Scanner's Note: I have made two changes in this text.  First I have
removed the footnotes to the end of each chapter and I have placed
note 9 at the end of chapter 6 noting that because of the ratification
of the XIX amendment to the Constitution for the United States,
August 20, 1920, women were fully enfranchised with all rights of
voting and jury service in all states of the Union.  Other than the lack
of italics and bold in this text and the typos (may they be few) this is
the complete first edition text.  Let me know of any mistakes you have
caught!  My email address's for now is haradda@aol.com and
davidr@inconnect.com.

David Reed





An Essay on the Trial By Jury
By LYSANDER SPOONER


Entered according to Act of Congress, in the year 1852, by
LYSANDER SPOONER

In the Clerk's Office of the District Court of Massachusetts.

NOTICE TO ENGLISH PUBLISHERS

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

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


NOTE

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




CONTENTS

CHAPTER I. THE RIGHT OF JURIES TO JUDGE OF THE
JUSTICE OF LAWS
SECTION 1.
SECTION 2.

CHAPTER II. THE TRIAL BY JURY, AS DEFINED BY
                        MAGNA CARTA
SECTION 1. The History Of Magna Carta
SECTION 2. The Language Of Magna Carta

CHAPTER III. ADDITIONAL PROOFS OF THE RIGHTS AND
             DUTIES OF JURORS.
SECTION 1. Weakness of the Regal Authority
SECTION 2. The Ancient Common Law Juries Were Mere Courts
           Of Conscience
SECTION 3. The Oaths of Jurors
SECTION 4. The Right Of Jurors To Fix The Sentence
SECTION 5. The Oaths Of Judges
SECTION 6. The Coronation Oath

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

CHAPTER V. OBJECTIONS ANSWERED

CHAPTER VI. JURIES OF THE PRESENT DAY ILLEGAL

CHAPTER VII. ILLEGAL JUDGES

CHAPTER VIII. THE FREE ADMINISTRATION OF JUSTICE

CHAPTER IX. THE CRIMINAL INTENT

CHAPTER X. MORAL CONSIDERATIONS FOR JURORS

CHAPTER XI. AUTHORITY OF MAGNA CARTA

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

APPENDIX   TAXATION




TRIAL BY JURY

CHAPTER I

THE RIGHT OF JURIES TO JUDGE OF THE JUSTICE OF LAWS

SECTION I.

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

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

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

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

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

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

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

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

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

To secure this right of the people to judge of their own liberties
against the government, the jurors are taken, (or must be, to make
them lawful jurors,} from the body of the people, by lot, or by
some process that precludes any previos knowledge, choice, or
selection of them, on the part of the government.

This is done to prevent the government's constituting a jury of its
own partisans or friends; in other words, to prevent the
government's packing a jury, with a view to maintain its own laws,
and accomplish its own purposes.

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

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

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

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

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

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

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

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

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

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

SECTION  II.

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

There are two answers to such an argument.

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

This right of resistance is recognized by the constitution of the
United States, as a strictly legal and constitutional right. It is so
recognized, first by the provision that "the trial of all crimes,
except in cases of impeachment, shall be by jury"   that is, by the
country   and not by the government; secondly, by the provision
that "the right of the people to keep and bear arms shall not be
infringed." This constitutional security for "the right to keep and
bear arms," implies the right to use them   as much as a
constitutional security for the right to buy and keep food would
have implied the right to eat it. The constitution, therefore, takes it
for granted that

the people will judge of the conduct of the government, and that,
as they have the right, they will also have the sense, to use arms,
whenever the necessity of the case justifies it. And it is a sufficient
and legal defence for a person accused of using arms against the
government, if he can show, to the satisfaction of a jury, or even
any one of a jury, that the law he resisted was an unjust one.

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

[4] Hallam says, "The relation established between a lord and his
vassal by the feudal tenure, far from containing principles of any
servile and implicit obedience, permitted the compact to be
dissolved in case of its violation by either party. This extended as
much to the sovereign as to inferior lords. * * If a, vassal was
aggrieved, and if justice was denied him, he sent a defiance, that
is, a renunciation of fealty to the king, and was entitled to enforce
redress at the point of his sword. It then became a contest of
strength as between two independent potentates, and was
terminated by treaty, advantageous or otherwise, according to the
fortune of war. * * There remained the original principle, that
allegiance depended conditionally upon good treatment, and that
an appeal might be lawfully made to arms against an oppressive
government. Nor was this, we may be sure, left for extreme
necessity, or thought to require a long-enduring forbearance. In
modern times, a king, compelled by his subjects' swords to
abandon any pretension, would be supposed to have ceased to
reign; and the express recognition of such a right as that of
insurrection has been justly deemed inconsistent with the majesty
of law. But ruder ages had ruder sentiments. Force was necessary
to repel force; and men accustomed to see the king's authority
defied by a private riot, were not much shocked when it was
resisted in defence of public freedom."   3 Middle Age, 240-2.


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

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

SECTION I

The History of Magna Carta.

In order to judge of the object and meaning of that chapter of
Magna Carta which secures the trial by jury, it is to be borne in
mind that, at the time of Magna Carta, the king (with exceptions
immaterial to this discussion, but which will appear hereafter)
was, constitutionally, the entire government; the sole legislative,
judicial, and executive power of the nation. The executive and
judicial officers were merely his servants, appointed by him, and
removable at his pleasure. In addition to this, "the king himself
often sat in his court, which always attended his person. He there
heard causes, and pronounced judgment; and though he was
assisted by the advice of other members, it is not to be imagined
that a decision could be obtained contrary to his inclination or
opinion."[1] Judges were in those days, and afterwards, such abject
servants of the king, that "we find that King Edward I. (1272 to
1307) fined and imprisoned his judges, in the same manner as
Alfred the Great, among the Saxons, had done before him, by the
sole exercise of his authority."[2]

Parliament, so far as there was a parliament, was a mere council of
the king.[3] It assembled only at the pleasure of the king; sat only
during his pleasure; and when sitting had no power, so far as
general legislation was concerned, beyond that of simply advising
the king. The only legislation to which their assent was
constitutionally necessary, was demands for money and military
services for extraordinary occasions. Even Magna Carta itself
makes no provisions whatever for any parliaments, except when
the king should want means to carry on war, or to meet some other
extraordinary necessity.[4] He had no need of parliaments to raise
taxes for the ordinary purposes of government; for his revenues
from the rents of the crown lands and other sources, were ample
for all except extraordinary occasions. Parliaments, too, when
assembled, consisted only of bishops, barons, and other great men
of the kingdom, unless the king chose to invite others.[5] There
was no House of Commons at that time, and the people had no
right to be heard, unless as petitioners.[6]

Even when laws were made at the time of a parliament, they were
made in the name of the king alone. Sometimes it was inserted in
the laws, that they were made with the consent or advice of the
bishops, barons, and others assembled; but often this was omitted.
Their consent or advice was evidently a matter of no legal
importance to the enactment or validity of the laws, but only
inserted, when inserted at all, with a view of obtaining a more
willing submission to them on the part of the people. The style of
enactment generally was, either "The King wills and commands,"
or some other form significant of the sole legislative authority of
the king. The king could pass laws at any time when it pleased
him. The presence of a parliament was wholly unnecessary. Hume
says, "It is asserted by Sir Harry Spelman, as an undoubted fact,
that, during the reigns of the Norman princes, every order of the
king, issued with the consent of his privy council, had the full
force of law."[7] And other authorities abundantly corroborate this
assertion.[8]The king was, therefore, constitutionally the
government; and the only legal limitation upon his power seems to
have been simply the Common Law, usually called "the law of the
land," which he was bound by oath to maintain; (which oath had
about the same practical value as similar oaths have always had.)
This "law of the land" seems not to have been regarded at all by
many of the kings, except so far as they found it convenient to do
so, or were constrained to observe it by the fear of arousing
resistance. But as all people are slow in making resistance,
oppression and usurpation often reached a great height; and, in the
case of John, they had become so intolerable as to enlist the nation
almost universally against him; and he was reduced to the
necessity of complying with any terms the barons saw fit to dictate
to him.

It was under these circumstances, that the Great Charter of Englsh
Liberties was granted.

The barons of England, sustained by the common people, having
their king in their power, compelled him, as the price of his throne,
to pledge himself that he would punish no freeman for a violation
of any of his laws, unless with the consent of the peers   that is, the
equals   of the accused.

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

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

Besides, if his laws were to be authoritative with the jury, why
should John indignantly refuse, as at first he did, to grant the
charter, (and finally grant it only when brought to the last
extremity,) on the ground that it deprived him of all power, and
left him only the name of a king? He evidently understood that the
juries were to veto his laws, and paralyze his power, at discretion,
by forming their own opinions as to the true character of the
offences they were to try, and the laws they were to be called on to
enforce; and that "the king wills and commands" was to have no
weight with them contrary to their own judgments of what was
intrinsically right.[9]

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

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

SECTION II.

The Language of Magna Carta

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

The chapter guaranteeing the trial by jury is in these words:
"Nullus liber homo capiatur, vel imprisonetur, aut disseisetur, aut
utlagetor, aut exuletur, aut aliquo modo destruatur; nec super eum
ibimus, nec super eum mittemus, nisi per legale judicium parium
suorum, vel per legem terrae."[10]

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

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

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

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

"Nec super eum ibimus, nec super eum mittemus."

There has been much confusion and doubt as to the true meaning
of the words, "nec super eum ibimus, neo super eum mittemus."
The more common rendering has been, "nor wilt we pass upon
him, nor condemn him." But some have translated them to mean,
"nor will we pass upon him, nor commit him to prison." Coke
gives still a different rendering, to the effect that "No man shall be
condemned at the king's suit, either before the king in his bench,
nor before any other commissioner or judge whatsoever." [11]

But all these translations are clearly erroneous. In the first place,
"nor will we pass upon him,"   meaning thereby to decide upon his
guilt or innocence judicially   is not a correct rendering of the
words, "nec super eum ibimus." There is nothing whatever, in
these latter words, that indicates judicial action or opinion at all.
The words, in their common signification, describe physical action
alone. And the true translation of them, as will hereafter be seen,
is, "nor will we proceed against him," executively.

In the second place, the rendering, "nor will we condemn him,"
bears little or no analogy to any common, or even uncommon,
signification of the words "nec super eum mittemus." There is
nothing in these latter words that indicates judicial action or
decision. Their common signification, like that of the words nec
super eum ibimus, describes physical action alone. "Nor will we
send upon (or against) him," would be the most obvious
translation, and, as we shall hereafter see, such is the true
translation.

But although these words describe physical action, on the part of
the king, as distinguished from judicial, they nevertheless do not
mean, as one of the translations has it, "nor will we commit him to
prison;" for that would be a mere repetition of what had been
already declared by the words "nec imprisonetur." Besides, there is
nothing about prisons in the words "nec super eum mittemus;"
nothing about sending him anywhere; but only about sending
(something or somebody) upon him, or against him   that is,
executively.

Coke's rendering is, if possible, the most absurd and gratuitous of
all. What is there in the words, "nec super eum mittemus," that can
be made to mean "nor shall he be condemned before any other
commissioner or judge whatsoever."? Clearly there is nothing. The
whole rendering is a sheer fabricatin. And the whole object of it is
to give color for the exercise of a judicial power, by the king, or
his judges, which is nowhere given them.

Neither the words, "Nec super eum ibimus, nec super eum
mittemus," nor any other words in the whole chapter, authorize,
provide for, describe, or suggest, any judicial action whatever, on
the part either of the king, or of his judges, or of anybody, except
the peers, or jury. There is nothing about the king's judges at all.
And, there is nothing whatever, in the whole chapter, so far as
relates to the action of the king, that describes or suggests anything
but executive action.[12]

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

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

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

A copy of this charter is given in a note in Blackstone's
Introduction to the Charter.[13]

Mr. Christian speaks of this charter as settling the true meaning of
the corresponding clause of Magna Carta, on the principle tat laws
and charters on the same subject are to be construed with reference
to each other. See 3 Christin's Blackstone, 41, note.

The true meaning of the words, nec super eum ibimus, nec super
eum mittemus, is also proved by the "Articles of the Great Charter
of Liberties," demanded of the king by the barons, and agreed to by
the king, under seal, a few days before the date of the Charter, and
from which the Charter was framed. [14]
Here the words used are these:

"Ne corpus liberi hominis capiatur nec imprisonetur nec
disseisetur nec ut1agetur nec exuletur nec aliquo modo destruatur
nec rex eat vel mittat super eun vi nisi per judicium pariurn
suorum vel per legem terrae."

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

The true translation of the words nec super eum ibimus, nec super
eum mittemus, in Magna Carta, is thus made certain, as follows,
"nor will we (the king) proceed against him, nor send (any one)
against him, WITH FORCE OR ARMS. [15]

It is evident that the difference between the true and false
translations of the words, nec super eum ibius, nec super eum
mittemus, is of the highest legal importance, inasmuch as the true
translation, nor will we (the king) proceed against him, nor send
(any one) against him by force of arms, represents the king only in
an executive character, carrying the judgment of the peers and "the
law of the land" into execution; where as the false translation, nor
will we pass upon him, nor condemn him,  gives color for the
exercise of a judicial power, on the part of the king, to which the
king had no right, but which, according to the true translation,
belongs wholly to th jury.

"Per legale judicium parium suorum."

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

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

The true meaning of the phrase, per judicium parium suorum, is,
according to the sentence of his eers. The word  judicium,
judgment, has a technical meaning in the law, signifying the
decree rendered in the decision of a cause. In civil suits this
decision is called a judgment; in chancery proceedngs it is called a
decree; in criminal actions it is called a sentence, or judgment,
indifferently. Thus, in a criminal suit, "a motion in arrest of
judgment," means a motion in arrest of sentence. [16]
In cases of sentence, therefore, in criminal suits, the words
sentence and judgment are synonymous terms. They are, to this
day, commonly used in law books as synonymous terms. And the
phrase per jndicium parium suorum, therefore, implies that the
jury are to fix the sentence.

The word per means according to. Otherwise there is no sense in
the phrase per judicium paruim suorum. There would be no sense
in saying that a king might imprison, disseize, outlaw, exile, or
otherwise punish a man, or proceed against him, or send any one
against him, by force or arms, by a judgment of his peers; but there
is sense in saying that the king may imprison, disseize, and punish
a man, or proceed against him, or send any one against him, by
force or arms, according to a judgment, or sentence, of his peers;
because in that case the king would be merely carrying the
sentence or judgment of the peers into execution.

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

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

Doing a thing by law, or according to law, is only carrying the law
into execution. And punishing a man by, or according to, the
sentence or judgment of his peers, is only carrying that sentence or
judgment into execution.

If these reasons could leave any doubt that the word per is to be
translated according to, that doubt would be removed by the terms
of an antecedent guaranty for the trial by jury, granted by the
Emperor Conrad, of Germany,  [17] two hundred years before
Magna Carta. Blackstone cites it as follows:   (3 Blackstone, 350.)
"Nemo beneficium suum perdat, nisi secundum consuetu-dinem
antecessorum nostrorum, et judicium parium suorum." That is, No
one shall lose his estate,  [18] unless according to ("secundum")
the custom (or law) of our ancestors, and (according to) the
sentence (or judgment) of his peers.

The evidence is therefore conclusive that the phrase per judicium
parian suorum means according to the sentence of his peers; thus
implying hat the jury, and not the government, are to fix the
sentence.

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

"A freeman shall not be amerced for a small crime, (delicto,) but
according to the degree of the crime; and for a great crime in
proportion to the magnitude of it, saving to him his contenement;
[19] and after the same manner a merchant, saving to him his
merchandise. And a villein shall be amerced after the same
manner, aving to him his waynage,  [20] if he fall under our mercy;
and none of the aforesaid amercements shall be imposed, (or
assessed, ponatur,) but by the oath of honest men of the
neighborhood. Earls and Barons shall not be amerced but by their
peers, and according to the degree of their crime." [21]

Pecuniary punishments were the most common punishments at
that day, and the foregoing provisions of Magna Carta show that
the amount of those punishments was to be fixed by the jury.
Fines went to the king, and were a source of revenue; and if the
amounts of the fines had been left to be fixed by the king, he
would have had a pecuniary temptation to impose unreasonable
and oppressive ones. So, also, in regard to other punishments than
fines. If it were left to the king to fix the punishment, he might
often have motives to inflict cruel and oppressive ones. As it was
the object of the trial by jury to protect the people against all
possible oppression from the king, it was necessary that the jury,
and not the king, should fix the punishments. [22]

"Legale."

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

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

"Per legem terrae."

One other phrase remains to be explained, viz., "per legem terrae,"
"by the law of the land."

All writers agree that this means the common law.Thus, Sir
Matthew Hale says:

"The common law is sometimes called, by way of eminence, lex
terrae,as in the statute of Magna Carta,chap. 29, where certainly
the common law is principally intended by those words, aut per
legem terrae;as appears by the exposition thereof in several
subsequent statutes; and particularly in the statute of 28 Edward
III., chap. 3, which is but an exposition and explanation of that
statute. Sometimes it is called lex Angliae,as in the statute of
Merton, cap. 9, "olurnus leqes Angliae mutari,"&c;., (We will that
the laws of England be not changed). Sometimes it is called lex et
consuetudo regni(the law and custom of the kingdom); as in all
commissions of oyer and terminer; and in the statutes of 18
Edward I., cap.  , and de quo warranto,and divers others. But most
commonly it is called the Common Law, or the Common Law of
England; as in the statute Articuli super Chartas,cap. 15, in the
statute 25 Edward III., cap. 5, (4,) and infinite more records and
statutes."   1 Hale's History of the Common Law, 128.

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

"Edward, by the Grace of God, &c;., &c;., to the Sheriff of
Stafford, Greeting: Because that by divers complaints made to us,
we have perceived that the law of the land, which we by oath are
bound fo maintain,"&c;. St. 20 Edward III

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

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

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

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

Whether Magna Carta allowed of any other trial than by jury.

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

The answer is, that, at the time of Magna Carta, it is not probable,
(for the reasons given in the note,) that legem terrae authorized, in
criminal cases, any other trial than the trial by jury; but, if it did, it
certainly authorized none but the trial by battle, the trial by ordeal,
and the trial by compurgators. These were the only modes of trial,
except by jury, that had been knownin England, in criminal cases,
for some centuries previous to Magna Carta. All of them had
become nearly extinct at the time of Magna Carta, and it is not
probable that they were included in "legem terrae," as that term is
used in that instrument. But if they were included in it, they have
now been long obsolete, and were such as neither this nor any
future age will ever return to. [23]

For all practical puposes of the present day, therefore, it may be
asserted that Magna Carta allows no trial whatever but trial by
jury.

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

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

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

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

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

1. It is uncertain whether the common law fixed the punishment of
any offence whatever.

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

3. The express provisions of Magna Carta, before adverted to, that
no amercements, or fines, should be imposed upon. freemen,
merchants, or villeins, "but by the oath of honest men of the
neighborhood," and "according to the degree of the crime," and
that "earls and barons shout not be amerced but by their peers, and
according to the quality of the offence,"  proves that, at least, there
was no common law fixing the amount of  fines, or, if there were,
that it was to be no longer in force. And if there was no common
law fixing the amount of fines, or if it was to be no longer in force,
it is reasonable to infer, (in the absence of all evidence to the
contrary,) either that the common law did not fix the amount of
any other punishment, or that it was to be no longer in force for
that purpose. [25]

Under the Saxon laws, fines, payable to the injured party, seem to
have been the common punishments for all offences. Even murder
was punishable by a fine payable to the relatives of the deceased.
The murder of the king even was punishable by fine. When a
criminal was unable to pay his One, his relatives often paid it for
him. But if it were not paid, he was put out of the protection of the
law, and the injured parties, (or,in the case of murder, the kindred
of the deceased,)were allowed to inflict such punishment as they
pleased. And if the relatives of the criminal protected him, it was
lawful to take vengeance on them also. Afterwards the custom
grew up of exacting fines also to the king as a punishment for
offences.  [26]

And this latter was, doubtless, the usual punishment at the time of
Magna Carta, as is evidenced by the fact that for many years
immediately following Magna Carta, nearly or quite all statutes
that prescribed any punishment at all, prescribed that the offender
should "be grievously  amerced," or "pay a great fine to the king,"
or a "grievous ransom,"     with the alternative in some cases
(perhaps understood in all) of imprisonment, banishment, or
outlawry, in case of non-payment. [27]

Judging, therefore, from the special provisions in Magna Carta,
requiring fines, or amercements, to be imposed only by juries,
(without mentioning any other punishments;) judging, also, from
the statutes which immediately followed Magna Carta, it is
probable that, the Saxon custom of punishing all, or nearly all,
offences by fines, (with the alternative to the criminal of being
imprisoned, banished, or outlawed, and exposed to private
vengeance, in case of non-payment,) continued until the time of
Magna Carta; and that in providing expressly that fines should be
fixed by the juries, Magna Carta provided for nearly or quite all
the punishments that were expected to be inflicted; that if there
were to be any others, they were to be fixed by the juries; and
consequently that nothing was left to be fixed by "legem terrae."
But whether the common law fixed the punishment of any
offences, or not, is a matter of little or no practical importance at
this day; because we have no idea of going back to any common
law punishments of six hundred years ago, if, indeed, there were
any such at that time. It is enough for us to know   and this is what
is material for us know   that the jury fixed the punishments, in all
cases, unless they were fixed by the common law; that Magna
Carta allowed no punishments to be prescribed by statute   that is,
by the legislative power   nor in any other manner by the king, or
his judges, in any case whatever; and, consequently, that all
statutes prescribing particular punishmnts for particular offences,
or giving the king's judges any authority to fix punishments, were
void.

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

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

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

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

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

We also know that, in case of conviction, the sentence of the jury
was not necessarily final; that the accused had the right of appeal
to the king and his judges, and to demand either a new trial, or an
acquittal, if the trial or conviction had been against law. So much,
therefore, of the legem terrae of Magna Carta, we know with
reasonable certainty.

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

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

We also know, generally, that, at the time of Magna Carta, all acts
intrinsically criminal, all trespasses against persons and property,
were crimes, according to lex terra, or the common law.
Beyond the points now given, we hardly know anything, probably
nothing with certainty, as to what the "legem terran" of Magna
Carta did authorize, in regard to crimes. There is hardly anything
extant that can give us any real light on the subject.
It would seem, however, that there were, even at that day, some
common law principles governing arrests; and some common law
forms and rules as to holding a man for trial, (by bail or
imprisonment;) putting him on trial, such as by indictment or
complaint; summoning and empanelling jurors, &c;., &c;.
Whatever these common law principles were, Magna Carta
requires them to be observed; for Magna Carta provides for the
whole proceedings, commencing with the arrest, ("no freeman
shall be arrested," &c;.,) and ending with the execution of the
sentence. And it provides that nothing shall be done, by the
government, from beginning to end, unless according to the
sentence of the peers, or "legem terrae," the common law. The trial
by peers was a part of legem terrae, and we have seen that the
peers must necessarily have governed the whole proceedings at the
tria1. But all the proceedings for arresting the man, and bringing
him to trial, must have been had before the case could come under
the cognizance of the peers, and they must, therefore, have been
governed by other rules than the discretion of the peers. We may
conjecture, although we cannot perhaps know with much certainty,
that the lex terrae, or common law, governing these other
proceedings, was somewhat similar to the common law principle,
on the same points, at the present day. Such seem to be the
opinions of Coke, who says that the phrase nisi per legem terrae
means unless by due process of law. Thus, he says: "Nisi per legem
terrae. But by the law of the land.

For the true sense and exposition of these words, see the statute f
37 Edw. III., cap. 8, where the words, by the law of the land, are
rendered without due process of law; for there it is said, though it
be contained in the Great Charter, that no man be taken,
imprisoned, or put out of his freehold, without process of the law;
that is, by indictment or presentment of good and lawful men,
where such deeds be done in due manner, or by writ original of the
common law.

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

"No man be put to answer without presentment before justices, or
thing of record, or by due process, or by writ original, according to
the old law of the land."   2 Inst. 50.

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

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

"Whereas it is contained in the Great Charter of the franchises of
England, that none shall be imprisoned, nor put out of his freehold,
nor of his franchises, nor free customs, unless it be by the law of
the land; it is accorded, assented, and established, that from
henceforth none shall be taken by petition, or suggestion made to
our lord the king, or to his council, unless it be by indictment or
presentment of good and lawful people of the same neighborhood
where such deeds be done in due manner, or by process made by
writ original at the common law; nor that none be put out of his
franchises, nor of his freehold, unless he be duly brought into
answer, and forejudged of the same by the course of the Law; and
if anything be done against the same, it shall be redressed, and
holden for none."   8t. 95 Edward III., Ch. 4. (1350.)

"That no man, of what estate or condition that he be, shall be put
out of land or tenement, nor taken, nor imprisond, nor disinherited,
nor put to death, without being brought in answer by due process
of law."   8t. 28 Aboard III., Ch. 3. (1354.)

"That no man be put to answer without presentment before
justices, or matter of record, or by due process and writ original,
according to the old law of the land. And if anything from
henceforth be done to the contrary, it shall be void in law, and
holden for error."   8t. 42 Edward IIL, Ch. 3. (1368.)

The foregoing interpretation of the words nisi per legem terrae
that is, by due process of law   including indictment, &c;., has
been adopted. as the true one by modern writers and courts; as, for
example, by Kent, (2 Comm. 13,) Story, (3 Comm. 661,) and the
Supreme Court of New York, (19 Wendell, 6T6; 4 Hill, 146.)
The fifth amendment to the constitution of the United States seems
to have been framed on the same idea, inasmuch as it provides that
"no person shall be deprived of life, liberty, or property, without
due process of law." [28]

Whether the word VEL should be rendered by OR, or by AND.

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

Blackstone suggests that this may be the true reading. (Charters, p.
41.) Also Mr. Hallam, who says:"Nisi per legale judicium parium
suorum, vel per legem terra;. Several explanations have been
offered of the alternative clause; which some have referred to
judgment by default, or demurrer; others to the process of
attachment for contempt. Certainly there are many legal
procedures besides trial by jury, through which a party's goods or
person may be taken. But one may doubt whether these were in
contemplation of the framers of Magna Carta. In an entry of the
Charter of 1217 by a contemporary hand, preserved in the
Town-clerk's office in London, called Liber Custumarum et
Regum antiquarum, a various reading, et per legem terrae, occurs.
Blackstone's Charters, p. 42 (41.) And the word vel is so frequently
used for et, that I amnot wholly free from a suspicion that it  was
so intended in this place. The meaning will be, that no person shall
be disseized, &c;., except upon a lawful cause of action, found by
the verdict of a jury. This really seems as good as any of the
disjunctive interpretatios; but I do not  offer it with much
confidence."   2 Hallam's Middle Ages,   Ch. 8, Part 2, p. 449,
note."  [29]

The idea that the word vel,  should be rendered by and, is
corroborated, if not absolutely confirmed, by the following passage
in Blackstone, which has before been cited. Speaking of the trial
by jury, as established by Magna Carta, he calls it, "A privilege
which is couched in almost the same words with that of the
Emperor Conrad two hundred years before: 'nemo beneficium
suum perdat, nisi secundum consuetudinem antecessorum
nostrorum, et,  judicium parium suorum. ' (No one shall lose his
estate unless according to the custom of our ancestors, and,  the
judgment of his peers.)   3 Blackstone, 350.,

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

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

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

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

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

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

[1] Hume, Appendix 2,

[2] Crabbe's History of the English Law, 236.

[3] Coke says, "The king of England is armed with divers councils,
one whereof is called commune concilium, (the common council,)
and that is the court of parliament and so it is legally called in
writs and judicial proceedings comanche concilium regni
Anglicae, (the common council of the kingdom of England.) And
another is called magnum concilium, (great council;) this is
sometimes applied to the upper house of parliament, and
sometimes, out of parliament time, to the peers of the realm, lords
of parliament, who are called magnum concilium regis, (the great
council of the king;) [4] Thirdly, (as every man knoweth,) the king
hath a privy council for matters of state. * * The fourth council of
the king are his judges for law matters." 1 Coke's Institutes, 110 a.

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

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

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

[7] Hume, Appendix 2.

[8] This point will be more fully established hereafter.

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

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

[10] The laws were, at that time, all written in Latin.

[11]"No man shall be condemned at the king"s suit, either before
the king in his bench, where pleas are coram rege, (before the
king,) (and so are the words nec super eum ibimus, to be
understood,) nor before any other commissioner or judge
whatsoever, and so are the words nec super eum mittemus, to be
understood, but by the judgment of his peers, that is, equals, or
according to the law of the land."   2 Coke's Inst., 46.

[12] Perhaps the assertion in the text should be made with this
qualification   that the words "per legem terrae," (according to the
law of the land,) and the words "per legale judiciun parium
suorum," (according to the legal judgment of his peers,) imply that
the king, before proceeding to any executive action, will take
notice of "the law of the land," and of the legality of the judgment
of the peers, and will execute upon the prisoner nothing except
what the law of the land authorizes, and no judgments of the peers,
except legal ones. With this qualification, the assertion in the text
is strictly correct   that there is nothing in the whole chapter that
grants to the king, or his judges, any judicial power at all. The
chapter only describes and limits his executive power.

[13] See Blackstone'a Law Tracts, page 294, Oxford Edition

[14] These Articles of the Charter are given in Blackstone's
collection of Charters, and are also printed with the statutes of the
Realm. Also in Wilkins' Laws of the Anglo- Saxons, p. 350.

[15] Lingard says, " The words, ' We will not destroy him nor will
we go upon him, nor will we send upon him,' have been very
differently expounded by different legal authorities. Their real
meaning may be learned from John himself, who the next year
promised by his letters patent,... nec super eos per vim vel per
arma ibimus, nisi per legem regni nostri, vel per judicium parium
suorum in curia nostra, (nor will we go upon them by force or by
arms, unless by the law of our kingdom, or the judgment of their
peers in our court.) Pat. 16 Johan, apud Drad. 11, app. no. 124.

He had hitherto been in the habit of going with an armed force, or
sending an armed force on the lands, and against the castles, of all
whom he knew or suspected to be his secret enemies, without
observing any form of law."   3 Lingard, 47 note.

[16] "Judgment, judicium. * * The sentence of the law,
pronounced by the court, upon the matter contained in the record."
  8 Blackstone, 895. Jacob's Law Dictionary. . Tomlin's do.

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

"Judgment, judicium. * * Sentence of a judge against a criminal. *
* Determination, decision in general."   Bailey's Dict.

"Judgment. * * In a legal sense, a sentence or decision pronounced
by authority of a king, or other power, either by their own mouth,
or by that of their judges andofficers, whom they appoint, to
administer justice in their stead."   Chambers' Dict.

"Judgment. * * In law, the sentence or doom pronounced in any
case, civil orcriminal, by the judge or court by which it is tried."
Webster's Dict.

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

Also the "Statutes of uncertain date," (but supposed to be prior to
Edward III., or 1326,) provide, in chapters 6, 7, and 10, for
"judgment of the pillory."   See 1 Rughead's Statutes, 187, 188. 1
Statutes of the Realm, 203.

Blackstone, in his chapter "Of Judgment, and its Consequences,"
says, "Judgment (unless any matter be offered in arrest thereof) follows
upon conviction f being the pronouncing of that punishment which
is expressly ordained by law."   Blackstone's Analysis of the Laws
of England, Book 4, Ch. 29, Sec. 1. Blackstone's Law Tracts, 126.

Coke says, "Judicium .. the judgment is the guide and direction of
the execution." 3 Inst. 210.

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

[18] Beneficium was the legal name of an estate held by a feudal
tenure. See Spelman's Glossary.

[19]] Contenement of a freeman was the means of living in the
condition of a freeman.

[20] Waynage was a villein's plough-tackle and carts.

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

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

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

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

I apprehend that this trial was never forced upon accused persons,
but was only allowed to them, as an appeal to God, from the
judgment of a jury. [24]

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

[24] Hallam says, "It appears as if the ordeal were permitted to
persons already convicted by the verdict of a jury."   2 Middle
Ages, 446, note.

[25] Coke attempts to show that there is a distinction between
amercements and fines   admitting that amercements must be
fixed by one's peers, but, claiming that, fines may be fixed by the
government. (2 Inst. 27, 8 Coke's Reports 38) But there seems to
have been no ground whatever for supposing that any such
distinction existed at the time of Magna Carta. If there were any
such distinction in the time of Coke, it had doubtless grown up
within the four centuries that had elapsed since Magna Carta, and
is to be set down as one of the numberless inventions of
government for getting rid of the restraints of Magna Carta, and
for taking men out of the protection of their peers, and subjecting
them to such punishments as the government chooses to inflict.

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

"Forasmuch as the common fine and amercement of the whole
county in Eyre of the justices for false judgments, or for other
trespass, is unjustly assessed by sheriffs and baretors in the shires,
* * it is provided, and the king wills, that frown henceforth such
sums shall be assessed before the justices in Eyre, afore their
departure, by the oath of knights and other honest men," &c.   3
Edward I., Ch. 18. (1275)

And in many other statutes passed after Magna Carta, the terms
fine and amercement seem to be used indifferently, in prescribing
the punishments for offences. As late as 1461, (246 years after
Magna Carta,) the statute 1 Edward IV., Ch 2, speaks of "fines.,
ransoms, and amerciaments" as being levied upon criminals, as if
they were the common punishments of offences.

St. 2 and 3 Philip and Mary, Ch 8, uses the terms, "fines,
forfeitures, and amerciaments" five times. (1555)

St. 5 Elizabeth, Ch. 13, Sec. 10, uses the terms "fines, forfeitures,
and amerciaments."

