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+Project Gutenberg's An Essay on the Trial by Jury, by Lysander Spooner
+
+This eBook is for the use of anyone anywhere at no cost and with
+almost no restrictions whatsoever.  You may copy it, give it away or
+re-use it under the terms of the Project Gutenberg License included
+with this eBook or online at www.gutenberg.org
+
+
+Title: An Essay on the Trial by Jury
+
+Author: Lysander Spooner
+
+Release Date: June 27, 2010 [EBook #32984]
+
+Language: English
+
+Character set encoding: ISO-8859-1
+
+*** START OF THIS PROJECT GUTENBERG EBOOK AN ESSAY ON THE TRIAL BY JURY ***
+
+
+
+
+Produced by Susan Goble, Curtis Weyant, Graeme Mackreth
+and the Online Distributed Proofreading Team at
+https://www.pgdp.net
+
+
+
+
+
+
+
+AN ESSAY
+
+ON THE
+
+TRIAL BY JURY.
+
+
+BY LYSANDER SPOONER.
+
+
+ BOSTON:
+ JOHN P. JEWETT AND COMPANY.
+ CLEVELAND, OHIO:
+ JEWETT, PROCTOR & WORTHINGTON.
+ 1852.
+
+
+ Entered according to Act of Congress, in the year 1852, by
+ LYSANDER SPOONER,
+ In the Clerk's Office of the District Court of Massachusetts.
+
+
+NOTICE TO ENGLISH PUBLISHERS.
+
+The author claims the copyright of this book in England, on Common Law
+principles, without regard to acts of parliament; and if the main
+principle of the book itself be true, viz., that no legislation, in
+conflict with the Common Law, is of any validity, his claim is a legal
+one. He forbids any one to reprint the book without his consent.
+
+
+ Stereotyped by
+ HOBART & ROBBINS;
+ New England Type and Stereotype Foundery,
+ BOSTON.
+
+
+NOTE.
+
+This volume, it is presumed by the author, gives what will generally be
+considered satisfactory evidence,--though not all the evidence,--of what
+the Common Law trial by jury really is. In a future volume, if it should
+be called for, it is designed to corroborate the grounds taken in this;
+give a concise view of the English constitution; show the
+unconstitutional character of the existing government in England, and
+the unconstitutional means by which the trial by jury has been broken
+down in practice; prove that, neither in England nor the United States,
+have legislatures ever been invested by the people with any authority to
+impair the powers, change the oaths, or (with few exceptions) abridge
+the jurisdiction, of juries, or select jurors on any other than Common
+Law principles; and, consequently, that, in both countries, legislation
+is still constitutionally subordinate to the discretion and consciences
+of Common Law juries, in all cases, both civil and criminal, in which
+juries sit. The same volume will probably also discuss several political
+and legal questions, which will naturally assume importance if the trial
+by jury should be reëstablished.
+
+
+
+
+CONTENTS.
+
+                                                                       PAGE
+
+
+CHAPTER I.   THE RIGHT OF JURIES TO JUDGE OF THE JUSTICE OF LAWS,         5
+
+             SECTION 1,                                                   5
+
+             SECTION 2,                                                  11
+
+
+CHAPTER II.  THE TRIAL BY JURY, AS DEFINED BY MAGNA CARTA,               20
+
+             SECTION 1. _The History of Magna Carta_,                    20
+
+             SECTION 2. _The Language of Magna Carta_,                   25
+
+
+CHAPTER III.  ADDITIONAL PROOFS OF THE RIGHTS AND DUTIES OF JURORS,      51
+
+              SECTION 1. _Weakness of the Regal Authority_,              51
+
+              SECTION 2. _The Ancient Common Law Juries were mere
+              Courts of Conscience_,                                     63
+
+              SECTION 3. _The Oaths of Jurors_,                          85
+
+              SECTION 4. _The Right of Jurors to fix the Sentence_,      91
+
+              SECTION 5. _The Oaths of Judges_,                          98
+
+              SECTION 6. _The Coronation Oath_,                         102
+
+
+CHAPTER IV.   THE RIGHTS AND DUTIES OF JURIES IN CIVIL SUITS,           110
+
+
+CHAPTER V.    OBJECTIONS ANSWERED,                                      128
+
+
+CHAPTER VI.   JURIES OF THE PRESENT DAY ILLEGAL,                        142
+
+
+CHAPTER VII.  ILLEGAL JUDGES,                                           157
+
+
+CHAPTER VIII. THE FREE ADMINISTRATION OF JUSTICE,                       172
+
+
+CHAPTER IX.   THE CRIMINAL INTENT,                                      178
+
+
+CHAPTER X.    MORAL CONSIDERATIONS FOR JURORS,                          189
+
+
+CHAPTER XI.   AUTHORITY OF MAGNA CARTA,                                 192
+
+
+CHAPTER XII.  LIMITATIONS IMPOSED UPON THE MAJORITY BY
+              THE TRIAL BY JURY,                                        206
+
+
+APPENDIX--TAXATION,                                                     222
+
+
+
+
+TRIAL BY JURY.
+
+
+
+
+CHAPTER I.
+
+THE RIGHT OF JURIES TO JUDGE OF THE JUSTICE OF LAWS.
+
+
+SECTION I.
+
+For more than six hundred years--that is, since Magna Carta, in
+1215--there has been no clearer principle of English or American
+constitutional law, than that, in criminal cases, it is not only the
+right and duty of juries to judge what are the facts, what is the law,
+and what was the moral intent of the accused; _but that it is also their
+right, and their primary and paramount duty, to judge of the justice of
+the law, and to hold all laws invalid, that are, in their opinion,
+unjust or oppressive, and all persons guiltless in violating, or
+resisting the execution of, such laws_.
+
+Unless such be the right and duty of jurors, it is plain that, instead
+of juries being a "palladium of liberty"--a barrier against the tyranny
+and oppression of the government--they are really mere tools in its
+hands, for carrying into execution any injustice and oppression it may
+desire to have executed.
+
+But for their right to judge of the law, _and the justice of the law_,
+juries would be no protection to an accused person, _even as to matters
+of fact_; for, if the government can dictate to a jury any law whatever,
+in a criminal case, it can certainly dictate to them the laws of
+evidence. That is, it can dictate what evidence is admissible, and what
+inadmissible, _and also what force or weight is to be given to the
+evidence admitted_. And if the government can thus dictate to a jury the
+laws of evidence, it can not only make it necessary for them to convict
+on a partial exhibition of the evidence rightfully pertaining to the
+case, but it can even require them to convict on any evidence whatever
+that it pleases to offer them.
+
+That the rights and duties of jurors must necessarily be such as are
+here claimed for them, will be evident when it is considered what the
+trial by jury is, and what is its object.
+
+_"The trial by jury," then, is a "trial by the country"--that is, by the
+people--as distinguished from a trial by the government._
+
+It was anciently called "trial _per pais_"--that is, "trial by the
+country." And now, in every criminal trial, the jury are told that the
+accused "has, for trial, put himself upon the _country_; which _country_
+you (the jury) are."
+
+_The object of this trial "by the country" or by the people, in
+preference to a trial by the government, is to guard against every
+species of oppression by the government. In order to effect this end, it
+is indispensable that the people, or "the country," judge of and
+determine their own liberties against the government; instead of the
+government's judging of and determining its own powers over the people.
+How is it possible that juries can do anything to protect the liberties
+of the people against the government, if they are not allowed to
+determine what those liberties are?_
+
+Any government, that is its own judge of, and determines authoritatively
+for the people, what are its own powers over the people, is an absolute
+government of course. It has all the powers that it chooses to exercise.
+There is no other--or at least no more accurate--definition of a
+despotism than this.
+
+On the other hand, any people, that judge of, and determine
+authoritatively for the government, what are their own liberties against
+the government, of course retain all the liberties they wish to enjoy.
+_And this is freedom._ At least, it is freedom _to them_; because,
+although it may be theoretically imperfect, it, nevertheless,
+corresponds to _their_ highest notions of freedom.
+
+To secure this right of the people to judge of their own liberties
+against the government, the jurors are taken, (or must be, to make them
+lawful jurors,) from the body of the people, _by lot_, or by some
+process that precludes any previous knowledge, choice, or selection of
+them, on the part of the government. This is done to prevent the
+government's constituting a jury of its own partisans or friends; in
+other words, to prevent the government's _packing_ a jury, with a view
+to maintain its own laws, and accomplish its own purposes.
+
+It is supposed that, if twelve men be taken, _by lot_, from the mass of
+the people, without the possibility of any previous knowledge, choice,
+or selection of them, on the part of the government, the jury will be a
+fair epitome of "the country" at large, and not merely of the party or
+faction that sustain the measures of the government; that substantially
+all classes of opinions, prevailing among the people, will be
+represented in the jury; and especially that the opponents of the
+government, (if the government have any opponents,) will be represented
+there, as well as its friends; that the classes, who are oppressed by
+the laws of the government, (if any are thus oppressed,) will have their
+representatives in the jury, as well as those classes, who take sides
+with the oppressor--that is, with the government.
+
+It is fairly presumable that such a tribunal will agree to no conviction
+except such as _substantially the whole country_ would agree to, if they
+were present, taking part in the trial. A trial by such a tribunal is,
+therefore, in effect, "a trial by the country." In its results it
+probably comes as near to a trial by the _whole_ country, as any trial
+that it is practicable to have, without too great inconvenience and
+expense. And as unanimity is required for a conviction, it follows that
+no one can be convicted, except for the violation of such laws as
+substantially the whole country wish to have maintained. The government
+can enforce none of its laws, (by punishing offenders, through the
+verdicts of juries,) except such as substantially the whole people wish
+to have enforced. The government, therefore, consistently with the trial
+by jury, can exercise no powers over the people, (or, what is the same
+thing, over the accused person, who represents the rights of the
+people,) except such as substantially the whole people of the country
+consent that it may exercise. In such a trial, therefore, "the country,"
+or the people, judge of and determine their own liberties against the
+government, instead of the government's judging of and determining its
+own powers over the people.
+
+But all this "trial by the country" would be no trial at all "by the
+country," but only a trial by the government, if the government could
+either declare who may, and who may not, be jurors, or could dictate to
+the jury anything whatever, either of law or evidence, that is of the
+essence of the trial.
+
+If the government may decide who may, and who may not, be jurors, it
+will of course select only its partisans, and those friendly to its
+measures. It may not only prescribe who may, and who may not, be
+eligible to be drawn as jurors; but it may also question each person
+drawn as a juror, as to his sentiments in regard to the particular law
+involved in each trial, before suffering him to be sworn on the panel;
+and exclude him if he be found unfavorable to the maintenance of such a
+law.[1]
+
+So, also, if the government may dictate to the jury _what laws they are
+to enforce_, it is no longer a "trial by the country," but a trial by
+the government; because the jury then try the accused, not by any
+standard of their own--not by their own judgments of their rightful
+liberties--but by a standard dictated to them by the government. And the
+standard, thus dictated by the government, becomes the measure of the
+people's liberties. If the government dictate the standard of trial, it
+of course dictates the results of the trial. And such a trial is no
+trial by the country, but only a trial by the government; and in it the
+government determines what are its own powers over the people, instead
+of the people's determining what are their own liberties against the
+government. In short, if the jury have no right to judge of the justice
+of a law of the government, they plainly can do nothing to protect the
+people against the oppressions of the government; for there are no
+oppressions which the government may not authorize by law.
+
+The jury are also to judge whether the laws are rightly expounded to
+them by the court. Unless they judge on this point, they do nothing to
+protect their liberties against the oppressions that are capable of
+being practised under cover of a corrupt exposition of the laws. If the
+judiciary can authoritatively dictate to a jury any exposition of the
+law, they can dictate to them the law itself, and such laws as they
+please; because laws are, in practice, one thing or another, according
+as they are expounded.
+
+The jury must also judge whether there really be any such law, (be it
+good or bad,) as the accused is charged with having transgressed. Unless
+they judge on this point, the people are liable to have their liberties
+taken from them by brute force, without any law at all.
+
+The jury must also judge of the laws of evidence. If the government can
+dictate to a jury the laws of evidence, it can not only shut out any
+evidence it pleases, tending to vindicate the accused, but it can
+require that any evidence whatever, that it pleases to offer, be held as
+conclusive proof of any offence whatever which the government chooses to
+allege.
+
+It is manifest, therefore, that the jury must judge of and try the whole
+case, and every part and parcel of the case, free of any dictation or
+authority on the part of the government. They must judge of the
+existence of the law; of the true exposition of the law; _of the justice
+of the law_; and of the admissibility and weight of all the evidence
+offered; otherwise the government will have everything its own way; the
+jury will be mere puppets in the hands of the government; and the trial
+will be, in reality, a trial by the government, and not a "trial by the
+country." By such trials the government will determine its own powers
+over the people, instead of the people's determining their own liberties
+against the government; and it will be an entire delusion to talk, as
+for centuries we have done, of the trial by jury, as a "palladium of
+liberty," or as any protection to the people against the oppression and
+tyranny of the government.
+
+The question, then, between trial by jury, as thus described, and trial
+by the government, is simply a question between liberty and despotism.
+The authority to judge what are the powers of the government, and what
+the liberties of the people, must necessarily be vested in one or the
+other of the parties themselves--the government, or the people; because
+there is no third party to whom it can be entrusted. If the authority be
+vested in the government, the government is absolute, and the people
+have no liberties except such as the government sees fit to indulge them
+with. If, on the other hand, that authority be vested in the people,
+then the people have all liberties, (as against the government,) except
+such as substantially the whole people (through a jury) choose to
+disclaim; and the government can exercise no power except such as
+substantially the whole people (through a jury) consent that it may
+exercise.
+
+
+SECTION II.
+
+The force and justice of the preceding argument cannot be evaded by
+saying that the government is chosen by the people; that, in theory, it
+represents the people; that it is designed to do the will of the people;
+that its members are all sworn to observe the fundamental or
+constitutional law instituted by the people; that its acts are therefore
+entitled to be considered the acts of the people; and that to allow a
+jury, representing the people, to invalidate the acts of the government,
+would therefore be arraying the people against themselves.
+
+There are two answers to such an argument.
+
+One answer is, that, in a representative government, there is no
+absurdity or contradiction, nor any arraying of the people against
+themselves, in requiring that the statutes or enactments of the
+government shall pass the ordeal of any number of separate tribunals,
+before it shall be determined that they are to have the force of laws.
+Our American constitutions have provided five of these separate
+tribunals, to wit, representatives, senate, executive,[2] jury, and
+judges; and have made it necessary that each enactment shall pass the
+ordeal of all these separate tribunals, before its authority can be
+established by the punishment of those who choose to transgress it. And
+there is no more absurdity or inconsistency in making a jury one of
+these several tribunals, than there is in making the representatives, or
+the senate, or the executive, or the judges, one of them. There is no
+more absurdity in giving a jury a veto upon the laws, than there is in
+giving a veto to each of these other tribunals. The people are no more
+arrayed against themselves, when a jury puts its veto upon a statute,
+which the other tribunals have sanctioned, than they are when the same
+veto is exercised by the representatives, the senate, the executive, or
+the judges.
+
+But another answer to the argument that the people are arrayed against
+themselves, when a jury hold an enactment of the government invalid, is,
+that the government, and all the departments of the government, _are
+merely the servants and agents of the people_; not invested with
+arbitrary or absolute authority to bind the people, but required to
+submit all their enactments to the judgment of a tribunal more fairly
+representing the whole people, before they carry them into execution, by
+punishing any individual for transgressing them. If the government were
+not thus required to submit their enactments to the judgment of "the
+country," before executing them upon individuals--if, in other words,
+the people had reserved to themselves no veto upon the acts of the
+government, the government, instead of being a mere servant and agent of
+the people, would be an absolute despot over the people. It would have
+all power in its own hands; because the power to _punish_ carries all
+other powers with it. A power that can, of itself, and by its own
+authority, punish disobedience, can compel obedience and submission, and
+is above all responsibility for the character of its laws. In short, it
+is a despotism.
+
+And it is of no consequence to inquire how a government came by this
+power to punish, whether by prescription, by inheritance, by usurpation,
+or by delegation from the people? _If it have now but got it_, the
+government is absolute.
+
+It is plain, therefore, that if the people have invested the government
+with power to make laws that absolutely bind the people, and to punish
+the people for transgressing those laws, the people have surrendered
+their liberties unreservedly into the hands of the government.
+
+It is of no avail to say, in answer to this view of the case, that in
+surrendering their liberties into the hands of the government, the
+people took an oath from the government, that it would exercise its
+power within certain constitutional limits; for when did oaths ever
+restrain a government that was otherwise unrestrained? Or when did a
+government fail to determine that all its acts were within the
+constitutional and authorized limits of its power, if it were permitted
+to determine that question for itself?
+
+Neither is it of any avail to say, that, if the government abuse its
+power, and enact unjust and oppressive laws, the government may be
+changed by the influence of discussion, and the exercise of the right of
+suffrage. Discussion can do nothing to prevent the enactment, or procure
+the repeal, of unjust laws, unless it be understood that the discussion
+is to be followed by resistance. Tyrants care nothing for discussions
+that are to end only in discussion. Discussions, which do not interfere
+with the enforcement of their laws, are but idle wind to them. Suffrage
+is equally powerless and unreliable. It can be exercised only
+periodically; and the tyranny must at least be borne until the time for
+suffrage comes. Besides, when the suffrage is exercised, it gives no
+guaranty for the repeal of existing laws that are oppressive, and no
+security against the enactment of new ones that are equally so. The
+second body of legislators are liable and likely to be just as
+tyrannical as the first. If it be said that the second body may be
+chosen for their integrity, the answer is, that the first were chosen
+for that very reason, and yet proved tyrants. The second will be exposed
+to the same temptations as the first, and will be just as likely to
+prove tyrannical. Who ever heard that succeeding legislatures were, on
+the whole, more honest than those that preceded them? What is there in
+the nature of men or things to make them so? If it be said that the first
+body were chosen from motives of injustice, that fact proves that there is
+a portion of society who desire to establish injustice; and if they were
+powerful or artful enough to procure the election of their instruments to
+compose the first legislature, they will be likely to be powerful or
+artful enough to procure the election of the same or similar instruments
+to compose the second. The right of suffrage, therefore, and even a change
+of legislators, guarantees no change of legislation--certainly no change
+for the better. Even if a change for the better actually comes, it comes
+too late, because it comes only after more or less injustice has been
+irreparably done.
+
+But, at best, the right of suffrage can be exercised only periodically;
+and between the periods the legislators are wholly irresponsible. No
+despot was ever more entirely irresponsible than are republican
+legislators during the period for which they are chosen. They can
+neither be removed from their office, nor called to account while in
+their office, nor punished after they leave their office, be their
+tyranny what it may. Moreover, the judicial and executive departments of
+the government are equally irresponsible _to the people_, and are only
+responsible, (by impeachment, and dependence for their salaries), to
+these irresponsible legislators. This dependence of the judiciary and
+executive upon the legislature is a guaranty that they will always
+sanction and execute its laws, whether just or unjust. Thus the
+legislators hold the whole power of the government in their hands, and
+are at the same time utterly irresponsible for the manner in which they
+use it.
+
+If, now, this government, (the three branches thus really united in
+one), can determine the validity of, and enforce, its own laws, it is,
+for the time being, entirely absolute, and wholly irresponsible to the
+people.
+
+But this is not all. These legislators, and this government, so
+irresponsible while in power, can perpetuate their power at pleasure, if
+they can determine what legislation is authoritative upon the people,
+and can enforce obedience to it; for they can not only declare their
+power perpetual, but they can enforce submission to all legislation that
+is necessary to secure its perpetuity. They can, for example, prohibit
+all discussion of the rightfulness of their authority; forbid the use of
+the suffrage; prevent the election of any successors; disarm, plunder,
+imprison, and even kill all who refuse submission. If, therefore, the
+government (all departments united) be absolute for a day--that is, if
+it can, for a day, enforce obedience to its own laws--it can, in that
+day, secure its power for all time--like the queen, who wished to reign
+but for a day, but in that day caused the king, her husband, to be
+slain, and usurped his throne.
+
+Nor will it avail to say that such acts would be unconstitutional, and
+that unconstitutional acts may be lawfully resisted; for everything a
+government pleases to do will, of course, be determined to be
+constitutional, if the government itself be permitted to determine the
+question of the constitutionality of its own acts. Those who are capable
+of tyranny, are capable of perjury to sustain it.
+
+The conclusion, therefore, is, that any government, that can, _for a
+day_, enforce its own laws, without appealing to the people, (or to a
+tribunal fairly representing the people,) for their consent, is, in
+theory, an absolute government, irresponsible to the people, and can
+perpetuate its power at pleasure.
+
+The trial by jury is based upon a recognition of this principle, and
+therefore forbids the government to execute any of its laws, by
+punishing violators, in any case whatever, without first getting the
+consent of "the country," or the people, through a jury. In this way,
+the people, at all times, hold their liberties in their own hands, and
+never surrender them, even for a moment, into the hands of the
+government.
+
+The trial by jury, then, gives to any and every individual the liberty,
+at any time, to disregard or resist any law whatever of the government,
+if he be willing to submit to the decision of a jury, the questions,
+whether the law be intrinsically just and obligatory? and whether his
+conduct, in disregarding or resisting it, were right in itself? And any
+law, which does not, in such trial, obtain the unanimous sanction of
+twelve men, taken at random from the people, and judging according to
+the standard of justice in their own minds, free from all dictation and
+authority of the government, may be transgressed and resisted with
+impunity, by whomsoever pleases to transgress or resist it.[3]
+
+The trial by jury authorizes all this, or it is a sham and a hoax,
+utterly worthless for protecting the people against oppression. If it do
+not authorize an individual to resist the first and least act of
+injustice or tyranny, on the part of the government, it does not
+authorize him to resist the last and the greatest. If it do not
+authorize individuals to nip tyranny in the bud, it does not authorize
+them to cut it down when its branches are filled with the ripe fruits of
+plunder and oppression.
+
+Those who deny the right of a jury to protect an individual in resisting
+an unjust law of the government, deny him all _legal_ defence
+whatsoever against oppression. The right of revolution, which tyrants,
+in mockery, accord to mankind, is no _legal_ right _under_ a government;
+it is only a _natural_ right to overturn a government. The government
+itself never acknowledges this right. And the right is practically
+established only when and because the government no longer exists to
+call it in question. The right, therefore, can be exercised with
+impunity, only when it is exercised victoriously. All _unsuccessful_
+attempts at revolution, however justifiable in themselves, are punished
+as treason, if the government be permitted to judge of the treason. The
+government itself never admits the injustice of its laws, as a legal
+defence for those who have attempted a revolution, and failed. The right
+of revolution, therefore, is a right of no practical value, except for
+those who are stronger than the government. So long, therefore, as the
+oppressions of a government are kept within such limits as simply not to
+exasperate against it a power greater than its own, the right of
+revolution cannot be appealed to, and is therefore inapplicable to the
+case. This affords a wide field for tyranny; and if a jury cannot _here_
+intervene, the oppressed are utterly defenceless.
+
+It is manifest that the only security against the tyranny of the
+government lies in forcible resistance to the execution of the
+injustice; because the injustice will certainly be executed, _unless it
+be forcibly resisted_. And if it be but suffered to be executed, it must
+then be borne; for the government never makes compensation for its own
+wrongs.
+
+Since, then, this forcible resistance to the injustice of the government
+is the only possible means of preserving liberty, it is indispensable to
+all _legal_ liberty that this _resistance_ should be _legalized_. It is
+perfectly self-evident that where there is no _legal_ right to resist
+the oppression of the government, there can be no _legal_ liberty. And
+here it is all-important to notice, that, _practically speaking_, there
+can be no _legal_ right to resist the oppressions of the government,
+unless there be some _legal_ tribunal, other than the government, and
+wholly independent of, and _above_, the government, to judge between the
+government and those who resist its oppressions; in other words, to
+judge what laws of the government are to be obeyed, and what may be
+resisted and held for nought. The only tribunal known to our laws, for
+this purpose, is a jury. If a jury have not the right to judge between
+the government and those who disobey its laws, and resist its
+oppressions, the government is absolute, and the people, _legally
+speaking_, are slaves. Like many other slaves they may have sufficient
+courage and strength to keep their masters somewhat in check; but they
+are nevertheless _known to the law_ only as slaves.
