are often repeated word for word, in the statutes of subsequent\nkings, showing that enactments which bear the appearance of novelty are\nmerely declaratory. Consequently the appearance of a law, seemingly for\nthe first time, is by no means to be considered as a proof that the\nmatter which it contains is new; nor can we trace the progress of the\nAnglo-Saxon institutions with any degree of certainty, by following the\ndates of the statutes in which we find them first noticed. All arguments\nfounded on the apparent chronology of the subjects included in the laws,\nare liable to great fallacies. Furthermore, a considerable portion of\nthe Anglo-Saxon law was never recorded in writing. There can be no doubt\nbut that the rules of inheritance were well established and defined; yet\nwe have not a single law, and hardly a single document from which the\ncourse of the descent of land can be inferred. * * Positive proof cannot\nbe obtained of the commencement of any institution, because the first\nwritten law relating to it may possibly be merely confirmatory or\ndeclaratory; neither can the non-existence of any institution be\ninferred from the absence of direct evidence. Written laws were modified\nand controlled by customs of which no trace can be discovered, until\nafter the lapse of centuries, although those usages must have been in\nconstant vigor during the long interval of silence.\"--_1 Palgrave's Rise\nand Progress of the English Commonwealth_, 58-9.]\n\n[Footnote 43: Rapin says, \"The customs now practised in England are, for\nthe most part, the same as the Anglo-Saxons brought with them from\nGermany.\"--_Rapin's Dissertation on the Government of the Anglo-Saxons_,\nvol. 2, Oct. Ed., p. 198. See _Kelham's Discourse before named_.]\n\n[Footnote 44: Hallam says, \"The county of Sussex contains sixty-five\n('hundreds'); that of Dorset forty-three; while Yorkshire has only\ntwenty-six; and Lancashire but six.\"--_2 Middle Ages_, 391.]\n\n[Footnote 45: Excepting also matters pertaining to the collection of the\nrevenue, which were determined in the king's court of exchequer. But\neven in this court it was the law \"_that none be amerced but by his\npeers_.\"--_Mirror of Justices_, 49.]\n\n[Footnote 46: \"For the English laws, _although not written_, may, as it\nshould seem, and that without any absurdity, be termed laws, (since this\nitself is law--that which pleases the prince has the force of law,) I\nmean those laws which it is evident were promulgated by the advice of\nthe nobles and the authority of the prince, concerning doubts to be\nsettled in their assembly. For if from the mere want of writing only,\nthey should not be considered laws, then, unquestionably, writing would\nseem to confer more authority upon laws themselves, than either the\nequity of the persons constituting, or the reason of those framing\nthem.\"--_Glanville's Preface_, p. 38. (Glanville was chief justice of\nHenry II., 1180.) _2 Turner's History of the Anglo-Saxons_, 280.]\n\n[Footnote 47: Mackintosh's History of England, ch. 3. Lardner's Cabinet\nCyclopaedia, 266.]\n\n[Footnote 48: If the laws of the king were received as authoritative by\nthe juries, what occasion was there for his appointing special\ncommissioners for the trial of offences, without the intervention of a\njury, as he frequently did, in manifest and acknowledged violation of\nMagna Carta, and \"the law of the land?\" These appointments were\nundoubtedly made for no other reason than that the juries were not\nsufficiently subservient, but judged according to their own notions of\nright, instead of the will of the king--whether the latter were\nexpressed in his statutes, or by his judges.]\n\n[Footnote 49: Of course, Mr. Reeve means to be understood that, in the\nhundred court, and court-leet, _the jurors were the judges_, as he\ndeclares them to have been in the county court; otherwise the \"bailiff\"\nor \"steward\" must have been judge.]\n\n[Footnote 50: The jurors were sometimes called \"assessors,\" because they\nassessed, or determined the amount of fines and amercements to be\nimposed.]\n\n[Footnote 51: \"The barons of the Hundred\" were the freeholders. Hallam\nsays: \"The word _baro_, originally meaning only a man, was of very large\nsignificance, and is not unfrequently applied to common freeholders, as\nin the phrase _court-baron_.\"--_3 Middle Ages_, 14-15.\n\n_Blackstone_ says: \"The _court-baron_ * * is a court of common law, and\nit is the court of the barons, by which name the freeholders were\nsometimes anciently called; for that it is held before the freeholders\nwho owe suit and service to the manor.\"--_3 Blackstone_, 33.]\n\n[Footnote 52: The ancient jury courts kept no records, because those who\ncomposed the courts could neither make nor read records. Their decisions\nwere preserved by the memories of the jurors and other persons present.]\n\n[Footnote 53: Stuart says:\n\n\"The courts, or civil arrangements, which were modelled in Germany,\npreserved the independence of the people; and having followed the Saxons\ninto England, and continuing their importance, they supported the envied\nliberty we boast of. * *\n\n\"As a chieftain led out his retainers to the field, and governed them\nduring war; so in peace he summoned them together, and exerted a civil\njurisdiction. He was at once their captain and their judge. They\nconstituted his court; and having inquired with him into the guilt of\nthose of their order whom justice had accused, they assisted him to\nenforce his decrees.\n\n\"This court (the court-baron) was imported into England; but the\ninnovation which conquest introduced into the fashion of the times\naltered somewhat its appearance. * *\n\n\"The head or lord of the manor called forth his attendants to his hall.\n* * He inquired into the breaches of custom, and of justice, which were\ncommitted within the precincts of his territory; and with his followers,\n_who sat with him as judges_, he determined in all matters of debt, and\nof trespass to a certain amount. He possessed a similar jurisdiction\nwith the chieftain in Germany, and his tenants enjoyed an equal\nauthority with the German retainers.\n\n\"But a mode of administration which intrusted so much power to the great\ncould not long be exercised without blame or injustice. The German,\nguided by the candor of his mind, and entering into all his engagements\nwith the greatest ardor, perceived not, at first, that the chieftain to\nwhom he submitted his disputes might be swayed, in the judgments he\npronounced, by partiality, prejudice, or interest; and that the\ninfluence he maintained with his followers was too strong to be\nrestrained by justice. Experience instructed him of his error; he\nacknowledged the necessity of appealing from his lord; and the court of\nthe Hundred was erected.\n\n\"This establishment was formed both in Germany and England, by the\ninhabitants of a certain division, who extended their jurisdiction over\nthe territory they occupied.[65] They bound themselves under a penalty\nto assemble at stated times; _and having elected the wisest to preside\nover them, they judged, not only all civil and criminal matters_, but of\nthose also which regarded religion and the priesthood. The judicial\npower thus invested in the people was extensive; they were able to\npreserve their rights, and attended this court in arms.\n\n\"As the communication, however, and intercourse, of the individuals of a\nGerman community began to be wider, and more general, as their dealings\nenlarged, and as disputes arose among the members of different hundreds,\nthe insufficiency of these courts for the preservation of order was\ngradually perceived. The _shyre mote_, therefore, or _county court_, was\ninstituted; and it formed the chief source of justice both in Germany\nand England.\n\n\"The powers, accordingly, which had been enjoyed by the court of the\n_hundred_, were considerably impaired. It decided no longer concerning\ncapital offences; it decided not concerning matters of liberty, and the\nproperty of estates, or of slaves; its judgments, in every case, became\nsubject to review; and it lost entirely the decision of causes, when it\ndelayed too long to consider them.\n\n\"Every subject of claim or contention was brought, in the first\ninstance, or by appeal, to the _county court_; and the _earl_, or\n_eorldorman_, who presided there, was active to put the laws in\nexecution. He repressed the disorders which fell out within the circuit\nof his authority; and the least remission in his duty, or the least\nfraud he committed, was complained of and punished. He was elected from\namong the great, and was above the temptation of a bribe; but, to\nencourage his activity, he was presented with a share of the territory\nhe governed, or was entitled to a proportion of the fines and profits of\njustice. Every man, in his district, was bound to inform him concerning\ncriminals, and to assist him to bring them to trial; and, as in rude and\nviolent times the poor and helpless were ready to be oppressed by the\nstrong, he was instructed particularly to defend them.\n\n\"His court was ambulatory, and assembled only twice a year, unless the\ndistribution of justice required that its meetings should be oftener.\nEvery freeholder in the county was obliged to attend it; and should he\nrefuse this service, his possessions were seized, and he was forced to\nfind surety for his appearance. The neighboring earls held not their\ncourts on the same day; and, what seems very singular, no judge was\nallowed, after meals, to exercise his office.\n\n\"The druids also, or priests, in Germany, as we had formerly occasion to\nremark, and the clergy in England, exercised a jurisdiction in the\n_hundred_ and _county_ courts. They instructed the people in religious\nduties, and in matters regarding the priesthood; and the princes, earls,\nor _eorldormen_, related to them the laws and customs of the community.\nThese judges were mutually a check to each other; but it was expected\nthat they should agree in their judgments, and should willingly unite\ntheir efforts for the public interest.[66]\n\n\"_But the prince or earl performed not, at all times, in person, the\nobligations of his office._ The enjoyment of ease and of pleasure, to\nwhich in Germany he had delivered himself over, when disengaged from\nwar, and the mean idea he conceived of the drudgery of civil affairs,\n_made him often delegate to an inferior person the distribution of\njustice in his district_. The same sentiments were experienced by the\nSaxon nobility; and the service which they owed by their tenures, and\nthe high employments they sustained, called them often from the\nmanagement of their counties. The progress, too, of commerce, giving an\nintricacy to cases, and swelling the civil code, added to the difficulty\nof their office, and made them averse to its duties. _Sheriffs,\ntherefore, or deputies, were frequently appointed to transact their\nbusiness; and though these were at first under some subordination to the\nearls, they grew at length to be entirely independent of them. The\nconnection of jurisdiction and territory ceasing to prevail, and the\ncivil being separated from the ecclesiastical power, they became the\nsole and proper officers for the direction of justice in the counties._\n\n\"The _hundred_, however, and _county_ courts, were not equal of\nthemselves for the purposes of jurisdiction and order. It was necessary\nthat a court should be erected, of supreme authority, where the disputes\nof the great should be decided, where the disagreeing sentiments of\njudges should be reconciled, and where protection should be given to the\npeople against their fraud and injustice.\n\n\"The princes accordingly, or chief nobility, in the German communities,\nassembled together to judge of such matters. The Saxon nobles continued\nthis prerogative; and the king, or, in his absence, the chief\n_justiciary_, watched over their deliberations. But it was not on every\ntrivial occasion that this court interested itself. In smaller concerns,\njustice was refused during three sessions of the _hundred_, and claimed\nwithout effect, at four courts of the county, before there could lie an\nappeal to it.\n\n\"So gradually were these arrangements established, and so naturally did\nthe varying circumstances in the situation of the Germans and\nAnglo-Saxons direct those successive improvements which the preservation\nof order, and the advantage of society, called them to adopt. The\nadmission of the people into the courts of justice preserved, among the\nformer, that equality of ranks for which they were remarkable; and it\nhelped to overturn, among the latter, those envious distinctions which\nthe feudal system tended to introduce, and prevented that venality in\njudges, and those arbitrary proceedings, which the growing attachment to\ninterest, and the influence of the crown, might otherwise have\noccasioned.\"--_Stuart on the Constitution of England_, p. 222 to 245.\n\n\"In the Anglo-Saxon period, accordingly, _twelve_ only were elected; and\nthese, together with the judge, or presiding officer of the district,\nbeing sworn to regard justice, and the voice of reason, or conscience,\nall causes were submitted to them.\"--_Ditto_, p. 260.\n\n\"Before the orders of men were very nicely distinguished, the jurors\nwere elected from the same rank. When, however, a regular subordination\nof orders was established, and when a knowledge of property had inspired\nthe necessitous with envy, and the rich with contempt, _every man was\ntried by his equals_. The same spirit of liberty which gave rise to this\nregulation attended its progress. Nor could monarchs assume a more\narbitrary method of proceeding. 'I will not' (said the Earl of Cornwall\nto his sovereign) 'render up my castles, nor depart the kingdom, but by\njudgment of my peers.' Of this institution, so wisely calculated for the\npreservation of liberty, all our historians have pronounced the\neulogium.\"--_Ditto_, p. 262-3.\n\nBlackstone says:\n\n\"The policy of our ancient constitution, as regulated and established by\nthe great Alfred, was to bring justice home to every man's door, by\nconstituting as many courts of judicature as there are manors and towns\nin the kingdom; _wherein injuries were redressed in an easy and\nexpeditious manner, by the suffrage of neighbors and friends_. These\nlittle courts, however, communicated with others of a larger\njurisdiction, and those with others of a still greater power; ascending\ngradually from the lowest to the supreme courts, which were respectively\nconstituted to correct the errors of the inferior ones, and to determine\nsuch causes as, by reason of their weight and difficulty, demanded a\nmore solemn discussion. The course of justice flowing in large streams\nfrom the king, as the fountain, to his superior courts of record; and\nbeing then subdivided into smaller channels, till the whole and every\npart of the kingdom were plentifully watered and refreshed. An\ninstitution that seems highly agreeable to the dictates of natural\nreason, as well as of more enlightened policy. * *\n\n\"These inferior courts, at least the name and form of them, still\ncontinue in our legal constitution; but as the superior courts of record\nhave, in practice, obtained a concurrent original jurisdiction, and as\nthere is, besides, a power of removing plaints or actions thither from\nall the inferior jurisdictions; upon these accounts (among others) it\nhas happened that these petty tribunals have fallen into decay, and\nalmost into oblivion; whether for the better or the worse may be matter\nof some speculation, when we consider, on the one hand, the increase of\nexpense and delay, and, on the other, the more able and impartial\ndecisions that follow from this change of jurisdiction.\n\n\"The order I shall observe in discoursing on these several courts,\nconstituted for the redress of _civil_ injuries, (for with those of a\njurisdiction merely _criminal_ I shall not at present concern\nmyself,[67]) will be by beginning with the lowest, and those whose\njurisdiction, though public and generally dispersed through the kingdom,\nis yet (with regard to each particular court) confined to very narrow\nlimits; and so ascending gradually to those of the most extensive and\ntranscendent power.\"--3 _Blackstone_, 30 to 32.\n\n\"The _court-baron_ is a court incident to every manor in the kingdom,\n_to be holden by the steward within the said manor_. This court-baron is\nof two natures; the one is a customary court, of which we formerly\nspoke, appertaining entirely to the copy-holders, in which their estates\nare transferred by surrender and admittance, and other matters\ntransacted relative to their tenures only. The other, of which we now\nspeak, is a court of common law, and it is a court of the barons, by\nwhich name the freeholders were sometimes anciently called; _for that it\nis held by the freeholders who owe suit and service to the manor, the\nsteward being rather the registrar than the judge_. These courts, though\nin their nature distinct, are frequently confounded together. _The court\nwe are now considering, viz., the freeholders court, was composed of the\nlord's tenants, who were the pares_ (equals) _of each other, and were\nbound by their feudal tenure to assist their lord in the dispensation of\ndomestic justice_. This was formerly held every three weeks; and its\nmost important business is to determine, by writ of right, all\ncontroversies relating to the right of lands within the manor. It may\nalso hold plea of any personal actions, of debt, trespass in the case,\nor the like, where the debt or damages do not amount to forty shillings;\nwhich is the same sum, or three marks, that bounded the jurisdiction of\nthe ancient Gothic courts in their lowest instance, or _fierding\ncourts_, so called because four were instituted within every superior\ndistrict or hundred.\"--3 _Blackstone_, 33, 34.\n\n\"A _hundred court_ is only a larger court-baron, being held for all the\ninhabitants of a particular hundred, instead of a manor. _The free\nsuitors are here also the judges, and the steward the registrar, as in\nthe case of a court-baron._ It is likewise no court of record,\nresembling the former at all points, except that in point of territory\nit is of greater jurisdiction. This is said by Sir Edward Coke to have\nbeen derived out of the county court for the ease of the people, that\nthey might have justice done to them at their own doors, without any\ncharge or loss of time; but its institution was probably coeval with\nthat of hundreds themselves, which were formerly observed to have been\nintroduced, though not invented, by Alfred, being derived from the\npolity of the ancient Germans. The _centeni_, we may remember, were the\nprincipal inhabitants of a district composed of different villages,\noriginally in number a _hundred_, but afterward only called by that\nname, and who probably gave the same denomination to the district out of\nwhich they were chosen. Caesar speaks positively of the judicial power\nexercised in their hundred courts and courts-baron. '_Princeps regiorum\natque pagorum_' (which we may fairly construe the lords of hundreds and\nmanors) '_inter suos jus dicunt, controversias que minuunt_.' (The\nchiefs of the country and the villages declare the law among them, and\nabate controversies.) And Tacitus, who had examined their constitution\nstill more attentively, informs us not only of the authority of the\nlords, but that of the _centeni_, the hundreders, or jury, _who were\ntaken out of the common freeholders, and had themselves a share in the\ndetermination. 'Eliguntur in conciliis et principes, qui jura per pagos\nvicosque reddunt, centeni singulis, ex plebe comites concilium simul et\nauctoritas adsunt_.' (The princes are chosen in the assemblies, who\nadminister the laws throughout the towns and villages, and with each one\nare associated an hundred companions, taken from the people, for\npurposes both of counsel and authority.) This hundred court was\ndenominated _haereda_ in the Gothic constitution. But this court, as\ncauses are equally liable to removal from hence as from the common\ncourt-baron, and by the same writs, and may also be reviewed by writ of\nfalse judgment, is therefore fallen into equal disuse with regard to the\ntrial of actions.\"--_3 Blackstone_, 34, 35.\n\n\"The _county court_ is a court incident to the jurisdiction of the\n_sheriff_. It is not a court of record, but may hold pleas of debt, or\ndamages, under the value of forty shillings; over some of which causes\nthese inferior courts have, by the express words of the statute of\nGloucester, (6 Edward I., ch. 8,) a jurisdiction totally exclusive of\nthe king's superior courts. * * The county court may also hold plea of\nmany real actions, and of all personal actions to any amount, by virtue\nof a special writ, called a _justicies_, which is a writ empowering the\nsheriff, for the sake of despatch, to do the same justice in his county\ncourt as might otherwise be had at Westminster. _The freeholders of the\ncounty court are the real judges in this court, and the sheriff is the\nministerial officer._ * * In modern times, as proceedings are removable\nfrom hence into the king's superior courts, by writ of pone or\n_recordari_, in the same manner as from hundred courts and courts-baron,\nand as the same writ of false judgment may be had in nature of a writ of\nerror, this has occasioned the same disuse of bringing actions\ntherein.\"--_3 Blackstone_, 36, 37.\n\n\"Upon the whole, we cannot but admire the wise economy and admirable\nprovision of our ancestors in settling the distribution of justice in a\nmethod so well calculated for cheapness, expedition, and ease. By the\nconstitution which they established, all trivial debts, and injuries of\nsmall consequence, were to be recovered or redressed in every man's own\ncounty, hundred, or perhaps parish.\"--_3 Blackstone_, 59.]\n\n[Footnote 54: 1 Blackstone, 63-67.]\n\n[Footnote 55: This quaint and curious book (Smith's Commonwealth of\nEngland) describes the _minutiae_ of trials, giving in detail the mode of\nimpanelling the jury, and then the conduct of the lawyers, witnesses,\nand court. I give the following extracts, _tending to show that the\njudges impose no law upon the juries, in either civil or criminal cases,\nbut only require them to determine the causes according to their\nconsciences_.\n\nIn civil causes he says:\n\n   \"When it is thought that it is enough pleaded before them, and the\n   witnesses have said what they can, one of the judges, with a brief\n   and pithy recapitulation, reciteth to the twelve in sum the arguments\n   of the sergeants of either side, that which the witnesses have\n   declared, and the chief points of the evidence showed in writing, and\n   once again putteth them in mind of the issue, and sometime giveth it\n   them in writing, delivering to them the evidence which is showed on\n   either part, if any be, (evidence here is called writings of\n   contracts, authentical after the manner of England, that is to say,\n   written, sealed, and delivered,) and biddeth them go together.\"--p.\n   74.\n\nThis is the whole account given of the charge to the jury.\n\nIn criminal cases, after the witnesses have been heard, and the prisoner\nhas said what he pleases in his defence, the book proceeds:\n\n   \"When the judge hath heard them say enough, he asketh if they can say\n   any more: If they say no, then he turneth his speech to the inquest.\n   'Good men, (saith he,) ye of the inquest, ye have heard what these\n   men say against the prisoner. You have also heard what the prisoner\n   can say for himself. _Have an eye to your oath, and to your duty, and\n   do that which God shall put in your minds to the discharge of your\n   consciences_, and mark well what is said.'\"--p. 92.\n\nThis is the whole account given of the charge in a criminal case.\n\nThe following statement goes to confirm the same idea, that jurors in\nEngland have formerly understood it to be their right and duty to judge\nonly according to their consciences, and not to submit to any dictation\nfrom the court, either as to law or fact.\n\n   \"If having pregnant evidence, nevertheless, the twelve do acquit the\n   malefactor, which they will do sometime, especially if they perceive\n   either one of the justices or of the judges, or some other man, to\n   pursue too much and too maliciously the death of the prisoner, * *\n   the prisoner escapeth; but the twelve (are) not only rebuked by the\n   judges, but also threatened of punishment; and many times commanded\n   to appear in the Star-Chamber, or before the Privy Council for the\n   matter. But this threatening chanceth oftener than the execution\n   thereof; _and the twelve answer with most gentle words, they did it\n   according to their consciences_, and pray the judges to be good unto\n   them, _they did as they thought right, and as they accorded all_, and\n   so it passeth away for the most part.\"--p. 100.\n\nThe account given of the trial of a peer of the realm corroborates the\nsame point:\n\n   \"If any duke, marquis, or any other of the degrees of a baron, or\n   above, lord of the Parliament, be appeached of treason, or any other\n   capital crime, he is judged by his peers and equals; that is, the\n   yeomanry doth not go upon him, but an inquest of the Lords of\n   Parliament, and they give their voice not one for all, but each\n   severally as they do in Parliament, being (beginning) at the youngest\n   lord. And for judge one lord sitteth, who is constable of England for\n   that day. The judgment once given, he breaketh his staff, and\n   abdicateth his office. In the rest there is no difference from that\n   above written,\" (that is, in the case of a freeman.)--p. 98.]\n\n[Footnote 56: \"The present form of the jurors' oath is that they shall\n'give a true verdict _according to the evidence_.' At what time this\nform was introduced is uncertain; but for several centuries after the\nConquest, the jurors, _both in civil and criminal cases_, were sworn\nmerely to _speak the truth_. (Glanville, lib. 2, cap. 17; Bracton, lib.\n3, cap. 22; lib. 4, p. 287, 291; Britton, p. 135.) Hence their decision\nwas accurately termed _veredictum_, or verdict, that is, 'a thing truly\nsaid'; whereas the phrase 'true verdict' in the modern oath is not an\naccurate expression.\"--_Political Dictionary_, word _Jury_.]\n\n[Footnote 57: Of course, there can be no legal trial by jury, in either\ncivil or criminal cases, where the jury are sworn to try the cases\n\"_according to law_.\"]\n\n[Footnote 58: _Coke_, as late as 1588, admits that amercements must be\nfixed by the peers (8 Coke's Rep. 38, 2 Inst. 27); but he attempts,\nwholly without success, as it seems to me, to show a difference between\nfines and amercements. The statutes are very numerous, running through\nthe three or four hundred years immediately succeeding Magna Carta, in\nwhich fines, ransoms, and amercements are spoken of as if they were the\ncommon punishments of offences, and as if they all meant the same thing.\nIf, however, any technical difference could be made out between them,\nthere is clearly none in principle; and the word amercement, as used in\nMagna Carta, must be taken in its most comprehensive sense.]\n\n[Footnote 59: \"_Common right_\" was the common law. _1 Coke's Inst._ 142\na. 2 _do._ 55, 6.]\n\n[Footnote 60: The oath of the justices is in these words:\n\n\"Ye shall swear, that well and lawfully ye shall serve our lord the king\n_and his people_, in the office of justice, and that lawfully ye shall\ncounsel the king in his business, and that ye shall not counsel nor\nassent to anything which may turn him in damage or disherison in any\nmanner, way, or color. And that ye shall not know the damage or\ndisherison of him, whereof ye shall not cause him to be warned by\nyourself, or by other; _and that ye shall do equal law and execution of\nright to all his subjects, rich and poor, without having regard to any\nperson_. And that ye take not by yourself, or by other, privily nor\napertly, gift nor reward of gold nor silver, nor of any other thing that\nmay turn to your profit, unless it be meat or drink, and that of small\nvalue, of any man that shall have any plea or process hanging before\nyou, as long as the same process shall be so hanging, nor after for the\nsame cause. And that ye take no fee, as long as ye shall be justice, nor\nrobe of any man great or small, but of the king himself. And that ye\ngive none advice or counsel to no man great or small, in no case where\nthe king is party. And in case that any, of what estate or condition\nthey be, come before you in your sessions with force and arms, or\notherwise against the peace, or against the form of the statute thereof\nmade, _to disturb execution of the common law_,\" (mark the term,\n\"_common law_,\") \"or to menace the people that they may not pursue the\nlaw, that ye shall cause their bodies to be arrested and put in prison;\nand in case they be such that ye cannot arrest them, that ye certify the\nking of their names, and of their misprision, hastily, so that he may\nthereof ordain a convenable remedy. And that ye by yourself, nor by\nother, privily nor apertly, maintain any plea or quarrel hanging in the\nking's court, or elsewhere in the country. _And that ye deny no man\ncommon right by the king's letters, nor none other man's, nor for none\nother cause; and in case any letters come to you contrary to the law,\"\n(that is, the \"common law\" before mentioned,) \"that ye do nothing by\nsuch letters, but certify the king thereof, and proceed to execute the\nlaw,\" (the \"common law\" before mentioned,) \"notwithstanding the same\nletters._ And that ye shall do and procure the profit of the king and of\nhis crown, with all things where ye may reasonably do the same. And in\ncase ye be from henceforth found in default in any of the points\naforesaid, ye shall be at the king's will of body, lands, and goods,\nthereof to be done as shall please him, as God you help and all\nsaints.\"--_18 Edward III._, st. 4. (1344.)]\n\n[Footnote 61: That the terms \"_Law_\" and \"_Right_,\" as used in this\nstatute, mean the _common law_, is shown by the preamble, which declares\nthe motive of the statute to be that \"_the Law of the Land, (the common\nlaw,) which we (the king) by our oath are bound to maintain_,\" may be\nthe better kept, &c.]\n\n[Footnote 62: The following is a copy of the original:\n\n   \"_Forma Juramenti Regis Angliae in Coronacione sua_:\n\n   (Archiepiscopus Cantuariae, ad quo de jure et consuetudine Ecclesiae\n   Cantuariae, antiqua et approbata, pertinet Reges Angliae inungere et\n   coronare, die coronacionis Regis, anteque Rex coronetur, faciet Regi\n   Interrogationes subscriptas.)\n\n   Si leges et consuetudines ab antiquis justis et Deo devotis Regibus\n   plebi Anglicano concessas, cum sacramenti confirmacione eidem plebi\n   concedere et servare (volueris:) Et praesertim leges et consuetudines\n   et libertates a glorioso Rege Edwardo clero populoque concessas?\n\n   (Et respondeat Rex,) Concedo et servare volo, et sacramento\n   confirmare.\n\n   Servabis Ecclesiae Dei, Cleroque, et Populo, pacem ex integro et\n   concordiam in Deo secundum vires tuas?\n\n   (Et respondeat Rex,) Servabo.\n\n   Facies fieri in omnibus Judiciis tuis equam et rectam justiciam, et\n   discrecionem, in misericordia et veritate, secundum vires tuas?\n\n   (Et respondeat Rex,) Faciam.\n\n   Concedis justas, leges et consuetudines esse tenendas, et promittis\n   per te eas esse protegendas, et ad honorem Dei corroborandas, quas\n   vulgus elegit, secundum vires tuas?\n\n   (Et respondeat Rex,) Concedo et promitto.\"]\n\n[Footnote 63: It would appear, from the text, that the Charter of\nLiberties and the Charter of the Forest were sometimes called \"_laws of\nthe land_.\"]\n\n[Footnote 64: As the ancient coronation oath, given in the text, has\ncome down from the Saxon times, the following remarks of Palgrave will\nbe pertinent, in connection with the oath, as illustrating the fact\nthat, in those times, no special authority attached to the laws of the\nking:\n\n\"The Imperial Witenagemot was not a legislative assembly, in the strict\nsense of the term, for the whole Anglo-Saxon empire. Promulgating his\nedicts amidst his peers and prelates, the king uses the language of\ncommand; but the theoretical prerogative was modified by usage, and the\npractice of the constitution required that the law should be accepted by\nthe legislatures (courts) of the several kingdoms. * * The 'Basileus'\nspeaks in the tone of prerogative: Edgar does not merely recommend, he\ncommands that the law shall be adopted by all the people, whether\nEnglish, Danes, or Britons, in every part of his empire. Let this\nstatute be observed, he continues, by Earl Oslac, and all the host who\ndwell under his government, and let it be transmitted by writ to the\nealdormen of the other subordinate states. And yet, in defiance of this\npositive injunction, the laws of Edgar were not accepted in Mercia until\nthe reign of Canute the Dane. It might be said that the course so\nadopted may have been an exception to the general rule; but in the\nscanty and imperfect annals of Anglo-Saxon legislation, we shall be able\nto find so many examples of similar proceedings, _that this mode of\nenactment must be considered as dictated by the constitution of the\nempire_. Edward was the supreme lord of the Northumbrians, but more than\na century elapsed before they obeyed his decrees. The laws of the\nglorious Athelstane had no effect in Kent, (county,) the dependent\nappanage of his crown, until sanctioned by the _Witan_ of the _shire_\n(county court). And the power of Canute himself, the 'King of all\nEngland,' does not seem to have compelled the Northumbrians to receive\nhis code, until the reign of the Confessor, when such acceptance became\na part of the compact upon the accession of a new earl.\n\nLegislation constituted but a small portion of the ordinary business\ntransacted by the Imperial Witenagemot. The wisdom of the assembly was\nshown in avoiding unnecessary change. _Consisting principally of\ntraditionary usages and ancestorial customs, the law was upheld by\nopinion. The people considered their jurisprudence as a part of their\ninheritance._ Their privileges and their duties were closely conjoined;\n_most frequently, the statutes themselves were only affirmances of\nancient customs, or declaratory enactments_. In the Anglo-Saxon\ncommonwealth, therefore, the legislative functions of the Witenagemot\nwere of far less importance than the other branches of its authority. *\n* The members of the Witenagemot were the 'Pares Curiae' (Peers of Court)\nof the kingdom. How far, on these occasions, their opinion or their\nequity controlled the power of the crown, cannot be ascertained. But the\nform of inserting their names in the _'Testing Clause_' was retained\nunder the Anglo-Norman reigns; and the sovereign, who submitted his\nCharter to the judgment of the _Proceres_, professed to be guided by the\nopinion which they gave. As the '_Pares_' of the empire, the Witenagemot\ndecided the disputes between the great vassals of the crown. * * The\njurisdiction exercised in the Parliament of Edward I., when the barony\nof a _Lord-Marcher_ became the subject of litigation, is entirely\nanalogous to the proceedings thus adopted by the great council of\nEdward, the son of Alfred, the Anglo-Saxon king.\n\nIn this assembly, the king, the prelates, the dukes, the ealdormen, and\nthe optimates passed judgment upon all great offenders. * *\n\n_The sovereign could not compel the obedience of the different nations\ncomposing the Anglo-Saxon empire._ Hence, it became more necessary for\nhim to _conciliate their opinions_, if he solicited any service from a\nvassal prince or a vassal state beyond the ordinary terms of the\ncompact; still more so, when he needed the support of a free burgh or\ncity. And we may view the assembly (the Witenagemot) as partaking of the\ncharacter of a political congress, in which the liegemen of the crown,\nor the communities protected by the 'Basileus,' (sovereign,) were asked\nor persuaded to relieve the exigences of the state, or to consider those\nmeasures which might be required for the common weal. The sovereign was\ncompelled to parley with his dependents.\n\nIt may be doubted whether any one member of the empire had power to\nlegislate for any other member. The Regulus of Cumbria was unaffected by\nthe vote of the Earl of East Angliae, if he chose to stand out against\nit. These dignitaries constituted a congress, in which the sovereign\ncould treat more conveniently and effectually with his vassals than by\nseparate negotiations. * * But the determinations of the Witan bound\nthose only who were present, or who concurred in the proposition; and a\nvassal denying his assent to the grant, might assert that the engagement\nwhich he had contracted with his superior did not involve any pecuniary\nsubsidy, but only rendered him liable to perform service in the\nfield.\"--_1 Palgrave's Rise and Progress of the English Commonwealth_,\n637 to 642.]\n\n[Footnote 65: \"It was the freemen in Germany, and the possessors of land\nin England, who were _suitors_ (jurors) in the hundred court. These\nranks of men were the same. The alteration which had happened in\nrelation to property had invested the German freemen with land or\nterritory.\"]\n\n[Footnote 66: It would be wholly erroneous, I think, to infer from this\nstatement of Stuart, that either the \"priests, princes, earls, or\n_eorldormen_\" exercised any authority over the jury in the trial of\ncauses, in the way of dictating the law to them. Henry's account of this\nmatter doubtless gives a much more accurate representation of the truth.\nHe says that _anciently_\n\n   \"The meeting (the county court) was opened with a discourse by the\n   bishop, explaining, out of the Scriptures and ecclesiastical canons,\n   their several duties as good Christians and members of the church.\n   After this, the alderman, or one of his assessors, made a discourse\n   on the laws of the land, and the duties of good subjects and good\n   citizens. _When these preliminaries were over, they proceeded to try\n   and determine, first the causes of the church, next the pleas of the\n   crown, and last of all the controversies of private parties._\"--3\n   _Henry's History of Great Britain_, 348.\n\nThis view is corroborated by Tyrrell's _Introduction to the History of\nEngland_, p. 83-84, and by Spence's _Origin of the Laws and Political\nInstitutions of Modern Europe_, p. 447, and the note on the same page.\nAlso by a law of Canute to this effect, _In every county let there be\ntwice a year an assembly, whereat the bishop and the earl shall be\npresent, the one to instruct the people in divine, the other in human,\nlaws_.--_Wilkins_, p. 136.]\n\n[Footnote 67: There was no distinction between the civil and criminal\ncounts, as to the rights or powers of juries.]\n\n\n\n\nCHAPTER IV.\n\nTHE RIGHTS AND DUTIES OF JURIES IN CIVIL SUITS.\n\n\nThe evidence already given in the preceding chapters proves that the\nrights and duties of jurors, in civil suits, were anciently the same as\nin criminal ones; that the laws of the king were of no obligation upon\nthe consciences of the jurors, any further than the laws were seen by\nthem to be just; that very few laws were enacted applicable to civil\nsuits; that when a new law was enacted, the nature of it could have been\nknown to the jurors only by report, and was very likely not to be known\nto them at all; that nearly all the law involved in civil suits was\n_unwritten_; that there was _usually_ no one in attendance upon juries\nwho could possibly enlighten them, unless it were sheriffs, stewards,\nand bailiffs, who were unquestionably too ignorant and untrustworthy to\ninstruct them authoritatively; that the jurors must therefore\nnecessarily have judged for themselves of the whole case; and that, _as\na general rule_, they could judge of it by no law but the law of nature,\nor the principles of justice as they existed in their own minds.\n\nThe ancient oath of jurors in civil suits, viz., that \"_they would make\nknown the truth according to their consciences_,\" implies that the\njurors were above the authority of all legislation. The modern oath, in\nEngland, viz., that they \"_will well and truly try the issue between the\nparties, and a true verdict give, according to the evidence_,\" implies\nthe same thing. If the laws of the king had been binding upon a jury,\nthey would have been sworn to try the cases _according to law_, or\naccording to the laws.\n\nThe ancient writs, in civil suits, as given in Glanville, (within the\nhalf century before Magna Carta,) to wit, \"Summon twelve free and legal\nmen, (or sometimes twelve knights,) to be in court, _prepared upon their\noaths to declare whether A or B have the greater right to the land in\nquestion_,\" indicate that the jurors judged of the whole matter on their\nconsciences only.