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

Thus one statute declares that a baker, for default in the weight of
his bread, "ought to be amerced, or suffer the judgment of the
pillory; and that a brewer, for "selling ale contrary to the assize,"
"ought to be amerced, or suffer the judgment of the tumbrel," -- 51
Henry III., St. 6. (1266)

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

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

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

Chap. 10, a statute against forestalling, provides that, "He that is
convict thereof, the first time shall be amerced, and shall lose the
thing so bought, and that according to the custom of the town; he
that is convicted the second time shall have judgment of the
pillory; at the third time he shall be imprisoned and make fine; the
fourth time he shall abjure the town. And this judgment shall be
given upon all manner of forestallers, and likewise upon them that
have given them counsel, help, or favor."   1 Ruffheads Statutes,
187, 188. 1 Statutes of the Realm, 203.

[26] 1 Hume, Appendix, l.

[27] Blackstone says, "Our ancient Saxon laws nominally punished
theft with death, if above the value of twelve pence; but the
criminal was permitted to redeem his life by a pecuniary ransom,
as among their ancestors, the Germans, by a stated number of
cattle. Bit in the ninth year of Henry the First (1109,) this power of
redemption was taken away, and all persons guilty of larceny
above the value off twelve pence were directed to be hanged,
which law continues in force to this day."   4 Blackstone, 238

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

Maddox, writing of the period from William the Conqueror to
John, says: "The amercement in criminal and common pleas,
which were wont to be imposed during this first period and
afterwards, were of so many several sorts, that it is not easy to
place them under distinct heads. Let them, for methods' sake, be
reduced to the heads following: Amercements for or by reason of
murders and manslaughters, for misdemeanors, for disseisins, for
recreancy, for breach of assize, for defaults, for non-appearance,
for false judgment, and for not making suit, or hue and cry. To
them may be added miscellaneous amercements, for trespasses of
divers kinds."   1 Maddox' History of the Exchequer, 542.

[28] Coke, in his exposition of the words legem terrae, gives quite
in detail the principles of the common law governing arrests, and
takes it for granted that the words "nisi per legem terre" are
applicable to arrests, as well as to the indictment, &c.   2 inst., 51,
52.

[29] I cite the above extract from Mr. Hallam solely for the sake of
his authority for rendering the word vel by and; and not by any
means for the purpose of indorsing the opinion he suggests, that
legem terrae authorized "judgments by default or demurrer,*'
without the intervention of a jury. He seems to imagine that lex
terrae, the common law, at the time of Magna Carta, included
everything, even to the practice of courts, that is, at this day, called
by the name of Common Law; whereas much of what is now
called Common Law has grown up, by usurpation, since the time
of Magna Carta, in palpable violation of the authority of that
charter. He says, "Certainly there are many legal procedures,
besides trial by jury, through which a party's goods or person may
be taken." Of course there are now many such ways, in which a
party's goods or person are taken, besides by the judgment of a
jury; but the question is, whether such takings are not in violation
of Magna Carta.

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

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

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

As to "process of attachment for contempt," it is of course lawful
for a judge, in his character of a peace officer, to issue a warrant
for the arrest of a man guilty of a contempt, as he would for the
arrest of any other offender, and hold him to bail, (or, in default of
bail, commit him to prison,) to answer for his offence before a
jury. Or he may order him into custody without a warrant when the
offence is committed in the judge's presence.

But there is no reason why a judge should have the power of
punishing, for contempt, any more than for any other offence. And
it is one of the most dangerous powers a judge can have, because it
gives him absolute authority in a court of justice, and enables him
to tyrannize as he pleases over parties, counsel, witnesses, and
jurors. If a judge have power to punish for contempt, and to
determine for himself what is a contempt, the whole administration
of justice (or injustice, if he choose to make it so) is in his hands.
And all the rights of jurors, witnesses, counsel, and parties, are
held subject to his pleasure, and can be exercised only agreeably
to his will. He can of course control the entire proceedings in,
and consequently the decision of, every cause, by restraining and
punishing every one, whether party, counsel, witness, or juror,
who presumes to offer anything contrary to his pleasure.

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

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

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

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

Again, Mr. Hallam says, if the word vel, be rendered by and,, "the
meaning will be, that no person shall be disseized, &c., except
upon a lawful cause of action.", This is true; but it does not follow
that any cause of action, founded on statute only,, is therefore a
"lawful, cause of action," within the meaning of legem terrae, , or
the Common Law., Within the meaning of the legem terrae, of
Magna Carta, nothing but a common law, cause of action is a
"lawful", one.


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

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

SECTION I

Weakness of the Regal Authority.

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

"Although in the Saxon's time I find the usual words of the acts
then to have been edictum, (edict,) constitutio, (statute,)
little mention being made of the commons, yet I further find
that, tum demum Leges vim et vigorem habuerunt, cum fuerunt
non modo institutae sed firmatae approbatione communitatis." (The
laws had force and vigor only when they were not only enacted,
but confirmed by the approval of the community.)

The Mirror of Justices itself also says, (ch. 1, sec. 3,) in
speaking "Of the first Constitutions of the Ancient King."

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

Hallam says:

"The Franks, Lombards, and Saxons seem alike to have been
jealous of judicial authority; and averse to surrendering what concerned
every man's private right, out of the hands of his neighbors and
equals."   1 Middle Ages, 271.

The "judicial authority," here spoken of, was the authority of
the kings, (who at that time united the office of both
legislators and judges,), and not of a separate department of
government, called the judiciary, like what has existed in more
modern times. [1]

Hume says:

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

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

Stuart says:

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

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

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

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

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

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

"The authority of a Saxon mnarch was not more considerable. The
Saxons submitted not to the arbitrary rule of princes. They
administered an oath to their sovereigns, which bound them to
aeknowledge the laws, and to defend the rights of the church and
people; and if they forgot this obligation, they forfeited their
office. In both countries, a price was affixed on kings, a fine
expiated their murder, as well as that of the meanest citizen;
and the smallest violation of ancient usage,or the least step
towards tyranny, was always dangerous, and often fatal to them."
Ditto, p. 189-40.

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

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

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

"Nor must we imagine that the Saxon, any more than the German
monarchs, succeeded each other in a lineal descent, [2] or that
they disposed of the crown at their pleasure. In both countries,
the free election of the people filled the throne; and their
choice was the only rule by which princes reigned. The
succession, accordingly, of their kings was often broken and
interrupted, and their depositions were frequent and groundless.
The will of a prince whom they had long respected, and the favor
they naturally transferred to his descendant, made them often
advance him to the royal dignity; but the crown of his ancestor
he cnsidered as the gift of the people, and neither expected nor
claimed it as a right."   Ditto, p. 151   3.

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

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

"The judges of the people, they presided in both countries in
courts of law. [3] The particular districts over which they
exerted their authority were marked out in Germany by the council
of the state; and in England their jurisdiction extended over the
fiefs and other territories they possessed. All causes, both
civil and criminal, were tried before them; and they judged,
except in cases of the utmost importance, without appeal. They
were even allowed to grant pardon to criminals, and to correct by
their clemency the rigors of justice.  Nor did the sovereign
exercise any authority in their lands. In these his officers
formed no courts, and his writ was disregarded.

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

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

Henry says:

"Nothing can be more evident than this important truth; that our
Anglo-Saxon kings were not absolute monarchs; but that their
powers and prerogatives were limited by the laws and customs of
the country. Our Saxon ancestors had been governed by limited
monarchs in their native seats on the continent; and there is not
the least appearance or probability that they relinquished their
liberties, and submitted to absolute government in their new
settlements in this island. It is not to be imagined that men,
whose reigning passion was the love of liberty, would willingly
resign it; and their new sovereigns, who had been their
fellow-soldiers, had certainly no power to compel them to such a
resignation."   3 Henry's History of Great Britain, 358.

Mackintosh says:"The Saxon chiefs, who were called. kings,
originally acquired power by the same natural causes which have
gradually, and everywhere, raised a few men above their fellows.
They were, doubtless, more experienced, more skillful, more
brave, or more beautiful, than those who followed them. * * A
king was powerful in war by the lustre of his arms, and the
obvious necessity of obedience. His influence in peace fluctuated
with his personal character. In the progress of usage his power
became more fixed and more limited. * * It would be very
unreasonable to suppose that the northern Germans who had
conquered England, had so far changed their characteristic habits
from the age of Tacitus, that the victors became slaves, and that
their generals were converted into tyrants."   Mackintosh's Hist.
of England, Ch. 2. 45 Lardner's Cab. Cyc., 73-4.

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

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

Hallam says that among the Saxons, "the royal authority was
weak."   2 Middle Ages, 403.

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

Lingard says:

"It was necessary that the king should obtain the assent of these
(the members o the Witena-gemotes) to all legislative enactments;
because, without their acquiescence and support, it was
impossible to carry them into execution. To many charters (laws)
we have the signatures of the Witan. They seldom exceed thirty in
number; they never amount to sixty."   1 Lingard; 486.

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

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

The fact that the people had no representation in this assembly,
and the further fact that, through their juries alone, they
nevertheless maintained that noble freedom, the very tradition of
which (after the substance of the thing itself has ceased to
exist) has constituted the greatest pride and glory of the nation
to this day, prove that this assembly exercised no authority
which juries of the people acknowledged, except at their own
discretion. [4]

There is not a more palpable truth, in the history of the
Anglo-Saxon government, than that stated in the Introduction to
Gilbert's History of the Common Pleas, [5] viz.. "that the
County aud Hundred Courts," (to which should have been added
the other courts in which juries sat, the courts-baron and
court-leet,) "in those times were the real and only Parliaments
of the kingdom." And why were they the real and only parliaments
of the kingdom? Solely because, as will be hereafter shown, the
juries in those courts tried causes on their intrinsic merits,
according to their own ideas of justice, irrespective of the laws
agreed upon by kings, priests, and barons; and whatever
principles they uniformly, or perhaps generally, enforced, and
none others, became practically the law of the land as matter of
course. [6]

Finally, on this point. Conclusive proof that the legislation of
the king was of little or no authority, is found in the fact that
the kings enacted so few laws. If their laws had been received as
authoritative, in the manner that legislative enactments are at
this day, they would have been making laws continually. Yet the
codes of the most celebrated kings are very small, and were
little more than compilations of immemorial customs. The code of
Alfred would not fill twelve pages of the statute book of
Massachusetts, and was little or nothing else than a compilation
of the laws of Moses, and the Saxon customs, evidently collected
from considerations of convenience, rather than enacted on the
principle of authority. The code of Edward the Confessor would
not fill twenty pages of the statute book of Massachusetts, and,
says Blackstone, "seems to have been no more than a new edition,
or fresh promulgation of Alfred's code, or dome-book, with such
additions and improvements as the experience of a century and a
half suggested."   1 Blackstone, 66. [7]

The Code of Wiliiam the Conqueror [8] would fill less than seven
pages of the statute book of Massachusetts; and most of the laws
contained in it are taken from the laws of the preceding kings,
and especially of Edward the Confessor (whose laws William
swore to observe); but few of his own being added.

The codes of the other Saxon and Norman kings were, as a general
rule, less voluminous even than these that have been named; and
probably did not exceed them in originality. [9] The Norman
princes, from William the Conqueror to John, I think without
exception, bound themselves, and, in order to mqintain their
thrones, were obliged to bind themselves, to observe the ancient
laws and customs, in other words; the "lex terrae," or "common
law" of the kingdom. Even Magna Carta contains hardly anything
other than this same "common law," with some new securities for
its observance.

How is this abstinence from legislation, on the part of the
ancient kings, to be accounted for, except on the supposition
that the people would accept, and juries enforce, few or no new
laws enacted by their kings? Plainly it can be accounted. for in
no ether way. In fact, all history informs us that anciently the
attempts of the kings to introduce or establish new laws, met
with determined resistance from the people, and generally
resulted in failure "Nolumus Leges Angliae mutari" (we will that
the laws of England be not changed,) was a determined principle
with the Anglo-Saxons, from which they seldom departed, up to
the time of Magna Carta, and indeed until long after. [10]

SECTION II

The Ancient Common Law Juries were mere Courts of
Conscience.

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

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

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

These courts, it must be considered, were very numerous, and held
very frequent sessions. There were probably seven, eight, or nine
hundred courts a month, in the kingdom; the object being, as
Blackstone says, "To bring justice home to every man's door." (3
Blackstone, 80.) The number of the county courts, of course,
corresponded to the number of counties, (36.) The court-leet was
the criminal court for a district less than a county. The hundred
court was the court for one of those districts anciently called a
hundred, because, at the time of their first organization for
judicial purposes, they comprised, (as is supposed) but a hundred
families. [11] The court-baron was the court for a single manor,
and there was a court for every manor in the kingdom. All these
courts were holden as often as once in three or five weeks; the
county court once a month. The king's judges were present at none
of these courts; the only officers in attendance being sheriffs
bailiff's, and stewards, merely ministerial, and not judicial,
officers; doubtless incompetent, and, if not incompetent,
untrustworthy, for giving the juries any reliable information in
matters of law, beyond what was already known to the jurors
themselves.

And yet these were the courts, in which was done all the judicial
business, both civil and criminal, of the nation, except appeals,
and some of the more important and difficult cases. [12] It is
plain that the juries, in these courts, must, of necessity, have
been  the sole judges of all matters of law whatsoever; because
there was no one present, but sheriffs, bailiffs, and stewards,
to give them any instructions; and surely it will not be pretended
that the jurors were bound to take their law from such sources
as these.

In the second place, it is manifest that the principles of law,
by which the juries determined causes, were, as a general rule,
nothing else than their own ideas of natural equity, and not any
laws of the king; because but few laws were enacted, and many of
those were not written, but only agreed upon in council. [13] Of
those that werewritten, few copies only were made, (printing
being then unknown,) and not enough to supply a11, or any
considerable number, of these numerous courts. Beside and
beyond all this, few or none of the jurors could have read the laws, if
they had been written; because few or none of the common people
could, at thattime, read. Not only were the common people unable
to read their own language, but, at the time of Magna Carta, the
laws were written in Latin, a language that could be read by few
persons except the priests, who were also the lawyers of the
nation. Mackintosh says, "the first act of the House of Commons
composed and recorded in the English tongue," was in 1415, two
centuries after Magna Carta. [14]. Up to this time, and for some
seventy years later, the laws were generally written either in Latin
or French; both languages incapable of being read by the common
 people, as well Normans as Saxons; and one of them, the Latin,
 not only incapable of being read by them, but of beingeven
understood when it was heard by them.

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

Their knowledge of the laws passed by the king was, of course,
derived only from oral information; and the good laws,"as some of
them were called, in contradistinction to others   those which
the people at large esteemed to be good laws   were doubtless
enforced by the juries, and the others, as a general thing,
disregarded. [15]

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

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

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

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

"In the county courts, if the debt was above forty shillings,
there issued a justicies (a commission) to the sheriff, to enable
him to hold such a plea, where the suitors (jurors) are judges of
the law and fact."   Gilbert's Cases in Law and Equity, &c;.,
&c;., 456.

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

"Summon twelve free and legal men (or sometimes twelve
knights)
to be in court, prepared upon their oaths to declare whether A or
B have the greater right to the land {or other thing) in
question." See Writs in Beames' Glanville, p. 54 to 70, and 233
306 to 832.

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

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

Reeve says:

"The great court for civil business was the county court; held
once every four weeks. Here the sheriff presided; but the suitors
of the court, as they were called, that is, the freemen or
landholders of the county, were the judges; and the sheriff was
to execute the judgment.

"The hundred court was held before some bailiff; the leet before
the lord of the manor's steward.[16]

"Out of the county court was derived an inferior court of civil
jurisdiction, called the court-baron. This was held from three
weeks to three weeks, and was in every respect like the county
court;" (that is, the jurors were judges in it;) "only the lord
to whom this franchise was granted, or his steward presided
instead of the sheriff;"   1 Reeve's History of the English Law,
p. T.,

Chief Baron Gilbert says:

"Besides the tenants of the king, which held per baroniam, (by
the right of a baron,) and did suit and service (served as
judges) at his own court; and the burghers and tenants in ancient
demesne, that did suit and service (served as jurors or judges)
in their own court in person), and in the king's by proxy, there
was also a set of freeholders, that did suit aud service (served
as jurors) at the county court. These were such as anciently held
of the lord of the county, and by the escheats of earldoms had
fallen to the king; or such as were granted out by service to
hold of the king, but with particular reservation to do suit and
service (serve as jurors) before the kng's bailiff; because it
was necessary the sheriff, or bailiff of the king, should have
suitors (jurors) at the county court, that the business might be
despatched. These suitors are the pares (peers) of the county
court, and indeed the judges of it; as the pares (peers) were the
judges in every court-baron; and therefore the king's bailiff
having a court before him, there must be pares or judges, for the
sheriff himself is not a judge; and though the style of the court
is Curia prima Comitatus E. C. Milit.' vicecom' Comitat' praed'
Tent' apud B., &c;. (First Court of the county, E. C. knight,
sheriff of the aforesaid county, held at B., &c;.); by which it
appears that the court was the s1ieriff's; yet, by the old feudal
constititions, the lord was not judge, but the pares (peers)
only; so that, even in a justicies, which was a commission to the
sheriff to hold plea of more than was allowed hy the natural
jurisdiction of a county court, the pares (peers, jurors) only
were judges, and not the sheriff; because it was to hold plea in
the same manner as they used to do in that (the lord's) court."
Gilbert on the Court of Exchequer, ch. 5.  61- 2.

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

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

"In the case of freeholders attending as suitors, the county
court or court-baron., (as in the case of the ancient tenants per
baroniam attending Parliament,) the suitors are the judges of the
court, both for law and for fact, and the sheriff or the under
sheriff in the county court, and the lord or his steward in the
court-baron, are only presiding officers, with no judicial
authority."   Political Dictionary, word Suit.

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

"In court-barons or county courts the steward was not judge, but
the pares (peers, jurors); nor was the speaker in the House of
Lords judge, but the barons only."   Gilbert on the Court of
Rxchequer, ch. 3, p. 42.

Crabbe, speaking of the Saxon times, says:

"The sheriff presided at the hundred court, * * and sometimes sat
in the place of the alderman (earl) in the county court."
Crabbe, 23.

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

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

"Judex is of us called Judge, but our fashion is so divers, that
they which give the deadly stroke, and either condemn or acquit
the man for guilty or not guilty, are not called judges, but the
twele men. And the same order as well in civil matters and
pecuniary, as in matters criminal."   Smith's Commonwealth of
England, ch. 9, p. 53, Edition of 1621.

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

"It is held before the steward, or was, in ancient times, before
the bailiff, of the lord."   Tomline's Law Dict., word
Court-Leet.

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

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

"This position" (that " the matter of law was decided by the
King's Justices, but the matter of fact by the pares ") "is wholly
incompatible with the common law, for the Jurata ( jury)
were the sole judges both of the law and the fact."   Gilbert's
History of the Common Pleas, p. 70, note.

"We come now to the challenge: and of old the suitors in court,
who were judge, could not he challenged; nor by the feudal law
could the pares be even challenged. Pares qui ordinariam
jurisdictionem habent recusari non possunt; (the peers who have
ordinary jurisdiction cannot be rejected;) "but those suitors who
are judges of the court, could not be challenged; and the reason
is, that there are several qualifications required by the writ,
viz., that they be liberos et legales homines de vincineto (free
and legal men of the neighborhood) of the place laid in the
declaration," &c;., &c;.   Ditto, p.93.

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

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

Hallam says:

"A respectable class of free socagers, having, in general, full
rights of alienating their lands, and holding them probably at
a small certain rent from the lord of the manor, frequently
occur in Domes-day Book. * * They undoubtedly were suitors
to the court-baron of the lord, to whose soc, or right of
justice, they belonged. They where consequently judges in civil
causes, determined before the manorial tribunal."   2 Middle
Ages, 481.

Stephens adopts as correct the following quotations from Blackstone:
"The Court-Baron is a court incident to every manor in the kingdom,
to be holden by the steward within the said manor." * *

It "is a court of common law, and it is the court before the
freeholders who owe suit and service to the manor," (are bound to
serve as jurors in the courts of the manor,) "the steward being
rather the registrar than the judge. * * The freeholders' court
was composed of the lord's tenants, who were the pares(equals) of
each other, and were bound by their feudal tenure to assist their
lord in the dispensation of domestic justice. This was formerly
held every three weeks; and its most important business was to
etermine, by writ of right, all controversies relating to the right
of lands within the manor."   3 Stephens' Commentaries, 392  3.
3 Blackstone, 32-33.

"A Hundred Court is only a larger court-baron, being held for all
the inhabitants of a particular hundred, instead of a manor. The
free suitors ( jurors) are here also the judges, and the steward
the register."   3 Stephens, 394. 3 Blackstone, 33.

"The County Court is a court incident to the jurisdiction of the
sheriff. * * The freeholders of the county are the real judges in
this court, and the sheriff is the ministerial officer."   3
Stephens, 395   6. 3 Blackstone, 35-6.

Blackstone describes these courts, as courts "wherein injuries
were redressed in an easy and expeditious manner, by the suffrage
of neighbors and friends."   3 Blackstone, 30.

"When we read of a certain number of freemen chosen by the
parties to decide in a dispute   all bound by oath to vote in
foro conscientia   and that their decision, not the will of the
judge presiding, ended the suit, we at once perceive that a great
improvement has been made in the old form of compurgation   an
improvement which impartial observation can have no hesitation
to pronounce as identical in its main features with the trial by
jury."   Dunham's Middle Ages, Sec. 2, B. 2, Ch. 1. 57 Lardner's
Cab. Cyc., 60.

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

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

Hale says:

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

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

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

"Thirdly, a third inconvenience was, that all the business of any
moment was carried by parties and factions. For the freeholders
being generally the judges, and conversing one among another, and
being as it were the chief judges, not only of the fact, but of
the law; every man that had a suit there, sped according as he
could make parties."   1 Hale's History of the Common Law, p.
246.

"In all these tribunals," (county court, hundred court, &c;..)
"the judges were the free tenants, owing suit to the court, and
afterwards called its peers."   1 Lingard's History of England,
488.

Henry calls the twelve jurors "assessors," and says:
"These assessors, who were in reality judges, took a solemn oath,
that they would faithfully discharge the duties of their office,
and not suffer an innocent man to be condemned, nor any guilty
person to be acquitted."   3 Henry's History of Great Britain,
346.

Tyrre11 says:

"Alfred cantoned his kingdom, first into Trihings and Lathes, as
they are still called in Kent and other places, consisting of
three or four Hundreds; in which, the freeholders being judges,
such causes were brought as could not be determined in the
Hundred court."   Tyrrell's Introduction to the History of
England, p. 80.

Of the Hundred Court he says:

"In this court anciently, one of the principal inhabitants,
called the alderman, together with the barons of the Hundred [18]
 id est the freeholders   was judge."   Ditto, p. 80.

Also he says:

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

A statute, emphatically termed the ' Grand Assize,' enabled the
defendant, if he thought proper, to abide by the testimony of the
twelve good and lawful knights, chosen by four others of the
vicinage, and whose oaths gave a final decision to the contested
claim,."  1 Palgrave's Rise and Progress of the English
Commonwealth, 261.

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

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

The principle of the jury was, therefore, not confined to its
mere application as a mode of trying contested facts, whether in
civil or criminal cases; and, both in its form and in its
consequences, it had a very material influence upon the general
constitution of the realm. * *The main-spring of the machinery of
remedial justice existed in the franchise of the lower and lowest
orders of the political hierarchy. Without the suffrage of the
yeoman, the burgess, and the churl, the sovereign could not
exercise the most important and most essential function of
royalty; from them he received the power of life and death; he
could not wield the sword of justice until the humblest of his
subjects placed the weapon in his hand."   1 Palgrave's Rise and
Progress of the English Constitution, 274   7.

Coke says,

"The court of the county is no court of record, [19]
and the suitors are the judges thereof."   4 Inst.) 266.

Also, "The court of the Hundred is no court of record, and the
suitors be thereof judges."   4 Inst., 267.


Also, "The court-baron is a court incident to every manor, and is
not of record, and the suitors be thereof judges."   4 Inst.,
268.

Also, "The court of ancient demesne is in the nature of a
court-baron, wherein the suitors are judges, and is no court of
record."   4 Inst., 269.

Millar says,

"Some authors have thought that jurymen were originally
compurgators, called by a defendant to swear that they
believed him innocent of the facts with which he was charged. . .
But . . . compurgators  were merely witnesses; jurymen were, in
reality, judges. The former were called to confirm the oath of
the party by swearing, according to their belief, that he had
told the truth, (in his oath of purgation;) the latter were
appointed to try, by witnesses, and by all other means of proof,
whether he  was innocent or guilty. Juries were accustomed to
ascertain the truth of facts, by the defendant's oath of
purgation, together with that of his compurgators. . . Both of
them (jurymen and compurgators) were obliged to swear that they
would tell truth.

According to the simple idea of our forefathers, guilt or innocence
was regarded as a mere matter  of fact; and it was thought that no
man, who knew the real circumstances of a case, could be at a
loss to determine whether the culprit ought to be condemned or
 acquitted."   1 Millar's Hist. View of Eng. Gov., ch. 12, p. 332 - 4.

Also, "The same form  of procedure, which took place in the
administration of justice among the vassals of a barony, was
gradually extended to the courts eld in the trading towns."
Same, p. 335.

Also, "The same regulation, concerning the distribution of
justice by the intervention of juries, . . .were introduced into
the baron courts of the king, as into those of the nobility, or
such of his subjects as retained their allodial property."
Same, p. 337.

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

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

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

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

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

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

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

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

But, in order to understand the common law trial by jury, as it
existed prior to Magna Carta, and as it, was guaranteed. by that
instrument, it is perhaps indispensable to understand more fully
the nature of the courts in which juries sat, and the extent of
the powers exercised by juries in those courts. I therefore give
in a note extended extracts, on these points, from Stuart on the
Constitution of England, and from Blackstone's Commentaries.
[20]

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

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

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

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

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

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

What are these but courts of conscience? And yet Blackstone tells
us they are a revival of the ancient hundred and county courts.
And what does this fact prove, but that the ancient common law
courts, in which juries sat, were mere courts of conscience?
It is perfectly evident that in all these courts the jurors were
the judges, and determined all questions of law for themselves;
because the only alternative to that supposition is, that the
jurors took their law from sheriffs, bailiffs, and stewards, of
which there is not the least evidence in history, nor the least
probability in reason. It is evident, also, that they judged
independently of the laws of the king, for the reasons before
given, viz., that the authority of the king was held in very,
little esteem; and, secondly, that the laws of the king (not
being printed, and the people being unable to read them if they
had been printed) must have been in a great measure unknown to
them, and could have been received by them only on the authority
of the sheriff, bailiff; or steward. If laws were to be received
by them on the authority of these officers, the latter would have
imposed such laws upon the people as they pleased.

These courts, that have now been described, were continued in
full power long after Magna Carta, no alteration being made in
them by that instrument, nor in the mode of administering justice
in them.

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

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

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

It is evident that it was in this way, by the free and concurrent
judgments of juries, approving and enforcing certain laws and
rules of conduct, corresponding to their notions of right and
justice, that the laws and customs, which, for the most part,
made up the common law, and were called, at that day, "the
good laws, and good customs," and "the law of the land," were
established. How otherwise could they ever have become
established, as Blackstone says they were, "by long and
immemorial usage, and by their universal reception throughout
the kingdom,"- 1 Blackstone,63-67., when, as the Mirror says,
"justice was so done, that every one so judged his neighbor, by
such judgment as a man could not elsewhere receive in the like
cases, until such times as the customs of the realm, were put in
writing and certainly published?"


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

SECTION III. The Oaths of Jurors.

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

The earliest oath that I have found prescribed by law to be
administered to jurors is in the laws of Ethelred, (about the
year 1015,) which require that the jurors "shall swear, with their
hands upon a holy thing, that they will condemn no man that is
innocent, nor acquit any that is guilty."   4 Blackstone, 302.
 2 Turner's History of the Anglo-Saxons, 155 Wilkins' Laws of the
Anglo-Saxons, 117. Spelman's Glossary,  word Jurata.

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

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

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

By a law of Henry II., in 1164, it was directed that the sheriff
"faciet jurare duodecim legales homines de vicineto seu de
villa, quod inde veritatem secundum conscientiam suam
manifestabunt," (shall make twelve, legal men from the
neighborhood to swear that they will make known the truth
according to their conscience.)   Crabbe's History of the
English Law, 119. 1 Reeves, 87. Wilkins, 321   323.

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

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

Reeve calls the trial by jury "the trial by twelve men sworn
to speak the truth."   1 Reeve's History of the English Law, 87.

Henry says that the jurors "took a solemn oath, that they
would faithfully discharge the duties of their office, and not
suffer an innocent man to be condemned, nor any guilty person
to be acquitted."   3 Henry's Hist. of Great Britain, 346.

The Mirror of Justices, (written within a century after
Magna Carta,) in the chapter on the abuses of the Common
law, says:"It is abuse to use the words, to their knowledge,
in their oaths, to make the jurors speak upon thoughts, since
the chief words of their oaths be that they speak the truth."   p.
249.

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

In criminal trials, he says:

"The clerk giveth the juror an oath to go uprightly betwixt the
prince and the prisoner."   Ditto, p. 90. [24]

Hale says:

"Then twelve, and no less, of such as are indifferent and are
returned upon the principal panel, or the tales, are sworn to try
the same according to the evidence."   2 Hale's History of the
Common Law, 141.

It appears from Blackstone that, even at this day, neither in
civil nor criminal cases, are jurors in England sworn to try causes
according to law. He says tht in civil suits the jury are "Sworn well
and truly to try the issue between the parties; and a true verdict to
give according to the evidence."   3 Blackstone, 365.

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

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

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

"Well and truly to try, and true deliverance make, between our
sovereign lord, the king, and the prisoner whom they have in
charge, and a true verdict to give according to the evidence."   4
Blackstone, 355.

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

The words, "according to the evidence," have doubtless been
introduced into the above oaths in modern times. They are unquestionably in
violation of the Common Law, and of Magna Carta, if by them be
meant such evidence only as the government sees fit ft allow to go to the
jury. If the government can dictate the evidence, and require the jury to
decide according to that evidence, it necessarily dictates the conclusion to
which they must arrive. In that case the trial is really a trial by the
government, and not by the jury. The jury cannot try an issue, unless they
determine what evidence shall be admitted. The ancient oaths, it will be
observed, say nothing about "according to the evidence." They obviously
take it for granted that the jury try the whole case; and of course that they
decide what evidence shall be admitted. It would be intrinsically an
immoral and criminal act for a jury to declare a man guilty, or to declare
that one man owed. money to another, unless all the evidence were
admitted, which they thought ought to be admitted, for ascertaining the truth.
[25]

Grand Jury. If jurors are bound to enforce all laws passed by the
legislature, it is a very remarkable fact than the oath of grand juries does not
require them to be governed by the laws in finding indictments. There
have been various forms of oath administered to grand jurors; but by none of
them that I recollect ever to have seen, except those of the States of
Connecticut and  Vermont, are they sworn to present men according to law.

The English form, as given in the essay on Grand Juries, written
near two hundred years ago, and supposed to have been written by Lord
Somers, is as follows:

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

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

On the obligations of this oath, the essay says:"If it be asked how,
or in what manner, the (grand) juries shall inquire, the answer
is ready, according to the best of their understandings. They only,
not the judges, are sworn to search diligently to find out all treasons,
&c;., within their charge, and they must and ought to use their own
discretion in the way and manner of their inquiry. No directions
can legally be imposed upon there by any court or judges; an honest
jury will thankfully accept good advice from judges, as their assistants;
but they are bound by their oaths to present the truth, the whole truth,
and nothing but the truth, to the best of their own, not the judge's,
knowledge. Neither can they, without breach of that oath, resign
their consciences, or blindly submit to the dictates of others; and
therefore ought  to receive or reject such advices, as they judge them
good or bad. * *Nothing can be more plain and express than the
words of the oath are to this purpose. The jurors need not search the
law books, nor tumble over heaps of old records, for the explanation
of them. Our greatest lawyers may from hence learn more certainly
our ancient law in this case, than from all the books in their studies.
The language wherein the oath is penned is known and understood by
every man, and the words in it have the same signification as they have
wheresoever else they are used. The judges, without assuming to
themselves a legislative power, cannot put a new sense upon them,
other than according to their genuine, common meaning. They cannot
magisterially impose their opinions upon the jury, and make them
forsake the direct words of their oath, to pursue their glosses. The
grand inquest are bound to observe alike strictly every part of their
oath, and to use all just and proper  ways which may enable them to
perform it; otherwise it were to say, that after men had sworn to
inquire diligently after the truth, according to the best of their
knowledge, they were bound to forsake all the natural and proper
means which their understandings suggest for the discovery of it,
if it be commanded by the judges."   Lord Somers' Essay on Grand
Juries, p. 88.

What is here said so plainly and forcibly of the oath and obligations of
grand juries, is equally applicable to the oath and obligations of
petit juries. In both cases the simple oaths of the jurors, and not the
instructions of the judges, nor the statutes of kings nor legislatures,
are their legal guides to their duties. [26]

SECTION IV. The Right of Juries to fix the Sentence.

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

That the juries were to fix the sentence under Magna Carta, is also
shown by statutes subsequent to Magna Carta. A statute passed
fifty-one years after Magna Carta, says that a baker, for default in
the weight of his bread, "debeat amerciari vel subire judicium pilloae,"

that is, "ought to be amerced, or suffer the sentence of the pillory."
And that a brewer, for "selling ale, contrary to the assize," "debeat
amerciari, vel pati judicium tumbrelli;" that is, "ought to be
amerced, or suffer judgment of the tumbrel."   51 Henry III., st. 6. (1266.)

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

The statute of Westminster, passed sixty years after Magna Carta,
provides that,"No city, borough, nor town, nor any man, be amerced,
without reasonable cause, and according to the quantity of the trespass;
that is to say, every freeman saving his freehold, a merchant saving
his merchandise, a villein his waynage, and that by his or their
peers." 3 Edward I., ch. 6. (1275.)