+
+That this right of resistance was recognized as a common law right, when
+the ancient and genuine trial by jury was in force, is not only proved
+by the nature of the trial itself, but is acknowledged by history.[4]
+
+This right of resistance is recognized by the constitution of the United
+States, as a strictly legal and constitutional right. It is so
+recognized, first by the provision that "the trial of all crimes, except
+in cases of impeachment, shall be by jury"--that is, by the country--and
+not by the government; secondly, by the provision that "the right of the
+people to keep and bear arms shall not be infringed." This
+constitutional security for "the right to keep and bear arms," implies
+the right to use them--as much as a constitutional security for the
+right to buy and keep food would have implied the right to eat it. The
+constitution, therefore, takes it for granted that the people will
+judge of the conduct of the government, and that, as they have the
+right, they will also have the sense, to use arms, whenever the
+necessity of the case justifies it. And it is a sufficient and _legal_
+defence for a person accused of using arms against the government, if he
+can show, to the satisfaction of a jury, _or even any one of a jury_,
+that the law he resisted was an unjust one.
+
+In the American _State_ constitutions also, this right of resistance to
+the oppressions of the government is recognized, in various ways, as a
+natural, legal, and constitutional right. In the first place, it is so
+recognized by provisions establishing the trial by jury; thus requiring
+that accused persons shall be tried by "the country," instead of the
+government. In the second place, it is recognized by many of them, as,
+for example, those of Massachusetts, Maine, Vermont, Connecticut,
+Pennsylvania, Ohio, Indiana, Michigan, Kentucky, Tennessee, Arkansas,
+Mississippi, Alabama, and Florida, by provisions expressly declaring
+that the people shall have the right to bear arms. In many of them also,
+as, for example, those of Maine, New Hampshire, Vermont, Massachusetts,
+New Jersey, Pennsylvania, Delaware, Ohio, Indiana, Illinois, Florida,
+Iowa, and Arkansas, by provisions, in their bills of rights, declaring
+that men have a natural, inherent, and inalienable right of "_defending_
+their lives and liberties." This, of course, means that they have a
+right to defend them against any injustice _on the part of the
+government_, and not merely on the part of private individuals; because
+the object of all bills of rights is to assert the rights of individuals
+and the people, _as against the government_, and not as against private
+persons. It would be a matter of ridiculous supererogation to assert, in
+a constitution of government, the natural right of men to defend their
+lives and liberties against private trespassers.
+
+Many of these bills of rights also assert the natural right of all men
+to protect their property--that is, to protect it _against the
+government_. It would be unnecessary and silly indeed to assert, in a
+constitution of government, the natural right of individuals to protect
+their property against thieves and robbers.
+
+The constitutions of New Hampshire and Tennessee also declare that "The
+doctrine of non-resistance against arbitrary power and oppression is
+absurd, slavish, and destructive of the good and happiness of mankind."
+
+The legal effect of these constitutional recognitions of the right of
+individuals to defend their property, liberties, and lives, against the
+government, is to legalize resistance to all injustice and oppression,
+of every name and nature whatsoever, on the part of the government.
+
+But for this right of resistance, on the part of the people, all
+governments would become tyrannical to a degree of which few people are
+aware. Constitutions are utterly worthless to restrain the tyranny of
+governments, unless it be understood that the people will, by force,
+compel the government to keep within the constitutional limits.
+Practically speaking, no government knows any limits to its power,
+except the endurance of the people. But that the people are stronger
+than the government, and will resist in extreme cases, our governments
+would be little or nothing else than organized systems of plunder and
+oppression. All, or nearly all, the advantage there is in fixing any
+constitutional limits to the power of a government, is simply to give
+notice to the government of the point at which it will meet with
+resistance. If the people are then as good as their word, they may keep
+the government within the bounds they have set for it; otherwise it will
+disregard them--as is proved by the example of all our American
+governments, in which the constitutions have all become obsolete, at the
+moment of their adoption, for nearly or quite all purposes except the
+appointment of officers, who at once become practically absolute, except
+so far as they are restrained by the fear of popular resistance.
+
+The bounds set to the power of the government, by the trial by jury, as
+will hereafter be shown, are these--that the government shall never
+touch the property, person, or natural or civil rights of an individual,
+against his consent, (except for the purpose of bringing them before a
+jury for trial,) unless in pursuance and _execution_ of a judgment, or
+decree, rendered by a jury in each individual case, upon such evidence,
+and such law, as are satisfactory to their own understandings and
+consciences, irrespective of all legislation of the government.
+
+[Footnote 1: To show that this supposition is not an extravagant one, it
+may be mentioned that courts have repeatedly questioned jurors to
+ascertain whether they were prejudiced _against the government_--that
+is, whether they were in favor of, or opposed to, such laws of the
+government as were to be put in issue in the then pending trial. This
+was done (in 1851) in the United States District Court for the District
+of Massachusetts, by Peleg Sprague, the United States district judge, in
+empanelling three several juries for the trials of Scott, Hayden, and
+Morris, charged with having aided in the rescue of a fugitive slave from
+the custody of the United States deputy marshal. This judge caused the
+following question to be propounded to all the jurors separately; and
+those who answered unfavorably for the purposes of the government, were
+excluded from the panel.
+
+   "Do you hold any opinions upon the subject of the Fugitive Slave Law,
+   so called, which will induce you to refuse to convict a person
+   indicted under it, if the facts set forth in the indictment, _and
+   constituting the offence_, are proved against him, and the court
+   direct you that the law is constitutional?"
+
+The reason of this question was, that "the Fugitive Slave Law, so
+called," was so obnoxious to a large portion of the people, as to render
+a conviction under it hopeless, if the jurors were taken
+indiscriminately from among the people.
+
+A similar question was soon afterwards propounded to the persons drawn
+as jurors in the United States _Circuit_ Court for the District of
+Massachusetts, by Benjamin R. Curtis one of the Justices of the Supreme
+Court of the United States, in empanelling a jury for the trial of the
+aforesaid Morris on the charge before mentioned; and those who did not
+answer the question favorably for the government were again excluded
+from the panel.
+
+It has also been an habitual practice with the Supreme Court of
+Massachusetts, in empanelling juries for the trial of _capital_
+offences, to inquire of the persons drawn as jurors whether they had any
+conscientious scruples against finding verdicts of guilty in such cases;
+that is, whether they had any conscientious scruples against sustaining
+the law prescribing death as the punishment of the crime to be tried;
+and to exclude from the panel all who answered in the affirmative.
+
+The only principle upon which these questions are asked, is this--that
+no man shall be allowed to serve as juror, unless he be ready to enforce
+any enactment of the government, however cruel or tyrannical it may be.
+
+What is such a jury good for, as a protection against the tyranny of the
+government? A jury like that is palpably nothing but a mere tool of
+oppression in the hands of the government. A trial by such a jury is
+really a trial by the government itself--and not a trial by the
+country--because it is a trial only by men specially selected by the
+government for their readiness to enforce its own tyrannical measures.
+
+If that be the true principle of the trial by jury, the trial is utterly
+worthless as a security to liberty. The Czar might, with perfect safety
+to his authority, introduce the trial by jury into Russia, if he could
+but be permitted to select his jurors from those who were ready to
+maintain his laws, without regard to their injustice.
+
+This example is sufficient to show that the very pith of the trial by
+jury, as a safeguard to liberty, consists in the jurors being taken
+indiscriminately from the whole people, and in their right to hold
+invalid all laws which they think unjust.]
+
+[Footnote 2: The executive has a qualified veto upon the passage of
+laws, in most of our governments, and an absolute veto, in all of them,
+upon the execution of any laws which he deems unconstitutional; because
+his oath to support the constitution (as he understands it) forbids him
+to execute any law that he deems unconstitutional.]
+
+[Footnote 3: And if there be so much as a reasonable _doubt_ of the
+justice of the laws, the benefit of that doubt must be given to the
+defendant, and not to the government. So that the government must keep
+its laws _clearly_ within the limits of justice, if it would ask a jury
+to enforce them.]
+
+[Footnote 4: _Hallam_ says, "The relation established between a lord and
+his vassal by the feudal tenure, far from containing principles of any
+servile and implicit obedience, permitted the compact to be dissolved in
+case of its violation by either party. This extended as much to the
+sovereign as to inferior lords. * * If a vassal was aggrieved, and if
+justice was denied him, he sent a defiance, that is, a renunciation of
+fealty to the king, and was entitled to enforce redress at the point of
+his sword. It then became a contest of strength as between two
+independent potentates, and was terminated by treaty, advantageous or
+otherwise, according to the fortune of war. * * There remained the
+original principle, that allegiance depended conditionally upon good
+treatment, and that an appeal might be _lawfully_ made to arms against
+an oppressive government. Nor was this, we may be sure, left for extreme
+necessity, or thought to require a long-enduring forbearance. In modern
+times, a king, compelled by his subjects' swords to abandon any
+pretension, would be supposed to have ceased to reign; and the express
+recognition of such a right as that of insurrection has been justly
+deemed inconsistent with the majesty of law. But ruder ages had ruder
+sentiments. Force was necessary to repel force; and men accustomed to
+see the king's authority defied by a private riot, were not much shocked
+when it was resisted in defence of public freedom."--_3 Middle Ages_,
+240-2.]
+
+
+
+
+CHAPTER II.
+
+THE TRIAL BY JURY, AS DEFINED BY MAGNA CARTA.
+
+
+That the trial by jury is all that has been claimed for it in the
+preceding chapter, is proved both by the history and the language of the
+Great Charter of English Liberties, to which we are to look for a true
+definition of the trial by jury, and of which the guaranty for that
+trial is the vital, and most memorable, part.
+
+
+SECTION I.
+
+_The History of Magna Carta._
+
+In order to judge of the object and meaning of that chapter of Magna
+Carta which secures the trial by jury, it is to be borne in mind that,
+at the time of Magna Carta, the king (with exceptions immaterial to this
+discussion, but which will appear hereafter) was, constitutionally, the
+entire government; the sole _legislative_, _judicial_, and executive
+power of the nation. The executive and judicial officers were merely his
+servants, appointed by him, and removable at his pleasure. In addition
+to this, "the king himself often sat in his court, which always attended
+his person. He there heard causes, and pronounced judgment; and though
+he was assisted by the advice of other members, it is not to be imagined
+that a decision could be obtained contrary to his inclination or
+opinion."[5] Judges were in those days, and afterwards, such abject
+servants of the king, that "we find that King Edward I. (1272 to 1307)
+fined and imprisoned his judges, in the same manner as Alfred the Great,
+among the Saxons, had done before him, by the sole exercise of his
+authority."[6]
+
+Parliament, so far as there was a parliament, was a mere _council_ of
+the king.[7] It assembled only at the pleasure of the king; sat only
+during his pleasure; and when sitting had no power, so far as _general_
+legislation was concerned, beyond that of simply _advising_ the king.
+The only legislation to which their assent was constitutionally
+necessary, was demands for money and military services for
+_extraordinary_ occasions. Even Magna Carta itself makes no provisions
+whatever for any parliaments, except when the king should want means to
+carry on war, or to meet some other _extraordinary_ necessity.[8] He had
+no need of parliaments to raise taxes for the _ordinary_ purposes of
+government; for his revenues from the rents of the crown lands and other
+sources, were ample for all except extraordinary occasions. Parliaments,
+too, when assembled, consisted only of bishops, barons, and other great
+men of the kingdom, unless the king chose to invite others.[9] There was
+no House of Commons at that time, and the people had no right to be
+heard, unless as petitioners.[10]
+
+Even when laws were made at the time of a parliament, they were made in
+the name of the king alone. Sometimes it was inserted in the laws, that
+they were made with the _consent_ or _advice_ of the bishops, barons,
+and others assembled; but often this was omitted. Their consent or
+advice was evidently a matter of no legal importance to the enactment or
+validity of the laws, but only inserted, when inserted at all, with a
+view of obtaining a more willing submission to them on the part of the
+people. The style of enactment generally was, either "_The King wills
+and commands_," or some other form significant of the sole legislative
+authority of the king. The king could pass laws at any time when it
+pleased him. The presence of a parliament was wholly unnecessary. Hume
+says, "It is asserted by Sir Harry Spelman, as an undoubted fact, that,
+during the reigns of the Norman princes, every order of the king, issued
+with the consent of his privy council, had the full force of law."[11]
+And other authorities abundantly corroborate this assertion.[12]
+
+The king was, therefore, constitutionally the government; and the only
+legal limitation upon his power seems to have been simply the _Common
+Law_, usually called "_the law of the land_," which he was bound by oath
+to maintain; (which oath had about the same practical value as similar
+oaths have always had.) This "law of the land" seems not to have been
+regarded at all by many of the kings, except so far as they found it
+convenient to do so, or were constrained to observe it by the fear of
+arousing resistance. But as all people are slow in making resistance,
+oppression and usurpation often reached a great height; and, in the case
+of John, they had become so intolerable as to enlist the nation almost
+universally against him; and he was reduced to the necessity of
+complying with any terms the barons saw fit to dictate to him.
+
+It was under these circumstances, that the Great Charter of English
+Liberties was granted. The barons of England, sustained by the common
+people, having their king in their power, compelled him, as the price of
+his throne, to pledge himself that he would punish no freeman for a
+violation of any of his laws, unless with the consent of the peers--that
+is, the equals--of the accused.
+
+The question here arises, Whether the barons and people intended that
+those peers (the jury) should be mere puppets in the hands of the king,
+exercising no opinion of their own as to the intrinsic merits of the
+accusations they should try, or the _justice_ of the laws they should be
+called on to enforce? Whether those haughty and victorious barons, when
+they had their tyrant king at their feet, gave back to him his throne,
+with full power to enact any tyrannical laws he might please, reserving
+only to a jury ("the country") the contemptible and servile privilege of
+ascertaining, (under the dictation of the king, or his judges, as to the
+laws of evidence), the simple _fact_ whether those laws had been
+transgressed? Was this the only restraint, which, when they had all
+power in their hands, they placed upon the tyranny of a king, whose
+oppressions they had risen in arms to resist? Was it to obtain such a
+charter as that, that the whole nation had united, as it were, like one
+man, against their king? Was it on such a charter that they intended to
+rely, for all future time, for the security of their liberties? No. They
+were engaged in no such senseless work as that. On the contrary, when
+they required him to renounce forever the power to punish any freeman,
+unless by the consent of his peers, they intended those peers should
+judge of, and try, the whole case on its merits, independently of all
+arbitrary legislation, or judicial authority, on the part of the king.
+In this way they took the liberties of each individual--and thus the
+liberties of the whole people--entirely out of the hands of the king,
+and out of the power of his laws, and placed them in the keeping of the
+people themselves. And this it was that made the trial by jury the
+palladium of their liberties.
+
+The trial by jury, be it observed, was the only real barrier interposed
+by them against absolute despotism. Could this trial, then, have been
+such an entire farce as it necessarily must have been, if the jury had
+had no power to judge of the justice of the laws the people were
+required to obey? Did it not rather imply that the jury were to judge
+independently and fearlessly as to everything involved in the charge,
+and especially as to its intrinsic justice, and thereon give their
+decision, (unbiased by any legislation of the king,) whether the accused
+might be punished? The reason of the thing, no less than the historical
+celebrity of the events, as securing the liberties of the people, and
+the veneration with which the trial by jury has continued to be
+regarded, notwithstanding its essence and vitality have been almost
+entirely extracted from it in practice, would settle the question, if
+other evidences had left the matter in doubt.
+
+Besides, if his laws were to be authoritative with the jury, why should
+John indignantly refuse, as at first he did, to grant the charter, (and
+finally grant it only when brought to the last extremity,) on the ground
+that it deprived him of all power, and left him only the name of a king?
+_He_ evidently understood that the juries were to veto his laws, and
+paralyze his power, at discretion, by forming their own opinions as to
+the true character of the offences they were to try, and the laws they
+were to be called on to enforce; and that "_the king wills and
+commands_" was to have no weight with them contrary to their own
+judgments of what was intrinsically right.[13]
+
+The barons and people having obtained by the charter all the liberties
+they had demanded of the king, it was further provided by the charter
+itself that twenty-five barons should be appointed by the barons, out of
+their number, to keep special vigilance in the kingdom to see that the
+charter was observed, with authority to make war upon the king in case
+of its violation. The king also, by the charter, so far absolved all the
+people of the kingdom from their allegiance to him, as to authorize and
+require them to swear to obey the twenty-five barons, in case they
+should make war upon the king for infringement of the charter. It was
+then thought by the barons and people, that something substantial had
+been done for the security of their liberties.
+
+This charter, in its most essential features, and without any abatement
+as to the trial by jury, has since been confirmed more than thirty
+times; and the people of England have always had a traditionary idea
+that it was of some value as a guaranty against oppression. Yet that
+idea has been an entire delusion, unless the jury have had the right to
+judge of the justice of the laws they were called on to enforce.
+
+
+SECTION II.
+
+_The Language of Magna Carta._
+
+The language of the Great Charter establishes the same point that is
+established by its history, viz., that it is the right and duty of the
+jury to judge of the justice of the laws.
+
+The chapter guaranteeing the trial by jury is in these words:
+
+   "Nullus liber homo capiatur, vel imprisonetur, aut disseisetur, aut
+   utlagetur, aut exuletur, aut aliquo modo destruatur; nec super eum
+   ibimus, nec super eum mittemus, nisi per legale judicium parium
+   suorum, vel per legem terræ."[14]
+
+The corresponding chapter in the Great Charter, granted by Henry III.,
+(1225,) and confirmed by Edward I., (1297,) (which charter is now
+considered the basis of the English laws and constitution,) is in nearly
+the same words, as follows:
+
+   "Nullus liber homo capiatur, vel imprisonetur, aut disseisetur de
+   libero tenemento, vel libertatibus, vel liberis consuetudinibus suis,
+   aut utlagetur, aut exuletur, aut aliquo modo destruatur, nec super
+   eum ibimus, nec super eum mittemus, nisi per legale judicium parium
+   suorum, vel per legem terræ."
+
+The most common translation of these words, at the present day, is as
+follows:
+
+   "No freeman shall be arrested, or imprisoned, or deprived of his
+   freehold, or his liberties, or free customs, or outlawed, or exiled,
+   or in any manner destroyed, _nor will we (the king) pass upon him,
+   nor condemn him_, unless by the judgment of his peers, or the law of
+   the land."
+
+   "_Nec super eum ibimus, nec super eum mittemus._"
+
+There has been much confusion and doubt as to the true meaning of the
+words, "_nec super eum ibimus, nec super eum mittemus_." The more common
+rendering has been, "_nor will we pass upon him, nor condemn him_." But
+some have translated them to mean, "_nor will we pass upon him, nor
+commit him to prison_." Coke gives still a different rendering, to the
+effect that "No man shall be condemned at the king's suit, either before
+the king in his bench, nor before any other commissioner or judge
+whatsoever."[15]
+
+But all these translations are clearly erroneous. In the first place,
+"_nor will we pass upon him_,"--meaning thereby to decide upon his guilt
+or innocence _judicially_--is not a correct rendering of the words,
+"_nec super eum ibimus_." There is nothing whatever, in these latter
+words, that indicates _judicial_ action or opinion at all. The words, in
+their common signification, describe _physical_ action alone. And the
+true translation of them, as will hereafter be seen, is, _"nor will we
+proceed against him," executively_.
+
+In the second place, the rendering, "_nor will we condemn him_," bears
+little or no analogy to any common, or even uncommon, signification of
+the words "_nec super eum mittemus_." There is nothing in these latter
+words that indicates _judicial_ action or decision. Their common
+signification, like that of the words _nec super eum ibimus_, describes
+_physical_ action alone. "_Nor will we send upon (or against) him_,"
+would be the most obvious translation, and, as we shall hereafter see,
+such is the true translation.
+
+But although these words describe _physical_ action, on the part of the
+king, as distinguished from judicial, they nevertheless do not mean, as
+one of the translations has it, "_nor will we commit him to prison_;"
+for that would be a mere repetition of what had been already declared by
+the words "_nec imprisonetur_." Besides, there is nothing about prisons
+in the words "_nec super eum mittemus_;" nothing about sending _him_
+anywhere; but only about sending (something or somebody) _upon_ him, or
+_against_ him--that is, _executively_.
+
+Coke's rendering is, if possible, the most absurd and gratuitous of all.
+What is there in the words, "_nec super eum mittemus_" that can be made
+to mean "_nor shall he be condemned before any other commissioner or
+judge whatsoever_?" Clearly there is nothing. The whole rendering is a
+sheer fabrication. And the whole object of it is to give color for the
+exercise of a _judicial_ power, by the king, or his judges, which is
+nowhere given them.
+
+Neither the words, "_nec super eum ibimus, nec super eum mittemus_," nor
+any other words in the whole chapter, authorize, provide for, describe,
+or suggest, any _judicial_ action whatever, on the part either of the
+king, or of his judges, or of anybody, _except the peers, or jury_.
+There is nothing about the king's _judges_ at all. And there is nothing
+whatever, in the whole chapter, _so far as relates to the action of the
+king_, that describes or suggests anything but _executive_ action.[16]
+
+But that all these translations are certainly erroneous, is proved by a
+temporary charter, granted by John a short time previous to the Great
+Charter, for the purpose of giving an opportunity for conference,
+arbitration, and reconciliation between him and his barons. It was to
+have force until the matters in controversy between them could be
+submitted to the Pope, and to other persons to be chosen, some by the
+king, and some by the barons. The words of the charter are as follows:
+
+"Sciatis nos concessisse baronibus nostris qui contra nos sunt quod nec
+eos nec homines suos capiemus, nec disseisiemus _nec super eos per vim
+vel per arma ibimus_ nisi per legem regni nostri vel per judicium parium
+suorum in curia nostra donec consideratio facta fuerit," &c., &c.
+
+That is, "Know that we have granted to our barons who are opposed to us,
+that we will neither arrest them nor their men, nor disseize them, _nor
+will we proceed against them by force or by arms_, unless by the law of
+our kingdom, or by the judgment of their peers in our court, until
+consideration shall be had," &c., &c.
+
+A copy of this charter is given in a note in Blackstone's Introduction
+to the Charters.[17]
+
+Mr. Christian speaks of this charter as settling the true meaning of the
+corresponding clause of Magna Carta, on the principle that laws and
+charters on the same subject are to be construed with reference to each
+other. See _3 Christian's Blackstone_, 41, _note_.
+
+The true meaning of the words, _nec super eum ibimus, nec super eum
+mittemus_, is also proved by the "_Articles of the Great Charter of
+Liberties_," demanded of the king by the barons, and agreed to by the
+king, under seal, a few days before the date of the Charter, and from
+which the Charter was framed.[18] Here the words used are these:
+
+   "Ne corpus liberi hominis capiatur nec imprisonetur nec disseisetur
+   nec utlagetur nec exuletur nec aliquo modo destruatur _nec rex eat
+   vel mittat super eum vi_ nisi per judicium parium suorum vel per
+   legem terræ."
+
+   That is, "The body of a freeman shall not be arrested, nor
+   imprisoned, nor disseized, nor outlawed, nor exiled, nor in any
+   manner destroyed, _nor shall the king proceed or send (any one)
+   against him_ WITH FORCE, unless by the judgment of his peers, or the
+   law of the land."
+
+The true translation of the words _nec super eum ibimus, nec super eum
+mittemus_, in Magna Carta, is thus made certain, as follows, "_nor will
+we (the king) proceed against him, nor send (any one) against him_ WITH
+FORCE OR ARMS."[19]
+
+It is evident that the difference between the true and false
+translations of the words, _nec super eum ibimus, nec super eum
+mittemus_, is of the highest legal importance, inasmuch as the true
+translation, _nor will we (the king) proceed against him, nor send (any
+one) against him by force or arms_, represents the king only in an
+_executive_ character, _carrying the judgment of the peers and "the law
+of the land" into execution_; whereas the false translation, _nor will
+we pass upon him, nor condemn him_, gives color for the exercise of a
+_judicial_ power, on the part of the king, to which the king had no
+right, but which, according to the true translation, belongs wholly to
+the jury.