\n\nThe language of Magna Carta, already discussed, establishes the same\npoint; for, although some of the words, such as \"outlawed,\" and\n\"exiled,\" would apply only to criminal cases, nearly the whole chapter\napplies as well to civil as to criminal suits. For example, how could\nthe payment of a debt ever be enforced against an unwilling debtor, if\nhe could neither be \"arrested, imprisoned, nor deprived of his\nfreehold,\" and if the king could neither \"proceed against him, nor send\nany one against him, by force or arms\"? Yet Magna Carta as much forbids\nthat any of these things shall be done against a debtor, as against a\ncriminal, _except according to, or in execution of_, \"_a judgment of his\npeers, or the law of the land_,\"--a provision which, it has been shown,\ngave the jury the free and absolute right to give or withhold \"judgment\"\naccording to their consciences, irrespective of all legislation.\n\nThe following provisions, in the Magna Carta of John, illustrate the\ncustom of referring the most important matters of a civil nature, even\nwhere the king was a party, to the determination of the peers, or of\ntwelve men, acting by no rules but their own consciences. These examples\nat least show that there is nothing improbable or unnatural in the idea\nthat juries should try all civil suits according to their own judgments,\nindependently of all laws of the king.\n\n   _Chap. 65._ \"If we have disseized or dispossessed the Welsh of any\n   lands, liberties, or other things, without the legal judgment of\n   their peers, they shall be immediately restored to them. And if any\n   dispute arises upon this head, the matter shall be determined in the\n   Marches,[68] _by the judgment of their peers_,\" &c.\n\n   _Chap. 68._ \"We shall treat with Alexander, king of Scots, concerning\n   the restoring of his sisters, and hostages, and rights and liberties,\n   in the same form and manner as we shall do to the rest of our barons\n   of England; unless by the engagements, which his father William, late\n   king of Scots, hath entered into with us, it ought to be otherwise;\n   _and this shall be left to the determination of his peers in our\n   court_.\"\n\n   _Chap. 56._ \"All evil customs concerning forests, warrens, and\n   foresters, warreners, sheriffs, and their officers, rivers and their\n   keepers, shall forthwith be inquired into in each county, _by twelve\n   knights of the same shire_, chosen by the most creditable persons in\n   the same county, _and upon oath_; and within forty days after the\n   said inquest, be utterly abolished, so as never to be restored.\"\n\nThere is substantially the same reason why a jury _ought_ to judge of\nthe justice of laws, and hold all unjust laws invalid, in civil suits,\nas in criminal ones. That reason is the necessity of guarding against\nthe tyranny of the government. Nearly the same oppressions can be\npractised in civil suits as in criminal ones. For example, individuals\nmay be deprived of their liberty, and robbed of their property, by\njudgments rendered in civil suits, as well as in criminal ones. If the\nlaws of the king were imperative upon a jury in civil suits, the king\nmight enact laws giving one man's property to another, or confiscating\nit to the king himself, and authorizing civil suits to obtain possession\nof it. Thus a man might be robbed of his property at the arbitrary\npleasure of the king. In fact, all the property of the kingdom would be\nplaced at the arbitrary disposal of the king, through the judgments of\njuries in civil suits, if the laws of the king were imperative upon a\njury in such suits.[69]\n\nFurthermore, it would be absurd and inconsistent to make a jury\nparamount to legislation in _criminal_ suits, and subordinate to it in\n_civil_ suits; because an individual, by resisting the execution of a\n_civil_ judgment, founded upon an unjust law, could give rise to a\n_criminal_ suit, in which the jury would be bound to hold the same law\ninvalid. So that, if an unjust law were binding upon a jury in _civil_\nsuits, a defendant, by resisting the execution of the judgment, could,\n_in effect_, convert the civil action into a criminal one, in which the\njury would be paramount to the same legislation, to which, in the\n_civil_ suit, they were subordinate. In other words, in the _criminal_\nsuit, the jury would be obliged to justify the defendant in resisting a\nlaw, which, in the _civil_ suit, they had said he was bound to submit\nto.\n\nTo make this point plain to the most common mind--suppose a law be\nenacted that the property of A shall be given to B. B brings a civil\naction to obtain possession of it. If the jury, in this _civil_ suit,\nare bound to hold the law obligatory, they render a judgment in favor of\nB, that he be put in possession of the property; _thereby declaring that\nA is bound to submit to a law depriving him of his property_. But when\nthe execution of that judgment comes to be attempted--that is, when the\nsheriff comes to take the property for the purpose of delivering it to\nB--A acting, as he has a _natural_ right to do, in defence of his\nproperty, resists and kills the sheriff. He is thereupon indicted for\nmurder. On this trial his plea is, that in killing the sheriff, he was\nsimply exercising his _natural_ right of defending his property against\nan unjust law. The jury, not being bound, in a _criminal_ case, by the\nauthority of an unjust law, judge the act on its merits, and acquit the\ndefendant--thus declaring that he was _not_ bound to submit to the same\nlaw which the jury, in the _civil_ suit, had, by their judgment,\ndeclared that he _was_ bound to submit to. Here is a contradiction\nbetween the two judgments. In the _civil_ suit, the law is declared to\nbe obligatory upon A; in the _criminal_ suit, the same law is declared\nto be of no obligation.\n\nIt would be a solecism and absurdity in government to allow such\nconsequences as these. Besides, it would be practically impossible to\nmaintain government on such principles; for no government could enforce\nits _civil_ judgments, unless it could support them by _criminal_ ones,\nin case of resistance. A jury must therefore be paramount to legislation\nin both civil and criminal cases, or in neither. If they are paramount\nin neither, they are no protection to liberty. If they are paramount in\nboth, then all legislation goes only for what it may chance to be worth\nin the estimation of a jury.\n\nAnother reason why Magna Carta makes the discretion and consciences of\njuries paramount to all legislation in _civil_ suits, is, that if\nlegislation were binding upon a jury, the jurors--(by reason of their\nbeing unable to read, as jurors in those days were, and also by reason\nof many of the statutes being unwritten, or at least not so many copies\nwritten as that juries could be supplied with them)--would have been\nnecessitated--at least in those courts in which the king's justices\nsat--to take the word of those justices as to what the laws of the king\nreally were. In other words, they would have been necessitated _to take\nthe law from the court_, as jurors do now.\n\nNow there were two reasons why, as we may rationally suppose, the people\ndid not wish juries to take their law from the king's judges. One was,\nthat, at that day, the people probably had sense enough to see, (what\nwe, at this day, have not sense enough to see, although we have the\nevidence of it every day before our eyes,) that those judges, being\ndependent upon the legislative power, (the king,) being appointed by it,\npaid by it, and removable by it at pleasure, would be mere tools of that\npower, and would hold all its legislation obligatory, whether it were\njust or unjust. This was one reason, doubtless, why Magna Carta made\njuries, in civil suits, paramount to all instructions of the king's\njudges. The reason was precisely the same as that for making them\nparamount to all instructions of judges in criminal suits, viz., that\nthe people did not choose to subject their rights of property, and all\nother rights involved in civil suits, to the operation of such laws as\nthe king might please to enact. It was seen that to allow the king's\njudges to dictate the law to the jury would be equivalent to making the\nlegislation of the king imperative upon the jury.\n\nAnother reason why the people did not wish juries, in civil suits, to\ntake their law from the king's judges, doubtless was, that, knowing the\ndependence of the judges upon the king, and knowing that the king would,\nof course, tolerate no judges who were not subservient to his will, they\nnecessarily inferred that the king's judges would be as corrupt, in the\nadministration of justice, as was the king himself, or as he wished them\nto be. And how corrupt that was, may be inferred from the following\nhistorical facts.\n\nHume says:\n\n  \"It appears that the ancient kings of England put themselves entirely\n   upon the footing of the barbarous Eastern princes, whom no man must\n   approach without a present, who sell all their good offices, and who\n   intrude themselves into every business that they may have a pretence\n   for extorting money. Even justice was avowedly bought and sold; the\n   king's court itself, though the supreme judicature of the kingdom,\n   was open to none that brought not presents to the king; the bribes\n   given for expedition, delay, suspension, and doubtless for the\n   perversion of justice, were entered in the public registers of the\n   royal revenue, and remain as monuments of the perpetual iniquity and\n   tyranny of the times. The barons of the exchequer, for instance, the\n   first nobility of the kingdom, were not ashamed to insert, as an\n   article in their records, that the county of Norfolk paid a sum that\n   they might be fairly dealt with; the borough of Yarmouth, that the\n   king's charters, which they have for their liberties, might not be\n   violated; Richard, son of Gilbert, for the king's helping him to\n   recover his debt from the Jews; * * Serlo, son of Terlavaston, that\n   he might be permitted to make his defence, in case he were accused of\n   a certain homicide; Walter de Burton, for free law, if accused of\n   wounding another; Robert de Essart, for having an inquest to find\n   whether Roger, the butcher, and Wace and Humphrey, accused him of\n   robbery and theft out of envy and ill-will, or not; William Buhurst,\n   for having an inquest to find whether he were accused of the death of\n   one Godwin, out of ill-will, or for just cause. I have selected these\n   few instances from a great number of the like kind, which Madox had\n   selected from a still greater number, preserved in the ancient rolls\n   of the exchequer.\n\n   Sometimes a party litigant offered the king a certain portion, a\n   half, a third, a fourth, payable out of the debts which he, as the\n   executor of justice, should assist in recovering. Theophania de\n   Westland agreed to pay the half of two hundred and twelve marks, that\n   she might recover that sum against James de Fughleston; Solomon, the\n   Jew, engaged to pay one mark out of every seven that he should\n   recover against Hugh de la Hose; Nicholas Morrel promised to pay\n   sixty pounds, that the Earl of Flanders might be distrained to pay\n   him three hundred and forty-three pounds, which the earl had taken\n   from him; and these sixty pounds were to be paid out of the first\n   money that Nicholas should recover from the earl.\"--_Hume, Appendix\n   2._\n\n   \"In the reign of Henry II., the best and most just of these (the\n   Norman) princes, * * Peter, of Blois, a judicious and even elegant\n   writer, of that age, gives a pathetic description of the _venality of\n   justice_, and the oppressions of the poor, * * and he scruples not to\n   complain to the king himself of these abuses. We may judge what the\n   case would be under the government of worse princes.\"--_Hume,\n   Appendix 2._\n\nCarte says:\n\n   \"The crown exercised in those days an exorbitant and inconvenient\n   power, ordering the justices of the king's court, in suits about\n   lands, to turn out, put, and keep in possession, which of the\n   litigants they pleased; to send contradictory orders; and take large\n   sums of money from each; to respite proceedings; to direct sentences;\n   and the judges, acting by their commission, conceived themselves\n   bound to observe such orders, to the great delay, interruption, and\n   preventing of justice; at least, this was John's practice.\"--_Carte's\n   History of England_, vol. 1, p. 832.\n\nHallam says:\n\n   \"But of all the abuses that deformed the Anglo-Saxon government, none\n   was so flagitious as the sale of judicial redress. The king, we are\n   often told, is the fountain of justice; but in those ages it was one\n   which gold alone could unseal. Men fined (paid fines) to have right\n   done them; to sue in a certain court; to implead a certain person; to\n   have restitution of land which they had recovered at law. From the\n   sale of that justice which every citizen has a right to demand, it\n   was an easy transition to withhold or deny it. Fines were received\n   for the king's help against the adverse suitor; that is, for\n   perversion of justice, or for delay. Sometimes they were paid by\n   opposite parties, and, of course, for opposite ends.\"--_2 Middle\n   Ages_, 438.\n\nIn allusion to the provision of Magna Carta on this subject, Hallam\nsays:\n\n   \"A law which enacts that justice shall neither be sold, denied, nor\n   delayed, stamps with infamy that government under which it had become\n   necessary.\"--_2 Middle Ages_, 451.\n\nLingard, speaking of the times of Henry II., (say 1184,) says:\n\n   \"It was universally understood that money possessed greater influence\n   than justice in the royal courts, and instances are on record, in\n   which one party has made the king a present to accelerate, and the\n   other by a more valuable offer has succeeded in retarding a decision.\n   * * But besides the fines paid to the sovereigns, _the judges often\n   exacted presents for themselves_, and loud complaints existed against\n   their venality and injustice.\"--_2 Lingard_, 231.\n\nIn the narrative of \"The costs and charges which I, Richard de Anesty,\nbestowed in recovering the land of William, my uncle,\" (some fifty years\nbefore Magna Carta,) are the following items:\n\n   \"To Ralph, the king's physician, I gave thirty-six marks and one\n   half; to the king an hundred marks; and to the queen one mark of\n   gold.\" The result is thus stated. \"At last, thanks to our lord the\n   king, and by judgment of his court, my uncle's land was adjudged to\n   me.\"--_2 Palgrave's Rise and Progress of the English Commonwealth_,\n   p. 9 and 24.\n\nPalgrave also says:\n\n   \"The precious ore was cast into the scales of justice, even when held\n   by the most conscientious of our Anglo-Saxon kings. A single case\n   will exemplify the practices which prevailed. Alfric, the heir of\n   'Aylwin, the black,' seeks to set aside the death-bed bequest, by\n   which his kinsman bestowed four rich and fertile manors upon St.\n   Benedict. Alfric, the claimant, was supported by extensive and\n   powerful connexions; and Abbot Alfwine, the defendant, was well aware\n   that there would be _danger_ in the discussion of the dispute in\n   public, or before the Folkmoot, (people's meeting, or county court);\n   or, in other words, that the Thanes of the shire would do their best\n   to give a judgment in favor of their compeer. The plea being removed\n   into the Royal Court, the abbot acted with that prudence which so\n   often calls forth the praises of the monastic scribe. He gladly\n   emptied twenty marks of gold into the sleeve of the Confessor,\n   (Edward,) and five marks of gold presented to Edith, the Fair,\n   encouraged her to aid the bishop, and to exercise her gentle\n   influence in his favor. Alfric, with equal wisdom, withdrew from\n   prosecuting the hopeless cause, in which his opponent might possess\n   an advocate in the royal judge, and a friend in the king's consort.\n   Both parties, therefore, found it desirable to come to an\n   agreement.\"--_1 Palgrave's Rise and Progress, &c._, p. 650.\n\nBut Magna Carta has another provision for the trial of _civil_ suits,\nthat obviously had its origin in the corruption of the king's judges.\nThe provision is, that four knights, to be chosen in every county, by\nthe people of the county, shall sit with the king's judges, in the\nCommon Pleas, in jury trials, (assizes,) on the trial of three certain\nkinds of suits, that were among the most important that were tried at\nall. The reason for this provision undoubtedly was, that the corruption\nand subserviency of the king's judges were so well known, that the\npeople would not even trust them to sit alone in a jury trial of any\nconsiderable importance. The provision is this:\n\n   _Chap. 22_, (of John's Charter.) \"Common Pleas shall not follow our\n   court, but shall be holden in some certain place. Trials upon the\n   writ of _novel disseisin_, and of _Mort d'Ancester_, and of _Darrein\n   Presentment_, shall be taken but in their proper counties, and after\n   this manner: We, or, if we should be out of our realm, our chief\n   justiciary, shall send two justiciaries through every county four\n   times a year;[70] _who, with four knights chosen out of every shire,\n   by the people, shall hold the assizes_ (juries) _in the county, on\n   the day and at the place appointed_.\"\n\nIt would be very unreasonable to suppose that the king's judges were\nallowed to _dictate_ the law to the juries, when the people would not\neven suffer them to sit alone in jury trials, but themselves chose four\nmen to sit with them, to keep them honest.[71]\n\nThis practice of sending the king's judges into the counties to preside\nat jury trials, was introduced by the Norman kings. Under the Saxons it\nwas not so. _No officer of the king was allowed to preside at a jury\ntrial; but only magistrates chosen by the people._[72]\n\nBut the following chapter of John's charter, which immediately succeeds\nthe one just quoted, and refers to the same suits, affords very strong,\nnot to say conclusive, proof, that juries judged of the law in civil\nsuits--that is, _made the law_, so far as their deciding according to\ntheir own notions of justice could make the law.\n\n   _Chap. 23._ \"And if, on the county day, the aforesaid assizes cannot\n   be taken, _so many knights and freeholders shall remain, of those who\n   shall have been present on said day, as that the judgments may be\n   rendered by them_, whether the business be more or less.\"\n\nThe meaning of this chapter is, that so many of the _civil_ suits, as\ncould not be tried on the day when the king's justices were present,\nshould be tried afterwards, _by the four knights before mentioned, and\nthe freeholders, that is, the jury_. It must be admitted, of course,\nthat the juries, in these cases, judged the matters of law, as well as\nfact, unless it be presumed that the _knights_ dictated the law to the\njury--a thing of which there is no evidence at all.\n\nAs a final proof on this point, there is a statute enacted seventy years\nafter Magna Carta, which, although it is contrary to the common law, and\ntherefore void, is nevertheless good evidence, inasmuch as it contains\nan acknowledgment, on the part of the king himself, that juries had a\nright to judge of the whole matter, law and fact, in civil suits. The\nprovision is this:\n\n   \"It is ordained, that the justices assigned to take the assizes,\n   shall not compel the jurors to say precisely whether it be disseisin,\n   or not, so that they do show the truth of the deed, and seek aid of\n   the justices. But if they will, of their own accord, say that it is\n   disseisin, or not, their verdict shall be admitted at their own\n   peril.\"--_13 Edward I._, st. 1, ch. 3, sec. 2. (1285.)\n\nThe question of \"disseisin, or not,\" was a question of law, as well as\nfact. This statute, therefore, admits that the law, as well as the fact,\nwas in the hands of the jury. The statute is nevertheless void, because\nthe king had no authority to give jurors a dispensation from the\nobligation imposed upon them by their oaths and the \"law of the land,\"\nthat they should \"make known the truth according their (own)\nconsciences.\" This they were bound to do, and there was no power in the\nking to absolve them from the duty. And the attempt of the king thus to\nabsolve them, and authorize them to throw the case into the hands of the\njudges for decision, was simply an illegal and unconstitutional attempt\nto overturn the \"law of the land,\" which he was sworn to maintain, and\ngather power into his own hands, through his judges. He had just as much\nconstitutional power to enact that the jurors should not be compelled to\ndeclare the _facts_, but that they might leave _them_ to be determined\nby the king's judges, as he had to enact that they should not be\ncompelled to declare the _law_, but might leave _it_ to be decided by\nthe king's judges. It was as much the legal duty of the jury to decide\nthe law as to decide the fact; and no law of the king could affect their\nobligation to do either. And this statute is only one example of the\nnumberless contrivances and usurpations which have been resorted to, for\nthe purpose of destroying the original and genuine trial by jury.\n\n[Footnote 68: _Marches_, the limits, or boundaries, between England and\nWales.]\n\n[Footnote 69: That the kings would have had no scruples to enact laws\nfor the special purpose of plundering the people, by means of the\njudgments of juries, if they could have got juries to acknowledge the\nauthority of their laws, is evident from the audacity with which they\nplundered them, without any judgments of juries to authorize them.\n\nIt is not necessary to occupy space here to give details as to these\nrobberies; but only some evidence of the general fact.\n\n   Hallam says, that \"For the first three reigns (of the Norman kings) *\n   * the intolerable exactions of tribute, the rapine of purveyance, the\n   iniquity of royal courts, are continually in the mouths of the\n   historians. 'God sees the wretched people,' says the Saxon\n   Chronicler, 'most unjustly oppressed; first they are despoiled of\n   their possessions, and then butchered.' This was a grievous year\n   (1124). Whoever had any property, lost it by heavy taxes and unjust\n   decrees.\"--_2 Middle Ages_, 435-6.\n\n   \"In the succeeding reign of _John_, all the rapacious exactions usual\n   to these Norman kings were not only redoubled, but mingled with\n   outrages of tyranny still more intolerable. * *\n\n   \"In 1207 John took a seventh of the movables of lay and spiritual\n   persons, all murmuring, but none daring to speak against\n   it.\"--_Ditto_, 446.\n\nIn Hume's account of the extortions of those times, the following\nparagraph occurs:\n\n   \"But the most barefaced acts of tyranny and oppression were practised\n   against the Jews, who were entirely out of the protection of the law,\n   and were abandoned to the immeasurable rapacity of the king and his\n   ministers. Besides many other indignities, to which they were\n   continually exposed, it appears that they were once all thrown into\n   prison, and the sum of 66,000 marks exacted for their liberty. At\n   another time, Isaac, the Jew, paid alone 5100 marks; Brun, 3000\n   marks; Jurnet, 2000; Bennet, 500. At another, Licorica, widow of\n   David, the Jew of Oxford, was required to pay 6000 marks.\"--_Hume's\n   Hist. Eng., Appendix_ 2.\n\nFurther accounts of the extortions and oppressions of the kings may be\nfound in Hume's History, Appendix 2, and in Hallam's Middle Ages, vol.\n2, p. 435 to 446.\n\nBy Magna Carta John bound himself to make restitution for some of the\nspoliations he had committed upon individuals \"_without the legal\njudgment of their peers_.\"--_See Magna Carta of John_, ch. 60, 61, 65\nand 66.\n\nOne of the great charges, on account of which the nation rose against\nJohn, was, that he plundered individuals of their property, \"_without\nlegal judgment of their peers_.\" Now it was evidently very weak and\nshort-sighted in John to expose himself to such charges, _if his laws\nwere really obligatory upon the peers_; because, in that case, he could\nhave enacted any laws that were necessary for his purpose, and then, by\ncivil suits, have brought the cases before juries for their \"judgment,\"\nand thus have accomplished all his robberies in a perfectly legal\nmanner.\n\nThere would evidently have been no sense in these complaints, that he\ndeprived men of their property \"_without legal judgment of their\npeers_,\" if his laws had been binding upon the peers; because he could\nthen have made the same spoliations as well with the judgment of the\npeers as without it. Taking the judgment of the peers in the matter,\nwould have been only a ridiculous and useless formality, if they were to\nexercise no discretion or conscience of their own, independently of the\nlaws of the king.\n\nIt may here be mentioned, in passing, that the same would be true in\ncriminal matters, if the king's laws were obligatory upon juries.\n\nAs an illustration of what tyranny the kings would sometimes practise,\nHume says:\n\n   \"It appears from the Great Charter itself, that not only John, a\n   tyrannical prince, and Richard, a violent one, but their father\n   Henry, under whose reign the prevalence of gross abuses is the least\n   to be suspected, were accustomed, from their sole authority, without\n   process of law, to imprison, banish, and attaint the freemen of their\n   kingdom.\"--_Hume, Appendix_ 2.\n\nThe provision, also, in the 64th chapter of Magna Carta, that \"all\nunjust and illegal fines, and all amercements, _imposed unjustly, and\ncontrary to the Law of the Land, shall be entirely forgiven_,\" &c.; and\nthe provision, in chapter 61, that the king \"will cause full justice to\nbe administered\" in regard to \"all those things, of which any person\nhas, without legal judgment of his peers, been dispossessed or deprived,\neither by King Henry, our father, or our brother, King Richard,\"\nindicate the tyrannical practices that prevailed.\n\n   We are told also that John himself \"had dispossessed several great\n   men without any judgment of their peers, condemned others to cruel\n   deaths, * * insomuch that his tyrannical will stood instead of a\n   law.\"--_Echard's History of England_, 106.\n\nNow all these things were very unnecessary and foolish, if his laws were\nbinding upon juries; because, in that case, he could have procured the\nconviction of these men in a legal manner, and thus have saved the\nnecessity of such usurpation. In short, if the laws of the king had been\nbinding upon juries, there is no robbery, vengeance, or oppression,\nwhich he could not have accomplished through the judgments of juries.\nThis consideration is sufficient, of itself, to prove that the laws of\nthe king were of no authority over a jury, in either civil or criminal\ncases, unless the juries regarded the laws as just in themselves.]\n\n[Footnote 70: By the Magna Carta of Henry III. this is changed to once a\nyear.]\n\n[Footnote 71: From the provision of Magna Carta, cited in the text, it\nmust be inferred that there can be no legal trial by jury, in civil\ncases, if only the king's justices preside; that, to make the trial\nlegal, there must be other persons, chosen by the people, to sit with\nthem; the object being to prevent the jury's being deceived by the\njustices. I think we must also infer that the king's justices could sit\nonly in the three actions specially mentioned. We cannot go beyond the\nletter of Magna Carta, in making innovations upon the common law, which\nrequired all presiding officers in jury trials to be elected by the\npeople.]\n\n[Footnote 72: \"The earls, sheriffs, and head-boroughs were annually\nelected in the full folcmote, (people's meeting).\"--_Introduction to\nGilbert's History of the Common Pleas_, p. 2, _note_.\n\n\"It was the especial province of the earldomen or earl to attend the\nshyre-meeting, (the county court,) twice a year, and there officiate as\nthe county judge in expounding the secular laws, as appears by the fifth\nof Edgar's laws.\"--_Same_, p. 2, _note_.\n\n\"Every ward had its proper alderman, who was _chosen_, and not imposed\nby the prince.\"--_Same_, p. 4, _text_.\n\n\"As the aldermen, or earls, were always _chosen_\" (by the people) \"from\namong the greatest thanes, who in those times were generally more\naddicted to arms than to letters, they were but ill-qualified for the\nadministration of justice, and performing the civil duties of their\noffice.\"--_3 Henry's History of Great Britain_, 343.\n\n\"But none of these thanes were annually elected in the full folcmote,\n(people's meeting,) _as the earls, sheriffs, and head-boroughs were_;\nnor did King Alfred (as this author suggests) deprive the people of the\nelection of those last mentioned magistrates and nobles, much less did\nhe appoint them himself.\"--_Introd. to Gilbert's Hist. Com. Pleas_, p.\n2, _note_.\n\n\"The sheriff was usually not appointed by the lord, but elected by the\nfreeholders of the district.\"--_Political Dictionary_, word _Sheriff_.\n\n\"Among the most remarkable of the Saxon laws we may reckon * * the\nelection of their magistrates by the people, originally even that of\ntheir kings, till dear-bought experience evinced the convenience and\nnecessity of establishing an hereditary succession to the crown. But\nthat (the election) of all subordinate magistrates, their military\nofficers or heretochs, their sheriffs, their conservators of the peace,\ntheir coroners, their portreeves, (since changed into mayors and\nbailiffs,) and even their tithing-men and borsholders at the last,\ncontinued, some, till the Norman conquest, others for two centuries\nafter, and some remain to this day.\"--_4 Blackstone_, 413.\n\n\"The election of sheriffs was left to the people, _according to ancient\nusage_.\"--_St. West._ 1, c. 27.--_Crabbe's History of English Law_,\n181.]\n\n\n\n\nCHAPTER V.\n\nOBJECTIONS ANSWERED\n\n\nThe following objections will be made to the doctrines and the evidence\npresented in the preceding chapters.\n\n1. That it is a _maxim_ of the law, that the judges respond to the\nquestion of law, and juries only to the question of fact.\n\nThe answer to this objection is, that, since Magna Carta, judges have\nhad more than six centuries in which to invent and promulgate pretended\nmaxims to suit themselves; and this is one of them. Instead of\nexpressing the law, it expresses nothing but the ambitious and lawless\nwill of the judges themselves, and of those whose instruments they\nare.[73]\n\n2. It will be asked, Of what use are the justices, if the jurors judge\nboth of law and fact?\n\nThe answer is, that they are of use, 1. To assist and enlighten the\njurors, if they can, by their advice and information; such advice and\ninformation to be received only for what they may chance to be worth in\nthe estimation of the jurors. 2. To do anything that may be necessary in\nregard to granting appeals and new trials.\n\n3. It is said that it would be absurd that twelve ignorant men should\nhave power to judge of the law, while justices learned in the law should\nbe compelled to sit by and see the law decided erroneously.\n\nOne answer to this objection is, that the powers of juries are not\ngranted to them on the supposition that they know the law better than\nthe justices; but on the ground that the justices are untrustworthy,\nthat they are exposed to bribes, are themselves fond of power and\nauthority, and are also the dependent and subservient creatures of the\nlegislature; and that to allow them to dictate the law, would not only\nexpose the rights of parties to be sold for money, but would be\nequivalent to surrendering all the property, liberty, and rights of the\npeople, unreservedly into the hands of arbitrary power, (the\nlegislature,) to be disposed of at its pleasure. The powers of juries,\ntherefore, not only place a curb upon the powers of legislators and\njudges, but imply also an imputation upon their integrity and\ntrustworthiness; and _these_ are the reasons why legislators and judges\nhave formerly entertained the intensest hatred of juries, and, so fast\nas they could do it without alarming the people for their liberties,\nhave, by indirection, denied, undermined, and practically destroyed\ntheir power. And it is only since all the real power of juries has been\ndestroyed, and they have become mere tools in the hands of legislators\nand judges, that they have become favorites with them.\n\nLegislators and judges are necessarily exposed to all the temptations of\nmoney, fame, and power, to induce them to disregard justice between\nparties, and sell the rights, and violate the liberties of the people.\nJurors, on the other hand, are exposed to none of these temptations.\nThey are not liable to bribery, for they are unknown to the parties\nuntil they come into the jury-box. They can rarely gain either fame,\npower, or money, by giving erroneous decisions. Their offices are\ntemporary, and they know that when they shall have executed them, they\nmust return to the people, to hold all their own rights in life subject\nto the liability of such judgments, by their successors, as they\nthemselves have given an example for. The laws of human nature do not\npermit the supposition that twelve men, taken by lot from the mass of\nthe people, and acting under such circumstances, will _all_ prove\ndishonest. It is a supposable case that they may not be sufficiently\nenlightened to know and do their whole duty, in all cases whatsoever;\nbut that they should _all_ prove _dishonest_, is not within the range\nof probability. A jury, therefore, insures to us--what no other court\ndoes--that first and indispensable requisite in a judicial tribunal,\nintegrity.\n\n4. It is alleged that if juries are allowed to judge of the law, _they\ndecide the law absolutely; that their decision must necessarily stand,\nbe it right or wrong_; and that this power of absolute decision would be\ndangerous in their hands, by reason of their ignorance of the law.\n\nOne answer is, that this power, which juries have of _judging_ of the\nlaw, is not a power of _absolute decision in all cases_. For example, it\nis a power to declare imperatively that a man's property, liberty, or\nlife, shall _not_ be taken from him; but it is not a power to declare\nimperatively that they _shall_ be taken from him.\n\nMagna Carta does not provide that the judgments of the peers _shall be\nexecuted_; but only that _no other than their judgments_ shall ever be\nexecuted, _so far as to take a party's goods, rights, or person,\nthereon_.\n\nA judgment of the peers may be reviewed, and invalidated, and a new\ntrial granted. So that practically a jury has no absolute power to take\na party's goods, rights, or person. They have only an absolute veto upon\ntheir being taken by the government. The government is not bound to do\neverything that a jury may adjudge. It is only prohibited from doing\nanything--(that is, from taking a party's goods, rights, or\nperson)--unless a jury have first adjudged it to be done.\n\nBut it will, perhaps, be said, that if an erroneous judgment of one jury\nshould be reaffirmed by another, on a new trial, it must _then_ be\nexecuted. But Magna Carta does not command even this--although it might,\nperhaps, have been reasonably safe for it to have done so--for if two\njuries unanimously affirm the same thing, after all the light and aid\nthat judges and lawyers can afford them, that fact probably furnishes as\nstrong a presumption in favor of the correctness of their opinion, as\ncan ordinarily be obtained in favor of a judgment, by any measures of a\npractical character for the administration of justice. Still, there is\nnothing in Magna Carta that _compels_ the execution of even a second\njudgment of a jury. The only injunction of Magna Carta upon the\ngovernment, as to what it _shall do_, on this point, is that it shall\n\"do justice and right,\" without sale, denial, or delay. But this leaves\nthe government all power of determining what is justice and right,\nexcept that it shall not consider anything as justice and right--so far\nas to carry it into execution against the goods, rights, or person of a\nparty--unless it be something which a jury have sanctioned.\n\nIf the government had no alternative but to execute all judgments of a\njury indiscriminately, the power of juries would unquestionably be\ndangerous; for there is no doubt that they may sometimes give hasty and\nerroneous judgments. But when it is considered that their judgments can\nbe reviewed, and new trials granted, this danger is, for all practical\npurposes, obviated.\n\nIf it be said that juries may _successively_ give erroneous judgments,\nand that new trials cannot be granted indefinitely, the answer is, that\nso far as Magna Carta is concerned, there is nothing to prevent the\ngranting of new trials indefinitely, if the judgments of juries are\ncontrary to \"justice and right.\" So that Magna Carta does not _require_\nany judgment whatever to be executed--so far as to take a party's goods,\nrights, or person, thereon--unless it be concurred in by both court and\njury.\n\nNevertheless, we may, for the sake of the argument, suppose the\nexistence of a _practical_, if not _legal_, necessity, for executing\n_some_ judgment or other, in cases where juries persist in disagreeing\nwith the courts. In such cases, the principle of Magna Carta\nunquestionably is, that the uniform judgments of _successive_ juries\nshall prevail over the opinion of the court. And the reason of this\nprinciple is obvious, viz., that it is the will of the country, and not\nthe will of the court, or the government, that must determine what laws\nshall be established and enforced; that the concurrent judgments of\nsuccessive juries, given in opposition to all the reasoning which judges\nand lawyers can offer to the contrary, must necessarily be presumed to\nbe a truer exposition of the will of the country, than are the opinions\nof the judges.\n\nBut it may be said that, unless jurors submit to the control of the\ncourt, in matters of law, they may disagree among themselves, and\n_never_ come to any judgment; and thus justice fail to be done.\n\nSuch a case is perhaps possible; but, if possible, it can occur but\nrarely; because, although one jury may disagree, a succession of juries\nare not likely to disagree--that is, _on matters of natural law, or\nabstract justice_.[74] If such a thing should occur, it would almost\ncertainly be owing to the attempt of the court to mislead them. It is\nhardly possible that any other cause should be adequate to produce such\nan effect; because justice comes very near to being a self-evident\nprinciple. The mind perceives it almost intuitively. If, in addition to\nthis, the court be uniformly on the side of justice, it is not a\nreasonable supposition that a succession of juries should disagree about\nit. If, therefore, a succession of juries do disagree on the law of any\ncase, the presumption is, not that justice fails of being done, but that\ninjustice is prevented--_that_ injustice, which would be done, if the\nopinion of the court were suffered to control the jury.\n\nFor the sake of the argument, however, it may be admitted to be possible\nthat justice should sometimes fail of being done through the\ndisagreements of jurors, notwithstanding all the light which judges and\nlawyers can throw upon the question in issue. If it be asked what\nprovision the trial by jury makes for such cases, the answer is, _it\nmakes none; and justice must fail of being done, from the want of its\nbeing made sufficiently intelligible_.\n\nUnder the trial by jury, justice can never be done--that is, by a\njudgment that shall take a party's goods, rights, or person--until that\njustice can be made intelligible or perceptible to the minds of _all_\nthe jurors; or, at least, until it obtain the voluntary assent of\nall--an assent, which ought not to be given until the justice itself\nshall have become perceptible to all.\n\nThe principles of the trial by jury, then, are these:\n\n1. That, in criminal cases, the accused is presumed innocent.\n\n2. That, in civil cases, possession is presumptive proof of property;\nor, in other words, every man is presumed to be the rightful proprietor\nof whatever he has in his possession.\n\n3. That these presumptions shall be overcome, in a court of justice,\nonly by evidence, the sufficiency of which, and by law, the justice of\nwhich, are satisfactory to the understanding and consciences of _all_\nthe jurors.\n\nThese are the bases on which the trial by jury places the property,\nliberty, and rights of every individual.