The same statute (ch. 18) provides further, that,"Forasmuch as the
common fine and amercement of the whole county in Eyre of the
justices for false judgments, or for other trespass, is unjustly
assessed by sheriff's and baretors in the shires, so that the sum is many
times increased, and the parcels otherwise assessed than they ought to
be, to the damage of the people, which be many times paid to the sheriffs
and baretors, which do not acquit the payers; it is provided, and the
king wills, that from henceforth such sums shall be assessed before
the justices in Eyre, afore their departure, by the oath of knights
and other honest men, upon all such as ought to pay; and the justices
shall cause the parcels to be put into their estreats, which shall be
delivered up unto the exchequer, and not the whole sum."   St. 3 Edward I.,
ch. 18, (1275.) [27]

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

"Whereas before this time the peers of the land have been arrested
and imprisoned, and their temporalities, lands, and teneiments,
goods and cattels, asseized in the king's hands, and some put to
death without judgment of their peers: It is accorded and assented,
that no peer of the land, officer, nor other, because of his office,
nor of things touching his office, nor by other cause, shall be
brought in judgment to lose his temporalities, lands, tenements,
goods and cattels, nor to be arrested, nor imprisoned, outlawed,
exiled, nor forejudged, nor put to answer, nor be judged, but by
award (sentence) of the said peers in Parliament."   15 Edward III.,
st. 1, sec. 2.

Section 4, of the same statute provides,

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

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

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

The first case given in Hargrave's collection of English State
Trials, is that of Alexander Nevil, Archbishop of York, Robert
Vere Duke of Ireland; Michael de la Pole, Earl of Suffolk, and
Robert Tresilian, Lord Chief Justice of England, with several
others, convicted of treason, before "the Lords of Parliament," in
1388. The sentences in these cases were adjudged by the "Lords
of Parliament," in the following terms, as they are reported.

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

Also, in the same case, Sir John Holt, Sir William Burgh, Sir John
Cary, Sir Roger Fulthorpe, and John Locton, "were by the lords
temporal, by the assent of the king, adjudged to be drawn and
hanged, as traitors, their heirs disinherited, and their lands and
tenements, goods and chattels, to be forfeited to the king."

Also, in the same case, John Blake, "of council for the king," and
Thomas Uske, under sheriff of Middlesex, having been convicted
of treason, "The lords awarded, by assent of the king, that they
should both be hanged and drawn as traitors, as open enemies to
the king and kingdom, and their heirs disinherited forever, and
their lands and tenements, goods and chattels, forfeited to the king."

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

Also, "John Beauchamp, steward of the household to the king,
James Beroverse, and John Salisbury; knights, gentlemen of the
privy chamber, were in like manner condemned."   1 Hargrave's
State Trials, first case.

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

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

"This High Court of Parliament doth adjudge, that Lionel, Earl of
Middlesex, now Lord Treasurer of England, shall lose all his
offices which he holds in this kingdom, and shall, hereafter, be
made incapable of any office, place, or employment in the state
and commonwealth. That he shall be imprisoned in the tower of
London, during the king's pleasure. That he shall pay unto our
sovereign lord the king a fine of 50,000 pounds. That he shall
never sit in Parliament any more, and that he shall never come
within the verge of the court."   2 Howell's Stale Trials, 1250.

Here was a peer of the realm, and a minister of the king, of the
highest grade; and if it were ever necessary to obtain the assent of
the king to sentences pronounced by the peers, it would unquestionably
have been obtained in this instance, and his assent would have appeared
in the sentence.

Lord Bacon was sentenced by the House of Lords, (l620,) no
mention being made of the assent of the king.   The sentence is in
these words:

"And, therefore, this High Court doth adjudge, That the Lord
Viscount St. Albans, Lord Chancellor of England, shall undergo
fine and ransom of 40,000 pounds. That he shall be imprisoned
in the tower during the king's pleasure. That he shall forever be
incapable of any office, place, or employment in the state or
commonwealth. That he shall never sit in Parliament, nor come
within the verge of the court."

And when it was demanded of him, before sentence, whether it
were his hand that was subscribed to his confession, and whether
he would stand to it; he made the following answer, which implies
that the lords were the ones to determine his sentence. "My lords,
it is my act, my hand, my heart. I beseech your lordships to be
merciful to a broken reed."   1 Hargrave's State Trials, 886   7.

The sentence against Charles the First, (1648,) after reciting
the grounds of his condemnation, concludes in this form:

"For all which treasons and crimes, this court doth adjudge,
that he, the said Charles Stuart, as a tyrant, traitor, murderer, and
public enemy to the good people of this nation, shall be  put
to death by the severing his head from his body."

The report then adds:

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

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

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

After being found guilty, the earl addressed the lords, for
a mitigation of sentence, as follows:

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

On being interrupted, he proceeded: "My lords, I submit
whether this be not proper in mitigation of your lordships'
sentence; but whether it be or not, I leave myself to your
lordships' justice and mercy; I am sure neither of them will be
wanting, and I entirely submit.' * * *

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

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

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

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

"Thomas, Earl of Macclesfielg, the Lords have
unanimously found you guilty of high crimes and
misdemeanors, charged on you by the impeachment of
the House of Commons, and do now, according to law,
proceed to judgment against you, which I am ordered
to pronounce. Their lordships' judgment is, and this high
court doth adjudge, that you, Thomas, Earl of
Macclesfield, be fined in the sum of thirty thousand
pounds unto our sovereign lord the king; and that you
shall be imprisoned in the tower of London, and there
kept in safe custody, until yon shall pay the said fine.'"
6 Hargrave's State Trials, 762   3   4.

This case shows that the principle of Magna Carta, that
a man should be sentenced only by his peers, was in force,
and acted upon as law, in England, so lately as 1725, (five
hundred years after Magna Carta,) so far as it applied to a
peer of the realm, a severe punishment," ect., ect.

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

SECTION V. The Oaths of Judges

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

The judges were sworn to "do equal law, and execution of right,
to all the king's subjects, rich and poor, without having
regard to any person;" and that they will "deny no man
common right;" [28] but they were not sworn to obey or
execute any statutes of the king, or of the king and parliament.
Indeed, they are virtually sworn not to obey any statutes that
are against "common right," or contrary to "the common law,"
or "law of the land;" but to "certify the king thereof"  that is,
notify him that his statutes are against the common law;
and then proceed to execute the common law, notwithstanding
such legislation to the contrary. The words of the oath on this point
are these:

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

Where it is considered that the king was the sole legislative
power, and that he exercised this power, to a great extent, by
orders in council, and by writs and "letters" addressed
oftentimes to some sheriff, or other person, and that his
commands, when communicated to his justices, or any
other person, "by letters," or writs, under seal, had as much
legal authority as laws promulgated in any other form
whatever, it will be seen that this oath of the justices
absolutely required that they disregard any legislation that
was contrary to "common right," or "the common law,"
and notify the king that it was contrary to common right,
or the common law, and then proceed to execute the
common law, notwithstanding such legislation. [29]

If there could be any doubt that such was the meaning
of this oath, that doubt would be removed by a statute
passed by the king two years afterwards, which fully
explains this oath, as follows:

"Edward, by the Grace of God, ect., to the Sheriff of
Stafford, greeting: Because that by divers complaints
made to us, we have perceived that the Law of the Land,
which we by our oath are bound to maintain, is the less
well kept, and the execution of the same disturbed many
times by maintenance and procurement, as well in the
court as in the country; we greatly moved of conscience
in this matter, and for this cause desiring as much for
the  pleasure of God, and ease and quietness of our
subjects,  as to save our conscience, and for to save
and keep our said oath, by the assent of the great men
and other wise men of our council, we have ordained
these things following:

"First, we have commanded all our justices, that they
shall from henceforth do equal law and execution of
right to all our subjects, rich and poor, without having
regard to any person, and without omitting to do right
for any letters or commandment which may come to
them from us, or from any other, or by any other cause.
And if that any letters, writs, or commandments come
to the justices, or to other deputed to do law and right
according to the usage of the realm, in disturbance of
the law, or of the execution of the same, or of right to
the parties, the justices and other aforesaid shall
proceed and hold their courts and processes,
where the pleas and matters be depending before
them, as if no such letters, writs, or commandments
were come to them; and they shall certify us and
our council of such commandments which be
contrary to the law, (that is, "the law of the land,"
or common law,) as afore is said." [30] And to the
intent that our justices, shall do even right to all
people in the manner aforesaid, without more
favor showing to one than to another, we have
ordained and caused our said justices to be sworn,
that they shall not from henceforth, as long as
they shall be in the office of justice, take fee nor
robe of any man, but of ourself, and that they shall
take no gift nor reward by themselves, nor by other,
privily nor apertly, of any man that hath to do before
them by any way, except meat and drink, and that
of small value: and that they shall give no counsel
to great men or small, in case where we be party,
or which do or may touch us in any point, upon
pain to be at our will, body, lands, and goods, to
do thereof as shall please us, in case they do contrary.
And for this cause we have increased the fees of
the same, our justices, in such manner as it ought
reasonably to suffice them."   20 Edward III.,
ch. l. (1346.)

Other statutes of similar tenor have been enacted
as follows:

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

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

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

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

The oath of the justices, before given, is, I presume,
the same that has been administered to judges in
England from the day when it was first prescribed to
them, (1344,) until now. I do not find from the English
statutes that the oath has ever been changed. The Essay
on Grand Juries, before referred to, and supposed to have
been written by Lord Somers, mentions this oath
(page 73) as being still administered to judges, that is,
in the time of Charles II., more than three hundred years
after the oath was first ordained.

If the oath has never been changed, it follows that
judges have not only never been sworn to support any
statutes whatever of the king, or of parliament, but that,
for five hundred years past, they actually have been
sworn to treat as invalid all statutes that were contrary
to the common law.

SECTION VI. The Coronation Oath.

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


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

These are the same laws and customs which were called
by the general name of "the law of the land," or "the
common law," and, with some slight additions, were
embodied in Magna Carta.

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

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

The ancient coronation oath is printed with the
Statutes of the Realm, vol. i., p. 168, and is as follows: [31]

TRANSLATION.

"Form of the Oath of the King of England, on his
Coronation.

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

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

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

Will yon preserve to the church of God, the clergy, and
the people, entire peace and harmony in God, according
to your powers?

(And the king shall answer,) I will.

In all your judgments, will you cause equal and right
justice and discretion to be done, in mercy and truth,
according to your powers?

(And the king shall answer,) I will.

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

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

The language used in the last of these questions,
"Do you concede that the just laws and customs,
which the common people have chosen, (quas vulgus
elegit,) shall be preserved?" ect., is worthy of especial
notice, as showing that the laws, which were to be
preserved, were not necessarily all the laws which
the kings enacted, but only such of them as the common
people had selected or approved.

And how had the common people made known their
approbation or selection of these laws? Plainly, in no
other way than this   that the juries composed of the
common people had voluntarily enforced them.
The common people had no other legal form of making
known their approbation of particular laws.

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

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

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

Hale says:

"Yet the English were very zealous for them," (that is, for
the laws of Edward the Confessor,) "no less or otherwise
than they are at this time for the Great Charter; insomuch
that they were never satisfied till the said laws were
reenforced, and mingled, for the most part, with the
coronation oath of king William I., and some of his
successors."   1 Hale's History of Common Law, 157.

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

Kelham says:

"Thus stood the laws of England at the entry of William I.,
and it seems plain that the laws, commonly called the laws
of Edward the Confessor, were at that time the standing
laws of the kingdom, and considered the great rule of their
rights and liberties; and that the Eriglish were so zealous
for them, 'that they were never satisfied till the said laws
were reenforced, and mingled, for the most part, with the
coronation oath.' Accordingly, we find that this great
conqueror, at his coronation on the Christmas day succeeding
his victory, took an oath at the altar of St. Peter, Westminster,
in sense and substance the very same with that which the
Saxon kings used to take at their coronations. * * And at
Barkhamstead, in the fourth year of his reign, in the presence
of Lanfranc, Archbishop of Canterbury, for the quieting of
the people, he swore that he would inviolably observe the good
and approved ancient laws which had been made by the devout
and pious kings of England, his ancestors, and chiefly by King
Edward; and we are told that the people then departed in good
humor."   Kelham's Preliminary Discourse to the Laws of
William the Conqueror. See, also, 1 Hale's History of the
Common Law, 186.

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

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

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

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

"That the Charter of Liberties and the Charter of the Forest
* * shall be kept in every point, without breach, * * and that our
justices, sheriffs, mayors, and other ministers, which, under
us, have the laws of our land [32] to guide, shall allow the said
charters pleaded before them in judgment, in all their points,
that is, to wit, the Great Charter as the Common Law, and the
Charter of the Forest for the wealth of the realm.

"And we will, that if any judgment be given from henceforth,
contrary to the points of the charters aforesaid, by the justices, or
by any other our ministers that hold plea before them against
the points of the charters, it shall be undone, and holden for
naught."   25 Edward I., ch. 1 and 2. (1297.)

Blackstone also says:

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

Crabbe says:

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

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

"Edward, by the Grace of God, ect., ect., to the Sheriff of
Stafford, Greeting: Because that by divers complaints made
to us, we have perceived that the law of the land, which we
by oath are bound to maintain," ect.   St. 20 Edward III. (1346.)

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

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

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

"To govern the people of this kingdom of England, and the
dominions thereto belonging, according to the statutes in
Parliament agreed on, and the laws and customs of the
same."   St. 1 William and Mary, ch. 6. (1688.)

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

It may here be repeated that this oath plainly proves that
the statutes of the king were of no authority over juries, if
inconsistent with their ideas of right; because it was one
part of the common law that juries should try all causes
according to their own consciences, any legislation of the
king to the contrary notwithstanding.[33]

[1] Hale says:"The trial by jury of twelve men was the usual
trial among the Normans, in most suits; especially in assizes, et
juris utrum."   1 Hale's History of the Common Law, 219

This was in Normandy, before the conquest of England by the
Normans. See Ditto, p. 218.

Crabbe says:"It cannot be denied that the practice of submitting
causes to the decision of twelve men was universal among all the
northern tribes (of Europe) from the very remotest antiquity."
Crabbe's History of the English Law, p. 32.

[2] "The people, who in every general council or assembly could
oppose and dethrone their sovereigns, were in little dread of
their encroachments on their liberties; and kings, who found
sufficient employment in keeping possession of their crowns,
would not likely attack the more important privileges of their
subjects."

[3] This office was afterwards committed to sheriffs. But even
while the court was held by the lord, "the Lord was not judge,
but the Pares (peers) only."   Gilbert on the Court of Exchequer,
61-2.

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

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

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

"The preambles of the laws (of the Witan) speak of the infinite
number of liegemen who attended, as only applauding the
measures of the assembly. But this applause was neither so
unimportant to the success of the measures, nor so precisely
distinguished from a share in legislation, as those who read history
with a modern eye might imagine. It appears that under Athelstan
expedients were resorted to, to obtain a consent to the law from
great bodies of the people in their districts, which their numbers
rendered impossible in a national assembly. That monarch appears
to have sent commissioners to hold shire-gemotes or county
meetings, where they proclaimed the laws made by the king and
his counsellors, which, being acknowledged and sworn to at these
folk-motes (meetings of the people) became, by their assent,
completely binding on the whole nation."   Mackintosh's Hist. of
England, Ch. 2. 45 Lardner's Cab. Cc., 75.

[5] Page 31.

[6] Hallam says, "It was, however, to the county court that an
English freeman chiefly looked for the maintenance of his civil
rights."   2 Middle Ages, 392.

Also, "This (the county court) was the great constitutional
judicature in all ques- tions of civil right."   Ditto, 395.
Also, "The liberties of these Anglo-Saxon thanes were chiefly
secured, next to their swords and their free spirits, by the
inestimable right of deciding civil and criminal suits in their
own county courts."   Ditto, 899.

[7] "Alfred may, in one sense, be called the founder of these
laws, (the Saxon,) for until his time they were an unwrittencode,
but he expressly says, 'that I, Alfred, collected the good laws of
our forefathers into one code, and also I wrote them down'
-- which is a decisive fact in the history of our laws well
worth noting."   Introduction to Gilbert's History of the Common
Pleas, p. 2, note.

Kelham says, "Let us consult our own lawyers and historians, and
they will tell as that Alfred, Edgar, and Edward the Confessor,
were the great compilers and restorers of the English Laws."
Kelham's Preliminary Discourse to the Laws of William the
Conqueror, p. 12. Appendix to Kelham's Dictionary of the Norman
Language.

"He (Alfred) also, like another Theodosius, collected the various
customs that he found dispersed in the kingdom, and reduced and
digested them into one uniform system, or code of laws, in his
som-bec, or liber judicialis (judicial book). This he compiled
for the use of the court baron, hundred and county court, the
court-leet and sheriff's toarn, tribunals which he established
for the trial of all causes, civil and criminal, in the very
districts wherein the complaints arose."   4 Blackstone, 411.

Alfred himself says, "Hence I, King Alfred, gathered these
together, and commanded many of those to be written down which
our forefathers observed   those which I liked   and those which
I did not like, by the advice of my Witan, I threw aside. For I
durst not venture to set down in writing over many of my own,
since I knew not what among them would please those that should
come after us. But those which I met with either of the days of
me, my kinsman, or of Offa, King of Mercia, or of Aethelbert, who
was the first of the English who received baptism   thse which
appeared to me the justest   I have here collected, and abandoned
the others. Then I, Alfred, King of the West Saxons, showed these
to all my Witan, and they then said that they were all willing to
observe them."   Laws of Alfred, translated by R. Price, prefixed
to Mackintosh's History of England, vol. l. 45 Lardner's Cab. Cyc.

"King Edward * * projected and begun what his grandson, King
Edward the Confessor, afterwards completed, viz., one uniform
digest or body of laws to be observed throughout the whole
kingdom, being probably no more than a revival of King Alfred's
code, with some improvements suggested by necessity and
experience, particularly the incorporating some of the British,
or, rather, Mercian customs, and also such of the Danish
(customs) as were reasonable and approved, into the West Saxon
Lage, which was still the ground-work of the whole. And this
appears to be the best supported and most plausible conjecture,
(for certainty is not to be expected,) of the rise and original
of that admirable system of maxims and unwritten customs which
is now known by the name of the common law, as extending its
authority universally over all the realm, and which is doubtless
of Saxon parentage."   4 Blackstone, 412.

"By the Lex Terrae and Lex Regni is understood the laws of
Edward the Confessor, confirmed and enlarged as they were by William
the Conqueror; and this Constitution or Code of Laws is what even to
this day are called 'The Common Law of the Land.'"   Introduction
to Gilbert's History of the Common Pleas, p. 22, note.


[8] Not the conqueror of the English people, (as the friends of
liberty maintain,) but only of Harold the usurper.   See Hale's
History of the Common, Law, ch. 5.

[9] For all these codes see Wilkins' Laws of the Anglo-Saxons.

"Being regulations adapted to existing institutions, the
Anglo-Saxon statutes are concise and technical, alluding to the
law which was then living and in vigor, rather than defining it.
The same clauses and chapters are often repeated word, for word,
in the statutes of subsequent kings, showing that enactments
which bear the appearance of novelty are merely declaratory.
Consequently the appearance of a law, seemingly for the first
time, is by no means to be considered as a proof that the matter
which it contains is new; nor can we trace the progress of the
Anglo-Saxon institutions with any degree of certainty, by
following the dates of the statutes in which we find them first
noticed. All arguments founded on the apparent chronology of the
subjects included in the laws, are liable to great fallacies.
Furthermore, a considerable portion of the Anglo-Saxon law was
never recorded in writing. There can be no doubt but that the
rules of inheritance were well established and, defined; yet we
have not a single law, and hardly a single document from which
the course of the descent of land can be inferred. * * Positive
proof cannot be obtained of the commencement of any institution,
because the first written law relating to it may possibly be
merely confirmatory or declaratory; neither can the non-existence
of any institution be inferred from the absence of direct
evidence. Written laws were modified and controlled by customs
of which no trace can be discovered until after the lapse of
centuries, although those usages must have been in constant vigor
during the long interval of silence."   1 Palgrave's Rise and
Progress of the English Commonwealth, 58-9.

[10] Rapin says, "The customs now practised in England are, for
the most part, the same as the Anglo-Saxons brought with them
from Germany."   Rapin's Dissertation on the Government of the
Anglo-Saxons, vol. 2, Oct Ed., p. 138. See Kelham's Discourse
before named.

[11] Hallam says, "The county of Sussex contains sixty-five
('hundreds'); that of Dorset forty-three; while Yorkshire has
only twenty-six; and Lancashire but six."   2 Middle Ages, 391.

[12] Excepting also matters pertaining to the collection of the
revenue, which were determined in the king's court of exchequer.
But even in this court it was the law "that none be amerced but
by his peers."   Mirror of Justices, 49.

[13] "For the English laws, although not written, may, as it
should seem, and that without any absurdity, be termed laws,
(since this itself is law   that which pleases the prince has the
force of law,) I mean those laws which it is evident were
promuulgated by the advice of the nobles and the authority of the
prince, concerning doubts to be settled in their assembly. For if
from the mere want of writing only, they should not be considered
laws, then, unquestionably, writing would seem to confer more
authority upon laws themselves, than either the equity of the
persons constituting, or the reason of those framing them."
Glanville's Preface, p. 38. (Glanville was chief justice of Henry
II., 1180.) 2 Turner's History of the Anglo-Saxons, 280.

[14] Mackintosh's History of England, ch. 3. Lardner's Cabinet
Cyclopedia, 286.

[15] If the laws of the king were received as authoritative by
the juries, what occasion was there for his appointing special
commissioners for the trial of offences, without the intervention
of a jury, as he frequently did, in manifest and acknowledged
violation of Magna Carta, and "the law of the land?" These
appointments were undoubtedly made for no other reason than that
the juries were not sufficiently subservient, but judged
according to their own notions of right, instead of the will of
the king   whether the latter were expressed in his statutes, or
by his judges.

[16] Of course, Mr. Reeve means to be understood that, in the
hundred court, and court-leet, the jurors were the judges, as he
declares them to have been in the county court; otherwise the
"bailiff" or "steward" must have been judge.

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

[18] "The barons of the Hundred" were the freeholders. Hallam
says: "The word baro, originally meaning only a man, was of very
large significance, and is not unfrequently applied to common
freeholders, as in the phrase court-baron."   3 Middle Ages,
14-15.

Blackstone says: "The court-baron *  * is a court of common law,
and it is the court of the barons, by which name the freeholders
were sometimes anciently called; for that it is held before the
freeholders who owe suit and service to the manor."   3
Blackstone, 33.

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

[20] Stuart says:

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

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

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

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

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

"This establishment was formed both in Germany and England, by
the inhabitants of a certain division, who extened their
jurisdiction over the territory they occupied. [21] They bound
themselves under a penalty to assemble at stated times; and
having elected the wisest to preside over them, they judged, not
only all civil and criminal matters, but of those also which
regarded religion and the priesthood. The judicial power thus
invested in the people was extensive; they were able to preserve
their rights, and attended this court in arms.

[21] "It was the freemen in Germany, and the possessors of land
in England, who were suitors (jurors) in the hundred court. These
ranks of men were the same. The alteration which had happened in
relation to property had invested the German freemen with land or
territory."

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

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

"Every subject of claim or contention was brought, in the first
instance, or by appeal, to the county court; and the earl, or
eorldorman, who presided there, was active to put the laws in
execution. He repressed the disorders which fell out within the
circuit of his authority; and the least remission in hi duty, or
the least fraud he committed, was complained of and punished. He
was elected from among the great, and was above the temptation
of
a bribe; but, to encourage his activity, he was presented with a
share of the territory he governed, or was entitled to a
proportion of the fines and profits of justice. Every man, in his
district, was bound to inform him concerning criminals, and to
assist him to bring them to trial; and, as in rude and violent
times the poor and helpless were ready to be oppressed by the
strong, he was instructed particularly to defend them.

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

"The druids also, or priests, in Germany, as we had formerly
occasion to remark, and the clergy in England, exercised a
jurisdiction in the hundred and county courts. They instructed
the people in religious duties, and in matters regarding the
priesthood; and the princes, earls, or eorldormen, related to
them the laws and customs of the community. These judges were
mutually a check to each other; but it was expected that they
should agree in their judgments, and should willingly unite their
efforts for the public interest. [22]

"The meeting (the county court) was opened with a discourse by
the bishop, explaining, out of the Scriptures and ecclesiastical
canons, their several duties as good Christians and members of
the church. After this, the alderman, or one of his assessors,
made a discourse on the laws of the land, and the duties of good
subjects and good citizens. When these preliminaries were over,
they proceede to try and determine, first the causes of the
church, next the pleas of the crown, and last of all the
controversies of private parties."   8 Henry's History of Great
Britain, 348.

This view is corroborated by Tyrrell's Introduction to the
History of England; p. 83-84, and by Spence's Origin of the Laws
and Political Institutions of Modern Europe, p. 447, and the note
on the same page. Also by a law of Canute to this effect, In
every county let there be twice a year an assembly, whereat the
bishop and the earl shall be present, the one to instruct the
people in divine, the other in human, laws.   Wilkins, p. 136.

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

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

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

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

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

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

Blackstone says:

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

"These inferior courts, at least the name and form of them, still
cntinue in our legal constitution; but as the superior courts of
record have, in practice, obtained a concurrent original
jurisdiction, and as there is, besides, a power of removing
plaints or actions thither from all the inferior jurisdictions;
upon these accounts (among others) it has happened that these
petty tribunals have fallen into decay, and almost into oblivion;
whether for the better or the worse may be matter of some
speculation, when we consider, on the one hand, the increase of
expense and delay, and, on the other, the more able and impartial
decisions that follow from this change of jurisdiction.

"The order I shall observe in discoursing on these several
courts, constituted for the redress of civil injuries, (for with
those of a jurisdiction merely criminal  I shall not at present
concern myself, [23]) will be by beginning with the lowest, and
those whose jurisdiction, though public and generally dispersed
through the kingdom, is yet (with regard to each particular
court) confined to very narrow limits; and so ascending gradually
to those of the most extensive and transcendent power." -- 3
Blackstone, 30 to 32.

"The court-baron is a court incident to every manor in the
kingdom, to beholden by the steward within the said manor.  This
court-baron is of two natures; the one is a customary court, of
which we formerly spoke, appertaining entirely to the
copy-holders, in which their estates are transferred by surrender
and admittance, and other matters transacted relative to their
tenures only. The other, of which we now speak, is a court of
common law, and it is a court of the barons, by which name the
freeholders were sometimes anciently called; for that it is held
by the freeholders who owe suit and service to th manor, the
steward being rather the registrar than the judge.  These courts,
though in their nature distinct, are frequently confounded
together. The court we are now considering, viz., the freeholders
court, was composed of the lord's tenants, who were the pares
(equals) of each other, and were bound by their feudal tenure to
assist their lord in the dispensation of domestic justice. This
was formerly held every three weeks; and its most important
business is to determine, by writ of right, all controversies
relating to the right of lands within the manor. It may also hold
plea of any personal actions, of debt, trespass in the case, or
the like, where the debt or damages do not amount to forty
shillings; which is the same sum, or three marks, that bounded
the jurisdiction of the ancient Gothic courts in their lowest
instance, or fierding courts, so called because four were
institute within every superior district or hundred."   8
Blackstone, 38, 34.

"A hundred court is only a larger court-baron, being held for all
the inhabitants of a particular hundred, instead of a manor. The
free suitors are here also the judges, and the steward the
registrar, as in the case of a court-baron. It is likewise no
court of record, resembling the former at all points, except that
in point of territory it is of greater jurisdiction. This is said
by Sir Edward Coke to have been derived out of the county court
for the ease of the people, that they might have justice done to
them at their own doors, without any charge or loss of time; but
its institution was probably coeval with that of hundreds
themselves, which were formerly observed to have been
introduced, though not invented, by Alfred, being derived from
the polity of the ancient Germans. The centeni, we may remember,
were the principal inhabitants of a district composed of different
villages, oriinally in number a hundred, but afterward only called
by that name, and who probably gave the same denomination
to the district out of which they were chosen. Caesar speaks
positively of the judicial power exercised in their hundred
courts and courts-baron. 'Princeps regiorum atque pagorum' (which
we may fairly construe the lords of hundreds and manors) 'inter
suos jus dicunt, controversias que minuunt.' (The chiefs of the
country and the villages declare the law among them, and abate
controversies.) And Tacitus, who had examined their constitution
still more attentively, informs us not only of the authority of
the lords, but that of the centeni, the hundreders, or jury, who
were taken out of the common freeholders, and had themselves a
share in the determination. ' Eliguntur in conciliis et
principes, qui jura per pagos vicosque reddunt, centenii
singulis, ex plebe comites comcilium simul et auctoritas adsunt.
(The princes are chosen in the assemblies, who administer the
laws throughout the towns and villages, and with each one are
associated an hundred companions, taken from the people, for
purposes both of counsel and authority.) This hundred court was
denominated haereda in the Gothic constitution. But this court,
as causes are equally liable to removal from hence as from the
common court-baron, and by the same writs, and may also be
reviewed by writ of false judgment, is therefore fallen into
equal disuse with regard to the trial of actions." 8 Blackstone, 34,
85.

"The county court is a court incident to the jurisdiction of the
sheriff. It is not a court of record, but may hold pleas of debt,
or damages, under the value of forty shillings; over some of
which causes these inferior courts have, by the express words of
the statute of Gloucester, (6 Edward I., eh. 8,) a jurisdicton
totally exclusive of the king's superior courts. *  * The county
court may also hold plea of many real actions, and of all
personal actions to any amount, by virtue of a special writ,
called a justicies, which is a writ empowering the sheriff, for
the sake of despatch, to do the samee justice in his county court
as might otherwise be had at Westminster. The freeholders of the
county court are the real judges in this court, and the sheriff
is the ministerial ofhcer. * * In modern times, as proceedings
are removable from hence into the king's superior courts, by writ
of pone or recordari, in the same manner as from hundred courts
and courts-baron, and as the same writ of false judgment may be
had in nature of a writ of error, this has occasioned the same
disuse of bringing actions therein."   3 Blackstone, 36, 37.

"Upon the whole, we cannot but admire the wise economy and
admirable provision of our ancestors in settling the distribution
of justice in a method so well calculated for cheapness,
expedition, and ease. By the constitution which they established,
all trivial debts, and injuries of small consequence, were to be
recovered or redressed in every man's own county, hundred, or
perhaps parish."   3 Blackstone, 59.

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

[23] There was no distinction between the civil and criminal
courts, as to the rights or powers of juries.

[24] This quaint and curious book; (Smith's Commonwealth
of England) describes the minutiae of trials, giving in detail
the mode of impaneling the jury and then the conduct of the
 lawyers, witnesses, and court I give the following extracts,
tending to show that the judges impose no law upon the juries,
in either civil or criminal cases but only require them to
determine the causes according to their consciences.

In civil causes he says:

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

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

In criminal eases, after the witnesses have been heard, and
the prisoner has said what he pleases in his defence, the book
proceeds:

"When the judge hath heard them say enough, he asketh if
they can say any more. If they say no, then he turneth his speech
to the inquest. 'Good men, (saith he,) ye of the inquest, ye have
heard what these men say against the prisoner. You have also
heard what the prisoner can say for himself. Have an eye to
your oath, and to your duty, and do that which God shall put
in your minds to the discharge of your consciences, and mark
well what is said.' "  p. 92.

This is the whole account given of the charge in a criminal ease.

The following statement goes to confirm the same idea, that
jurors in England have formerly understood it to be their right and
duty to judge only according to their consciences, and not to
submit to any dictation from the court, either as to law or fact.

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

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

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

[25] "The present  form of the jurors' oath is  that they shall 'give a
true verdict according to the evidence.' At what time this form was
introduced is uncertain; but for several centuries after the Conquest,
the jurors, both in civil and criminal cases,  were sworn merely to
speak  the truth. (Glanville, lib. 2, cap. 17; Bracton, lib. 3, cap. 22; lib. 4,
p. 287, 291; Britton, p. 135.) Hence their decision was accurately
termed veredictum, or verdict, that is, ' a thing truly said'; whereas
the phrase 'true verdict' in the modern oath is not an accurate
expression."   Political Dictionary, word Jury.

[26] Of course, there can be no legal trial by jury, in either civil or
criminal cases, where the jury are sworn to try the cases "according
to law."

[27] Coke, as late as 1588, admits that amercements must be fixed by the
peers (8 Coke's Rep. 88, 2 Inst. 27); but he attempts, wholly without
success, as it seems to me, to show a difference between fines and
amercements. The statutes are very numerous, running through the
three or four hundred years immediately succeeding Magna Carta,
in which fines, ransoms, and amercements are spoken of as if they
were the common punishments of offences, and as if they all meant the
same thing. If, however, any technical difference could be made
out between them, there is clearly none in principle; and the word
amercement, as used in Magna Carta, must be taken in its most
comprehensive sense.

[28] "Common right" was the common law. 1 Coke's
Inst. 142 a. 2 do. 55, 6.