+
+   "_Per legale judicium parium suorum._"
+
+The foregoing interpretation is corroborated, (if it were not already
+too plain to be susceptible of corroboration,) by the true
+interpretation of the phrase "_per legale judicium parium suorum_."
+
+In giving this interpretation, I leave out, for the present, the word
+_legale_, which will be defined afterwards.
+
+The true meaning of the phrase, _per judicium parium suorum_, is,
+_according to the sentence of his peers_. The word _judicium, judgment_,
+has a technical meaning in the law, signifying the decree rendered in
+the decision of a cause. In civil suits this decision is called a
+_judgment_; in chancery proceedings it is called a _decree_; in criminal
+actions it is called a _sentence_, or _judgment_, indifferently. Thus,
+in a criminal suit, "a motion in arrest of _judgment_" means a motion in
+arrest of _sentence_.[20]
+
+In cases of sentence, therefore, in criminal suits, the words _sentence_
+and _judgment_ are synonymous terms. They are, to this day, commonly
+used in law books as synonymous terms. And the phrase _per judicium
+parium suorum_, therefore, implies that the jury are to fix the
+sentence.
+
+The word _per_ means _according to_. Otherwise there is no sense in the
+phrase _per judicium parium suorum_. There would be no sense in saying
+that a king might imprison, disseize, outlaw, exile, or otherwise punish
+a man, or proceed against him, or send any one against him, _by force or
+arms, by_ a judgment of his peers; but there is sense in saying that the
+king may imprison, disseize, and punish a man, or proceed against him,
+or send any one against him, by force or arms, _according to_ a
+judgment, or _sentence_, of his peers; because in that case the king
+would be merely carrying the sentence or judgment of the peers into
+execution.
+
+The word _per_, in the phrase "_per_ judicium parium suorum," of course
+means precisely what it does in the next phrase, "_per_ legem terræ;"
+where it obviously means _according to_, and not _by_, as it is usually
+translated. There would be no sense in saying that the king might
+proceed against a man by force or arms, _by_ the law of the land; but
+there is sense in saying that he may proceed against him, by force or
+arms, _according to_ the law of the land; because the king would then be
+acting only as an executive officer, carrying the law of the land into
+execution. Indeed, the true meaning of the word _by_, as used in similar
+cases now, always is _according to_; as, for example, when we say a
+thing was done by the government, or by the executive, _by law_, we mean
+only that it was done by them _according to law_; that is, that they
+merely executed the law.
+
+Or, if we say that the word _by_ signifies _by authority of_, the result
+will still be the same; for nothing can be done _by authority of_ law,
+except what the law itself authorizes or directs to be done; that is,
+nothing can be done by authority of law, except simply to carry the law
+itself into execution. So nothing could be done _by authority of_ the
+sentence of the peers, or _by authority of_ "the law of the land,"
+except what the sentence of the peers, or the law of the land,
+themselves authorized or directed to be done; nothing, in short, but to
+carry the sentence of the peers, or the law of the land, themselves into
+execution.
+
+Doing a thing _by_ law, or _according to_ law, is only carrying the law
+into execution. And punishing a man _by_, or _according to_, the
+sentence or judgment of his peers, is only carrying that sentence or
+judgment into execution.
+
+If these reasons could leave any doubt that the word _per_ is to be
+translated _according to_, that doubt would be removed by the terms of
+an antecedent guaranty for the trial by jury, granted by the Emperor
+Conrad, of Germany,[21] two hundred years before Magna Carta. Blackstone
+cites it as follows:--(_3 Blackstone_, 350.)
+
+"Nemo beneficium suum perdat, nisi _secundum_ consuetudinem antecessorum
+nostrorum, et judicium parium suorum." That is, No one shall lose his
+estate,[22] unless _according to_ ("_secundum_") the custom (or law) of
+our ancestors, and (_according to_) the sentence (or judgment) of his
+peers.
+
+The evidence is therefore conclusive that the phrase _per judicium
+parium suorum_ means _according to the sentence of his peers_; thus
+implying that the jury, and not the government, are to fix the sentence.
+
+If any additional proof were wanted that juries were to fix the
+sentence, it would be found in the following provisions of Magna Carta,
+viz.:
+
+   "A freeman shall not be amerced for a small crime, (_delicto_,) but
+   according to the degree of the crime; and for a great crime in
+   proportion to the magnitude of it, saving to him his
+   _contenement_;[23] and after the same manner a merchant, saving to
+   him his merchandise. And a villein shall be amerced after the same
+   manner, saving to him his waynage,[24] if he fall under our mercy;
+   _and none of the aforesaid amercements shall be imposed, (or
+   assessed, ponatur,) but by the oath of honest men of the
+   neighborhood. Earls and Barons shall not be amerced but by their
+   peers_, and according to the degree of their crime."[25]
+
+Pecuniary punishments were the most common punishments at that day, and
+the foregoing provisions of Magna Carta show that the amount of those
+punishments was to be fixed by the jury.
+
+Fines went to the king, and were a source of revenue; and if the amounts
+of the fines had been left to be fixed by the king, he would have had a
+pecuniary temptation to impose unreasonable and oppressive ones. So,
+also, in regard to other punishments than fines. If it were left to the
+king to fix the punishment, he might often have motives to inflict cruel
+and oppressive ones. As it was the object of the trial by jury to
+protect the people against all possible oppression from the king, it was
+necessary that the jury, and not the king, should fix the
+punishments.[26]
+
+"_Legale._"
+
+The word "_legale_," in the phrase "_per legale judicium parium
+suorum_," doubtless means two things. 1. That the sentence must be given
+in a legal manner; that is, by the legal number of jurors, legally
+empanelled and sworn to try the cause; and that they give their judgment
+or sentence after a legal trial, both in form and substance, has been
+had. 2. That the sentence shall be for a legal cause or offence. If,
+therefore, a jury should convict and sentence a man, either without
+giving him a legal trial, or for an act that was not really and legally
+criminal, the sentence itself would not be legal; and consequently this
+clause forbids the king to carry such a sentence into execution; for the
+clause guarantees that he will execute no judgment or sentence, except
+it be _legale judicium_, a legal sentence. Whether a sentence be a legal
+one, would have to be ascertained by the king or his judges, on appeal,
+or might be judged of informally by the king himself.
+
+The word "_legale_" clearly did not mean that the _judicium parium
+suorum_ (judgment of his peers) should be a sentence which any law (of
+the king) should _require_ the peers to pronounce; for in that case the
+sentence would not be the sentence of the peers, but only the sentence
+of the law, (that is, of the king); and the peers would be only a
+mouthpiece of the law, (that is, of the king,) in uttering it.
+
+   "_Per legem terræ._"
+
+One other phrase remains to be explained, viz., "_per legem terræ_,"
+"_by the law of the land_."
+
+All writers agree that this means the _common law_. Thus, Sir Matthew
+Hale says:
+
+   "The common law is sometimes called, by way of eminence, _lex terræ_,
+   as in the statute of _Magna Carta_, chap. 29, where certainly the
+   common law is principally intended by those words, _aut per legem
+   terræ_; as appears by the exposition thereof in several subsequent
+   statutes; and particularly in the statute of 28 Edward III., chap. 3,
+   which is but an exposition and explanation of that statute. Sometimes
+   it is called _lex Angliæ_, as in the statute of Merton, cap. 9,
+   "_Nolumus leges Angliæ mutari_," &c., (We will that the laws of
+   England be not changed). Sometimes it is called _lex et consuetudo
+   regni_ (the law and custom of the kingdom); as in all commissions of
+   oyer and terminer; and in the statutes of 18 Edward I., cap.--, and
+   _de quo warranto_, and divers others. But most commonly it is called
+   the Common Law, or the Common Law of England; as in the statute
+   _Articuli super Chartas_, cap. 15, in the statute 25 Edward III.,
+   cap. 5, (4,) and infinite more records and statutes."--1 _Hale's
+   History of the Common Law_, 128.
+
+This common law, or "law of the land," _the king was sworn to maintain_.
+This fact is recognized by a statute made at Westminster, in 1346, by
+Edward III., which commences in this manner:
+
+   "Edward, by the Grace of God, &c., &c., to the Sheriff of Stafford,
+   Greeting: Because that by divers complaints made to us, we have
+   perceived that _the law of the land, which we by oath are bound to
+   maintain_," &c.--_St. 20 Edward III._
+
+The foregoing authorities are cited to show to the unprofessional
+reader, what is well known to the profession, that _legem terræ, the law
+of the land_, mentioned in Magna Carta, was the common, ancient,
+fundamental law of the land, which the kings were bound by oath to
+observe; _and that it did not include any statutes or laws enacted by
+the king himself, the legislative power of the nation_.
+
+If the term _legem terræ_ had included laws enacted by the king himself,
+the whole chapter of Magna Carta, now under discussion, would have
+amounted to nothing as a protection to liberty; because it would have
+imposed no restraint whatever upon the power of the king. The king could
+make laws at any time, and such ones as he pleased. He could, therefore,
+have done anything he pleased, _by the law of the land_, as well as in
+any other way, if his own laws had been "_the law of the land_." If his
+own laws had been "the law of the land," within the meaning of that term
+as used in Magna Carta, this chapter of Magna Carta would have been
+sheer nonsense, inasmuch as the whole purport of it would have been
+simply that "no man shall be arrested, imprisoned, or deprived of his
+freehold, or his liberties, or free customs, or outlawed, or exiled, or
+in any manner destroyed (by the king); nor shall the king proceed
+against him, nor send any one against him with force and arms, unless by
+the judgment of his peers, _or unless the king shall please to do so_."
+
+This chapter of Magna Carta would, therefore, have imposed not the
+slightest restraint upon the power of the king, or afforded the
+slightest protection to the liberties of the people, if the laws of the
+king had been embraced in the term _legem terræ_. But if _legem terræ_
+was the common law, which the king was sworn to maintain, then a real
+restriction was laid upon his power, and a real guaranty given to the
+people for their liberties.
+
+Such, then, being the meaning of _legem terræ_, the fact is established
+that Magna Carta took an accused person entirely out of the hands of the
+legislative power, that is, of the king; and placed him in the power and
+under the protection of his peers, and the common law alone; that, in
+short, Magna Carta suffered no man to be punished for violating any
+enactment of the legislative power, unless the peers or equals of the
+accused freely consented to it, or the common law authorized it; that
+the legislative power, _of itself_, was wholly incompetent to _require_
+the conviction or punishment of a man for any offence whatever.
+
+_Whether Magna Carta allowed of any other trial than by jury._
+
+The question here arises, whether "_legem terræ_" did not allow of some
+other mode of trial than that by jury.
+
+The answer is, that, at the time of Magna Carta, it is not probable,
+(for the reasons given in the note,) that _legem terræ_ authorized, in
+criminal cases, any other trial than the trial by jury; but, if it did,
+it certainly authorized none but the trial by battle, the trial by
+ordeal, and the trial by compurgators. These were the only modes of
+trial, except by jury, that had been known in England, in criminal
+cases, for some centuries previous to Magna Carta. All of them had
+become nearly extinct at the time of Magna Carta, and it is not probable
+that they were included in "_legem terræ_" as that term is used in that
+instrument. But if they were included in it, they have now been long
+obsolete, and were such as neither this nor any future age will ever
+return to.[27] For all practical purposes of the present day,
+therefore, it may be asserted that Magna Carta allows no trial whatever
+but trial by jury.
+
+_Whether Magna Carta allowed sentence to be fixed otherwise than by the
+jury._
+
+Still another question arises on the words _legem terræ_, viz., whether,
+in cases where the question of guilt was determined by the jury, the
+amount of _punishment_ may not have been fixed by _legem terræ_, the
+Common Law, instead of its being fixed by the jury.
+
+I think we have no evidence whatever that, at the time of Magna Carta,
+or indeed at any other time, _lex terræ_, the common law, fixed the
+punishment in cases where the question of guilt was tried by a jury; or,
+indeed, that it did in any other case. Doubtless certain punishments
+were common and usual for certain offences; but I do not think it can be
+shown that the _common law_, the _lex terræ_, which the king was sworn
+to maintain, required any one specific punishment, or any precise amount
+of punishment, for any one specific offence. If such a thing be claimed,
+it must be shown, for it cannot be presumed. In fact, the contrary must
+be presumed, because, in the nature of things, the amount of punishment
+proper to be inflicted in any particular case, is a matter requiring the
+exercise of discretion at the time, in order to adapt it to the moral
+quality of the offence, which is different in each case, varying with
+the mental and moral constitutions of the offenders, and the
+circumstances of temptation or provocation. And Magna Carta recognizes
+this principle distinctly, as has before been shown, in providing that
+freemen, merchants, and villeins, "shall not be amerced for a small
+crime, but according to the degree of the crime; and for a great crime
+in proportion to the magnitude of it;" and that "none of the aforesaid
+amercements shall be imposed (or assessed) but by the oaths of honest
+men of the neighborhood;" and that "earls and barons shall not be
+amerced but by their peers, and according to the quality of the
+offence."
+
+All this implies that the moral quality of the offence was to be judged
+of at the trial, and that the punishment was to be fixed by the
+discretion of the peers, or jury, and not by any such unvarying rule as
+a common law rule would be.
+
+I think, therefore, it must be conceded that, in all cases, tried by a
+jury, Magna Carta intended that the punishment should be fixed by the
+jury, and not by the common law, for these several reasons.
+
+1. It is uncertain whether the _common law_ fixed the punishment of any
+offence whatever.
+
+2. The words "_per judicium parium suorum_," _according to the sentence
+of his peers_, imply that the jury fixed the sentence in _some_ cases
+tried by them; and if they fixed the sentence in some cases, it must be
+presumed they did in all, unless the contrary be clearly shown.
+
+3. The express provisions of Magna Carta, before adverted to, that no
+amercements, or fines, should be imposed upon freemen, merchants, or
+villeins, "but by the oath of honest men of the neighborhood," and
+"according to the degree of the crime," and that "earls and barons
+should not be amerced but by their peers, and according to the quality
+of the offence," _proves_ that, at least, there was no common law fixing
+the amount of _fines_, or, if there were, that it was to be no longer in
+force. And if there was no common law fixing the amount of _fines_, or
+if it was to be no longer in force, it is reasonable to infer, (in the
+absence of all evidence to the contrary,) either that the common law did
+not fix the amount of any other punishment, or that it was to be no
+longer in force for that purpose.[28]
+
+Under the Saxon laws, fines, payable to the injured party, seem to have
+been the common punishments for all offences. Even murder was punishable
+by a fine payable to the relatives of the deceased. The murder of the
+king even was punishable by fine. When a criminal was unable to pay his
+fine, his relatives often paid it for him. But if it were not paid, he
+was put out of the protection of the law, and the injured parties, (or,
+in the case of murder, the kindred of the deceased,) were allowed to
+inflict such punishment as they pleased. And if the relatives of the
+criminal protected him, it was lawful to take vengeance on them also.
+Afterwards the custom grew up of exacting fines also to the king as a
+punishment for offences.[29] And this latter was, doubtless, the usual
+punishment at the time of Magna Carta, as is evidenced by the fact that
+for many years immediately following Magna Carta, nearly or quite all
+statutes that prescribed any punishment at all, prescribed that the
+offender should "be grievously amerced," or "pay a great fine to the
+king," or a "grievous ransom,"--with the alternative in some cases
+(perhaps _understood_ in all) of imprisonment, banishment, or outlawry,
+in case of non-payment.[30]
+
+Judging, therefore, from the special provisions in Magna Carta,
+requiring _fines_, or amercements, to be imposed only by juries,
+(without mentioning any other punishments;) judging, also, from the
+statutes which immediately followed Magna Carta, it is probable that the
+Saxon custom of punishing all, or nearly all, offences by _fines_, (with
+the alternative to the criminal of being imprisoned, banished, or
+outlawed, and exposed to private vengeance, in case of non-payment,)
+continued until the time of Magna Carta; and that in providing expressly
+that _fines_ should be fixed by the juries, Magna Carta provided for
+nearly or quite all the punishments that were expected to be inflicted;
+that if there were to be any others, they were to be fixed by the
+juries; and consequently that nothing was left to be fixed by "_legem
+terræ_."
+
+But whether the common law fixed the punishment of any offences, or not,
+is a matter of little or no practical importance at this day; because we
+have no idea of going back to any common law punishments of six hundred
+years ago, if, indeed, there were any such at that time. It is enough
+for us to know--_and this is what it is material for us to know_--that
+the jury fixed the punishments, in all cases, unless they were fixed by
+the _common law_; that Magna Carta allowed no punishments to be
+prescribed by statute--that is, by the legislative power--nor in any
+other manner by the king, or his judges, in any case whatever; and,
+consequently, that all statutes prescribing particular punishments for
+particular offences, or giving the king's judges any authority to fix
+punishments, were void.
+
+If the power to fix punishments had been left in the hands of the king,
+it would have given him a power of oppression, which was liable to be
+greatly abused; which there was no occasion to leave with him; and which
+would have been incongruous with the whole object of this chapter of
+Magna Carta; which object was to take all discretionary or arbitrary
+power over individuals entirely out of the hands of the king, and his
+laws, and entrust it only to the common law, and the peers, or
+jury--that is, the people.
+
+_What lex terræ did authorize._
+
+But here the question arises, What then did "_legem terræ_" authorize
+the king, (that is, the government,) to do in the case of an accused
+person, if it neither authorized any other trial than that by jury, nor
+any other punishments than those fixed by juries?
+
+The answer is, that, owing to the darkness of history on the point, it
+is probably wholly impossible, at this day, to state, _with any
+certainty or precision_, anything whatever that the _legem terræ_ of
+Magna Carta did authorize the king, (that is, the government,) to do,
+(if, indeed, it authorized him to do anything,) in the case of
+criminals, _other than to have them tried and sentenced by their peers,
+for common law crimes_; and to carry that sentence into execution.
+
+The trial by jury was a part of _legem terræ_, and we have the means of
+knowing what the trial by jury was. The fact that the jury were to fix
+the sentence, implies that they were to _try_ the accused; otherwise
+they could not know what sentence, or whether any sentence, ought to be
+inflicted upon him. Hence it follows that the jury were to judge of
+everything involved in the trial; that is, they were to judge of the
+nature of the offence, of the admissibility and weight of testimony, and
+of everything else whatsoever that was of the essence of the trial. If
+anything whatever could be dictated to them, either of law or evidence,
+the sentence would not be theirs, but would be dictated to them by the
+power that dictated to them the law or evidence. The trial and sentence,
+then, were wholly in the hands of the jury.
+
+We also have sufficient evidence of the nature of the oath administered
+to jurors in criminal cases. It was simply, that _they would neither
+convict the innocent, nor acquit the guilty_. This was the oath in the
+Saxon times, and probably continued to be until Magna Carta.
+
+We also know that, in case of _conviction_, the sentence of the jury was
+not necessarily final; that the accused had the right of appeal to the
+king and his judges, and to demand either a new trial, or an acquittal,
+if the trial or conviction had been against law.
+
+So much, therefore, of the _legem terræ_ of Magna Carta, we know with
+reasonable certainty.
+
+We also know that Magna Carta provides that "No bailiff (_balivus_)
+shall hereafter put any man to his law, (put him on trial,) on his
+single testimony, without credible witnesses brought to support it."
+Coke thinks "that under this word _balivus_, in this act, is
+comprehended every justice, minister of the king, steward of the king,
+steward and bailiff." (2 Inst. 44.) And in support of this idea he
+quotes from a very ancient law book, called the Mirror of Justices,
+written in the time of Edward I., within a century after Magna Carta.
+But whether this were really a common law principle, or whether the
+provision grew out of that jealousy of the government which, at the time
+of Magna Carta, had reached its height, cannot perhaps now be
+determined.
+
+We also know that, by Magna Carta, amercements, or fines, could not be
+imposed to the ruin of the criminal; that, in the case of a freeman, his
+_contenement_, or means of subsisting in the condition of a freeman,
+must be saved to him; that, in the case of a merchant, his merchandise
+must be spared; and in the case of a villein, his _waynage_, or
+plough-tackle and carts. This also is likely to have been a principle of
+the common law, inasmuch as, in that rude age, when the means of getting
+employment as laborers were not what they are now, the man and his
+family would probably have been liable to starvation, if these means of
+subsistence had been taken from him.
+
+We also know, _generally_, that, at the time of Magna Carta, _all acts
+intrinsically criminal_, all trespasses against persons and property,
+were crimes, according to _lex terræ_, or the common law.
+
+Beyond the points now given, we hardly know anything, probably nothing
+_with certainty_, as to what the "_legem terræ_" of _Magna Carta_ did
+authorize, in regard to crimes. There is hardly anything extant that can
+give us any real light on the subject.
+
+It would seem, however, that there were, even at that day, some common
+law principles governing arrests; and some common law forms and rules as
+to holding a man for trial, (by bail or imprisonment;) putting him on
+trial, such as by indictment or complaint; summoning and empanelling
+jurors, &c., &c. Whatever these common law principles were, Magna Carta
+requires them to be observed; for Magna Carta provides for the whole
+proceedings, commencing with the arrest, ("no freeman shall be
+_arrested_," &c.,) and ending with the execution of the sentence. And it
+provides that nothing shall be done, by the government, from beginning
+to end, unless according to the sentence of the peers, or "_legem
+terræ_," the common law. The trial by peers was a part of _legem terræ_,
+and we have seen that the peers must necessarily have governed the whole
+proceedings at the trial. But all the proceedings for arresting the man,
+and bringing him to trial, must have been had before the case could come
+under the cognizance of the peers, and they must, therefore, have been
+governed by other rules than the discretion of the peers. We may
+_conjecture_, although we cannot perhaps know with much certainty, that
+the _lex terræ_, or common law, governing these other proceedings, was
+somewhat similar to the common law principles, on the same points, at
+the present day. Such seem to be the opinions of Coke, who says that the
+phrase _nisi per legem terræ_ means _unless by due process of law_.
+
+Thus, he says:
+
+"_Nisi per legem terræ. But by the law of the land._ For the true sense
+and exposition of these words, see the statute of 37 Edw. III., cap. 8,
+where the words, _by the law of the land_, are rendered _without due
+process of law_; for there it is said, though it be contained in the
+Great Charter, that no man be taken, imprisoned, or put out of his
+freehold, _without process of the law; that is, by indictment or
+presentment of good and lawful men, where such deeds be done in due
+manner, or by writ original of the common law_.
+
+"Without being brought in to answer but by due process of the common
+law.
+
+"No man be put to answer without presentment before justices, or thing
+of record, or by due process, or by writ original, _according to the old
+law of the land_."--_2 Inst._ 50.
+
+The foregoing interpretations of the words _nisi per legem terræ_ are
+corroborated by the following statutes, enacted in the next century
+after Magna Carta.
+
+"That no man, from henceforth, shall be attached by any accusation, nor
+forejudged of life or limb, nor his land, tenements, goods, nor
+chattels, seized into the king's hands, against the form of the Great
+Charter, _and the law of the land_."--_St. 5 Edward III., Ch._ 9.
+(1331.)
+
+"Whereas it is contained in the Great Charter of the franchises of
+England, that none shall be imprisoned, nor put out of his freehold, nor
+of his franchises, nor free customs, _unless it be by the law of the
+land_; it is accorded, assented, and established, that from henceforth
+none shall be taken by petition, or suggestion made to our lord the
+king, or to his council, _unless it be by indictment or presentment of
+good and lawful people of the same neighborhood where such deeds be done
+in due manner, or by process made by writ original at the common law_;
+nor that none be put out of his franchises, nor of his freehold, _unless
+he be duly brought into answer, and forejudged of the same by the course
+of the law_; and if anything be done against the same, it shall be
+redressed and holden for none."--_St. 25 Edward III., Ch._ 4. (1350.)
+
+"That no man, of what estate or condition that he be, shall be put out
+of land or tenement, nor taken, nor imprisoned, nor disinherited, nor
+put to death, without being brought in answer _by due process of
+law_."--_St. 28 Edward III., Ch._ 3. (1354.)
+
+"That no man be put to answer without presentment before justices, or
+matter of record, or by due process and writ original, according to the
+_old law of the land_. And if anything from henceforth be done to the
+contrary, it shall be void in law, and holden for error."--_St. 42
+Edward III., Ch._ 3. (1368.)