\n\nBut some one will say, if these are the principles of the trial by jury,\nthen it is plain that justice must often fail to be done. Admitting, for\nthe sake of the argument, that this may be true, the compensation for it\nis, that positive _injustice_ will also often fail to be done; whereas\notherwise it would be done frequently. The very precautions used to\nprevent _injustice_ being done, may often have the effect to prevent\n_justice_ being done. But are we, therefore, to take no precautions\nagainst injustice? By no means, all will agree. The question then\narises--Does the trial by jury, _as here explained_, involve such\nextreme and unnecessary precautions against injustice, as to interpose\nunnecessary obstacles to the doing of justice? Men of different minds\nmay very likely answer this question differently, according as they have\nmore or less confidence in the wisdom and justice of legislators, the\nintegrity and independence of judges, and the intelligence of jurors.\nThis much, however, may be said in favor of these precautions, viz.,\nthat the history of the past, as well as our constant present\nexperience, prove how much injustice may, and certainly will, be done,\nsystematically and continually, _for the want of these precautions_--that\nis, while the law is authoritatively made and expounded by legislators and\njudges. On the other hand, we have no such evidence of how much justice\nmay fail to be done, _by reason of these precautions_--that is, by reason\nof the law being left to the judgments and consciences of jurors. We can\ndetermine the former point--that is, how much positive injustice is done\nunder the first of these two systems--because the system is in full\noperation; but we cannot determine how much justice would fail to be\ndone under the latter system, because we have, in modern times, had no\nexperience of the use of the precautions themselves. In ancient times,\nwhen these precautions were _nominally_ in force, such was the tyranny of\nkings, and such the poverty, ignorance, and the inability of concert and\nresistance, on the part of the people, that the system had no full or fair\noperation. It, nevertheless, under all these disadvantages, impressed\nitself upon the understandings, and imbedded itself in the hearts, of the\npeople, so as no other system of civil liberty has ever done.\n\nBut this view of the two systems compares only the injustice done, and\nthe justice omitted to be done, in the individual cases adjudged,\nwithout looking beyond them. And some persons might, on first thought,\nargue that, if justice failed of being done under the one system,\noftener than positive injustice were done under the other, the balance\nwas in favor of the latter system. But such a weighing of the two\nsystems against each other gives no true idea of their comparative\nmerits or demerits; for, possibly, in this view alone, the balance would\nnot be very great in favor of either. To compare, or rather to contrast,\nthe two, we must consider that, under the jury system, the failures to\ndo justice would be only rare and exceptional cases; and would be owing\neither to the intrinsic difficulty of the questions, or to the fact that\nthe parties had transacted their business in a manner unintelligible to\nthe jury, and the effects would be confined to the individual or\nindividuals interested in the particular suits. No permanent law would\nbe established thereby destructive of the rights of the people in other\nlike cases. And the people at large would continue to enjoy all their\nnatural rights as before. But under the other system, whenever an unjust\nlaw is enacted by the legislature, and the judge imposes it upon the\njury as authoritative, and they give a judgment in accordance therewith,\nthe authority of the law is thereby established, and the whole people\nare thus brought under the yoke of that law; because they then\nunderstand that the law will be enforced against them in future, if they\npresume to exercise their rights, or refuse to comply with the\nexactions of the law. In this manner all unjust laws are established,\nand made operative against the rights of the people.\n\nThe difference, then, between the two systems is this: Under the one\nsystem, a jury, at distant intervals, would (not enforce any positive\ninjustice, but only) fail of enforcing justice, in a dark and difficult\ncase, or in consequence of the parties not having transacted their\nbusiness in a manner intelligible to a jury; and the plaintiff would\nthus fail of obtaining what was rightfully due him. And there the matter\nwould end, _for evil_, though not for good; for thenceforth parties,\nwarned of the danger of losing their rights, would be careful to\ntransact their business in a more clear and intelligible manner. Under\nthe other system--the system of legislative and judicial\nauthority--positive injustice is not only done in every suit arising\nunder unjust laws,--that is, men's property, liberty, or lives are not\nonly unjustly taken on those particular judgments,--but the rights of\nthe whole people are struck down by the authority of the laws thus\nenforced, and a wide-sweeping tyranny at once put in operation.\n\nBut there is another ample and conclusive answer to the argument that\njustice would often fail to be done, if jurors were allowed to be\ngoverned by their own consciences, instead of the direction of the\njustices, in matters of law. That answer is this:\n\nLegitimate government can be formed only by the voluntary association of\nall who contribute to its support. As a voluntary association, it can\nhave for its objects only those things in which the members of the\nassociation are _all agreed_. If, therefore, there be any _justice_, in\nregard to which all the parties to the government _are not agreed_, the\nobjects of the association do not extend to it.[75]\n\nIf any of the members wish more than this,--if they claim to have\nacquired a more extended knowledge of justice than is common to all, and\nwish to have their pretended discoveries carried into effect, in\nreference to themselves,--they must either form a separate association\nfor that purpose, or be content to wait until they can make their views\nintelligible to the people at large. They cannot claim or expect that\nthe whole people shall practise the folly of taking on trust their\npretended superior knowledge, and of committing blindly into their hands\nall their own interests, liberties, and rights, to be disposed of on\nprinciples, the justness of which the people themselves cannot\ncomprehend.\n\nA government of the whole, therefore, must necessarily confine itself to\nthe administration of such principles of law as _all_ the people, who\ncontribute to the support of the government, can comprehend and see the\njustice of. And it can be confined within those limits only by allowing\nthe jurors, who represent all the parties to the compact, to judge of\nthe law, and the justice of the law, in all cases whatsoever. And if any\njustice be left undone, under these circumstances, it is a justice for\nwhich the nature of the association does not provide, which the\nassociation does not undertake to do, and which, as an association, it\nis under no obligation to do.\n\nThe people at large, the unlearned and common people, have certainly an\nindisputable right to associate for the establishment and maintenance of\nsuch a government as _they themselves_ see the justice of, and feel the\nneed of, for the promotion of their own interests, and the safety of\ntheir own rights, without at the same time surrendering all their\nproperty, liberty, and rights into the hands of men, who, under the\npretence of a superior and incomprehensible knowledge of justice, may\ndispose of such property, liberties, and rights, in a manner to suit\ntheir own selfish and dishonest purposes.\n\nIf a government were to be established and supported _solely_ by that\nportion of the people who lay claim to superior knowledge, there would\nbe some consistency in their saying that the common people should not be\nreceived as jurors, with power to judge of the justice of the laws. But\nso long as the whole people (or all the male adults) are presumed to be\nvoluntary parties to the government, and voluntary contributors to its\nsupport, there is no consistency in refusing to any one of them more\nthan to another the right to sit as juror, with full power to decide for\nhimself whether any law that is proposed to be enforced in any\nparticular case, be within the objects of the association.\n\nThe conclusion, therefore, is, that, in a government formed by voluntary\nassociation, or on the _theory_ of voluntary association, and voluntary\nsupport, (as all the North American governments are,) no law can\nrightfully be enforced by the association in its corporate capacity,\nagainst the goods, rights, or person of any individual, except it be\nsuch as _all_ the members of the association agree that it may enforce.\nTo enforce any other law, to the extent of taking a man's goods, rights,\nor person, would be making _some_ of the parties to the association\naccomplices in what they regard as acts of injustice. It would also be\nmaking them consent to what they regard as the destruction of their own\nrights. These are things which no legitimate system or theory of\ngovernment can require of any of the parties to it.\n\nThe mode adopted, by the trial by jury, for ascertaining whether all the\nparties to the government do approve of a particular law, is to take\ntwelve men at random from the whole people, and accept their unanimous\ndecision as representing the opinions of the whole. Even this mode is\nnot theoretically accurate; for theoretical accuracy would require that\nevery man, who was a party to the government, should individually give\nhis consent to the enforcement of every law in every separate case. But\nsuch a thing would be impossible in practice. The consent of twelve men\nis therefore taken instead; with the privilege of appeal, and (in case\nof error found by the appeal court) a new trial, to guard against\npossible mistakes. This system, it is assumed, will ascertain the sense\nof the whole people--\"the country\"--with sufficient accuracy for all\npractical purposes, and with as much accuracy as is practicable without\ntoo great inconvenience and expense.\n\n5. Another objection that will perhaps be made to allowing jurors to\njudge of the law, and the justice of the law, is, that the law would be\nuncertain.\n\nIf, by this objection, it be meant that the law would be uncertain to\nthe minds of the people at large, so that they would not know what the\njuries would sanction and what condemn, and would not therefore know\npractically what their own rights and liberties were under the law, the\nobjection is thoroughly baseless and false. No system of law that was\never devised could be so entirely intelligible and certain to the minds\nof the people at large as this. Compared with it, the complicated\nsystems of law that are compounded of the law of nature, of\nconstitutional grants, of innumerable and incessantly changing\nlegislative enactments, and of countless and contradictory judicial\ndecisions, with no uniform principle of reason or justice running\nthrough them, are among the blindest of all the mazes in which\nunsophisticated minds were ever bewildered and lost. The uncertainty of\nthe law under these systems has become a proverb. So great is this\nuncertainty, that nearly all men, learned as well as unlearned, shun the\nlaw as their enemy, instead of resorting to it for protection. They\nusually go into courts of justice, so called, only as men go into\nbattle--when there is no alternative left for them. And even then they\ngo into them as men go into dark labyrinths and caverns--with no\nknowledge of their own, but trusting wholly to their guides. Yet, less\nfortunate than other adventurers, they can have little confidence even\nin their guides, for the reason that the guides themselves know little\nof the mazes they are threading. They know the mode and place of\nentrance; but what they will meet with on their way, and what will be\nthe time, mode, place, or condition of their exit; whether they will\nemerge into a prison, or not; whether _wholly_ naked and destitute, or\nnot; whether with their reputations left to them, or not; and whether in\ntime or eternity; experienced and honest guides rarely venture to\npredict. Was there ever such fatuity as that of a nation of men madly\nbent on building up such labyrinths as these, for no other purpose than\nthat of exposing all their rights of reputation, property, liberty, and\nlife, to the hazards of being lost in them, instead of being content to\nlive in the light of the open day of their own understandings?\n\nWhat honest, unsophisticated man ever found himself involved in a\nlawsuit, that he did not desire, of all things, that his cause might be\njudged of on principles of natural justice, as those principles were\nunderstood by plain men like himself? He would then feel that he could\nforesee the result. These plain men are the men who pay the taxes, and\nsupport the government. Why should they not have such an administration\nof justice as they desire, and can understand?\n\nIf the jurors were to judge of the law, and the justice of the law,\nthere would be something like certainty in the administration of\njustice, and in the popular knowledge of the law, and men would govern\nthemselves accordingly. There would be something like certainty, because\nevery man has himself something like definite and clear opinions, and\nalso knows something of the opinions of his neighbors, on matters of\njustice. And he would know that no statute, unless it were so clearly\njust as to command the unanimous assent of twelve men, who should be\ntaken at random from the whole community, could be enforced so as to\ntake from him his reputation, property, liberty, or life. What greater\ncertainty can men require or need, as to the laws under which they are\nto live? If a statute were enacted by a legislature, a man, in order to\nknow what was its true interpretation, whether it were constitutional,\nand whether it would be enforced, would not be under the necessity of\nwaiting for years until some suit had arisen and been carried through\nall the stages of judicial proceeding, to a final decision. He would\nneed only to use his own reason as to its meaning and its justice, and\nthen talk with his neighbors on the same points. Unless he found them\nnearly unanimous in their interpretation and approbation of it, he would\nconclude that juries would not unite in enforcing it, and that it would\nconsequently be a dead letter. And he would be safe in coming to this\nconclusion.\n\nThere would be something like certainty in the administration of\njustice, and in the popular knowledge of the law, for the further reason\nthat there would be little legislation, and men's rights would be left\nto stand almost solely upon the law of nature, or what was once called\nin England \"the _common law_,\" (before so much legislation and\nusurpation had become incorporated into the common law,)--in other\nwords, upon the principles of natural justice.\n\nOf the certainty of this law of nature, or the ancient English common\nlaw, I may be excused for repeating here what I have said on another\noccasion.\n\n   \"Natural law, so far from being uncertain, when compared with\n   statutory and constitutional law, is the only thing that gives any\n   certainty at all to a very large portion of our statutory and\n   constitutional law. The reason is this. The words in which statutes\n   and constitutions are written are susceptible of so many different\n   meanings,--meanings widely different from, often directly opposite\n   to, each other, in their bearing upon men's rights,--that, unless\n   there were some rule of interpretation for determining which of these\n   various and opposite meanings are the true ones, there could be no\n   certainty at all as to the meaning of the statutes and constitutions\n   themselves. Judges could make almost anything they should please out\n   of them. Hence the necessity of a rule of interpretation. _And this\n   rule is, that the language of statutes and constitutions shall be\n   construed, as nearly as possible, consistently with natural law._\n\n   The rule assumes, what is true, that natural law is a thing certain\n   in itself; also that it is capable of being learned. It assumes,\n   furthermore, that it actually is understood by the legislators and\n   judges who make and interpret the written law. Of necessity,\n   therefore, it assumes further, that they (the legislators and judges)\n   are _incompetent_ to make and interpret the _written_ law, unless\n   they previously understand the natural law applicable to the same\n   subject. It also assumes that the _people_ must understand the\n   natural law, before they can understand the written law.\n\n   It is a principle perfectly familiar to lawyers, and one that must be\n   perfectly obvious to every other man that will reflect a moment,\n   that, as a general rule, _no one can know what the written law is,\n   until he knows what it ought to be_; that men are liable to be\n   constantly misled by the various and conflicting senses of the same\n   words, unless they perceive the true legal sense in which the words\n   _ought to be taken_. And this true legal sense is the sense that is\n   most nearly consistent with natural law of any that the words can be\n   made to bear, consistently with the laws of language, and\n   appropriately to the subjects to which they are applied.\n\n   Though the words _contain_ the law, the _words_ themselves are not\n   the law. Were the words themselves the law, each single written law\n   would be liable to embrace many different laws, to wit, as many\n   different laws as there were different senses, and different\n   combinations of senses, in which each and all the words were capable\n   of being taken.\n\n   Take, for example, the Constitution of the United States. By adopting\n   one or another sense of the single word \"_free_,\" the whole\n   instrument is changed. Yet the word _free_ is capable of some ten or\n   twenty different senses. So that, by changing the sense of that\n   single word, some ten or twenty different constitutions could be made\n   out of the same written instrument. But there are, we will suppose, a\n   thousand other words in the constitution, each of which is capable of\n   from two to ten different senses. So that, by changing the sense of\n   only a single word at a time, several thousands of different\n   constitutions would be made. But this is not all. Variations could\n   also be made by changing the senses of two or more words at a time,\n   and these variations could be run through all the changes and\n   combinations of senses that these thousand words are capable of. We\n   see, then, that it is no more than a literal truth, that out of that\n   single instrument, as it now stands, without altering the location of\n   a single word, might be formed, by construction and interpretation,\n   more different constitutions than figures can well estimate.\n\n   But each written law, in order to be a law, must be taken only in\n   some _one_ definite and distinct sense; and that definite and\n   distinct sense must be selected from the almost infinite variety of\n   senses which its words are capable of. How is this selection to be\n   made? It can be only by the aid of that perception of natural law, or\n   natural justice, which men naturally possess.\n\n   Such, then, is the comparative certainty of the natural and the\n   written law. Nearly all the certainty there is in the latter, so far\n   as it relates to principles, is based upon, and derived from, the\n   still greater certainty of the former. In fact, nearly all the\n   uncertainty of the laws under which we live,--which are a mixture of\n   natural and written laws,--arises from the difficulty of construing,\n   or, rather, from the facility of misconstruing, the _written_ law;\n   while natural law has nearly or quite the same certainty as\n   mathematics. On this point, Sir William Jones, one of the most\n   learned judges that have ever lived, learned in Asiatic as well as\n   European law, says,--and the fact should be kept forever in mind, as\n   one of the most important of all truths:--\"_It is pleasing to remark\n   the similarity, or, rather, the identity of those conclusions which\n   pure, unbiassed reason, in all ages and nations, seldom fails to\n   draw, in such juridical inquiries as are not fettered and manacled by\n   positive institutions._\"[76] In short, the simple fact that the\n   written law must be interpreted by the natural, is, of itself, a\n   sufficient confession of the superior certainty of the latter.\n\n   The written law, then, even where it can be construed consistently\n   with the natural, introduces labor and obscurity, instead of shutting\n   them out. And this must always be the case, because words do not\n   create ideas, but only recall them; and the same word may recall many\n   different ideas. For this reason, nearly all abstract principles can\n   be seen by the single mind more clearly than they can be expressed by\n   words to another. This is owing to the imperfection of language, and\n   the different senses, meanings, and shades of meaning, which\n   different individuals attach to the same words, in the same\n   circumstances.[77]\n\n   Where the written law cannot be construed consistently with the\n   natural, there is no reason why it should ever be enacted at all. It\n   may, indeed, be sufficiently plain and certain to be easily\n   understood; but its certainty and plainness are but a poor\n   compensation for its injustice. Doubtless a law forbidding men to\n   drink water, on pain of death, might be made so intelligible as to\n   cut off all discussion as to its meaning; but would the\n   intelligibleness of such a law be any equivalent for the right to\n   drink water? The principle is the same in regard to all unjust laws.\n   Few persons could reasonably feel compensated for the arbitrary\n   destruction of their rights, by having the order for their\n   destruction made known beforehand, in terms so distinct and\n   unequivocal as to admit of neither mistake nor evasion. Yet this is\n   all the compensation that such laws offer.\n\n   Whether, therefore, written laws correspond with, or differ from, the\n   natural, they are to be condemned. In the first case, they are\n   useless repetitions, introducing labor and obscurity. In the latter\n   case, they are positive violations of men's rights.\n\n   There would be substantially the same reason in enacting mathematics\n   by statute, that there is in enacting natural law. Whenever the\n   natural law is sufficiently certain to all men's minds to justify its\n   being enacted, it is sufficiently certain to need no enactment. On\n   the other hand, until it be thus certain, there is danger of doing\n   injustice by enacting it; it should, therefore, be left open to be\n   discussed by anybody who may be disposed to question it, and to be\n   judged of by the proper tribunal, the judiciary.[78]\n\n   It is not necessary that legislators should enact natural law in\n   order that it may be known to the _people_, because that would be\n   presuming that the legislators already understand it better than the\n   people,--a fact of which I am not aware that they have ever\n   heretofore given any very satisfactory evidence. The same sources of\n   knowledge on the subject are open to the people that are open to the\n   legislators, and the people must be presumed to know it as well as\n   they.\n\n   The objections made to natural law, on the ground of obscurity, are\n   wholly unfounded. It is true, it must be learned, like any other\n   science; but it is equally true that it is very easily learned.\n   Although as illimitable in its applications as the infinite relations\n   of men to each other, it is, nevertheless, made up of simple\n   elementary principles, of the truth and justice of which every\n   ordinary mind has an almost intuitive perception. _It is the science\n   of justice_,--and almost all men have the same perceptions of what\n   constitutes justice, or of what justice requires, when they\n   understand alike the facts from which their inferences are to be\n   drawn. Men living in contact with each other, and having intercourse\n   together, _cannot avoid_ learning natural law, to a very great\n   extent, even if they would. The dealings of men with men, their\n   separate possessions, and their individual wants, are continually\n   forcing upon their minds the questions,--Is this act just? or is it\n   unjust? Is this thing mine? or is it his? And these are questions of\n   natural law; questions, which, in regard to the great mass of cases,\n   are answered alike by the human mind everywhere.\n\n   Children learn many principles of natural law at a very early age.\n   For example: they learn that when one child has picked up an apple or\n   a flower, it is his, and that his associates must not take it from\n   him against his will. They also learn that if he voluntarily exchange\n   his apple or flower with a playmate, for some other article of\n   desire, he has thereby surrendered his right to it, and must not\n   reclaim it. These are fundamental principles of natural law, which\n   govern most of the greatest interests of individuals and society; yet\n   children learn them earlier than they learn that three and three are\n   six, or five and five, ten. Talk of enacting natural law by statute,\n   that it may be known! It would hardly be extravagant to say, that, in\n   nine cases in ten, men learn it before they have learned the language\n   by which we describe it. Nevertheless, numerous treatises are written\n   on it, as on other sciences. The decisions of courts, containing\n   their opinions upon the almost endless variety of cases that have\n   come before them, are reported; and these reports are condensed,\n   codified, and digested, so as to give, in a small compass, the facts,\n   and the opinions of the courts as to the law resulting from them. And\n   these treatises, codes, and digests are open to be read of all men.\n   And a man has the same excuse for being ignorant of arithmetic, or\n   any other science, that he has for being ignorant of natural law. He\n   can learn it as well, if he will, without its being enacted, as he\n   could if it were.\n\n   If our governments would but themselves adhere to natural law, there\n   would be little occasion to complain of the ignorance of the people\n   in regard to it. The popular ignorance of law is attributable mainly\n   to the innovations that have been made upon natural law by\n   legislation; whereby our system has become an incongruous mixture of\n   natural and statute law, with no uniform principle pervading it. To\n   learn such a system,--if system it can be called, and if learned it\n   can be,--is a matter of very similar difficulty to what it would be\n   to learn a system of mathematics, which should consist of the\n   mathematics of nature, interspersed with such other mathematics as\n   might be created by legislation, in violation of all the natural\n   principles of numbers and quantities.\n\n   But whether the difficulties of learning natural law be greater or\n   less than here represented, they exist in the nature of things, and\n   cannot be removed. Legislation, instead of removing, only increases\n   them. This it does by innovating upon natural truths and principles,\n   and introducing jargon and contradiction, in the place of order,\n   analogy, consistency, and uniformity.\n\n   Further than this; legislation does not even profess to remove the\n   obscurity of natural law. That is no part of its object. It only\n   professes to substitute something arbitrary in the place of natural\n   law. Legislators generally have the sense to see that legislation\n   will not make natural law any clearer than it is. Neither is it the\n   object of legislation to establish the authority of natural law.\n   Legislators have the sense to see that they can add nothing to the\n   authority of natural law, and that it will stand on its own\n   authority, unless they overturn it.\n\n   The whole object of legislation, excepting that legislation which\n   merely makes regulations, and provides instrumentalities for carrying\n   other laws into effect, is to overturn natural law, and substitute\n   for it the arbitrary will of power. In other words, the whole object\n   of it is to destroy men's rights. At least, such is its only effect;\n   and its designs must be inferred from its effect. Taking all the\n   statutes in the country, there probably is not one in a\n   hundred,--except the auxiliary ones just mentioned,--that does not\n   violate natural law; that does not invade some right or other.\n\n   Yet the advocates of arbitrary legislation are continually practising\n   the fraud of pretending that unless the legislature _make_ the laws,\n   the laws will not be known. The whole object of the fraud is to\n   secure to the government the authority of making laws that never\n   ought to be known.\"\n\nIn addition to the authority already cited, of Sir William Jones, as to\nthe certainty of natural law, and the uniformity of men's opinions in\nregard to it, I may add the following:\n\n   \"There is that great simplicity and plainness in the Common Law, that\n   Lord Coke has gone so far as to assert, (and Lord Bacon nearly\n   seconds him in observing,) that 'he never knew two questions arise\n   merely upon common law; but that they were mostly owing to statutes\n   ill-penned and overladen with provisos.'\"--_3 Eunomus_, 157-8.\n\nIf it still be said that juries would disagree, as to what was natural\njustice, and that one jury would decide one way, and another jury\nanother; the answer is, that such a thing is hardly credible, as that\ntwelve men, taken at random from the people at large, should\n_unanimously_ decide a question of natural justice one way, and that\ntwelve other men, selected in the same manner, should _unanimously_\ndecide the same question the other way, _unless they were misled by the\njustices_. If, however, such things should sometimes happen, from any\ncause whatever, the remedy is by appeal, and new trial.\n\n[Footnote 73: Judges do not even live up to that part of their own\nmaxim, which requires jurors to try the matter of fact. By dictating to\nthem the laws of evidence,--that is, by dictating what evidence they may\nhear, and what they may not hear, and also by dictating to them rules\nfor weighing such evidence as they permit them to hear,--they of\nnecessity dictate the conclusion to which they shall arrive. And thus\nthe court really tries the question of fact, as well as the question of\nlaw, in every cause. It is clearly impossible, in the nature of things,\nfor a jury to try a question of fact, without trying every question of\nlaw on which the fact depends.]\n\n[Footnote 74: Most disagreements of juries are on matters of fact, which\nare admitted to be within their province. We have little or no evidence\nof their disagreements on matters of natural justice. The disagreements\nof _courts_ on matters of law, afford little or no evidence that juries\nwould also disagree on matters of law--that is, _of justice_; because\nthe disagreements of courts are generally on matters of _legislation_,\nand not on those principles of abstract justice, by which juries would\nbe governed, and in regard to which the minds of men are nearly\nunanimous.]\n\n[Footnote 75: This is the principle of all voluntary associations\nwhatsoever. No voluntary association was ever formed, and in the nature\nof things there never can be one formed, for the accomplishment of any\nobjects except those in which all the parties to the association are\nagreed. Government, therefore, must be kept within these limits, or it\nis no longer a voluntary association of all who contribute to its\nsupport, but a mere tyranny established by a part over the rest.\n\nAll, or nearly all, voluntary associations give to a majority, or to\nsome other portion of the members less than the whole, the right to use\nsome _limited_ discretion as to the means to be used to accomplish the\nends in view; but _the ends themselves to be accomplished_ are always\nprecisely defined, and are such as every member necessarily agrees to,\nelse he would not voluntarily join the association.\n\nJustice is the object of government, and those who support the\ngovernment, must be agreed as to the justice to be executed by it, or\nthey cannot rightfully unite in maintaining the government itself.]\n\n[Footnote 76: Jones on Bailments, 133.]\n\n[Footnote 77: Kent, describing the difficulty of construing the written\nlaw, says:\n\n\"Such is the imperfection of language, and the want of technical skill\nin the makers of the law, that statutes often give occasion to the most\nperplexing and distressing doubts and discussions, arising from the\nambiguity that attends them. It requires great experience, as well as\nthe command of a perspicuous diction, to frame a law in such clear and\nprecise terms, as to secure it from ambiguous expressions, and from all\ndoubts and criticisms upon its meaning.\"--_Kent_, 460.\n\nThe following extract from a speech of Lord Brougham, in the House of\nLords, confesses the same difficulty:\n\n\"There was another subject, well worthy of the consideration of\ngovernment during the recess,--the expediency, _or rather the absolute\nnecessity_, of some arrangement for the preparation of bills, not merely\nprivate, but public bills, _in order that legislation might be\nconsistent and systematic, and that the courts might not have so large a\nportion of their time occupied in endeavoring to construe acts of\nParliament, in many cases unconstruable, and in most cases difficult to\nbe construed_.\"--_Law Reporter_, 1848, p. 525.]\n\n[Footnote 78: This condemnation of written laws must, of course, be\nunderstood as applying only to cases where principles and rights are\ninvolved, and not as condemning any governmental arrangements, or\ninstrumentalities, that are consistent with natural right, and which\nmust be agreed upon for the purpose of carrying natural law into effect.\nThese things may be varied, as expediency may dictate, so only that they\nbe allowed to infringe no principle of justice. And they must, of\ncourse, be written, because they do not exist as fixed principles, or\nlaws in nature.]\n\n\n\n\nCHAPTER VI.\n\nJURIES OF THE PRESENT DAY ILLEGAL.\n\n\nIt may probably be safely asserted that there are, at this day, no legal\njuries, either in England or America. And if there are no legal juries,\nthere is, of course, no legal trial, nor \"judgment,\" by jury.\n\nIn saying that there are probably no legal juries, I mean that there are\nprobably no juries appointed in conformity with the principles of the\n_common law_.\n\nThe term _jury_ is a technical one, derived from the common law; and\nwhen the American constitutions provide for the trial by jury, they\nprovide for the _common law_ trial by jury; and not merely for any trial\nby jury that the government itself may chance to invent, and call by\nthat name. It is the _thing_, and not merely the _name_, that is\nguarantied. Any legislation, therefore, that infringes any _essential\nprinciple_ of the _common law_, in the selection of jurors, is\nunconstitutional; and the juries selected in accordance with such\nlegislation are, of course, illegal, and their judgments void.\n\nIt will also be shown, in a subsequent chapter,[79] that since Magna\nCarta, the legislative power in England (whether king or parliament) has\nnever had any constitutional authority to infringe, by legislation, any\nessential principle of the common law in the selection of jurors. All\nsuch legislation is as much unconstitutional and void, as though it\nabolished the trial by jury altogether. In reality it does abolish it.\n\nWhat, then, are the _essential principles_ of the common law,\ncontrolling the selection of jurors?\n\nThey are two.\n\n1. That _all_ the freemen, or adult male members of the state, shall be\neligible as jurors.[80]\n\nAny legislation which requires the selection of jurors to be made from a\nless number of freemen than the whole, makes the jury selected an\nillegal one.\n\nIf a part only of the freemen, or members of the state, are eligible as\njurors, the jury no longer represent \"the country,\" but only a part of\n\"the country.\"\n\nIf the selection of jurors can be restricted to any less number of\nfreemen than the whole, it can be restricted to a very small proportion\nof the whole; and thus the government be taken out of the hands of \"the\ncountry,\" or the whole people, and be thrown into the hands of a few.\n\nThat, at common law, the whole body of freemen were eligible as jurors\nis sufficiently proved, not only by the reason of the thing, but by the\nfollowing evidence:\n\n1. Everybody must be presumed eligible, until the contrary be shown. We\nhave no evidence, that I am aware of, of a prior date to Magna Carta, to\n_disprove_ that all freemen were eligible as jurors, unless it be the\nlaw of Ethelred, which requires that they be elderly[81] men. Since no\nspecific age is given, it is probable, I think, that this statute meant\nnothing more than that they be more than twenty-one years old. If it\nmeant anything more, it was probably contrary to the common law, and\ntherefore void.\n\n2. Since Magna Carta, we have evidence showing quite conclusively that\nall freemen, above the age of twenty-one years, were eligible as jurors.\n\nThe _Mirror of Justices_, (written within a century after Magna Carta,)\nin the section \"_Of Judges_\"--that is, _jurors_--says:\n\n   \"All those who are not forbidden by law may be judges (jurors). To\n   women it is forbidden by law that they be judges; and thence it is,\n   that feme coverts are exempted to do suit in inferior courts. On the\n   other part, a villein cannot be a judge, by reason of the two\n   estates, which are repugnants; persons attainted of false judgments\n   cannot be judges, nor infants, nor any under the age of twenty-one\n   years, nor infected persons, nor idiots, nor madmen, nor deaf, nor\n   dumb, nor parties in the pleas, nor men excommunicated by the bishop,\n   nor criminal persons. * * And those who are not of the Christian\n   faith cannot be judges, nor those who are out of the king's\n   allegiance.\"--_Mirror of Justices_, 59-60.\n\nIn the section \"_Of Inferior Courts_,\" it is said:\n\n   \"From the first assemblies came consistories, which we now call\n   courts, and that in divers places, and in divers manners; whereof the\n   sheriffs held one monthly, or every five weeks, according to the\n   greatness or largeness of the shires. And these courts are called\n   county courts, _where the judgment is by the suitors_, if there be no\n   writ, and is by warrant of jurisdiction ordinary. The other inferior\n   courts are the courts of every lord of the fee, to the likeness of\n   the hundred courts. * * There are other inferior courts which the\n   bailiffs hold in every hundred, from three weeks to three weeks, _by\n   the suitors of the freeholders of the hundred. All the tenants within\n   the fees are bounden to do their suit there_, and that not for the\n   service of their persons, but for the service of their fees. But\n   women, infants within the age of twenty-one years, deaf, dumb,\n   idiots, those who are indicted or appealed of mortal felony, before\n   they be acquitted, diseased persons, and excommunicated persons are\n   exempted from doing suit.\"--_Mirror of Justices_, 50-51.\n\nIn the section \"_Of the Sheriff's Turns_,\" it is said:\n\n   \"The sheriffs by ancient ordinances hold several meetings twice in\n   the year in every hundred; _where all the freeholders within the\n   hundred_ are bound to appear for the service of their fees.\"--_Mirror\n   of Justices_, 50.\n\nThe following statute was passed by Edward I., seventy years after Magna\nCarta:\n\n   \"Forasmuch also as sheriffs, hundreders, and bailiffs of liberties,\n   have used to grieve those which be placed under them, putting in\n   assizes and juries men diseased and decrepit, and having continual or\n   sudden disease; and men also that dwelled not in the country at the\n   time of the summons; and summon also an unreasonable number of\n   jurors, for to extort money from some of them, for letting them go\n   in peace, and so the assizes and juries pass many times by poor men,\n   and the rich abide at home by reason of their bribes; it is ordained\n   that from henceforth in one assize no more shall be summoned than\n   four and twenty; and old men above three score and ten years, being\n   continually sick, or being diseased at the time of the summons, or\n   not dwelling in that country, shall not be put in juries of petit\n   assizes.\"--_St. 13 Edward I._, ch. 38. (1285.)