[29] The oath of the justices is in these words:"Ye shall
swear, that well and lawfully ye shall serve our lord the
king and his people, in the office of justice, and that
lawfully ye shall counsel the king in his business, and that
ye shall not counsel nor assent to anything which may
turn him in damage or disherison in any manner, way, or
color. And that ye shall not know the damage or
disherison of him, whereof ye shall not cause him to be
warned by yourself, or by other; and that ye shall do
equal law and execution of right to all his subjects, rich
and poor, without having regard to any person. And that
ye take not by yourself, or by other, privily nor apertly,
gift nor reward of gold nor silver, nor of any other
thing that may turn to your profit, unless it be meat or
drink, and that of small value, of any man that shall
have any plea or process hanging before you, as long
as the same process shall be so hanging, nor after for
the same cause. And that ye take no fee, as long as ye
shall be justice, nor robe of any man great or small, but
of the king himself. And that ye give none advice or
counsel to no man great or small, in no case where the king
is party. And in case that any, of what estate or condition
they be, come before you in your sessions with force
and arms, or otherwise against the peace, or against the
form of the statute thereof made, to disturb execution
of the common law," [mark the term, "common law,")
"or to menace the people that they may not pursue the
law, that ye shalt cause their bodies to be arrested and
put in  prison; and in case they be such that ye cannot
arrest them, that ye certify the king of their names, and
of their misprision, hastily, so that he may thereof
ordain a convenable remedy. And that ye by yourself,
nor by other, privily nor apertly, maintain any plea or
quarrel hanging in the king's court, or elsewhere in the
country. And that ye deny no man common right by
the king's letters, nor none other man's, nor for none
other cause, and in case any letters come to you
contrary to the law,'" (that is, the "common law
" before mentioned,) "that ye do nothing by such
letters, but certify the king thereof, and proceed to
execute the law," (the "common law" before mentioned,)
"notwithstanding the same letters. And that ye shall
do and procure the profit of the king and of his crown,
with all things where ye may reasonably do the
same.  And in case ye be from henceforth found in
default in any of the points aforesaid, ye shall be at the
king's will of body, lands, and goods, thereof to be
done as shall please him, as God you help and all
saints."   18 Edward III., st. 4. (1344.)

[30] That the terms "Law" and "Right," as used
in this statute, mean the common law, is shown
by the preamble, which declares the motive of
the statute to be that "the Law of the Land,
(the common law,) which we (the king) by our
oath are bound to maintain," may be the better
kept, &.

[31] The following is a copy of the original:

"Forma Juramenti Regis Anglicae in Coronacione sua:

(Archiepiscopus Cantuariae, ad quo de jure et consuetudine
Ecclesiae Cantuariae, antiqua et approbata, pertinet
Reges Angliae inungere et coronare, die coronacionis
Regis, anteque Rex coronetur, faciet Regi Interrogationes
subscriptas.)

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

(Et respondeat Rex,) Concedo et servare volo, et
sacramento confirmare.

Servabis Ecclesiae Dei, Cleroque, et Populo, pacem
ex integro et concordiam in Deo secundum vires tuas ?

(Et respondeat Rex,) Servabo.

Facies fieri in omnibus Judieiis tuis equam et rectam
justioiam, et discreeionem, in misericordia et veritate,
secundum vires  tuas?

(Et respondeat Rex,) Faciam.

Concedis justas, leges et consuetudines esse tenendas,
et promittis per te eas esse protegendas, et ad honorem
Dei corroborandas, quas vulgus elegit, secundum vires
tuas ?

(Et respondeat Rex,) Concedo et promitto."

[32] It would appear, from the text, that the Charter of Liberties
and the Charter of the Forest were sometimes called "laws of the
land."

[33] As the ancient coronation oath, given in the text,
 has come down from the Saxontimes, the following
remarks of Palgrave will be pertinent, in connection
with the oath, as illustrating the fact that, in those times,
no special authority attached to the laws of the king:

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

Legislation constituted but a small portion  of the
ordinary business transacted by the Imperial
Witenagemot. The wisdom of the assembly was
shown in avoiding unnecessary change. Consisting
principally of traditionary usages and ancestorial customs,
the law was upheld by opinion. The people considered
their jurisprudence as a part of their  inheritance.
Their privileges and their duties were closely conjoined;
most frequently, the statutes themselves were only
affirmances of ancient customs, or declaratory enactments.

In the Anglo-Saxon commonwealth, therefore, the
legislative functions of the Witenagemot were of far
less importance than the other branches of its authority.
* * The members of the Witenagemot were the ' Pares Curiae '
(Peers of Court) of the kingdom. How far, on these occasions,
their opinion or their equity controlled the power of the crown,
cannot be ascertained. But the form of inserting their names
in the 'Testing Clause' was retained under the
Anglo-Norman reigns; and the sovereign, who submitted
his Charter to the judgment of the Proceres, professed to
be guided by the opinion which they gave. As the 'Pares'
of the empire, the Witenagemot decided' the disputes
between the great vassals of the crown. * * The jurisdiction
exercised in the Parliament of Edward I., when the barony
of a Lord-Marcher became the subject of litigation, is
entirely analogous to the proceedings thus adopted by the great
council of Edward, the son of Alfred, the Anglo-Saxon king.

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

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

It may be doubted whether any one member of the empire had
power to legislate for any other member. The Regulus of Cumbria
was unaffected by the vote of the Earl of East Angliae, if
he chose to stand out against it. These dignitaries
constituted a congress, in which the sovereign could
treat more conveniently and effectually with his vassals
than by separate negotiations. * * But the determinations
of the Witan bound those only who were present, or who
concurred in the proposition; and a vassal denying his assent
to the grant, might assert that the engagement which he
had contracted with his superior did not involve any
pecuniary subsidy, but only rendered him liable to perform
service in the field."   1 Palgrave's Rise and Progress of the
English Commonwealth, 637 to 642.


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

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

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

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

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

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

Chap. 65. "If we have disseized or dispossessed the Welsh of any
lands, liberties, or other things, without the legal judgment of
their peers, they shall be immediately restored to them. And if
any dispute arises upon this head, the matter shall be determined
in the Marches, [1] by the judgment of their peers," &c;.

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

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

There is substantially the same reason why a jury ought to judge
of the justice of laws, and hold all unjust laws invalid, in
civil suits, as in criminal ones. That reason is the necessity of
guarding against the tyranny of the government. Nearly the same
oppressions can be practised in civil suits as in criminal ones.
For example, individuals may be deprived, of their liberty, and
robbed of their property, by judgments rendered in civil suits,
as well as in criminal ones. If the laws of the king were
imperative upon a jury in civil suits, the king might enact laws
giving one man's property to another, or confiscating it to the
king himself, and authorizing civil suits to obtain possession of
it. Thus a man might be robbed of his property at the arbitrary
pleasure of the king. In fact, all the property of the kingdom
would be placed, at the arbitrary disposal of the king, through
the judgments of juries in civil suits, if the laws of the king
were imperative upon a jury in such suits. [2]

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

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

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

Another reason why Magna Carta makes the discretion and
consciences of juries paramount to all legislation in civilsuits, is,
that if legislation were binding upon a jury, the jurors  (by reason
of their being unable to read, as jurors in those days were, and
also by reason of many of the statutes being unwritten, or at least
not so many copies written as that juries could be supplied with
them)   would have been necessitated at least in those courts in
which the king's justices sat   to take the word of those justices
as to what the laws of the king really were. In other words, they
would have been necessitated to take the law from the court, as
jurors do now.

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

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

Hume says:

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

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

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

Carte says:

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

Hallam says:

"But of all the abuses that deformed the Anglo-Saxon government,
none was so flagitious as the sale of judicial redress, The king,
we are often told, is the fountain of justice; but in those ages
it was one which gold alone could unseal. Men fined (paid fines)
to have right done them; to sue in a certain court; to implead a
certain person; to have restitution of land which they had
recovered at law. From the sale of that justice which every
citizen has a right to demand, it was an easy transition to
withhold or deny it. Fines were received for the king's help
against the adverse suitor; that is, for perversion of justice,
or for delay. Sometimes they were paid by opposite parties, and,
of course, for opposite ends."   2 Middle Ages, 438.

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

"A law which enacts that justice shall neither be sold, denied,
nor delayed, stamps with infamy that government under which it
had become necessary."   2 Middle Ages, 451.

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

"It was universally understood that money possessed greater
influence than justice in the royal courts, and instances are on
record, in which one party has made the king a present to
accelerate, and the other by a more valuable offer has succeeded
in retarding a decision. * * But besides the fines paid to the
sovereigns, the judges often exacted presents for themselves, and
loud complaints existed against their venality and injustice."
8 Lingard, 231.

In the narrative of "The costs and charges which I, Richard de
Anesty, bestowed in recovering the land of William, my uncle,"
(some fifty years before Magna Carta,) are the following items:

"To Ralph, the king's physician, I gave thirty-six marks and one
half; to the king an hundred marks; and to the queen one mark of
gold." The result is thus stated. "At last, thanks to our lord
the king, and by judgment of his court, my uncle's land was
adjudged to me."   2 Palgrave's Rise and Progress of the English
Commonwealth, p. 9 and 24.

Palgrave also says:

"The precious ore was cast into the scales of justice, even when
held by the most conscientious of our Anglo-Saxon kings. A single
case will exemplify the practices which prevailed. Alfric, the
heir of 'Aylwin, the black,' seeks to set aside the death-bed
bequest, by which his kinsman bestowed four rich and fertile
manors upon St. Benedict. Alfric, the claimant, was supported by
extensive and powerful connexions; and Abbot Alfwine, the
defendant, was well aware that there would be danger in the
discussion of the dispute in public, or before the Folkmoot,
(people's meeting, or county court); or, in other words, that the
Thanes of the shire would do their best to give a judgment in
favor of their compeer. The plea being removed into the Royal
Court, the abbot acted with that prudence which so often calls
forth the praises of the monastic scribe. He gladly emptied
twenty marks of gold into the sleeve of the Confessor, (Edward,)
and five marks of gold presented to Edith, the Fair, encouraged
her to aid the bishop, and to exercise her gentle influence in
his favor. Alfric, with equal wisdom, withdrew from prosecuting
the hopeless cause, in which his opponent might possess an
advocate in the royal judge, and a friend in the king's consort.
Both parties. therefore, found it desirable to come to an
agreement."   1 Palgrave's Rise and Progress, &c;., p. 650.

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

Chap. 22, (of John's Charter.) "Common Pleas shall not follow our
court, but shall be holden in some certain place. Trials upon the
writ of novel disseisin, and of Mort d'Ancester, and of Darrein
Presentment, shall be taken but in their proper counties, and
after this manner: We, or, if we should be out of our realm, our
chief justiciary, shall send two jnsticiaries through every
county four times a year; [3] who, with four knights chosen out
of every shire, by the people, shall hold the assizes (juries) in
the county, on the day and at the place appointed."

It would be very unreasonable to suppose that the king's judges
were allowed to dictate the law to the juries, when the people
would not even suffer them to sit alone in jury trials, but
themselves chose four men to sit with them, to keep them honest.
[4]

This practice of sending the king's judges into the counties
to preside at jury trials, was introduced by the Norman kings
Under the Saxons it was not so. No officer of the king was
allowed to preside at a jury trial; but only magistrates chosen
by the people.[5]

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

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

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

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

"It is ordained, that the justices assigned to take the assizes,
shall not compel the jurors to say precisely whether it be
disseisin, or not, so that they do show the truth of the deed,
and seek aid of the justices. But if they will, of their own
accord, say that it is disseisin, or not, their verdict shall be
admitted at their own peril."   13 Edward I., st. 1, ch. 3, sec.
2. (1285.)

The question of "disseisin, or not," was a question of law, as
well as fact. This statute, therefore, admits that the law, as
well as the fact, was in the hands of the jury. The statute is
nevertheless void, because the king had no authority to give
jurors a dispensation from the obligation imposed upon them by
their oaths and the "law of the land," that they should "make
known the truth according their (own) consciences." This they
were bound to do, and there was no power in the king to absolve
them from the duty. And the attempt of the king thus to absolve
them, and authorize them to throw the case into the hands of the
judges for decision, was simply an illegal and unconstitutional
attempt to overturn the "law of the land," which he was sworn to
maintain, and gather power into his own hands, through his
judges. He had just as much constitutional power to enact that
the jurors should not be compelled to declare the facts, but that
they might leave them to be determined by the king's judges, as
he had to enact that they should not be compelled to declare the
law, but might leave it to be decided by the king's judges. 122
It was as much the legal duty of the jury to decide the law as to
decide the fact; and no law of the king could affect their
obligation to do either. And this statute is only one example of
the numberless contrivances and usurpations which have been
resorted to, for the purpose of destroying the original and
genuine trial by jury.

[1] Marches, the limits, or boundaries, between England and
Wales.

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

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

Hallam says, that "For the first three reigns (of the Norman
kings) * * the intolerable exactions of tribute, the rapine of
purveyance, the iniquity of royal courts, are continually in the
mouths of the historians. ' God sees the wretched people,' says
the Saxon Chronicler, 'most unjustly oppressed; first they are
despoiled of their possessions, and then butchered.' This was a
grievous year (1124). Whoever had any property, lost it by heavy
taxes and unjust decrees."   2 Middle Ages, 435-6.

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

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

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

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

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

By Magna Carta John bound himself to make restitution for some
of the spoliations he had committed upon individuals "without the
legal judgment of their peers."   See Magna Carta of John, ch.
60, 61, 65 and 66.

One of the great charges, on account of which the nation rose
against John, was, that he plundered individuals of their
property, "without legal judgment of their peers." Now it was
evidently very weak and short sighted in John to expose himself
to such charges, if his laws were really obligatory upon the
peers; because, in that case, he could have enacted any laws that
were necessary for his purpose, and then, by civil suits, have
brought the cases before juries for their "judgment," and thus
have accomplished all his robberies in a perfectly legal manner.

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

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

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

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

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

We are told also that John himself "had dispossessed several
great men without any judgment of their peers, condemned others
to cruel deaths, * * insomuch that his tyrannical will stood
instead of a law."   Echard's History of England, 106.
Now all these things were very unnecessary and foolish, if his
laws were binding upon juries; because, in that ease, he could
have procured the conviction of these men in a legal manner, and
thus have saved the necessity of such usurpation. In short, if
the laws of the king had been binding upon juries, there is no
robbery, vengeance, or oppression, which he could not have
accomplished through the judgments of juries. This consideration
is sufficient, of itself, to prove that the laws of the king were
of no authority over a jury, in either civil or criminal cases,
unless the juries regarded the laws as just in themselves.

[3] By the Magna Carta of Henry III., this is changed to once a
year.

[4] From the provision of Magna Carta, cited in the text, it must
be inferred that there can be no legal trial by jury, in civil
eases, if only the king's justices preside; that, to make the
trial legal, there must be other persons, chosen by the people,
to sit with them; the object being to prevent the jury's being
deceived by the justices. I think we must also infer that the
king's justices could sit only in the three actions specially
mentioned. We cannot go beyond the letter of Magria Carta, in
making innovations upon the common law, which required all
presiding officers in jury trials to be elected by the people.

[5] ["The earls, sheriffs, and head-boroughs were annually
elected in the full folcmote, (people's meeting)." Introduction
to Gilbert's History of the Common Pleas, p. 2, note.

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

"Every ward had its proper alderman, who was chosen, and not
imposed by the prince."   Same, p. 4, text.

"As the aldermen, or earls, were always chosen" (by the people)
"from among the greatest thanes, who in those times were
generally more addicted to arms than to letters, they were but
ill-qualified for the administration of justice, and performing
the civil duties of their office."   3 Henry's History of Great
Britain, 343.

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

"The sheriff was usually not appointed by the lord, but elected
by the freeholders of the district."   Political Dictionary, word
Sheriff.

"Among the most remarkable of the Saxon laws we may reckon
* * the election of their magistrates by the people, originally even
that of their kings, till dear-bought  experience evinced the
convenience and necessity of establishing an hereditary
succession to the crown. But that (the election) of all
subordinate magistrates, their military officers or heretochs,
their sheriffs, their conservators of the peace, their coroners,
their portreeves, (since changed into mayors and bailiffs,) and
even their tithing-men and borsholders at the last, continued,
some, till the Norman conquest, others for two centuries after,
and some remain to this day."   4 Blackstone, 418.

"The election of sheriffs was left to the people, according to
ancient usage."   St. West. 1, c. 27.   Crabbe's History of
English Law, 181.



CHAPTER V. OBJECTIONS ANSWERED

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

1. That it is a maxim of the law, that the judges respond to the
question of law, and juries only to the question of fact.
The answer to this objection is, that, since Magna Carta, judges
have had more than six centuries in which to invent and
promulgate pretended maxims to suit themselves; and this is one
of them. Instead of expressing the law, it expresses nothing but the
ambitious and lawless will of the judges themselves, and of those
whose instruments they are.[1]

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

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

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

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

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

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

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

Magna Carta does not provide that the judgments of the peers shall
be executed; but only that no other than their judgments shall
ever be executed, so far as to take a party's goods, rights, or
person, thereon.

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

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

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

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

Nevertheless, we may, for the sake of the argument, suppose the
existence of a practical, if not legal, necessity, for executing
some judgment or other, in cases where juries persist in
disagreeing with the courts. In such cases, the principle of Magna
Carta unquestionably is, that the uniform judgments of
successivejuries shall prevail over the opinion of the court. And
the reason of this principle is obvious, viz., that it is the will of the
country, and not the will of the court, or the government, that
must determine what laws shall be established and enforced; that
the concurrent judgments of successive juries, given in opposition
to all the reasoning which judges and lawyers can offer to the
contrary, must necessarily be presumed to be a truer exposition of
the will of the country, than are the opinions of the judges.

But it may be said that, unless jurors submit to the control of
the court, in matters of law, they may disagree amongthemselves,
and never come to any judgment; and thus justice fail to be done.

Such a case is perhaps possible; but, if possible, it can occur
but rarely; because, although one jury may disagree, a succession
of juries are not likely to disagree   that is, on matters of
natural law, or abstract justice. [2] If such a thing should
occur, it would almost certainly be owing to the attempt of the
court to mislead them. It is hardly possible that any other cause
should be adequate to produce such an effect; because justice
comes very near to being a self-evident principle. The mind
perceives it almost intuitively. If, in addition to this, the
court be uniformly on the side of justice, it is not a reasonable
supposition that a succession of juries should disagree about it.
If, therefore, a succession of juries do disagree on the law of
any case, the presumption is, not that justice fails of being
done, but that injustice is prevented   that injustice, which
would be done, if the opinion of the court were suffered to
control the jury.

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

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

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

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

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

3. That these presumptions shall be overcome, in a court of
justice, only by evidence, the sufficiency of which, and by law,
the justice of which, are satisfactory to the under- standing and
consciences of all the jurors.

These are the bases on which the trial by jury places the
property, liberty, and rights of every individual.

But some one will say, if these are the principles of the trial by
jury, then it is plain that justice must often fail to be done.
Admitting, for the sake of the argument, that this may be true,
the compensation for it is, that positive injustice will also
often fail to be done; whereas otherwise it would be done
frequently. The very precautions used to prevent injustice being
done, may often have the effect to prevent justice being done. Bu
are we, therefore, to take no precautions against injustice? By no
means, all will agree. The question then arises   Does the trial
by jury, as here explained, involve such extreme and unnecessary
precautions against injustice, as to interpose unnecessary
obstacles to the doing of justice? Men of different minds may very
likely answer this question differently, according as they have
more or less confidence in the wisdom and justice of legislators,
the integrity and independence of judges, and the intelligence of
jurors. This much, however, may be said in favor of these
precautions, viz., that the history of the past, as well as our
constant present experience, prove how much injustice may, and
certainly will, be done, systematically and continually, for the
want of these precautions   that is, while the law is authoritatively
made and expounded by legislators and judges. On the other hand,
we have no such evidence of how much justice may fail to be done,
by reason of these precautions   that is, by reason of the law being
left to the judgments and consciences of jurors. We can determine
the former point   that is, how much positive injustice is done
under the first of these two systems because the system is in full
operation; but we cannot determine how much justice would
fail to be done under the latter system, because we have, in
modern times, had no experience of the use of the precautions
themselves. In ancient times, when these precautions were
nominally in force, such was the tyranny of kings, and such the
poverty, ignorance, and the inability of concert and resistance,
on the part of the people, that the system had no full or fair
operation. It, nevertheless, under all these disadvantages,
impressed itself upon the understandings, and imbedded itself
in the hearts, of the people, so as no other system of civil liberty
has ever done.

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

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

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

Legitimate government can be formed only by the voluntary
association of all who contribute to its support. As a voluntary
association, it can have for its objects only those things in
which the members of the association are all agreed. If,
therefore, there be any justice, in regard to which all the
parties to the government are not agreed, the objects of the
association do not extend to it. [3]

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

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

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

If a government were to be established and supported solely by
that portion of the people who lay claim to superior knowledge,
there would be some consistency in their saying that the common
people should not be received as jurors, with power to judge of
the justice of the laws. But so long as the whole people (or all
the male adults) are presumed to be voluntary parties to the
government, and voluntary contributors to it support, there is no
consistency in refusing to any one of them more than to another
the right to sit as juror, with full power to decide for himself
whether any law that is proposed to be enforced in any particular
case, be within the objects of the association.

The conclusion, therefore, is, that, in a government formed by
voluntary association, or on the theory of voluntary association,
and voluntary support, (as all the North American governments
are,) no law can rightfully be enforced by the association in its
corporate capacity, against the goods, rights, or person of any
individual, except it be such as all the members of the
association agree that it may enforce. To enforce any other law,
to the extent of taking a man's goods, rights, or person, would be
making some of the parties to the association accomplices in what
they regard as acts of injustice. It would also be making them
consent to what they regard as the destruction of their own
rights. These are things which no legitimate system or theory of
government can require of any of the parties to it.

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

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

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

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

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

There would be something like certainty in the administration of
justice, and in the popular knowledge of the law, for the further
reason that there would be little legislation, and men's rights
would be left to stand almost solely upon the law of nature, or
what was once called in England "the common law," (before so
much legislation and usurpation had become incorporated into the
common law,) in other words, upon the principles of natural justice.
Of the certainty of this law of nature, or the ancient English
common law, I may be excused for repeating here what, I have
said on another occasion.

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

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

It is a principle perfectly familiar to lawyers, and one that must
be perfectly obvious to every other man that will reflect a
moment, that, as a general rule, no one can know what the written
law is, until he knows what it ought to be; that men are liable to
be constantly misled by the various and conflicting senses of the
same words, unless they perceive the true legal sense in which the
words ought to be taken. And this true legal sense is the sense
that is most nearly consistent with natural law of any that the
words can be made to bear, consistently with the laws of language,
and appropriately to the subjects to which they are applied.

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

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

But each written law, in order to be a law, must be taken only in
some one definite and distinct sense; and that definite and
distinct sense must be selected from the almost infinite variety
of senses which its words are capable of. How is this selection to
be made? It can be only by the aid of that perception of natural
law, or natural justice, which men naturally possess.
Such, then, is the comparative certainty of the natural and the
written law. Nearly all the certainty there is in the latter, so
far as it relates to principles, is based upon, and derived from,
the still greater certainty of the former. In fact, nearly all the
uncertainty of the laws under which we live,   which are a mixture
of natural and written laws,   arises from the difficulty of
construing, or, rather, from the facility of misconstruing, the
written law; while natural law has nearly or quite the same
certainty as mathematics. On this point, Sir William Jones, one of
the most learned judges that have ever lived, learned in Asiatic
as well as European law, says,    and  the fact should be kept
forever in mind, as one of the most important of all truths:   "It
is pleasing to remark, the similarity, or, rather, the identity of
those conclusions which pure, unbiased reason, in all ages; and
nations, seldom fails to draw, in such juridical inquiries as are
not fettered and manacled by positive institutions." [4] In short,
the simple fact that the written law must be interpreted by the
natural, is, of itself, a sufficient confession of the superior
certainty of the latter.

The written law, then, even where it can be construed consistently
with the natural, introduces labor and obscurity, instead of
shutting them out. And this must always be the case, because
words do not create ideas, but only recall them; and the same
word may recall many different ideas. For this reason, nearly all
abstract principles can be seen by the single mind more clearly
than they can be expressed by words to another. This is owing to the
imperfection of language, and the different senses, meanings, and
shades of meaning, which different individuals attach to the same
words, in the same circumstances. [5]

Where the written law cannot be construed consistently with the
natural, there is no reason why it should ever be enacted at all.
It may, indeed, be sufficiently plain and certain to be easily
understood; but its certainty and plainness are but a poor
compensation for its injustice. Doubtless a law forbidding men to
drink water, on pain of death, might be made so intelligible as to
cut off all discussion as to its meaning; but would the
intelligibleness of such a law be any equivalent for the right to
drink water?

The principle is the same in regard to all unjust laws. Few
persons could reasonably feel compensated for the arbitrary
destruction of their rights, by having the order for their
destruction made known beforehand, in terms so distinct and
unequivocal as to admit of neither mistake nor evasion. Yet this
is all the compensation that such laws offer.

Whether, therefore, written laws correspond with, or differ from,
the natural, they are to be condemned. In the first case, they are
useless repetitions, introducing labor and obscurity. In the
latter case, they are positive violations of men's rights.
There would be substantially the same reason in enacting
mathematics by statute, that there is in enacting natural law.
Whenever the natural law is sufficiently certain to all men's
minds to justify its being enacted, it is sufficiently certain to
need no enactment. On the other hand, until it be thus certain,
there is danger of doing injustice by enacting it; it should,
therefore, be left open to be discussed by anybody who may be
disposed to question it, and to be judged of by the proper
tribunal, the judiciary. [6]

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

The objections made to natural law, on the ground of obscurity,
are wholly unfounded. It is true, it must be learned, like any
other science; but it is equally true that it is very easily
learned. Although as illimitable in its applications as the
infinite relations of men to each other, it is, nevertheless, made
up of simple elementary principles, of the truth and justice of
which every ordinary mind has an almost intuitive perception. It
is the science of justice,   and almost all men have the same
perceptions of what constitutes justice, or of what justice
requires, when they understand alike the facts from which their
inferences are to be drawn. Men living in contact with each other,
and having intercourse together, cannot avoid learning natural
law, to a very great extent, even if they would. The dealings of
men with men, their separate possessions, and their individual
wants, are continually forcing upon their minds the questions,
Is this act just? or is it unjust? Is this thing mine? or is it
his? And these are questions of natural law; questions, which, in
regard to the great mass of cases, are answered alike by the human
mind everywhere.

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

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

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

Further than this; legislation does not even profess to remove the
obscurity of natural law. That is no part of its object. It only
professes to substitute something arbitrary in the place of
natural law. Legislators generally have the sense to see that
legislation will not make natural law any clearer than it is.
Neither is it the object of legislation to establish the authority
of natural law. Legislators have the sense to see that they can
add nothing to the authority of natural law, and that it will
stand on its own authority, unless they overturn it.
The whole object of legislation, excepting that legislation which
merely makes regulations, and provides instrumentalities for
carrying other laws into effect, is to overturn natural law, and
substitute for it the arbitrary will of power. In other words, the
whole object of it is to destroy men's rights. At least, such is
its only effect; and its designs must be inferred from its effect.
Taking all the statutes in the country, there probably is not one
in a hundred, except the auxiliary ones just mentioned,   that
does not violate natural law; that does not invade some right or
other.

Yet the advocates of arbitrary legislation are continually
practising the fraud of pretending that unless the legislature
make the laws, the laws will not be known. The whole object of
the fraud is to secure to the government the authority of making
lawsthat never ought to be known."

In addition to the authority already cited, of Sir William Jones,
as to the certainty of natural law, and the uniformity of men's
opinions in regard to it, I may add the following:

"There is that great simplicity and plainness in the Common Law,
that Lord Coke has gone so far as to assert, (and Lord Bacon
nearly seconds him in observing,) that  'he never knew two
questions arise merely upon common law; but that they were
mostly owing to statutes ill-penned and overladen with provisos.' "
3 Eunomus, 157   8.

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

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

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

[3] This is the principle of all voluntary associations
whatsoever. No voluntary association was ever formed, and in the
nature of things there never can be one formed, for the
accomplishment of any objects except those in which all the
parties to the association are agreed. Government, therefore, must
be kept within these limits, or it is no longer a voluntary
association of all who contribute to its support, but a mere
tyrant established by a part over the rest.

All, or nearly all, voluntary associations give to a majority, or
to some other portion of the members less than the whole, the
right to use some limited discretion as to themeans to be used to
accomplish the ends in view; but the end themselves to be
accomplished are always precisely defined, and are such as every
member necessarily agrees to, else he would not voluntarily join
the association.

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

[4] Jones on Bailments,

[5] Kent, describing the difficulty of construing the written law,
says:

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

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

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

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


CHAPTER VI. JURIES OF THE PRESENT DAY ILLEGAL

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

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

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

It will also be shown, in a subsequent chapter, [1] that since
Magna Carta, the legislative power in England (whether king or
parliament) has never had any constitutional authority to
infringe, by legislation, any essential principle of the common
law in the selection of jurors. All such legislation is as much
unconstitutional and void, as though it abolished the trial by
jury altogether. In reality it does abolish it.

What, then, are the essential principles of the common law,
controlling the selection of jurors?

They are two.

1. That all the freemen, or adult male members of the state,
shall be eligible as jurors. [2]

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

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

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

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

1. Everybody must be presumed eligible, until the contrary
be shown. We have no evidence, that I am aware of, of a
prior date to Magna Carta, to disprove that all freemen were
eligible as jurors, unless it be the law of Ethelred, which
requires that they be elderly [3] men. Since no specific age
is given, it is probable, I think, that this statute meant
nothing more than that they be more than twenty-one years
old. If it meant anything more, it was probably contrary to
the common law, and therefore void.

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

The Mirror of Justices, (written within a century after
Magna Carta,) in the section " Of Judges"   that is, jurors
says:

"All those who are not forbidden by law may be judges
(jurors).

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

In the section " Of Inferior Courts," it is said:

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

In the section "Of the Sheriff's Turns," it is said:

"The sheriff's by ancient ordinances hold several meetings twice
in the year in every hundred; where all the freeholders within the
hundred are bound to appear for the service of their fees."
Mirror of Justices, 50.

The following statute was passed by Edward I., seventy years after
Magna Carta:

"Forasmuch also as sheriffs, hundreders, and bailiffs of
liberties, have used to grieve those which be placed under them,
putting in assizes and juries men diseased and decrepit, and
having continual or sudden disease; and men also that dwelled not
in the country at the time of the summons; and summon also an
unreasonable number of jurors, for to extort money from some of
them, for letting them go in peace, and so the assizes and juries
pass many times by poor men, and the rich abide at home by
reason of their bribes; it is ordained that from henceforth in one
assize no more shall be summoned than four and twenty; and
old men above three score and ten years, being continually sick,
or being diseased at the time of the summons, or not dwelling in
that country, shall not be put in juries of petit assizes."   St. 13
Edward I., ch. 38. (1285.)

Although this command to the sheriff's and other officers, not to
summon, as jurors, those who, from age and disease, were
physically incapable of performing the duties, may not, of itself,
afford any absolute or legal implication, by which we can
determine precisely who were, and who were not, eligible as jurors
at common law, yet the exceptions here made nevertheless carry a
seeming confession with them that, at common law, all male
adults were eligible as jurors.

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

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

The first invasion which I find made, by the English statutes,
upon this common law principle, was made in I285, seventy years
after Magna Carta. It was then enacted as follows:

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

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

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

Other statutes on this subject of the property qualifications of
jurors, are given in the note. [4]

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

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

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

"Be it also ordained and enacted by the same authority, that all
panels hereafter to be returned, which be not at the suit of any
party, that shall be made and put in afore any justice of gaol
delivery or justices of peace in their open sessions to inquire
for the king, shall hereafter be reformed by additions and taking
out of names of persons by discretion of the same justices before
whom such panel shall be returned; and the same justices shall
hereafter command the sheriff, or his ministers in his absence, to
put other persons in the same panel by their discretions; and that
panel so hereafter to be made, to be goodand lawful.  This act to
endure only to the next Parliament "   11 Henry VII., ch. 24, sec.
6. (1495.)

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

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

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

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

Any infringement or restriction of the common law right of the
whole body of the freemen of the kingdom to eligibility as jurors,
was legally an abolition of the trial by jury itself. The juries
no longer represented "the country," but only a part of the
country; that part, too, on whose favor the government chose to
rely for the maintenance of its power, and which it therefore saw
fit to select as being the most reliable instruments for its
purposes of oppression towards the rest. And the selection was
made on the same principle, on which tyrannical governments
generally select their supporters, viz., that of conciliating
those who would be most dangerous as enemies, and most
powerful as friends that is, the wealthy. [6]

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

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

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

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

Every freeborn adult male Englishman (who had not lost his civil
right" by crime or otherwise) was entitled to land of right; that
is, by virtue of his civil freedom, or membership of the body
politic. Every member of the state was therefore a freeholder; and
every freeholder was a member of the state. And the members of
the state were therefore called freeholders. But what is material to
be observed, is, that a man's right to land was an incident to his
civil freedom; not his civil freedom an incident to his right to
land. He was a freeholder because he was a freeborn member of
the state; and not a freeborn member of the state because he was a
freeholder; for this last would be an absurdity.

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

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

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

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

Of course, this principle forbids the selection to be made by any
officer of the government.

There seem to have been at least three modes of selecting the
jurors, at the common law. 1. By lot. [7] 2. Two knights, or other
freeholders, were appointed, (probably by the sheriff,) to select
the jurors. 3. By the sheriff, bailiff, or other person, who held
the court, or rather acted as its ministerial officer. Probably
the latter mode may have been the most common, although there
may be some doubt on this point.

At the common law the sheriff's, bailiffs, and other officers were
chosen by the people, instead of being appointed by the king. (4
Blackstone, 413. Introduction to Gilbert's History of the Common
Pleas, p. 2; note, and p. 4.) This has been shown in a former
chapter. [8] At common law, therefore, jurors selected by these
officers were legally selected, so far as the principle now under
discussion is concerned; that is, they were not selected by any
officer who was dependent on the government.

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

"That the sheriffs shall henceforth be assigned by the chancellor,
treasurer, barons of the exchequer, and by the justices. And in
the absence of the chancellor, by the treasurer, barons and
justices."   9 Edward II., st. 2. (1315.)

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

In Tennessee, also, the jurors are to be selected by the county
courts.