+
+The foregoing interpretation of the words _nisi per legem terræ_--that
+is, _by due process of law_--including indictment, &c., has been adopted
+as the true one by modern writers and courts; as, for example, by Kent,
+(2 _Comm._ 13,) Story, (3 _Comm._ 661,) and the Supreme Court of New
+York, (19 _Wendell_, 676; 4 _Hill_, 146.)
+
+The fifth amendment to the constitution of the United States seems to
+have been framed on the same idea, inasmuch as it provides that "no
+person shall be deprived of life, liberty, or property, _without due
+process of law_."[31]
+
+_Whether the word_ VEL _should be rendered by_ OR, _or by_ AND.
+
+Having thus given the meanings, or rather the applications, which the
+words _vel per legem terræ_ will reasonably, and perhaps must
+necessarily, bear, it is proper to suggest, that it has been supposed by
+some that the word _vel_, instead of being rendered by _or_, as it
+usually is, ought to be rendered by _and_, inasmuch as the word _vel_ is
+often used for _et_, and the whole phrase _nisi per judicium parium
+suorum, vel per legem terræ_, (which would then read, unless by the
+sentence of his peers, _and_ the law of the land,) would convey a more
+intelligible and harmonious meaning than it otherwise does.
+
+Blackstone suggests that this may be the true reading. (_Charters_, p.
+41.) Also Mr. Hallam, who says:
+
+   "Nisi per legale judicium parium suorum, _vel_ per legem terræ.
+   Several explanations have been offered of the alternative clause;
+   which some have referred to judgment by default, or demurrer; others
+   to the process of attachment for contempt. Certainly there are many
+   legal procedures besides trial by jury, through which a party's goods
+   or person may be taken. But one may doubt whether these were in
+   contemplation of the framers of Magna Carta. In an entry of the
+   Charter of 1217 by a contemporary hand, preserved in the Town-clerk's
+   office in London, called Liber Custumarum et Regum antiquarum, a
+   various reading, _et_ per legem terræ, occurs. _Blackstone's
+   Charters_, p. 42 (41.) And the word _vel_ is so frequently used for
+   _et_, that I am not wholly free from a suspicion that it was so
+   intended in this place. The meaning will be, that no person shall be
+   disseized, &c., except upon a lawful cause of action, found by the
+   verdict of a jury. This really seems as good as any of the
+   disjunctive interpretations; but I do not offer it with much
+   confidence."--2 _Hallam's Middle Ages, Ch._ 8, _Part_ 2, p. 449,
+   _note_.[32]
+
+The idea that the word _vel_ should be rendered by _and_, is
+corroborated, if not absolutely confirmed, by the following passage in
+Blackstone, which has before been cited. Speaking of the trial by jury,
+as established by Magna Carta, he calls it,
+
+   "A privilege which is couched in almost the same words with that of
+   the Emperor Conrad two hundred years before: 'nemo beneficium suum
+   perdat, nisi secundum consuetudinem antecessorum nostrorum, _et_
+   judicium parium suorum.'" (No one shall lose his estate unless
+   according to the custom of our ancestors, and the judgment of his
+   peers.)--_3 Blackstone_, 350.
+
+If the word _vel_ be rendered by _and_, (as I think it must be, at least
+in some cases,) this chapter of Magna Carta will then read that no
+freeman shall be arrested or punished, "unless according to the sentence
+of his peers, _and_ the law of the land."
+
+The difference between this reading and the other is important. In the
+one case, there would be, at first view, some color of ground for saying
+that a man might be punished in either of two ways, viz., according to
+the sentence of his peers, _or_ according to the law of the land. In the
+other case, it requires both the sentence of his peers _and_ the law of
+the land (common law) to authorize his punishment.
+
+If this latter reading be adopted, the provision would seem to exclude
+all trials except trial by jury, and all causes of action except those
+of the _common law_.
+
+But I apprehend the word vel must be rendered both by _and_, and by
+_or_; that in cases of a _judgment_, it should be rendered by _and_, so
+as to require the concurrence both of "the judgment of the peers _and_
+the law of the land," to authorize the king to make execution upon a
+party's goods or person; but that in cases of arrest and imprisonment,
+simply for the purpose of bringing a man to trial, _vel_ should be
+rendered by or, because there can have been no judgment of a jury in
+such a case, and "the law of the land" must therefore necessarily be the
+only guide to, and restraint upon, the king. If this guide and restraint
+were taken away, the king would be invested with an arbitrary and most
+dangerous power in making arrests, and confining in prison, under
+pretence of an intention to bring to trial.
+
+Having thus examined the language of this chapter of Magna Carta, so far
+as it relates to criminal cases, its legal import may be stated as
+follows, viz.:
+
+No freeman shall be arrested, or imprisoned, or deprived of his
+freehold, or his liberties, or free customs, or be outlawed, or exiled,
+or in any manner destroyed, (harmed,) nor will we (the king) proceed
+against him, nor send any one against him, by force or arms, unless
+according to (that is, in execution of) the sentence of his peers, _and_
+(or _or_, as the case may require) the Common Law of England, (as it was
+at the time of Magna Carta, in 1215.)
+
+[Footnote 5: 1 Hume, Appendix 2.]
+
+[Footnote 6: Crabbe's History of the English Law, 236.]
+
+[Footnote 7: Coke says, "The king of England is armed with divers
+councils, one whereof is called _commune concilium_, (the common
+council,) and that is the court of parliament, and so it is _legally_
+called in writs and judicial proceedings _commune concilium regni
+Angliæ_, (the common council of the kingdom of England.) And another is
+called _magnum concilium_, (great council;) this is sometimes applied to
+the upper house of parliament, and sometimes, out of parliament time, to
+the peers of the realm, lords of parliament, who are called _magnum
+concilium regis_, (the great council of the king;) * * Thirdly, (as
+every man knoweth,) the king hath a privy council for matters of state.
+* * The fourth council of the king are his judges for law matters."
+
+_1 Coke's Institutes, 110 a._]
+
+[Footnote 8: The Great Charter of Henry III., (1216 and 1225,) confirmed
+by Edward I., (1297,) makes no provision whatever for, or mention of, a
+parliament, unless the provision, (Ch. 37,) that "Escuage, (a military
+contribution,) from henceforth shall be taken like as it was wont to be
+in the time of King Henry our grandfather," mean that a parliament shall
+be summoned for that purpose.]
+
+[Footnote 9: The Magna Carta of John, (Ch. 17 and 18,) defines those who
+were entitled to be summoned to parliament, to wit, "The Archbishops,
+Bishops, Abbots, Earls, and Great Barons of the Realm, * * and all
+others who hold of us _in chief_." Those who held land of the king _in
+chief_ included none below the rank of knights.]
+
+[Footnote 10: The parliaments of that time were, doubtless, such as
+Carlyle describes them, when he says, "The parliament was at first a
+most simple assemblage, quite cognate to the situation; that Red
+William, or whoever had taken on him the terrible task of being King of
+England, was wont to invite, oftenest about Christmas time, his
+subordinate Kinglets, Barons as he called them, to give him the pleasure
+of their company for a week or two; there, in earnest conference all
+morning, in freer talk over Christmas cheer all evening, in some big
+royal hall of Westminster, Winchester, or wherever it might be, with log
+fires, huge rounds of roast and boiled, not lacking malmsey and other
+generous liquor, they took counsel concerning the arduous matters of the
+kingdom."]
+
+[Footnote 11: Hume, Appendix 2.]
+
+[Footnote 12: This point will be more fully established hereafter.]
+
+[Footnote 13: It is plain that the king and all his partisans looked
+upon the charter as utterly prostrating the king's legislative supremacy
+before the discretion of juries. When the schedule of liberties demanded
+by the barons was shown to him, (of which the trial by jury was the most
+important, because it was the only one that protected all the rest,)
+"the king, falling into a violent passion, asked, _Why the barons did
+not with these exactions demand his kingdom?_ * * _and with a solemn
+oath protested, that he would never grant such liberties as would make
+himself a slave_." * * But afterwards, "seeing himself deserted, and
+fearing they would seize his castles, he sent the Earl of Pembroke and
+other faithful messengers to them, to let them know _he would grant them
+the laws and liberties they desired_." * * But after the charter had
+been granted, "the king's mercenary soldiers, desiring war more than
+peace, were by their leaders continually whispering in his ears, _that
+he was now no longer king, but the scorn of other princes; and that it
+was more eligible to be no king, than such a one as he_." * * He applied
+"to the Pope, that he might by his apostolic authority make void what
+the barons had done. * * At Rome he met with what success he could
+desire, where all the transactions with the barons were fully
+represented to the Pope, and the Charter of Liberties shown to him, in
+writing; which, when he had carefully perused, he, with a furious look,
+cried out, _What! Do the barons of England endeavor to dethrone a king,
+who has taken upon him the Holy Cross, and is under the protection of
+the Apostolic See; and would they force him to transfer the dominions of
+the Roman Church to others? By St. Peter, this injury must not pass
+unpunished._ Then debating the matter with the cardinals, he, by a
+definitive sentence, damned and cassated forever the Charter of
+Liberties, and sent the king a bull containing that sentence at
+large."--_Echard's History of England_, p. 106-7.
+
+These things show that the nature and effect of the charter were well
+understood by the king and his friends; that they all agreed that he was
+effectually stripped of power. _Yet the legislative power had not been
+taken from him; but only the power to enforce his laws, unless juries
+should freely consent to their enforcement._]
+
+[Footnote 14: The laws were, at that time, all written in Latin.]
+
+[Footnote 15: "No man shall be condemned at the king's suit, either
+before the king in his bench, where pleas are _coram rege_, (before the
+king,) (and so are the words _nec super eum ibimus_, to be understood,)
+nor before any other commissioner or judge whatsoever, and so are the
+words _nec super eum mittemus_, to be understood, but by the judgment of
+his peers, that is, equals, or according to the law of the land."--_2
+Coke's Inst._, 46.]
+
+[Footnote 16: Perhaps the assertion in the text should be made with this
+qualification--that the words "_per legem terræ_," (according to the law
+of the land,) and the words "_per legale judicium parium suorum_,"
+(according to the _legal_ judgment of his peers,) imply that the king,
+before proceeding to any _executive_ action, will take notice of "the
+law of the land," and of the _legality_ of the judgment of the peers,
+and will _execute_ upon the prisoner nothing except what the law of the
+land authorizes, and no judgments of the peers, except _legal_ ones.
+With this qualification, the assertion in the text is strictly
+correct--that there is nothing in the whole chapter that grants to the
+king, or his judges, any _judicial_ power at all. The chapter only
+describes and _limits_ his _executive_ power.]
+
+[Footnote 17: See Blackstone's Law Tracts, page 294, Oxford Edition.]
+
+[Footnote 18: These Articles of the Charter are given in Blackstone's
+collection of Charters, and are also printed with the _Statutes of the
+Realm_. Also in Wilkins' Laws of the Anglo-Saxons, p. 356.]
+
+[Footnote 19: Lingard says, "The words, '_We will not destroy him, nor
+will we go upon him, nor will we send upon him_,' have been very
+differently expounded by different legal authorities. Their real meaning
+may be learned from John himself, who the next year promised by his
+letters patent ... nec super eos _per vim vel per arma_ ibimus, nisi per
+legem regni nostri, vel per judicium parium suorum in curia nostra, (nor
+will we go upon them _by force or by arms_, unless by the law of our
+kingdom, or the judgment of their peers in our court.) Pat. 16 Johan,
+apud Drad. 11, app. no. 124. He had hitherto been in the habit of
+_going_ with an armed force, or _sending_ an armed force on the lands,
+and against the castles, of all whom he knew or suspected to be his
+secret enemies, without observing any form of law."--3 Lingard, 47
+note.]
+
+[Footnote 20: "_Judgment, judicium._ * * The sentence of the law,
+pronounced by the court, upon the matter contained in the record."--3
+_Blackstone_, 395. _Jacob's Law Dictionary. Tomlin's do._
+
+"_Judgment_ is the decision or sentence of the law, given by a court of
+justice or other competent tribunal, as the result of the proceedings
+instituted therein, for the redress of an injury."--_Bouvier's Law
+Dict._
+
+"_Judgment, judicium._ * * Sentence of a judge against a criminal. * *
+Determination, decision in general."--_Bailey's Dict._
+
+"_Judgment._ * * In a legal sense, a sentence or decision pronounced by
+authority of a king, or other power, either by their own mouth, or by
+that of their judges and officers, whom they appoint to administer
+justice in their stead."--_Chambers' Dict._
+
+"_Judgment._ * * In law, the sentence or doom pronounced in any case,
+civil or criminal, by the judge or court by which it is
+tried."--_Webster's Dict._
+
+Sometimes the punishment itself is called _judicium_, _judgment_; or,
+rather, it was at the time of Magna Carta. For example, in a statute
+passed fifty-one years after Magna Carta, it was said that a baker, for
+default in the weight of his bread, "debeat amerciari vel subire
+_judicium_ pillorie;" that is, ought to be amerced, or suffer the
+punishment, or judgment, of the pillory. Also that a brewer, for
+"selling ale contrary to the assize," "debeat amerciari, vel pati
+_judicium_ tumbrelli"; that is, ought to be amerced, or suffer the
+punishment, or judgment, of the tumbrel.--51 _Henry_ 3, _St._ 6. (1266.)
+
+Also the "_Statutes of uncertain date_," (but supposed to be prior to
+Edward III., or 1326,) provide, in chapters 6, 7, and 10, for
+"_judgment_ of the pillory."--_See 1 Ruffhead's Statutes_, 187, 188. 1
+_Statutes of the Realm_, 203.
+
+Blackstone, in his chapter "Of _Judgment_, and its Consequences," says,
+
+"_Judgment_ (unless any matter be offered in arrest thereof) follows
+upon conviction; being the pronouncing of that punishment which is
+expressly ordained by law."--_Blackstone's Analysis of the Laws of
+England, Book 4, Ch. 29, Sec. 1. Blackstone's Law Tracts_, 126.
+
+Coke says, "_Judicium_ ... the judgment is the guide and direction of
+the execution." 3 _Inst._ 210.]
+
+[Footnote 21: This precedent from Germany is good authority, because the
+trial by jury was in use, in the northern nations of Europe generally,
+long before Magna Carta, and probably from time immemorial; and the
+Saxons and Normans were familiar with it before they settled in
+England.]
+
+[Footnote 22: _Beneficium_ was the legal name of an estate held by a
+feudal tenure. See Spelman's Glossary.]
+
+[Footnote 23: _Contenement_ of a freeman was the means of living in the
+condition of a freeman.]
+
+[Footnote 24: _Waynage_ was a villein's plough-tackle and carts.]
+
+[Footnote 25: Tomlin says, "The ancient practice was, when any such fine
+was imposed, to inquire by a jury _quantum inde regi dare valeat per
+annum, salva sustentatione sua et uxoris et liberorum suorum_, (how much
+is he able to give to the king per annum, saving his own maintenance,
+and that of his wife and children). And since the disuse of such
+inquest, it is never usual to assess a larger fine than a man is able to
+pay, without touching the implements of his livelihood; but to inflict
+corporal punishment, or a limited imprisonment, instead of such a fine
+as might amount to imprisonment for life. And this is the reason why
+fines in the king's courts are frequently denominated ransoms, because
+the penalty must otherwise fall upon a man's person, unless it be
+redeemed or ransomed by a pecuniary fine."--_Tomlin's Law Dict., word
+Fine._]
+
+[Footnote 26: Because juries were to fix the sentence, it must not be
+supposed that the king was _obliged_ to carry the sentence into
+execution; _but only that he could not go beyond the sentence_. He might
+pardon, or he might acquit on grounds of law, notwithstanding the
+sentence; but he could not punish beyond the extent of the sentence.
+Magna Carta does not prescribe that the king _shall punish_ according to
+the sentence of the peers; but only that he shall not punish _"unless
+according to" that sentence_. He may acquit or pardon, notwithstanding
+their sentence or judgment; but he cannot punish, except according to
+their judgment.]
+
+[Footnote 27: _The trial by battle_ was one in which the accused
+challenged his accuser to single combat, and staked the question of his
+guilt or innocence on the result of the duel. This trial was introduced
+into England by the Normans, within one hundred and fifty years before
+Magna Carta. It was not very often resorted to even by the Normans
+themselves; probably never by the Anglo-Saxons, unless in their
+controversies with the Normans. It was strongly discouraged by some of
+the Norman princes, particularly by Henry II., by whom the trial by jury
+was especially favored. It is probable that the trial by battle, so far
+as it prevailed at all in England, was rather tolerated as a matter of
+chivalry, than authorized as a matter of law. At any rate, it is not
+likely that it was included in the "_legem terræ_" of Magna Carta,
+although such duels have occasionally occurred since that time, and
+have, by some, been supposed to be lawful. I apprehend that nothing can
+be properly said to be a part of _lex terræ_, unless it can be shown
+either to have been of Saxon origin, or to have been recognized by Magna
+Carta.
+
+_The trial by ordeal_ was of various kinds. In one ordeal the accused
+was required to take hot iron in his hand; in another to walk blindfold
+among red-hot ploughshares; in another to thrust his arm into boiling
+water; in another to be thrown, with his hands and feet bound, into cold
+water; in another to swallow the _morsel of execration_; in the
+confidence that his guilt or innocence would be miraculously made known.
+This mode of trial was nearly extinct at the time of Magna Carta, and it
+is not likely that it was included in "_legem terræ_," as that term is
+used in that instrument. This idea is corroborated by the fact that the
+trial by ordeal was specially prohibited only four years after Magna
+Carta, "by act of Parliament in 3 Henry III., according to Sir Edward
+Coke, or rather by an order of the king in council."--_3 Blackstone_
+345, _note_.
+
+I apprehend that this trial was never forced upon accused persons, but
+was only allowed to them, _as an appeal to God_, from the judgment of a
+jury.[33]
+
+_The trial by compurgators_ was one in which, if the accused could bring
+twelve of his neighbors, who would make oath that they believed him
+innocent, he was held to be so. It is probable that this trial was
+really the trial by jury, or was allowed as an appeal from a jury. It is
+wholly improbable that two different modes of trial, so nearly
+resembling each other as this and the trial by jury do, should prevail
+at the same time, and among a rude people, whose judicial proceedings
+would naturally be of the simplest kind. But if this trial really were
+any other than the trial by jury, it must have been nearly or quite
+extinct at the time of Magna Carta; and there is no probability that it
+was included in "_legem terræ_."]
+
+[Footnote 28: Coke attempts to show that there is a distinction between
+amercements and fines--admitting that amercements must be fixed by one's
+peers, but claiming that fines may be fixed by the government. (_2
+Inst._ 27, _8 Coke's Reports_ 38.) But there seems to have been no
+ground whatever for supposing that any such distinction existed at the
+time of Magna Carta. If there were any such distinction in the time of
+Coke, it had doubtless grown up within the four centuries that had
+elapsed since Magna Carta, and is to be set down as one of the
+numberless inventions of government for getting rid of the restraints of
+Magna Carta, and for taking men out of the protection of their peers,
+and subjecting them to such punishments as the government chooses to
+inflict.
+
+The first statute of Westminster, passed sixty years after Magna Carta,
+treats the fine and amercement as synonymous, as follows:
+
+"Forasmuch as _the common fine and amercement_ of the whole county in
+Eyre of the justices for false judgments, or for other trespass, is
+unjustly assessed by sheriffs and baretors in the shires, * * it is
+provided, and the king wills, that from henceforth such sums shall be
+assessed before the justices in Eyre, afore their departure, _by the
+oath of knights and other honest men_," &c.--_3 Edward I., Ch._ 18.
+(1275.)
+
+And in many other statutes passed after Magna Carta, the terms _fine_
+and _amercement_ seem to be used indifferently, in prescribing the
+punishment for offences. As late as 1461, (246 years after Magna Carta,)
+the statute _1 Edward IV., Ch._ 2, speaks of "_fines, ransoms, and
+amerciaments_" as being levied upon criminals, as if they were the
+common punishments of offences.
+
+_St._ 2 and 3 _Philip and Mary, Ch._ 8, uses the terms, "_fines,
+forfeitures, and amerciaments_" five times. (1555.)
+
+_St. 5 Elizabeth, Ch._ 13, _Sec._ 10, uses the terms "_fines,
+forfeitures, and amerciaments_."
+
+That amercements were fines, or pecuniary punishments, inflicted for
+offences, is proved by the following statutes, (all supposed to have
+been passed within one hundred and fifteen years after Magna Carta,)
+which speak of amercements as a species of "_judgment_," or punishment,
+and as being inflicted for the same offences as other "judgments."
+
+Thus one statute declares that a baker, for default in the weight of his
+bread, "ought to be _amerced_, or suffer the _judgment_ of the pillory;"
+and that a brewer, for "selling ale contrary to the assize," "ought to
+be _amerced_, or suffer the _judgment_ of the tumbrel."--_51 Henry III.,
+St._ 6. (1266.)
+
+Among the "_Statutes of Uncertain Date_," but supposed to be prior to
+Edward III., (1326,) are the following:
+
+_Chap._ 6 provides that "if a brewer break the assize, (fixing the price
+of ale,) the first, second, and third time, he shall be _amerced_; but
+the fourth time he shall suffer _judgment_ of the pillory without
+redemption."
+
+_Chap._ 7 provides that "a butcher that selleth swine's flesh measled,
+or flesh dead of the murrain, or that buyeth flesh of Jews, and selleth
+the same unto Christians, after he shall be convict thereof, for the
+first time he shall be grievously _amerced_; the second time he shall
+suffer _judgment_ of the pillory; and the third time he shall be
+imprisoned and make _fine_; and the fourth time he shall forswear the
+town."
+
+_Chap. 10_, a statute against _forestalling_, provides that,
+
+"He that is convict thereof, the first time shall be _amerced_, and
+shall lose the thing so bought, and that according to the custom of the
+town; he that is convicted the second time shall have _judgment_ of the
+pillory; at the third time he shall be imprisoned and make _fine_; the
+fourth time he shall abjure the town. And this _judgment_ shall be given
+upon all manner of forestallers, and likewise upon them that have given
+them counsel, help, or favor."--_1 Ruffhead's Statutes_, 187, 188. _1
+Statutes of the Realm_, 203.]
+
+[Footnote 29: 1 Hume, Appendix, 1.]
+
+[Footnote 30: Blackstone says, "Our ancient Saxon laws nominally
+punished theft with death, if above the value of twelve pence; but the
+criminal was permitted to redeem his life by a pecuniary ransom, as
+among their ancestors, the Germans, by a stated number of cattle. But in
+the ninth year of Henry the First, (1109,) this power of redemption was
+taken away, and all persons guilty of larceny above the value of twelve
+pence were directed to be hanged, which law continues in force to this
+day."--_4 Blackstone_, 238.
+
+I give this statement of Blackstone, because the latter clause may seem
+to militate with the idea, which the former clause corroborates, viz.,
+that at the time of Magna Carta, fines were the usual punishments of
+offences. But I think there is no probability that a law so unreasonable
+in itself, (unreasonable even after making all allowance for the
+difference in the value of money,) and so contrary to immemorial custom,
+could or did obtain any general or speedy acquiescence among a people
+who cared little for the authority of kings.
+
+Maddox, writing of the period from William the Conqueror to John, says:
+
+"The amercements in criminal and common pleas, which were wont to be
+imposed during this first period and afterwards, were of so many several
+sorts, that it is not easy to place them under distinct heads. Let them,
+for method's sake, be reduced to the heads following: Amercements for or
+by reason of murders and manslaughters, for misdemeanors, for
+disseisins, for recreancy, for breach of assize, for defaults, for
+non-appearance, for false judgment, and for not making suit, or hue and
+cry. To them may be added miscellaneous amercements, for trespasses of
+divers kinds."--_1 Maddox' History of the Exchequer_, 542.]
+
+[Footnote 31: Coke, in his exposition of the words _legem terræ_, gives
+quite in detail the principles of the common law governing _arrests_;
+and takes it for granted that the words "_nisi per legem terræ_" are
+applicable to arrests, as well as to the indictment, &c.--2 _Inst._,
+51,52.]