\n\nAlthough this command to the sheriffs and other officers, not to summon,\nas jurors, those who, from age and disease, were physically incapable of\nperforming the duties, may not, of itself, afford any absolute or legal\nimplication, by which we can determine precisely who were, and who were\nnot, eligible as jurors at common law, yet the exceptions here made\nnevertheless carry a seeming confession with them that, at common law,\nall male adults were eligible as jurors.\n\nBut the main principle of the feudal system itself shows that _all_ the\nfull and free adult male members of the state--that is, all who were\nfree born, and had not lost their civil rights by crime, or\notherwise--_must_, at common law, have been eligible as jurors. What was\nthat principle? It was, that the state rested for support upon the land,\nand not upon taxation levied upon the people personally. The lands of\nthe country were considered the property of the state, and were made to\nsupport the state _in this way_. A portion of them was set apart to the\nking, the rents of which went to pay his personal and official\nexpenditures, not including the maintenance of armies, or the\nadministration of justice. War and the administration of justice were\nprovided for in the following manner. The freemen, or the freeborn adult\nmale members of the state--who had not forfeited their political\nrights--were entitled to land _of right_, (until all the land was taken\nup,) on condition of their rendering certain military and civil services\nto the state. The military services consisted in serving personally as\nsoldiers, or contributing an equivalent in horses, provisions, or other\nmilitary supplies. The civil services consisted, among other things, in\nserving as jurors (and, it would appear, as witnesses) in the courts of\njustice. For these services they received no compensation other than\nthe use of their lands. In this way the state was sustained; and the\nking had no power to levy additional burdens or taxes upon the people.\nThe persons holding lands on these terms were called _freeholders_--in\nlater times _freemen_--meaning free and full members of the state.\n\nNow, as the principle of the system was that the freeholders held their\nlands of the state, on the condition of rendering these military and\ncivil services as _rents_ for their lands, the principle implies that\n_all_ the freeholders were liable to these rents, and were therefore\neligible as jurors. Indeed, I do not know that it has ever been doubted\nthat, at common law, _all_ the freeholders were eligible as jurors. If\nall had not been eligible, we unquestionably should have had abundant\nevidence of the exceptions. And if anybody, at this day, allege any\nexceptions, the burden will be on him to prove them. The presumption\nclearly is that _all_ were eligible.\n\nThe first invasion, which I find made, by the English statutes, upon\nthis common law principle, was made in 1285, seventy years after Magna\nCarta. It was then enacted as follows:\n\n   \"Nor shall any be put in assizes or juries, though they ought to be\n   taken in their own shire, that hold a tenement of less than the value\n   of _twenty shillings yearly_. And if such assizes and juries be taken\n   out of the shire, no one shall be placed in them who holds a tenement\n   of less value than forty shillings yearly at the least, except such\n   as be witnesses in deeds or other writings, whose presence is\n   necessary, so that they be able to travel.\"--_St. 13 Edward I._, ch.\n   38. (1285.)\n\nThe next invasion of the common law, in this particular, was made in\n1414, about two hundred years after Magna Carta, when it was enacted:\n\n   \"That no person shall be admitted to pass in any inquest upon trial\n   of the death of a man, nor in any inquest betwixt party and party in\n   plea real, nor in plea personal, whereof the debt or the damage\n   declared amount to forty marks, if the same person have not lands or\n   tenements of the yearly value of _forty shillings above all charges\n   of the same_.\"--_2 Henry V._, st. 2, ch. 3. (1414.)\n\nOther statutes on this subject of the property qualifications of jurors,\nare given in the note.[82]\n\nFrom these statutes it will be seen that, since 1285, seventy years\nafter Magna Carta, the common law right of all free British subjects to\neligibility as jurors has been abolished, and the qualifications of\njurors have been made a subject of arbitrary legislation. In other\nwords, the government has usurped the authority of _selecting_ the\njurors that were to sit in judgment upon its own acts. This is\ndestroying the vital principle of the trial by jury itself, which is\nthat the legislation of the government shall be subjected to the\njudgment of a tribunal, taken indiscriminately from the whole people,\nwithout any choice by the government, and over which the government can\nexercise no control. If the government can select the jurors, it will,\nof course, select those whom it supposes will be favorable to its\nenactments. And an exclusion of _any_ of the freemen from eligibility is\na _selection_ of those not excluded.\n\nIt will be seen, from the statutes cited, that the most absolute\nauthority over the jury box--that is, over the right of the people to\nsit in juries--has been usurped by the government; that the\nqualifications of jurors have been repeatedly changed, and made to vary\nfrom a freehold of _ten shillings yearly_, to one of \"_twenty pounds by\nthe year at least above reprises_.\" They have also been made different,\nin the counties of Southampton, Surrey, and Sussex, from what they were\nin the other counties; different in Wales from what they were in\nEngland; and different in the city of London, and in the county of\nMiddlesex, from what they were in any other part of the kingdom.\n\nBut this is not all. The government has not only assumed arbitrarily to\nclassify the people, on the basis of property, but it has even assumed\nto give to some of its judges entire and absolute personal discretion in\nthe selection of the jurors to be impanelled in criminal cases, as the\nfollowing statutes show.\n\n   \"Be it also ordained and enacted by the same authority, that all\n   panels hereafter to be returned, which be not at the suit of any\n   party, that shall be made and put in afore any justice of gaol\n   delivery or justices of peace in their open sessions _to inquire for\n   the king, shall hereafter be reformed by additions and taking out of\n   names of persons by discretion of the same justices before whom such\n   panel shall be returned; and the same justices shall hereafter\n   command the sheriff, or his ministers in his absence, to put other\n   persons in the same panel by their discretions; and that panel so\n   hereafter to be made, to be good and lawful_. This act to endure only\n   to the next Parliament.\"--_11 Henry VII._, ch. 24, sec. 6. (1495.)\n\nThis act was continued in force by 1 Henry VIII., ch. 11, (1509,) to the\nend of the then next Parliament.\n\nIt was reenacted, and made perpetual, by 3 Henry VIII., ch. 12. (1511.)\n\n_These acts gave unlimited authority to the king's justices to pack\njuries at their discretion; and abolished the last vestige of the common\nlaw right of the people to sit as jurors, and judge of their own\nliberties, in the courts to which the acts applied._\n\nYet, as matters of law, these statutes were no more clear violations of\nthe common law, the fundamental and paramount \"law of the land,\" than\nwere those statutes which affixed the property qualifications before\nnamed; because, if the king, or the government, can select the jurors on\nthe ground of property, it can select them on any other ground\nwhatever.\n\nAny infringement or restriction of the common law right of the whole\nbody of the freemen of the kingdom to eligibility as jurors, was legally\nan abolition of the trial by jury itself. The juries no longer\nrepresented \"the country,\" but only a part of the country; that part,\ntoo, on whose favor the government chose to rely for the maintenance of\nits power, and which it therefore saw fit to select as being the most\nreliable instruments for its purposes of oppression towards the rest.\nAnd the selection was made on the same principle, on which tyrannical\ngovernments generally select their supporters, viz., that of\nconciliating those who would be most dangerous as enemies, and most\npowerful as friends--that is, the wealthy.[83]\n\nThese restrictions, or indeed any one of them, of the right of\neligibility as jurors, was, in principle, a complete abolition of the\nEnglish constitution; or, at least, of its most vital and valuable part.\nIt was, in principle, an assertion of a right, on the part of the\ngovernment, to _select_ the individuals who were to determine the\nauthority of its own laws, and the extent of its own powers. It was,\ntherefore, _in effect_, the assertion of a right, on the part of the\ngovernment itself, to determine its own powers, and the authority of its\nown legislation, over the people; and a denial of all right, on the part\nof the people, to judge of or determine their own liberties against the\ngovernment. It was, therefore, in reality, a declaration of entire\nabsolutism on the part of the government. It was an act as purely\ndespotic, _in principle_, as would have been the express abolition of\nall juries whatsoever. By \"the law of the land,\" which the kings were\nsworn to maintain, every free adult male British subject was eligible to\nthe jury box, with full power to exercise his own judgment as to the\nauthority and obligation of every statute of the king, which might come\nbefore him. But the principle of these statutes (fixing the\nqualifications of jurors) is, that nobody is to sit in judgment upon the\nacts or legislation of the king, or the government, except those whom\nthe government itself shall select for that purpose. A more complete\nsubversion of the essential principles of the English constitution could\nnot be devised.\n\nThe juries of England are illegal for another reason, viz., that the\nstatutes cited require the jurors (except in London and a few other\nplaces) to be _freeholders_. All the other free British subjects are\nexcluded; whereas, at common law, all such subjects are eligible to sit\nin juries, whether they be freeholders or not.\n\nIt is true, the ancient common law required the jurors to be\nfreeholders; but the term _freeholder_ no longer expresses the same idea\nthat it did in the ancient common law; because no land is now holden in\nEngland on the same principle, or by the same tenure, as that on which\nall the land was held in the early times of the common law.\n\nAs has heretofore been mentioned, in the early times of the common law\nthe land was considered the property of the state; and was all holden by\nthe _tenants_, so called, (that is, _holders_,) on the condition of\ntheir rendering certain military and civil services to the state, (or to\nthe king as the representative of the state,) under the name of _rents_.\nThose who held lands on these terms were called free _tenants_, that is,\n_free holders_--meaning free persons, or members of the state, holding\nlands--to distinguish them from villeins, or serfs, who were not members\nof the state, but held their lands by a more servile tenure, and also to\ndistinguish them from persons of foreign birth, outlaws, and all other\npersons, who were not members of the state.\n\nEvery freeborn adult male Englishman (who had not lost his civil rights\nby crime or otherwise) was entitled to land of _right_; that is, by\nvirtue of his civil freedom, or membership of the body politic. Every\nmember of the state was therefore a freeholder; and every freeholder was\na member of the state. And the members of the state were therefore\ncalled freeholders. But what is material to be observed, is, that a\nman's right to land was an incident to his _civil freedom_; not his\ncivil freedom an incident to his right to land. He was a freeholder\nbecause he was a _freeborn_ member of the state; and not a freeborn\nmember of the state because he was a freeholder; for this last would be\nan absurdity.\n\nAs the tenures of lands changed, the term _freeholder_ lost its original\nsignificance, and no longer described a man who held land of the state\nby virtue of his civil freedom, but only one who held it in\nfee-simple--that is, free of any liability to military or civil\nservices. But the government, in fixing the qualifications of jurors,\nhas adhered to the term _freeholder_ after that term has ceased to\nexpress the _thing_ originally designated by it.\n\nThe principle, then, of the common law, was, that every freeman, or\nfreeborn male Englishman, of adult age, &c., was eligible to sit in\njuries, by virtue of his civil freedom, or his being a member of the\nstate, or body politic. But the principle of the present English\nstatutes is, that a man shall have a right to sit in juries because he\nowns lands in fee-simple. At the common law a man was _born_ to the\nright to sit in juries. By the present statutes he _buys_ that right\nwhen he buys his land. And thus this, the greatest of all the political\nrights of an Englishman, has become a mere article of merchandise; a\nthing that is bought and sold in the market for what it will bring.\n\nOf course, there can be no legality in such juries as these; but only in\njuries to which every free or natural born adult male Englishman is\neligible.\n\nThe second essential principle of the common law, controlling the\nselection of jurors, is, that when the selection of the actual jurors\ncomes to be made, (from the whole body of male adults,) that selection\nshall be made in some mode that excludes the possibility of choice _on\nthe part of the government_.\n\nOf course, this principle forbids the selection to be made _by any\nofficer of the government_.\n\nThere seem to have been at least three modes of selecting the jurors, at\nthe common law. 1. By lot.[84] 2. Two knights, or other freeholders,\nwere appointed, (probably by the sheriff,) to select the jurors. 3. By\nthe sheriff, bailiff, or other person, who held the court, or rather\nacted as its ministerial officer. Probably the latter mode may have been\nthe most common, although there may be some doubt on this point.\n\nAt the common law the sheriffs, bailiffs, and other officers _were\nchosen by the people, instead of being appointed by the king_. (_4\nBlackstone_, 413. _Introduction to Gilbert's History of the Common\nPleas_, p. 2, _note_, and p. 4.) This has been shown in a former\nchapter.[85] At common law, therefore, jurors selected by these officers\nwere legally selected, so far as the principle now under discussion is\nconcerned; that is, they were not selected by any officer who was\ndependent on the government.\n\nBut in the year 1315, one hundred years after Magna Carta, the choice of\nsheriffs was taken from the people, and it was enacted:\n\n   \"That the sheriffs shall henceforth be assigned by the chancellor,\n   treasurer, barons of the exchequer, and by the justices. And in the\n   absence of the chancellor, by the treasurer, barons and\n   justices.\"--_9 Edward II._, st. 2. (1315.)\n\nThese officers, who appointed the sheriffs, were themselves appointed by\nthe king, and held their offices during his pleasure. Their appointment\nof sheriffs was, therefore, equivalent to an appointment by the king\nhimself. And the sheriffs, thus appointed, held their offices only\nduring the pleasure of the king, and were of course mere tools of the\nking; and their selection of jurors was really a selection by the king\nhimself. In this manner the king usurped the selection of the jurors who\nwere to sit in judgment upon his own laws.\n\nHere, then, was another usurpation, by which the common law trial by\njury was destroyed, so far as related to the county courts, in which the\nsheriffs presided, and which were the most important courts of the\nkingdom. From this cause alone, if there were no other, there has not\nbeen a legal jury in a _county_ court in England, for more than five\nhundred years.\n\nIn nearly or quite all the States of the United States the juries are\nillegal, for one or the other of the same reasons that make the juries\nin England illegal.\n\nIn order that the juries in the United States may be legal--that is, in\naccordance with the principles of the common law--it is necessary that\nevery adult male member of the state should have his name in the jury\nbox, or be eligible as a juror. Yet this is the case in hardly a single\nstate.\n\nIn New Jersey, Maryland, North Carolina, Tennessee, and Mississippi, the\njurors are required to be _freeholders_. But this requirement is\nillegal, for the reason that the term _freeholder_, in this country, has\nno meaning analogous to the meaning it had in the ancient common law.\n\nIn Arkansas, Missouri, Indiana, and Alabama, jurors are required to be\n\"freeholders or householders.\" Each of these requirements is illegal.\n\nIn Florida, they are required to be \"householders.\"\n\nIn Connecticut, Maine, Ohio, and Georgia, jurors are required to have\nthe qualifications of \"electors.\"\n\nIn Virginia, they are required to have a property qualification of one\nhundred dollars.\n\nIn Maine, Massachusetts, Vermont, Connecticut, New York, Ohio, Indiana,\nMichigan, and Wisconsin, certain civil authorities of the towns, cities,\nand counties are authorized to select, once in one, two, or three years,\na certain number of the people--a small number compared with the\nwhole--from whom jurors are to be taken when wanted; thus disfranchising\nall except the few thus selected.\n\nIn Maine and Vermont, the inhabitants, by vote in town meeting, have a\nveto upon the jurors selected by the authorities of the town.\n\nIn Massachusetts, the inhabitants, by vote in town meeting, can strike\nout any names inserted by the authorities, and insert others; thus\nmaking jurors elective by the people, and, of course, representatives\nonly of a majority of the people.\n\nIn Illinois, the jurors are selected, for each term of court, by the\ncounty commissioners.\n\nIn North Carolina, \"_the courts of pleas and quarter sessions_ * * shall\nselect the names of such persons only as are freeholders, and as are\nwell qualified to act as jurors, &c.; thus giving the courts power to\npack the juries.\"--(_Revised Statutes_, 147.)\n\nIn Arkansas, too, \"It shall be the duty of the _county court_ of each\ncounty * * to make out and cause to be delivered to the sheriff a list\nof not less than sixteen, nor more than twenty-three persons, qualified\nto serve as _grand_ jurors;\" and the sheriff is to summon such persons\nto serve as _grand_ jurors.\n\nIn Tennessee, also, the jurors are to be selected by the _county\ncourts_.\n\nIn Georgia, the jurors are to be selected by \"the justices of the\ninferior courts of each county, together with the sheriff and clerk, or\na majority of them.\"\n\nIn Alabama, \"the sheriff, judge of the county court, and clerks of the\ncircuit and county courts,\" or \"a majority of\" them, select the jurors.\n\nIn Virginia, the jurors are selected by the sheriffs; but the sheriffs\nare appointed by the governor of the state, and that is enough to make\nthe juries illegal. Probably the same objection lies against the\nlegality of the juries in some other states.\n\nHow jurors are appointed, and what are their qualifications, in New\nHampshire, Rhode Island, Pennsylvania, Delaware, South Carolina,\nKentucky, Iowa, Texas, and California, I know not. There is little doubt\nthat there is some valid objection to them, of the kinds already\nsuggested, in all these states.\n\nIn regard to jurors in the courts of the United States, it is enacted,\nby act of Congress:\n\n   \"That jurors to serve in the courts of the United States, in each\n   state respectively, shall have the like qualifications, and be\n   entitled to the like exemptions, as jurors of the highest court of\n   law of such state now have and are entitled to, and shall hereafter,\n   from time to time, have and be entitled to, and shall be designated\n   by ballot, lot, or otherwise, according to the mode of forming such\n   juries now practised and hereafter to be practised therein, in so far\n   as such mode may be practicable by the courts of the United States,\n   or the officers thereof; and for this purpose, the said courts shall\n   have power to make all necessary rules and regulations for conforming\n   the designation and empanelling of jurors, in substance, to the laws\n   and usages now in force in such state; and, further, shall have\n   power, by rule or order, from time to time, to conform the same to\n   any change in these respects which may be hereafter adopted by the\n   legislatures of the respective states for the state courts.\"--_St._\n   1840, ch. 47, _Statutes at Large_, vol. 5, p. 394.\n\nIn this corrupt and lawless manner, Congress, instead of taking care to\npreserve the trial by jury, so far as they might, by providing for the\nappointment of legal juries--incomparably the most important of all our\njudicial tribunals, and the only ones on which the least reliance can be\nplaced for the preservation of liberty--have given the selection of them\nover entirely to the control of an indefinite number of state\nlegislatures, and thus authorized each state legislature to adapt the\njuries of the United States to the maintenance of any and every system\nof tyranny that may prevail in such state.\n\nCongress have as much constitutional right to give over all the\nfunctions of the United States government into the hands of the state\nlegislatures, to be exercised within each state in such manner as the\nlegislature of such state shall please to exercise them, as they have to\nthus give up to these legislatures the selection of juries for the\ncourts of the United States.\n\nThere has, probably, never been a legal jury, nor a legal trial by jury,\nin a single court of the United States, since the adoption of the\nconstitution.\n\nThese facts show how much reliance can be placed in written\nconstitutions, to control the action of the government, and preserve the\nliberties of the people.\n\nIf the real trial by jury had been preserved in the courts of the United\nStates--that is, if we had had legal juries, and the jurors had known\ntheir rights--it is hardly probable that one tenth of the past\nlegislation of Congress would ever have been enacted, or, at least,\nthat, if enacted, it could have been enforced.\n\nProbably the best mode of appointing jurors would be this: Let the names\nof _all_ the adult male members of the state, in each township, be kept\nin a jury box, by the officers of the township; and when a court is to\nbe held for a county or other district, let the officers of a sufficient\nnumber of townships be required (without seeing the names) to draw out a\nname from their boxes respectively, to be returned to the court as a\njuror. This mode of appointment would guard against collusion and\nselection; and juries so appointed would be likely to be a fair epitome\nof \"the country.\"\n\n[Footnote 79: On the English Constitution.]\n\n[Footnote 80: Although all the freemen are legally eligible as jurors,\nany one may nevertheless be challenged and set aside, at the trial, for\nany special _personal_ disqualification; such as mental or physical\ninability to perform the duties; having been convicted, or being under\ncharge, of crime; interest, bias, &c. But it is clear that the common\nlaw allows none of these points to be determined by the court, but only\nby \"_triers_.\"]\n\n[Footnote 81: What was the precise meaning of the Saxon word, which I\nhave here called _elderly_, I do not know. In the Latin translations it\nis rendered by _seniores_, which may perhaps mean simply those who have\nattained their majority.]\n\n[Footnote 82: In 1483 it was enacted, by a statute entitled \"Of what\ncredit and estate those jurors must be which shall be impanelled in the\nSheriff's Turn.\"\n\n   \"That no bailiff nor other officer from henceforth return or impanel\n   any such person in any shire of England, to be taken or put in or\n   upon any inquiry in any of the said Turns, but such as be of good\n   name and fame, and having lands and tenements of freehold within the\n   same shires, to the yearly value of _twenty shillings_ at the least,\n   or else lands and tenements holden by custom of manor, commonly\n   called _copy-hold_, within the said shires, to the yearly value of\n   twenty-six shillings eight pence over all charges at the least.\"--_1\n   Richard III._, ch. 4. (1483.)\n\n   In 1486 it was enacted, \"That the justices of the peace of every\n   shire of this realm for the time being may take, by their discretion,\n   an inquest, whereof every man shall have lands and tenements to the\n   yearly value of _forty shillings_ at the least, to inquire of the\n   concealments of others,\" &c., &c.--_3 Henry VII._, ch. 1 (1486.)\n\nA statute passed in 1494, in regard to jurors in the city of London,\nenacts:\n\n   \"That no person nor persons hereafter be impanelled, summoned, or\n   sworn in any jury or inquest in courts within the same city, (of\n   London,) except he be of lands, tenements, or goods and chattels, to\n   the value of _forty marks_;[86] and that no person or persons\n   hereafter be impanelled, summoned, nor sworn in any jury or inquest\n   in any court within the said city, for lands or tenements, or action\n   personal, wherein the debt or damage amounteth to the sum of forty\n   marks, or above, except he be in lands, tenements, goods, or\n   chattels, to the value of _one hundred marks_.\"--_11 Henry VII._, ch.\n   21. (1494.)\n\nThe statute _4 Henry VIII._, ch. 3, sec. 4, (1512) requires jurors in\nLondon to have \"_goods_ to the value of one hundred marks.\"\n\n   In 1494 it was enacted that \"It shall be lawful to every sheriff of\n   the counties of _Southampton_, _Surrey_, _and Sussex_, to impanel and\n   summons twenty-four lawful men of such, inhabiting within the\n   precinct of his or their turns, as owe suit to the same turn, whereof\n   every one hath lands or freehold to the yearly value of _ten_\n   shillings, or copy-hold lands to the yearly value of _thirteen\n   shillings four pence_, above all charges within any of the said\n   counties, or men of less livelihood, if there be not so many there,\n   notwithstanding the statute of _1 Richard III._, ch. 4. To endure to\n   the next parliament.\"--_11 Henry VII._, ch. 26. (1494.)\n\nThis statute was continued in force by _19 Henry VII._, ch. 16. (1503.)\n\n   In 1531 it was enacted, \"That every person or persons, being the\n   king's natural subject born, which either by the name of citizen, or\n   of a freeman, or any other name, doth enjoy and use the liberties and\n   privileges of any city, borough, or town corporate, where he dwelleth\n   and maketh his abode, being worth in _movable goods and substance_ to\n   the clear value of _forty pounds_, be henceforth admitted in trials\n   of murders and felonies in every sessions and gaol delivery, to be\n   kept and holden in and for the liberty of such cities, boroughs, and\n   towns corporate, albeit they have no freehold; any act, statute, use,\n   custom, or ordinance to the contrary hereof notwithstanding.\"--_23\n   Henry VIII._, ch. 13. (1531.)\n\n   In 1585 it was enacted, \"That in all cases where any jurors to be\n   returned for trial of any issue or issues joined in any of the\n   Queen's majesty's courts of King's Bench, Common Pleas, and the\n   Exchequer, or before justices of assize, by the laws of this realm\n   now in force, ought to have estate of freehold in lands, tenements,\n   or hereditaments, of the clear yearly value of _forty shillings_,\n   that in every such case the jurors that shall be returned from and\n   after the end of this present session of parliament, shall every of\n   them have estate of freehold in lands, tenements, or hereditaments,\n   to the clear yearly value of _four pounds_ at the least.\"--_27\n   Elizabeth_, ch. 6. (1585.)\n\n   In 1664-5 it was enacted, \"That all jurors (other than strangers upon\n   trials _per medietatem linguae_) who are to be returned for the trials\n   of issues joined in any of (his) majesty's courts of king's bench,\n   common pleas, or the exchequer, or before justices of assize, or nisi\n   prius, oyer and terminer, gaol delivery, or general or quarter\n   sessions of the peace, from and after the twentieth day of April,\n   which shall be in the year of our Lord one thousand six hundred and\n   sixty-five, in any county of this realm of England, shall every of\n   them thon have, in their own name, or in trust for them, within the\n   same county, _twenty pounds by the year_, at least, above reprises,\n   in their own or their wives' right, of freehold lands, or of ancient\n   demesne, or of rents in fee, fee-tail, or for life. And that in every\n   county within the dominion of Wales every such juror shall then have,\n   within the same, _eight pounds by the year_, at the least, above\n   reprises, in manner aforesaid. All which persons having such estate\n   as aforesaid are hereby enabled and made liable to be returned and\n   serve as jurors for the trial of issues before the justices\n   aforesaid, any law or statute to the contrary in any wise\n   notwithstanding.\"--_16 and 17 Charles II._, ch. 3. (1664-5.)\n\nBy a statute passed in 1692, jurors in England are to have landed\nestates of the value of _ten pounds a year_; and jurors in Wales to have\nsimilar estates of the realm of _six pounds a year_.--_4 and 5 William\nand Mary_, ch. 24, sec. 14. (1692.)\n\nBy the same statute, (sec. 18,) persons may be returned to serve upon\nthe _tales_ in any county of England, who shall have, within the same\ncounty, _five pounds by the year_, above reprises, in the manner\naforesaid.\n\nBy _St_. 3 _George II_., ch. 25, sec. 19, 20, no one is to be a juror in\nLondon, who shall not be \"an householder within the said city, and have\nlands, tenements, or personal estate, to the value of _one hundred\npounds_.\"\n\nBy another statute, applicable only to the county of _Middlesex_, it is\nenacted,\n\n   \"That all leaseholders, upon leases where the improved rents or value\n   shall amount to _fifty pounds or upwards per annum_, over and above\n   all ground rents or other reservations payable by virtue of the said\n   leases, shall be liable and obliged to serve upon juries when they\n   shall be legally summoned for that purpose.\"--_4 George II._, ch. 7,\n   sec. 3. (1731.)]\n\n[Footnote 83: Suppose these statutes, instead of disfranchising all\nwhose freeholds were of less than the standard value fixed by the\nstatutes, had disfranchised all whose freeholds were of greater value\nthan the same standard--would anybody ever have doubted that such\nlegislation was inconsistent with the English constitution; or that it\namounted to an entire abolition of the trial by jury? Certainly not. Yet\nit was as clearly inconsistent with the common law, or the English\nconstitution, to disfranchise those whose freeholds fell below any\narbitrary standard fixed by the government, as it would have been to\ndisfranchise all whose freeholds rose above that standard.]\n\n[Footnote 84: _Lingard_ says: \"These compurgators or jurors * * were\nsometimes * * _drawn by lot_.\"--_1 Lingard's History of England_, p.\n300.]\n\n[Footnote 85: Chapter 4, p. 120, note.]\n\n[Footnote 86: A mark was thirteen shillings and four pence.]\n\n\n\n\nCHAPTER VII.\n\nILLEGAL JUDGES.\n\n\nIt is a principle of Magna Carta, and therefore of the trial by jury,\n(for all parts of Magna Carta must be construed together,) that no judge\nor other officer _appointed by the king_, shall preside in jury trials,\n_in criminal cases_, or \"pleas of the crown.\"\n\nThis provision is contained in the great charters of both John and\nHenry, and is second in importance only to the provision guaranteeing\nthe trial by jury, of which it is really a part. Consequently, without\nthe observance of this prohibition, there can be no genuine or\n_legal_--that is, _common law_--trial by jury.\n\nAt the common law, all officers who held jury trials, whether in civil\nor criminal cases, were chosen by the people.[87]\n\nBut previous to Magna Carta, the kings had adopted the practice of\nsending officers of their own appointment, called justices, into the\ncounties, to hold jury trials in some cases; and Magna Carta authorizes\nthis practice to be continued so far as it relates to _three_ kinds of\n_civil_ actions, to wit: \"novel disseisin, mort de ancestor, and darrein\npresentment;\"[88] but specially forbids its being extended to criminal\ncases, or pleas of the crown.\n\nThis prohibition is in these words:\n\n   \"Nullus vicecomes, constabularius, coronator, _vel alii balivi\n   nostri_, teneant placita coronae nostrae.\" (No sheriff, constable,\n   coroner, _or other our bailiffs_, shall hold pleas of our\n   crown.)--_John's Charter_, ch. 53. _Henry's ditto_, ch. 17.\n\nSome persons seem to have supposed that this was a prohibition merely\nupon officers _bearing the specific names of_ \"_sheriffs, constables,\ncoroners and bailiffs_,\" to hold criminal trials. But such is not the\nmeaning. If it were, the _name_ could be changed, and the _thing_\nretained; and thus the prohibition be evaded. The prohibition applies\n(as will presently be seen) to all officers of the king whatsoever; and\nit sets up a distinction between officers _of the king_, (\"_our_\nbailiffs,\") and officers chosen by the people.\n\nThe prohibition upon the king's _justices_ sitting in criminal trials,\nis included in the words \"_vel alii balivi nostri_,\" (or other our\nbailiffs.) The word _bailiff_ was anciently a sort of general name for\n_judicial officers_ and persons employed in and about the administration\nof justice. In modern times its use, as applied to the higher grades of\njudicial officers, has been superseded by other words; and it therefore\nnow, more generally, if not universally, signifies an executive or\npolice officer, _a servant of courts_, rather than one whose functions\nare purely judicial.\n\nThe word is a French word, brought into England by the Normans.\n\n   Coke says, \"_Baylife_ is a French word, and signifies an officer\n   concerned in the administration of justice of a certain province; and\n   because a sheriff hath an office concerning the administration of\n   justice within his county, or bailiwick, therefore he called his\n   county _baliva sua_, (his bailiwick.)\n\n   \"I have heard great question made what the true exposition of this\n   word _balivus_ is. In the statute of Magna Carta, cap. 28, the letter\n   of that statute is, _nullus balivus de caetero ponat aliquem ad legem\n   manifestam nec ad juramentum simplici loquela sua sine testibus\n   fidelibus ad hoc inductis_.\" (No bailiff from henceforth shall put\n   any one to his open law, nor to an oath (of self-exculpation) upon\n   his own simple accusation, or complaint, without faithful witnesses\n   brought in for the same.) \"And some have said that _balivus_ in this\n   statute signifieth _any judge_; for the law must be waged and made\n   before the judge. And this statute (say they) extends to _the courts\n   of common pleas_, _king's bench_, &c., for they must bring with them\n   _fideles testes_, (faithful witnesses,) &c., _and so hath been the\n   usage to this day_.\"--_1 Coke's Inst._, 168 b.\n\nCoke makes various references, in his margin to Bracton, Fleta, and\nother authorities, which I have not examined, but which, I presume,\nsupport the opinion expressed in this quotation.\n\nCoke also, in another place, under the head of the chapter just cited\nfrom Magna Carta, that \"_no bailiff shall put any man to his open law_,\"\n&c., gives the following commentary upon it, from the _Mirror of\nJustices_, from which it appears that in the time of Edward I., (1272 to\n1307,) this word _balivus_ was understood to include _all judicial_, as\nwell as all other, officers of the king.\n\n   The Mirror says: \"The point which forbiddeth that no _bailiff_ put a\n   freeman to his oath without suit, is to be understood in this\n   manner,--_that no justice, no minister of the king_, nor other\n   steward, nor bailiff, have power to make a freeman make oath, (of\n   self-exculpation,) _without the king's command_,[89] nor receive any\n   plaint, without witnesses present who testify the plaint to be\n   true.\"--_Mirror of Justices_, ch. 5, sec. 2, p. 257.\n\nCoke quotes this commentary, (in the original French,) and then endorses\nit in these words:\n\n   \"By this it appeareth, that under this word _balivus_, in this act,\n   is comprehended _every justice, minister of the king_, steward, and\n   bailiff.\"--2 _Inst._, 44.\n\nCoke also, in his commentary upon this very chapter of Magna Carta, that\nprovides that \"_no sheriff, constable, coroner, or other our bailiffs,\nshall hold pleas of our crown_,\" expresses the opinion that it \"_is a\ngeneral law_,\" (that is, applicable to all officers of the king,) \"by\nreason of the words _vel alii balivi nostri_, (or other our bailiffs,)\n_under which words are comprehended all judges or justices of any courts\nof justice_.\" And he cites a decision in the king's bench, in the 17th\nyear of Edward I., (1289,) as authority; which decision he calls \"a\nnotable and leading judgment.\"--_2 Inst._, 30--1.\n\nAnd yet Coke, in flat contradiction of this decision, which he quotes\nwith such emphasis and approbation, and in flat contradiction also of\nthe definition he repeatedly gives of the word _balivus_, showing that\nit embraced _all ministers of the king whatsoever_, whether high or low,\njudicial or executive, fabricates an entirely gratuitous interpretation\nof this chapter of Magna Carta, and pretends that after all it only\nrequired that _felonies_ should be tried before the king's _justices, on\naccount of their superior learning_; and that it permitted all lesser\noffences to be tried before inferior officers, (meaning of course the\n_king's_ inferior officers.)--_2 Inst._, 30.\n\nAnd thus this chapter of Magna Carta, which, according to his own\ndefinition of the word _balivus_, applies to all officers of the king;\nand which, according to the common and true definition of the term\n\"pleas of the crown,\" applies to all criminal cases without distinction,\nand which, therefore, forbids any officer or minister of the king to\npreside in a jury trial in any criminal case whatsoever, he coolly and\ngratuitously interprets into a mere senseless provision for simply\nrestricting the discretion of the king in giving _names_ to his own\nofficers who should preside at the trials of particular offences; as if\nthe king, who made and unmade all his officers by a word, could not\ndefeat the whole object of the prohibition, by appointing such\nindividuals as he pleased, to try such causes as he pleased, and calling\nthem by such names as he pleased, _if he were but permitted to appoint\nand name such officers at all_; and as if it were of the least\nimportance what _name_ an officer bore, whom the king might appoint to a\nparticular duty.[90]\n\nCoke evidently gives this interpretation solely because, as he was\ngiving a general commentary on Magna Carta, he was bound to give some\ninterpretation or other to every chapter of it; and for this chapter he\ncould invent, or fabricate, (for it is a sheer fabrication,) no\ninterpretation better suited to his purpose than this. It seems never to\nhave entered his mind, (or if it did, he intended that it should never\nenter the mind of anybody else,) that the object of the chapter could be\nto deprive the king of the power of putting his creatures into criminal\ncourts, to pack, cheat, and browbeat juries, and thus maintain his\nauthority by procuring the conviction of those who should transgress his\nlaws, or incur his displeasure.\n\nThis example of Coke tends to show how utterly blind, or how utterly\ncorrupt, English judges, (dependent upon the crown and the legislature),\nhave been in regard to everything in Magna Carta, that went to secure\nthe liberties of the people, or limit the power of the government.\n\nCoke's interpretation of this chapter of Magna Carta is of a piece with\nhis absurd and gratuitous interpretation of the words \"_nec super eum\nibimus, nec super eum mittemus_,\" which was pointed out in a former\narticle, and by which he attempted to give a _judicial_ power to the\nking and his judges, where Magna Carta had given it only to a jury. It\nis also of a piece with his pretence that there was a difference\nbetween _fine_ and _amercement_, and that _fines_ might be imposed by\nthe king, and that juries were required only for fixing _amercements_.\n\nThese are some of the innumerable frauds by which the English people\nhave been cheated out of the trial by jury.\n\n_Ex uno disce omnes._ From one judge learn the characters of all.