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

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

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

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

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

"That jurors to serve in the courts of the United States, in each
state respectively, shall have the like qualifications and be
entitled to the like exemptions, as jurors of the highest court of
law of such state now have and are entitled to, and shall
hereafter, from time to time, have and be entitled to, and shall
be designated by ballot, lot, or otherwise, according to the mode
of forming such juries now practised and hereafter to be practised
therein, in so far as such mode may be practicable by the courts
of the United States, or the officers thereof; and for this
purpose, the said courts shall have power to make all necessary
rules and regulations for conforming the designation and
empanelling of jurors, in substance, to the laws and usages now in
force in such state; and, further, shall have power, by role or
order, from time to time, to conform the same to any change in
these respects which may be hereafter adopted by the legislatures
of the respective states for the state courts."   St. 1840, ch.
47, Statutes at Large, vol. 5, p. 394.

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

Congress have as much constitutional right to give over all the
functions of the United States government into the hand of the
state legislatures, to be exercised within each state in such
manner as the legislature of such state shall please to exercise
them, as they have to thus give up to these legislatures the
selection of juries for the courts of the United States.

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

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

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

Probably the best mode of appointing jurors would be this: Let the
names of all the adult [male] [9] members of the state, in each
township, be kept in a jury box, by the officers of the township;
and when a court is to be held for a county or other district, let
the officers of a sufficient number of townships be required
(without seeing the names) to draw out a name from their boxes
respectively, to be returned to the court as a juror. This mode of
appointment would guard against collusion and selection; and
juries so appointed would be likely to be a fair epitome of "the
country."

[1]On the English Constitution.

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

[3] What was the precise meaning of the Saxon word, which I have
here called elderly, I do not know. In the Latin translations it
is rendered by seniores, which may perhaps mean simply those
who have attained their majority.

[4] In 1485 it was enacted, by a statute entitled " Of what credit
and estate those jurors must be which shall be impaneled in the
Sheriff's Turn."

"That no bailiff nor other officer from henceforth return or
impanel any such person in any shire of England, to be taken or
put in or upon any inquiry in any of the said Turns, but such as
be of good name and fame, and having lands and tenements of
freehold within the same shires, to the yearly value of twenty
shillings at the least, or else lands and tenements holden by
custom of manor, commonly called copy-hold, within the said
shires, to the yearly value of twenty-six shillings eight pence
over all charges at the least."   1 Richard III., ch. 4. (1483 )

In 1486 it was enacted, " That the justices of the peace of every
shire of this realm for the time being may take, by their
discretion, an inquest, whereof every man shall have lands and
tenements to the yearly value of forty shillings at the least, to
inquire of the concealments of others," &c;., &c;.   3 Henry VII,
ch. 1. (1486.)

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

"That no person nor persons hereafter be impaneled, summoned,
or sworn in any jury or inquest in courts within the same city, (of
London,) except he be of lands, tenements, or goods and chattels,
to the value of forty marks; [5] and that no person or persons
hereafter be impaneled, summoned, nor sworn in any jury or
inquest in any court within the said city, for lands or tenements, or
action personal, wherein the debt or damage amounteth to the sum
of forty marks, or above, except he be in lands tenements, goods,
or chattels, to the value of one hundred marks."   11 Henry VII.
ch. 21. (1494.)

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

In 1494 it was enacted that "It shall be lawful to every sheriff
of the counties of Southampton, Surrey., and Sussex, to impanel
and summons twenty-four lawful men of such, inhabiting within
the precinct of his or their turns, as owe suit, to the same turn,
whereof every one hath lands or freehold to the yearly value of
ten shillings, or copyhold lands to the yearly value of thirteen
shillings four pence, above all charges within any of the said
counties, or men of less livelihood, if there be not so many
there, not withstanding the statute of 1 Richard III., ch. 4. To
endure to the next parliament."   11 Henry VII., ch. 24. (1494.)
This statute was continued in force by 19 Henry VII., ch. 16
(1503.)

In 1531 it was enacted, "That every person or person being the
king's natural subject born, which either by the name of citizen,
or of a freeman, or any other name, doth enjoy and use the
liberties and privileges of any city, borough, or town corporate,
where he dwelleth and maketh his abode, being worth in moveable
goods and substance to the clear value of forty pounds, be
henceforth admitted in trials of murders and felonies in every
sessions and gaol delivery, to be kept and holden in and for the
liberty of such cities, boroughs, and towns corporate, albeit they
have no freehold; any act, statute, use, custom, or ordinance to
the contrary hereof notwithstanding."   23 Henry VIII., ch. 13.
(1531.)

In 1585 it was enacted, "That in all cases where any jurors to be
returned for trial of any issue or issues joined in any of the
Queen's majesty's courts of King's Bench, Common Pleas, and the
Exchequer, or before judices of assize, by the laws of this realm
now in force, ought to have estate of freehold in lands,
tenements, or hereditaments, of the clear yearly value of forty
shillings, that in every such case the jurors that shall be
returned from and after the end of this present session of
parliament, shall every of them have estate of freehold in lands,
tenements, or hereditaments, to the clear yearly value of four
pounds at the least."   27 Elizabeth, ch. 6. (1585.)

In 1664-5 it was enacted "That all jurors (other than strangers
upon trials per medietatem linquae) who are to be returned for the
trials of issues joined in any of (his) majesty's courts of king's
bench, common pleas, or the exchequer, or before justices of
assize, nisi prius, oyer and terminer, gaol delivery, or general
or quarter sessions of the peace from and after the twentieth day
of April, which shall be in the year of our Lord one thousand six
hundred and sixty-five, in any county of this realm of England,
shall every of them then have, in their own name, or in trust for
them, within the same county, twenty pounds, by the year, at
least, above reprises, in their own or their wives right, of
freehold lands, or of ancient demesne, or of rents in fee,
fee-tail, or for life. And that in every county within the
dominion of Wales every such juror shall then have, within the
some, eight pounds by the year, at the least, above reprises, in
manner aforesaid. All which persons having such estate as
aforesaid are hereby enabled and made liable to be returned and
serve as jurors for the trial of issues before the justices
aforesaid, any law or statute to the contrary in any wise
notwithstanding,"   16 and 17 Charles II., ch. 5. (1664-5,)

By a statute passed in 1692, jurors in England are to have landed
estates of the value of ten pounds a year, and jurors in Wales to
have similar estates of the realm of six pounds a year.   4 and 5
William and Mary, ch. 24, sec. 14, (1692,)

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

By St. 3 George II., ch. 25, sec. 10, 20, no one is to be a juror
in London, who shall not be "an householder within the said city,
and have lands, tenements, or personal estate, to the value of one
hundred pounds."

By another statute, applicable only to the county of Middlesex, it
is enacted, "That all leaseholders, upon leases where the improved
rents or value shall amount to fifty pounds or upwards per annum,
over and above all ground rents or other reservations payable by
virtue of the said leases, shall be liable and obliged to serve
upon juries when they shall be legally summoned for that
purpose.,"   4 George II., ch. 7, sec, 3. (1731.)

[5] A mark was thirteen shillings and four pence.

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

[7] Lingard says: "These compurgators or jurors * * were
sometimes * * drawn by lot."   1 Lingard's History of England,
p. 300.

[8] Chapter 4, p. 120, note.

[9] Editor's Note: (The following was not in Spooner's addition)
With the ratification of Article XIX  of amendment to the
Constitution for the United States, August 20, 1920, women were
fully enfranchised with all rights of voting and jury service in all states
of the Union.


CHAPTER VII. ILLEGAL JUDGES

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

This provision is contained in the great charters of both John
and Henry, and is second in importance only to the provision
guaranteeing the trial by jury, of which it is really a part.
Consequently, without the observance of this prohibition, there
can be no genuine or legal   that is, common law   trial by jury.
At the common law, all officers who held jury trials, whether in
civil or criminal cases, were chosen by the people. [1]

But previous to Magna Carta, the kings had adapted the practice
of sending officers of their own appointment, called justices,
into the counties, to hold jury trials in some cases; and Magna
Carta authorizes this practice to be continued so far as it
relates to three kinds of civil actions, to wit: "novel
disseisin, mort de ancestor, and darrein presentment;" [2] but
specially forbids its being extended to criminal cases, or pleas
of the crown.

This prohibition is in these words:

"Nullus vicecomes, constabularius, coronator, vel alii balivi
nostri, teneant placita coronae nostrae." (No sheriff, constable,
coroner, or other our bailiffs, shall hold pleas of our crown.)
John's Charter, ch. 53, Henry's ditto, ch. 17.

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

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

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

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

"I have heard great question made what the true exposition of
this word balivus is. In the statute of Magna Carta, cap. 28, the
letter of that statute is, nullus balivus de eaetero ponat
aliqnem ad legem manifestam nec ad juramentum simplici loquela
sua sine testibus fidelibus ad hoc inductis." (No bailiff from
henceforth shall put any one to his open law, nor to an oath {of
self-exculpation) upon his own simple accusation, or complaint,
without faithful witnesses brought in for the same.) "And some
have said that balivus in this statute signifieth any judge; for
the law must be waged and made before the judge. And this statute
(say they) extends to the courts of common pleas, king's bench,
&c;., for they must bring with them fideles testes, (faithful
witnesses,) &c;., and so hath been the usage to this day."   1
Coke's Inst., 168 b.

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

Coke also, in another place, under the head of the chapter just
cited from Magna Carta, that "no bailiff shall put any man to his
open law," &c;., gives the following commentary upon it, from the
Mirror of Justices, from which it appears that in the time of
Edward I., (1272 to 1307,) this word balivus was understood to
include all judicial, as well as all other, officers of the king.

The Mirror says: "The point which forbiddeth that no bailiff put
a freeman to his oath without suit, is to be understood in this
manner,   that no justice, no minister of the king, nor other
steward, nor bailiff, have power to make a freeman make oath, (of
self-exculpation,) without the king's command, [3] nor receive
any plaint, without witnesses present who testify the plaint to
be true."   Mirror of Justices, ch. 5, sec. 2, p. 257.

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

"By this it appeareth, that under this word balivus, in this act,
is comprehended every justice, minister of the king, steward, and
bailiff."   2 Inst., 44.

Coke also, in his commentary upon this very chapter of Magna
Carta, that provides that "no sheriff; constable; coroner, or
other our bailiffs, shall hold pleas of our crown," expresses the
opinion that it "is a general law," (that is, applicable to all
officers of the king,) " by reason of the words vel alii balivi
nostri, (or other our bailiffs,) under which words are
comprehended all judges or justices of any courts of justice.
"And he cites a decision in the king's bench, in the 17th year of
Edward I., (1289,) as authority; which decision he calls "a
notable and leading judgment."   2 Inst., 30   1.

And yet Coke, in flat contradiction of this decision, which he
quotes with such emphasis and approbation, and in flat
contradiction also of the definition he repeatedly gives of the
word balivus showing that it embraced all ministers of the king
whatsoever, whether high or low, judicial or executive,
fabricates an entirely gratuitous interpretation of this chapter
of Magna Carta, and pretends that after all it only required that
felonies should he tried before the king's justices, on account
of their superior Iearning; and that it permitted all lesser
offenses to be tried before inferior officers, (meaning of course
the king's inferior officers.)   2 Inst., 30.

And thus this chapter of Magna Carta, which, according to his own
definition of the word balivus, applies to all officers of the
king; and which, according to the common and true definition of
the term "pleas of the crown," applies to all criminal cases
without distinction, and which, therefore, forbids any officer or
minister of the king to preside in a jury trial in any criminal
case whatsoever, he coolly and gratuitously interprets into a
mere senseless provision for simply restricting the discretion of
the king in giving names to his own officers who should preside
at the trials of particular offences; as if the king, who made
and unmade all his officers by a word, could not defeat the whole
object of the prohibition, by appointing such individuals as he
pleased, to try such causes as he pleased, and calling them by
such names as he pleased, if he were but permitted to appoint and
name such officers at all; and as if it were of the least
importance what name an officer bore, whom the king might
appoint to a particular duty. [4]

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

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

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

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

Ex uno disce omnes. From one judge learn the characters of all.
[6]

I give in the note additional and abundant authorities for the
meaning ascribed to the word bailiff. The importance of the
principle involved will be a sufficient excuse for such an
accumulation of authorities as would otherwise be tedious and
perhaps unnecessary. [7]

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

It is entirely incredible that Magna Carta, which makes such
careful provision in regard to the king's justices sitting in
civil actions, should make no provision whatever as to their
sitting in criminal trials, if they were to be allowed to sit in
them at all. Yet Magna Carta has no provision whatever on the
subject. [10]

But what would appear to make this matter ahsolute1y certain is,
that unless the prohibition that "no bailiff, &c;., of ours shall
hold pleas of our crown," apply to all officers of the king,
justices as well as others, it would be wholly nugatory for any
practical or useful purpose, because the prohibition could be
evaded by the king, at any time, by simply changing the titles of
his officers. Instead of calling them "sheriffs, coroners,
constables and bailiffs," he could call them "justices," or
anything else he pleased; and this prohibition, so important to
the liberty of the people, would then be entirely defeated. The
king also could make and unmake "justices" at his pleasure; and
if he could appoint any officers whatever to preside over juries
in criminal trials, he could appoint any tool that he might at
any time find adapted to his purpose. It was as easy to make
justices of Jeffreys and Scroggs, as of any other material; and
to have prohibited all the king's officers, except his justices,
from presiding in criminal trials, would therefore have been mere
fool's play.

We can all perhaps form some idea, though few of us will be
likely to form any adequate idea, of what a different thing the
trial by jury would have been in practice, and of what would have
been the difference to the liberties of England, for five hundred
years last past, had this prohibition of Magna Carta, upon the
king's officers sitting in the trial of criminal cases, been
observed.

The principle of this chapter of Magna Carta, as applicable to
the governments of the United States of America, forbids that any
officer appointed either by the executive or legislative power,
or dependent upon them for their salaries, or responsible to them
by impeachment, should preside over a jury in criminal trials. To
have the trial a legal (that is, a common law) and true trial by
jury, the presiding officers must be chosen by the people, and be
entirely free from all dependence upon, and all accountability
to, the executive and legislative branches of the government.
[12]

[1] The proofs of this principle of the common law have already
been given on page 120, note.

There is much confusion and contradiction among authors as to
the manner in which sheriffs and other officers were appointed; some
maintaining that they were appointed by the king, others that
they were elected by the people. I imagine that both these
opinions are correct, and that several of the king's officers
bore the same official names as those chosen by the people; and
that this is the cause of the confusion that has arisen on the
subject.

It seems to be a perfectly well established fact that, at common
law, several magistrates, bearing the names of aldermen, sheriff,
stewards, coroners and bailiffs, were chosen by the people; and
yet it appears, from Magna Carta itself, that some of the king's
officers (of whom he must have had many) were also called
"sheriffs, constables, coroners, and bailiffs."

But Magna Carta, in various instances, speaks of sheriffs and
bailiffs as "our sheriff's and bailiffs;" thus apparently
intending to recognize the distinction between officers of the
king, bearing those names, and other officers, bearing the same
official names, but chosen by the people. Thus it says that "no
sheriff or bailiff of ours, or any other (officer), shall take
horses or carts of any freeman for carriage, unless with the
consent of the freeman himself."   John's Charter, ch. 36.

In a kingdom subdivided into so many counties, hundreds,
tithings, manors, cities and boroughs, each having a judicial or
police organization of its own, it is evident that many of the
officers must have been chosen by the people, else the government
could not have mainlined its popular character. On the other
hand, it is evident that the king, the executive power of the
nation, must have had large numbers of officers of his own in
every part of the kingdom. And it is perfectly natural that these
different sets of officers should, in many instances, bear the
same official names; and, consequently that the king, when
speaking of his own officers, as distinguished, from those chosen
by the people, should call them "our sheriffs, bailiffs," &c;, as
he does in Magna Carta.

I apprehend that inattention to these considerations has been the
cause of all the confusion of ideas that has arisen on this
subject,  a confusion very evident in the following paragraph
from Dunham, which may be given as an illustration of that which
is exhibited by others on the same points.

"Subordinate to the ealdormen were the gerefas, the sheriffs, or
reeves, of whom there were several in every shire, or county.
There was one in every borough, as a judge. There was one at
every gate, who witnessed purchases outside the walls; and there
was one, higher than either,  the high sheriff,  who was probably
the reeve of the shire. This last appears to have been appointed
by the king. Their functions were to execute the decrees of the
king, or ealdormen, to arrest prisoners, to require bail for
their appearance at the sessions, to collect fines or penalties
levied by the court of the shire, to preserve the public peace,
and to preside in a subordinate tribunal of their own."
Durham's Middle Ages, sec. 2, B. 2, ch. 1.  - 57 Lardner's Cab.
Cyc., p 41.

The confusion of duties attributed to these officers indicates
clearly enough that different officers, bearing the same official
names, must have had different duties, and have derived their
authority from different sources, to wit, the king, and the
people.

[2] Darrein presentement  was an inquest to discover who
presented the last person to a church; mort de ancestor, whether
the last possessor was seized of land in demesne of his own fee;
and novel disseisin, whether the claimant had been unjustly
disseized of his freehold.

[3] He has no power to do it, either with, or without, the king's
command. The prohibition is absolute, containing no such
qualification as is here interpolated, viz., "without the king's
command." If it could be done with the king's command, the king
would be invested with arbitrary power in the matter.

[4] The absurdity of this doctrine of Coke is made more apparent
by the fact that, at that time, the "justices" and other persons
appointed by the king to hold courts were not only dependent upon
the king for their offices, and removable at his pleasure, but
that the usual custom was, not to appoint them with any view to
permanency, but only to give them special commissions for trying
a single cause, or for holding a single term of a court, or for
making a single circuit; which, being done, their commissions
expired. The king, therefore, could, and undoubtedly did, appoint
any individual he pleased, to try any cause he pleased, with a
special view to the verdicts he desired to obtain in the
particular cases.

This custom of commissioning particular persons to hold jury
trials, in criminal cases, (and probably also in civil ones,) was
of course a usurpation upon the common law, but had been
practised more or less from the time of William the Conqueror.
Palgrave says:

"The frequent absence of William from his insular dominions
occasioned another mode of administration, which ultimately
produced still greater changes in the law. It was the practice of
appointing justiciars to represent the king's person, to hold his
court, to decide his pleas, to dispense justice on his behalf, to
command the military levies, and to act as conservators of the
peace in the king's name. [5] .. The justices who were assigned
in the name of the sovereign, and whose powers were revocable at
his pleasure, derived their authority merely from their grant...
Some of those judges were usually deputed for the purpose of
relieving the king from the burden of his judicial functions...
The number as well as the variety of names of the justices
appearing in the early chirographs of 'Concords,' leave reason
for doubting whether, anterior to the reign of Henry III., (1216
to 1272,) a court, whose members were changing at almost every
session, can be said to have been permanently constituted. It
seems more probable that the individuals who composed the
tribunal were selected as suited the pleasure of the sovereign,
and the convenience of the clerks and barons; and the history of
our legal administration will be much simplified, if we consider
all those courts which were afterwards denominated the
Exchequer, the King's Bench, the Common Pleas, and the Chancery,
as being originally committees, selected by the king when occasion
required, out of a large body, for the despatch of peculiar
branches of business, and which committees, by degrees, assumed
an independent and permanent existence... Justices itinerant,
who, despatched throughout the land, decided the ' Pleas of the
Crown,' may be obscurely traced in the reign of the Conqueror;
not, perhaps, appointed with much regularity, but despatched upon
peculiar occasions and emergencies."   1 Palgrave's Rise and
Progress, &c;., p. 289 to 293.

The following statute, passed in 1354, (139 years after Magna
Carta,) shows that even after this usurpation of appointing
"justices " of his own, to try criminal cases, had probably
become somewhat established in practice, in defiance of Magna
Carta, the king was in the habit of granting special commissions
to still other persons, (especially to sheriffs,   his sheriffs,
no doubt,) to try particular cases:

"Because that the people of the realm have suffered many evils
and mischiefs, for that sheriffs of divers counties, by virtue of
commissions and general writs granted to them at their own suit,
for their singular profit to gain of the people, have made and
taken divers inquests to cause to indict the people at their
will, and have taken fine and ransom of them to their own use,
and have delivered them; whereas such persons indicted were not
brought before the king's justices to have their deliverance, it
is accorded and established, for to eschew all such evils and
mischiefs, that such commissions and writs before this time made
shall be utterly repealed, and that from henceforth no such
commissions shall be granted."   St. 28 Edward III., ch. 9,
(1354.)

How silly to suppose that the illegality of these commissions to
try criminal eases, could have been avoided by simply granting
them to persons under the title of "justices," instead of
granting them to "sheriffs." The statute was evidently a cheat,
or at least designed as such, inasmuch as it virtually asserts
the right of the king to appoint his tools, under the name of
"justices," to try criminal cases, while it disavows his right to
appoint them under the name of "sheriffs."

Millar says: "When the king's bench came to have its usual
residence at Westminster, the sovereign was induced to grant
special commissions, for trying particular crimes, in such parts
of the country as were found most convenient; and this practice
was gradually modeled into a regular appointment of certain
commissioners, empowered, at stated seasons, to perform circuits
over the kingdom, and to hold courts in particular towns, for the
trial of all sorts of crimes. These judges of the circuit,
however, never obtained an ordinary jurisdiction, but continued,
on every occasion, to derive their authority from two special
commissions: that of oyer and terminer, by which they were
appointed to hear and determine all treasons, felonies and
misdemeanors, within certain districts; and that of gaol
delivery, by which they were directed to try every prisoner
confined in the gaols of the several towns falling under their
inspection."   Millar's Hist. View of Eng. Gov., vol. 2, ch. 7,
p. 282.

The following extract from Gilbert shows to what lengths of
usurpation the kings would sometimes go, in their attempts to get
the judicial power out of the hands of the people, and entrust it
to instruments of their own choosing:

"From the time of the Saxons," (that is, from the commencement
of the reign of William the Conqueror,) "till the reign of Edward
the first, (1272 to 1307,) the several county courts and sheriffs
courts did decline in their interest and authority. The methods
by which they were broken were two-fold. First, by granting
commissions to the sheriffs by writ of JUSTICIES, whereby the
sheriff had a particular jurisdiction granted him to be judge of
a particular cause, independent of the suitors of the county
court," (that is, without a jury;) "and these commissions were
after the Norman form, by which (according to which) all power of
judicature was immediately derived from the king."   Gilbert on
the Court of Chancery, p. l.

The several authorities now given show that it was the custom of
the Norman kings, not only to appoint persons to sit as judges in
jury trials, in criminal cases, but that they also commissioned
individuals to sit in singular and particular eases, as occasion
required; and that they therefore readily could, and naturally
would, and therefore undoubtedly did, commission individuals
with a special view to their adaptation or capacity to procure such
judgments as the kings desired.

The extract from Gilbert suggests also the usurpation of the
Norman kings, in their assumption that they, (and not the people,
as by the common law,) were the fountains of justice. It was only
by virtue of this illegal assumption that they could claim to
appoint their tools to hold courts.

All these things show how perfectly lawless and arbitrary the
kings were, both before and after Magna Carta, and how necessary
to liberty was the principle of Magna Carta and the common law,
that no person appointed by the king should hold jury trials in
criminal cases.

[5] In this extract, Palgrave seems to assume that the king
himself had a right to sit as judge, in jury trials, in the
county courts, in both civil and criminal cases. I apprehend he
had no such power at the common law, but only to sit in the trial
of appeals, and in the trial of peers, and of civil suits in
which peers were parties, and possibly in the courts of ancient
demesne.

[6] The opinions and decisions of judges and courts are
undeserving of the least reliance, (beyond the intrinsic merit of
the arguments offered to sustain them,) and are unworthy even to
be quoted as evidence of the law, when those opinions or
decisions are favorable to the power of the government, or
unfavorable to the liberties of the people. The only reasons that
their opinions, when in favor of liberty, are entitled to any
confidence, are, first, that all presumptions of law are in favor
of liberty; and, second, that the admissions of all men, the
innocent and the criminal alike, when made against their own
interests, are entitled to be received as true, because it is
contrary to human nature for a man to confess anything but truth
against himself.

More solemn farces, or more gross impostures, were never
practised upon mankind, than are all, or very nearly all, those
oracular responses by which courts assume to determine that
certain statutes, in restraint of individual liberty, are within
the constitutional power of the government, and are therefore
valid and binding upon the people.

The reason why these courts are so intensely servile and corrupt,
is, that they are not only parts of, but the veriest creatures
of, the very governments whose oppressions they are thus seeking
to uphold. They receive their offices and salaries from, and are
impeachable and removable by, the very governments upon whose
acts they affect to sit in judgment. Of course, no one with his
eyes open ever places himself in a position so incompatible with
the liberty of declaring his honest opinion, unless he do it with
the intention of becoming a mere instrument in the hands of the
government for the execution of all its oppressions.

As proof of this, look at the judicial history of England for the
last five hundred years, and of America from its settlement. In
all that time (so far as I know, or presume) no bench of judges,
(probably not even any single judge,) dependent upon the
legislature that passed the statute, has ever declared a single
penal statute invalid, on account of its being in conflict either
with the common law, which the judges in England have been
sworn to preserve, or with the written constitutions, (recognizing
men's natural rights,) which the American judges were under oath
to maintain. Every oppression, every atrocity even, that has ever
been enacted in either country, by the legislative power, in the
shape of a criminal law, (or, indeed, in almost any other shape,)
has been as sure of a sanction from the judiciary that was
dependent upon, and impeachable by, the legislature that enacted
the law, as if there were a physical necessity that the
legislative enactment and the judicial sanction should go
together. Practically speaking, the sum of their decisions, all
and singular, has been, that there are no limits to the power of
the government, and that the people have no rights except what
the government pleases to allow to them.

It is extreme folly for a people to allow such dependent,
servile, and perjured creatures to sit either in civil or
criminal trials; but to allow them to sit in criminal trials, and
judge of the people's liberties, is not merely fatuity,   it is
suicide.

[7] Coke, speaking of the word bailiffs, as used in the statute
of 1 Westminster, ch. 35, (1275,) says:

"Here bailiffs are taken for the judges of the court, as
manifestly appeareth hereby."   2 Inst., 229.

Coke also says, ' It is a maxim in law, aliguis non debet esse
judex in propria causa, (no one ought to be judge in his own
cause;) and therefore a fine levied before the baylifes of Salopwas
reversed, because one of the baylifes was party to the fine,
quia non potest esse judex et pars," (because one cannot be judge
and party.)   1 Inst., 141 a.

In the statute of Gloucester, ch. 11 and 12, (1278,) "the mayor
and bailiffs of London (undoubtedly chosen by the people, or at
any rate not appointed by the king) are manifestly spoken of as
judges, or magistrates, holding jury trials, as follows:

Ch. II. "It is provided, also, that if any man lease his tenement
in the city of London, for a term of years, and he to whom the
freehold belongeth causeth himself to be impleaded by collusion,
and maketh default after default, or cometh into court and giveth
it up, for to make the termor (lessee) lose his term, (lease,)
and the demandant hath his suit, so that the termor may recover
by writ of covenant; the mayor and bailiffs may inquire by a good
inquest, (jury,) in the presence of the termor and the demandant,
whether the demandant moved his plea upon good right that he
had,
or by collusion, or fraud, to make the termor lose his term; and
if it be found by the inquest (jury) that the demandant moved his
plea upon good right that he had, the judgment shall be given
forthwith; and if it be found by the inquest (jury) that he
impleaded him (self ) by fraud, to put the termor from his term,
then shall the termor enjoy his term, and the execution of
judgment for the demandant shall be suspended until the term be
expired."   4 Edward I., ch. 11, (1278.)

Coke, in his commentary on this chapter, calls this court of "the
mayor and bailiffs" of London, " the court of the hustings, the
greatest and highest court in London;" and adds, "other cities
have the like court, and so called, as York, Lincoln, Winchester,
&e;. Here the city of London is named; but it appeareth by that
which hath been said out of Fleta, that this act extends to such
cities and boroughs privileged,   that is, such as have such
privilege to hold plea as London hath."   2 Inst., 322.

The 12th chapter of the same statute is in the following words,
which plainly recognize the fact that " the mayor and bailiffs of
London" are judicial officers holding courts in London.

"It is provided, also, that if a man, impleaded for a tenement in
the same city, (London,) doth vouch a foreigner to warranty, that
he shall come into the chancery, and have a writ to summon his
warrantor at a certain day before the justices of the beach, and
another writ to the mayor and bailiff of London, that they shall
surcease (suspend proceedings) in the matter that is before them
by writ, until the plea of the warrantee be determined before the
justices of the bench; and when the plea at the bench shall be
determined, then shall he that is vouched be commanded to go into
the city," (that is, before "the mayor and bailiffs " court,) "to
answer unto the chief plea; and a writ shall be awarded at the
suit of the demandant by the justices unto the mayor and
bailiffs, that they shall proceed in the plea," &c;.   6 Edward
I., ch. 12, (1278.)

Coke, in his commentary on this chapter, also speaks repeatedly
of "the mayor and bailiffs" as judges holding courts, and also
speaks of this chapter as applicable not only to "the citie of
London, specially named for the cause aforesaid, but extended by
equity to all other privileged places," (that is, privileged to
have a court of "mayor and bailiffs,") "where foreign voucher is
made, as to Chester, Durham, Salop," &e;.   2 Inst., 325   7.

BAILIE.   In Scotch law, a municipal magistrate, corresponding
with the English alderman.[8]   Burrill's Law Dictionary.

BAILLIFFE  Baillif. Fr. A bailiff: a ministerial officer with
duties similar to those of a sheriff. * * The judge of a court. A
municipal magistrate, &c;.   Burrill's Law Dict.

BAILIFF - The word bailiff is of Norman origin, and was applied
in England, at an early period, (after the example, it is said,
of the French,) to the chief magistrates of counties, or shires,
such as the alderman, the reeve, or sheriff, and also of inferior
jurisdictions, such as hundreds and wapentakes.   Spelman, voc.
Balivus; 1 Bl. Com.,344. See Bailli, Ballivus. The Latin ballivus
occurs, indeed, in the laws of Edward the Confessor, but Spelman
thinks it was introduced by a later hand. Balliva (bailiwick) was
the word formed from ballivus, to denote the extent of territory
comprised within a bailiff's jurisdiction; and bailiwick is still
retained in writs and other proceedings, as the name of a
sheriff's county.   1 Bl. Com., 344. See Balliva. The office of
bailiff was at first strictly, though not exclusively, a judicial
one. In France, the word had the sense of what Spelman calls
justitia tutelaris. Ballivus occurs frequently in the Regiam
Majestatem, in the sense of a judge.   Spelman. In its sense of a
deputy, it was formerly applied, in England, to those officers
who, by virtue of a deputation, either from the sheriff or the
lords of private jurisdictions, exercised within the hundred, or
whatever might be the limits of their bailiwick, certain judicial
and ministerial functions. With the disuse of private and local
jurisdictions, the meaning of the term became commonly restricted
to such persons as were deputed by the sheriff to assist him in
the merely ministerial portion of his duty; such as the summoning
of juries, and the execution of writs.   Brande.. The word
bailiff is also applied in England to the chief magistrates of
certain towns and jurisdictions, to the keepers of castles,
forests and other places, and to the stewards or agents of lords
of manors.   Burrill's Law Dict.

"BAILIFF, (from the Lat. ballivus; Fr. baillif, i. e., Praefectus
provinciae,) signifies an officer appointed for the
administration of justice within a certain district. The office,
as well as the name, appears to have been derived from the
French," &c;.   Brewster's Encyclopedia.

Millar says, "The French monarchs, about this period, were not
content with the power of receiving appeals from the several
courts of their barons. An expedient was devised of sending royal
bailiffs into different parts of the kingdom, with a commission
to take cognizance of all those causes in which the sovereign was
interested, and in reality for the purpose of abridging and
limiting the subordinate jurisdiction of the neighboring feudal
superiors. By an edict of Phillip Augustus, in the year 1190,
those bailiffs were appointed in all the principal towns of the
kingdom."   Millar's Hist. View of the Eng. Gov., vol. ii., ch.
8, p. 126.

"BAILIFF- office.   Magistrates who formerly administered justice
in the parliaments or courts of France, answering to the English
sheriffs, as mentioned by Bracton."   Bouvier's Law Dict.

"There be several officers called bailiffs, whose offices and
employments seem quite different from each other... The chief
magistrate, in divers ancient corporations, are called bailiffs,
as in Ipswich, Yarmouth, Colchester, &c;. There are, likewise,
officers of the forest, who are termed bailiffs."   1 Bacon's
Abridgment, 498   9.

" BAILIFF signifies a keeper or superintendent, and is directly
derived from the French word bailli, which appears to come from
the word balivus, and that from bagalus, a Latin word signifying
generally a governor, tutor, or superintendent... The French word
bailli is thus explained by Richelet, (Dictionaire, &e;.:)
Bailli.  He who in a province has the superintendence of justice,
who is the ordinary judge of the nobles, who is their head for
the ban and arriere ban, [9] and who maintains the right and
property of others against those who attack them... All the
various officers who are called by this name, though differing as
to the nature of their employments, seem to have some kind of
superintendence intrusted to them by their superior."   Political
Dictionary.

" BAILIFF, balivus. From the French word bayliff, that is,
praefectus provinciae, and as the name, so the office itself was
answerable to that of France, where there were eight parliaments,
which were high courts from whence there lay no appeal, and
within the precincts of the several parts of that kingdom which
belonged to each parliament, there were several provinces to
which justice was administered by certain officers called
bailiffs; and in England we have several counties in which
justice hath been, and still is, in small suits, administered to
the inhabitants by the officer whom we now call sheriff, or
viscount; (one of which names descends from the Saxons, the
other from the Normans.) And, though the sheriff is not called
bailiff, yet it was probable that was one of his names also, because
the county is often called balliva; as in the return of a writ, where
the person is not arrested, the sheriff saith, infra-nominatus,
A. B. non est inventus in balliva mea, &c;.; (the within named A.
B. is not found in my bailiwick, &c;.) And in the statute of
Magna Carta, ch. 28, and 14 Ed. 8, ch. 9, the word bailiff seems
to comprise as well sheriffs, as bailiffs of hundreds.