+
+[Footnote 32: I cite the above extract from Mr. Hallam solely for the
+sake of his authority for rendering the word _vel_ by _and_; and not by
+any means for the purpose of indorsing the opinion he suggests, that
+_legem terræ_ authorized "judgments by default or demurrer," _without
+the intervention of a jury_. He seems to imagine that _lex terræ_, the
+common law, at the time of Magna Carta, included everything, even to the
+practice of courts, that is, _at this day_, called by the name of
+_Common Law_; whereas much of what is _now_ called Common Law has grown
+up, by usurpation, since the time of Magna Carta, in palpable violation
+of the authority of that charter. He says, "Certainly there are many
+legal procedures, besides _trial_ by jury, through which a party's goods
+or person may be taken." Of course there are _now_ many such ways, in
+which a party's goods or person _are_ taken, besides by the judgment of
+a jury; but the question is, whether such takings are not in violation
+of Magna Carta.
+
+He seems to think that, in cases of "judgment by default or demurrer,"
+there is no need of a jury, and thence to infer that _legem terræ_ may
+not have required a jury in those cases. But this opinion is founded on
+the erroneous idea that juries are required only for determining
+contested _facts_, and not for judging of the law. In case of default,
+the plaintiff must present a _prima facie_ case before he is entitled to
+a judgment; and Magna Carta, (supposing it to require a jury trial in
+civil cases, as Mr. Hallam assumes that it does,) as much requires that
+this _prima facie_ case, both law and fact, be made out to the
+satisfaction of a jury, as it does that a contested case shall be.
+
+As for a demurrer, the jury must try a demurrer (having the advice and
+assistance of the court, of course) as much as any other matter of law
+arising in a case.
+
+Mr. Hallam evidently thinks there is no use for a jury, except where
+there is a "_trial_"--meaning thereby a contest on matters of _fact_.
+His language is, that "there are many legal procedures, besides _trial_
+by jury, through which a party's goods or person may be taken." Now
+Magna Carta says nothing of _trial_ by jury; but only of the _judgment_,
+or sentence, of a jury. It is only _by inference_ that we come to the
+conclusion that there must be a _trial_ by jury. Since the jury alone
+can give the _judgment_, or _sentence_, we _infer_ that they must _try_
+the case; because otherwise they would be incompetent, and would have no
+moral right, to give _judgment_. They must, therefore, examine the
+grounds, (both of law and fact,) or rather _try_ the grounds, of every
+action whatsoever, whether it be decided on "default, demurrer," or
+otherwise, and render their judgment, or sentence, thereon, before any
+judgment can be a legal one, on which "to take a party's goods or
+person." In short, the principle of Magna Carta is, that no judgment can
+be valid _against a party's goods or person_, (not even a judgment for
+costs,) except a judgment rendered by a jury. Of course a jury must try
+every question, both of law and fact, that is involved in the rendering
+of that judgment. They are to have the assistance and advice of the
+judges, so far as they desire them; but the judgment itself must be
+theirs, and not the judgment of the court.
+
+As to "process of attachment for contempt," it is of course lawful for a
+judge, in his character of a peace officer, to issue a warrant for the
+arrest of a man guilty of a contempt, as he would for the arrest of any
+other offender, and hold him to bail, (or, in default of bail, commit
+him to prison,) to answer for his offence before a jury. Or he may order
+him into custody without a warrant when the offence is committed in the
+judge's presence. But there is no reason why a judge should have the
+power of _punishing_ for contempt, any more than for any other offence.
+And it is one of the most dangerous powers a judge can have, because it
+gives him absolute authority in a court of justice, and enables him to
+tyrannize as he pleases over parties, counsel, witnesses, and jurors. If
+a judge have power to punish for contempt, and to determine for himself
+what is a contempt, the whole administration of justice (or injustice,
+if he choose to make it so) is in his hands. And all the rights of
+jurors, witnesses, counsel, and parties, are held subject to his
+pleasure, and can be exercised only agreeably to his will. He can of
+course control the entire proceedings in, and consequently the decision
+of, every cause, by restraining and punishing every one, whether party,
+counsel, witness, or juror, who presumes to offer anything contrary to
+his pleasure.
+
+This arbitrary power, which has been usurped and exercised by judges to
+punish for contempt, has undoubtedly had much to do in subduing counsel
+into those servile, obsequious, and cowardly habits, which so
+universally prevail among them, and which have not only cost so many
+clients their rights, but have also cost the people so many of their
+liberties.
+
+If any _summary_ punishment for contempt be ever necessary, (as it
+probably is not,) beyond exclusion for the time being from the
+court-room, (which should be done, not as a punishment, but for
+self-protection, and the preservation of order,) the judgment for it
+should be given by the jury, (where the trial is before a jury,) and not
+by the court, for the jury, and not the court, are really the judges.
+For the same reason, exclusion from the court-room should be ordered
+only by the jury, in cases when the trial is before a jury, because
+they, being the real judges and triers of the cause, are entitled, if
+anybody, to the control of the court-room. In appeal courts, where no
+juries sit, it may be necessary--not as a punishment, but for
+self-protection, and the maintenance of order--that the court should
+exercise the power of excluding a person, for the time being, from the
+court-room; but there is no reason why they should proceed to sentence
+him as a criminal, without his being tried by a jury.
+
+If the people wish to have their rights respected and protected in
+courts of justice, it is manifestly of the last importance that they
+jealously guard the liberty of parties, counsel, witnesses, and jurors,
+against all arbitrary power on the part of the court.
+
+Certainly Mr. Hallam may very well say that "one may doubt whether these
+(the several cases he has mentioned) were in contemplation of the
+framers of Magna Carta"--that is, as exceptions to the rule requiring
+that all judgments, that are to be enforced "_against a party's goods or
+person_," be rendered by a jury.
+
+Again, Mr. Hallam says, if the word _vel_ be rendered by _and_, "the
+meaning will be, that no person shall be disseized, &c., _except upon a
+lawful cause of action_." This is true; but it does not follow that any
+cause of action, founded on _statute only_, is therefore a "_lawful_
+cause of action," within the meaning of _legem terræ_, or the _Common
+Law_. Within the meaning of the _legem terræ_ of Magna Carta, nothing
+but a _common law_ cause of action is a "_lawful_" one.]
+
+[Footnote 33: Hallam says, "It appears as if the ordeal were permitted
+to persons already convicted by this verdict of a jury."--_2 Middle
+Ages_, 446, _note_.]
+
+
+
+
+CHAPTER III.
+
+ADDITIONAL PROOFS OF THE RIGHTS AND DUTIES OF JURORS.
+
+
+If any evidence, extraneous to the history and language of Magna Carta,
+were needed to prove that, by that chapter which guaranties the trial by
+jury, all was meant that has now been ascribed to it, and _that the
+legislation of the king was to be of no authority with the jury beyond
+what they chose to allow to it_, and that the juries were to limit the
+punishments to be inflicted, we should find that evidence in various
+sources, such as the laws, customs, and characters of their ancestors on
+the continent, and of the northern Europeans generally; in the
+legislation and customs that immediately succeeded Magna Carta; in the
+oaths that have at different times been administered to jurors, &c., &c.
+This evidence can be exhibited here but partially. To give it all would
+require too much space and labor.
+
+
+SECTION I.
+
+_Weakness of the Regal Authority._
+
+Hughes, in his preface to his translation of Horne's "_Mirror of
+Justices_," (a book written in the time of Edward I., 1272 to 1307,)
+giving a concise view of the laws of England generally, says:
+
+   "Although in the Saxon's time I find the usual words of the acts then
+   to have been _edictum_, (edict,) _constitutio_, (statute,) little
+   mention being made of the commons, yet I further find that, _tum
+   demum leges vim et vigerem habuerunt, cum fuerunt non modo institutæ
+   sed firmatæ approbatione communitatis_." (The laws had force and
+   vigor only when they were not only enacted, but confirmed by the
+   approval of the community.)
+
+The _Mirror of Justices_ itself also says, (ch. 1, sec. 3,) in speaking
+"_Of the first Constitutions of the Ancient Kings_:"
+
+   "Many ordinances were made by many kings, until the time of the king
+   that now is (Edward I.); the which ordinances were abused, _or not
+   used by many, nor very current_, because they were not put in
+   writing, and certainly published."--_Mirror of Justices_, p. 6.
+
+Hallam says:
+
+   "The Franks, Lombards, and Saxons seem alike to have been jealous of
+   judicial authority; and averse to surrendering what concerned every
+   man's private right, out of the hands of his neighbors and
+   equals."--_1 Middle Ages_, 271.
+
+The "judicial authority," here spoken of, was the authority of the
+kings, (who at that time united the office of both legislators and
+judges,) and not of a separate department of government, called the
+judiciary, like what has existed in more modern times.[34]
+
+Hume says:
+
+   "The government of the Germans, and that of all the northern nations,
+   who established themselves on the ruins of Rome, was always extremely
+   free; and those fierce people, accustomed to independence and inured
+   to arms, _were more guided by persuasion than authority, in the
+   submission which they paid to their princes_. The military despotism,
+   which had taken place in the Roman empire, and which, previously to
+   the irruption of those conquerors, had sunk the genius of men, and
+   destroyed every noble principle of science and virtue, was unable to
+   resist the vigorous efforts of a free people, and Europe, as from a
+   new epoch, rekindled her ancient spirit, and shook off the base
+   servitude to arbitrary will and authority under which she had so long
+   labored. The free constitutions then established, however impaired by
+   the encroachments of succeeding princes, still preserve an air of
+   independence and legal administration, which distinguished the
+   European nations; and if that part of the globe maintain sentiments
+   of liberty, honor, equity, and valor, superior to the rest of
+   mankind, it owes these advantages chiefly to the seeds implanted by
+   those generous barbarians.
+
+   "_The Saxons, who subdued Britain, as they enjoyed great liberty in
+   their own country, obstinately retained that invaluable possession in
+   their new settlement; and they imported into this island the same
+   principles of independence, which they had inherited from their
+   ancestors. The chieftains, (for such they were, more than kings or
+   princes,) who commanded them in those military expeditions, still
+   possessed a very limited authority_; and as the Saxons exterminated,
+   rather than subdued the ancient inhabitants, they were, indeed,
+   transplanted into a new territory, _but preserved unaltered all their
+   civil and military institutions_. The language was pure Saxon; even
+   the names of places, which often remain while the tongue entirely
+   changes, were almost all affixed by the conquerors; the manners and
+   customs were wholly German; and the same picture of a fierce and bold
+   liberty, which is drawn by the masterly pen of Tacitus, will suit
+   those founders of the English government. _The king, so far from
+   being invested with arbitrary power, was only considered as the first
+   among the citizens; his authority depended more on his personal
+   qualities than on his station; he was even so far on a level with the
+   people, that a stated price was fixed for his head, and a legal fine
+   was levied upon his murderer, which though proportionate to his
+   station, and superior to that paid for the life of a subject, was a
+   sensible mark of his subordination to the community._"--_1 Hume_,
+   _Appendix_, 1.
+
+Stuart says:
+
+   "The Saxons brought along with them into Britain their own customs,
+   language, and civil institutions. Free in Germany, they renounced not
+   their independence, when they had conquered. Proud from victory, and
+   with their swords in their hands, would they surrender their
+   liberties to a private man? Would temporary leaders, limited in their
+   powers, and unprovided in resources, ever think to usurp an authority
+   over warriors, who considered themselves as their equals, were
+   impatient of control, and attached with devoted zeal to their
+   privileges? Or, would they find leisure to form resolutions, or
+   opportunities to put them in practice, amidst the tumult and
+   confusion of those fierce and bloody wars, which their nations first
+   waged with the Britons, and then engaged in among themselves?
+   Sufficiently flattered in leading the armies of their countrymen, the
+   ambition of commanders could as little suggest such designs, as the
+   liberty of the people could submit to them. The conquerors of Britain
+   retained their independence; and this island saw itself again in
+   that free state in which the Roman arms had discovered it.
+
+   "The same firmness of character, and generosity of manners, which, in
+   general, distinguished the Germans, were possessed in an eminent
+   degree by the Saxons; and while we endeavor to unfold their political
+   institutions, we must perpetually turn our observation to that
+   masterly picture in which the Roman historian has described these
+   nations. In the woods of Germany shall we find the principles which
+   directed the state of land, in the different kingdoms of Europe; and
+   there shall we find the foundation of those ranks of men, and of
+   those civil arrangements, which the barbarians everywhere
+   established; and which the English alone have had the good fortune,
+   or the spirit, to preserve."--_Stuart on the Constitution of
+   England_, p. 59-61.
+
+   "Kings they (the Germans) respected as the first magistrates of the
+   state; but the authority possessed by them was narrow and
+   limited."--_Ditto_, p. 134.
+
+   "Did he, (the king,) at any time, relax his activity and martial
+   ardor, did he employ his abilities to the prejudice of his nation, or
+   fancy he was superior to the laws; the same power which raised him to
+   honor, humbled and degraded him. The customs and councils of his
+   country pointed out to him his duty; and if he infringed on the
+   former, or disobeyed the latter, a fierce people set aside his
+   authority. * *
+
+   "His long hair was the only ornament he affected, and to be foremost
+   to attack an enemy was his chief distinction. Engaged in every
+   hazardous expedition, he was a stranger to repose; and, rivalled by
+   half the heroes of his tribe, he could obtain little power. Anxious
+   and watchful for the public interest, he felt every moment his
+   dependence, and gave proofs of his submission.
+
+   "He attended the general assembly of his nation, and was allowed the
+   privilege to harangue it first; but the arts of persuasion, though
+   known and respected by a rude people, were unequally opposed to the
+   prejudices and passions of men."--_Ditto_, p. 135-6.
+
+   "_The authority of a Saxon monarch was not more considerable. The
+   Saxons submitted not to the arbitrary rule of princes. They
+   administered an oath to their sovereigns, which bound them to
+   acknowledge the laws, and to defend the rights of the church and
+   people; and if they forgot this obligation, they forfeited their
+   office._ In both countries, a price was affixed on kings, a fine
+   expiated their murder, as well as that of the meanest citizen; and
+   the smallest violation of ancient usage, or the least step towards
+   tyranny, was always dangerous, and often fatal to them."--_Ditto_, p.
+   139-40.
+
+   "They were not allowed to impose taxes on the kingdom."--_Ditto_, p.
+   146.
+
+   "Like the German monarchs, they deliberated in the general assembly
+   of the nation; _but their legislative authority was not much
+   respected_; and their assent was considered in no better light than
+   as a form. This, however, was their chief prerogative; and they
+   employed it to acquire an ascendant in the state. To art and
+   insinuation they turned, as their only resource, and flattered a
+   people whom they could not awe; but address, and the abilities to
+   persuade, were a weak compensation for the absence of real power.
+
+   "They declared war, it is said, and made peace. In both cases,
+   however, they acted as the instruments of the state, and put in
+   execution the resolutions which its councils had decreed. If, indeed,
+   an enemy had invaded the kingdom, and its glory and its safety were
+   concerned, the great lords took the field at the call of their
+   sovereign. But had a sovereign declared war against a neighboring
+   state, without requiring their advice, or if he meant to revenge by
+   arms an insult offered to him by a subject, a haughty and independent
+   nobility refused their assistance. These they considered as the
+   quarrels of the king, and not of the nation; and in all such
+   emergencies he could only be assisted by his retainers and
+   dependents."--_Ditto_, p. 147-8.
+
+   "Nor must we imagine that the Saxon, any more than the German
+   monarchs, succeeded each other in a lineal descent,[35] or that they
+   disposed of the crown at their pleasure. In both countries, the free
+   election of the people filled the throne; and their choice was the
+   only rule by which princes reigned. The succession, accordingly, of
+   their kings was often broken and interrupted, and their depositions
+   were frequent and groundless. The will of a prince whom they had long
+   respected, and the favor they naturally transferred to his
+   descendant, made them often advance him to the royal dignity; but the
+   crown of his ancestor he considered as the gift of the people, and
+   neither expected nor claimed it as a right."--_Ditto_, p. 151-3.
+
+In Germany "It was the business of the great to command in war, and in
+peace they distributed justice. * *
+
+   "The _princes_ in Germany were _earls_ in England. The great
+   contended in both countries in the number of their retainers, and in
+   that splendor and magnificence which are so alluring to a rude
+   people; and though they joined to set bounds to regal power, they
+   were often animated against each other with the fiercest hatred. To a
+   proud and impatient nobility it seemed little and unsuiting to give
+   or accept compositions for the injuries they committed or received;
+   and their vassals adopting their resentment and passions, war and
+   bloodshed alone could terminate their quarrels. What necessarily
+   resulted from their situation in society, was continued as a
+   _privilege_; and the great, in both countries, made war, of their
+   private authority, on their enemies. The Saxon earls even carried
+   their arms against their sovereigns; and, surrounded with retainers,
+   or secure in fortresses and castles, they despised their resentment,
+   and defied their power.
+
+   "The judges of the people, they presided in both countries in courts
+   of law.[36] The particular districts over which they exerted their
+   authority were marked out in Germany by the council of the state; and
+   in England their jurisdiction extended over the fiefs and other
+   territories they possessed. All causes, both civil and criminal, were
+   tried before them; and they judged, except in cases of the utmost
+   importance, without appeal. They were even allowed to grant pardon to
+   criminals, and to correct by their clemency the rigors of justice.
+   Nor did the sovereign exercise any authority in their lands. In these
+   his officers formed no courts, and his _writ_ was disregarded. * *
+
+   "They had officers, as well as the king, who collected their
+   revenues, and added to their greatness; and the inhabitants of their
+   lands they distinguished by the name of _subjects_.
+
+   "But to attend the general assembly of their nation was the chief
+   prerogative of the German and Saxon princes; and as they consulted
+   the interest of their country, and deliberated concerning matters of
+   state, so in the _king's court_, of which also they were members,
+   they assisted to pronounce judgment in the complaints and appeals
+   which were lodged in it."--_Ditto_, p. 158 to 165.
+
+Henry says:
+
+   "Nothing can be more evident than this important truth; that our
+   Anglo-Saxon kings were not absolute monarchs; but that their powers
+   and prerogatives were limited by the laws and customs of the country.
+   Our Saxon ancestors had been governed by limited monarchs in their
+   native seats on the continent; and there is not the least appearance
+   or probability that they relinquished their liberties, and submitted
+   to absolute government in their new settlements in this island. It is
+   not to be imagined that men, whose reigning passion was the love of
+   liberty, would willingly resign it; and their new sovereigns, who had
+   been their fellow-soldiers, had certainly no power to compel them to
+   such a resignation."--_3 Henry's History of Great Britain_, 358.
+
+   Mackintosh says: "The Saxon chiefs, who were called kings, originally
+   acquired power by the same natural causes which have gradually, and
+   everywhere, raised a few men above their fellows. They were,
+   doubtless, more experienced, more skilful, more brave, or more
+   beautiful, than those who followed them. * * A king was powerful in
+   war by the lustre of his arms, and the obvious necessity of
+   obedience. His influence in peace fluctuated with his personal
+   character. In the progress of usage his power became more fixed and
+   more limited. * * It would be very unreasonable to suppose that the
+   northern Germans who had conquered England, had so far changed their
+   characteristic habits from the age of Tacitus, that the victors
+   became slaves, and that their generals were converted into
+   tyrants."--_Mackintosh's Hist. of England, Ch. 2._ _45 Lardner's Cab.
+   Cyc._, 73-4.
+
+Rapin, in his discourse on the "Origin and Nature of the English
+Constitution," says:
+
+   "There are but two things the Saxons did not think proper to trust
+   their kings with; for being of like passions with other men, they
+   might very possibly abuse them; namely, the power of changing the
+   laws enacted by consent of king and people; and the power of raising
+   taxes at pleasure. From these two articles sprung numberless branches
+   concerning the liberty and property of the subject, which the king
+   cannot touch, without breaking the constitution, and they are the
+   distinguishing character of the English monarchy. The prerogatives of
+   the crown, and the rights and privileges of the people, flowing from
+   the two fore-mentioned articles, are the ground of all the laws that
+   from time to time have been made by unanimous consent of king and
+   people. The English government consists in the strict union of the
+   king's prerogatives with the people's liberties. * * But when kings
+   arose, as some there were, that aimed at absolute power, by changing
+   the old, and making new laws, at pleasure; by imposing illegal taxes
+   on the people; this excellent government being, in a manner,
+   dissolved by these destructive measures, confusion and civil wars
+   ensued, which some very wrongfully ascribe to the fickle and restless
+   temper of the English."--_Rapin's Preface to his History of England._
+
+Hallam says that among the Saxons, "the royal authority was weak."--_2
+Middle Ages_, 403.
+
+But although the king himself had so little authority, that it cannot be
+supposed for a moment that his laws were regarded as imperative by the
+people, it has nevertheless been claimed, in modern times, by some who
+seem determined to find or make a precedent for the present legislative
+authority of parliament, that his laws were authoritative, _when
+assented to_ by the _Witena-gemote_, or assembly of wise men--that is,
+the bishops and barons. But this assembly evidently had no legislative
+power whatever. The king would occasionally invite the bishops and
+barons to meet him for consultation on public affairs, _simply as a
+council_, and not as a legislative body. Such as saw fit to attend, did
+so. If they were agreed upon what ought to be done, the king would pass
+a law accordingly, and the barons and bishops would then return and
+inform the people orally what laws had been passed, and use their
+influence with them to induce them to conform to the law of the king,
+and the recommendation of the council. And the people no doubt were much
+more likely to accept a law of the king, if it had been approved by this
+council, than if it had not. But it was still only a law of the king,
+which they obeyed or disregarded according to their own notions of
+expediency. The numbers who usually attended this council were too small
+to admit of the supposition that they had any legislative authority
+whatever, to impose laws upon the people against their will.
+
+Lingard says:
+
+   "It was necessary that the king should obtain the assent of these
+   (the members of the Witena-gemotes) to all legislative enactments;
+   _because, without their acquiescence and support, it was impossible
+   to carry them into execution_. To many charters (laws) we have the
+   signatures of the Witan. _They seldom exceed thirty in number; they
+   never amount to sixty._"--_1 Lingard_, 486.
+
+It is ridiculous to suppose that the assent of such an assembly gave any
+_authority_ to the laws of the king, or had any influence in securing
+obedience to them, otherwise than by way of persuasion. If this body had
+had any real legislative authority, such as is accorded to legislative
+bodies of the present day, they would have made themselves at once the
+most conspicuous portion of the government, and would have left behind
+them abundant evidence of their power, instead of the evidence simply of
+their assent to a few laws passed by the king.
+
+More than this. If this body had had any real legislative authority,
+they would have constituted an aristocracy, having, in conjunction with
+the king, absolute power over the people. Assembling voluntarily, merely
+on the invitation of the king; deputed by nobody but themselves;
+representing nobody but themselves; responsible to nobody but
+themselves; their legislative authority, if they had had any, would of
+necessity have made the government the government of an aristocracy
+merely, _and the people slaves, of course_. And this would necessarily
+have been the picture that history would have given us of the
+Anglo-Saxon government, _and of Anglo-Saxon liberty_.
+
+The fact that the people had no representation in this assembly, and the
+further fact that, through their juries alone, they nevertheless
+maintained that noble freedom, the very tradition of which (after the
+substance of the thing itself has ceased to exist) has constituted the
+greatest pride and glory of the nation to this day, _prove_ that this
+assembly exercised no authority which juries of the people acknowledged,
+except at their own discretion.[37]
+
+There is not a more palpable truth, in the history of the Anglo-Saxon
+government, than that stated in the Introduction to Gilbert's History of
+the Common Pleas,[38] viz., "_that the County and Hundred Courts_," (to
+which should have been added the other courts in which juries sat, the
+courts-baron and court-leet,) "_in those times were the real and only
+Parliaments of the kingdom_." And why were they the real and only
+parliaments of the kingdom? Solely because, as will be hereafter shown,
+the juries in those courts tried causes on their intrinsic merits,
+according to their own ideas of justice, irrespective of the laws agreed
+upon by kings, priests, and barons; and whatever principles they
+uniformly, or perhaps generally, enforced, _and none others_, became
+practically the law of the land as matter of course.[39]
+
+Finally, on this point. Conclusive proof that the legislation of the
+king was of little or no authority, is found in the fact _that the kings
+enacted so few laws_. If their laws had been received as authoritative,
+in the manner that legislative enactments are at this day, they would
+have been making laws continually. Yet the codes of the most celebrated
+kings are very small, and were little more than compilations of
+immemorial customs. The code of Alfred would not fill twelve pages of
+the statute book of Massachusetts, and was little or nothing else than a
+compilation of the laws of Moses, and the Saxon customs, evidently
+collected from considerations of convenience, rather than enacted on the
+principle of authority. The code of Edward the Confessor would not fill
+twenty pages of the statute book of Massachusetts, and, says Blackstone,
+"seems to have been no more than a new edition, or fresh promulgation of
+Alfred's code, or _dome-book_, with such additions and improvements as
+the experience of a century and a half suggested."--_1 Blackstone_,
+66.[40]
+
+The Code of William the Conqueror[41] would fill less than seven pages
+of the statute book of Massachusetts; and most of the laws contained in
+it are taken from the laws of the preceding kings, and especially of
+Edward the Confessor (whose laws William swore to observe); but few of
+his own being added.