[91]\n\nI give in the note additional and abundant authorities for the meaning\nascribed to the word _bailiff_. The importance of the principle involved\nwill be a sufficient excuse for such an accumulation of authorities as\nwould otherwise be tedious and perhaps unnecessary.[92]\n\nThe foregoing interpretation of the chapter of Magna Carta now under\ndiscussion, is corroborated by another chapter of Magna Carta, which\nspecially provides that the king's justices shall \"go through every\ncounty\" to \"take the assizes\" (hold jury trials) in three kinds of\n_civil_ actions, to wit, \"novel disseisin, mort de ancestor, and darrein\npresentment;\" but makes no mention whatever of their holding jury trials\nin _criminal_ cases,--an omission wholly unlikely to be made, if it\nwere designed they should attend the trial of such causes. Besides, the\nchapter here spoken of (in John's charter) does not allow these justices\nto sit _alone_ in jury trials, even in _civil_ actions; but provides\nthat four knights, chosen by the county, shall sit with them to keep\nthem honest. When the king's justices were known to be so corrupt and\nservile that the people would not even trust them to sit alone, in jury\ntrials, in _civil_ actions, how preposterous is it to suppose that they\nwould not only suffer them to sit, but to sit alone, in _criminal_ ones.\n\nIt is entirely incredible that Magna Carta, which makes such careful\nprovision in regard to the king's justices sitting in civil actions,\nshould make no provision whatever as to their sitting in _criminal_\ntrials, if they were to be allowed to sit in them at all. Yet Magna\nCarta has no provision whatever on the subject.[93]\n\nBut what would appear to make this matter absolutely certain is, that\nunless the prohibition that \"no bailiff, &c., _of ours_ shall hold pleas\nof our crown,\" apply to all officers of the king, justices as well as\nothers, it would be wholly nugatory for any practical or useful purpose,\nbecause the prohibition could be evaded by the king, at any time, by\nsimply changing the titles of his officers. Instead of calling them\n\"sheriffs, coroners, constables and bailiffs,\" he could call them\n\"_justices_,\" or anything else he pleased; and this prohibition, so\nimportant to the liberty of the people, would then be entirely defeated.\nThe king also could make and unmake \"justices\" at his pleasure; and if\nhe could appoint any officers whatever to preside over juries in\ncriminal trials, he could appoint any tool that he might at any time\nfind adapted to his purpose. It was as easy to make justices of Jeffreys\nand Scroggs, as of any other material; and to have prohibited all the\nking's officers, _except his justices_, from presiding in criminal\ntrials, would therefore have been mere fool's play.\n\nWe can all perhaps form some idea, though few of us will be likely to\nform any adequate idea, of what a different thing the trial by jury\nwould have been _in practice_, and of what would have been the\ndifference to the liberties of England, for five hundred years last\npast, had this prohibition of Magna Carta, upon the king's officers\nsitting in the trial of criminal cases, been observed.\n\nThe principle of this chapter of Magna Carta, as applicable to the\ngovernments of the United States of America, forbids that any officer\nappointed either by the executive or _legislative_ power, or dependent\nupon them for their salaries, or responsible to them by impeachment,\nshould preside over a jury in criminal trials. To have the trial a legal\n(that is, a _common law_) and true trial by jury, the presiding officers\nmust be chosen by the people, and be entirely free from all dependence\nupon, and all accountability to, the executive and legislative branches\nof the government.[94]\n\n[Footnote 87: The proofs of this principle of the common law have\nalready been given on page 120, _note_.\n\nThere is much confusion and contradiction among authors as to the manner\nin which sheriffs and other officers were appointed; some maintaining\nthat they were appointed by the king, others that they were elected by\nthe people. I imagine that both these opinions are correct, and that\nseveral of the king's officers bore the same official names as those\nchosen by the people; and that this is the cause of the confusion that\nhas arisen on the subject.\n\nIt seems to be a perfectly well established fact that, at common law,\nseveral magistrates, bearing the names of aldermen, sheriffs, stewards,\ncoroners and bailiffs, were chosen by the people; and yet it appears,\nfrom Magna Carta itself, that some of the _king's_ officers (of whom he\nmust have had many) were also called \"sheriffs, constables, coroners,\nand bailiffs.\"\n\nBut Magna Carta, in various instances, speaks of sheriffs and bailiffs\nas \"_our_ sheriffs and bailiffs;\" thus apparently intending to recognize\nthe distinction between officers _of the king_, bearing those names, and\nother officers, bearing the same official names, but chosen by the\npeople. Thus it says that \"no sheriff or bailiff _of ours_, or any other\n(officer), shall take horses or carts of any freeman for carriage,\nunless with the consent of the freeman himself.\"--_John's Charter_, ch.\n36.\n\nIn a kingdom subdivided into so many counties, hundreds, tithings,\nmanors, cities and boroughs, each having a judicial or police\norganization of its own, it is evident that many of the officers must\nhave been chosen by the people, else the government could not have\nmaintained its popular character. On the other hand, it is evident that\nthe king, the executive power of the nation, must have had large numbers\nof officers of his own in every part of the kingdom. And it is perfectly\nnatural that these different sets of officers should, in many instances,\nbear the same official names; and, consequently that the king, when\nspeaking of his own officers, as distinguished from those chosen by the\npeople, should call them \"our sheriffs, bailiffs,\" &c., as he does in\nMagna Carta.\n\nI apprehend that inattention to these considerations has been the cause\nof all the confusion of ideas that has arisen on this subject,--a\nconfusion very evident in the following paragraph from Dunham, which may\nbe given as an illustration of that which is exhibited by others on the\nsame points.\n\n   \"Subordinate to the ealdormen were the _gerefas_, the sheriffs, or\n   reeves, _of whom there were several in every shire, or county_.\n   _There was one in every borough, as a judge._ There was one at every\n   gate, who witnessed purchases outside the walls; and there was one,\n   higher than either,--the high sheriff,--who was probably the reeve of\n   the shire. This last _appears_ to have been appointed by the king.\n   Their functions were to execute the decrees of the king, or\n   ealdormen, to arrest prisoners, to require bail for their appearance\n   at the sessions, to collect fines or penalties levied by the court of\n   the shire, to preserve the public peace, _and to preside in a\n   subordinate tribunal of their own_.\"--_Dunham's Middle Ages_, sec. 2,\n   B. 2, ch. 1. 57 _Lardner's Cab. Cyc._, p. 41.\n\nThe confusion of _duties_ attributed to these officers indicates clearly\nenough that different officers, bearing, the same official names, must\nhave had different duties, and have derived their authority from\ndifferent sources,--to wit, the king, and the people.]\n\n[Footnote 88: _Darrein presentment_ was an inquest to discover who\npresented the last person to a church; _mort de ancestor_, whether the\nlast possessor was seized of land in demesne of his own fee; and _novel\ndisseisin_, whether the claimant had been unjustly disseized of his\nfreehold.]\n\n[Footnote 89: He has no power to do it, _either with, or without, the\nking's command_. The prohibition is absolute, containing no such\nqualification as is here interpolated, viz., \"_without the king's\ncommand_.\" If it could be done _with_ the king's command, the king would\nbe invested with arbitrary power in the matter.]\n\n[Footnote 90: The absurdity of this doctrine of Coke is made more\napparent by the fact that, at that time, the \"justices\" and other\npersons appointed by the king to hold courts were not only dependent\nupon the king for their offices, and removable at his pleasure, _but\nthat the usual custom was, not to appoint them with any view to\npermanency, but only to give them special commissions for trying a\nsingle cause, or for holding a single term of a court, or for making a\nsingle circuit; which, being done, their commissions expired_. The king,\ntherefore, could, _and undoubtedly did, appoint any individual he\npleased, to try any cause he pleased, with a special view to the\nverdicts he desired to obtain in the particular cases_.\n\nThis custom of commissioning particular persons to hold jury trials, in\n_criminal_ cases, (and probably also in _civil_ ones,) was of course a\nusurpation upon the common law, but had been practised more or less from\nthe time of William the Conqueror. Palgrave says:\n\n   \"The frequent absence of William from his insular dominions\n   occasioned another mode of administration, _which ultimately produced\n   still greater changes in the law_. It was the practice of appointing\n   justiciars to represent the king's person, to hold his court, to\n   decide his pleas, to dispense justice on his behalf, to command the\n   military levies, and to act as conservators of the peace in the\n   king's name.[95] ... The justices who were assigned in the name of\n   the sovereign, and whose powers were revocable at his pleasure,\n   derived their authority merely from their grant.... Some of those\n   judges were usually deputed for the purpose of relieving the king\n   from the burden of his judicial functions.... The number as well as\n   the variety of names of the justices appearing in the early\n   chirographs of 'Concords,' leave reason for doubting whether,\n   anterior to the reign of Henry III., (1216 to 1272,) _a court, whose\n   members were changing at almost every session, can be said to have\n   been permanently constituted. It seems more probable that the\n   individuals who composed the tribunal were selected as suited the\n   pleasure of the sovereign, and the convenience of the clerks and\n   barons_; and the history of our legal administration will be much\n   simplified, if we consider all those courts which were afterwards\n   denominated the Exchequer, the King's Bench, the Common Pleas, and\n   the Chancery, _as being originally committees, selected by the king\n   when occasion required_, out of a large body, for the despatch of\n   peculiar branches of business, _and which committees, by degrees,\n   assumed an independent and permanent existence_.... Justices\n   itinerant, who, despatched throughout the land, decided the 'Pleas of\n   the Crown,' may be obscurely traced in the reign of the Conqueror;\n   _not, perhaps, appointed with much regularity, but despatched upon\n   peculiar occasions and emergencies_.\"--_1 Palgrave's Rise and\n   Progress_, &c., p. 289 to 293.\n\nThe following statute, passed in 1354, (139 years after Magna Carta,)\nshows that even after this usurpation of appointing \"justices\" of his\nown, to try criminal cases, had probably become somewhat established in\npractice, in defiance of Magna Carta, the king was in the habit of\ngranting special commissions to still other persons, (especially to\nsheriffs,--_his_ sheriffs, no doubt,) to try particular cases:\n\n   \"Because that the people of the realm have suffered many evils and\n   mischiefs, for that sheriffs of divers counties, by virtue of\n   commissions and general writs granted to them at their own suit, for\n   their singular profit to gain of the people, have made and taken\n   divers inquests to cause to indict the people at their will, and have\n   taken fine and ransom of them to their own use, and have delivered\n   them; whereas such persons indicted were not brought before the\n   king's justices to have their deliverance, it is accorded and\n   established, for to eschew all such evils and mischiefs, that such\n   commissions and writs before this time made shall be utterly\n   repealed, and that from henceforth no such commissions shall be\n   granted.\"--_St. 28 Edward III._, ch. 9, (1354.)\n\nHow silly to suppose that the illegality of these commissions to try\ncriminal cases, could have been avoided by simply granting them to\npersons under the title of \"_justices_,\" instead of granting them to\n\"_sheriffs_.\" The statute was evidently a cheat, or at least designed as\nsuch, inasmuch as it virtually asserts the right of the king to appoint\nhis tools, under the name of \"justices,\" to try criminal cases, while it\n_disavows_ his right to appoint them under the name of \"sheriffs.\"\n\n   Millar says: \"When the king's bench came to have its usual residence\n   at Westminster, the sovereign was induced to _grant special\n   commissions, for trying particular crimes_, in such parts of the\n   country as were found most convenient; and this practice was\n   _gradually_ modelled into a regular appointment of certain\n   commissioners, empowered, at stated seasons, to perform circuits over\n   the kingdom, and to hold courts in particular towns, for the trial of\n   all sorts of crimes. These judges of the circuit, however, _never\n   obtained an ordinary jurisdiction, but continued, on every occasion,\n   to derive their authority from two special commissions_: that of\n   _oyer and terminer_, by which they were appointed to hear and\n   determine all treasons, felonies and misdemeanors, within certain\n   districts; and that of _gaol delivery_, by which they were directed\n   to try every prisoner confined in the gaols of the several towns\n   falling under their inspection.\"--_Millar's Hist. View of Eng. Gov._,\n   vol. 2, ch. 7, p. 282.\n\nThe following extract from Gilbert shows to what lengths of usurpation\nthe kings would sometimes go, in their attempts to get the judicial\npower out of the hands of the people, and entrust it to instruments of\ntheir own choosing:\n\n   \"From the time of the _Saxons_,\" (that is, from the commencement of\n   the reign of William the Conqueror,) \"till the reign of Edward the\n   first, (1272 to 1307,) the several county courts and sheriffs courts\n   did decline in their interest and authority. The methods by which\n   they were broken were two-fold. _First, by granting commissions to\n   the sheriffs by writ of_ JUSTICIES, _whereby the sheriff had a\n   particular jurisdiction granted him to be judge of a particular\n   cause, independent of the suitors of the county court_,\" (that is,\n   without a jury;) \"_and these commissions were after the Norman form,\n   by which (according to which) all power of judicature was immediately\n   derived from the king_.\"--_Gilbert on the Court of Chancery_, p. 1.\n\nThe several authorities now given show that it was the custom of the\n_Norman_ kings, not only to appoint persons to sit as judges in jury\ntrials, in criminal cases, but that they also commissioned individuals\nto sit in singular and particular cases, as occasion required; and that\nthey therefore readily _could_, and naturally _would_, and therefore\nundoubtedly _did_, commission individuals with a special view to their\nadaptation or capacity to procure such judgments as the kings desired.\n\nThe extract from Gilbert suggests also the usurpation of the _Norman_\nkings, in their assumption that _they_, (and _not the people_, as by the\n_common law_,) were the fountains of justice. It was only by virtue of\nthis illegal assumption that they could claim to appoint their tools to\nhold courts.\n\nAll these things show how perfectly lawless and arbitrary the kings were\nboth before and after Magna Carta, and how necessary to liberty was the\nprinciple of Magna Carta and the common law, that no person appointed by\nthe king should hold jury trials in criminal cases.]\n\n[Footnote 91: The opinions and decisions of judges and courts are\nundeserving of the least reliance, (beyond the intrinsic merit of the\narguments offered to sustain them,) and are unworthy even to be quoted\nas evidence of the law, _when those opinions or decisions are favorable\nto the power of the government, or unfavorable to the liberties of the\npeople_. The only reasons that their opinions, _when in favor of\nliberty_, are entitled to any confidence, are, first, that all\npresumptions of law are in favor of liberty; and, second, that the\nadmissions of all men, the innocent and the criminal alike, _when made\nagainst their own interests_, are entitled to be received as true,\nbecause it is contrary to human nature for a man to confess anything but\ntruth against himself.\n\nMore solemn farces, or more gross impostures, were never practised upon\nmankind, than are all, or very nearly all, those oracular responses by\nwhich courts assume to determine that certain statutes, in restraint of\nindividual liberty, are within the constitutional power of the\ngovernment, and are therefore valid and binding upon the people.\n\nThe reason why these courts are so intensely servile and corrupt, is,\nthat they are not only parts of, but the veriest creatures of, the very\ngovernments whose oppressions they are thus seeking to uphold. They\nreceive their offices and salaries from, and are impeachable and\nremovable by, the very governments upon whose acts they affect to sit in\njudgment. Of course, no one with his eyes open ever places himself in a\nposition so incompatible with the liberty of declaring his honest\nopinion, unless he do it with the intention of becoming a mere\ninstrument in the hands of the government for the execution of all its\noppressions.\n\nAs proof of this, look at the judicial history of England for the last\nfive hundred years, and of America from its settlement. In all that time\n(so far as I know, or presume) no bench of judges, (probably not even\nany single judge,) dependent upon the legislature that passed the\nstatute, has ever declared a single _penal_ statute invalid, on account\nof its being in conflict either with the common law, which the judges in\nEngland have been sworn to preserve, or with the written constitutions,\n(recognizing men's natural rights,) which the American judges were under\noath to maintain. Every oppression, every atrocity even, that has ever\nbeen enacted in either country, by the legislative power, in the shape\nof a criminal law, (or, indeed, in almost any other shape,) has been as\nsure of a sanction from the judiciary that was dependent upon, and\nimpeachable by, the legislature that enacted the law, as if there were a\nphysical necessity that the legislative enactment and the judicial\nsanction should go together. Practically speaking, the sum of their\ndecisions, all and singular, has been, that there are no limits to the\npower of the government, and that the people have no rights except what\nthe government pleases to allow to them.\n\nIt is extreme folly for a people to allow such dependent, servile, and\nperjured creatures to sit either in civil or criminal trials; but to\nallow them to sit in criminal trials, and judge of the people's\nliberties, is not merely fatuity,--it is suicide.]\n\n[Footnote 92: Coke, speaking of the word _bailiffs_, as used in the\nstatute of 1 _Westminster_, ch. 35, (1275,) says:\n\n   \"Here _bailiffs_ are taken for the _judges of the court_, as\n   manifestly appeareth hereby.\"--2 _Inst._, 229.\n\nCoke also says, \"It is a maxim in law, _aliquis non debet esse judex in\npropria causa_, (no one ought to be judge in his own cause;) and\ntherefore a fine levied before the _baylifes of Salop_ was reversed,\nbecause one of the _baylifes_ was party to the fine, _quia non potest\nesse judex et pars_,\" (because one cannot be _judge_ and party.)--_1\nInst._, 141 a.\n\nIn the statute of Gloucester, ch. 11 and 12, (1278,) \"the mayor and\n_bailiffs_ of London (undoubtedly chosen by the people, or at any rate\nnot appointed by the king) are manifestly spoken of as _judges_, or\nmagistrates, holding _jury_ trials, as follows:\n\n   _Ch. II._ \"It is provided, also, that if any man lease his tenement\n   in the city of London, for a term of years, and he to whom the\n   freehold belongeth causeth himself to be impleaded by collusion, and\n   maketh default after default, or cometh into court and giveth it up,\n   for to make the termor (lessee) lose his term, (lease,) and the\n   demandant hath his suit, so that the termor may recover by writ of\n   covenant; _the mayor and bailiffs may inquire by a good inquest_,\n   (_jury_,) in the presence of the termor and the demandant, whether\n   the demandant moved his plea upon good right that he had, or by\n   collusion, or fraud, to make the termor lose his term; and if it be\n   found by the inquest (jury) that the demandant moved his plea upon\n   good right that he had, the judgment shall be given forthwith; and if\n   it be found by the inquest (jury) that he impleaded him (self) by\n   fraud, to put the termor from his term, then shall the termor enjoy\n   his term, and the execution of judgment for the demandant shall be\n   suspended until the term be expired.\"--_6 Edward I._, ch. 11, (1278.)\n\n   Coke, in his commentary on this chapter, calls this court of \"the\n   mayor and _bailiffs_\" of London, \"_the court of the hustings, the\n   greatest and highest court in London;_\" and adds, \"other cities have\n   the like court, and so called, as York, Lincoln, Winchester, &c. Here\n   the city of London is named; but it appeareth by that which hath been\n   said out of Fleta, that this act extends to such cities and boroughs\n   privileged,--that is, such as have such privilege to hold plea as\n   London hath.\"--_2 Inst._, 322.\n\nThe 12th chapter of the same statute is in the following words, which\nplainly recognize the fact that \"the mayor and _bailiffs_ of London\" are\njudicial officers holding courts in London.\n\n   \"It is provided, also, that if a man, impleaded for a tenement in the\n   same city, (London,) doth vouch a foreigner to warranty, that he\n   shall come into the chancery, and have a writ to summon his warrantor\n   at a certain day before the justices of the bench, _and another writ\n   to the mayor and bailiffs of London, that they shall surcease_\n   (suspend proceedings) _in the matter that is before them by writ_,\n   until the plea of the warrantee be determined before the justices of\n   the bench; and when the plea at the bench shall be determined, then\n   shall he that is vouched be commanded to go into the city,\" (that is,\n   before \"the mayor and _bailiffs'_\" court,) \"to answer unto the chief\n   plea; and a writ shall be awarded at the suit of the demandant by the\n   justices _unto the mayor and bailiffs, that they shall proceed in the\n   plea_,\" &c.--_6 Edward I._, ch. 12, (1278.)\n\nCoke, in his commentary on this chapter, also speaks repeatedly of \"the\nmayor and _bailiffs_\" _as judges holding courts_; and also speaks of\nthis chapter as applicable not only to \"the citie of London, specially\nnamed for the cause aforesaid, but extended by equity to all other\nprivileged places,\" (that is, privileged to have a court of \"mayor and\n_bailiffs_,\") \"where foreign voucher is made, as to Chester, Durham,\nSalop,\" &c.--_2 Inst._, 325-7.\n\nBAILIE.--In Scotch law, a municipal magistrate, corresponding with the\nEnglish _alderman_.[96]--_Burrill's Law Dictionary_.\n\nBAILIFFE.--_Baillif._ Fr. A bailiff: a ministerial officer with duties\nsimilar to those of a sheriff.... _The judge of a court._ A municipal\nmagistrate, &c.--_Burrill's Law Dict._\n\nBAILIFF.... The word _bailiff_ is of Norman origin, and was applied in\nEngland, at an early period, (after the example, it is said, of the\nFrench,) to the chief magistrates of counties, or shires, such as the\nalderman, the reeve, or sheriff, and also of inferior jurisdictions,\nsuch as hundreds and wapentakes.--_Spelman, voc. Balivus; 1 Bl. Com._,\n344. _See Bailli_, _Ballivus_. The Latin _ballivus_ occurs, indeed, in\nthe laws of Edward the Confessor, but Spelman thinks it was introduced\nby a later hand. _Balliva_ (bailiwick) was the word formed from\n_ballivus_, to denote the extent of territory comprised within a\nbailiff's jurisdiction; and _bailiwick_ is still retained in writs and\nother proceedings, as the name of a sheriff's county.--_1 Bl. Com._,\n344. _See Balliva._ _The office of bailiff was at first strictly, though\nnot exclusively, a judicial one._ In France, the word had the sense of\nwhat Spelman calls _justitia tutelaris_. _Ballivus_ occurs frequently in\nthe _Regiam Majestatem_, in the sense of a _judge_.--_Spelman._ In its\nsense of a _deputy_, it was formerly applied, in England, to those\nofficers who, by virtue of a deputation, either from the sheriff or the\nlords of private jurisdictions, exercised within the hundred, or\nwhatever might be the limits of their bailiwick, certain _judicial_ and\nministerial functions. With the disuse of private and local\njurisdictions, the meaning of the term became commonly restricted to\nsuch persons as were deputed by the sheriff to assist him in the merely\nministerial portion of his duty; such as the summoning of juries, and\nthe execution of writs.--_Brande._ ... The word _bailiff_ is also\napplied in England to the chief magistrates of certain towns and\njurisdictions, to the keepers of castles, forests and other places, and\nto the stewards or agents of lords of manors.--_Burrill's Law Dict._\n\n\"BAILIFF, (from the Lat. _ballivus_; Fr. _baillif_, i.e., _Praefectus\nprovinciae_,) signifies an officer appointed for the administration of\njustice within a certain district. The office, as well as the name,\nappears to have been derived from the French,\" &c.,--_Brewster's\nEncyclopedia._\n\nMillar says, \"The French monarchs, about this period, were not content\nwith the power of receiving appeals from the several courts of their\nbarons. An expedient was devised of sending royal _bailiffs_ into\ndifferent parts of the kingdom, with a commission to take cognizance of\nall those causes in which the sovereign was interested, and in reality\nfor the purpose of abridging and limiting the subordinate jurisdiction\nof the neighboring feudal superiors. By an edict of Phillip Augustus, in\nthe year 1190, those _bailiffs_ were appointed in all the principal\ntowns of the kingdom.\"--_Millar's Hist. View of the Eng. Gov._, vol.\nii., ch. 3, p. 126.\n\n   \"BAILIFF-_office_.--Magistrates who formerly administered justice in\n   the parliaments or courts of France, answering to the English\n   sheriffs, as mentioned by Bracton.\"--_Bouvier's Law Dict._\n\n   \"There be several officers called _bailiffs_, whose offices and\n   employments seem quite different from each other.... The chief\n   magistrate, in divers ancient corporations, are called _bailiffs_, as\n   in Ipswich, Yarmouth, Colchester, &c. There are, likewise, officers\n   of the forest, who are termed bailiffs.\"--_1 Bacon's Abridgment_,\n   498-9.\n\n   \"BAILIFF signifies a keeper or superintendent, and is directly\n   derived from the French word _bailli_, which appears to come from the\n   word _balivus_, and that from _bagalus_, a Latin word signifying\n   generally a governor, tutor, or superintendent.... The French word\n   _bailli_ is thus explained by Richelet, (_Dictionaire_, &c.:)\n   _Bailli._--_He who in a province has the superintendence of justice,\n   who is the ordinary judge of the nobles_, who is their head for the\n   _ban_ and _arriere ban_,[97] and who maintains the right and property\n   of others against those who attack them.... All the various officers\n   who are called by this name, though differing as to the nature of\n   their employments, seem to have some kind of superintendence\n   intrusted to them by their superior.\"--_Political Dictionary._\n\n\"BAILIFF, _balivus_. From the French word _bayliff_, that is, _praefectus\nprovinciae_, and as the name, so the office itself was answerable to that\nof France, where there were eight parliaments, which were high courts\nfrom whence there lay no appeal, and within the precincts of the several\nparts of that kingdom which belonged to each parliament, _there were\nseveral provinces to which justice was administered by certain officers\ncalled bailiffs_; and in England we have several counties in which\njustice hath been, and still is, in small suits, administered to the\ninhabitants by the officer whom we now call _sheriff_, or _viscount_;\n(one of which names descends from the Saxons, the other from the\nNormans.) And, though the sheriff is not called _bailiff_, yet it was\nprobable that was one of his names also, because the county is often\ncalled _balliva_; as in the return of a writ, where the person is not\narrested, the sheriff saith, _infra-nominatus_, _A.B. non est inventus\nin balliva mea_, &c.; (the within named A.B. is not found in my\nbailiwick, &c.) And in the statute of Magna Carta, ch. 28, and 14 Ed. 3,\nch. 9, the word _bailiff_ seems to comprise as well sheriffs, as\nbailiffs of hundreds.\n\n\"_Bailies_, in Scotland, are magistrates of burghs, possessed of certain\njurisdictions, having the same power within their territory as sheriffs\nin the county....\n\n\"As England is divided into counties, so every county is divided into\nhundreds; within which, in ancient times, the people had justice\nadministered to them by the several officers of every hundred, which\nwere the _bailiffs_. And it appears by Bracton, (_lib. 3, tract_. 2, ch.\n34,) that _bailiffs_ of hundreds might anciently hold plea of appeal and\napprovers; but since that time the hundred courts, except certain\nfranchises, are swallowed in the county courts; and now the _bailiff's_\nname and office is grown into contempt, they being generally officers to\nserve writs, &c., within their liberties; though, in other respects, the\nname is still in good esteem, for the chief magistrates in divers towns\nare called _bailiffs_; and sometimes the persons to whom the king's\ncastles are committed are termed _bailiffs_, as the _bailiff_ of Dover\nCastle, &c.\n\n\"Of the ordinary _bailiffs_ there are several sorts, viz., _bailiffs_ of\nliberties; sheriffs' _bailiffs_; _bailiffs_ of lords of manors;\n_bailiffs_ of husbandry, &c....\n\n\"_Bailiffs_ of liberties or franchises are to be sworn to take\ndistresses, truly impanel jurors, make returns by indenture between them\nand sheriffs, &c....\n\n\"_Bailiffs of courts baron_ summon those courts, and execute the process\nthereof....\n\n\"Besides these, there are also _bailiffs of the forest_ ...\"--_Jacob's\nLaw Dict. Tomlin's do._\n\n\"BAILIWICK, _balliva_,--is not only taken for the county, but signifies\ngenerally that liberty which is exempted from the sheriff of the county,\nover which the lord of the liberty appointeth a _bailiff_, with such\npowers within his precinct as an under-sheriff exerciseth under the\nsheriff of the county; such as the _bailiff_ of Westminster.\"--_Jacob's\nLaw Dict. Tomlin's do._\n\n\"_A bailiff of a Leet, Court-baron, Manor, Balivus Letae, Baronis,\nManerii._--He is one that is appointed by the lord, or his steward,\nwithin every manor, to do such offices as appertain thereunto, as to\nsummon the court, warn the tenants and resiants; also, to summon the\nLeet and Homage, levy fines, and make distresses, &c., of which you may\nread at large in _Kitchen's Court-leet and Court-baron_.\"--_A Law\nDictionary, anonymous_, (_in Suffolk Law Library_.)\n\n\"BAILIFF.--In England an officer appointed by the sheriff. Bailiffs are\neither special, and appointed, for their adroitness, to arrest persons;\nor bailiffs of hundreds, who collect fines, summon juries, attend the\nassizes, and execute writs and processes. _The sheriff in England is the\nking's bailiff...._\n\n\"_The office of bailiff formerly was high and honorable in England, and\nofficers under that title on the continent are still invested with\nimportant functions._\"--_Webster._\n\n\"BAILLI, (Scotland.)--An alderman; a magistrate who is second in rank in\na royal burgh.\"--_Worcester._\n\n\"_Baili, or Bailiff._--(Sorte d'officier de justice.) A bailiff; a sort\nof magistrate.\"--_Boyer's French Dict._\n\n\"By some opinions, a _bailiff_, in Magna Carta, ch. 28, signifies _any\njudge_.\"--_Cunningham's Law Dict._\n\n\"BAILIFF.--In the court of the Greek emperors there was a grand\n_bajulos_, first tutor of the emperor's children. The superintendent of\nforeign merchants seems also to have been called _bajulos_; and, as he\nwas appointed by the Venetians, this title (balio) was transferred to\nthe Venetian ambassador. From Greece, the official _bajulos_\n(_ballivus_, _bailli_, in France; _bailiff_, in England,) was introduced\ninto the south of Europe, and denoted a superintendent; hence the eight\n_ballivi_ of the knights of St. John, which constitute its supreme\ncouncil. In France, the royal bailiffs were commanders of the militia,\nadministrators or stewards of the domains, _and judges of their\ndistricts_. In the course of time, only the first duty remained to the\nbailiff; hence he was _bailli d'epee_, _and laws were administered in\nhis name by a lawyer, as his deputy, lieutenant de robe_. The\nseigniories, with which high courts were connected, employed bailiffs,\nwho thus constituted, almost everywhere, _the lowest order of judges_.\nFrom the courts of the nobility, the appellation passed to the royal\ncourts; from thence to the parliaments. In the greater bailiwicks of\ncities of importance, Henry II. established a collegial constitution\nunder the name of _presidial courts_.... _The name of bailiff was\nintroduced into England with William I._ The counties were also called\n_bailiwicks_, (_ballivae_,) while the subdivisions were called\n_hundreds_; but, as the courts of the hundreds have long since ceased,\nthe English bailiffs are only a kind of subordinate officers of justice,\nlike the French _huissiers_. These correspond very nearly to the\nofficers called _constables_ in the United States. Every sheriff has\nsome of them under him, for whom he is answerable. In some cities the\nhighest municipal officer yet bears this name, as the high bailiff of\nWestminster. In London, the Lord Mayor is at the same time bailiff,\n(which title he bore before the present became usual,) _and administers,\nin this quality, the criminal jurisdiction of the city, in the court of\nold Bailey_, where there are, annually, eight sittings of the court, for\nthe city of London and the county of Middlesex. _Usually, the recorder\nof London supplies his place as judge._ In some instances the term\n_bailiff_, in England, is applied to the chief magistrates of towns, or\nto the commanders of particular castles, as that of Dover. The term\n_baillie_, in Scotland, is applied to a judicial police-officer, having\npowers very similar to those of justices of peace in the United\nStates.\"--_Encyclopaedia Americana._]\n\n[Footnote 93: Perhaps it may be said (and such, it has already been\nseen, is the opinion of Coke and others) that the chapter of Magna\nCarta, that \"no _bailiff_ from henceforth shall put any man to his open\nlaw, (put him on trial,) nor to an oath (that is, an oath of\nself-exculpation) upon his (the bailiff's) own accusation or testimony,\nwithout credible witnesses brought in to prove the charge,\" _is itself_\na \"provision in regard to the king's justices sitting in criminal\ntrials,\" and therefore implies that _they are to sit_ in such trials.\n\nBut, although the word _bailiff_ includes all _judicial_, as well as\nother, officers, and would therefore in this case apply to the king's\njustices, if they were to sit in criminal trials; yet this particular\nchapter of Magna Carta evidently does not contemplate \"_bailiffs_\" while\nacting in their _judicial_ capacity, (for they were not allowed to sit\nin criminal trials at all,) but only in the character of _witnesses_;\nand that the meaning of the chapter is, that the simple testimony\n(simplici loquela) of \"no bailiff,\" (of whatever kind,) unsupported by\nother and \"credible witnesses,\" shall be sufficient to put any man on\ntrial, or to his oath of self-exculpation.[98]\n\nIt will be noticed that the words of this chapter are _not_, \"no bailiff\n_of ours_,\"--that is, _of the king_,--as in some other chapters of Magna\nCarta; but simply \"no bailiff,\" &c. The prohibition, therefore, applies\nto all \"bailiffs,\"--to those chosen by the people, as well as those\nappointed by the king. And the prohibition is obviously founded upon the\nidea (a very sound one in that age certainly, and probably also in this)\nthat public officers (whether appointed by king or people) have\ngenerally, or at least frequently, too many interests and animosities\nagainst accused persons, to make it safe to convict any man on their\ntestimony alone.\n\nThe idea of Coke and others, that the object of this chapter was simply\nto forbid _magistrates_ to put a man on trial, when there were no\nwitnesses against him, but only the simple accusation or testimony of\nthe magistrates themselves, before whom he was to be tried, is\npreposterous; for that would be equivalent to supposing that magistrates\nacted in the triple character of judge, jury and witnesses, _in the same\ntrial_; and that, therefore, _in such cases_, they needed to be\nprohibited from condemning a man on their own accusation or testimony\nalone. But such a provision would have been unnecessary and senseless,\nfor two reasons; first, because the bailiffs or magistrates had no power\nto \"hold pleas of the crown,\" still less to try or condemn a man; that\npower resting wholly with the juries; second, because if bailiffs or\nmagistrates could try and condemn a man, without a jury, the prohibition\nupon their doing so upon their own accusation or testimony alone, would\ngive no additional protection to the accused, so long as these same\nbailiffs or magistrates were allowed to decide what weight should be\ngiven, _both to their own testimony and that of other witnesses_; for,\nif they wished to convict, they would of course decide that any\ntestimony, however frivolous or irrelevant, _in addition to their own_,\nwas sufficient. Certainly a magistrate could always procure witnesses\nenough to testify to something or other, which _he himself_ could decide\nto be corroborative of his own testimony. And thus the prohibition would\nbe defeated in fact, though observed in form.]\n\n[Footnote 94: In this chapter I have called the justices \"_presiding_\nofficers,\" solely for the want of a better term. They are not\n\"_presiding_ officers,\" in the sense of having any authority over the\njury; but are only assistants to, and teachers and servants of, the\njury. The foreman of the jury is properly the \"presiding officer,\" so\nfar as there is such an officer at all. The sheriff has no authority\nexcept over other persons than the jury.]\n\n[Footnote 95: In this extract, Palgrave seems to assume that the king\nhimself had a right to sit as judge, in _jury_ trials, in the _county_\ncourts, in both civil and criminal cases. I apprehend he had no such\npower at the _common law_, but only to sit in the trial of appeals, and\nin the trial of peers, and of civil suits in which peers were parties,\nand possibly in the courts of ancient demesne.]\n\n[Footnote 96: _Alderman_ was a title anciently given to various\n_judicial_ officers, as the Alderman of all England, Alderman of the\nKing, Alderman of the County, Alderman of the City or Borough, Alderman\nof the Hundred or Wapentake. These were all _judicial_ officers. See Law\nDictionaries.]\n\n[Footnote 97: \"_Ban and arriere ban_, a proclamation, whereby all that\nhold lands of the crown, (except some privileged officers and citizens,)\nare summoned to meet at a certain place in order to serve the king in\nhis wars, either personally, or by proxy.\"--_Boyer._]\n\n[Footnote 98: At the common law, parties, in both civil and criminal\ncases, were allowed to swear in their own behalf; and it will be so\nagain, if the true trial by jury should be reestablished.]\n\n\n\n\nCHAPTER VIII.\n\nTHE FREE ADMINISTRATION OF JUSTICE.\n\n\nThe free administration of justice was a principle of the common law;\nand it must necessarily be a part of every system of government which is\nnot designed to be an engine in the hands of the rich for the oppression\nof the poor.\n\nIn saying that the free administration of justice was a principle of the\ncommon law, I mean only that parties were subjected to no costs for\njurors, witnesses, writs, or other necessaries for the trial,\n_preliminary to the trial itself_. Consequently, no one could lose the\nbenefit of a trial, for the want of means to defray expenses. _But after\nthe trial_, the plaintiff or defendant was liable to be amerced, (by the\njury, of course,) for having troubled the court with the prosecution or\ndefence of an unjust suit.[99] But it is not likely that the losing\nparty was subjected to an amercement as a matter of course, but only in\nthose cases where the injustice of his cause was so evident as to make\nhim inexcusable in bringing it before the courts.