BAILIES, in Scotland, are magistrates of burghs, possessed of
certain jurisdictions, having the same power within their
territory as sheriffs in the county.

As England is divided into counties, so every county is divided
into hundreds; within which, in ancient times, the people had
justice administered to them by the several officers of every
hundred, which were the bailiffs. And it appears by Bracton,
(lib. 3, tract. 2, ch. 34,) that bailiffs of hundreds might
anciently hold plea of appeal and approvers; but since that time
the hundred courts, except certain franchises, are swallowed in
the county courts; and now the bailiff's name and office is grown
into contempt, they being generally officers to serve writs,
&c;., within their liberties; though, in other respects, the name
is still in good esteem, for the chief magistrates in divers
towns are called bailiffs; and sometimes the persons to whom the
king's castles are committed are termed bailiffs, as the bailiffof
Dover Castle, &c;.,

"Of the ordinary bailiffs there are several sorts, viz., bailiffsof
liberties; sheriffs' bailiffs; bailiffs of lords of manors; bailiffs of
husbandry, &c;.

"Bailiffs of liberties or franchises are to be sworn to take
distresses, truly impanel jurors, make returns by indenture
between them and sheriffs, &c;.

"Bailiffs of courts baron summon those courts, and execute the
process thereof. " Besides these, there are also bailiffs of the
forest... "  Jacob's Law Dict. Tomlin's do.

"BAILIWICK, balliva,   is not only taken for the county, but
signifies generally that liberty which is exempted from the
sheriff of the county, over which the lord of the liberty
appointeth a bailiff, with such powers within his precinct as an
under-sheriff exerciseth under the sheriff of the county; such as
the bailiff of Westminster."   Jacob's Law Dict. Tomlin's do.

"A bailiff of a Leet, Court-baron, Manor, Balivus Letae, Baronis,
Manerii.   He is one that is appointed by the lord, or his
steward, within every manor, to do such offices as appertain
thereunto, as to summon the court, warn the tenants and resiants;
also, to summon the Leet and Homage, levy fines, and make
distresses, &c;., of which you may read at large in Kitchen's
Court-leet and Court-baron."   A Law Dictionary, anonymous, (in
Suffolk Law Library.)

"Bailliff   In England an officer appointed by the sheriff.
Bailiff's are either special, and appointed, for their
adroitness, to arrest persons; or bailiffs of hundreds, who
collect fines, summon juries, attend the assizes, and execute
writs and processes, The sheriff in England is the king's
bailiff.

"The office of bailiff formerly was high and honorable in
England, and officers under that title on the continent are still
invested with important functions."   Webster.

"BAILLI, (Scotland.)   An alderman; a magistrate who is second in
rank in a royal burgh."   Worcester.

"Baili, or Bailiff.   (Sorte d'officier de justice.) A bailiff; a
sort of magistrate."   Boyer's French Dict.

"By some opinions, a bailiff, in Magna Carta, ch. 28, signifies
any judge."   Cunningham's Law Dict.

"BAILIFF.   In the court of the Greek emperors there was a grand
bajulos, first tutor of the emperor's children. The
superintendent of foreign merchants seems also to have been
called bajulos; and, as he was appointed by the Venetians, this
title (balio) was transferred to the Venetian ambassador. From
Greece, the official bajulos (ballivus, bailli, in France;
bailiff, in England,) was introduced into the south of Europe,
and denoted a superintendent; hence the eight ballivi of the
knights of St. John, which constitute its supreme council. In
France, the royal bailiffs were commanders of the militia,
administrators or stewards of the domains, and judges of their
districts. In the course of time, only the first duty remained to
the bailiff; hence he was bailli d'epee, and laws were
administered in his name by a lawyer, as his deputy, lieutenant
de robe. The seigniories, with which high courts were connected,
employed bailiffs, who thus constituted, almost everywhere, the
lowest order of judges. From the courts of the nobility, the
appellation passed to the royal courts; from thence to the
parliaments. In the greater bailiwicks of cities of importance,
Henry II. established a collegial constitution under the name of
presidial courts... The name of bailiff was introduced into
England with William I. The counties were also called bailiwicks,
(bailivae,) while the subdivisions were called hundreds, but, as
the courts of the hundreds have long since ceased, the English
bailiffs are only a kind of subordinate officers of justice, like
the French huissiers. These correspond very nearly to the
officers called constables in the United States. Every sheriff
has someof them under him, for whom he is answerable. In some
cities the highest municipal officer yet bears this name, as the
high bailiff of Westminster. In London, the Lord Mayor is at the
same time bailiff; (which title he bore before the present became
usual,) and administers, in this quality, the criminal
jurisdiction of the city, in the court of old Bailey, where there
are, annually, eight sittings of the court, for the city of
London and the county of Middlesex. Usually, the recorder of
London supplies his place as judge. In some instances the term
bailiff, in England, is applied to the chief magistrates of
towns, or to the commanders of particular castles, as that of
Dover. The term baillie, in Scotland, is applied to a judicial
police-officer, having powers very similar to those of justices
of peace in the United States."   Encyclopaedia Americana.

[8] Alderman was a title anciently given to various judicial officers,
as the Alderman of all England, Alderman of the King, Alderman
of the County, Alderman of the City or Borough, alderman of the
Hundred or Wapentake. These were all judicial officers. See Law
Dictionaries.

[9] "Ban and arriere ban, a proclamation, whereby all that hold
lands of the crown, (except some privileged officers and
citizens,) are summoned to meet at a certain place in order to
serve the king in his wars, either personally, or by proxy."
Boyer.

[10] Perhaps it may be said (and such, it has already been seen,
is the opinion of Coke and others) that the chapter of Magna
Carta, that "no bailiff from henceforth shall put any man to his
open law, (put him on trial,) nor to an oath (that is, an oath of
self- exculpation) upon his (the bailiff's) own accusation or
testimony, without credible witnesses brought in to prove the
charge," is itself a " provision in regard to the king's justices
sitting in criminal trials," and therefore implies that they areto sit
in such trials.

But, although the word bailiff includes all judicial, as well as
other, officers, and would therefore in this case apply to the
king's justices, if they were to sit in criminal trials; yet this
particular chapter of Magna Carta evidently does not contemplate
"bailiffs" while acting in their judicial capacity, (for they
were not allowed to sit in criminal trials at all,) but only in
the character of witnesses, and that the meaning of the chapter
is, that the simple testimony (simplici loquela) of "no bailiff,"
(of whatever kind,) unsupported by other and "credible
witnesses," shall be sufficient to put any man on trial, or to
his oath of self-exculpation." [11]

It will be noticed that the words of this chapter are not, "no
bailiff of ours,"   that is, of the king,   as in some other
chapters of Magna Carta; but simply "no bailiff,"&c;. The
prohibition, therefore, applied to all "bailiffs,"   to those
chosen by the people, as well as those appointed by the king. And
the prohibition is obviously founded upon the idea (a very sound
one in that age certainly, and probably also in this) that public
officers (whether appointed by king or people) have generally, or
at least frequently, too many interests and animosities against
accused persons, to make it, safe to convict any man on their
testimony alone.

The idea of Coke and others, that the object of this chapter was
simply to forbid magistrates to put a man on trial, when there
were no witnesses against him, but only the simple accusation or
testimony of the magistrates themselves, before whom he was to
be tried, is preposterous; for that would be equivalent to supposing
that magistrates acted in the triple character of judge, jury and
witnesses, in the same trial; and that, therefore, in such case,
they needed to be prohibited from condemning a man on their own
accusation or testimony alone. But such a provision would have
been unnecessary and senseless, for two reasons; first, because
the bailiffs or magistrates had no power to "hold pleas of the
crown," still less to try or condemn a man; that power resting
wholly with the juries; second, because if bailiffs or
magistrates could try and condemn a man, without a jury, the
prohibition upon their doing so upon their own accusation or
testimony alone, would give no additional protection to the
accused, so long as these same bailiffs or magistrates were
allowed to decide what weight should be given, both to their own
testimony and that of other witnesses, for, if they wished to
convict, they would of course decide that any testimony, however
frivolous or irrelevant, in addition to their own, was sufficient.
Certainly a magistrate could always procure witnesses
enough to testify to something or other, which he himself could
decide to be corroborative of his own testimony. And thus the
prohibition would be defeated in fact, though observed in form.

[11] At the common law, parties, in both civil and criminal
cases, were allowed to swear in their own behalf; and it will be
so again, if the true trial by jury should be reestablished.

[12] In this chapter I have called the justices "presiding
officers," solely for the want of a better term. They are not
"presiding officers," in the sense of having any authority over
the jury; but are only assistants to, and teachers and servants
of, the jury. The foreman of the jury is properly the "Presiding
Officer," so far as there is such an officer at all. The sheriff
has no authority except over other persons than the jury.


CHAPTER VIII. THE FREE ADMINISTRATION OF JUSTICE

The  free administration of justice was a principle of the common
law; and it must necessarily be a part of every system of
government which is not designed to be an engine in the hands of
the rich for the oppression of the poor.

In saying that the free administration of justice was a principle
of the common law, I mean only that parties were subjected to no
costs for jurors, witnesses, writs, or other necessaries for the
trial, preliminary to the trial itself. Consequently, no one
could lose the benefit of a trial, for the want of means to
defray expenses. But after the trial, the plaintiff or defendant
was liable to be amerced, (by the jury, of course,) for having
troubled the court with the prosecution or defence of an unjust
suit.

[1] But it is not likely that the losing party was subjected to
an amercement as a matter of course, but only in those cases
where the injustice of his cause was so evident as to make him
inexcusable in bringing it before the courts.

All the freeholders were required to attend the courts, that they
might serve as jurors and witnesses, and do any other service
that could legally be required of them; and their attendance was
paid for by the state. In other words, their attendance and
service at the courts were part of the rents which they paid the
state for their lands.

The freeholders, who were thus required always to attendthe
courts, were doubtless the only witnesses who were usually
required in civil causes. This was owing to the fact that, in
those days, when the people at large could neither write nor
read, few contracts were put in writing. The expedient adopted
for proving contracts, was that of making them in the presence of
witnesses, who could afterwards testify to the transactions. Most
contracts in regard to lands were made at the courts, in the
presence of the freeholders there assembled. [2]

In the king's courts it was specially provided by Magna Carta
that "justice and right" should not be "sold;" that is, that the
king should take nothing from the parties for administering
justice.

The oath of a party to the justice of his cause was all that was
necessary to entitle him to the benefit of the courts free of all
expense; (except the risk of being amerced after the trial, in
case the jury should think he deserved it. [3])

This principle of the free administration of justice connects
itself necessarily with the trial by jury, because a jury could
not rightfully give judgment against any man, in either a civil
or criminal case, if they had any reason to suppose he had been
unable to procure his witnesses.

The true trial by jury would also compel the free administration
of justice from another necessity, viz., that of preventing
private quarrels; because, unless the government enforced a man's
rights and redressed his wrongs, free of expense to him, a jury
would be bound to protect him in taking the law into his own
hands. A man has a natural right to enforce his own rights and
redress his own wrongs. If one man owe another a debt, and refuse
to pay it, the creditor has a natural right to seize sufficient
property of the debtor, wherever he can find it, to satisfy the
debt. If one man commit a trespass upon the person, property or
character of another, the injured party has a natural right,
either to chastise the aggressor, or to take compensation for the
injury out of his property. But as the government is an impartial
party as between these individuals, it is more likely to do
exactjustice between them than the injured individual himself would
do. The government, also, having more power at its command, is
likely to right a man's wrongs more peacefully than the injured
party himself could do it. If, therefore, the government will do
the work of enforcing a man's rights, and redressing his wrongs,
promptly, and free of expense to him, he is under a moral
obligation to leave the work in the hands of the government; but
not otherwise. When the government forbids him to enforce his
own rights or redress his own wrongs, and deprives him of all means
of obtaining justice, except on the condition of his employing
the government to obtain it for him, and of paying the government
for doing it, the government becomes itself the protector and
accomplice of the wrong-doer. If the government will forbid a man
to protect his own rights, it is bound, to do it for him, free of
expense to him. And so long as government refuses to do this,
juries, if hey knew their duties, would protect a man in
defending his own rights.

Under the prevailing system, probably one half of the community
are virtually deprived of all protection for their rights, except
what the criminal law affords them. Courts of justice, for all
civil suits, are as effectually shut against them, as though it
were done by bolts and bars. Being forbidden to maintain their
own rights by force,   as, for instance, to compel the payment of
debts,  and being unable to pay the expenses of civil suits,
they have no alternative but submission to many acts of
injustice, against which the government is bound either to
protect them, free of expense, or allow them to protect
themselves.

There would be the same reason in compelling a party to pay the
judge and jury for their services, that there is in compelling
him to pay the witnesses, or any other necessary charges. [4]

This compelling parties to pay the expenses of civil suits is one
of the many cases in which government is false to the fundamental
principles on which free government is based. What is the object
of government, but to protect men's rights? On what principle
does a man pay his taxes to the government, except on that of
contributing his proportion towards the necessary cost of
protecting the rights of all? Yet, when his own rights are
actually invaded, the government, which he contributes to
support, instead of fulfilling its implied contract, becomes his
enemy, and not only refuses to protect his rights, (except at his
own cost,) but even forbids him to do it himself.

All free government is founded on the theory of voluntary
association; and on the theory that all the parties to it
voluntarily pay their taxes for its support, on the condition of
receiving protection in return. But the idea that any poor man
would voluntarily pay taxes to build up a government, which will
neither protect his rights, (except at a cost which he cannot
meet,) nor suffer himself to protect them by such means as may be
in his power, is absurd.

Under the prevailing system, a large portion of the lawsuits
determined in courts, are mere contests of purses rather than of
rights. And a jury, sworn to decide causes "according to the
evidence" produced, are quite likely, for aught they themselves
can know, to be deciding merely the comparative length of the
parties' purses, rather than the intrinsic strength of their
respective rights. Jurors ought to refuse to decide a cause at
all, except upon the assurance that all the evidence, necessary
to a full knowledge of the cause, is produced. This assurance
they can seldom have, unless the government itself produces all
the witnesses the parties desire.

In criminal cases, the atrocity of accusing a man of crime, and
then condemning him unless he prove his innocence at his own
charges, is so evident that a jury could rarely, if ever, be
justified in convicting a man under such circumstances.

But the free administration of justice is not only indispensable
to the maintenance of right between man and man; it would also
promote simplicity and stability in the laws. The mania for
legislation would be, in an important degree, restrained, if the
government were compelled to pay the expenses of all the suits
that grew out of it.

The free administration of justice would diminish and nearly
extinguish another great evil,   that of malicious civil suits It
is an old saying, that "multi litigant in foro, non ut aliquid
lucentur, sed ut vexant alios." (Many litigate in court, not that
they may gain anything, but that they may harass others.) Many
men, from motives of revenge and oppression, are willing to spend
their own money in prosecuting a groundless suit, if they can
thereby compel their victims, who are less able than themselves
to bear the loss, to spend money in the defence. Under the
prevailing system, in which the parties pay the expenses of their
suits, nothing but money is necessary to enable any malicious man
to commence and prosecute a groundless suit, to the terror,
injury, and perhaps ruin, of another man. In this way, a court of
justice, into which none but a conscientious plaintiff certainly
should ever be allowed to enter, becomes an arena into which any
rich and revengeful oppressor may drag any man poorer than
himself, and harass, terrify, and impoverish him, to almost any
extent. It is a scandal and an outrage, that government should
suffer itself to be made an instrument, in this way, for the
gratification of private malice. We might nearly as well have no
courts of justice, as to throw them open, as we do, for such
flagitious uses. Yet the evil probably admits of no remedy except
a free administration of justice. Under a free system, plaintiffs
could rarely be influenced by motives of this kind; because they
could put their victim to little or no expense, neither pending
the suit, (which it is the object of the oppressor to do,) nor at
its termination. Besides, if the ancient common law practice
should be adopted, of amercing a party for troubling the courts
with groundless suits, the prosecutor himself would, in the end,
be likely to be amerced by the jury, in such a manner as to make
courts of justice a very unproitable place for a man to go to
seek revenge.

In estimating the evils of this kind, resulting from the present
system, we are to consider that they are not, by any means,
confined to the actual suits in which this kind of oppression is
practised; but we are to include all those cases in which the
fear of such oppression is used as a weapon to compel men into a
surrender of their rights.

[1] 2 Sullivan Lectures, 234-5. 3 Blackstone, 274-5, 376. Sullivan
says that both plaintiff's and defendants were liable to
amercement. Blackstone speaks of plaintiffs being liable, without
saying whether defendants were so or not. What the rule really
was I do not know. There would seem to be some reason in
allowing defendants to defend themselves, at their own charges,
without exposing themselves to amercement in case of failure.

[2] When any other witnesses than freeholders were required in a
civil suit, I am not aware of the manner in which their
attendance was procured; but it was doubtless done at the expense
either of the state or of the witnesses themselves. And it was
doubt less the same in criminal cases.

[3] "All claims were established in the first stage by the oath
of the plaintiff, except when otherwise specially directed by the
law. The oath, by which any claim was supported, was called the
fore-oath, or ' Praejuramentum,' and it was the foundation of his
suit. One of the cases which did not require this initiatory
confirmation, was when cattle could be tracked into another man's
land, and then the foot-mark stood for the fore-oath."   2
Palgrave's Rise and Progress, &c;., 114.

[4] Among the necessary expenses of suits, should be reckoned
reasonable compensation to counsel, for they are nearly or quite
as important to the administration of justice, as are judges,
jurors, or witnesses; and the universal practice of employing
them, both on the part of governments and of private persons,
shows that their importance is generally understood. As a mere
matter of economy, too, it would be wise for the government to
pay them, rather than they should not be employed; because they
collect and arrange the testimony and the law beforehand, so as
to be able to present the whole case to the court and jury
intelligibly, and in a short space of time. Whereas, if they were
not employed, the court and jury would be under the necessity
either of spending much more time than now in the investigation
of causes, or of despatching them in haste, and with little
regard to justice. They would be very likely to do the latter,
thus defeating the whole object of the people in establishing
courts.

To prevent the abuse of this right, it should perhaps be left
discretionary with the jury in each case to determine whether the
counsel should receive any pay   and, if any, how much   from the
government.


CHAPTER IX. THE CRIMINAL INTENT

It is a maxim of the common law that there can be no crime
without a criminal intent. And it is a perfectly clear principle,
although one which judges have in a great measure overthrown in
practice, that jurors are to judge of the moral intent of an
accused person, and hold him guiltless, whatever his act, unless
they find him to have acted with a criminal intent; that is, with
a design to do what he knew to be criminal.

This principle is clear, because the question for a jury to
determine is, whether the accused be guilty, or not guilty. Guiltis a
personal quality of the actor,  not necessarily involved in
the act, but depending also upon the intent or motive with which
the act was done. Consequently, the jury must find that he acted
from a criminal motive, before they can declare him guilty.

There is no moral justice in, nor any political necessity for,
punishing a man for any act whatever that he may have committed,
if he have done it without any criminal intent. There can be no
moral justice in punishing for such an act, because, there having
been no criminal motive, there can have been no other motive
which justice can take cognizance of, as demanding or justifying
punishment. There can be no political necessity for punishing, to
warn against similar acts in future, because, if one man have
injured another, however unintentionally, he is liable, and
justly liable, to a civil suit for damages; and in this suit he
will be compelled to make compensation for the injury,
notwithstanding his innocence of any intention to injure. He must
bear the consequences of his own act, instead of throwing them
upon another, however innocent he may have been of any intention
to do wrong. And the damages he will have to pay will be a
sufficient warning to him not to do the like act again.

If it be alleged that there are crimes against the public, (as
treason, for example, or any other resistance to government,) for
which private persons can recover no damages, and that there is a
political necessity for punishing for such offences, even though
the party acted conscientiously, the answer is,   the government
must bear with all resistance that is not so clearly wrong as to
give evidence of criminal intent. In other words, the government,
in all its acts, must keep itself so clearly within the limits of
justice, as that twelve men, taken at random, will all agree that
it is in the right, or it must incur the risk of resistance,
without any power to punish it. This is the mode in which the
trial by jury operates to prevent the government from falling
into the hands of a party, or a faction, and to keep it within
such limits as all, or substantially all, the people are agreed
that it may occupy.

This necessity for a criminal intent, to justify conviction, is
proved by the issue which the jury are to try, and the verdict
they are to pronounce. The "issue" they are to try is, "guilty,"or
"not guilty." And those are the terms they are required to use
in rendering their verdicts. But it is a plain falsehood to say
that a man is "guilty," unless he have done an act which he knew
to be criminal.

This necessity for a criminal intent   in other words, for guilt
as a preliminary to conviction, makes it impossible that a man
can be rightfully convicted for an act that is intrinsically
innocent, though forbidden by the government; because guilt is an
intrinsic quality of actions and motives, and not one that can be
imparted to them by arbitrary legislation. All the efforts of the
government, therefore, to "make offences by statute," out of acts
that are not criminal by nature, must necessarily be ineffectual,
unless a jury will declare a man "guilty" for an act that is
really innocent.

The corruption of judges, in their attempts to uphold the
arbitrary authority of the government, by procuring the
conviction of individuals for acts innocent in themselves, and
forbidden only by some tyrannical statute, and the commission of
which therefore indicates no criminal intent, is very apparent.

To accomplish this object, they have in modern times held it to
be unnecessary that indictments should charge, as by the common
law they were required to do, that an act was done "wickedly,"
"feloniously," "with malice aforethought," or in any other manner
that implied a criminal intent, without which there can be no
criminality; but that it is sufficient to charge simply that it
was done " contrary to the form of the statute in such case made
and provided." This form of indictment proceeds plainly upon the
assumption that the government is absolute, and that it has
authority to prohibit any act it pleases, however innocent in its
nature the act may be. Judges have been driven to the alternative
of either sanctioning this new form of indictment, (which they
never had any constitutional right to sanction,) or of seeing the
authority of many of the statutes of the government fall to the
ground; because the acts forbidden by the statutes were so
plainly innocent in their nature, that even the government itself
had not the face to allege that the commission of them implied or
indicated any criminal intent.

To get rid of the necessity of showing a criminal intent, and
thereby further to enslave the people, by reducing them to the
necessity of a blind, unreasoning submission to the arbitrary
will of the government, and of a surrender of all right, on their
own part, to judge what are their constitutional and natural
rights and liberties, courts have invented another idea, which
they have incorporated among the pretended maxims, upon which
they act in criminal trials, viz., that "ignorance of the law
excuses no one." As if it were in the nature of things possible
that there could be an excuse more absolute and complete. What
else than ignorance of the law is it that excuses persons under
the years of discretion, and men of imbecile minds? What else
than ignorance of the law is it that excuses judges themselves
for all their erroneous decisions? Nothing. They are every day
committing errors, which would be crimes, but for their ignorance
of the law. And yet these same judges, who claim to be learned in
the law, and who yet could not hold their offices for a day, but
for the allowance which the law makes for their ignorance, are
continually asserting it to be a "maxim" that "ignorance of the
law excuses no one;" (by which, of course, they really mean that
it excuses no one but themselves; and especially that it excuses
no unlearned man, who comes before them charged with crime.)

This preposterous doctrine, that "ignorance of the law excuses no
one," is asserted by courts because it is an indispensable one to
the maintenance of absolute power in the government. It is
indispensable for this purpose, because, if it be once admitted
that the people have any rights and liberties which the
government cannot lawfully take from them, then the question
arises in regard to every statute of the government, whether it
be law, or not; that is, whether it infringe, or not, the rights
and liberties of the people. Of this question every man must of
course judge according to the light in his own mind. And no man
can be convicted unless the jury find, not only that the statute
is law,   that it does not infringe the rights and liberties of
the people,   but also that it was so clearly law, so clearly
consistent with the rights and liberties of the people, as that
the individual himself, who transgressed it, knew it to be so,
and therefore had no moral excuse for transgressing it.
Governments see that if ignorance of the law were allowed to
excuse a man for any act whatever, it must excuse him for
transgressing all statutes whatsoever, which he himself thinks
inconsistent with his rights and liberties. But such a doctrine
would of course be inconsistent with the maintenance of arbitrary
power by the government; and hence governments will not allow
the plea, although they will not confess their true reasons for
disallowing it.

The only reasons, (if they deserve the name of reasons), that I
ever knew given for the doctrine that ignorance of the law
excuses no one, are these:

1. "The reason for the maxim is that of necessity. It prevails,
'not that all men know the law, but because it is an excuse which
every man will make, and no man can tell how to confute him.'
Selden, (as quoted in the 2d edition of Starkie on Slander,
Prelim. Disc., p. 140, note.)"   Law Magazine, (London,) vol. 27,
p. 97.

This reason impliedly admits that ignorance of the Law is,
intrinsically, an ample and sufficient excuse for a crime; and
that the excuse ought to be allowed, if the fact of ignorance
could but be ascertained. But it asserts that this fact is
incapable of being ascertained, and that therefore there is a
necessity for punishing the ignorant and the knowing   that is,
the innocent and the guilty   without discrimination.
This reason is worthy of the doctrine it is used to uphold; as if
a plea of ignorance, any more than any other plea, must
necessarily be believed simply because it is urged; and as if it
were not a common and every-day practice of courts and juries, in
both civil and criminal cases, to determine the mental capacity
of individuals; as, for example, to determine whether they are of
sufficient mental capacity to make reasonable contracts; whether
they are lunatic; whether they are compotes mentis, "of sound
mind and memory," &. &. And there is obviously no more
difficulty in a jury's determining whether an accused person knew
the law in a criminal case, than there is in determining any of these
other questions that are continually determined in regard to a
man's mental capacity. For the question to be settled by the jury
is not whether the accused person knew the particular penalty
attached to his act, (for at common law no one knew what penalty
a jury would attach to an offence,) but whether he knew that his
act was intrinsically criminal. If it were intrinsically criminal,
it was criminal at common law. If it was not intrinsically criminal,
it was not criminal at common law. (At least, such was the general
principle of the common law. There may have been exceptions in
practice, owing to the fact that the opinions of men, as to what was
intrinsically. criminal, may not have been in all cases correct.)

A jury, then, in judging whether an accused person knew his act
to be illegal, were bound first to use their own judgments, as to
whether the act were intrinsically criminal. If their own judgments
told them the act was intrinsically and clearlycriminal, they would
naturally and reasonably infer that the accused also understood that
it was intrinsically criminal, (and consequently illegal,) unless it
should appear that he was either below themselves in the scale of
intellect, or had had less opportunities of knowing what acts were
criminal. In short, they would judge, from any and every means they
might have of judging; and if they had any reasonable doubt that he
knew his act to be criminal in itself, they would be bound to acquit
him.

The second reason that has been offered for the doctrine that
ignorance of the law excuses no one, is this:

"Ignorance of the municipal law of the kingdom, or of the penalty
thereby inflicted on offenders, doth not excuse any that is of
the age of discretion and compos mentis, from the penalty of the
breach of it; because every person, of the age of discretion and
compos mentis, is bound to know the law, and presumed to do so.
"Ignorantia eorum,, quae quis scire tenetur non excusat."
(Ignorance of those things which every one is bound to know, does
not excuse.)   1 Hale's Pleas of the Crown, 42. Doctor and
Student, Dialog. 2, ch. 46. Law Magazine, (London,) vol. 27, p.
97.

The sum of this reason is, that ignorance of the law excuses no
one, (who is of the age of discretion and is compos mentis,)
because every such person "is bound to know the law." But this is
giving no reason at all for the doctrine, since saying that a man
"is bound to know the law," is only saying, in another form, that
"ignorance of the law does not excuse him." There is no
difference at all in the two ideas. To say, therefore, that
"ignorance of the law excuses no one, because every one is bound
to know the law," is only equivalent to saying that "ignorance of
the law excuses no one, because ignorance of the law excuses no
one." It is merely reasserting the doctrine, without giving any
reason at all.

And yet these reasons, which are really no reasons at all, are
the only ones, so far as I know, that have ever been offered for
this absurd and brutal doctrine.

The idea suggested, that " the age of discretion" determines the
guilt of a person,   that there is a particular age, prior to which
all persons alike should be held incapable of knowing any crime,
and subsequent to which all persons alike should be held
capable of knowing all crimes,  is another of this most
ridiculous nest of ideas. All mankind acquire their knowledge of
crimes, as they do of other things, gradually. Some they learn at
an early age; others not till a later one. One individual
acquires a knowledge of crimes, as he does of arithmetic, at an
earlier age than others do. And to apply the same presumption to
all, on the ground of age alone, is not only gross injustice, but
gross folly. A universal presumption might, with nearly or quite
as much reason, be founded upon weight, or height, as upon age.
[1]

This doctrine, that "ignorance of the law excuses no one," is
constantly repeated in the form that "every one is bound to know
the law." The doctrine is true in civil matters, especially in
contracts, so far as this: that no man, who has the ordinary capacity
to make reasonable contracts, can escape the consequences of
his own agreement, on the ground that he did not know the law
applicable to it. When a man makes a contract, he gives the other
party rights; and he must of necessity judge for himself, and take
his own risk, as to what those rights are,  otherwise the contract
would not be binding, and men could not make contracts that
would convey rights to each other. Besides, the capacity to make
reasonable contracts,

implies and includes a capacity to form a reasonable judgment as
to the law applicable to them. But in criminal matters, where the
question is one of punishment, or not; where no second party has
acquired any right to have the crime punished, unless it were
committed with criminal intent, (but only to have it compensated
for by damages in a civil suit,") and when the criminal intent is
the only moral justification for the punishment, the principle
does not apply, and a man is bound to know the law only as well
as he reasonably may. The criminal law requires neither
impossibilities nor extraordinaries of any one. It requires only
thoughtfulness and a good conscience. It requires only that a man
fairly and properly use the judgment he possesses, and the means
he has of learning his duty. It requires of him only the same
care to know his duty in regard to the law, that he is morally
bound to use in other matters of equal importance. And this care
it does require of him. Any ignorance of the law, therefore, that
is unnecessary, or that arises from indifference or disregard of
one's duty, is no excuse. An accused person, therefore, may be
rightfully held responsible for such a knowledge of the law as is
common to men in general, having no greater natural capacities
than himself, and no greater opportunities for learning the law.
And he can rightfully be held to no greater knowledge of the law
than this. To hold him responsible for a greater knowledge of the
law than is common to mankind, when other things are equal,
would be gross injustice and cruelty. The mass of mankind can
give but little of their attention to acquiring a knowledge of the
law. Their other duties in life forbid it. Of course, they cannot
investigate abstruse or difficult questions. All that can
rightfully be required of each of them, then, is that he exercise
such a candid and conscientious judgment as it is common
formankind generally to exercise in such matters. If he have done
this, it would be monstrous to punish him criminally for his
errors; errors not of conscience, but only of judgment. It would
also be contrary to the first principles of a free government
(that is, a government formed by voluntary association) to punish
men in such cases, because it would be absurd to suppose that any
man would voluntarily assist to establish or support a government
that would punish himself for acts which he himself did not know
to be crimes. But a man may reasonably unite with his fellow-men
to maintain a government to punish those acts which he himself
considers criminal, and may reasonably acquiesce in his own
liability to be punished for such acts. As those are the only
grounds on which any one can be supposed to render any voluntary
support to a government, it follows that a government formed by
voluntary association, and of course having no powers except such
as all the associates have consented that it may have, can have
no power to punish a man for acts which he did not himself know
to be criminal.

The safety of society, which is the only object of the criminal
law, requires only that those acts which are understood by
mankind at large to be intrinsically criminal, should he punished
as crimes. The remaining few (if there are any) may safely be
left to go unpunished. Nor does the safety of society require
that any individuals, other than those who have sufficient mental
capacity to understand that their acts are criminal, should be
criminally punished. All others may safely be left to their
liability, under the civil law, to compensate for their
unintentional wrongs.

The only real object of this absurd and atrocious doctrine, that
"ignorance of the law (that is, of crime) excuses no one," and
that "everyone is bound to know the criminal law," (that is,
bound to know what is a crime,) is to maintain an entirely
arbitrary authority on the part of the government, and to deny to
the people all right to judge for themselves what their own
rights and liberties are. In other words, the whole object of the
doctrine is to deny to the people themselves all right to judge
what statutes and other acts of the government are consistent or
inconsistent with their own rights and liberties; and thus to
reduce the people to the condition of mere slaves to a despotic
power, such as the people themselves would never have
voluntarily established, and the justice of whose laws the people
themselves cannot understand.

Under the true trial by jury all tyranny of this kind would be
abolished. A jury would not only judge what acts were really
criminal, but they would judge of the mental capacity of an
accused person, and of his opportunities for understand- ing the
true character of his conduct. In short, they would judge of his
moral intent from all the circumstances of the case, and acquit
him, if they had any reasonable doubt that he knew that he was
committing a crime. [2]

[1] This presumption, founded upon age alone, is as absurd in
civil matters as in criminal. What can be more entirely ludicrous
than the idea that all men (not manifestly imbecile) become
mentally competent to make all contracts whatsoever on the day
they become twenty-one years of age?   and that, previous to that
day, no man becomes competent to make any contract whatever,
except for the present supply of the most obvious wants of
nature? In reason, a man's legal competency to make
binding contracts, in any and every case whatever, depends
wholly upon his mental capacity to make reasonable contracts in
each particular case. It of course requires more capacity to make a
reasonable contract in some cases than in others. It requires,
for example, more capacity to make a reasonable contract in the
purchase of a large estate, than in the purchase of a pair of
shoes. But the mental capacity to make a reasonable contract, in
any particular case, is, in reason, the only legal criterion of
the legal competency to make a binding contract in that case. The
age, whether more or less than twenty-one years, is of no legal
consequence whatever, except that it is entitled to some
consideration as evidence of capacity.