+
+The codes of the other Saxon and Norman kings were, as a general rule,
+less voluminous even than these that have been named; and probably did
+not exceed them in originality.[42] The Norman princes, from William the
+Conqueror to John, I think without exception, bound themselves, and, in
+order to maintain their thrones, were obliged to bind themselves, to
+observe the ancient laws and customs, in other words, the "_lex terræ_,"
+or "_common law_" of the kingdom. Even Magna Carta contains hardly
+anything other than this same "_common law_," with some new securities
+for its observance.
+
+How is this abstinence from legislation, on the part of the ancient
+kings, to be accounted for, except on the supposition that the people
+would accept, and juries enforce, few or no new laws enacted by their
+kings? Plainly it can be accounted for in no other way. In fact, all
+history informs us that anciently the attempts of the kings to introduce
+or establish new laws, met with determined resistance from the people,
+and generally resulted in failure. "_Nolumus Leges Angliæ mutari_," (we
+will that the laws of England be not changed,) was a determined
+principle with the Anglo-Saxons, from which they seldom departed, up to
+the time of Magna Carta, and indeed until long after.[43]
+
+
+SECTION II.
+
+_The Ancient Common Law Juries were mere Courts of Conscience._
+
+But it is in the administration of justice, or of law, that the freedom
+or subjection of a people is tested. If this administration be in
+accordance with the arbitrary will of the legislator--that is, if his
+will, as it appears in his statutes, be the highest rule of decision
+known to the judicial tribunals,--the government is a despotism, and the
+people are slaves. If, on the other hand, the rule of decision be those
+principles of natural equity and justice, which constitute, or at least
+are embodied in, the general conscience of mankind, the people are free
+in just so far as that conscience is enlightened.
+
+That the authority of the king was of little weight with the _judicial
+tribunals_, must necessarily be inferred from the fact already stated,
+that his authority over the _people_ was but weak. If the authority of
+his laws had been paramount in the judicial tribunals, it would have
+been paramount with the people, of course; because they would have had
+no alternative but submission. The fact, then, that his laws were _not_
+authoritative with the people, is proof that they were _not_
+authoritative with the tribunals--in other words, that they were not, as
+matter of course, enforced by the tribunals.
+
+But we have additional evidence that, up to the time of Magna Carta, the
+laws of the king were not binding upon the judicial tribunals; and if
+they were not binding before that time, they certainly were not
+afterwards, as has already been shown from Magna Carta itself. It is
+manifest from all the accounts we have of the courts in which juries
+sat, prior to Magna Carta, such as the court-baron, the hundred court,
+the court-leet, and the county court, _that they were mere courts of
+conscience, and that the juries were the judges, deciding causes
+according to their own notions of equity, and not according to any laws
+of the king, unless they thought them just_.
+
+These courts, it must be considered, were very numerous, and held very
+frequent sessions. There were probably seven, eight, or nine hundred
+courts _a month_, in the kingdom; the object being, as Blackstone says,
+"_to bring justice home to every man's door_." (_3 Blackstone_, 30.) The
+number of the _county_ courts, of course, corresponded to the number of
+counties, (36.) The _court-leet_ was the criminal court for a district
+less than a county. The _hundred court_ was the court for one of those
+districts anciently called a _hundred_, because, at the time of their
+first organization for judicial purposes, they comprised (as is
+supposed) but a hundred families.[44] The court-baron was the court for
+a single manor, and there was a court for every manor in the kingdom.
+All these courts were holden as often as once in three or five weeks;
+the county court once a month. The king's judges were present at none of
+these courts; the only officers in attendance being sheriffs, bailiffs,
+and stewards, merely ministerial, and not judicial, officers; doubtless
+incompetent, and, if not incompetent, untrustworthy, for giving the
+juries any reliable information in matters of law, beyond what was
+already known to the jurors themselves. And yet these were the courts,
+in which was done all the judicial business, both civil and criminal, of
+the nation, except appeals, and some of the more important and difficult
+cases.[45] It is plain that the juries, in these courts, must, of
+necessity, have been the sole judges of all matters of law whatsoever;
+because there was no one present, but sheriffs, bailiffs, and stewards,
+to give them any instructions; and surely it will not be pretended that
+the jurors were bound to take their law from such sources as these.
+
+In the second place, it is manifest that the principles of law, by which
+the juries determined causes, were, as a general rule, nothing else than
+their own ideas of natural equity, _and not any laws of the king_;
+because but few laws were enacted, and many of those were not written,
+but only agreed upon in council.[46] Of those that were written, few
+copies only were made, (printing being then unknown,) and not enough to
+supply all, or any considerable number, of these numerous courts. Beside
+and beyond all this, few or none of the jurors could have read the laws,
+if they had been written; because few or none of the common people
+could, at that time, read. Not only were the common people unable to
+read their own language, but, at the time of Magna Carta, the laws were
+written in Latin, a language that could be read by few persons except
+the priests, who were also the lawyers of the nation. Mackintosh says,
+"the first act of the House of Commons composed and recorded in the
+English tongue," was in 1415, two centuries after Magna Carta.[47] Up to
+this time, and for some seventy years later, the laws were generally
+written either in Latin or French; both languages incapable of being
+read by the common people, as well Normans as Saxons; and one of them,
+the Latin, not only incapable of being read by them, but of being even
+understood when it was heard by them.
+
+To suppose that the people were bound to obey, and juries to enforce,
+laws, many of which were unwritten, none of which _they_ could read, and
+the larger part of which (those written in Latin) they could not
+translate, or understand when they heard them read, is equivalent to
+supposing the nation sunk in the most degrading slavery, instead of
+enjoying a liberty of their own choosing.
+
+Their knowledge of the laws passed by the king was, of course, derived
+only from oral information; and "_the good laws_," as some of them were
+called, in contradistinction to others--those which the people at large
+esteemed to be good laws--were doubtless enforced by the juries, and the
+others, as a general thing, disregarded.[48]
+
+That such was the nature of judicial proceedings, and of the power of
+juries, up to the time of Magna Carta, is further shown by the following
+authorities.
+
+   "The sheriffs and bailiffs caused the free tenants of their bailiwics
+   to meet at their counties and hundreds; _at which justice was so
+   done, that every one so judged his neighbor by such judgment as a man
+   could not elsewhere receive in the like cases_, until such times as
+   the customs of the realm were put in writing, and certainly
+   published.
+
+   "And although a freeman commonly was not to serve (as a juror or
+   judge) without his assent, nevertheless it was assented unto that
+   free tenants should meet together in the counties and hundreds, and
+   lords courts, if they were not specially exempted to do such suits,
+   and _there judged their neighbors_."--_Mirror of Justices_, p. 7, 8.
+
+Gilbert, in his treatise on the Constitution of England, says:
+
+   "In the county courts, if the debt was above forty shillings, there
+   issued a _justicies_ (a commission) to the sheriff, to enable him to
+   hold such a plea, _where the suitors_ (_jurors_) _are judges of the
+   law and fact_."--_Gilbert's Cases in Law and Equity, &c., &c._, 456.
+
+All the ancient writs, given in Glanville, for summoning jurors,
+indicate that the jurors judged of everything, _on their consciences
+only_. The writs are in this form:
+
+   "Summon twelve free and legal men (or sometimes twelve knights) to be
+   in court, _prepared upon their oaths to declare whether A or B have
+   the greater right to the land_ (_or other thing_) _in question_." See
+   Writs in Beames' Glanville, p. 54 to 70, and 233-306 to 332.
+
+Crabbe, speaking of the time of Henry I., (1100 to 1135,) recognizes the
+fact that the jurors were the judges. He says:
+
+   "By one law, every one was to be tried by his peers, who were of the
+   same neighborhood as himself. * * By another law, _the judges, for so
+   the jury were called_, were to be chosen by the party impleaded,
+   after the manner of the Danish _nembas_; by which, probably, is to be
+   understood that the defendant had the liberty of taking exceptions
+   to, or challenging the jury, as it was afterwards called."--_Crabbe's
+   History of the English Law_, p. 55.
+
+Reeve says:
+
+   "The great court for _civil_ business was the _county court_; held
+   once every four weeks. Here the sheriff presided; _but the suitors of
+   the court, as they were called, that is, the freemen or landholders
+   of the county, were the judges_; and the sheriff was to execute the
+   judgment. * *
+
+   "The _hundred court_ was held before _some bailiff_; the _leet_
+   before the lord of the manor's steward.[49] * *
+
+   "Out of the county court was derived an inferior court of _civil_
+   jurisdiction, called the _court-baron_. This was held from three
+   weeks to three weeks, and _was in every respect like the county
+   court_;" (_that is, the jurors were judges in it_;) "only the lord to
+   whom this franchise was granted, or _his steward_, _presided instead
+   of the sheriff_."--_1 Reeve's History of the English Law_, p. 7.
+
+Chief Baron Gilbert says:
+
+   "Besides the tenants of the king, which held _per baroniam_, (by the
+   right of a baron,) and did suit and service (served as judges) at his
+   own court; and the burghers and tenants in ancient demesne, that did
+   suit and service (served as jurors or judges) in their own court in
+   person, and in the king's by proxy, there was also a set of
+   freeholders, that did suit and service (served as jurors) at the
+   county court. These were such as anciently held of the lord of the
+   county, and by the escheats of earldoms had fallen to the king; or
+   such as were granted out by service to hold of the king, but with
+   particular reservation to do suit and service (serve as jurors)
+   before the king's bailiff; _because it was necessary the sheriff, or
+   bailiff of the king, should have suitors_ (_jurors_) _at the county
+   court, that the business might be despatched. These suitors are the
+   pares_ (_peers_) _of the county court, and indeed the judges of it;
+   as the pares_ (_peers_) _were the judges in every court-baron_; and
+   therefore the king's bailiff having a court before him, there must be
+   _pares or judges, for the sheriff himself is not a judge_; and though
+   the style of the court is _Curia prima Comitatus E.C. Milit.'
+   vicecom' Comitat' præd' Tent' apud B._, &c. (First Court of the
+   county, E.C. knight, sheriff of the aforesaid county, held at B., &c.);
+   by which it appears that the court was the sheriff's; _yet, by
+   the old feudal constitutions, the lord was not judge, but the pares_
+   (_peers_) _only_; so that, even in a _justicies_, which was a
+   commission to the sheriff to hold plea of more than was allowed by
+   the natural jurisdiction of a county court, _the pares_ (_peers,
+   jurors_) _only were judges, and not the sheriff_; because it was to
+   hold plea in the same manner as they used to do in that (the lord's)
+   court."--_Gilbert on the Court of Exchequer_, ch. 5, p. 61-2.
+
+   "It is a distinguishing feature of the feudal system, to make civil
+   jurisdiction necessarily, and criminal jurisdiction ordinarily,
+   coëxtensive with tenure; and accordingly there is inseparably
+   incident to every manor a court-baron (curia baronum), _being a court
+   in which the freeholders of the manor are the sole judges_, but in
+   which the lord, by himself, or more commonly by his steward,
+   presides."--_Political Dictionary_, word _Manor_.
+
+The same work, speaking of the county court, says: "_The judges were the
+freeholders who did suit to the court._" See word _Courts_.
+
+   "In the case of freeholders attending as suitors, the county court
+   or court-baron, (as in the case of the ancient tenants _per baroniam_
+   attending Parliament,) _the suitors are the judges of the court, both
+   for law and for fact_, and the sheriff or the under sheriff in the
+   county court, and the lord or his steward in the court-baron, are
+   only presiding officers, _with no judicial authority_."--_Political
+   Dictionary_, word _Suit_.
+
+   "COURT, (curtis, curia aula); the space enclosed by the walls of a
+   feudal residence, in which the followers of a lord used to assemble
+   in the middle ages, to administer justice, and decide respecting
+   affairs of common interest, &c. It was next used for those who stood
+   in immediate connexion with the lord and master, the _pares curiæ_,
+   (peers of the court,) the limited portion of the general assembly, to
+   which was entrusted the pronouncing of judgment," &c.--_Encyclopedia
+   Americana_, word _Court_.
+
+   "In court-barons or county courts _the steward was not judge, but the
+   pares_ (_peers_, _jurors_); nor was the speaker in the House of Lords
+   judge, but the barons only."--_Gilbert on the Court of Exchequer_,
+   ch. 3, p. 42.
+
+Crabbe, speaking of the Saxon times, says:
+
+   "The sheriff presided at the _hundred court_, * * and sometimes sat
+   in the place of the alderman (earl) in the _county
+   court_."--_Crabbe_, 23.
+
+The sheriff afterwards became the sole presiding officer of the county
+court.
+
+Sir Thomas Smith, Secretary of State to Queen Elizabeth, writing more
+than three hundred years after Magna Carta, in describing the difference
+between the Civil Law and the English Law, says:
+
+   "_Judex_ is of us called Judge, but our fashion is so divers, that
+   they which give the deadly stroke, and either condemn or acquit the
+   man for guilty or not guilty, _are not called judges, but the twelve
+   men. And the same order as well in civil matters and pecuniary, as in
+   matters criminal_."--_Smith's Commonwealth of England_, ch. 9, p. 53,
+   Edition of 1621.
+
+   _Court-Leet._ "That the _leet_ is the most ancient court in the land
+   for _criminal_ matters, (the court-baron being of no less antiquity
+   in _civil_,) has been pronounced by the highest legal authority. * *
+   Lord Mansfield states that this court was coeval with the
+   establishment of the Saxons here, and its activity marked very
+   visibly both among the Saxons and Danes. * * The leet is a court of
+   record for the cognizance of criminal matters, or pleas of the crown;
+   and necessarily belongs to the king; though a subject, usually the
+   lord of the manor, may be, and is, entitled to the profits,
+   consisting of the essoign pence, fines, and amerciaments.
+
+   "_It is held before the steward, or was, in ancient times, before the
+   bailiff, of the lord._"--_Tomlin's Law Dict._, word _Court-Leet_.
+
+Of course the jury were the judges in this court, where only a "steward"
+or "bailiff" of a manor presided.
+
+   "No cause of consequence was determined without the king's writ; for
+   even in the county courts, of the debts, which were above forty
+   shillings, there issued a _Justicies_ (commission) to the sheriff, to
+   enable him to hold such plea, _where the suitors are judges of the
+   law and fact_."--_Gilbert's History of the Common Pleas,
+   Introduction_, p. 19.
+
+   "This position" (that "the matter of law was decided by the King's
+   Justices, but the matter of fact by the pares") "_is wholly
+   incompatible with the common law, for the Jurata (jury) were the sole
+   judges both of the law and the fact_."--_Gilbert's History of the
+   Common Pleas_, p. 70, _note_.
+
+   We come now to the challenge; and of old _the suitors in court, who
+   were judges_, could not be challenged; nor by the feudal law could
+   the _pares_ be even challenged, _Pares qui ordinariam jurisdictionem
+   habent recusari non possunt_; (the peers who have ordinary
+   jurisdiction cannot be rejected;) "_but those suitors who are judges
+   of the court_, could not be challenged; and the reason is, that there
+   are several qualifications required by the writ, viz., that they be
+   _liberos et legales homines de vincineto_ (free and legal men of the
+   neighborhood) of the place laid in the declaration," &c.,
+   &c.--_Ditto_, p. 93.
+
+   "_Ad questionem juris non respondent Juratores._" (To the question of
+   law the jurors do not answer.) "The Annotist says, that this is
+   indeed a maxim in the Civil-Law Jurisprudence, _but it does not bind
+   an English jury, for by the common law of the land the jury are
+   judges as well of the matter of law, as of the fact_, with this
+   difference only, that the (a Saxon word) or judge on the bench is to
+   give them no assistance in determining the matter of _fact_, but if
+   they have any doubt among themselves relating to matter of _law_,
+   they may then request him to explain it to them, which when he hath
+   done, and they are thus become well informed, they, and they only,
+   become competent judges of the matter of _law_. And this is the
+   province of the judge on the bench, namely, to show, or _teach_ the
+   law, but not to take upon him the trial of the delinquent, either in
+   matter of fact or in matter of law." (Here various Saxon laws are
+   quoted.) "In neither of these fundamental laws is there the least
+   word, hint, or idea, that the earl or alderman (that is to say, the
+   _Prepositus_ (presiding officer) of the court, which is tantamount to
+   _the judge on the bench_) is to take upon him to judge the delinquent
+   in any sense whatever, the sole purport of his office is to _teach_
+   the secular or worldly law."--_Ditto_, p. 57, _note_.
+
+   "The administration of justice was carefully provided for; it was not
+   the caprice of their lord, _but the sentence of their peers, that
+   they obeyed. Each was the judge of his equals, and each by his equals
+   was judged._"--_Introd. to Gilbert on Tenures_, p. 12.
+
+   Hallam says: "A respectable class of free socagers, having, in
+   general, full rights of alienating their lands, and holding them
+   probably at a small certain rent from the lord of the manor,
+   frequently occur in Domes-day Book. * * They undoubtedly were suitors
+   to the court-baron of the lord, to whose soc, or right of justice,
+   they belonged. _They were consequently judges in civil causes,
+   determined before the manorial tribunal._"--_2 Middle Ages_, 481.
+
+Stephens adopts as correct the following quotations from Blackstone:
+
+   "The _Court-Baron_ is a court incident to every manor in the kingdom,
+   to be holden by the steward within the said manor." * * _It "is a
+   court of common law, and it is the court before the freeholders who
+   owe suit and service to the manor_," (are bound to serve as jurors in
+   the courts of the manor,) "_the steward being rather the registrar
+   than the judge_. * * The freeholders' court was composed of the
+   lord's tenants, who were the _pares_ (equals) of each other, and were
+   bound by their feudal tenure to assist their lord in the dispensation
+   of domestic justice. This was formerly held every three weeks; _and
+   its most important business was to determine, by writ of right, all
+   controversies relating to the right of lands within the manor_."--_3
+   Stephens' Commentaries_, 392-3. _3 Blackstone_, 32-3.
+
+   "A _Hundred Court_ is only a larger court-baron, being held for all
+   the inhabitants of a particular hundred, instead of a manor. _The
+   free suitors (jurors) are here also the judges, and the steward the
+   register._"--_3 Stephens_, 394. _3 Blackstone_, 33.
+
+   "The _County Court_ is a court incident to the jurisdiction of the
+   sheriff. * * _The freeholders of the county are the real judges in
+   this court, and the sheriff is the ministerial officer._"--_3
+   Stephens_, 395-6. _3 Blackstone_, 35-6.
+
+Blackstone describes these courts, as courts "_wherein injuries were
+redressed in an easy and expeditious manner, by the suffrage of
+neighbors and friends_."--_3 Blackstone_, 30.
+
+   "When we read of a certain number of _freemen_ chosen by the parties
+   to decide in a dispute--all bound by oath to vote _in foro
+   conscientia_--and that _their_ decision, _not the will of the judge
+   presiding, ended the suit_, we at once perceive that a great
+   improvement has been made in the old form of compurgation--an
+   improvement which impartial observation can have no hesitation to
+   pronounce as identical in its main features with the trial by
+   jury."--_Dunham's Middle Ages_, Sec. 2, B. 2, Ch. 1. _57 Lardner's
+   Cab. Cyc._, 60.
+
+   "The bishop and the earl, or, in his absence, the gerefa, (sheriff,)
+   and sometimes both the earl and the gerefa, presided at the
+   _schyre-mote_ (county court); the gerefa (sheriff) usually alone
+   presided at the _mote_ (meeting or court) of the hundred. In the
+   cities and towns which were not within any peculiar jurisdiction,
+   there was held, at regular stated intervals, a _burgh mote_, (borough
+   court,) for the administration of justice, at which a gerefa, or a
+   magistrate appointed by the king, presided."--_Spence's Origin of the
+   Laws and Political Institutions of Modern Europe_, p. 444.
+
+   "The right of the plaintiff and defendant, and of the prosecutor and
+   criminal, _to challenge the judices_, (judges,) _or assessors,[50]
+   appointed to try the cause in civil matters, and to decide upon the
+   guilt or innocence of the accused in criminal matters_, is recognized
+   in the treatise called the Laws of Henry the First; but I cannot
+   discover, from the Anglo-Saxon laws or histories, that before the
+   Conquest the parties had any general right of challenge; _indeed, had
+   such right existed, the injunctions to all persons standing in the
+   situation of judges (jurors) to do right according to their
+   conscience_, would scarcely have been so frequently and anxiously
+   repeated."--_Spence_, 456.
+
+Hale says:
+
+   "The administration of the common justice of the kingdom seems to be
+   wholly dispensed in the county courts, hundred courts, and
+   courts-baron; except some of the greater crimes reformed by the laws
+   of King Henry I., and that part thereof which was sometimes taken up
+   by the _Justitiarius Angliæ_."
+
+   This doubtless bred great inconvenience, uncertainty, and variety in
+   the laws, viz.:
+
+   "_First, by the ignorance of the judges, which were the freeholders
+   of the county._ * *
+
+   "Thirdly, a third inconvenience was, that all the business of any
+   moment was carried by parties and factions. _For the freeholders
+   being generally the judges_, and conversing one among another, _and
+   being as it were the chief judges, not only of the fact, but of the
+   law_; every man that had a suit there, sped according as he could
+   make parties."--_1 Hale's History of the Common Law_, p. 246.
+
+   "In all these tribunals," (county court, hundred court, &c.,) "_the
+   judges were the free tenants_, owing suit to the court, and
+   afterwards called its peers."--_1 Lingard's History of England_, 488.
+
+Henry calls the twelve jurors "assessors," and says:
+
+   "These assessors, _who were in reality judges_, took a solemn oath,
+   that they would faithfully discharge the duties of their office, and
+   not suffer an innocent man to be condemned, nor any guilty person to
+   be acquitted."--_3 Henry's History of Great Britain_, 346.
+
+Tyrrell says:
+
+   "Alfred cantoned his kingdom, first into _Trihings_ and _Lathes_, as
+   they are still called in Kent and other places, consisting of three
+   or four Hundreds; _in which, the freeholders being judges_, such
+   causes were brought as could not be determined in the Hundred
+   court."--_Tyrrell's Introduction to the History of England_, p. 80.
+
+Of the _Hundred Court_ he says:
+
+   "In this court anciently, _one of the principal inhabitants, called
+   the alderman, together with the barons of the Hundred[51]--id est the
+   freeholders--was judge_."--_Ditto_, p. 80.
+
+Also he says:
+
+   "By a law of Edward the Elder, 'Every sheriff shall convene the
+   people once a month, and do equal right to all, putting an end to
+   controversies at times appointed.'"--_Ditto_, p. 86.
+
+   "A statute, emphatically termed the 'Grand Assize,' enabled the
+   defendant, if he thought proper, to abide by the testimony of the
+   twelve good and lawful knights, chosen by four others of the
+   vicinage, _and whose oaths gave a final decision to the contested
+   claim_."--_1 Palgrave's Rise and Progress of the English
+   Commonwealth_, 261.
+
+   "From the moment when the crown became accustomed to the 'Inquest,' a
+   restraint was imposed upon every branch of the prerogative. _The king
+   could never be informed of his rights, but through the medium of the
+   people._ Every 'extent' by which he claimed the profits and
+   advantages resulting from the casualties of tenure, every process by
+   which he repressed the usurpations of the baronage, depended upon the
+   'good men and true' who were impanelled to 'pass' between the subject
+   and the sovereign; and the thunder of the Exchequer at Westminster
+   might be silenced by the honesty, the firmness, or the obstinacy, of
+   one sturdy knight or yeoman in the distant shire.