\n\nAll the freeholders were required to attend the courts, that they might\nserve as jurors and witnesses, and do any other service that could\nlegally be required of them; and their attendance was paid for by the\nstate. In other words, their attendance and service at the courts were\npart of the rents which they paid the state for their lands.\n\nThe freeholders, who were thus required always to attend the courts,\nwere doubtless the only witnesses who were _usually_ required in _civil_\ncauses. This was owing to the fact that, in those days, when the people\nat large could neither write nor read, few contracts were put in\nwriting. The expedient adopted for proving contracts, was that of making\nthem in the presence of witnesses, who could afterwards testify to the\ntransactions. Most contracts in regard to lands were made at the courts,\nin the presence of the freeholders there assembled.[100]\n\nIn the king's courts it was specially provided by Magna Carta that\n\"justice and right\" should not be \"sold;\" that is, that the king should\ntake nothing from the parties for administering justice.\n\nThe oath of a party to the justice of his cause was all that was\nnecessary to entitle him to the benefit of the courts free of all\nexpense; (except the risk of being amerced after the trial, in case the\njury should think he deserved it.[101])\n\n_This principle of the free administration of justice connects itself\nnecessarily with the trial by jury, because a jury could not rightfully\ngive judgment against any man, in either a civil or criminal case, if\nthey had any reason to suppose he had been unable to procure his\nwitnesses._\n\nThe true trial by jury would also compel the free administration of\njustice from another necessity, viz., that of preventing private\nquarrels; because, unless the government enforced a man's rights and\nredressed his wrongs, _free of expense to him_, a jury would be bound to\nprotect him in taking the law into his own hands. A man has a natural\nright to enforce his own rights and redress his own wrongs. If one man\nowe another a debt, and refuse to pay it, the creditor has a natural\nright to seize sufficient property of the debtor, wherever he can find\nit, to satisfy the debt. If one man commit a trespass upon the person,\nproperty or character of another, the injured party has a natural right,\neither to chastise the aggressor, or to take compensation for the injury\nout of his property. But as the government is an impartial party as\nbetween these individuals, it is more likely to do _exact_ justice\nbetween them than the injured individual himself would do. The\ngovernment, also, having more power at its command, is likely to right a\nman's wrongs more peacefully than the injured party himself could do it.\nIf, therefore, the government will do the work of enforcing a man's\nrights, and redressing his wrongs, _promptly, and free of expense to\nhim_, he is under a moral obligation to leave the work in the hands of\nthe government; but not otherwise. When the government forbids him to\nenforce his own rights or redress his own wrongs, and deprives him of\nall means of obtaining justice, except on the condition of his employing\nthe government to obtain it for him, _and of paying the government for\ndoing it_, the government becomes itself the protector and accomplice of\nthe wrong-doer. If the government will forbid a man to protect his own\nrights, it is bound to do it for him, _free of expense to him_. And so\nlong as government refuses to do this, juries, if they knew their\nduties, would protect a man in defending his own rights.\n\nUnder the prevailing system, probably one half of the community are\nvirtually deprived of all protection for their rights, except what the\ncriminal law affords them. Courts of justice, for all civil suits, are\nas effectually shut against them, as though it were done by bolts and\nbars. Being forbidden to maintain their own rights by force,--as, for\ninstance, to compel the payment of debts,--and being unable to pay the\nexpenses of civil suits, they have no alternative but submission to many\nacts of injustice, against which the government is bound either to\nprotect them, _free of expense_, or allow them to protect themselves.\n\nThere would be the same reason in compelling a party to pay the judge\nand jury for their services, that there is in compelling him to pay the\nwitnesses, or any other _necessary_ charges.[102]\n\nThis compelling parties to pay the expenses of civil suits is one of the\nmany cases in which government is false to the fundamental principles on\nwhich free government is based. What is the object of government, but to\nprotect men's rights? On what principle does a man pay his taxes to the\ngovernment, except on that of contributing his proportion towards the\nnecessary cost of protecting the rights of all? Yet, when his own rights\nare actually invaded, the government, which he contributes to support,\ninstead of fulfilling its implied contract, becomes his enemy, and not\nonly refuses to protect his rights, (except at his own cost,) but even\nforbids him to do it himself.\n\nAll free government is founded on the theory of voluntary association;\nand on the theory that all the parties to it _voluntarily_ pay their\ntaxes for its support, on the condition of receiving protection in\nreturn. But the idea that any _poor_ man would voluntarily pay taxes to\nbuild up a government, which will neither protect his rights, (except at\na cost which he cannot meet,) nor suffer himself to protect them by such\nmeans as may be in his power, is absurd.\n\nUnder the prevailing system, a large portion of the lawsuits determined\nin courts, are mere contests of purses rather than of rights. And a\njury, sworn to decide causes \"according to the evidence\" produced, are\nquite likely, _for aught they themselves can know_, to be deciding\nmerely the comparative length of the parties' purses, rather than the\nintrinsic strength of their respective rights. Jurors ought to refuse to\ndecide a cause at all, except upon the assurance that all the evidence,\nnecessary to a full knowledge of the cause, is produced. This assurance\nthey can seldom have, unless the government itself produces all the\nwitnesses the parties desire.\n\nIn criminal cases, the atrocity of accusing a man of crime, and then\ncondemning him unless he prove his innocence at his own charges, is so\nevident that a jury could rarely, if ever, be justified in convicting a\nman under such circumstances.\n\nBut the free administration of justice is not only indispensable to the\nmaintenance of right between man and man; it would also promote\nsimplicity and stability in the laws. The mania for legislation would\nbe, in an important degree, restrained, if the government were compelled\nto pay the expenses of all the suits that grew out of it.\n\nThe free administration of justice would diminish and nearly extinguish\nanother great evil,--that of malicious _civil_ suits. It is an old\nsaying, that \"_multi litigant in foro, non ut aliquid lucrentur, sed ut\nvexant alios_.\" (Many litigate in court, not that they may gain\nanything, but that they may harass others.) Many men, from motives of\nrevenge and oppression, are willing to spend their own money in\nprosecuting a groundless suit, if they can thereby compel their victims,\nwho are less able than themselves to bear the loss, to spend money in\nthe defence. Under the prevailing system, in which the parties pay the\nexpenses of their suits, nothing but money is necessary to enable any\nmalicious man to commence and prosecute a groundless suit, to the\nterror, injury, and perhaps ruin, of another man. In this way, a court\nof justice, into which none but a conscientious _plaintiff_ certainly\nshould ever be allowed to enter, becomes an arena into which any rich\nand revengeful oppressor may drag any man poorer than himself, and\nharass, terrify, and impoverish him, to almost any extent. It is a\nscandal and an outrage, that government should suffer itself to be made\nan instrument, in this way, for the gratification of private malice. We\nmight nearly as well have no courts of justice, as to throw them open,\nas we do, for such flagitious uses. Yet the evil probably admits of no\nremedy except a free administration of justice. Under a free system,\nplaintiffs could rarely be influenced by motives of this kind; because\nthey could put their victim to little or no expense, _neither pending\nthe suit_, (which it is the object of the oppressor to do,) nor at its\ntermination. Besides, if the ancient common law practice should be\nadopted, of amercing a party for troubling the courts with groundless\nsuits, the prosecutor himself would, in the end, be likely to be amerced\nby the jury, in such a manner as to make courts of justice a very\nunprofitable place for a man to go to seek revenge.\n\nIn estimating the evils of this kind, resulting from the present system,\nwe are to consider that they are not, by any means, confined to the\nactual suits in which this kind of oppression is practised; but we are\nto include all those cases in which the fear of such oppression is used\nas a weapon to compel men into a surrender of their rights.\n\n[Footnote 99: _2 Sullivan Lectures_, 234-5. _3 Blackstone_, 274-5, 376.\nSullivan says that both plaintiffs and defendants were liable to\namercement. Blackstone speaks of plaintiffs being liable, without saying\nwhether defendants were so or not. What the rule really was I do not\nknow. There would seem to be some reason in allowing defendants to\ndefend themselves, _at their own charges_, without exposing themselves\nto amercement in case of failure.]\n\n[Footnote 100: When any other witnesses than freeholders were required\nin a civil suit, I am not aware of the manner in which their attendance\nwas procured; but it was doubtless done at the expense either of the\nstate or of the witnesses themselves. And it was doubtless the same in\ncriminal cases.]\n\n[Footnote 101: \"All claims were established in the first stage by the\noath of the plaintiff, except when otherwise specially directed by the\nlaw. The oath, by which any claim was supported, was called the\nfore-oath, or 'Praejuramentum,' and it was the foundation of his suit.\nOne of the cases which did not require this initiatory confirmation, was\nwhen cattle could be tracked into another man's land, and then the\nfoot-mark stood for the fore-oath.\"--_2 Palgrave's Rise and Progress_,\n&c., 114.]\n\n[Footnote 102: Among the necessary expenses of suits, should be reckoned\nreasonable compensation to counsel, for they are nearly or quite as\nimportant to the administration of justice, as are judges, jurors, or\nwitnesses; and the universal practice of employing them, both on the\npart of governments and of private persons, shows that their importance\nis generally understood. As a mere matter of economy, too, it would be\nwise for the government to pay them, rather than they should not be\nemployed; because they collect and arrange the testimony and the law\nbeforehand, so as to be able to present the whole case to the court and\njury intelligibly, and in a short space of time. Whereas, if they were\nnot employed, the court and jury would be under the necessity either of\nspending much more time than now in the investigation of causes, or of\ndespatching them in haste, and with little regard to justice. They would\nbe very likely to do the latter, thus defeating the whole object of the\npeople in establishing courts.\n\nTo prevent the abuse of this right, it should perhaps be left\ndiscretionary with the jury in each case to determine whether the\ncounsel should receive any pay--and, if any, how much--from the\ngovernment.]\n\n\n\n\nCHAPTER IX.\n\nTHE CRIMINAL INTENT.\n\n\nIt is a maxim of the common law that there can be no crime without a\ncriminal intent. And it is a perfectly clear principle, although one\nwhich judges have in a great measure overthrown in practice, that\n_jurors_ are to judge of the moral intent of an accused person, and hold\nhim guiltless, whatever his act, unless they find him to have acted with\na criminal intent; that is, with a design to do what he knew to be\ncriminal.\n\nThis principle is clear, because the question for a jury to determine\nis, whether the accused be _guilty_, or _not guilty_. _Guilt_ is a\npersonal quality of the actor,--not _necessarily_ involved in the act,\nbut depending also upon the intent or motive with which the act was\ndone. Consequently, the jury must find that he acted from a criminal\nmotive, before they can declare him _guilty_.\n\nThere is no moral justice in, nor any political necessity for, punishing\na man for any act whatever that he may have committed, if he have done\nit without any criminal intent. There can be no _moral justice_ in\npunishing for such an act, because, there having been no _criminal\nmotive_, there can have been no other motive which justice can take\ncognizance of, as demanding or justifying punishment. There can be no\n_political necessity_ for punishing, to warn against similar acts in\nfuture, because, if one man have injured another, however\nunintentionally, he is liable, and justly liable, to a _civil_ suit for\ndamages; and in this suit he will be compelled to make compensation for\nthe injury, notwithstanding his innocence of any intention to injure. He\nmust bear the consequences of his own act, instead of throwing them upon\nanother, however innocent he may have been of any intention to do\nwrong. And the damages he will have to pay will be a sufficient warning\nto him not to do the like act again.\n\nIf it be alleged that there are crimes against the public, (as treason,\nfor example, or any other resistance to government,) for which private\npersons can recover no damages, and that there is a political necessity\nfor punishing for such offences, even though the party acted\nconscientiously, the answer is,--the government must bear with all\nresistance that is not so clearly wrong as to give evidence of criminal\nintent. In other words, the government, in all its acts, must keep\nitself so _clearly_ within the limits of justice, as that twelve men,\ntaken at random, will all agree that it is in the right, or it must\nincur the risk of resistance, without any power to punish it. This is\nthe mode in which the trial by jury operates to prevent the government\nfrom falling into the hands of a party, or a faction, and to keep it\nwithin such limits as _all_, or substantially _all_, the people are\nagreed that it may occupy.\n\nThis necessity for a criminal intent, to justify conviction, is proved\nby the issue which the jury are to try, and the verdict they are to\npronounce. The \"issue\" they are to try is, \"_guilty_\" or \"_not guilty_.\"\nAnd those are the terms they are required to use in rendering their\nverdicts. But it is a plain falsehood to say that a man is \"_guilty_,\"\nunless he have done an act which he knew to be criminal.\n\nThis necessity for a criminal intent--in other words, for _guilt_--as a\npreliminary to conviction, makes it impossible that a man can be\nrightfully convicted for an act that is intrinsically innocent, though\nforbidden by the government; because guilt is an intrinsic quality of\nactions and motives, and not one that can be imparted to them by\narbitrary legislation. All the efforts of the government, therefore, to\n\"_make offences by statute_,\" out of acts that are not criminal by\nnature, must necessarily be ineffectual, unless a jury will declare a\nman \"_guilty_\" for an act that is really innocent.\n\nThe corruption of judges, in their attempts to uphold the arbitrary\nauthority of the government, by procuring the conviction of individuals\nfor acts innocent in themselves, and forbidden only by some tyrannical\nstatute, and the commission of which therefore indicates no criminal\nintent, is very apparent.\n\nTo accomplish this object, they have in modern times held it to be\nunnecessary that indictments should charge, as by the common law they\nwere required to do, that an act was done \"_wickedly_,\" \"_feloniously_,\"\n\"_with malice aforethought_,\" or in any other manner that implied a\ncriminal intent, without which there can be no criminality; but that it\nis sufficient to charge simply that it was done \"_contrary to the form\nof the statute in such case made and provided_.\" This form of indictment\nproceeds plainly upon the assumption that the government is absolute,\nand that it has authority to prohibit any act it pleases, however\ninnocent in its nature the act may be. Judges have been driven to the\nalternative of either sanctioning this new form of indictment, (which\nthey never had any constitutional right to sanction,) or of seeing the\nauthority of many of the statutes of the government fall to the ground;\nbecause the acts forbidden by the statutes were so plainly innocent in\ntheir nature, that even the government itself had not the face to allege\nthat the commission of them implied or indicated any criminal intent.\n\nTo get rid of the necessity of showing a criminal intent, and thereby\nfurther to enslave the people, by reducing them to the necessity of a\nblind, unreasoning submission to the arbitrary will of the government,\nand of a surrender of all right, on their own part, to judge what are\ntheir constitutional and natural rights and liberties, courts have\ninvented another idea, which they have incorporated among the pretended\n_maxims_, upon which they act in criminal trials, viz., that \"_ignorance\nof the law excuses no one_.\" As if it were in the nature of things\npossible that there could be an excuse more absolute and complete. What\nelse than ignorance of the law is it that excuses persons under the\nyears of discretion, and men of imbecile minds? What else than ignorance\nof the law is it that excuses judges themselves for all their erroneous\ndecisions? Nothing. They are every day committing errors, which would be\ncrimes, but for their ignorance of the law. And yet these same judges,\nwho claim to be _learned_ in the law, and who yet could not hold their\noffices for a day, but for the allowance which the law makes for their\nignorance, are continually asserting it to be a \"maxim\" that \"ignorance\nof the law excuses no one;\" (by which, of course, they really mean that\nit excuses no one but themselves; and especially that it excuses no\n_unlearned_ man, who comes before them charged with crime.)\n\nThis preposterous doctrine, that \"ignorance of the law excuses no one,\"\nis asserted by courts because it is an indispensable one to the\nmaintenance of absolute power in the government. It is indispensable for\nthis purpose, because, if it be once admitted that the people _have_ any\nrights and liberties which the government cannot lawfully take from\nthem, then the question arises in regard to every statute of the\ngovernment, whether it be law, or not; that is, whether it infringe, or\nnot, the rights and liberties of the people. Of this question every man\nmust of course judge according to the light in his own mind. And no man\ncan be convicted unless the jury find, not only that the statute is\n_law_,--that it does _not_ infringe the rights and liberties of the\npeople,--but also that it was so clearly law, so clearly consistent with\nthe rights and liberties of the people, as that the individual himself,\nwho transgressed it, _knew it to be so_, and therefore had no moral\nexcuse for transgressing it. Governments see that if ignorance of the\nlaw were allowed to excuse a man for any act whatever, it must excuse\nhim for transgressing all statutes whatsoever, which he himself thinks\ninconsistent with his rights and liberties. But such a doctrine would of\ncourse be inconsistent with the maintenance of arbitrary power by the\ngovernment; and hence governments will not allow the plea, although they\nwill not confess their true reasons for disallowing it.\n\nThe only reasons, (if they deserve the name of reasons), that I ever\nknew given for the doctrine that ignorance of the law excuses no one,\nare these:\n\n   1. \"The reason for the maxim is that of necessity. It prevails, 'not\n   that all men know the law, but because it is an excuse which every\n   man will make, and no man can tell how to confute him.'--_Selden_,\n   (as quoted in the 2d edition of _Starkie on Slander_, Prelim. Disc.,\n   p. 140, note.)\"--_Law Magazine_, (_London_,) vol. 27, p. 97.\n\nThis reason impliedly admits that ignorance of the law is,\n_intrinsically_, an ample and sufficient excuse for a crime; and that\nthe excuse ought to be allowed, if the fact of ignorance could but be\nascertained. But it asserts that this fact is incapable of being\nascertained, and that therefore there is a necessity for punishing the\nignorant and the knowing--that is, the innocent and the guilty--without\ndiscrimination.\n\nThis reason is worthy of the doctrine it is used to uphold; as if a plea\nof ignorance, any more than any other plea, must necessarily be believed\nsimply because it is urged; and as if it were not a common and every-day\npractice of courts and juries, in both civil and criminal cases, to\ndetermine the mental capacity of individuals; as, for example, to\ndetermine whether they are of sufficient mental capacity to make\nreasonable contracts; whether they are lunatic; whether they are\n_compotes mentis_, \"of sound mind and memory,\" &c. &c. And there is\nobviously no more difficulty in a jury's determining whether an accused\nperson knew the law in a criminal case, than there is in determining any\nof these other questions that are continually determined in regard to a\nman's mental capacity. For the question to be settled by the jury is not\nwhether the accused person knew the particular _penalty_ attached to his\nact, (for at common law no one knew what penalty a _jury_ would attach\nto an offence,) but whether he knew that his act was _intrinsically\ncriminal_. If it were _intrinsically criminal_, it was criminal at\ncommon law. If it was not intrinsically criminal, it was not criminal at\ncommon law. (At least, such was the general principle of the common law.\nThere may have been exceptions in practice, owing to the fact that the\nopinions of men, as to what was intrinsically criminal, may not have\nbeen in all cases correct.)\n\nA jury, then, in judging whether an accused person knew his act to be\nillegal, were bound first to use their own judgments, as to whether the\nact were _intrinsically_ criminal. If their own judgments told them the\nact was _intrinsically_ and _clearly_ criminal, they would naturally and\nreasonably infer that the accused also understood that it was\nintrinsically criminal, (and consequently illegal,) unless it should\nappear that he was either below themselves in the scale of intellect, or\nhad had less opportunities of knowing what acts were criminal. In\nshort, they would judge, from any and every means they might have of\njudging; and if they had any reasonable doubt that he knew his act to be\ncriminal in itself, they would be bound to acquit him.\n\nThe second reason that has been offered for the doctrine that ignorance\nof the law excuses no one, is this:\n\n   \"Ignorance of the municipal law of the kingdom, or of the penalty\n   thereby inflicted on offenders, doth not excuse any that is of the\n   age of discretion and compos mentis, from the penalty of the breach\n   of it; because every person, of the age of discretion and compos\n   mentis, _is bound to know the law_, and presumed to do so.\n   _Ignorantia eorum, quae quis scire tenetur non excusat_.\" (Ignorance\n   of those things which every one is bound to know, does not\n   excuse.)--_1 Hale's Pleas of the Crown_, 42. _Doctor and Student,\n   Dialog. 2_, ch. 46. _Law Magazine_, (_London_,) vol. 27, p. 97.\n\nThe sum of this reason is, that ignorance of the law excuses no one,\n(who is of the age of discretion and is compos mentis,) because every\nsuch person \"_is bound to know the law_.\" But this is giving no reason\nat all for the doctrine, since saying that a man \"is bound to know the\nlaw,\" is only saying, _in another form_, that \"ignorance of the law does\nnot excuse him.\" There is no difference at all in the two ideas. To say,\ntherefore, that \"ignorance of the law excuses no one, _because_ every\none is bound to know the law,\" is only equivalent to saying that\n\"ignorance of the law excuses no one, _because_ ignorance of the law\nexcuses no one.\" It is merely reaesserting the doctrine, without giving\nany reason at all.\n\nAnd yet these reasons, which are really no reasons at all, are the only\nones, so far as I know, that have ever been offered for this absurd and\nbrutal doctrine.\n\nThe idea suggested, that \"the age of discretion\" determines the guilt of\na person,--that there is a particular age, prior to which _all_ persons\nalike should be held incapable of knowing _any_ crime, and subsequent to\nwhich _all_ persons alike should be held capable of knowing _all_\ncrimes,--is another of this most ridiculous nest of ideas. All mankind\nacquire their knowledge of crimes, as they do of other things,\n_gradually_. Some they learn at an early age; others not till a later\none. One individual acquires a knowledge of crimes, as he does of\narithmetic, at an earlier age than others do. And to apply the same\npresumption to all, on the ground of age alone, is not only gross\ninjustice, but gross folly. A universal presumption might, with nearly\nor quite as much reason, be founded upon weight, or height, as upon\nage.[103]\n\nThis doctrine, that \"ignorance of the law excuses no one,\" is constantly\nrepeated in the form that \"every one is bound to know the law.\" The\ndoctrine is true in civil matters, especially in contracts, so far as\nthis: that no man, who has the _ordinary_ capacity to make reasonable\ncontracts, can escape the consequences of his own agreement, on the\nground that he did not know the law applicable to it. When a man makes a\ncontract, he gives the other party rights; and he must of necessity\njudge for himself, and take his own risk, as to what those rights\nare,--otherwise the contract would not be binding, and men could not\nmake contracts that would convey rights to each other. Besides, the\ncapacity to make reasonable contracts, _implies and includes_ a\ncapacity to form a reasonable judgment as to the law applicable to them.\nBut in _criminal_ matters, where the question is one of punishment, or\nnot; where no second party has acquired any right to have the crime\npunished, unless it were committed with criminal intent, (but only to\nhave it compensated for by damages in a civil suit;) and when the\ncriminal intent is the only moral justification for the punishment, the\nprinciple does not apply, and a man is bound to know the law _only as\nwell as he reasonably may_. The criminal law requires neither\nimpossibilities nor extraordinaries of any one. It requires only\nthoughtfulness and a good conscience. It requires only that a man fairly\nand properly use the judgment he possesses, and the means he has of\nlearning his duty. It requires of him only the same care to know his\nduty in regard to the law, that he is morally bound to use in other\nmatters of equal importance. _And this care it does require of him._ Any\nignorance of the law, therefore, that is unnecessary, or that arises\nfrom indifference or disregard of one's duty, is no excuse. An accused\nperson, therefore, may be rightfully held responsible for such a\nknowledge of the law as is common to men in general, having no greater\nnatural capacities than himself, and no greater opportunities for\nlearning the law. And he can rightfully be held to no greater knowledge\nof the law than this. To hold him responsible for a greater knowledge of\nthe law than is common to mankind, when other things are equal, would be\ngross injustice and cruelty. The mass of mankind can give but little of\ntheir attention to acquiring a knowledge of the law. Their other duties\nin life forbid it. Of course, they cannot investigate abstruse or\ndifficult questions. All that can rightfully be required of each of\nthem, then, is that he exercise such a candid and conscientious judgment\nas it is common for mankind generally to exercise in such matters. If he\nhave done this, it would be monstrous to punish him criminally for his\nerrors; errors not of conscience, but only of judgment. It would also be\ncontrary to the first principles of a free government (that is, a\ngovernment formed by voluntary association) to punish men in such cases,\nbecause it would be absurd to suppose that any man would voluntarily\nassist to establish or support a government that would punish himself\nfor acts which he himself did not know to be crimes. But a man may\nreasonably unite with his fellow-men to maintain a government to punish\nthose acts which he himself considers criminal, and may reasonably\nacquiesce in his own liability to be punished for such acts. As those\nare the only grounds on which any one can be supposed to render any\nvoluntary support to a government, it follows that a government formed\nby voluntary association, and of course having no powers except such as\n_all_ the associates have consented that it may have, can have no power\nto punish a man for acts which he did not himself know to be criminal.\n\nThe safety of society, which is the only object of the criminal law,\nrequires only that those acts _which are understood by mankind at large\nto be intrinsically criminal_, should be punished as crimes. The\nremaining few (if there are any) may safely be left to go unpunished.\nNor does the safety of society require that any individuals, other than\nthose who have sufficient mental capacity to understand that their acts\nare criminal, should be criminally punished. All others may safely be\nleft to their liability, under the _civil_ law, to compensate for their\nunintentional wrongs.\n\nThe only real object of this absurd and atrocious doctrine, that\n\"ignorance of the law (that is, of crime) excuses no one,\" and that\n\"every one is bound to know the _criminal_ law,\" (that is, bound to know\nwhat is a crime,) is to maintain an entirely arbitrary authority on the\npart of the government, and to deny to the people all right to judge for\nthemselves what their own rights and liberties are. In other words, the\nwhole object of the doctrine is to deny to the people themselves all\nright to judge what statutes and other acts of the government are\nconsistent or inconsistent with their own rights and liberties; and thus\nto reduce the people to the condition of mere slaves to a despotic\npower, such as the people themselves would never have voluntarily\nestablished, and the justice of whose laws the people themselves cannot\nunderstand.\n\nUnder the true trial by jury all tyranny of this kind would be\nabolished. A jury would not only judge what acts were really criminal,\nbut they would judge of the mental capacity of an accused person, and of\nhis opportunities for understanding the true character of his conduct.\nIn short, they would judge of his moral intent from all the\ncircumstances of the case, and acquit him, if they had any reasonable\ndoubt that he knew that he was committing a crime.[104]\n\n[Footnote 103: This presumption, founded upon age alone, is as absurd in\ncivil matters as in criminal. What can be more entirely ludicrous than\nthe idea that all men (not manifestly imbecile) become mentally\ncompetent to make all contracts whatsoever on the day they become\ntwenty-one years of age?--and that, previous to that day, no man becomes\ncompetent to make any contract whatever, except for the present supply\nof the most obvious wants of nature? In reason, a man's _legal_\ncompetency to make _binding_ contracts, in any and every case whatever,\ndepends wholly upon his _mental_ capacity to make _reasonable_ contracts\nin each particular case. It of course requires more capacity to make a\nreasonable contract in some cases than in others. It requires, for\nexample, more capacity to make a reasonable contract in the purchase of\na large estate, than in the purchase of a pair of shoes. But the mental\ncapacity to make a reasonable contract, in any particular case, is, in\nreason, the only legal criterion of the legal competency to make a\nbinding contract in that case. The age, whether more or less than\ntwenty-one years, is of no legal consequence whatever, except that it is\nentitled to some consideration as _evidence of capacity_.\n\nIt may be mentioned, in this connection, that the rules that prevail,\nthat every man is entitled to freedom from parental authority at\ntwenty-one years of age, and no one before that age, are of the same\nclass of absurdities with those that have been mentioned. The only\nground on which a parent is ever entitled to exercise authority over his\nchild, is that the child is incapable of taking reasonable care of\nhimself. The child would be entitled to his freedom from his birth, if\nhe were at that time capable of taking reasonable care of himself. Some\nbecome capable of taking care of themselves at an earlier age than\nothers. And whenever any one becomes capable of taking reasonable care\nof himself, and not until then, he is entitled to his freedom, be his\nage more or less.\n\nThese principles would prevail under the true trial by jury, the jury\nbeing the judges of the capacity of every individual whose capacity\nshould be called in question.]\n\n[Footnote 104: In contrast to the doctrines of the text, it may be\nproper to present more distinctly the doctrines that are maintained by\njudges, and that prevail in courts of justice.\n\nOf course, no judge, either of the present day, or perhaps within the\nlast five hundred years, has admitted the right of a jury to judge of\nthe _justice_ of a law, or to hold any law invalid for its injustice.\nEvery judge asserts the power of the government to punish for acts that\nare intrinsically innocent, and which therefore involve or evince no\ncriminal intent. To accommodate the administration of law to this\nprinciple, all judges, so far as I am aware, hold it to be unnecessary\nthat an indictment should charge, or that a jury should find, that an\nact was done with a criminal intent, except in those cases where the act\nis _malum in se_,--criminal in itself. In all other cases, so far as I\nam aware, they hold it sufficient that the indictment charge, and\nconsequently that the jury find, simply that the act was done \"contrary\nto the form of the statute in such case made and provided;\" in other\nwords, contrary to the orders of the government.\n\nAll these doctrines prevail universally among judges, and are, I think,\nuniformly practised upon in courts of justice; and they plainly involve\nthe most absolute despotism on the part of the government.\n\nBut there is still another doctrine that extensively, and perhaps most\ngenerally, prevails in practice, although judges are not agreed in\nregard to its soundness. It is this: that it is not even necessary that\nthe jury should see or know, _for themselves_, what the law _is_ that is\ncharged to have been violated; nor to see or know, _for themselves_,\nthat the act charged was in violation of any law whatever;--but that it\nis sufficient that they be simply _told by the judge_ that any act\nwhatever, charged in an indictment, is in violation of law, and that\nthey are then bound blindly to receive the declaration as true, and\nconvict a man accordingly, if they find that he has done the act\ncharged.\n\nThis doctrine is adopted by many among the most eminent judges, and the\nreasons for it are thus given by Lord Mansfield:\n\n   \"They (the jury) do not know, and are not presumed to know, the law.\n   They are not sworn to decide the law;[105] they are not required to\n   do it.... The jury ought not to assume the jurisdiction of law. They\n   do not know, and are not presumed to know, anything of the matter.\n   They do not understand the language in which it is conceived, or the\n   meaning of the terms. They have no rule to go by but their passions\n   and wishes.\"--_3 Term Rep._, 428, note.\n\nWhat is this but saying that the people, who are supposed to be\nrepresented in juries, and who institute and support the government, (of\ncourse for the protection of their own rights and liberties, _as they\nunderstand them_, for plainly no other motive can be attributed to\nthem,) are really the slaves of a despotic power, whose arbitrary\ncommands even they are not supposed competent to understand, but for the\ntransgression of which they are nevertheless to be punished as\ncriminals?\n\nThis is plainly the sum of the doctrine, because the jury are the peers\n(equals) of the accused, and are therefore supposed to know the law as\nwell as he does, and as well as it is known by the people at large. If\n_they_ (the jury) are not presumed to know the law, neither the accused\nnor the people at large can be presumed to know it. Hence, it follows\nthat one principle of the _true_ trial by jury is, that no accused\nperson shall be held responsible for any other or greater knowledge of\nthe law than is common to his political equals, who will generally be\nmen of nearly similar condition in life. But the doctrine of Mansfield\nis, that the body of the people, from whom jurors are taken, are\nresponsible to a law, _which it is agreed they cannot understand_. What\nis this but despotism?--and not merely despotism, but insult and\noppression of the intensest kind?\n\nThis doctrine of Mansfield is the doctrine of all who deny the right of\njuries to judge of the law, although all may not choose to express it in\nso blunt and unambiguous terms. But the doctrine evidently admits of no\nother interpretation or defence.]\n\n[Footnote 105: This declaration of Mansfield, that juries in England\n\"are not sworn to decide the law\" in criminal cases, is a plain\nfalsehood. They are sworn to try the whole case at issue between the\nking and the prisoner, and that includes the law as well as the fact.\nSee _juror's oath_, page 86.]\n\n\n\n\nCHAPTER X.\n\nMORAL CONSIDERATIONS FOR JURORS.\n\n\nThe trial by jury must, if possible, be construed to be such that a man\ncan rightfully sit in a jury, and unite with his fellows in giving\njudgment. But no man can rightfully do this, unless he hold in his own\nhand alone a veto upon any judgment or sentence whatever to be rendered\nby the jury against a defendant, which veto he must be permitted to use\naccording to his own discretion and conscience, and not bound to use\naccording to the dictation of either legislatures or judges.\n\nThe prevalent idea, that a juror may, at the mere dictation of a\nlegislature or a judge, and without the concurrence of his own\nconscience or understanding, declare a man \"_guilty_,\" and thus in\neffect license the government to punish him; and that the legislature or\nthe judge, and not himself, has in that case all the moral\nresponsibility for the correctness of the principles on which the\njudgment was rendered, is one of the many gross impostures by which it\ncould hardly have been supposed that any sane man could ever have been\ndeluded, but which governments have nevertheless succeeded in inducing\nthe people at large to receive and act upon.\n\nAs a moral proposition, it is perfectly self-evident that, unless juries\nhave all the legal rights that have been claimed for them in the\npreceding chapters,--that is, the rights of judging what the law is,\nwhether the law be a just one, what evidence is admissible, what weight\nthe evidence is entitled to, whether an act were done with a criminal\nintent, and the right also to _limit_ the sentence, free of all\ndictation from any quarter,--they have no _moral_ right to sit in the\ntrial at all, and cannot do so without making themselves accomplices in\nany injustice that they may have reason to believe may result from\ntheir verdict. It is absurd to say that they have no moral\nresponsibility for the use that may be made of their verdict by the\ngovernment, when they have reason to suppose it will be used for\npurposes of injustice.\n\nIt is, for instance, manifestly absurd to say that jurors have no moral\nresponsibility for the enforcement of an unjust law, when they consent\nto render a verdict of _guilty_ for the transgression of it; which\nverdict they know, or have good reason to believe, will be used by the\ngovernment as a justification for inflicting a penalty.\n\nIt is absurd, also, to say that jurors have no moral responsibility for\na punishment inflicted upon a man _against law_, when, at the dictation\nof a judge as to what the law is, they have consented to render a\nverdict against their own opinions of the law.\n\nIt is absurd, too, to say that jurors have no moral responsibility for\nthe conviction and punishment of an innocent man, when they consent to\nrender a verdict against him on the strength of evidence, or laws of\nevidence, dictated to them by the court, if any evidence or laws of\nevidence have been excluded, which _they_ (the jurors) think ought to\nhave been admitted in his defence.