It may be mentioned, in this connection, that the rules that
prevail, that every man is entitled to freedom from parental
authority at twenty-one years of age, and no one before that age,
are of the same class of absurdities with those that have been
mentioned. The only ground on which a parent is ever entitled to
exercise authority over his child, is that the child is incapable
of taking reasonable care of himself. The child would be entitled
to his freedom from his birth, if he were at that time capable of
taking reasonable care of himself. Some become capable of taking
care of themselves at an earlier age than others. And whenever
any one becomes capable of taking reasonable care of himself, and
not until then, he is entitled to his freedom, be his age more or
less.

These principles would prevail under the true trial by jury, the
jury being the judges of the capacity of every individual whose
capacity should be called in question.

[2] In contrast to the doctrines of the text, it may be proper to
present more distinctly the doctrines that are maintained by
judges, and that prevail in courts of justice. Of course, no
judge, either of the present day, or perhaps within the last five
hundred years, has admitted the right of a jury to judge of the
justice of a law, or to hold any law invalid for its injustice.
Every judge asserts the power of the government to punish for
acts that are intrinsically innocent, and which therefore involve
or evince no criminal intent.  To accommodate the administration
of law to this principle, all judges, so far as I am aware, hold
it to be unnecessary that an indictment should charge, or that a
jury should find, that an act was done with a criminal intent,
except in those cases where the act is malum in se,  criminal in
itself. In all other cases, so far as I am aware, they hold it
sufficient that the indictment charge, and consequently that the
jury find, simply that the act was done " contrary to the form of
the statute in such case made and provided;" in other words,
contrary to the orders of the government.

All these doctrines prevail universally among judges, and are, I
think, uniformly practised upon in courts of justice; and they
plainly involve the most absolute despotism on the part of the
government.

But there is still another doctrine that extensively, and perhaps
most generally, prevails in practice, although judges are not
agreed in regard to its soundness. It is this: that it is not
even necessary that the jury should see or know, for themselves,
what the law is that is charged to have been violated; nor to see
or know, for themselves, that the act charged was in violation of
any law whatever;   but that it is sufficient that they be simply
told by the judge that any act whatever, charged in an
indictment, is in violation of law, and that they are then bound
blindly to receive the declaration as true, and convict a man
accordingly, if they find that he has done the act charged.

This doctrine is adopted by many among the most eminent judges,
and the reasons for it are thus given by Lord Mansfield:

"They (the jury) do not know, and are not presumed to know, the
law. They are not sworn to decide the law;" [3] they are not
required to do it... The jury ought not to assume the
jurisdiction of law. They do not know, and are not presumed to
know, anything of the matter. They do not understand the language
in which it is conceived, or the meaning of the terms. They have
no rule to go by but their passions and wishes."   8 Term Rep.,
428, note.

What is this but saying that the people, who are supposed to be
represented in juries, and who institute and support the
government, (of course for the protection of their own rights and
liberties, as they understand them, for plainly no other motive
can be attributed to them,) are really the slaves of a despotic
power, whose arbitrary commands even they are not supposed
competent to understand, but for the transgression of which they
are nevertheless to be punished as criminals

This is plainly the sum of the doctrine, because the jury are the
peers (equals) of the accused, and are therefore supposed to know
the law as well as he does, and as well as it is known by the
people at large. If they (the jury) are not presumed to know the
law, neither the accused nor the people at large can be presumed
to know it. Hence, it follows that one principle of the truetrial by
jury is, that no accused person shall be held responsible for any
other or greater knowledge of the law than is common to his
political equals, who will generally be men of nearly similar
condition in life. But the doctrine of Mansfield is, that the body
of the people, from whom jurors are taken, are responsible to a
law, which it is agreed they cannot understand. What is this but
despotism?   and not merely despotism, but insult and oppression
of the intensest kind?

[3] This declaration of Mansfield, that juries in England "are
not sworn to decide the law" in criminal cases, is a plain
falsehood. They are sworn to try the whole case at issue between
the king and the prisoner, and that includes the law as well as
the fact. See Jurors Oath, page 85.

This doctrine of Mansfield is the doctrine of all who deny the
right of juries to judge of the law, although all may not choose
to express it in so blunt and unambiguous terms. But the doctrine
evidently admits of no other interpretation or defence.


CHAPTER X. MORAL CONSIDERATIONS FOR JURORS

THE trial by jury must, if possible, be construed to be such that
a man can rightfully sit in a jury, and unite with his fellows in
giving judgment. But no man can rightfully do this, unless he
hold in his own hand alone a veto upon any judgment or sentence
whatever to be rendered by the jury against a defendant, which
veto he must be permitted to use according to his own discretion
and conscience, and not bound to use according to the dictation
of either legislatures or judges.

The prevalent idea, that a juror may, at the mere dictation of a
legislature or a judge, and without the concurrence of his own
conscience or understanding, declare a man "guilty," and thus in
effect license the government to punish him; and that the
legislature or the judge, and not himself, has in that case all
the moral responsibility for the correctness of the principles on
which the judgment was rendered, is one of the many gross
impostures by which it could hardly have been supposed that any
sane man could ever have been deluded, but which governments
have nevertheless succeeded in inducing the people at large to receive
and act upon.

As a moral proposition, it is perfectly self-evident that, unless
juries have all the legal rights that have been claimed for them
in the preceding chapters,   that is, the rights of judging what
the law is, whether the law be a just one, what evidence is
admissible, what weight the evidence is entitled to, whether an
act were done with a criminal intent, and the right also to limit
the sentence, free of all dictation from any quarter,   they have
no moral right to sit in the trial at all, and cannot do so
without making themselves accomplices in any injustice that they
may have reason to believe may result from their verdict. It is
absurd to say that they have no moral responsibility for the use
that may be made of their verdict by the government, when they
have reason to suppose it will be used for purposes of injustice.

It is, for instance, manifestly absurd to say that jurors have no
moral responsibility for the enforcement of an unjust law, when
they consent to render a verdict of guilty for the transgression
of it; which verdict they know, or have good reason to believe,
will be used by the government as a justification for inflicting
a penalty.

It is absurd, also, to say that jurors have no moral
responsibility for a punishment indicted upon a man against law,
when, at the dictation of a judge as to what the law is, they
have consented to render a verdict against their own opinions of
the law.

It is absurd, too, to say that jurors have no moral
responsibility for the conviction and punishment of an innocent
man, when they consent to render a verdict against him on the
strength of evidence, or laws of evidence, dictated to them by
the court, if any evidence or laws of evidence have been
excluded, which they (the jurors) think ought to have been
admitted in his defence.

It is absurd to say that jurors have no moral responsibility for
rendering a verdict of "guilty" against a man, for an act which
he did not know to be a crime, and in the commission of which,
therefore, he could have had no criminal intent, in obedience to
the instructions of courts that "ignorance of the law (that is,
of crime) excuses no one."

It is absurd, also, to say that jurors have no moral
responsibility for any cruel or unreasonable sentence that may be
inflicted even upon a guilty man, when they consent to render a
verdict which they have reason to believe will be used by the
government as a justification for the infliction of such
sentence.

The consequence is, that jurors must have the whole case in their
hands, and judge of law, evidence, and sentence, or they incur
the moral responsibility of accomplices in any injustice which
they have reason to believe will be done by the government on the
authority of their verdict.

The same principles apply to civil cases as to criminal. If a
jury consent, at the dictation of the court, as to either law or
evidence, to render a verdict, on the strength of which they have
reason to believe that a man's property will be taken from him
and given to another, against their own notions of justice, they
make themselves morally responsible for the wrong.

Every man, therefore, ought to refuse to sit in a jury, and to
take the oath of a juror, unless the form of the oath be such as
to allow him to use his own judgment, on every part of the case,
free of all dictation whatsoever, and to hold in his own hand a
veto upon any verdict that can be rendered against a defendant,
and any sentence that can be inflicted upon him, even if he be
guilty.

Of course, no man can rightfully take an oath as juror, to try a
case "according to law," (if by law be meant anything other than
his own ideas of justice,) nor "according to the law and the
evidence, as they shall be given him." Nor can he rightfully take
an oath even to try a case "according to the evidence," because
in all cases he may have good reason to believe that a party has
been unable to produce all the evidence legitimately entitled to
be received. The only oath which it would seem that a man can
rightfully take as juror, in either a civil or criminal case, is,
that he "will try the case according to his conscience." Of
course, the form may admit of variation, but this should be the
substance. Such, we have seen, were the ancient common law
oaths.


CHAPTER XI. AUTHORITY OF MAGNA CARTA

PROBABLY no political compact between king and people was
ever
entered into in a manner to settle more authoritatively the
fundamental law of a nation, than was Magna Carta. Probably no
people were ever more united and resolute in demanding from
their
king a definite and unambiguous acknowledgment of their rights
and liberties, than were the English at that time. Probably no
king was ever more completely stripped of all power to maintain
his throne, and at the same time resist the demands of his
people, than was John on the 15th day of June, 1215. Probably no
king every consented, more deliberately or explicitly, to hold
his throne subject to specific and enumerated limitations upon
his power, than did John when he put his seal to the Great
Charter of the Liberties of England. And if any political compact
between king and people was ever valid to settle the liberties of
the people, or to limit the power of the crown, that compact is
now to be found in Magna Carta. If, therefore, the constitutional
authority of Magna Carta had rested solely upon the compact of
John with his people, that authority would have been entitled to
stand forever as the supreme law of the land, unless revoked by
the will of the people themselves.

But the authority of Magna Carta does not rest alone upon the
compact with John. When, in the next year, (1216,) his son, Henry
III., came to the throne, the charter was ratified by him, and
again in 1217, and again in 1225, in substantially the same form,
and especially without allowing any new powers, legislative,
judicial, or executive, to the king or his judges, and without
detracting in the least from the powers of the jury. And from the
latter date to this, the charter has remained unchanged.

In the course of two hundred years the charter was confirmed by
Henry and his successors more than thirty times. And although
they were guilty of numerous and almost continual breaches of it,
and were constantly seeking to evade it, yet such were the
spirit, vigilance and courage of the nation, that the kings held
their thrones only on the condition of their renewed and solemn
promises of observance. And it was not until 1429, (as will be
more fully shown hereafter,) when a truce between themselves,
and
a formal combination against the mass of the people, had been
entered into, by the king, the nobility, and the "forty shilling
freeholders," (a class whom Mackintosh designates as "a few
freeholders then accounted wealthy," [1]) by the exclusion of all
others than such freeholders from all voice in the election of
knights to represent the counties in the House of Commons, that a
repetition of these confirmations of Magna Carta ceased to be
demanded. and obtained. [2]

The terms and the formalities of some of these "confirmations"
make them worthy of insertion at length.

Hume thus describes one which took place in the 38th year of
Henry III. (1253):

" But as they (the barons) had experienced his (the king's)
frequent breach of promise, they required that he should ratify
the Great Charter in a manner still more authentic and solemn
than any which he had hitherto employed. All the prelates and
abbots were assembled. They held burning tapers in their hands.
The Great Charter was read before them. They denounced the
sentence of excommunication against every one who should
thenceforth violate that fundamental law. They threw their tapers
on the ground, and exclaimed, May the soul of every one who
incurs this sentence so stink and corrupt in hell! The king bore
a part in this ceremony, and subjoined, ' So help me God! I will
keep all these articles inviolate, as I am a man, as I am a
Christian, as I am a knight, and as I am a king crowned and
anointed.' "   Hume, ch. 12. See also Blackstone's Introd. to the
Charters. Black. Law Tracts, Oxford ed., p. 332. Makintosh's
Hist. of Eng., ch. 3. Lardner's Cab. Cyc., vol. 45, p. 233   4.

The following is the form of "the sentence of excommunication"
referred to by Hume:

"The Sentence of Curse, Given by the Bishops, against the
Breakers of the Charters.

"The year of our Lord a thousand two hundred and fifty-three, the
third day of May, in the great Hall of the King at Westminster,
in the presence, and by the assent, of the Lord Henry, by the
Grace of God King of England, and the Lords Richard, Earl of
Cornwall, his brother, Roger (Bigot) Earl of Norfolk and
Suffolk;, marshal of England, Humphrey, Earl of Hereford, Henry,
Earl of Oxford, John, Earl of Warwick, and other estates of the
Realm of England: We, Boniface, by the mercy of God Archbishop
of
Canterbury, Primate of all England, F. of London, H. of Ely, S.
of Worcester, F. of Lincoln, W. of Norwich, P. of Hereford, W. of
Salisbury, W. of Durham, R. of Exeter, M. of Carlisle, W. of
Bath, E. of Rochester, T. of Saint David's, Bishops, appareled in
Pontificals, with tapers burning, against the breakers of the
Church's Liberties, and of the Liberties or free customs of the
Realm of England, and especially of those which are contained in
the Charter of the Common Liberties of the Realm, and the
Charter
of the Forest, have solemnly denounced the sentence of
Excommunication in this form. By the authority of Almighty God,
the Father, the Son, and the Holy Ghost, and of the glorious
Mother of God, and perpetual Virgin Mary, of the blessed Apostles
Peter and Paul, and of all apostles, of the blessed Thomas,
Archbishop and Martyr, and of all martyrs, of blessed Edward of
England, and of all Confessors and virgins, and of all the saints
of heaven: We excommunicate, accurse, and from the thresholds
(liminibus) of our Holy Mother the Church, We sequester, all
those that hereafter willingly and maliciously deprive or spoil
the Church of her right: And all those that by any craft or
wiliness do violate, break, diminish, or change the Church's
Liberties, or the ancient approved customs of the Realm, and
especially the Liberties and free Customs contained in the
Charters of the Common Liberties, and of the Forest, conceded by
our Lord the King, to Archbishops, Bishops, and other Prelates of
England and likewise to the Earls, Barons, Knights, and other
Freeholders of the Realm: And all that secretly, or openly, by
deed, word, or counsel, do make statutes, or observe them being
made, and that bring in Customs, or keep them when they be
brought in, against the said Liberties, or any of them, the
Writers and Counselors of said statutes, and the Executors of
them, and a11 those that shall presume to judge according to
them. All and every which persons before mentioned, that
wittingly shall commit anything of the premises, let them well
know that they incur the aforesaid sentence, ipso facto, (i. e..
upon the deed being done.) And those that ignorantly do so, and
be admonished, except they reform themselves within fifteen days
after the time of the admonition, and make full satisfaction for
that they have done, at the will of the ordinary, shall be from
that time forth included in the same sentence. And with the same
sentence we burden all those that presume to perturb the peace of
our sovereign Lord the King, and of the Realm. To the perpetual
memory of which thing, We, the aforesaid Prelates, have put our
seals to these presents."   Statutes of the Realm, vol. 1, p. 6.
Ruffhead's Statutes, vol. 1, p. 20.

One of the Confirmations of the Charters, by Edward I., was by
statute, in the 25th year of his reign, (1297,) in the following
terms. The statute is usually entitled. "Confirmatio
Cartarum,"(Confirmation of the Charters.)

Ch. 1.  "Edward, by the Grace of God, King of England, Lord of
Ireland, and Duke of Guyan, To all those that these presents
shall hear or see, Greeting. Know ye, that We, to the honor of
Cod, and of Holy Church, and to the profit of our Realm, have
granted, for us and our heirs, that the Charter of Liberties, and
the Charter of the Forest, which were made by common assent of
all the Realm, in the time of King Henry our Father, shall be
kept in every point without breach. And we will that the same
Charters shall be sent under our seal, as well to our justices of
the Forest, as to others, and to all Sheriff's of shires, and to
all our other officers, and to all our cities throughout the
Realm, together with our writs, in the which it shall he
contained, that they cause the aforesaid Charters to be
published, and to declare to the people that We have confirmed
them at all points; and to our Justices, Sheriffs, mayors, and
other ministers, which under us have the Laws of our Land to
guide, that they allow the same Charters, in all their points, in
pleas before them, and in judgment; that is, to wit, the Great
Charter as the Common Law, and the Charter of the Forest for the
wealth of our Realm.

Ch. 2. "And we will that if any judgment be given from henceforth
contrary to the points of the charters aforesaid by the justices,
or by any others our ministers that hold plea before them,
against the points of the Charters, it shall be undone and holden
for naught.

Ch. 3. "And we will, that the same Charters shall be sent, under
our seal, to Cathedral Churches throughout our Realms there to
remain, and shall be read before the people two times in the
year.

Ch. 4. "And that all Archbishops and Bishops shall pronounce the
sentence of excommunication against all those that by word, deed,
or counsel, do contrary to the foresaid charters, or that in any
point break or undo them. And that the said Curses be twice a
year denounced and published by the prelates aforesaid. And if
the same prelates, or any of them, be remiss in the denunciation
of the said sentences, the Archbishops of Canterbury and York-,
for the time being, shall compel and distrain them to make the
denunciation in the form aforesaid."   St. 25 Edward I., (1297.).
Statutes of the Realm, vol. l, p. 123.

It is unnecessary to repeat the terms of the various
confirmations, most of which were less formal than those that
have been given, though of course equally authoritative. Most of
them are brief, and in the form of a simple statute, or promise,
to the effect that "The Great Charter, and the Charter of the
Forest, shall be firmly kept and maintained in all points." They
are to be found printed with the other statutes of the realm. One
of them, after having "again granted, renewed and confirmed" the
charters, requires as follows:

"That the Charters be delivered to every sheriff of England under
the king's seal, to be read four times in the year before the
people in the full county," (that is, at the county court,) "that
is, to wit, the next county (court) after the feast of Saint
Michael, and the next county (court) after Christmas, and at the
next county (court) after Easter, and at the next county (court)
after the feast of Saint John "  28 Edward I., ch. 1, (1300.) v

Lingard says, "The Charter was ratified four times by Henry III.,
twice by Edward I., fifteen times by Edward III., seven times by
Richard II., six times by Henry IV., and once by Henry V.;"
making thirty-five times in all.   3 Lingard, 50, note, Philad.
ed.

Coke says Magna Carta was confirmed thirty-two times.   Preface
to 2 Inst., p. 6.

Lingard calls these "thirty-five successive ratifications" of the
charter, "a sufficient proof how much its provisions were
abhorred by the sovereign, and how highly they were prized by the
nation."   3 Lingard, 50.


Mackintosh says, "For almost five centuries (that is, until 1688)
it (Magna Carta) was appealed to as the decisive authority on
behalf of the people, though commonly so far only as the
necessities of each case demanded."   Mackintosh's Hist. of Eng.
ch. 3. 45 Lardner's Cab. Cyc., 221.

Coke, who has labored so hard to overthrow the most vital
principles of Magna Carta, and who, therefore, ought to be
considered good authority when he speaks in its favor, [3] says:

"It is called Magna Carta, not that it is great in quantity, for
there be many voluminous charters commonly passed, specially in
these later times, longer than this is; nor comparatively in
respect that it is greater than Charta de Foresta, but in respect
of the great importance and weightiness of the matter, as
hereafter shall appear; and likewise for the same cause Charta de
Foresta; and both of them are called Magnae Char- tae Libertatum
Angliae, (The Great Charters of the Liberties of England.)

"And it is also called Charta Libertatum regni, (Charter of the
liberties of the kingdom;) and upon great reason it is so called
of the effect, quia liberos facit, (because it makes men free.)
Sometime for the same cause (it is called) communis libertas,
(common liberty,) and le chartre des franchises, (the charter of
franchises.)

"It was for the most part declaratory of the principal grounds of
the fundamental laws of England, and for the residue it is
additional to supply some defects of the common law.

"Also, by the said act of 25 Edward I., (called Confirmatio
Chartarum,) it is adjudged in parliament that the Great Charter
and the Charter of the Forest shall be taken as the common law.

"They (Magna Carta and Carta de Foresta) were, for the most part,
but declarations of the ancient common laws of England, to the
observation and keeping whereof, the king was bound and sworn.

"After the making of Magna Charta, and Charta de Foresta, divers
learned men in the laws, that I may use the words of the record,
kept schools of the law in the city of London, and taught such as
resorted to them the laws of the realm, taking their foundation
of Magna Charta and Charta de Foresta.

"And the said two charters have been confirmed, established, and
commanded to be put in execution by thirty-two several acts of
parliament in all.

"This appeareth partly by that which hath been said, for that it
hath so often been confirmed by the wise providence of so many
acts of parliament.

"And albeit judgments in the king's courts are of high regard in
law, and judicia (judgments) are accounted as jurisdicta, (the
speech of the law itself,) yet it is provided by act of
parliament, that if any judgment be given contrary to any of the
points of the Great Charter and Charta de Foresta, by the
justices, or by any other of the king's ministers, &c;., it shall
be undone, and holden for naught.

"And that both the said charters shall be sent under the great
seal to all cathedral churches throughout the realm, there to
remain, and shall be read to the people twice every year.

"The highest and most binding laws are the statutes which are
established by parliament; and by authority of that highest court
it is enacted (only to show their tender care of Magna Carta and
Carta de Foresta) that if any statute be made contrary to the
Great Charter, or the Charter of the Forest, that shall be holden
for none; by which words all former statutes made against either
of those charters are now repealed; and the nobles and great
officers were to be sworn to the observation of Magna Charta and
Charta de Foresta.

"Magna fuit quondam magnae reverentia chartae." (Great was
formerly the reverence for Magna Carta.)   Coke's Proem to 2
Inst., p. 1 to 7.

Coke also says, "All pretence of prerogative against Magna Charta
is taken away."   2 Inst., 36.

He also says, "That after this parliament (52 Henry III., in
1267) neither Magna Carta nor Carta de Foresta was ever
attempted to be impugned or questioned."   2 Inst., 102. [4]

To give all the evidence of the authority of Magna Carta, it
would be necessary to give the constitutional history of England
since the year 1215. This history would show that Magna Carta,
although continually violated and evaded, was still acknowledged
as law by the government, and was held up by the people as the
great standard and proof of their rights and liberties. It would
show also that the judicial tribunals, whenever it suited their
purposes to do so, were in the habit of referring to Magna Carta
as authority, in the same manner, and with the same real or
pretended veneration, with which American courts now refer to the
constitution of the United States, or the constitutions of the
states. And, what is equally to the point, it would show that
these same tribunals, the mere tools of kings and parliaments,
would resort to the same artifices of assumption, precedent,
construction, and false interpretation, to evade the requirements
of Magna Carta, and to emasculate it of all its power for the
preservation of liberty, that are resorted to by American courts
to accomplish the same work on our American constitutions.

I take it for granted, therefore, that if the authority of Magna
Carta had rested simply upon its character as a compact between
the king and the people, it would have been forever binding upon
the king, (that is, upon the government, for the king was the
government,) in his legislative, judicial, and executive
character; and that there was no constitutional possibility of
his escaping from its restraints, unless the people themselves
should freely discharge him from them.

But the authority of Magna Carta does not rest, either wholly or
mainly, upon its character as a compact. For centuries before the
charter was granted, its main principles constituted "the Law of
the Land,"   the fundamental and constitutional law of the realm,
which the kings were sworn to maintain. And the principal benefit
of the charter was, that it contained a written description and
acknowledgment, by the king himself, of what the constitutional
law of the kingdom was, which his coronation oath bound him to
observe. Previous to Magna Carta, this constitutional law rested
mainly in precedents, customs, and the memories of the people.
And if the king could but make one innovation upon this law,
without arousing resistance, and being compelled to retreat from
his usurpation, he would cite that innovation as a precedent for
another act of the same kind; next, assert a custom; and,
finally, raise a controversy as to what the Law of the Land
really was. The great object of the barons and people, in
demanding from the king a written description and
acknowledgment
of the Law of the Land, was to put an end to all disputes of this
kind, and to put it out of the power of the king to plead any
misunderstanding of the constitutional law of the kingdom. And
the charter, no doubt, accomplished very much in this way. After
Magna Carta, it required much more audacity, cunning, or
strength, on the part of the king, than it had before, to invade
the people's liberties with impunity. Still, Magna Carta, like
all other written constitutions, proved inadequate to the full
accomplishment of its purpose; for when did a parchment ever
have
power adequately to restrain a government, that had either
cunning to evade its requirements, or strength to overcome those
who attempted its defence? The work of usurpation, therefore,
though seriously checked, still went on, to a great extent, after
Magna Carta. Innovations upon the Law of the Land are still made
by the government. One innovation was cited as a precedent;
precedents made customs; and customs became laws, so far as
practice was concerned; until the government, composed of the
king, the high functionaries of the church, the nobility, a House
of Commons representing the "forty shilling freeholders," and a
dependent and servile judiciary, all acting in conspiracy against
the mass of the people, became practically absolute, as it is at
this day.

As proof that Magna Carta embraced little else than what was
previously recognized as the common law, or Law of the Land, I
repeat some authorities that have been already cited.
Crabbe says, "It is admitted on all hands that it (Magna Carta)
contains nothing but what was confirmatory of the common law
and
the ancient usages of the realm; and is, properly speaking, only
an enlargement of the charter of Henry I. and his successors."
Crabbe's Hist. of the Eng. Law, p. 127.

Blackstone says, "It is agreed by all our historians that the
Great Charter of King John was, for the most part, compiled from
the ancient customs of the realm, or the laws of Edward the
Confessor; by which they mean the old common law which was
established under our Saxon princes."   Blackstone's Introd. to
the Charters. See Blackstone's Law Tracts, Oxford ed., p. 289.

Coke says, " The common law is the most general and ancient law
of the realm... The common law appeareth in the statute of Magna
Carta, and other ancient statutes, (which for the most part are
affirmations of the common law,) in the original writs, in
judicial records, and in our books of terms and years."   1
Inst., 115 b.

Coke also says, "It (Magna Carta) was for the most part
declaratory of the principal grounds of the fundamental laws of
England, and for the residue it was additional to supply some
defects of the common law... They (Magna Carta and Carta de
Foresta) were, for the most part, but declarations of the ancient
common laws of England, to the observation and keeping whereof
the king was bound and sworn."   Preface to 2 Inst., p. 3 and 5.

Hume says, "We may now, from the tenor of this charter, (Magna
Carta,) conjecture what those laws were of King Edward, (the
Confessor,) which the English nation during so many generations
still desired, with such an obstinate perseverance, to have
recalled and established. They were chiefly these latter articles
of Magna Carta; and the barons who, at the beginning of these
commotions, demanded the revival of the Saxon laws,
undoubtedly
thought that they had sufficiently satisfied the people, by
procuring them this concession, which comprehended the principal
objects to which they had so long aspired."   Hume, ch. 11.

Edward the First confessed that the Great Charter was
substantially identical with the common law, as far as it went,
when he commanded his justices to allow "the Great Charter as the
Common Law," " in pleas before them, and in judgment," as has
been already cited in this chapter.   25 Edward I., ch. 1,
(1297.)

In conclusion of this chapter, it may be safely asserted that the
veneration, attachment, and pride, which the English nation, for
more than six centuries, have felt towards Magna Carta, are in
their nature among the most irrefragable of all proofs that it
was the fundamental law of the land, and constitutionally binding
upon the government; for, otherwise, it would have been, in their
eyes, an unimportant and worthless thing. What those sentiments
were I will use the words of others to describe,   the words,
too, of men, who, like all modern authors who have written on the
same topic, had utterly inadequate ideas of the true character of
the instrument on which they lavished their eulogiums.

Hume, speaking of the Great Charter and the Charter of the
Forest, as they were confirmed by Henry III., in 1217, says:"Thus
these famous charters were brought nearly to the shape in which
they have ever since stood; and they were, during many
generations, the peculiar favorites of the English nation, and
esteemed the most sacred rampart to national liberty and
independence. As they secured the rights of all orders of men,
they were anxiously defended by all, and became the basis, in a
manner, of the English monarchy, and a kind of original contract,
which both limited the authority of the king and ensured the
conditional allegiance of his subjects. Though often violated,
they were still claimed by the nobility and people; and, as no
precedents were supposed valid that infringed them, they rather
acquired than lost authority, from the frequent attempts made
against them in several ages, by regal and arbitrary power."
Hume, ch. 12.

Mackintosh says, "It was understood by the simplest of the
unlettered age for whom it was intended. It was remembered by
them... For almost five centuries it was appealed to as the
decisive authority on behalf of the people... To have produced
it, to have preserved it, to have matured it, constitute the
immortal claim of England on the esteem of mankind. Her Bacons
arid Shakspeares, her Miltons and Newtons, with all the truth
which they have revealed, and all the generous virtues which they
have inspired, are of inferior value when compared with the
subjection of men and their rulers to the principles of justice;
if, indeed, it be not more true that these mighty spirits could
not have been formed except under equal laws, nor roused to full
activity without the influence of that spirit which the Great
Charter breathed over their forefathers."   Mackintosh's Hist. of
Eng., ch. 3, [8]

Of the Great Charter, the trial by jury is the vital part, and
the only part that places the liberties of the people in their
own keeping. Of this Blackstone says:

"The trial by jury, or the country, per patriam, is also that
trial by the peers of every Englishman, which, as the grand
bulwark of his liberties, is secured to him by the Great Charter;
nullus liber homo capiatur, vel imprisonetur, aut exuletur, aut
aliquo modo destruatur, nisi per legale judicial parium suorum,
vel per legem terrae.

The liberties of England cannot but subsist so long as this
palladium remains sacred and inviolate, not only from all open,
attacks, which none will be so hardy as to make, but also from
all secret machinations which may sap and undermine it." [9]

"The trial by jury ever has been, and I trust ever will be,
looked upon as the glory of the English law... It is the most
transcendent privilege which any subject can enjoy or wish for,
that he cannot be affected in his property, his liberty, or his
person, but by the unanimous consent of twelve of his neighbors
and equals."[10]

Hume calls the Trial by Jury "An institution admirable in itself,
and the best calculated for the preservation of liberty and the
administration of justice, that ever was devised by the wit of
man." [11]

An old book, called "English Liberties," says:"English
Parliaments have all along been most zealous for preserving this
Great Jewel of Liberty, Trials by Juries having no less than
fifty-eight several times, since the Norman Conquest, been
established and confirmed by the legislative power, no one
privilege besides having been ever so often remembered in
parliament."{12]

[1] Mackintosh's Hist. of Eng., ch. 3. 45 Lardner's Cab. Cyc.,
354.

[2] "Forty shilling freeholders" were those "people dwelling and
resident in the same counties, whereof every one of them shall
have free land or tenement to the value of forty shillings by the
year at the least above all charges." By statute 8 Henry 6, ch.
7, (1429,) these freeholders only were allowed to vote for
members of Parliament from the counties.

[3] He probably speaks in its favor only to blind the eyes of the
people to the frauds he has attempted upon its true meaning.

[4] It will be noticed that Coke calls these confirmations of the
charter "acts of parliament," instead of acts of the king alone.
This needs explanation.

It was one of Coke's ridiculous pretences, that laws anciently
enacted by the king, at the request, or with the consent, or by
the advice, of his parliament, was "an act of parliament,"
instead of the act of the king. And in the extracts cited, he
carries this idea so far as to pretend that the various
confirmations of the Great Charter were "acts of parliament,"
instead of the acts of the kings. He might as well have pretended
that the original grant of the Charter was an "act of parliament;
"because it was not only granted at the request, and with the
consent, and by the advice, but on the compulsion even, of those
who commonly constituted his parliaments. Yet this did not make
the grant of the charter "an act of parliament." It was simply an
act of the king.

The object of Coke, in this pretence, was to furnish some color
for the palpable false- hood that the legislative authority,
which parliament was trying to assume in his own day, and which
it finally succeeded in obtaining, had a precedent in the ancient
constitution of the kingdom.

There would be as much reason in saying that, because the ancient
kings were in the habit of passing laws in special answer to the
petitions of their subjects, therefore those petitioners were a
part of the legislative power of the kingdom.

One great objection to this argument of Coke, for the legislative
authority of the ancient parliaments, is that a very large
probably much the larger   number of legislative acts were done
without the advice, consent, request, or even presence, of a
parliament. Not only were many formal statutes passed without
any mention of the consent or advice of parliament, but a simple
order of the king in council, or a simple proclamation, writ, or
letter under seal, issued by his command, had the same force as
what Coke calls "an act of parliament." And this practice
continued, to a considerable extent at least, down to Coke's own
time.

The kings were always in the habit of consulting their
parliaments, more or less, in regard to matters of legislation,
not because their consent was constitutionally necessary, but in
order to make influence in favor of their laws, and thus induce
the people to observe them, and the juries to enforce them.
The general duties of the ancient parliaments were not
legislative, but judicial, as will be shown more fully hereafter.
The people were not represented in the parliaments at the time of
Magna Carta, but only the archbishops, bishops, earls, barons,
and knights; so that little or nothing would have been gained for
liberty by Coke's idea that parliament had a legislative power.
He would only have substituted an aristocracy for a king. Even
after the Commons were represented in parliament, they for some
centuries appeared only as petitioners, except in the matter of
taxation, when their consent was asked. And almost the only
source of their influence on legislation was this: that they
would sometimes refuse their consent to the taxation, unless the
king would pass such laws as they petitioned for; or, as would
seem to have been much more frequently the case, unless he would
abolish such laws and practices as they remonstrated against.
The influence, or power of parliament, and especially of the
Commons, in the general legislation of the country, was a thing
of slow growth, having its origin in a device of the king to get
money contrary to law, (as will be seen in the next volume,) and
not at all a part of the constitution of the kingdom, nor having
its foundation in the consent of the people. The power, as at
present exercised, was not fully established until 1688, (near
five hundred years after Magna Carta,) when the House of
Commons (falsely so called) had acquired such influence as the
representative, not of the people, but of the wealth, of the
nation, that they compelled, the king to discard the oath fixed
by the constitution of the kingdom; (which oath has been already
given in a former chapter, [5] and was, in substance, to preserve
and execute the Common Law, the Law of the Land,   or, in the
words of the oath, "the just laws and customs which the common
people had chosen;") and to swear that he would "govern the
people of this kingdom of England, and the dominions thereto
belonging, accordingto the statutes in parliament agreed on, and
the laws and customs of the same." [6]

The passage and enforcement of this statute, and the assumption
of this oath by the king, were plain violations of the English
constitution, inasmuch as they abolished, so far as such an oath
could abolish, the legislative power of the king, and also "those
just laws and customs which the common people (through their
juries) had chosen," and substituted the will of parliament in
their stead.