+
+   Taxation was controlled in the same manner by the voice of those who
+   were most liable to oppression. * * A jury was impanelled to adjudge
+   the proportion due to the sovereign; and this course was not
+   essentially varied, even after the right of granting aids to the
+   crown was fully acknowledged to be vested in the parliament of the
+   realm. The people taxed themselves; and the collection of the grants
+   was checked and controlled, and, perhaps, in many instances evaded,
+   by these virtual representatives of the community.
+
+   The principle of the jury was, therefore, not confined to its mere
+   application as a mode of trying contested facts, whether in civil or
+   criminal cases; and, both in its form and in its consequences, it had
+   a very material influence upon the general constitution of the realm.
+   * * The main-spring of the machinery of remedial justice existed in
+   the franchise of the lower and lowest orders of the political
+   hierarchy. Without the suffrage of the yeoman, the burgess, and the
+   churl, the sovereign could not exercise the most important and most
+   essential function of royalty; from them he received the power of
+   life and death; he could not wield the sword of justice until the
+   humblest of his subjects placed the weapon in his hand."--_1
+   Palgrave's Rise and Progress of the English Constitution_, 274-7.
+
+Coke says, "The court of the county is no court of record,[52] _and the
+suitors are the judges thereof_."--_4 Inst._, 266.
+
+Also, "The court of the Hundred is no court of record, _and the suitors
+be thereof judges_."--_4 Inst._, 267.
+
+Also, "The court-baron is a court incident to every manor, and is not of
+record, _and the suitors be thereof judges_."--_4 Inst._, 268.
+
+Also, "The court of ancient demesne is in the nature of a court-baron,
+_wherein the suitors are judges_, and is no court of record."--_4
+Inst._, 269.
+
+Millar says, "Some authors have thought that jurymen were originally
+_compurgators_, called by a defendant to swear that they believed him
+innocent of the facts with which he was charged.... But ... compurgators
+were merely witnesses; _jurymen were, in reality, judges_. The former
+were called to confirm the oath of the party by swearing, according to
+their belief, that he had told the truth, (in his oath of purgation;)
+_the latter were appointed to try, by witnesses, and by all other means
+of proof, whether he was innocent or guilty_.... Juries were accustomed
+to ascertain the truth of facts, by the defendant's oath of purgation,
+together with that of his compurgators.... Both of them (jurymen and
+compurgators) were obliged to swear that they would _tell the truth_....
+According to the simple idea of our forefathers, guilt or innocence was
+regarded as a mere matter of fact; and it was thought that no man, who
+knew the real circumstances of a case, could be at a loss to determine
+whether the culprit ought to be condemned or acquitted."--_1 Millar's
+Hist. View of Eng. Gov._, ch. 12, p. 332-4.
+
+Also, "The same form of procedure, which took place in the
+administration of justice among the vassals of a barony, was gradually
+extended to the courts held in the _trading towns_."--_Same_, p. 335.
+
+Also, "The same regulations, concerning the distribution of justice by
+the intervention of juries, ... _were introduced into the baron courts
+of the king_, as into those of the nobility, or such of his subjects as
+retained their allodial property."--_Same_, p. 337.
+
+Also. "This tribunal" (the _aula regis_, or king's court, afterwards
+divided into the courts of King's Bench, Common Pleas, and Exchequer)
+"was properly the ordinary baron-court of the king; and, being in the
+same circumstances with the baron-courts of the nobility, it was under
+the same necessity of trying causes by the intervention of a
+jury."--_Same_, vol. 2, p. 292.
+
+Speaking of the times of Edward the First, (1272 to 1307,) Millar says:
+
+"What is called the petty jury was therefore introduced into these
+tribunals, (the King's Bench, the Common Pleas, and the _Exchequer_,) as
+well as into their auxiliary courts employed to distribute justice in
+the circuits; and was thus rendered essentially necessary in determining
+causes of every sort, whether civil, criminal, or _fiscal_."--_Same_,
+vol. 2, p. 293-4.
+
+Also, "That this form of trial (by jury) obtained universally in all the
+feudal governments, as well as in that of England, there can be no
+reason to doubt. In France, in Germany, and in other European countries,
+where we have any accounts of the constitution and procedure of the
+feudal courts, it appears that lawsuits of every sort concerning the
+freemen or vassals of a barony, were determined by the _pares curiæ_
+(peers of the court;) _and that the judge took little more upon him than
+to regulate the method of proceeding, or to declare the verdict of the
+jury_."--_Same_, vol. 1, ch. 12, p. 329.
+
+Also, "Among the Gothic nations of modern Europe, the custom of deciding
+lawsuits by a jury seems to have prevailed universally; first in the
+allodial courts of the county, or of the hundred, and afterwards in the
+baron-courts of every feudal superior."--_Same_, vol. 2, p. 296.
+
+Palgrave says that in Germany "The Graff (gerefa, sheriff) placed
+himself in the seat of judgment, and gave the charge to the assembled
+free Echevins, warning them to pronounce judgment according to right and
+justice."--2 _Palgrave_, 147.
+
+Also, that, in Germany, "The Echevins were composed of the villanage,
+somewhat obscured in their functions by the learning of the grave
+civilian who was associated to them, and somewhat limited by the
+encroachments of modern feudality; _but they were still substantially
+the judges of the court_."--_Same_, 148.
+
+Palgrave also says, "Scotland, in like manner, had the laws of Burlaw,
+or Birlaw, which were made and determined by the neighbors, elected by
+common consent, in the Burlaw or Birlaw courts, wherein knowledge was
+taken of complaints between neighbor and neighbor, _which men, so
+chosen, were judges and arbitrators_, and called Birlaw men."--1
+_Palgrave's Rise_, &c., p. 80.
+
+But, in order to understand the common law trial by jury, as it existed
+prior to Magna Carta, and as it was guaranteed by that instrument, it is
+perhaps indispensable to understand more fully the nature of the courts
+in which juries sat, and the extent of the powers exercised by juries in
+those courts. I therefore give in a note extended extracts, on these
+points, from Stuart on the Constitution of England, and from
+Blackstone's Commentaries.[53]
+
+That all these courts were mere _courts of conscience, in which the
+juries were sole judges, administering justice according to their own
+ideas of it_, is not only shown by the extracts already given, but is
+explicitly acknowledged in the following one, in which the _modern
+"courts of conscience"_ are compared with the _ancient hundred and
+county courts_, and the preference given to the latter, on the ground
+that the duties of the jurors in the one case, and of the commissioners
+in the other, are the same, and that the consciences of a jury are a
+safer and purer tribunal than the consciences of individuals specially
+appointed, and holding permanent offices.
+
+   "But there is one species of courts constituted by act of Parliament,
+   in the city of London, and other trading and populous districts,
+   which, in their proceedings, so vary from the course of the common
+   law, that they deserve a more particular consideration. I mean the
+   court of requests, _or courts of conscience_, for the recovery of
+   small debts. The first of these was established in London so early as
+   the reign of Henry VIII., by an act of their common council; which,
+   however, was certainly insufficient for that purpose, and illegal,
+   till confirmed by statute 3 Jac. I., ch. 15, which has since been
+   explained and amended by statute 14 Geo. II., ch. 10. The
+   constitution is this: two aldermen and four commoners sit twice a
+   week to hear all causes of debt not exceeding the value of forty
+   shillings; which they examine in a summary way, by the oath of the
+   parties or other witnesses, _and make such order therein as is
+   consonant to equity and good conscience_.* * Divers trading towns and
+   other districts have obtained acts of Parliament, for establishing
+   in them _courts of conscience_ upon nearly the same plan as that in
+   the city of London.
+
+   "The anxious desire that has been shown to obtain these several acts,
+   proves clearly that the nation, in general, is truly sensible of the
+   great inconvenience arising from the disuse of the ancient county and
+   hundred courts, wherein causes of this small value were always
+   formerly decided with very little trouble and expense to the parties.
+   But it is to be feared that the general remedy, which of late hath
+   been principally applied to this inconvenience, (the erecting these
+   new jurisdictions,) may itself be attended in time with very ill
+   consequences; as the method of proceeding therein is entirely in
+   derogation of the common law; and their large discretionary powers
+   create a petty tyranny in a set of standing commissioners; and as the
+   disuse of the trial by jury may tend to estrange the minds of the
+   people from that valuable prerogative of Englishmen, which has
+   already been more than sufficiently excluded in many instances. _How
+   much rather is it to be wished that the proceedings in the county and
+   hundred courts could be again revived_, without burdening the
+   freeholders with too frequent and tedious attendances; and at the
+   same time removing the delays that have insensibly crept into their
+   proceedings, and the power that either party has of transferring at
+   pleasure their suits to the courts at Westminster! _And we may, with
+   satisfaction, observe, that this experiment has been actually tried,
+   and has succeeded in the populous county of Middlesex_, which might
+   serve as an example for others. For by statute 23 Geo. II., ch. 33,
+   it is enacted:
+
+   1. That a special county court shall be held at least once in a
+   month, in every hundred of the county of Middlesex, _by the county
+   clerk_.
+
+   2. _That twelve freeholders of that hundred, qualified to serve on
+   juries, and struck by the sheriff, shall be summoned to appear at
+   such court by rotation_; so as none shall be summoned oftener than
+   once a year.
+
+   3. That in all causes not exceeding the value of forty shillings,
+   _the county clerk and twelve suitors (jurors) shall proceed in a
+   summary way_, examining the parties and witnesses on oath, without
+   the formal process anciently used; _and shall make such order therein
+   as they shall judge agreeable to conscience_."--_3 Blackstone_,
+   81-83.
+
+What are these but courts of conscience? And yet Blackstone tells us
+they are a _revival of the ancient hundred and county courts_. And what
+does this fact prove, but that the ancient common law courts, in which
+juries sat, were mere courts of conscience?
+
+It is perfectly evident that in all these courts the jurors were the
+judges, and determined all questions of law for themselves; because the
+only alternative to that supposition is, _that the jurors took their law
+from sheriffs, bailiffs, and stewards_, of which there is not the least
+evidence in history, nor the least probability in reason. It is evident,
+also, that they judged independently of the laws of the king, for the
+reasons before given, viz., that the authority of the king was held in
+very little esteem; and, secondly, that the laws of the king (not being
+printed, and the people being unable to read them if they had been
+printed) must have been in a great measure unknown to them, and could
+have been received by them only on the authority of the sheriff,
+bailiff, or steward. If laws were to be received by them on the
+authority of these officers, the latter would have imposed such laws
+upon the people as they pleased.
+
+These courts, that have now been described, were continued in full power
+long after Magna Carta, no alteration being made in them by that
+instrument, _nor in the mode of administering justice in them_.
+
+There is no evidence whatever, so far as I am aware, that the juries had
+any _less_ power in the courts held by the king's justices, than in
+those held by sheriffs, bailiffs, and stewards; and there is no
+probability whatever that they had. All the difference between the
+former courts and the latter undoubtedly was, that, in the former, the
+juries had the benefit of the advice and assistance of the justices,
+which would, of course, be considered valuable in difficult cases, on
+account of the justices being regarded as more learned, not only in the
+laws of the king, but also in the common law, or "law of the land."
+
+The conclusion, therefore, I think, inevitably must be, that neither the
+laws of the king, nor the instructions of his justices, had any
+authority over jurors beyond what the latter saw fit to accord to them.
+And this view is confirmed by this remark of Hallam, the truth of which
+all will acknowledge:
+
+   "The rules of legal decision, among a rude people, are always very
+   simple; not serving much to guide, far less to control the feelings
+   of natural equity."--_2 Middle Ages_, ch. 8, part 2, p. 465.
+
+It is evident that it was in this way, _by the free and concurrent
+judgments of juries, approving and enforcing certain laws and rules of
+conduct, corresponding to their notions of right and justice_, that the
+laws and customs, which, for the most part, made up the _common law_,
+and were called, at that day, "_the good laws, and good customs_," and
+"_the law of the land_," were established. How otherwise could they ever
+have become established, as Blackstone says they were, "_by long and
+immemorial usage, and by their universal reception throughout the
+kingdom_,"[54] when, as the Mirror says, "_justice was so done, that
+every one so judged his neighbor, by such judgment as a man could not
+elsewhere receive in the like cases, until such times as the customs of
+the realm were put in writing and certainly published_?"
+
+The fact that, in that dark age, so many of the principles of natural
+equity, as those then embraced in the _Common Law_, should have been so
+uniformly recognized and enforced by juries, as to have become
+established by general consent as "_the law of the land_;" and the
+further fact that this "law of the land" was held so sacred that even
+the king could not lawfully infringe or alter it, but was required to
+swear to maintain it, are beautiful and impressive illustrations of the
+truth that men's minds, even in the comparative infancy of other
+knowledge, have clear and coincident ideas of the elementary principles,
+and the paramount obligation, of justice. The same facts also prove that
+the common mind, and the general, or, perhaps, rather, the universal
+conscience, as developed in the untrammelled judgments of juries, may be
+safely relied upon for the preservation of individual rights in civil
+society; and that there is no necessity or excuse for that deluge of
+arbitrary legislation, with which the present age is overwhelmed, under
+the pretext that unless laws be _made_, the law will not be known; a
+pretext, by the way, almost universally used for overturning, instead of
+establishing, the principles of justice.
+
+
+SECTION III.
+
+_The Oaths of Jurors._
+
+The oaths that have been administered to jurors, in England, and which
+are their _legal_ guide to their duty, _all_ (so far as I have
+ascertained them) corroborate the idea that the jurors are to try all
+cases on their intrinsic merits, independently of any laws that they
+deem unjust or oppressive. It is probable that an oath was never
+administered to a jury in England, either in a civil or criminal case,
+to try it _according to law_.
+
+The earliest oath that I have found prescribed by law to be administered
+to jurors is in the laws of Ethelred, (about the year 1015,) which
+require that the jurors "_shall swear, with their hands upon a holy
+thing, that they will condemn no man that is innocent, nor acquit any
+that is guilty_."--_4 Blackstone_, 302. _2 Turner's History of the
+Anglo-Saxons, 155. Wilkins' Laws of the Anglo-Saxons_, 117. _Spelman's
+Glossary_, word _Jurata_.
+
+Blackstone assumes that this was the oath of the _grand_ jury (_4
+Blackstone_, 302); but there was but one jury at the time this oath was
+ordained. The institution of two juries, grand and petit, took place
+after the Norman Conquest.
+
+Hume, speaking of the administration of justice in the time of Alfred,
+says that, in every hundred,
+
+   "Twelve freeholders were chosen, who, having sworn, together with the
+   hundreder, or presiding magistrate of that division, _to administer
+   impartial justice_, proceeded to the examination of that cause which
+   was submitted to their jurisdiction."--_Hume_, ch. 2.
+
+By a law of Henry II., in 1164, it was directed that the sheriff
+"_faciet jurare duodecim legales homines de vicineto seu de villa, quod
+inde veritatem secundum conscientiam suam manifestabunt_," (shall make
+twelve legal men from the neighborhood _to swear that they will make
+known the truth according to their conscience_.)--_Crabbe's History of
+the English Law_, 119. _1 Reeves_, 87. _Wilkins_, 321-323.
+
+Glanville, who wrote within the half century previous to Magna Carta,
+says:
+
+   "Each of the knights summoned for this purpose (as jurors) ought to
+   swear that he will neither utter that which is false, nor knowingly
+   conceal the truth."--_Beames' Glanville_, 65.
+
+Reeve calls the trial by jury "_the trial by twelve men sworn to speak
+the truth_."--_1 Reeve's History of the English Law_, 87.
+
+Henry says that the jurors "took a solemn oath, that they would
+faithfully discharge the duties of their office, and not suffer an
+innocent man to be condemned, nor any guilty person to be
+acquitted."--_3 Henry's Hist. of Great Britain_, 346.
+
+The _Mirror of Justices_, (written within a century after Magna Carta,)
+in the chapter on the abuses of the Common Law, says:
+
+   "It is abuse to use the words, _to their knowledge_, in their oaths,
+   to make the jurors speak upon thoughts, _since the chief words of
+   their oaths be that they speak the truth_."--p. 249.
+
+Smith, writing in the time of Elizabeth, says that, in _civil_ suits,
+the jury "be sworn to declare the truth of that issue according to the
+evidence, and their conscience."--_Smith's Commonwealth of England_,
+edition of 1621, p. 73.
+
+In _criminal_ trials, he says:
+
+   "The clerk giveth the juror an oath to go uprightly betwixt the
+   prince and the prisoner."--_Ditto_, p. 90.[55]
+
+Hale says:
+
+   "Then twelve, and no less, of such as are indifferent and are
+   returned upon the principal panel, or the _tales_, are sworn to try
+   the same according to the evidence."--_2 Hale's History of the Common
+   Law_, 141.
+
+It appears from Blackstone that, even _at this day, neither in civil nor
+criminal cases_, are jurors in England sworn to try causes _according to
+law_. He says that in civil suits the jury are
+
+   "Sworn well and truly to _try the issue_ between the parties, and a
+   true verdict to give according to the evidence."--_3 Blackstone_,
+   365.
+
+"_The issue_" to be tried is whether A owes B anything; and if so, how
+much? or whether A has in his possession anything that belongs to B; or
+whether A has wronged B, and ought to make compensation; and if so, how
+much?
+
+No statute passed by a legislature, simply as a legislature, can alter
+either of these "issues" in hardly any conceivable case, perhaps in
+none. No _unjust_ law could ever alter them in any. They are all mere
+questions of natural justice, which legislatures have no power to alter,
+and with which they have no right to interfere, further than to provide
+for having them settled by the most competent and impartial tribunal
+that it is practicable to have, and then for having all just decisions
+enforced. And any tribunal, whether judge or jury, that attempts to try
+these issues, has no more moral right to be swerved from the line of
+justice, by the will of a legislature, than by the will of any other
+body of men whatever. And this oath does not require or permit a jury to
+be so swerved.
+
+In criminal cases, Blackstone says the oath of the jury in England is:
+
+   "Well and truly to try, and true deliverance make, between our
+   sovereign lord, the king, and the prisoner whom they have in charge,
+   and a true verdict to give according to the evidence."--_4
+   Blackstone_, 355.
+
+"The issue" to be tried, in a criminal case, is "_guilty_," or "_not
+guilty_." The laws passed by a legislature can rarely, if ever, have
+anything to do with this issue. "_Guilt_" is an _intrinsic_ quality of
+actions, and can neither be created, destroyed, nor changed by
+legislation. And no tribunal that attempts to try this issue can have
+any moral right to declare a man _guilty_, for an act that is
+intrinsically innocent, at the bidding of a legislature, any more than
+at the bidding of anybody else. And this oath does not require or permit
+a jury to do so.
+
+The words, "_according to the evidence_," have doubtless been introduced
+into the above oaths in modern times. They are unquestionably in
+violation of the Common Law, and of Magna Carta, if by them be meant
+such evidence only as the government sees fit to allow to go to the
+jury. If the government can dictate the evidence, and require the jury
+to decide according to that evidence, it necessarily dictates the
+conclusion to which they must arrive. In that case the trial is really a
+trial by the government, and not by the jury. _The jury_ cannot _try an
+issue_, unless _they_ determine what evidence shall be admitted. The
+ancient oaths, it will be observed, say nothing about "_according to the
+evidence_." They obviously take it for granted that the jury try the
+whole case; and of course that _they_ decide what evidence shall be
+admitted. It would be intrinsically an immoral and criminal act for a
+jury to declare a man guilty, or to declare that one man owed money to
+another, unless all the evidence were admitted, which _they_ thought
+ought to be admitted, for ascertaining the truth.[56]
+
+_Grand Jury._--If jurors are bound to enforce all laws passed by the
+legislature, it is a very remarkable fact that the oath of grand juries
+does not require them to be governed by the laws in finding indictments.
+There have been various forms of oath administered to grand jurors; but
+by none of them that I recollect ever to have seen, except those of the
+States of Connecticut and Vermont, are they sworn to present men
+_according to law_. The English form, as given in the essay on Grand
+Juries, written near two hundred years ago, and supposed to have been
+written by _Lord Somers_, is as follows:
+
+   "You shall diligently inquire, and true presentment make, of all such
+   articles, matters, and things, as shall be given you in charge, and
+   of all other matters and things as shall come to your knowledge
+   touching this present service. The king's council, your fellows, and
+   your own, you shall keep secret. You shall present no person for
+   hatred or malice; neither shall you leave any one unpresented for
+   favor, or affection, for love or gain, or any hopes thereof; but in
+   all things you shall present the truth, the whole truth, and nothing
+   but the truth, to the best of your knowledge. So help you God."
+
+This form of oath is doubtless quite ancient, for the essay says "our
+ancestors appointed" it.--_See Essay_, p. 33-34.
+
+On the obligations of this oath, the essay says:
+
+   "If it be asked how, or in what manner, the (grand) juries shall
+   inquire, the answer is ready, _according to the best of their
+   understandings_. They only, not the judges, are sworn to search
+   diligently to find out all treasons, &c., within their charge, and
+   they must and ought to use their own discretion in the way and manner
+   of their inquiry. _No directions can legally be imposed upon them by
+   any court or judges_; an honest jury will thankfully accept good
+   advice from judges, as their assistants; but they are bound by their
+   oaths to present the truth, the whole truth, and nothing but the
+   truth, to the best of their own, not the judge's, knowledge. Neither
+   can they, without breach of that oath, resign their consciences, or
+   blindly submit to the dictates of others; and therefore ought to
+   receive or reject such advices, as they judge them good or bad. * *
+   Nothing can be more plain and express than the words of the oath are
+   to this purpose. The jurors need not search the law books, nor tumble
+   over heaps of old records, for the explanation of them. Our greatest
+   lawyers may from hence learn more certainly our ancient law in this
+   case, than from all the books in their studies. The language wherein
+   the oath is penned is known and understood by every man, and the
+   words in it have the same signification as they have wheresoever else
+   they are used. The judges, without assuming to themselves a
+   legislative power, cannot put a new sense upon them, other than
+   according to their genuine, common meaning. They cannot magisterially
+   impose their opinions upon the jury, and make them forsake the direct
+   words of their oath, to pursue their glosses. The grand inquest are
+   bound to observe alike strictly every part of their oath, and to use
+   all just and proper ways which may enable them to perform it;
+   otherwise it were to say, that after men had sworn to inquire
+   diligently after the truth, according to the best of their knowledge,
+   they were bound to forsake all the natural and proper means which
+   their understandings suggest for the discovery of it, if it be
+   commanded by the judges."--_Lord Somers' Essay on Grand Juries_, p.
+   38.
+
+What is here said so plainly and forcibly of the oath and obligations of
+grand juries, is equally applicable to the oath and obligations of petit
+juries. In both cases the simple oaths of the jurors, and not the
+instructions of the judges, nor the statutes of kings nor legislatures,
+are their legal guides to their duties.[57]
+
+
+SECTION IV.
+
+_The Right of Juries to fix the Sentence._
+
+The nature of the common law courts existing prior to Magna Carta, such
+as the county courts, the hundred courts, the court-leet, and the
+court-baron, all prove, what has already been proved from Magna Carta,
+that, in jury trials, the juries fixed the sentence; because, in those
+courts, there was no one but the jury who could fix it, unless it were
+the sheriff, bailiff, or steward; and no one will pretend that it was
+fixed by them. The juries unquestionably gave the "judgment" in both
+civil and criminal cases.
+
+That the juries were to fix the sentence under Magna Carta, is also
+shown by statutes subsequent to Magna Carta.
+
+A statute passed fifty-one years after Magna Carta, says that a baker,
+for default in the weight of his bread, "_debeat_ amerciari vel subire
+judicium pilloræ,"--that is, "_ought_ to be amerced, or suffer the
+sentence of the pillory." And that a brewer, for "selling ale, contrary
+to the assize," "_debeat_ amerciari, vel pati judicium tumbrelli;" that
+is, "_ought_ to be amerced, or suffer judgment of the tumbrel."--_51
+Henry III._, st. 6. (1266.)
+
+If the king (the legislative power) had had authority to fix the
+punishments of these offences imperatively, he would naturally have said
+these offenders _shall_ be amerced, and _shall_ suffer judgment of the
+pillory and tumbrel, instead of thus simply expressing the opinion that
+they _ought_ to be punished in that manner.