\n\nIt is absurd to say that jurors have no moral responsibility for\nrendering a verdict of \"_guilty_\" against a man, for an act which he did\nnot know to be a crime, and in the commission of which, therefore, he\ncould have had no criminal intent, in obedience to the instructions of\ncourts that \"ignorance of the law (that is, of crime) excuses no one.\"\n\nIt is absurd, also, to say that jurors have no moral responsibility for\nany cruel or unreasonable _sentence_ that may be inflicted even upon a\n_guilty_ man, when they consent to render a verdict which they have\nreason to believe will be used by the government as a justification for\nthe infliction of such sentence.\n\nThe consequence is, that jurors must have the whole case in their hands,\nand judge of law, evidence, and sentence, or they incur the moral\nresponsibility of accomplices in any injustice which they have reason to\nbelieve will be done by the government on the authority of their\nverdict.\n\nThe same principles apply to civil cases as to criminal. If a jury\nconsent, at the dictation of the court, as to either law or evidence, to\nrender a verdict, on the strength of which they have reason to believe\nthat a man's property will be taken from him and given to another,\nagainst their own notions of justice, they make themselves morally\nresponsible for the wrong.\n\nEvery man, therefore, ought to refuse to sit in a jury, and to take the\noath of a juror, unless the form of the oath be such as to allow him to\nuse his own judgment, on every part of the case, free of all dictation\nwhatsoever, and to hold in his own hand a veto upon any verdict that can\nbe rendered against a defendant, and any sentence that can be inflicted\nupon him, even if he be guilty.\n\nOf course, no man can rightfully take an oath as juror, to try a case\n\"according to law,\" (if by law be meant anything other than his own\nideas of justice,) nor \"according to the law and the evidence, _as they\nshall be given him_.\" Nor can he rightfully take an oath even to try a\ncase \"_according to the evidence_,\" because in all cases he may have\ngood reason to believe that a party has been unable to produce all the\nevidence legitimately entitled to be received. The only oath which it\nwould seem that a man can rightfully take as juror, in either a civil or\ncriminal case, is, that he \"will try the case _according to his\nconscience_.\" Of course, the form may admit of variation, but this\nshould be the substance. Such, we have seen, were the ancient common law\noaths.\n\n\n\n\nCHAPTER XI.\n\nAUTHORITY OF MAGNA CARTA.\n\n\nProbably no political compact between king and people was ever entered\ninto in a manner to settle more authoritatively the fundamental law of a\nnation, than was Magna Carta. Probably no people were ever more united\nand resolute in demanding from their king a definite and unambiguous\nacknowledgment of their rights and liberties, than were the English at\nthat time. Probably no king was ever more completely stripped of all\npower to maintain his throne, and at the same time resist the demands of\nhis people, than was John on the 15th day of June, 1215. Probably no\nking ever consented, more deliberately or explicitly, to hold his throne\nsubject to specific and enumerated limitations upon his power, than did\nJohn when he put his seal to the Great Charter of the Liberties of\nEngland. And if any political compact between king and people was ever\nvalid to settle the liberties of the people, or to limit the power of\nthe crown, that compact is now to be found in Magna Carta. If,\ntherefore, the constitutional authority of Magna Carta had rested solely\nupon the compact of John with his people, that authority would have been\nentitled to stand forever as the supreme law of the land, unless revoked\nby the will of the people themselves.\n\nBut the authority of Magna Carta does not rest alone upon the compact\nwith _John_. When, in the next year, (1216,) his son, Henry III., came\nto the throne, the charter was ratified by him, and again in 1217, and\nagain in 1225, in substantially the same form, and especially without\nallowing any new powers, legislative, judicial, or executive, to the\nking or his judges, and without detracting in the least from the powers\nof the jury. And from the latter date to this, the charter has remained\nunchanged.\n\nIn the course of two hundred years the charter was confirmed by Henry\nand his successors more than thirty times. And although they were guilty\nof numerous and almost continual breaches of it, and were constantly\nseeking to evade it, yet such were the spirit, vigilance and courage of\nthe nation, that the kings held their thrones only on the condition of\ntheir renewed and solemn promises of observance. And it was not until\n1429, (as will be more fully shown hereafter,) when a truce between\nthemselves, and a formal combination against the mass of the people, had\nbeen entered into, by the king, the nobility, and the \"_forty shilling\nfreeholders_,\" (a class whom Mackintosh designates as \"_a few\nfreeholders then accounted wealthy_,\"[106]) by the exclusion of all\nothers than such freeholders from all voice in the election of knights\nto represent the counties in the House of Commons, that a repetition of\nthese confirmations of Magna Carta ceased to be demanded and\nobtained.[107]\n\nThe terms and the formalities of some of these \"confirmations\" make them\nworthy of insertion at length.\n\nHume thus describes one which took place in the 38th year of Henry III.\n(1253):\n\n   \"But as they (the barons) had experienced his (the king's) frequent\n   breach of promise, they required that he should ratify the Great\n   Charter in a manner still more authentic and solemn than any which he\n   had hitherto employed. All the prelates and abbots were assembled.\n   They held burning tapers in their hands. The Great Charter was read\n   before them. They denounced the sentence of excommunication against\n   every one who should thenceforth violate that fundamental law. They\n   threw their tapers on the ground, and exclaimed, _May the soul of\n   every one who incurs this sentence so stink and corrupt in hell!_ The\n   king bore a part in this ceremony, and subjoined, 'So help me God! I\n   will keep all these articles inviolate, as I am a man, as I am a\n   Christian, as I am a knight, and as I am a king crowned and\n   anointed.'\"--_Hume_, ch. 12. See also _Blackstone's Introd. to the\n   Charters. Black. Law Tracts_, Oxford ed., p. 332. _Mackintosh's Hist.\n   of Eng._, ch. 3. _Lardner's Cab. Cyc._, vol. 45, p. 233-4.\n\nThe following is the form of \"the sentence of excommunication\" referred\nto by Hume:\n\n   \"_The Sentence of Curse, Given by the Bishops, against the Breakers\n   of the Charters._\n\n   \"The year of our Lord a thousand two hundred and fifty-three, the\n   third day of May, in the great Hall of the King at Westminster, _in\n   the presence, and by the assent, of the Lord Henry, by the Grace of\n   God King of England_, and the Lords Richard, Earl of Cornwall, his\n   brother, Roger (Bigot) Earl of Norfolk and Suffolk, marshal of\n   England, Humphrey, Earl of Hereford, Henry, Earl of Oxford, John,\n   Earl of Warwick, and other estates of the Realm of England: We,\n   Boniface, by the mercy of God Archbishop of Canterbury, Primate of\n   all England, F. of London, H. of Ely, S. of Worcester, E. of Lincoln,\n   W. of Norwich, P. of Hereford, W. of Salisbury, W. of Durham, R. of\n   Exeter, M. of Carlisle, W. of Bath, E. of Rochester, T. of Saint\n   David's, Bishops, apparelled in Pontificals, with tapers burning,\n   against the breakers of the Church's Liberties, and of the Liberties\n   or free customs of the Realm of England, and especially of those\n   which are contained in the Charter of the Common Liberties of the\n   Realm, and the Charter of the Forest, have solemnly denounced the\n   sentence of Excommunication in this form. By the authority of\n   Almighty God, the Father, the Son, and the Holy Ghost, and of the\n   glorious Mother of God, and perpetual Virgin Mary, of the blessed\n   Apostles Peter and Paul, and of all apostles, of the blessed Thomas,\n   Archbishop and Martyr, and of all martyrs, of blessed Edward of\n   England, and of all Confessors and virgins, and of all the saints of\n   heaven: We excommunicate, accurse, and from the thresholds\n   (liminibus) of our Holy Mother the Church, We sequester, all those\n   that hereafter willingly and maliciously deprive or spoil the Church\n   of her right: And all those that by any craft or wiliness do violate,\n   break, diminish, or change the Church's Liberties, or the ancient\n   approved customs of the Realm, and especially the Liberties and free\n   Customs contained in the Charters of the Common Liberties, and of the\n   Forest, conceded by our Lord the King, to Archbishops, Bishops, and\n   other Prelates of England; and likewise to the Earls, Barons,\n   Knights, and other Freeholders of the Realm: And all that secretly,\n   or openly, by deed, word, or counsel, _do make statutes, or observe\n   them being made_, and that bring in Customs, or keep them when they\n   be brought in, against the said Liberties, or any of them, the\n   Writers and Counsellors of said statutes, and the Executors of them,\n   and all those that shall presume to judge according to them. All and\n   every which persons before mentioned, that wittingly shall commit\n   anything of the premises, let them well know that they incur the\n   aforesaid sentence, _ipso facto_, (i.e., upon the deed being done.)\n   And those that ignorantly do so, and be admonished, except they\n   reform themselves within fifteen days after the time of the\n   admonition, and make full satisfaction for that they have done, at\n   the will of the ordinary, shall be from that time forth included in\n   the same sentence. And with the same sentence we burden all those\n   that presume to perturb the peace of our sovereign Lord the King, and\n   of the Realm. To the perpetual memory of which thing, We, the\n   aforesaid Prelates, have put our seals to these presents.\"--_Statutes\n   of the Realm_, vol. 1, p. 6. _Ruffhead's Statutes_, vol. 1, p. 20.\n\nOne of the Confirmations of the Charters, by Edward I., was by statute,\nin the 25th year of his reign, (1297,) in the following terms. The\nstatute is usually entitled \"_Confirmatio Cartarum_,\" (Confirmation of\nthe Charters.)\n\n   _Ch. 1._ \"Edward, by the Grace of God, King of England, Lord of\n   Ireland, and Duke of Guyan, To all those that these presents shall\n   hear or see, Greeting. Know ye, that We, to the honor of God, and of\n   Holy Church, and to the profit of our Realm, have granted, for us and\n   our heirs, that the Charter of Liberties, and the Charter of the\n   Forest, which were made by common assent of all the Realm, in the\n   time of King Henry our Father, shall be kept in every point without\n   breach. And we will that the same Charters shall be sent under our\n   seal, as well to our justices of the Forest, as to others, and to all\n   Sheriffs of shires, and to all our other officers, and to all our\n   cities throughout the Realm, together with our writs, in the which it\n   shall be contained, that they cause the aforesaid Charters to be\n   published, and to declare to the people that We have confirmed them\n   at all points; and to our Justices, Sheriffs, Mayors, and other\n   ministers, which under us have the Laws of our Land to guide, that\n   they allow the same Charters, in all their points, in pleas before\n   them, and in judgment; that is, to wit, the Great Charter as the\n   Common Law, and the Charter of the Forest for the wealth of our\n   Realm.\n\n   _Ch. 2._ \"And we will that if any judgment be given from henceforth\n   contrary to the points of the charters aforesaid by the justices, or\n   by any others our ministers that hold plea before them, against the\n   points of the Charters, it shall be undone and holden for naught.\n\n   _Ch. 3._ \"And we will, that the same Charters shall be sent, under\n   our seal, to Cathedral Churches throughout our Realm, there to\n   remain, and shall be read before the people two times in the year.\n\n   _Ch. 4._ \"And that all Archbishops and Bishops shall pronounce the\n   sentence of excommunication against all those that by word, deed, or\n   counsel, do contrary to the foresaid charters, or that in any point\n   break or undo them. And that the said Curses be twice a year\n   denounced and published by the prelates aforesaid. And if the same\n   prelates, or any of them, be remiss in the denunciation of the said\n   sentences, the Archbishops of Canterbury and York, for the time\n   being, shall compel and distrain them to make the denunciation in the\n   form aforesaid.\"--_St. 25 Edward I._, (1297.) _Statutes of the\n   Realm_, vol. 1, p. 123.\n\nIt is unnecessary to repeat the terms of the various confirmations, most\nof which were less formal than those that have been given, though of\ncourse equally authoritative. Most of them are brief, and in the form of\na simple statute, or promise, to the effect that \"The Great Charter, and\nthe Charter of the Forest, shall be firmly kept and maintained in all\npoints.\" They are to be found printed with the other statutes of the\nrealm. One of them, after having \"again granted, renewed and confirmed\"\nthe charters, requires as follows:\n\n   \"That the Charters be delivered to every sheriff of England under the\n   king's seal, to be read four times in the year before the people in\n   the full county,\" (that is, at the county court,) \"that is, to wit,\n   the next county (court) after the feast of Saint Michael, and the\n   next county (court) after Christmas, and at the next county (court)\n   after Easter, and at the next county (court) after the feast of Saint\n   John.\"--_28 Edward I._, ch. 1, (1300.)\n\n   Lingard says, \"The Charter was ratified four times by Henry III.,\n   twice by Edward I., fifteen times by Edward III., seven times by\n   Richard II., six times by Henry IV., and once by Henry V.;\" making\n   thirty-five times in all.--_3 Lingard_, 50, note, Philad. ed.\n\nCoke says Magna Carta was confirmed thirty-two times.--Preface_ to_ 2\n_Inst_., p. 6.\n\n   Lingard calls these \"thirty-five successive ratifications\" of the\n   charter, \"a sufficient proof how much its provisions were abhorred\n   by the sovereign, and how highly they were prized by the nation.\"--_3\n   Lingard_, 50.\n\n   Mackintosh says, \"For almost five centuries (that is, until 1688) it\n   (Magna Carta) was appealed to as the decisive authority on behalf of\n   the people, though commonly so far only as the necessities of each\n   case demanded.\"--_Mackintosh's Hist. of Eng._ ch. 3. _45 Lardner's\n   Cab. Cyc._, 221.\n\nCoke, who has labored so hard to overthrow the most vital principles of\nMagna Carta, and who, therefore, ought to be considered good authority\nwhen he speaks in its favor,[108] says:\n\n   \"It is called Magna Carta, not that it is great in quantity, for\n   there be many voluminous charters commonly passed, specially in these\n   later times, longer than this is; nor comparatively in respect that\n   it is greater than _Charta de Foresta_, but in respect of the great\n   importance and weightiness of the matter, as hereafter shall appear;\n   and likewise for the same cause _Charta de Foresta_; and both of them\n   are called _Magnae Chartae Libertatum Angliae_, (The Great Charters of\n   the Liberties of England.) ...\n\n   \"And it is also called _Charta Libertatum regni_, (Charter of the\n   Liberties of the kingdom;) and upon great reason it is so called of\n   the effect, _quia liberos facit_, (because it makes men free.)\n   Sometime for the same cause (it is called) _communis libertas_,\n   (common liberty,) and _le chartre des franchises_, (the charter of\n   franchises.) ...\n\n   \"It was for the most part declaratory of the principal grounds of the\n   fundamental laws of England, and for the residue it is additional to\n   supply some defects of the common law....\n\n   \"Also, by the said act of 25 Edward I., (called _Confirmatio\n   Chartarum_,) it is adjudged in parliament that the Great Charter and\n   the Charter of the Forest shall be taken as the common law....\n\n   \"They (Magna Carta and Carta de Foresta) were, for the most part, but\n   declarations of the ancient common laws of England, to the\n   observation and keeping whereof, the king was bound and sworn.\n\n   \"After the making of Magna Charta, and Charta de Foresta, divers\n   learned men in the laws, that I may use the words of the record, kept\n   schools of the law in the city of London, and taught such as resorted\n   to them the laws of the realm, taking their foundation of Magna\n   Charta and Charta de Foresta.\n\n   \"And the said two charters have been confirmed, established, and\n   commanded to be put in execution by thirty-two several acts of\n   parliament in all.\n\n   \"This appeareth partly by that which hath been said, for that it hath\n   so often been confirmed by the wise providence of so many acts of\n   parliament.\n\n   \"And albeit judgments in the king's courts are of high regard in law,\n   and _judicia_ (judgments) are accounted as _jurisdicta_, (the speech\n   of the law itself,) yet it is provided by act of parliament, that if\n   any judgment be given contrary to any of the points of the Great\n   Charter and Charta de Foresta, by the justices, or by any other of\n   the king's ministers, &c., it shall be undone, and holden for naught.\n\n   \"And that both the said charters shall be sent under the great seal\n   to all cathedral churches throughout the realm, there to remain, and\n   shall be read to the people twice every year.\n\n   \"The highest and most binding laws are the statutes which are\n   established by parliament; and by authority of that highest court it\n   is enacted (only to show their tender care of Magna Carta and Carta\n   de Foresta) that if any statute be made contrary to the Great\n   Charter, or the Charter of the Forest, that shall be holden for none;\n   by which words all former statutes made against either of those\n   charters are now repealed; and the nobles and great officers were to\n   be sworn to the observation of Magna Charta and Charta de Foresta.\n\n   \"_Magna fuit quondam magnae reverentia chartae._\" (Great was formerly\n   the reverence for Magna Carta.)--_Coke's Proem to 2 Inst._, p. 1 to\n   7.\n\nCoke also says, \"All pretence of prerogative against Magna Charta is\ntaken away.\"--_2 Inst._, 36.\n\nHe also says, \"That after this parliament (_52 Henry_ III., in 1267)\nneither Magna Carta nor Carta de Foresta was ever attempted to be\nimpugned or questioned.\"--_2 Inst._, 102.[109]\n\nTo give all the evidence of the authority of Magna Carta, it would be\nnecessary to give the constitutional history of England since the year\n1215. This history would show that Magna Carta, although continually\nviolated and evaded, was still acknowledged as law by the government,\nand was held up by the people as the great standard and proof of their\nrights and liberties. It would show also that the judicial tribunals,\n_whenever it suited their purposes to do so_, were in the habit of\nreferring to Magna Carta as authority, in the same manner, and with the\nsame real or pretended veneration, with which American courts now refer\nto the constitution of the United States, or the constitutions of the\nstates. And, what is equally to the point, it would show that these same\ntribunals, the mere tools of kings and parliaments, would resort to the\nsame artifices of assumption, _precedent_, construction, and false\ninterpretation, to evade the requirements of Magna Carta, and to\nemasculate it of all its power for the preservation of liberty, that are\nresorted to by American courts to accomplish the same work on our\nAmerican constitutions.\n\nI take it for granted, therefore, that if the authority of Magna Carta\nhad rested simply upon its character as a _compact_ between the king and\nthe people, it would have been forever binding upon the king, (that is,\nupon the government, for the king was the government,) in his\nlegislative, judicial, and executive character; and that there was no\n_constitutional_ possibility of his escaping from its restraints, unless\nthe people themselves should freely discharge him from them.\n\nBut the authority of Magna Carta does not rest, either wholly or mainly,\nupon its character as a compact. For centuries before the charter was\ngranted, its main principles constituted \"the Law of the Land,\"--the\nfundamental and constitutional law of the realm, which the kings were\nsworn to maintain. And the principal benefit of the charter was, that it\ncontained a _written_ description and acknowledgment, by the king\nhimself, of what the constitutional law of the kingdom was, which his\ncoronation oath bound him to observe. Previous to Magna Carta, this\nconstitutional law rested mainly in precedents, customs, and the\nmemories of the people. And if the king could but make one innovation\nupon this law, without arousing resistance, and being compelled to\nretreat from his usurpation, he would cite that innovation as a\nprecedent for another act of the same kind; next, assert a custom; and,\nfinally, raise a controversy as to what the Law of the Land really was.\nThe great object of the barons and people, in demanding from the king a\nwritten description and acknowledgment of the Law of the Land, was to\nput an end to all disputes of this kind, and to put it out of the power\nof the king to plead any misunderstanding of the constitutional law of\nthe kingdom. And the charter, no doubt, accomplished very much in this\nway. After Magna Carta, it required much more audacity, cunning, or\nstrength, on the part of the king, than it had before, to invade the\npeople's liberties with impunity. Still, Magna Carta, like all other\nwritten constitutions, proved inadequate to the full accomplishment of\nits purpose; for when did a parchment ever have power adequately to\nrestrain a government, that had either cunning to evade its\nrequirements, or strength to overcome those who attempted its defence?\nThe work of usurpation, therefore, though seriously checked, still went\non, to a great extent, after Magna Carta. Innovations upon the Law of\nthe Land are still made by the government. One innovation was cited as a\nprecedent; precedents made customs; and customs became laws, so far as\npractice was concerned; until the government, composed of the king, the\nhigh functionaries of the church, the nobility, a House of Commons\nrepresenting the \"forty shilling freeholders,\" and a dependent and\nservile judiciary, all acting in conspiracy against the mass of the\npeople, became practically absolute, as it is at this day.\n\nAs proof that Magna Carta embraced little else than what was previously\nrecognized as the common law, or Law of the Land, I repeat some\nauthorities that have been already cited.\n\n   Crabbe says, \"It is admitted on all hands that it (Magna Carta)\n   contains nothing but what was confirmatory of the common law and the\n   ancient usages of the realm; and is, properly speaking, only an\n   enlargement of the charter of Henry I. and his\n   successors.\"--_Crabbe's Hist. of the Eng. Law_, p. 127.\n\n   Blackstone says, \"It is agreed by all our historians that the Great\n   Charter of King John was, for the most part, compiled from the\n   ancient customs of the realm, or the laws of Edward the Confessor; by\n   which they mean the old common law which was established under our\n   Saxon princes.\"--_Blackstone's Introd. to the Charters._ See\n   _Blackstone's Law Tracts_, Oxford ed., p. 289.\n\n   Coke says, \"The common law is the most general and ancient law of\n   the realm.... The common law appeareth in the statute of _Magna\n   Carta_, and other ancient statutes, (which for the most part are\n   affirmations of the common law,) in the original writs, in judicial\n   records, and in our books of terms and years.\"--_1 Inst._, 115 b.\n\n   Coke also says, \"It (Magna Carta) was for the most part declaratory\n   of the principal grounds of the fundamental laws of England, and for\n   the residue it was additional to supply some defects of the common\n   law.... They (Magna Carta and Carta de Foresta) were, for the most\n   part, but declarations of the ancient common laws of England, _to the\n   observation and keeping whereof the king was bound and\n   sworn_.\"--_Preface to 2 Inst._, p. 3 and 5.\n\n   Hume says, \"We may now, from the tenor of this charter, (Magna\n   Carta,) conjecture what those laws were of King Edward, (the\n   Confessor,) which the English nation during so many generations still\n   desired, with such an obstinate perseverance, to have recalled and\n   established. They were chiefly these latter articles of Magna Carta;\n   and the barons who, at the beginning of these commotions, demanded\n   the revival of the Saxon laws, undoubtedly thought that they had\n   sufficiently satisfied the people, by procuring them this concession,\n   which comprehended the principal objects to which they had so long\n   aspired.\"--_Hume_, ch. 11.\n\nEdward the First confessed that the Great Charter was substantially\nidentical with the common law, as far as it went, when he commanded his\njustices to allow \"the Great Charter as the Common Law,\" \"in pleas\nbefore them, and in judgment,\" as has been already cited in this\nchapter.--_25 Edward_ I., ch. 1, (1297.)\n\nIn conclusion of this chapter, it may be safely asserted that the\nveneration, attachment, and pride, which the English nation, for more\nthan six centuries, have felt towards Magna Carta, are in their nature\namong the most irrefragable of all proofs that it was the fundamental\nlaw of the land, and constitutionally binding upon the government; for,\notherwise, it would have been, in their eyes, an unimportant and\nworthless thing. What those sentiments were I will use the words of\nothers to describe,--the words, too, of men, who, like all modern\nauthors who have written on the same topic, had utterly inadequate ideas\nof the true character of the instrument on which they lavished their\neulogiums.\n\nHume, speaking of the Great Charter and the Charter of the Forest, as\nthey were confirmed by Henry III., in 1217, says:\n\n   \"Thus these famous charters were brought nearly to the shape in which\n   they have ever since stood; and they were, during many generations,\n   the peculiar favorites of the English nation, and esteemed the most\n   sacred rampart to national liberty and independence. As they secured\n   the rights of all orders of men, they were anxiously defended by all,\n   and became the basis, in a manner, of the English monarchy, and a\n   kind of original contract, which both limited the authority of the\n   king and ensured the conditional allegiance of his subjects. Though\n   often violated, they were still claimed by the nobility and people;\n   and, as no precedents were supposed valid that infringed them, they\n   rather acquired than lost authority, from the frequent attempts made\n   against them in several ages, by regal and arbitrary power.\"--_Hume_,\n   ch. 12.\n\n   Mackintosh says, \"It was understood by the simplest of the unlettered\n   age for whom it was intended. It was remembered by them.... For\n   almost five centuries it was appealed to as the decisive authority on\n   behalf of the people.... To have produced it, to have preserved it,\n   to have matured it, constitute the immortal claim of England on the\n   esteem of mankind. Her Bacons and Shakspeares, her Miltons and\n   Newtons, with all the truth which they have revealed, and all the\n   generous virtues which they have inspired, are of inferior value when\n   compared with the subjection of men and their rulers to the\n   principles of justice; if, indeed, it be not more true that these\n   mighty spirits could not have been formed except under equal laws,\n   nor roused to full activity without the influence of that spirit\n   which the Great Charter breathed over their\n   forefathers.\"--_Mackintosh's Hist. of Eng._, ch. 3.[110]\n\nOf the Great Charter, the trial by jury is the vital part, and the only\npart that places the liberties of the people in their own keeping. Of\nthis Blackstone says:\n\n   \"The trial by jury, or the country, _per patriam_, is also that trial\n   by the peers of every Englishman, which, as the grand bulwark of his\n   liberties, is secured to him by the Great Charter; _nullus liber homo\n   capiatur, vel imprisonetur, aut exuletur, aut aliquo modo destruatur,\n   nisi per legale judicium parium suorum, vel per legem terrae...._\n\n   The liberties of England cannot but subsist so long as this palladium\n   remains sacred and inviolate, not only from all open attacks, which\n   none will be so hardy as to make, but also from all secret\n   machinations which may sap and undermine it.\"[111]\n\n   \"The trial by jury ever has been, and I trust ever will be, looked\n   upon as the glory of the English law.... It is the most transcendent\n   privilege which any subject can enjoy or wish for, that he cannot be\n   affected in his property, his liberty, or his person, but by the\n   unanimous consent of twelve of his neighbors and equals.\"[112]\n\n   Hume calls the trial by jury \"An institution admirable in itself, and\n   the best calculated for the preservation of liberty and the\n   administration of justice, that ever was devised by the wit of\n   man.\"[113]\n\nAn old book, called \"English Liberties,\" says:\n\n   \"English Parliaments have all along been most zealous for preserving\n   this great Jewel of Liberty, trials by juries having no less than\n   fifty-eight several times, since the Norman Conquest, been\n   established and confirmed by the legislative power, no one privilege\n   besides having been ever so often remembered in parliament.\"[114]\n\n[Footnote 106: _Mackintosh's Hist. of Eng._, ch. 3. _45 Lardner's Cab.\nCyc._, 354.]\n\n[Footnote 107: \"_Forty shilling freeholders_\" were those \"people\ndwelling and resident in the same counties, whereof every one of them\nshall have free land or tenement to the value of forty shillings by the\nyear at the least above all charges.\" By statute _8 Henry_ 6, ch. 7,\n(1429,) these freeholders only were allowed to vote for members of\nParliament from the _counties_.]\n\n[Footnote 108: He probably speaks in its favor only to blind the eyes of\nthe people to the frauds he has attempted upon its true meaning.]\n\n[Footnote 109: It will be noticed that Coke calls these confirmations of\nthe charter \"acts of parliament,\" instead of acts of the king alone.\nThis needs explanation.\n\nIt was one of Coke's ridiculous pretences, that laws anciently enacted\nby the king, at the request, or with the consent, or by the advice, of\nhis parliament, was \"an act of parliament,\" instead of the act of the\nking. And in the extracts cited, he carries this idea so far as to\npretend that the various confirmations of the Great Charter were \"acts\nof parliament,\" instead of the acts of the kings. He might as well have\npretended that the original grant of the Charter was an \"act of\nparliament;\" because it was not only granted at the request, and with\nthe consent, and by the advice, but on the compulsion even, of those who\ncommonly constituted his parliaments. Yet this did not make the grant of\nthe charter \"an act of parliament.\" It was simply an act of the king.\n\nThe object of Coke, in this pretence, was to furnish some color for the\npalpable falsehood that the legislative authority, which parliament was\ntrying to assume in his own day, and which it finally succeeded in\nobtaining, had a precedent in the ancient constitution of the kingdom.\n\nThere would be as much reason in saying that, because the ancient kings\nwere in the habit of passing laws in special answer to the _petitions_\nof their subjects, therefore those _petitioners_ were a part of the\nlegislative power of the kingdom.\n\nOne great objection to this argument of Coke, for the legislative\nauthority of the ancient parliaments, is that a very large--probably\nmuch the larger--number of legislative acts were done _without_ the\nadvice, consent, request, or even presence, of a parliament. Not only\nwere many formal statutes passed without any mention of the consent or\nadvice of parliament, but a simple order of the king in council, or a\nsimple proclamation, writ, or letter under seal, issued by his command,\nhad the same force as what Coke calls \"an act of parliament.\" And this\npractice continued, to a considerable extent at least, down to Coke's\nown time.\n\nThe kings were always in the habit of consulting their parliaments, more\nor less, in regard to matters of legislation,--not because their consent\nwas constitutionally necessary, but in order to make influence in favor\nof their laws, and thus induce the people to observe them, and the\njuries to enforce them.\n\nThe general duties of the ancient parliaments were not legislative, but\njudicial, as will be shown more fully hereafter. The _people_ were not\nrepresented in the parliaments at the time of Magna Carta, but only the\narchbishops, bishops, earls, barons, and knights; so that little or\nnothing would have been gained for liberty by Coke's idea that\nparliament had a legislative power. He would only have substituted an\naristocracy for a king. Even after the Commons were represented in\nparliament, they for some centuries appeared only as _petitioners_,\nexcept in the matter of taxation, when their _consent_ was asked. And\nalmost the only source of their influence on legislation was this: that\nthey would sometimes refuse their consent to the taxation, unless the\nking would pass such laws as they petitioned for; or, as would seem to\nhave been much more frequently the case, unless he would abolish such\nlaws and practices as they remonstrated against.\n\nThe _influence_ or power of parliament, and especially of the Commons,\nin the general legislation of the country, was a thing of slow growth,\nhaving its origin in a device of the king to get money contrary to law,\n(as will be seen in the next volume,) and not at all a part of the\nconstitution of the kingdom, nor having its foundation in the consent of\nthe people. The power, _as at present exercised_, was not fully\nestablished until 1688, (near five hundred years after Magna Carta,)\nwhen the House of Commons (falsely so called) had acquired such\ninfluence as the representative, _not of the people, but of the wealth,\nof the nation_, that they compelled the king to discard the oath fixed\nby the constitution of the kingdom; (which oath has been already given\nin a former chapter,(page 101) and was, in substance, to preserve and\nexecute the Common Law, the Law of the Land,--or, in the words of the\noath, \"_the just laws and customs which the common people had chosen_;\")\nand to swear that he would \"govern the people of this kingdom of\nEngland, and the dominions thereto belonging, _according to the statutes\nin parliament agreed on_, and the laws and customs of the same.\"[115]\n\nThe passage and enforcement of this statute, and the assumption of this\noath by the king, were plain violations of the English constitution,\ninasmuch as they abolished, so far as such an oath could abolish, the\nlegislative power of the king, and also \"those just laws and customs\nwhich the common people (through their juries) had chosen,\" and\nsubstituted the will of parliament in their stead.\n\nCoke was a great advocate for the legislative power of parliament, as a\nmeans of restraining the power of the king. As he denied all power to\n_juries_ to decide upon the obligation of laws, and as he held that the\nlegislative power was \"_so transcendent and absolute as (that) it cannot\nbe confined, either for causes or persons, within any bounds_,\"[116] he\nwas perhaps honest in holding that it was safer to trust this terrific\npower in the hands of parliament, than in the hands of the king. His\nerror consisted in holding that either the king or parliament had any\nsuch power, or that they had any power at all to pass laws that should\nbe binding upon a jury.\n\nThese declarations of Coke, that the charter was confirmed by thirty-two\n\"acts of parliament,\" have a mischievous bearing in another respect.\nThey tend to weaken the authority of the charter, by conveying the\nimpression that the charter itself might be _abolished_ by \"act of\nparliament.\" Coke himself admits that it could not be revoked or\nrescinded by the _king_; for he says, \"All pretence of prerogative\nagainst Magna Carta is taken away.\" (_2 Inst._, 36.)\n\nHe knew perfectly well, and the whole English nation knew, that the\n_king_ could not lawfully infringe Magna Carta. Magna Carta, therefore,\nmade it impossible that absolute power could ever be practically\nestablished in England, _in the hands of the king_. Hence, as Coke was\nan advocate for absolute power,--that is, for a legislative power \"so\ntranscendent and absolute as (that) it cannot be confined, either for\ncauses or persons, within any bounds,\"--there was no alternative for him\nbut to vest this absolute power in parliament. Had he not vested it in\nparliament, he would have been obliged to abjure it altogether, and to\nconfess that the people, _through their juries_, had the right to judge\nof the obligation of all legislation whatsoever; in other words, that\nthey had the right to confine the government within the limits of \"those\njust laws and customs which the common people (acting as jurors) had\nchosen.\" True to his instincts, as a judge, and as a tyrant, he assumed\nthat this absolute power was vested in the hands of parliament.\n\nBut the truth was that, as by the English constitution parliament had no\nauthority at all for _general_ legislation, it could no more confirm,\nthan it could abolish, Magna Carta.\n\nThese thirty-two confirmations of Magna Carta, which Coke speaks of as\n\"acts of parliament,\" were merely acts of the king. The parliaments,\nindeed, by refusing to grant him money, except on that condition, and\notherwise, had contributed to oblige him to make the confirmations; just\nas they had helped to oblige him by arms to grant the charter in the\nfirst place. But the confirmations themselves were nevertheless\nconstitutionally, as well as formally, the acts of the king alone.]\n\n[Footnote 110: Under the head of \"_John._\"]\n\n[Footnote 111: _4 Blackstone_, 349-50.]\n\n[Footnote 112: _3 Blackstone_, 379.]\n\n[Footnote 113: _Hume_, ch. 2.]\n\n[Footnote 114: Page 203, 5th edition, 1721.]\n\n[Footnote 115: St. 1 _William and Mary_, ch. 6, (1688.)]\n\n[Footnote 116: 4 _Inst._, 36.]\n\n\n\n\nCHAPTER XII.\n\nLIMITATIONS IMPOSED UPON THE MAJORITY BY THE TRIAL BY JURY.\n\n\nThe principal objection, that will be made to the doctrine of this\nessay, is, that under it, a jury would paralyze the power of the\nmajority, and veto all legislation that was not in accordance with the\nwill of the whole, or nearly the whole, people.\n\nThe answer to this objection is, that the limitation, which would be\nthus imposed upon the legislative power, (whether that power be vested\nin the majority, or minority, of the people,) is the crowning merit of\nthe trial by jury. It has other merits; but, though important in\nthemselves, they are utterly insignificant and worthless in comparison\nwith this.\n\nIt is this power of vetoing all partial and oppressive legislation, and\nof restricting the government to the maintenance of such laws as the\n_whole_, or substantially the whole, people _are agreed in_, that makes\nthe trial by jury \"the palladium of liberty.\" Without this power it\nwould never have deserved that name.\n\nThe will, or the pretended will, of the majority, is the last lurking\nplace of tyranny at the present day. The dogma, that certain individuals\nand families have a divine appointment to govern the rest of mankind, is\nfast giving place to the one that the larger number have a right to\ngovern the smaller; a dogma, which may, or may not, be less oppressive\nin its practical operation, but which certainly is no less false or\ntyrannical in principle, than the one it is so rapidly supplanting.\nObviously there is nothing in the nature of majorities, that insures\njustice at their hands. They have the same passions as minorities, and\nthey have no qualities whatever that should be expected to prevent them\nfrom practising the same tyranny as minorities, if they think it will\nbe for their interest to do so.