Coke was a great advocate for the legislative power of
parliament, as a means of restraining the power of the king. As
he denied all power to juries to decide upon the obligation of
laws, and as he held that the legislative power was "so
transcendent and absolute as (that) it cannot be confined, either
for causes or persons, within any bounds," [7] he was perhaps
honest in holding that it was safer to trust this terrific power
in the hands of parliament, than in the hands of the king. His
error consisted in holding that either the king or parliament had
any such power, or that they had any power at all to pass laws
that should be binding upon a jury.

These declarations of Coke, that the charter was confirmed by
thirty-two "acts of parliament," have a mischievous bearing in
another respect. They tend to weaken the authority of the
charter, by conveying the impression that the charter itself
might be abolished by "act of parliament." Coke himself admits
that it could not be revoked or rescinded by the king; for he
says, "All pretence of prerogative against Magna Carta is taken
away." (2 Inst., 36.)

He knew perfectly well, and the whole English nation knew, that
the king could not lawfully infringe Magna Carta. Magna Carta,
therefore, made it impossible that absolute power could ever be
practically established in England, in the hands of the king.
Hence, as Coke was an advocate for absolute power,   that is, for
a legislative power "so transcendent and absolute as (that) it
cannot, be confined, either for causes or persons, within any
bounds,"   there was no alternative for him but to vest this
absolute power in parliament. Had he not vested it in parliament,
he would have been obliged to abjure it altogether, and to
confess that the people, through their juries, had the right to
judge of the obligation of all legislation whatsoever; in other
words, that they had the right to confine the government within
the limits of "those just laws and customs which the common
people (acting as jurors) had chosen." True to his instincts, as
a judge, and as a tyrant, he assumed that this absolute power was
vested in the hands of parliament.

But the truth was that, as by the English constitution parliament
had no authority at all for general legislation, it could no more
confirm, than it could abolish, Magna Carta.

These thirty-two confirmations of Magna Carta, which Coke
speaks of as "acts of parliament," were merely acts of the king. The
parliaments, indeed, by refusing to grant him money, except, on
that condition, and otherwise, had contributed to oblige him to
make the confirmations; just as they had helped to oblige him by
arms to grant the charter in the first place. But the confirmations
themselves were nevertheless constitutionally, as well as formally,
the acts of the king alone.

[5] See page 103.

[6]St. 1.William and Mary, ch. 6, (1688)

[7]4. Inst., 36.

[8] Under the head of "John."

[9] 4 Blackstone, 849-50.

[10] 3 Blackstone, 379.

[11] Hume, ch. 2.

[12] Page 203, 5th edition, 1721.


CHAPTER XII. Limitations Imposed Upon The Majority By The
Trial By Jury

The principal objection, that will be made to the doctrine of
this essay, is, that under it, a jury would paralyze the power of
the majority, and veto all legislation that was not in accordance
with the will of the whole, or nearly the whole, people.

The answer to this objection is, that the limitation, which would
be thus imposed upon the  legislative power, (whether that power
be vested in the majority, or minority, of the people,) is the
crowning merit of the trial by jury. It has other merits; but,
though important in themselves, they are utterly insignificant
and worthless in comparison with this.

It is this power of vetoing all partial and oppressive
legislation, and of restricting the government to the maintenance
of such laws as the whole, or substantially the whole, people are
agreed in, that makes the trial by jury "the palladium of
liberty." Without this power it would never have deserved that
name.

The will, or the pretended will, of the majority, is the last
lurking place of tyranny at the present day. The dogma, that
certain individuals and families have a divine appointment to
govern the rest of mankind, is fast giving place to the one that
the larger number have a right to govern the smaller; a dogma,
which may, or may not, be less oppressive in its practical
operation, but which certainly is no less false or tyrannical in
principle, than the one it is so rapidly supplanting. Obviously
there is nothing in the nature of majorities, that insures
justice at their hands. They have the same passions as
minorities, and they have no qualities whatever that should be
expected to prevent them from practising the same tyranny as
minorities, if they think it will be for their interest to do so.

There is no particle of truth in the notion that the majority
have a right to rule, or to exercise arbitrary power over, the
minority, simply because the former are more numerous than the
latter. Two men have no more natural right to rule one, than one
has to rule two. Any single man, or any body of men, many or few,
have a natural right to maintain justice for themselves, and for
any others who may need their assistance against the injustice of
any and all other men, without regard to their numbers; and
majorities have no right to do any more than this. The relative
numbers of the opposing parties have nothing to do with the
question of right. And no more tyrannical principle was ever
avowed, than that the will of the majority ought to have the
force of law, without regard to its justice; or, what is the same
thing, that the will of the majority ought always to be presumed
to be in accordance with justice. Such a doctrine is only another
form of the doctrine that might makes right.

When two men meet one upon the highway, or in the wilderness,
have they a right to dispose of his life, liberty, or property at
their pleasure, simply because they are the more numerous party?
Or is he bound to submit to lose his life, liberty, or property,
if they demand it, merely because he is the less numerous party?
Or, because they are more numerous than he, is he bound to
presume that they are governed only by superior wisdom, and the
principles of justice, and by no selfish passion that can lead
them to do him a wrong? Yet this is the principle, which it is
claimed should govern men in all their civil relations to each
other. Mankind fall in company with each other on the highway or
in the wilderness of life, and it is claimed that the more
numerous party, simply by virtue of their superior numbers, have
the right arbitrarily to dispose of the life, liberty, and
property of the minority; and that the minority are bound, by
reason of their inferior numbers, to practise abject submission,
and consent to hold their natural rights,  any, all, or none, as
the case may be,  at the mere will and pleasure of the majority;
as if all a man's natural rights expired, or were suspended by
the operation of a paramount law, the moment he came into the
presence of superior numbers.

If such be the true nature of the relations men hold to each
other in this world, it puts an end to all such things as crimes,
unless they be perpetrated upon those who are equal or superior,
in number, to the actors. All acts committed against persons
inferior in number to the aggressors, become but the exercise at
rightful authority. And consistency with their own principles
requires that all governments, founded on the will of the
majority, should recognize this plea as a sufficient
justification for all crimes whatsoever.

If it be said that the majority should be allowed to rule, not
because they are stronger than the minority, but because their
superior numbers furnish a probability that they are in the
right; one answer is, that the lives, liberties, and properties
of men are too valuable to them, and the natural presumptions are
too strong in their favor, to justify the destruction of them by
their fellow-men on a mere balancing of probabilities, or on any
ground whatever short of certainty beyond a reasonable doubt.
This last is the moral rule universally recognized to be binding
upon single individuals. And in the forum of conscience the same
rule is equally binding upon governments, for governments are
mere associations of individuals. This is the rule on which the
trial by jury is based. And it is plainly the only rule that
ought to induce a man to submit his rights to the adjudication of
his fellow-men, or dissuade him from a forcible defence of them.

Another answer is, that if two opposing parties could be supposed
to have no personal interests or passions involved, to warp their
judgments, or corrupt their motives, the fact that one of the
parties was more numerous than the other, (a fact that leaves the
comparative intellectual competency of the two parties entirely
out of consideration,) might, perhaps, furnish a slight, but at
best only a very slight, probability that such party was on the
side of justice. But when it is considered that the parties are
liable to differ in their intellectual capacities, and that one,
or the other, or both, are undoubtedly under the influence of
such passions as rivalry, hatred, avarice, and ambition.
passions that are nearly certain to pervert their judgments, and
very likely to corrupt their motives,  all probabilities founded
upon a mere numerical majority, in one party, or the other,
vanish at once; and the decision of the majority becomes, to all
practical purposes, a mere decision of chance. And to dispose of
men's properties, liberties, and lives, by the mere process of
enumerating such parties, is not only as palpable gambling as was
ever practised, but it is also the most atrocious that was ever
practised, except in matters of government. And where
government is instituted on this principle, (as in the United States, for
example,) the nation is at once converted into one great gambling
establishment; where all the rights of men are the stakes; a few
bold bad men throw the dice   (dice loaded with all the hopes,
fears, interests, and passions which rage in the breasts of
ambitious and desperate men,)   and all the people, from the
interests they have depending, become enlisted, excited,
agitated, and generally corrupted, by the hazards of the game.

The trial by jury disavows the majority principle altogether; and
proceeds upon the ground that every man should be presumed to
be entitled to life, liberty, and such property as he has in his
possession; and that the government should lay its hand upon none
of them, (except for the purpose of bringing them before a
tribunal for adjudication,) unless it be first ascertained.,
beyond a reasonable doubt, in every individual case, that justice
requires it.

To ascertain whether there be such reasonable doubt, it takes
twelve men by lot from the whole body of mature men. If any of
these twelve are proved to be under the influence of any special
interest or passion, that may either pervert their judgments, or
corrupt their motives, they are set aside as unsuitable for the
performance of a duty requiring such absolute impartiality and
integrity; and others substituted in their stead. When the utmost
practicable impartiality is attained on the part of the whole
twelve, they are sworn to the observance of justice; and their
unanimous concurrence is then held to be necessary to remove that
reasonable doubt, which, unremoved, would forbid the
government to lay its hand on its victim.

Such is the caution which the trial by jury both practises and
inculcates, against the violation of justice, on the part of the
government, towards the humblest individual, in the smallest
matter affecting his civil rights, his property, liberty, or
life. And such is the contrast, which the trial by jury presents,
to that gambler's and robber's rule, that the majority have a
right, by virtue of their superior numbers, and without regard to
justice, to dispose at pleasure of the property and persons of
all bodies of men less numerous than themselves.

The difference, in short, between the two systems, is this. The
trial by jury protects person and property, inviolate to their
possessors, from the hand of the law, unless justice, beyond a
reasonable doubt, require them to be taken. The majority
principle takes person and property from their possessors, at the
mere arbitrary will of a majority, who are liable and likely to
be influenced, in taking them, by motives of oppression, avarice,
and ambition.

If the relative numbers of opposing parties afforded sufficient
evidence of the comparative justice of their claims the
government should carry the principle into its courts of justice;
and instead of referring controversies to impartial and
disinterested men,  to judges and jurors, sworn to do justice,
and bound patiently to hear and weigh all the evidence and
arguments that can be offered on either side,  it should simply
count the plaintiff's and defendants in each case, (where there
were more than one of either,) and then give the case to the
majority; after ample opportunity had been given to the
plaintiffs and defendants to reason with, flatter, cheat,
threaten, and bribe each other, by way of inducing them to change
sides. Such a. process would be just as rational in courts of
justice, as in halls of legislation; for it is of no importance
to a man, who has his rights taken from him, whether it be done
by a legislative enactment, or a judicial decision.

In legislation, the people are all arranged as plaintiff's and
defendants in their own causes; (those who are in favor of a
particular law, standing as plaintiff's, and those who are
opposed to the same law, standing as defendants); and to allow
these causes to be decided by majorities, is plainly as absurd as
it would be to allow judicial decisions to be determined by the
relative number of plaintiffs and defendants.

If this mode of decision were introduced into courts of justice,
we should see a parallel, and only a parallel, to that system of
legislation which we witness daily. We should see large bodies of
men conspiring to bring perfectly groundless suits, against other
bodies of men, for large sums of money, and to carry them by
sheer force of numbers; just as we now continually see large
bodies of men conspiring to carry, by mere force of numbers, some
scheme of legislation that will, directly or indirectly, take
money out of other men's pockets, and put it into their own. And
we should also see distinct bodies of men, parties in separate
suits, combining and agreeing all to appear and be counted as
plaintiffs or defendants in each other's suits, for the purpose
of ekeing out the necessary majority; just as we now see distinct
bodies of men, interested in separate schemes of ambition or
plunder, conspiring to carry through a batch of legislative
enactments, that shall accomplish their several purposes.

This system of combination and conspiracy would go on, until at
length whole states and a whole nation would become divided into
two great litigating parties, each party composed of several
smaller bodies, having their separate suits, but all confederating
for the purpose of making up the necessary majority in each case.
The individuals composing each of these two great parties, would
at length become so accustomed to acting together, and so well
acquainted with each others' schemes, and so mutually
dependent upon each others' fidelity for success, that they would
become organized as permanent associations; bound together by
that kind of honor that prevails among thieves; and pledged by
all their interests, sympathies, and animosities, to mutual
fidelity, and to unceasing hostility to their opponents; and
exerting all their arts and all their resources of threats,
injuries, promises, and bribes, to drive or seduce from the other
party enough to enable their own to retain or acquire such a
majority as would be necessary to gain their own suits, and
defeat the suits of their opponents. All the wealth and talent of
the country would become enlisted in the service of these rival
associations; and both would at length become so compact, so well
organized, so powerful, and yet always so much in need of
recruits, that a private person would be nearly or quite unable
to obtain justice in the most paltry suit with his neighbor,
except on the condition of joining one of these great litigating
associations, who would agree to carry through his cause, on
condition of his assisting them to carry through all the others,
good and bad, which they had already undertaken. If he refused
this, they would threaten to make a similar offer to his
antagonist, and suffer their whole numbers to be counted against
him.

Now this picture is no caricature, but a true and honest
likeness. And such a system of administering justice, would be no
more false, absurd, or atrocious, than that system of working by
majorities, which seeks to accomplish, by legislation, the same
ends which, in the case supposed, would be accomplished by
judicial decisions.

Again, the doctrine that the minority ought to submit to the will
of the majority, proceeds, not upon the principle that government
is formed by voluntary association, and for an agreed purpose, on
the part of all who contribute to its support, but upon the
presumption that all government must be practically a state of
war and plunder between opposing parties; and that in order to
save blood, and prevent mutual extermination, the parties come to
an agreement that they will count their respective numbers
periodically, and the one party shall then be permitted quietly
to rule and plunder, (restrained only by their own discretion,)
and the other submit quietly to be ruled and plundered, until the
time of the next enumeration.

Such an agreement may possibly be wiser than unceasing and
deadly conflict; it nevertheless partakes too much of the ludicrous
to deserve to be seriously considered as an expedient for the
maintenance of civil society. It would certainly seem that
mankind might agree upon a cessation of hostilities, upon more
rational and equitable terms than that of unconditional
submission on the part of the less numerous body. Unconditional
submission is usually the last act of one who confesses himself
subdued and enslaved. How any one ever came to imagine that
condition to be one of freedom, has never been explained. And as
for the system being adapted to the maintenance of justice among
men, it is a mystery that any human mind could ever have been
visited with an insanity wild enough to originate the idea.

If it be said that other corporations, than governments,
surrender their affairs into the hands of the majority, the
answer is, that they allow majorities to determine only trifling
matters, that are in their nature mere questions of discretion,
and where there is no natural presumption of justice or right on
one side rather than the other. They never surrender to the
majority the power to dispose of; or, what is practically the
same thing, to determine, the rights of any individual member.
The rights of every member are determined by the written
compact, to which all the members have voluntarily agreed.

For example. A banking corporation allows a majority to
determine such questions of discretion as whether the note of
A or of B shall be discounted; whether notes shall be discounted
on one, two, or six days in the week; how many hours in a day
their banking-house shall be kept open; how many clerks shall
be employed; what salaries they shall receive, and such like
matters, which are in their nature mere subjects of discretion,
and where there are no natural presumptions of justice or right
in favor of one course over the other. But no banking corporation
allows a majority, or any other number of its members less than
the whole, to divert the funds of the corporation to any other
purpose than the one to which every member of the corporation
has legally agreed that they may be devoted; nor to take the stock of
one member and give it to another; nor to distribute the
dividends among the stockholders otherwise than to each one the
proportion which he has agreed to accept, and all the others have
agreed that he shall receive. Nor does any banking corporation
allow a majority to impose taxes upon the members for the
payment of the corporate expenses, except in such proportions as
every member has consented that they may be imposed. All these
questions, involving the rights of the members as against each
other, are fixed by the articles of the association,  that is, by
the agreement to which every member has personally assented.

What is also specially to be noticed, and what constitutes a
vital difference between the banking corporation and the
political corporation, or government, is, that in case of
controversy among the members of the banking corporation, as to
the rights of any member, the question is determined, not by any
number, either majority, or minority, of the corporation itself,
but by persons out of the corporation; by twelve men acting as
jurors, or by other tribunals of justice, of which no member of
the corporation is allowed to be a part. But in the case of the
political corporation, controversies among the parties to it, as
to the rights of individual members, must of necessity be settled
by members of the corporation itself, because there are no
persons out of the corporation to whom the question can be
referred.

Since, then, all questions as to the rights of the members of the
political corporation, must be determined by members of the
corporation itself, the trial by jury says that no man's rights,
neither his right to his life, his liberty, nor his property,
shall be determined by any such standard as the mere will and
pleasure of majorities; but only by the unanimous verdict of a
tribunal fairly representing the whole people,  that is, a
tribunal of twelve men, taken at random from the whole body, and
ascertained to be as impartial as the nature of the case will
admit, and sworn to the observance of justice. Such is the
difference in the two kinds of corporations; and the custom of
managing by majorities the mere discretionary matters of business
corporations, (the majority having no power to determine the
rights of any member,) furnishes no analogy to the practice,
adopted by political corporations, of disposing of all the rightsof
their members by the arbitrary will of majorities.

But further. The doctrine that the majority have a right to rule,
proceeds upon the principle that minorities have no rights in the
government; for certainly the minority cannot be said to have any
rights in a government, so long as the majority alone determine
what their rights shall be. They hold everything, or nothing, as
the case may be, at the mere will of the majority.

It is indispensable to a "free government," (in the political
sense of that term,) that the minority, the weaker party, have a
veto upon the acts of the majority. Political liberty is liberty
for the weaker party in a nation. It is only the weaker party
that lose their liberties, when a government becomes oppressive.
The stronger party, in all governments, are free by virtue of
their superior strength. They never oppress themselves.

Legislation is the work of this stronger party; and if, in
addition to the sole power of legislating, they have the sole
power of determining what legislation shall be enforced, they
have all power in their hands, and the weaker party are the
subjects of an absolute government.

Unless the weaker party have a veto, either upon the making, or
the enforcement of laws, they have no power whatever in the
government, and can of course have no liberties except such as
the stronger party, in their arbitrary discretion, see fit to
permit them to enjoy.

In England and the United States, the trial by jury is the only
institution that gives the weaker party any veto upon the power
of the stronger. Consequently it is the only institution, that
gives them any effective voice in the government, or any guaranty
against oppression.

Suffrage, however free, is of no avail for this purpose; because
the suffrage of the minority is overborne by the suffrage of the
majority, and is thus rendered powerless for purposes of
legislation. The responsibility of officers can be made of no
avail, because they are responsible only to the majority. The
minority, therefore, are wholly without rights in the government,
wholly at the mercy of the majority, unless, through the trial by
jury, they have a veto upon such legislation as they think
unjust.

Government is established for the protection of the weak against
the strong. This is the principal, if not the sole, motive for
the establishment of all legitimate government. Laws, that are
sufficient for the protection of the weaker party, are of course
sufficient for the protection of the stronger party; because the
strong can certainly need no more protection than the weak. It
is, therefore, right that the weaker party should be represented
in the tribunal which is finally to determine what legislation
may be enforced; and that no legislation shall be enforced
against their consent. They being presumed to be competent judges
of what kind of legislation makes for their safety, and what for
their injury, it must be presumed that any legislation, which
they object to enforcing, tends to their oppression, and not to
their security.

There is still another reason why the weaker party, or the
minority, should have a veto upon all legislation which they
disapprove. That reason is, that that is the only means by which
the government can be kept within the limits of the contract,
compact, or constitution, by which the whole people agree to
establish government. If the majority were allowed to interpret
the compact for themselves, and enforce it according to their own
interpretation, they would, of course, make it authorize them to
do whatever they wish to do.

The theory of free government is that it is formed by the
voluntary contract of the people individually with each other.
This is the theory, (although it is not, as it ought to be, the
fact,) in all the governments in the United States, as also in
the government of England. The theory assumes that each man,
who is a party to the government, and contributes to its support,
has individually and freely consented to it. Otherwise the
government would have no right to tax him for its support,
for taxation without consent is robbery. This theory, then,
necessarily supposes that this government, which is formed by
the free consent of all, has no powers except such as all the
parties to it have individually agreed that it shall have: and
especially that it has no power to pass any laws, except such
as all the parties have agreed that it may pass.

This theory supposes that there may be certain laws that will be
beneficial to all,  so beneficial that all consent to be taxed
for their maintenance. For the maintenance of these specific
laws, in which all are interested, all associate. And they
associate for the maintenance of those laws only, in which allare
interested. It would be absurd to suppose that all would
associate, and consent to be taxed, for purposes which were
beneficial only to a part; and especially for purposes that were
injurious to any. A government of the whole, therefore, can have
no powers except such as all the parties consent that it may
have. It can do nothing except what all have consented that it
may do. And if any portion of the people,  no matter how large
their number, if it be less than the whole,  desire a government
for any purposes other than those that are common to all, and
desired by all, they must form a separate association for those
purposes. They have no right,  by perverting this government of
the whole, to the accomplishment of purposes desired only by a
part,   to compel any one to contribute to purposes that are
either useless or injurious to himself.

Such being the principles on which the government is formed, the
question arises, how shall this government, where formed, be kept
within the limits of the contract by which it was established?
How shall this government, instituted by the whole people, agreed
to by the whole people, supported by the contributions of the
whole people, be confined to the accomplishment of those
purposes alone, which the whole people desire? How shall it be
preserved from degeneration into a mere government for the benefit
of a part only of those who established, and who support it? How shall
it be prevented from even injuring a part of its own members, for
the aggrandizement of the rest? Its laws must be, (or at least
now are,) passed, and most of its other acts performed, by mere
agents,  agents chosen by a part of the people, and not by the
whole. How can these agents be restrained from seeking their own
interests, and the interests of those who elected them, at the
expense of the rights of the remainder of the people, by the
passage and enforcement of laws that shall be partial, unequal,
and unjust in their operation? That is the great question. And
the trial by jury answers it. And how does the trial by jury
answer it? It answers it, as has already been shown throughout
this volume, by saying that these mere agents and attorneys, who
are chosen by a part only of the people, and are liable to be
influenced by partial and unequal purposes, shall not have
unlimited authority in the enactment and enforcement of laws;
that they shall not exercise all the functions of government. It
says that they shall never exercise that ultimate power of
compelling obedience to the laws by punishing for disobedience,
or of executing the laws against the person or property of any
man, without first getting the consent of the people, through a
tribunal that may fairly be presumed to represent the whole, or
substantially the whole, people. It says that if the power to
make laws, and the power also to enforce them, were committed to
these agents, they would have all power,  would be absolute
masters of the people, and could deprive them of their rights at
pleasure. It says, therefore, that the people themselves will
hold a veto upon the enforcement of any and every law, which
these agents may enact, and that whenever the occasion arises for
them to give or withhold their consent,  inasmuch as the whole
people cannot assemble, or devote the time and attention
necessary to the investigation of each case,  twelve of their
number shall be taken by lot, or otherwise at random, from the
whole body; that they shall not be chosen by majorities, (the
same majorities that elected the agents who enacted the laws to
be put in issue,) nor by any interested or suspected party; that
they shall not be appointed by, or be in any way dependent upon,
those who enacted the law; that their opinions, whether for or
against the law that is in issue, shall not be inquired of
beforehand; and that if these twelve men give their consent to
the enforcement of the law, their consent shall stand for the
consent of the whole.

This is the mode, which the trial by jury provides, for keeping
the government within the limits designed by the whole people,
who have associated for its establishment. And it is the only
mode, provided either by the English or American constitutions,
for the accomplishment of that object.

But it will, perhaps, be said that if the minority can defeat the
will of the majority, then the minority rule the majority. But
this is not true in any unjust sense. The minority enact no laws
of their own. They simply refuse their assent to such laws of the
majority as they do not approve. The minority assume no authority
over the majority; they simply defend themselves. They do not
interfere with the right of the majority to seek their own
happiness in their own way, so long as they (the majority) do not
interfere with the minority. They claim simply not to be
oppressed, and not to be compelled to assist in doing anything
which they do not approve. They say to the majority, " We will
unite with you, if you desire it, for the accomplishment of all
those purposes, in which we have a common interest with you.
You can certainly expect us to do nothing more. If you do not choose
to associate with us on those terms, there must be two separate
associations. You must associate for the accomplishment of your
purposes; we for the accomplishment of ours."

In this case, the minority assume no authority over the majority;
they simply refuse to surrender their own liberties into the
hands of the majority. They propose a union; but decline
submission. The majority are still at liberty to refuse the
connection, and to seek their own happiness in their own way,
except that they cannot be gratified in their desire to become
absolute masters of the minority.

But, it may be asked, how can the minority be trusted to enforce
even such legislation as is equal and just? The answer is, that
they are as reliable for that purpose as are the majority; they
are as much presumed to have associated, and are as likely to
have associated, for that object, as are the majority; and they
have as much interest in such legislation as have the majority.
They have even more interest in it; for, being the weaker party,
they must rely on it for their security,   having no other
security on which they can rely. Hence their consent to the
establishment of government, and to the taxation required for its
support, is presumed, (although it ought not to be presumed,)
without any express consent being given. This presumption of
their consent to be taxed for the maintenance of laws, would be
absurd, if they could not themselves be trusted to act in good
faith in enforcing those laws. And hence they cannot be presumed
to have consented to be taxed for the maintenance of any laws,
except such as they are themselves ready to aid in enforcing. It
is therefore unjust to tax them, unless they are eligible to
seats in a jury, with power to judge of the justice of the laws.
Taxing them for the support of the laws, on the assumption that
they are in favor of the laws, and at the same time refusing them
the right, as jurors, to judge of the justice of the laws, on the
assumption that they are opposed to the laws, are flat
contradictions.

But, it will be asked, what motive have the majority, when they
have all power in their own hands, to submit their will to the
veto of the minority?

One answer is, that they have the motive of justice. It would be
unjust to compel the minority to contribute, by taxation, to the
support of any laws which they did not approve.

Another answer is, that if the stronger party wish to use their
power only for purposes of justice, they have no occasion to fear
the veto of the weaker party; for the latter have as strong
motives for the maintenance of just government, as have the
former.

Another answer is, that if the stronger party use their power
unjustly, they will hold it by an uncertain tenure, especially in
a community where knowledge is diffused; for knowledge will
enable the weaker party to make itself in time the stronger
party. It also enables the weaker party, even while it remains
the weaker party, perpetually to annoy, alarm, and injure their
oppressors. Unjust power,  or rather power that is grossly
unjust, and that is known to be so by the minority,   can be
sustained only at the expense of standing armies, and all the
other machinery of force; for the oppressed party are always
ready to risk their lives for purposes of vengeance, and the
acquisition of their rights, whenever there is any tolerable
chance of success. Peace, safety, and quiet for all, can be
enjoyed only under laws that obtain the consent of all. Hence
tyrants frequently yield to the demands of justice from those
weaker than themselves, as a means of buying peace and safety.

Still another answer is, that those who are in the majority on
one law, will be in the minority on another. All, therefore, need
the benefit of the veto, at some time or other, to protect
themselves from injustice.

That the limits, within which legislation would, by this process,
be confined, would be exceedingly narrow, in comparison with
those it at present occupies, there can be no doubt. All
monopolies, all special privileges, all sumptuary laws, all
restraints upon any traffic, bargain, or contract, that was
naturally lawful, [1] all restraints upon men's natural rights,
the whole catalogue of mala prohibita, and all taxation to which
the taxed parties had not individually, severally, and freely
consented, would be at an end; because all such legislation
implies a violation of the rights of a greater or less minority.
This minority would disregard, trample upon, or resist, the
execution of such legislation, and then throw themselves upon a
jury of the whole people for justification and protection. In
this way all legislation would be nullified, except the
legislation of that general nature which impartially protected
the rights, and subserved the interests, of all. The only
legislation that could be sustained, would probably be such as
tended directly to the maintenance of justice and liberty; such,
for example, as should contribute to the enforcement of
contracts, the protection of property, and the prevention and
punishment of acts intrinsically criminal. In short, government
in practice would be brought to the necessity of a strict
adherence to natural law, and natural justice, instead of being,
as it now is, a great battle, in which avarice and ambition are
constantly fighting for and obtaining advantages over the natural
rights of mankind.

[1] Such as restraints upon banking, upon the rates of interest,
upon traffic with foreigners, &e;., &c;.

APPENDIX

TAXATION

It was a principle of the Common Law, as it is of the law of
nature, and of common sense, that no man can be taxed without
his personal consent. The Common Law knew nothing of that system,
which now prevails in England, of assuming a man's own consent
to be taxed, because some pretended representative, whom he never
authorized to act for him, has taken it upon himself to consent
that he may be taxed. That is one of the many frauds on the
Common Law, and the English constitution, which have been
introduced since Magna Carta. Having finally established itself
in England, it has been stupidly and servilely copied and
submitted to in the United States.


If the trial by jury were reestablished, the Common Law principle
of taxation would be reestablished with it; for it is not to be
supposed that juries would enforce a tax upon an individual which
he had never agreed to pay. Taxation without consent is as
plainly robbery, when enforcers against one man, as when
enforced against millions; and it is not to be imagined that juries
could be blind to so self-evident a principle. Taking a man's money
without his consent, is also as much robbery, when it is done by
millions of men, acting in concert, and calling themselves a
government, as when it is done by a single individual, acting on
his own responsibility, and calling himself a highwayman. Neither
the numbers engaged in the act, nor the different characters they
assume as a cover for the act, alter the nature of the act
itself.

If the government can take a man's money without his consent,
there is no limit to the additional tyranny it may practise upon
him; for, with his money, it can hire soldiers to stand over him,
keep him in subjection, plunder him at discretion, and kill him
if he resists. And governments always will do this, as they
everywhere and always have done it, except where the Common
Law principle has been established. It is therefore a first
principle, a very sine qua non of political freedom, that a man
can be taxed only by his personal consent. And the establishment
of this principle, with trial by jury, insures freedom of course;
because:1. No man would pay his money unless he had first
contracted for such a government as he was willing to support;
and,2. Unless the government then kept itself within the terms of
its contract, juries would not enforce the payment of the tax.
Besides, the agreement to be taxed would probably be entered into
but for a year at a time. If, in that year, the government proved
itself either inefficient or tyrannical, to any serious degree,
the contract would not be renewed. The dissatisfied parties, if
sufficiently numerous for a new organization, would form
themselves into a separate association for mutual protection. If
not sufficiently numerous for that purpose, those who were
conscientious would forego all governmental protection, rather
than contribute to the support of a government which they deemed
unjust.

All legitimate government is a mutual insurance company,
voluntarily agreed upon by the parties to it, for the protection
of their rights against wrong-doers. In its voluntary character
it is precisely similar to an association for mutual protection
against fire or shipwreck. Before a man will join an association
for these latter purposes, and pay the premium for being insured,
he will, if he be a man of sense, look at the articles of the
association; see what the company promises to do; what it is
likely to do; and what are the rates of insurance. If he be
satisfied on all these points, he will become a member, pay his
premium for a year, and then hold the company to its contract. If
the conduct of the company prove unsatisfactory, he will let his
policy expire at the end of the year for which he has paid; will
decline to pay any further premiums, and either seek insurance
elsewhere, or take his own risk without any insurance. And as men
act in the insurance of their ships and dwellings, they would act
in the insurance of their properties, liberties and lives, in the
political association, or government.

The political insurance company, or government, have no more
right, in nature or reason, to assume a man's consent to be
protected by them, and to be taxed for that protection, when he
has given no actual consent, than a fire or marine insurance
company have to assume a man's consent to be protected by them,
and to pay the premium, when his actual consent has never been
given. To take a man's property without his consent is robbery;
and to assume his consent, where no actual consent is given,
makes the taking none the less robbery. If it did, the highwayman
has the same right to assume a man's consent to part with his
purse, that any other man, or body of men, can have. And his
assumption would afford as much moral justification for his
robbery as does a like assumption, on the part of the government,
for taking a man's property without his consent. The government's
pretence of protecting him, as an equivalent for the taxation,
affords no justification. It is for himself to decide whether he
desires such protection as the government offers him. If he do
not desire it, or do not bargain for it, the government has no
more right than any other insurance company to impose it upon
him, or make him pay for it. Trial by the country, and no
taxation without consent, were the two pillars of English
liberty, (when England had any liberty,) and the first principles
of the Common Law. They mutually sustain each other; and
neither can stand without the other. Without both, no people have any
guaranty for their freedom; with both, no people can be otherwise
than free. [1]

[1] Trial by the country, and no taxation without consent,
mutually sustain each other, and can be sustained only by each
other, for these reasons: 1. Juries would refuse to enforce a tax
against a man who had never agreed to pay it. They would also
protect men in forcibly resisting the collection of taxes to
which they had never consented. Otherwise the jurors would
authorize the government to tax themselves without their consent,
a thing which no jury would be likely to do. In these two ways,
then, trial by the country would sustain the principle of no
taxation without consent. 2. On the other hand, the principle of
no taxation without consent would sustain the trial by the
country, because men in general would not consent to be taxed for
the support of a government under which trial by the country was
not secured. Thus these two principles mutually sustain each
other.

But, if either of these principles were broken down, the other
would fall with it, and for these reasons:If trial by the country
were broken down, the principle of no taxation without consent
would fall with it, because the government would then be able
totax the people without their consent, inasmuch as the legal
tribunals would be mere tools of the government, and would
enforce such taxation, and punish men for resisting such
taxation, as the government ordered.

On the other hand, if the principle of no taxation without
consent were broken down, trial by the country would fall with
it, because the government, if it could tax people without their
consent, would, of course, take enough of their money to enable
it to employ all the force necessary for sustaining its own
tribunals, (in the place of juries,) and carrying their decrees
into execution.

By what force, fraud, and conspiracy, on the part of kings,
nobles, and "a few wealthy freeholders," these pillars have been
prostrated in England, it is desired to show more fully in the
next volume, if it should be necessary.