\n\nThere is no particle of truth in the notion that the majority have a\n_right_ to rule, or to exercise arbitrary power over, the minority,\nsimply because the former are more numerous than the latter. Two men\nhave no more natural right to rule one, than one has to rule two. Any\nsingle man, or any body of men, many or few, have a natural right to\nmaintain justice for themselves, and for any others who may need their\nassistance, against the injustice of any and all other men, without\nregard to their numbers; and majorities have no right to do any more\nthan this. The relative numbers of the opposing parties have nothing to\ndo with the question of right. And no more tyrannical principle was ever\navowed, than that the will of the majority ought to have the force of\nlaw, without regard to its justice; or, what is the same thing, that the\nwill of the majority ought always to be presumed to be in accordance\nwith justice. Such a doctrine is only another form of the doctrine that\nmight makes right.\n\nWhen _two_ men meet _one_ upon the highway, or in the wilderness, have\nthey a right to dispose of his life, liberty, or property at their\npleasure, simply because they are the more numerous party? Or is he\nbound to submit to lose his life, liberty, or property, if they demand\nit, merely because he is the less numerous party? Or, because they are\nmore numerous than he, is he bound to presume that they are governed\nonly by superior wisdom, and the principles of justice, and by no\nselfish passion that can lead them to do him a wrong? Yet this is the\nprinciple, which it is claimed should govern men in all their civil\nrelations to each other. Mankind fall in company with each other on the\nhighway or in the wilderness of life, and it is claimed that the more\nnumerous party, simply by virtue of their superior numbers, have the\nright arbitrarily to dispose of the life, liberty, and property of the\nminority; and that the minority are bound, by reason of their inferior\nnumbers, to practise abject submission, and consent to hold their\nnatural rights,--any, all, or none, as the case may be,--at the mere\nwill and pleasure of the majority; as if all a man's natural rights\nexpired, or were suspended by the operation of a paramount law, the\nmoment he came into the presence of superior numbers.\n\nIf such be the true nature of the relations men hold to each other in\nthis world, it puts an end to all such things as crimes, unless they be\nperpetrated upon those who are equal or superior, in number, to the\nactors. All acts committed against persons _inferior_ in number to the\naggressors, become but the exercise of rightful authority. And\nconsistency with their own principles requires that all governments,\nfounded on the will of the majority, should recognize this plea as a\nsufficient justification for all crimes whatsoever.\n\nIf it be said that the majority should be allowed to rule, not because\nthey are stronger than the minority, but because their superior numbers\nfurnish a _probability_ that they are in the right; one answer is, that\nthe lives, liberties, and properties of men are too valuable to them,\nand the natural presumptions are too strong in their favor, to justify\nthe destruction of them by their fellow-men on a mere balancing of\nprobabilities, _or on any ground whatever short of certainty beyond a\nreasonable doubt_. This last is the moral rule universally recognized to\nbe binding upon single individuals. And in the forum of conscience the\nsame rule is equally binding upon governments, for governments are mere\nassociations of individuals. This is the rule on which the trial by jury\nis based. And it is plainly the only rule that ought to induce a man to\nsubmit his rights to the adjudication of his fellow-men, or dissuade him\nfrom a forcible defence of them.\n\nAnother answer is, that if two opposing parties could be supposed to\nhave no personal interests or passions involved, to warp their\njudgments, or corrupt their motives, the fact that one of the parties\nwas more numerous than the other, (a fact that leaves the comparative\nintellectual competency of the two parties entirely out of\nconsideration,) might, perhaps, furnish a slight, but at best only a\nvery slight, probability that such party was on the side of justice. But\nwhen it is considered that the parties are liable to differ in their\nintellectual capacities, and that one, or the other, or both, are\nundoubtedly under the influence of such passions as rivalry, hatred,\navarice, and ambition,--passions that are nearly certain to pervert\ntheir judgments, and very likely to corrupt their motives,--all\nprobabilities founded upon a mere numerical majority, in one party, or\nthe other, vanish at once; and the decision of the majority becomes, to\nall practical purposes, a mere decision of chance. And to dispose of\nmen's properties, liberties, and lives, by the mere process of\nenumerating such parties, is not only as palpable gambling as was ever\npractised, but it is also the most atrocious that was ever practised,\nexcept in matters of government. And where government is instituted on\nthis principle, (as in the United States, for example,) the nation is at\nonce converted into one great gambling establishment; where all the\nrights of men are the stakes; a few bold bad men throw the dice--(dice\nloaded with all the hopes, fears, interests, and passions which rage in\nthe breasts of ambitious and desperate men,)--and all the people, from\nthe interests they have depending, become enlisted, excited, agitated,\nand generally corrupted, by the hazards of the game.\n\nThe trial by jury disavows the majority principle altogether; and\nproceeds upon the ground that every man should be presumed to be\nentitled to life, liberty, and such property as he has in his\npossession; and that the government should lay its hand upon none of\nthem, (except for the purpose of bringing them before a tribunal for\nadjudication,) unless it be first ascertained, _beyond a reasonable\ndoubt_, in every individual case, that justice requires it.\n\nTo ascertain whether there be such reasonable doubt, it takes twelve men\n_by lot_ from the whole body of mature men. If any of these twelve are\nproved to be under the influence of any _special_ interest or passion,\nthat may either pervert their judgments, or corrupt their motives, they\nare set aside as unsuitable for the performance of a duty requiring such\nabsolute impartiality and integrity; and others substituted in their\nstead. When the utmost practicable impartiality is attained on the part\nof the whole twelve, they are sworn to the observance of justice; and\ntheir unanimous concurrence is then held to be necessary to remove that\nreasonable doubt, which, unremoved, would forbid the government to lay\nits hand on its victim.\n\nSuch is the caution which the trial by jury both practises and\ninculcates, against the violation of justice, on the part of the\ngovernment, towards the humblest individual, in the smallest matter\naffecting his civil rights, his property, liberty, or life. And such is\nthe contrast, which the trial by jury presents, to that gambler's and\nrobber's rule, that the majority have a right, by virtue of their\nsuperior numbers, and without regard to justice, to dispose at pleasure\nof the property and persons of all bodies of men less numerous than\nthemselves.\n\nThe difference, in short, between the two systems, is this. The trial by\njury protects person and property, inviolate to their possessors, from\nthe hand of the law, unless _justice, beyond a reasonable doubt_,\nrequire them to be taken. The majority principle takes person and\nproperty from their possessors, at the mere arbitrary will of a\nmajority, who are liable and likely to be influenced, in taking them, by\nmotives of oppression, avarice, and ambition.\n\nIf the relative numbers of opposing parties afforded sufficient evidence\nof the comparative justice of their claims, the government should carry\nthe principle into its courts of justice; and instead of referring\ncontroversies to impartial and disinterested men,--to judges and jurors,\nsworn to do justice, and bound patiently to hear and weigh all the\nevidence and arguments that can be offered on either side,--it should\nsimply _count_ the plaintiffs and defendants in each case, (where there\nwere more than one of either,) and then give the case to the majority;\nafter ample opportunity had been given to the plaintiffs and defendants\nto reason with, flatter, cheat, threaten, and bribe each other, by way\nof inducing them to change sides. Such a process would be just as\nrational in courts of justice, as in halls of legislation; for it is of\nno importance to a man, who has his rights taken from him, whether it be\ndone by a legislative enactment, or a judicial decision.\n\nIn legislation, the people are all arranged as plaintiffs and defendants\nin their own causes; (those who are in favor of a particular law,\nstanding as plaintiffs, and those who are opposed to the same law,\nstanding as defendants); and to allow these causes to be decided by\nmajorities, is plainly as absurd as it would be to allow judicial\ndecisions to be determined by the relative number of plaintiffs and\ndefendants.\n\nIf this mode of decision were introduced into courts of justice, we\nshould see a parallel, and only a parallel, to that system of\nlegislation which we witness daily. We should see large bodies of men\nconspiring to bring perfectly groundless suits, against other bodies of\nmen, for large sums of money, and to carry them by sheer force of\nnumbers; just as we now continually see large bodies of men conspiring\nto carry, by mere force of numbers, some scheme of legislation that\nwill, directly or indirectly, take money out of other men's pockets, and\nput it into their own. And we should also see distinct bodies of men,\nparties in separate suits, combining and agreeing all to appear and be\ncounted as plaintiffs or defendants in each other's suits, for the\npurpose of ekeing out the necessary majority; just as we now see\ndistinct bodies of men, interested in separate schemes of ambition or\nplunder, conspiring to carry through a batch of legislative enactments,\nthat shall accomplish their several purposes.\n\nThis system of combination and conspiracy would go on, until at length\nwhole states and a whole nation would become divided into two great\nlitigating parties, each party composed of several smaller bodies,\nhaving their separate suits, but all confederating for the purpose of\nmaking up the necessary majority in each case. The individuals composing\neach of these two great parties, would at length become so accustomed to\nacting together, and so well acquainted with each others' schemes, and\nso mutually dependent upon each others' fidelity for success, that they\nwould become organized as permanent associations; bound together by that\nkind of honor that prevails among thieves; and pledged by all their\ninterests, sympathies, and animosities, to mutual fidelity, and to\nunceasing hostility to their opponents; and exerting all their arts and\nall their resources of threats, injuries, promises, and bribes, to drive\nor seduce from the other party enough to enable their own to retain or\nacquire such a majority as would be necessary to gain their own suits,\nand defeat the suits of their opponents. All the wealth and talent of\nthe country would become enlisted in the service of these rival\nassociations; and both would at length become so compact, so well\norganized, so powerful, and yet always so much in need of recruits,\nthat a private person would be nearly or quite unable to obtain justice\nin the most paltry suit with his neighbor, except on the condition of\njoining one of these great litigating associations, who would agree to\ncarry through his cause, on condition of his assisting them to carry\nthrough all the others, good and bad, which they had already undertaken.\nIf he refused this, they would threaten to make a similar offer to his\nantagonist, and suffer their whole numbers to be counted against him.\n\nNow this picture is no caricature, but a true and honest likeness. And\nsuch a system of administering justice, would be no more false, absurd,\nor atrocious, than that system of working by majorities, which seeks to\naccomplish, by legislation, the same ends which, in the case supposed,\nwould be accomplished by judicial decisions.\n\nAgain, the doctrine that the minority ought to submit to the will of the\nmajority, proceeds, not upon the principle that government is formed by\nvoluntary association, and for an _agreed purpose_, on the part of all\nwho contribute to its support, but upon the presumption that all\ngovernment must be practically a state of war and plunder between\nopposing parties; and that, in order to save blood, and prevent mutual\nextermination, the parties come to an agreement that they will count\ntheir respective numbers periodically, and the one party shall then be\npermitted quietly to rule and plunder, (restrained only by their own\ndiscretion,) and the other submit quietly to be ruled and plundered,\nuntil the time of the next enumeration.\n\nSuch an agreement may possibly be wiser than unceasing and deadly\nconflict; it nevertheless partakes too much of the ludicrous to deserve\nto be seriously considered as an expedient for the maintenance of civil\nsociety. It would certainly seem that mankind might agree upon a\ncessation of hostilities, upon more rational and equitable terms than\nthat of unconditional submission on the part of the less numerous body.\nUnconditional submission is usually the last act of one who confesses\nhimself subdued and enslaved. How any one ever came to imagine that\ncondition to be one of freedom, has never been explained. And as for the\nsystem being adapted to the maintenance of justice among men, it is a\nmystery that any human mind could ever have been visited with an\ninsanity wild enough to originate the idea.\n\nIf it be said that other corporations, than governments, surrender their\naffairs into the hands of the majority, the answer is, that they allow\nmajorities to determine only trifling matters, that are in their nature\nmere questions of discretion, and where there is no natural presumption\nof justice or right on one side rather than the other. They _never_\nsurrender to the majority the power to dispose of, or, what is\npractically the same thing, to _determine_, the _rights_ of any\nindividual member. The _rights_ of every member are determined by the\nwritten compact, to which all the members have voluntarily agreed.\n\nFor example. A banking corporation allows a majority to determine such\nquestions of discretion as whether the note of A or of B shall be\ndiscounted; whether notes shall be discounted on one, two, or six days\nin the week; how many hours in a day their banking-house shall be kept\nopen; how many clerks shall be employed; what salaries they shall\nreceive, and such like matters, which are in their nature mere subjects\nof discretion, and where there are no natural presumptions of justice or\nright in favor of one course over the other. But no banking corporation\nallows a majority, or any other number of its members less than the\nwhole, to divert the funds of the corporation to any other purpose than\nthe one to which _every member_ of the corporation has legally agreed\nthat they may be devoted; nor to take the stock of one member and give\nit to another; nor to distribute the dividends among the stockholders\notherwise than to each one the proportion which he has agreed to accept,\nand all the others have agreed that he shall receive. Nor does any\nbanking corporation allow a majority to impose taxes upon the members\nfor the payment of the corporate expenses, except in such proportions as\n_every member_ has consented that they may be imposed. All these\nquestions, involving the _rights_ of the members as against each other,\nare fixed by the articles of the association,--that is, by the agreement\nto which _every member_ has personally assented.\n\nWhat is also specially to be noticed, and what constitutes a vital\ndifference between the banking corporation and the political\ncorporation, or government, is, that in case of controversy among the\nmembers of the banking corporation, as to the _rights_ of any member,\nthe question is determined, not by any number, either majority, or\nminority, of the corporation itself, _but by persons out of the\ncorporation_; by twelve men acting as jurors, or by other tribunals of\njustice, of which no member of the corporation is allowed to be a part.\nBut in the case of the political corporation, controversies among the\nparties to it, as to the rights of individual members, must of necessity\nbe settled by members of the corporation itself, because there are no\npersons out of the corporation to whom the question can be referred.\n\nSince, then, all questions as to the _rights_ of the members of the\npolitical corporation, must be determined by members of the corporation\nitself, the trial by jury says that no man's _rights_,--neither his\nright to his life, his liberty, nor his property,--shall be determined\nby any such standard as the mere will and pleasure of majorities; but\nonly by the unanimous verdict of a tribunal fairly representing the\nwhole people,--that is, a tribunal of twelve men, taken, at random from\nthe whole body, and ascertained to be as impartial as the nature of the\ncase will admit, _and sworn to the observance of justice_. Such is the\ndifference in the two kinds of corporations; and the custom of managing\nby majorities the mere discretionary matters of business corporations,\n(the majority having no power to determine the _rights_ of any member,)\nfurnishes no analogy to the practice, adopted by political corporations,\nof disposing of all the _rights_ of their members by the arbitrary will\nof majorities.\n\nBut further. The doctrine that the majority have a _right_ to rule,\nproceeds upon the principle that minorities have no _rights_ in the\ngovernment; for certainly the minority cannot be said to have any\n_rights_ in a government, so long as the majority alone determine what\ntheir rights shall be. They hold everything, or nothing, as the case may\nbe, at the mere will of the majority.\n\nIt is indispensable to a \"_free_ government,\" (in the political sense of\nthat term,) that the minority, the weaker party, have a veto upon the\nacts of the majority. Political liberty is liberty for the _weaker\nparty_ in a nation. It is only the weaker party that lose their\nliberties, when a government becomes oppressive. The stronger party, in\nall governments, are free by virtue of their superior strength. They\nnever oppress themselves.\n\nLegislation is the work of this stronger party; and if, in addition to\nthe sole power of legislating, they have the sole power of determining\nwhat legislation shall be enforced, they have all power in their hands,\nand the weaker party are the subjects of an absolute government.\n\nUnless the weaker party have a veto, either upon the making, or the\nenforcement of laws, they have no power whatever in the government, and\ncan of course have no liberties except such as the stronger party, in\ntheir arbitrary discretion, see fit to permit them to enjoy.\n\nIn England and the United States, the trial by jury is the only\ninstitution that gives the weaker party any veto upon the power of the\nstronger. Consequently it is the only institution, that gives them any\neffective voice in the government, or any guaranty against oppression.\n\nSuffrage, however free, is of no avail for this purpose; because the\nsuffrage of the minority is overborne by the suffrage of the majority,\nand is thus rendered powerless for purposes of legislation. The\nresponsibility of officers can be made of no avail, because they are\nresponsible only to the majority. The minority, therefore, are wholly\nwithout rights in the government, wholly at the mercy of the majority,\nunless, through the trial by jury, they have a veto upon such\nlegislation as they think unjust.\n\nGovernment is established for the protection of the weak against the\nstrong. This is the principal, if not the sole, motive for the\nestablishment of all legitimate government. Laws, that are sufficient\nfor the protection of the weaker party, are of course sufficient for the\nprotection of the stronger party; because the strong can certainly need\nno more protection than the weak. It is, therefore, right that the\nweaker party should be represented in the tribunal which is finally to\ndetermine what legislation may be enforced; and that no legislation\nshall be enforced against their consent. They being presumed to be\ncompetent judges of what kind of legislation makes for their safety, and\nwhat for their injury, it must be presumed that any legislation, which\n_they_ object to enforcing, tends to their oppression, and not to their\nsecurity.\n\nThere is still another reason why the weaker party, or the minority,\nshould have a veto upon all legislation which they disapprove. _That\nreason is, that that is the only means by which the government can be\nkept within the limits of the contract, compact, or constitution, by\nwhich the whole people agree to establish government._ If the majority\nwere allowed to interpret the compact for themselves, and enforce it\naccording to their own interpretation, they would, of course, make it\nauthorize them to do whatever they wish to do.\n\nThe theory of free government is that it is formed by the voluntary\ncontract of the people individually with each other. This is the theory,\n(although it is not, as it ought to be, the fact,) in all the\ngovernments in the United States, as also in the government of England.\nThe theory assumes that each man, who is a party to the government, and\ncontributes to its support, has individually and freely consented to it.\nOtherwise the government would have no right to tax him for its\nsupport,--for taxation without consent is robbery. This theory, then,\nnecessarily supposes that this government, which is formed by the free\nconsent of all, has no powers except such as _all_ the parties to it\nhave individually agreed that it shall have; and especially that it has\nno power to pass any _laws_, except such as _all_ the parties have\nagreed that it may pass.\n\nThis theory supposes that there may be certain laws that will be\nbeneficial to _all_,--so beneficial that _all_ consent to be taxed for\ntheir maintenance. For the maintenance of these specific laws, in which\nall are interested, all associate. And they associate for the\nmaintenance of those laws _only_, in which _all_ are interested. It\nwould be absurd to suppose that all would associate, and consent to be\ntaxed, for purposes which were beneficial only to a part; and especially\nfor purposes that were injurious to any. A government of the whole,\ntherefore, can have no powers except such as _all_ the parties consent\nthat it may have. It can do nothing except what _all_ have consented\nthat it may do. And if any portion of the people,--no matter how large\ntheir number, if it be less than the whole,--desire a government for any\npurposes other than those that are common to all, and desired by all,\nthey must form a separate association for those purposes. They have no\nright,--by perverting this government of the whole, to the\naccomplishment of purposes desired only by a part,--to compel any one to\ncontribute to purposes that are either useless or injurious to himself.\n\nSuch being the principles on which the government is formed, the\nquestion arises, how shall this government, when formed, be kept within\nthe limits of the contract by which it was established? How shall this\ngovernment, instituted by the whole people, agreed to by the whole\npeople, supported by the contributions of the whole people, be confined\nto the accomplishment of those purposes alone, which the whole people\ndesire? How shall it be preserved from degenerating into a mere\ngovernment for the benefit of a part only of those who established, and\nwho support it? How shall it be prevented from even injuring a part of\nits own members, for the aggrandizement of the rest? Its laws must be,\n(or at least now are,) passed, and most of its other acts performed, by\nmere agents,--agents chosen by a part of the people, and not by the\nwhole. How can these agents be restrained from seeking their own\ninterests, and the interests of those who elected them, at the expense\nof the rights of the remainder of the people, by the passage and\nenforcement of laws that shall be partial, unequal, and unjust in their\noperation? That is the great question. And the trial by jury answers it.\nAnd how does the trial by jury answer it? It answers it, as has already\nbeen shown throughout this volume, by saying that these mere agents and\nattorneys, who are chosen by a part only of the people, and are liable\nto be influenced by partial and unequal purposes, shall not have\nunlimited authority in the enactment and enforcement of laws; that they\nshall not exercise _all_ the functions of government. It says that they\nshall never exercise that ultimate power of compelling obedience to the\nlaws by punishing for disobedience, or of executing the laws against the\nperson or property of any man, without first getting the consent of the\npeople, through a tribunal that may fairly be presumed to represent the\nwhole, or substantially the whole, people. It says that if the power to\nmake laws, and the power also to enforce them, were committed to these\nagents, they would have all power,--would be absolute masters of the\npeople, and could deprive them of their rights at pleasure. It says,\ntherefore, that the people themselves will hold a veto upon the\nenforcement of any and every law, which these agents may enact, and that\nwhenever the occasion arises for them to give or withhold their\nconsent,--inasmuch as the whole people cannot assemble, or devote the\ntime and attention necessary to the investigation of each case,--twelve\nof their number shall be taken by lot, or otherwise at random, from the\nwhole body; that they shall not be chosen by majorities, (the same\nmajorities that elected the agents who enacted the laws to be put in\nissue,) nor by any interested or suspected party; that they shall not be\nappointed by, or be in any way dependent upon, those who enacted the\nlaw; that their opinions, whether for or against the law that is in\nissue, shall not be inquired of beforehand; and that if these twelve men\ngive their consent to the enforcement of the law, their consent shall\nstand for the consent of the whole.\n\nThis is the mode, which the trial by jury provides, for keeping the\ngovernment within the limits designed by the whole people, who have\nassociated for its establishment. And it is the only mode, provided\neither by the English or American constitutions, for the accomplishment\nof that object.\n\nBut it will, perhaps, be said that if the minority can defeat the will\nof the majority, then the minority _rule_ the majority. But this is not\ntrue in any unjust sense. The minority enact no laws of their own. They\nsimply refuse their assent to such laws of the majority as they do not\napprove. The minority assume no authority over the majority; they simply\ndefend themselves. They do not interfere with the right of the majority\nto seek their own happiness in their own way, so long as they (the\nmajority) do not interfere with the minority. They claim simply not to\nbe oppressed, and not to be compelled to assist in doing anything which\nthey do not approve. They say to the majority, \"We will unite with you,\nif you desire it, for the accomplishment of all those purposes, in\nwhich we have a common interest with you. You can certainly expect us to\ndo nothing more. If you do not choose to associate with us on those\nterms, there must be two separate associations. You must associate for\nthe accomplishment of your purposes; we for the accomplishment of ours.\"\n\nIn this case, the minority assume no authority over the majority; they\nsimply refuse to surrender their own liberties into the hands of the\nmajority. They propose a union; but decline submission. The majority are\nstill at liberty to refuse the connection, and to seek their own\nhappiness in their own way, except that they cannot be gratified in\ntheir desire to become absolute masters of the minority.\n\nBut, it may be asked, how can the minority be trusted to enforce even\nsuch legislation as is equal and just? The answer is, that they are as\nreliable for that purpose as are the majority; they are as much presumed\nto have associated, and are as likely to have associated, for that\nobject, as are the majority; and they have as much interest in such\nlegislation as have the majority. They have even more interest in it;\nfor, being the weaker party, they must rely on it for their\nsecurity,--having no other security on which they can rely. Hence their\nconsent to the establishment of government, and to the _taxation_\nrequired for its support, is _presumed_, (although it ought not to be\npresumed,) without any express consent being given. This presumption of\ntheir consent to be taxed for the maintenance of laws, would be absurd,\nif they could not themselves be trusted to act in good faith in\nenforcing those laws. And hence they cannot be presumed to have\nconsented to be taxed for the maintenance of any laws, except such as\nthey are themselves ready to aid in enforcing. It is therefore unjust to\ntax them, unless they are eligible to seats in a jury, with power to\njudge of the justice of the laws. Taxing them for the support of the\nlaws, on the assumption that they are in favor of the laws, and at the\nsame time refusing them the right, as jurors, to judge of the justice of\nthe laws, on the assumption that they are opposed to the laws, are flat\ncontradictions.\n\nBut, it will be asked, what motive have the majority, when they have\nall power in their own hands, to submit their will to the veto of the\nminority?\n\nOne answer is, that they have the motive of justice. It would be\n_unjust_ to compel the minority to contribute, by taxation, to the\nsupport of any laws which they did not approve.\n\nAnother answer is, that if the stronger party wish to use their power\nonly for purposes of justice, they have no occasion to fear the veto of\nthe weaker party; for the latter have as strong motives for the\nmaintenance of _just_ government, as have the former.\n\nAnother answer is, that if the stronger party use their power\n_unjustly_, they will hold it by an uncertain tenure, especially in a\ncommunity where knowledge is diffused; for knowledge will enable the\nweaker party to make itself in time the stronger party. It also enables\nthe weaker party, even while it remains the weaker party, perpetually to\nannoy, alarm, and injure their oppressors. Unjust power,--or rather\npower that is _grossly_ unjust, and that is known to be so by the\nminority,--can be sustained only at the expense of standing armies, and\nall the other machinery of force; for the oppressed party are always\nready to risk their lives for purposes of vengeance, and the acquisition\nof their rights, whenever there is any tolerable chance of success.\nPeace, safety, and quiet for all, can be enjoyed only under laws that\nobtain the consent of all. Hence tyrants frequently yield to the demands\nof justice from those weaker than themselves, as a means of buying peace\nand safety.\n\nStill another answer is, that those who are in the majority on one law,\nwill be in the minority on another. All, therefore, need the benefit of\nthe veto, at some time or other, to protect themselves from injustice.\n\nThat the limits, within which legislation would, by this process, be\nconfined, would be exceedingly narrow, in comparison with those it at\npresent occupies, there can be no doubt. All monopolies, all special\nprivileges, all sumptuary laws, all restraints upon any traffic,\nbargain, or contract, that was naturally lawful,[117] all restraints\nupon men's natural rights, the whole catalogue of _mala prohibita_, and\nall taxation to which the taxed parties had not individually, severally,\nand freely consented, would be at an end; because all such legislation\nimplies a violation of the rights of a greater or less minority. This\nminority would disregard, trample upon, or resist, the execution of such\nlegislation, and then throw themselves upon a jury of the whole people\nfor justification and protection. In this way all legislation would be\nnullified, except the legislation of that general nature which\nimpartially protected the rights, and subserved the interests, of all.\nThe only legislation that could be sustained, would probably be such as\ntended directly to the maintenance of justice and liberty; such, for\nexample, as should contribute to the enforcement of contracts, the\nprotection of property, and the prevention and punishment of acts\nintrinsically criminal. In short, government in practice would be\nbrought to the necessity of a strict adherence to natural law, and\nnatural justice, instead of being, as it now is, a great battle, in\nwhich avarice and ambition are constantly fighting for and obtaining\nadvantages over the natural rights of mankind.\n\n[Footnote 117: Such as restraints upon banking, upon the rates of\ninterest, upon traffic with foreigners, &c., &c.]\n\n\n\n\nAPPENDIX.\n\nTAXATION.\n\n\nIt was a principle of the Common Law, as it is of the law of nature, and\nof common sense, that no man can be taxed without his personal consent.\nThe Common Law knew nothing of that system, which now prevails in\nEngland, of _assuming_ a man's own consent to be taxed, because some\npretended representative, whom he never authorized to act for him, has\ntaken it upon himself to consent that he may be taxed. That is one of\nthe many frauds on the Common Law, and the English constitution, which\nhave been introduced since Magna Carta. Having finally established\nitself in England, it has been stupidly and servilely copied and\nsubmitted to in the United States.\n\nIf the trial by jury were reestablished, the Common Law principle of\ntaxation would be reestablished with it; for it is not to be supposed\nthat juries would enforce a tax upon an individual which he had never\nagreed to pay. Taxation without consent is as plainly robbery, when\nenforced against one man, as when enforced against millions; and it is\nnot to be imagined that juries could be blind to so self-evident a\nprinciple. Taking a man's money without his consent, is also as much\nrobbery, when it is done by millions of men, acting in concert, and\ncalling themselves a government, as when it is done by a single\nindividual, acting on his own responsibility, and calling himself a\nhighwayman. Neither the numbers engaged in the act, nor the different\ncharacters they assume as a cover for the act, alter the nature of the\nact itself.\n\nIf the government can take a man's money without his consent, there is\nno limit to the additional tyranny it may practise upon him; for, with\nhis money, it can hire soldiers to stand over him, keep him in\nsubjection, plunder him at discretion, and kill him if he resists. And\ngovernments always will do this, as they everywhere and always have done\nit, except where the Common Law principle has been established. It is\ntherefore a first principle, a very _sine qua non_ of political freedom,\nthat a man can be taxed only by his personal consent. And the\nestablishment of this principle, with _trial by jury_, insures freedom\nof course; because: 1. No man would pay his money unless he had first\ncontracted for such a government as he was willing to support; and, 2.\nUnless the government then kept itself within the terms of its contract,\njuries would not enforce the payment of the tax. Besides, the agreement\nto be taxed would probably be entered into but for a year at a time. If,\nin that year, the government proved itself either inefficient or\ntyrannical, to any serious degree, the contract would not be renewed.\nThe dissatisfied parties, if sufficiently numerous for a new\norganization, would form themselves into a separate association for\nmutual protection. If not sufficiently numerous for that purpose, those\nwho were conscientious would forego all governmental protection, rather\nthan contribute to the support of a government which they deemed unjust.\n\nAll legitimate government is a mutual insurance company, voluntarily\nagreed upon by the parties to it, for the protection of their rights\nagainst wrong-doers. In its voluntary character it is precisely similar\nto an association for mutual protection against fire or shipwreck.\nBefore a man will join an association for these latter purposes, and pay\nthe premium for being insured, he will, if he be a man of sense, look at\nthe articles of the association; see what the company promises to do;\nwhat it is likely to do; and what are the rates of insurance. If he be\nsatisfied on all these points, he will become a member, pay his premium\nfor a year, and then hold the company to its contract. If the conduct of\nthe company prove unsatisfactory, he will let his policy expire at the\nend of the year for which he has paid; will decline to pay any further\npremiums, and either seek insurance elsewhere, or take his own risk\nwithout any insurance. And as men act in the insurance of their ships\nand dwellings, they would act in the insurance of their properties,\nliberties and lives, in the political association, or government.\n\nThe political insurance company, or government, have no more right, in\nnature or reason, to _assume_ a man's consent to be protected by them,\nand to be taxed for that protection, when he has given no actual\nconsent, than a fire or marine insurance company have to assume a man's\nconsent to be protected by them, and to pay the premium, when his actual\nconsent has never been given. To take a man's property without his\nconsent is robbery; and to assume his consent, where no actual consent\nis given, makes the taking none the less robbery. If it did, the\nhighwayman has the same right to assume a man's consent to part with his\npurse, that any other man, or body of men, can have. And his assumption\nwould afford as much moral justification for his robbery as does a like\nassumption, on the part of the government, for taking a man's property\nwithout his consent. The government's pretence of protecting him, as an\nequivalent for the taxation, affords no justification. It is for himself\nto decide whether he desires such protection as the government offers\nhim. If he do not desire it, or do not bargain for it, the government\nhas no more right than any other insurance company to impose it upon\nhim, or make him pay for it.\n\nTrial by the country, and no taxation without consent, were the two\npillars of English liberty, (when England had any liberty,) and the\nfirst principles of the Common Law. They mutually sustain each other;\nand neither can stand without the other. Without both, no people have\nany guaranty for their freedom; with both, no people can be otherwise\nthan free.[118]\n\nBy what force, fraud, and conspiracy, on the part of kings, nobles, and\n\"a few wealthy freeholders,\" these pillars have been prostrated in\nEngland, it is designed to show more fully in the next volume, if it\nshould be necessary.\n\n[Footnote 118: Trial by the country, and no taxation without consent,\nmutually sustain each other, and can be sustained only by each other,\nfor these reasons: 1. Juries would refuse to enforce a tax against a man\nwho had never agreed to pay it. They would also protect men in forcibly\nresisting the collection of taxes to which they had never consented.\nOtherwise the jurors would authorize the government to tax themselves\nwithout their consent,--a thing which no jury would be likely to do. In\nthese two ways, then, trial by the country would sustain the principle\nof no taxation without consent. 2. On the other hand, the principle of\nno taxation without consent would sustain the trial by the country,\nbecause men in general would not consent to be taxed for the support of\na government under which trial by the country was not secured. Thus\nthese two principles mutually sustain each other.\n\nBut, if either of these principles were broken down, the other would\nfall with it, and for these reasons: 1. If trial by the country were\nbroken down, the principle of no taxation without consent would fall\nwith it, because the government would then be _able_ to tax the people\nwithout their consent, inasmuch as the legal tribunals would be mere\ntools of the government, and would enforce such taxation, and punish men\nfor resisting such taxation, as the government ordered. 2. On the other\nhand, if the principle of no taxation without consent were broken down,\ntrial by the country would fall with it, because the government, if it\ncould tax people without their consent, would, of course, take enough of\ntheir money to enable it to employ all the force necessary for\nsustaining its own tribunals, (in the place of juries,) and carrying\ntheir decrees into execution.]","title":"An Essay on the Trial by Jury","tradition":"philosophy-ethics","translated_text":null,"word_count":94581}