+
+The statute of Westminster, passed sixty years after Magna Carta,
+provides that,
+
+   "No city, borough, nor town, _nor any man_, be amerced, without
+   reasonable cause, and according to the quantity of the trespass; that
+   is to say, every freeman saving his freehold, a merchant saving his
+   merchandise, a villein his waynage, _and that by his or their
+   peers_."--_3 Edward I._, ch. 6. (1275.)
+
+The same statute (ch. 18) provides further, that,
+
+   "Forasmuch as the _common fine and amercement_ of the whole county in
+   Eyre of the justices for false judgments, or for other trespass, is
+   unjustly assessed by sheriffs and baretors in the shires, so that the
+   sum is many times increased, and the parcels otherwise assessed than
+   they ought to be, to the damage of the people, which be many times
+   paid to the sheriffs and baretors, which do not acquit the payers; it
+   is provided, and the king wills, that from henceforth such sums shall
+   be assessed before the justices in Eyre, afore their departure, _by
+   the oath of knights and other honest men_, upon all such as ought to
+   pay; and the justices shall cause the parcels to be put into their
+   estreats, which shall be delivered up unto the exchequer, and not the
+   whole sum."--_St. 3 Edward I._, ch. 18, (1275.)[58]
+
+The following statute, passed in 1341, one hundred and twenty-five years
+after Magna Carta, providing for the trial of peers of the realm, and
+the king's ministers, contains a recognition of the principle of Magna
+Carta, that the jury are to fix the sentence.
+
+   "Whereas before this time the peers of the land have been arrested
+   and imprisoned, and their temporalities, lands, and tenements, goods
+   and cattels, asseized in the king's hands, and some put to death
+   without judgment of their peers: It is accorded and assented, that no
+   peer of the land, officer, nor other, because of his office, nor of
+   things touching his office, nor by other cause, shall be brought in
+   judgment to lose his temporalities, lands, tenements, goods and
+   cattels, nor to be arrested, nor imprisoned, outlawed, exiled, nor
+   forejudged, nor put to answer, nor be judged, but by _award_
+   (_sentence_) of the said peers in Parliament."--_15 Edward III._, st.
+   1, sec. 2.
+
+Section 4, of the same statute provides,
+
+   "That in every Parliament, at the third day of every Parliament, the
+   king shall take in his hands the offices of all the ministers
+   aforesaid," (that is, "the chancellor, treasurer, barons, and
+   chancellor of the exchequer, the justices of the one bench and of the
+   other, justices assigned in the country, steward and chamberlain of
+   the king's house, keeper of the privy seal, treasurer of the
+   wardrobe, controllers, and they that be chief deputed to abide nigh
+   the king's son, Duke of Cornwall,") "and so they shall abide four or
+   five days; except the offices of justices of the one place or the
+   other, justices assigned, barons of exchequer; so always that they
+   and all other ministers be put to answer to every complaint; and if
+   default be found in any of the said ministers, by complaint or other
+   manner, and of that attainted in Parliament, he shall be punished by
+   judgment of the peers, and put out of his office, and another
+   convenient put in his place. And upon the same our said sovereign
+   lord the king shall do (cause) to be pronounced and made execution
+   without delay, _according to the judgment_ (_sentence_) of the said
+   peers in the Parliament."
+
+Here is an admission that the peers were to fix the sentence, or
+judgment, and the king promises to make execution "_according to_" that
+sentence.
+
+And this appears to be the law, under which peers of the realm and the
+great officers of the crown were tried and sentenced, for four hundred
+years after its passage, and, for aught I know, until this day.
+
+The first case given in Hargrave's collection of English State Trials,
+is that of _Alexander Nevil_, Archbishop of York, _Robert Vere_, Duke
+of Ireland, _Michael de la Pole_, Earl of Suffolk, and _Robert
+Tresilian_, Lord Chief Justice of England, with several others,
+convicted of treason, before "the Lords of Parliament," in 1388. The
+sentences in these cases were adjudged by the "Lords of Parliament," in
+the following terms, as they are reported.
+
+   "Wherefore the said _Lords of Parliament_, there present, as judges
+   in Parliament, in this case, _by assent of the king, pronounced their
+   sentence_, and did adjudge the said archbishop, duke, and earl, with
+   Robert Tresilian, so appealed, as aforesaid, to be guilty, and
+   convicted of treason, and to be drawn and hanged, as traitors and
+   enemies to the king and kingdom; and that their heirs should be
+   disinherited forever, and their lands and tenements, goods and
+   chattels, forfeited to the king, and that the temporalities of the
+   Archbishop of York should be taken into the king's hands."
+
+   Also, in the same case, Sir _John Holt_, Sir _William Burgh_, Sir
+   _John Cary_, Sir _Roger Fulthorpe_, and _John Locton_, "_were by the
+   lords temporal, by the assent of the king_, adjudged to be drawn and
+   hanged, as traitors, their heirs disinherited, and their lands and
+   tenements, goods and chattels, to be forfeited to the king."
+
+   Also, in the same case, _John Blake_, "of council for the king," and
+   _Thomas Uske_, under sheriff of Middlesex, having been convicted of
+   treason,
+
+   "_The lords awarded, by assent of the king_, that they should both be
+   hanged and drawn as traitors, as open enemies to the king and
+   kingdom, and their heirs disinherited forever, and their lands and
+   tenements, goods and chattels, forfeited to the king."
+
+   Also, "_Simon Burleigh_, the king's chamberlain," being convicted of
+   treason, "_by joint consent of the king and the lords_, sentence was
+   pronounced against the said Simon Burleigh, that he should be drawn
+   from the town to Tyburn, and there be hanged till he be dead, and
+   then have his head struck from his body."
+
+   Also, "_John Beauchamp_, steward of the household to the king, _James
+   Beroverse_, and _John Salisbury_, knights, gentlemen of the privy
+   chamber, _were in like manner condemned_."--_1 Hargrave's State
+   Trials_, first case.
+
+Here the sentences were all fixed by the peers, _with the assent of the
+king_. But that the king should be consulted, and his assent obtained to
+the sentence pronounced by the peers, does not imply any deficiency of
+power on their part to fix the sentence independently of the king. There
+are obvious reasons why they might choose to consult the king, and
+obtain his approbation of the sentence they were about to impose,
+without supposing any legal necessity for their so doing.
+
+So far as we can gather from the reports of state trials, peers of the
+realm were usually sentenced by those who tried them, _with the assent
+of the king_. But in some instances no mention is made of the assent of
+the king, as in the case of "Lionel, Earl of Middlesex, Lord High
+Treasurer of England," in 1624, (four hundred years after Magna Carta,)
+where the sentence was as follows:
+
+   "This High Court of Parliament doth adjudge, that Lionel, Earl of
+   Middlesex, now Lord Treasurer of England, shall lose all his offices
+   which he holds in this kingdom, and shall, hereafter, be made
+   incapable of any office, place, or employment in the state and
+   commonwealth. That he shall be imprisoned in the tower of London,
+   during the king's pleasure. That he shall pay unto our sovereign lord
+   the king a fine of 50,000 pounds. That he shall never sit in
+   Parliament any more, and that he shall never come within the verge of
+   the court."--_2 Howell's State Trials_, 1250.
+
+Here was a peer of the realm, and a minister of the king, of the highest
+grade; and if it were ever _necessary_ to obtain the assent of the king
+to sentences pronounced by the peers, it would unquestionably have been
+obtained in this instance, and his assent would have appeared in the
+sentence.
+
+_Lord Bacon_ was sentenced by the House of Lords, (1620,) _no mention
+being made of the assent of the king_. The sentence is in these words:
+
+   "And, therefore, this High Court doth adjudge, That the Lord Viscount
+   St. Albans, Lord Chancellor of England, shall undergo fine and ransom
+   of 40,000 pounds. That he shall be imprisoned in the tower during the
+   king's pleasure. That he shall forever be incapable of any office,
+   place, or employment in the state or commonwealth. That he shall
+   never sit in Parliament, nor come within the verge of the court."
+
+And when it was demanded of him, before sentence, whether it were his
+hand that was subscribed to his confession, and whether he would stand
+to it; he made the following answer, which implies that the lords were
+the ones to determine his sentence.
+
+   "My lords, it is my act, my hand, my heart. _I beseech your lordships
+   to be merciful to a broken reed._"--_1 Hargrave's State Trials_,
+   386-7.
+
+The sentence against Charles the First, (1648,) after reciting the
+grounds of his condemnation, concludes in this form:
+
+   "For all which treasons and crimes, _this court doth adjudge_, that
+   he, the said Charles Stuart, as a tyrant, traitor, murderer, and
+   public enemy to the good people of this nation, shall be put to death
+   by the severing his head from his body."
+
+The report then adds:
+
+   "This sentence being read, the president (of the court) spake as
+   followeth: 'This sentence now read and published, is the act,
+   sentence, judgment and resolution of the whole court.'"--_1
+   Hargrave's State Trials_, 1037.
+
+Unless it had been the received "_law of the land_" that those who tried
+a man should fix his sentence, it would have required an act of
+Parliament to fix the sentence of Charles, and his sentence would have
+been declared to be "_the sentence of the law_," instead of "_the act,
+sentence, judgment, and resolution of the court_."
+
+But the report of the proceedings in "the trial of Thomas, Earl of
+Macclesfield, Lord High Chancellor of Great Britain, before the House of
+Lords, for high crimes and misdemeanors in the execution of his office,"
+in 1725, is so full on this point, and shows so clearly that it rested
+wholly with the lords to fix the sentence, and that the assent of the
+king was wholly unnecessary, that I give the report somewhat at length.
+
+_After being found guilty_, the earl addressed the _lords_, for a
+_mitigation of sentence_, as follows:
+
+   "'I am now to expect your lordships' judgment; and I hope that you
+   will be pleased to consider that I have suffered no small matter
+   already in the trial, in the expense I have been at, the fatigue, and
+   what I have suffered otherways. * * I have paid back 10,800 pounds of
+   the money already; I have lost my office; I have undergone the
+   censure of both houses of Parliament, which is in itself a severe
+   punishment,'" &c., &c.
+
+On being interrupted, he proceeded:
+
+   "'My lords, I submit whether this be not proper in _mitigation of
+   your lordships' sentence_; but whether it be or not, I leave myself
+   to your lordships' justice and mercy; I am sure neither of them will
+   be wanting, and I entirely submit.' * *
+
+   "Then the said earl, as also the managers, were directed to withdraw;
+   and the House (of Lords) ordered Thomas, Earl of Macclesfield, to be
+   committed to the custody of the gentleman usher of the black rod; and
+   then proceeded to the consideration of what _judgment_," (that is,
+   _sentence_, for he had already been found _guilty_,) "to give upon
+   the impeachment against the said earl." * *
+
+   "The next day, the Commons, with their speaker, being present at the
+   bar of the House (of Lords), * * the speaker of the House of Commons
+   said as follows:
+
+   "'My Lords, the knights, citizens, and burgesses in Parliament
+   assembled, in the name of themselves, and of all the commons of Great
+   Britain, did at this bar impeach Thomas, Earl of Macclesfield, of
+   high crimes and misdemeanors, and did exhibit articles of impeachment
+   against him, and have made good their charge. I do, therefore, in the
+   name of the knights, citizens, and burgesses, in Parliament
+   assembled, and of all the commons of Great Britain, demand _judgment_
+   (_sentence_) of your lordships against Thomas, Earl of Macclesfield,
+   for the said high crimes and misdemeanors.'
+
+   "Then the Lord Chief Justice King, Speaker of the House of Lords,
+   said: 'Mr. Speaker, the Lords are now ready to proceed to judgment in
+   the case by you mentioned.
+
+   "'Thomas, Earl of Macclesfield, the Lords have unanimously found you
+   guilty of high crimes and misdemeanors, charged on you by the
+   impeachment of the House of Commons, and do now, according to law,
+   proceed to _judgment_ against you, which I am ordered to pronounce.
+   Their lordships' _judgment_ is, and this high court doth adjudge,
+   that you, Thomas, Earl of Macclesfield, be fined in the sum of thirty
+   thousand pounds unto our sovereign lord the king; and that you shall
+   be imprisoned in the tower of London, and there kept in safe custody,
+   until you shall pay the said fine.'"--_6 Hargrave's State Trials_,
+   762-3-4.
+
+This case shows that the principle of Magna Carta, that a man should be
+_sentenced only_ by his peers, was in force, and acted upon as law, in
+England, so lately as 1725, (five hundred years after Magna Carta,) so
+far as it applied to a _peer of the realm_.
+
+But the same principle, on this point, that applies to a peer of the
+realm, applies to every freeman. The only difference between the two is,
+that the peers of the realm have had influence enough to preserve their
+constitutional rights; while the constitutional rights of the people
+have been trampled upon and rendered obsolete by the usurpation and
+corruption of the government and the courts.
+
+
+SECTION V.
+
+_The Oaths of Judges._
+
+As further proof that the legislation of the king, whether enacted with
+or without the assent and advice of his parliaments, was of no authority
+unless it were consistent with the _common law_, and unless juries and
+judges saw fit to enforce it, it may be mentioned that it is probable
+that no judge in England was ever sworn to observe the laws enacted
+either by the king alone, or by the king with the advice and assent of
+parliament.
+
+The judges were sworn to "_do equal law, and execution of right, to all
+the king's subjects, rich and poor, without having regard to any
+person_;" and that they will "_deny no man common right_;"[59] but they
+were _not_ sworn to obey or execute any statutes of the king, or of the
+king and parliament. Indeed, they are virtually sworn _not_ to obey any
+statutes that are against "_common right_," or contrary to "_the common
+law_," or "_law of the land_;" but to "certify the king thereof"--that
+is, notify him that his statutes are against the common law;--and then
+proceed to execute the _common law_, notwithstanding such legislation to
+the contrary. The words of the oath on this point are these:
+
+   "_That ye deny no man common right by (virtue of) the king's letters,
+   nor none other man's, nor for none other cause; and in case any
+   letters come to you contrary to the law_, (that is, the common law,
+   as will be seen on reference to the entire oath given in the note,)
+   _that ye do nothing by such letters, but certify the king thereof
+   and proceed to execute the law_, (that is, the common law,)
+   _notwithstanding the same letters_."
+
+When it is considered that the king was the sole legislative power, and
+that he exercised this power, to a great extent, by orders in council,
+and by writs and "letters" addressed often-times to some sheriff, or
+other person, and that his commands, when communicated to his justices,
+or any other person, "by letters," or writs, _under seal_, had as much
+legal authority as laws promulgated in any other form whatever, it will
+be seen that this oath of the justices _absolutely required_ that they
+disregard any legislation that was contrary to "_common right_," or
+"_the common law_," and notify the king that it was contrary to common
+right, or the common law, and then proceed to execute the common law,
+notwithstanding such legislation.[60]
+
+If there could be any doubt that such was the meaning of this oath, that
+doubt would be removed by a statute passed by the king two years
+afterwards, which fully explains this oath, as follows:
+
+   "Edward, by the Grace of God, &c., to the Sheriff of _Stafford_,
+   greeting: Because that by divers complaints made to us, we have
+   perceived that _the Law of the Land, which we by our oath are bound
+   to maintain_, is the less well kept, and the execution of the same
+   disturbed many times by maintenance and procurement, as well in the
+   court as in the country; we greatly moved of conscience in this
+   matter, and for this cause desiring as much for the pleasure of God,
+   and ease and quietness of our subjects, as to save our conscience,
+   and for to save and keep our said oath, by the assent of the great
+   men and other wise men of our council, we have ordained these things
+   following:
+
+   "First, we have commanded all our justices, that they shall from
+   henceforth _do equal law and execution of right_ to all our subjects,
+   rich and poor, without having regard to any person, _and without
+   omitting to do right for any letters or commandment which may come to
+   them from us, or from any other, or by any other cause. And if that
+   any letters, writs, or commandments come to the justices, or to other
+   deputed to do law and right according to the usage of the realm, in
+   disturbance of the law, or of the execution of the same, or of right
+   to the parties, the justices and other aforesaid shall proceed and
+   hold their courts and processes, where the pleas and matters be
+   depending before them, as if no such letters, writs, or commandments
+   were come to them; and they shall certify us and our council of such
+   commandments which be contrary to the law_, (that is, "the law of the
+   land," or common law,) _as afore is said_.[61] And to the intent that
+   our justices shall do even right to all people in the manner
+   aforesaid, without more favor showing to one than to another, we have
+   ordained and caused our said justices to be sworn, that they shall
+   not from henceforth, as long as they shall be in the office of
+   justice, take fee nor robe of any man, but of ourself, and that they
+   shall take no gift nor reward by themselves, nor by other, privily
+   nor apertly, of any man that hath to do before them by any way,
+   except meat and drink, and that of small value; and that they shall
+   give no counsel to great men or small, in case where we be party, or
+   which do or may touch us in any point, upon pain to be at our will,
+   body, lands, and goods, to do thereof as shall please us, in case
+   they do contrary. And for this cause we have increased the fees of
+   the same, our justices, in such manner as it ought reasonably to
+   suffice them."--_20 Edward III._, ch. 1. (1346.)
+
+Other statutes of similar tenor have been enacted, as follows:
+
+   "It is accorded and established, that it shall not be commanded by
+   the great seal, nor the little seal, to disturb or delay _common
+   right_; and though such commandments do come, the justices shall not
+   therefore leave (omit) to do right in any point."--_St. 2 Edward
+   III._, ch. 8. (1328.)
+
+   "That by commandment of the great seal, or privy seal, no point of
+   this statute shall be put in delay; nor that the justices of
+   whatsoever place it be shall let (omit) to do the _common law_, by
+   commandment, which shall come to them under the great seal, or the
+   privy seal."--_14 Edward III._, st. 1, ch. 14. (1340.)
+
+   "It is ordained and established, that neither letters of the signet,
+   nor of the king's privy seal, shall be from henceforth sent in damage
+   or prejudice of the realm, nor in disturbance of the law" (the common
+   law).--_11 Richard II._, ch. 10. (1387.)
+
+It is perfectly apparent from these statutes, and from the oath
+administered to the justices, that it was a matter freely confessed by
+the king himself, that his statutes were of no validity, if contrary to
+the common law, or "common right."
+
+The oath of the justices, before given, is, I presume, the same that has
+been administered to judges in England from the day when it was first
+prescribed to them, (1344,) until now. I do not find from the English
+statutes that the oath has ever been changed. The Essay on Grand Juries,
+before referred to, and supposed to have been written by _Lord Somers_,
+mentions this oath (page 73) as being still administered to judges, that
+is, in the time of Charles II., more than three hundred years after the
+oath was first ordained. If the oath has never been changed, it follows
+that judges have not only never been sworn to support any statutes
+whatever of the king, or of parliament, but that, for five hundred
+years past, they actually have been sworn to treat as invalid all
+statutes that were contrary to the common law.
+
+
+SECTION VI.
+
+_The Coronation Oath._
+
+That the legislation of the king was of no authority over a jury, is
+further proved by the oath taken by the kings at their coronation. This
+oath seems to have been substantially the same, from the time of the
+_Saxon_ kings, down to the seventeenth century, as will be seen from the
+authorities hereafter given.
+
+The purport of the oath is, that the king swears _to maintain the law of
+the land_--that is, _the common law_. In other words, he swears "_to
+concede and preserve to the English people the laws and customs conceded
+to them by the ancient, just, and pious English kings, * * and
+especially the laws, customs, and liberties conceded to the clergy and
+people by the illustrious king Edward;" * * and "the just laws and
+customs which the common people have chosen, (quas vulgus elegit)_."
+
+These are the same laws and customs which were called by the general
+name of "_the law of the land_," or "_the common law_," and, with some
+slight additions, were embodied in _Magna Carta_.
+
+This oath not only forbids the king to enact any statutes contrary to
+the common law, but it proves that his statutes could be of no authority
+over the consciences of a jury; since, as has already been sufficiently
+shown, it was one part of this very common law itself,--that is, of the
+ancient "laws, customs, and liberties," mentioned in the oath,--that
+juries should judge of all questions that came before them, according to
+their own consciences, independently of the legislation of the king.
+
+It was impossible that this right of the jury could subsist consistently
+with any right, on the part of the king, to impose any authoritative
+legislation upon them. His oath, therefore, to maintain the law of the
+land, or the ancient "laws, customs, and liberties," was equivalent to
+an oath that he would never _assume_ to impose laws upon juries, as
+imperative rules of decision, or take from them the right to try all
+cases according to their own consciences. It is also an admission that
+he had no constitutional power to do so, if he should ever desire it.
+This oath, then, is conclusive proof that his legislation was of no
+authority with a jury, and that they were under no obligation whatever
+to enforce it, unless it coincided with their own ideas of justice.
+
+The ancient coronation oath is printed with the Statutes of the Realm,
+vol. i., p. 168, and is as follows:[62]
+
+TRANSLATION.
+
+   "_Form of the Oath of the King of England, on his Coronation._
+
+   (The Archbishop of Canterbury, to whom, of right and custom of the
+   Church of Canterbury, ancient and approved, it pertains to anoint and
+   crown the kings of England, on the day of the coronation of the king,
+   and before the king is crowned, shall propound the underwritten
+   questions to the king.)
+
+   The laws and customs, conceded to the English people by the ancient,
+   just, and pious English kings, will you concede and preserve to the
+   same people, with the confirmation of an oath? and especially the
+   laws, customs, and liberties conceded to the clergy and people by the
+   illustrious king Edward?
+
+   (And the king shall answer,) I do concede, and will preserve them,
+   and confirm them by my oath.
+
+   Will you preserve to the church of God, the clergy, and the people,
+   entire peace and harmony in God, according to your powers?
+
+   (And the king shall answer,) I will.
+
+   In all your judgments, will you cause equal and right justice and
+   discretion to be done, in mercy and truth, according to your powers?
+
+   (And the king shall answer,) I will.
+
+   Do you concede that the just laws and customs, _which the common
+   people have chosen_, shall be preserved; and do you promise that they
+   shall be protected by you, and strengthened to the honor of God,
+   according to your powers?
+
+   (And the king shall answer,) I concede and promise."
+
+The language used in the last of these questions, "Do you concede that
+the just laws and customs, _which the common people have chosen_, (_quas
+vulgus elegit_,) shall be preserved?" &c., is worthy of especial notice,
+as showing that the laws, which were to be preserved, were not
+necessarily _all_ the laws which the kings enacted, _but only such of
+them as the common people had selected or approved_.
+
+And how had the common people made known their approbation or selection
+of these laws? Plainly, in no other way than this--_that the juries
+composed of the common people had voluntarily enforced them_. The common
+people had no other legal form of making known their approbation of
+particular laws.
+
+The word "concede," too, is an important word. In the English statutes
+it is usually translated _grant_--as if with an intention to indicate
+that "the laws, customs, and liberties" of the English people were mere
+_privileges, granted_ to them by the king; whereas it should be
+translated _concede_, to indicate simply an _acknowledgment_, on the
+part of the king, that such were the laws, customs, and liberties, which
+had been chosen and established by the people themselves, and of right
+belonged to them, and which he was bound to respect.
+
+I will now give some authorities to show that the foregoing oath has,
+_in substance_, been the coronation oath from the times of William the
+Conqueror, (1066,) down to the time of James the First, and probably
+until 1688.
+
+It will be noticed, in the quotation from Kelham, that he says this oath
+(or the oath of William the Conqueror) is "in sense and substance the
+very same with that which the _Saxon_ kings used to take at their
+coronations."
+
+Hale says:
+
+   "Yet the English were very zealous for them," (that is, for the laws
+   of Edward the Confessor,) "no less or otherwise than they are at this
+   time for the Great Charter; insomuch that they were never satisfied
+   till the said laws were reënforced, and mingled, for the most part,
+   with the coronation oath of king William I., and some of his
+   successors."--_1 Hale's History of Common Law_, 157.
+
+   Also, "William, on his coronation, had sworn to govern by the laws of
+   Edward the Confessor, some of which had been reduced into writing,
+   but the greater part consisted of the immemorial customs of the
+   realm."--_Ditto_, p. 202, note L.
+
+Kelham says:
+
+   "Thus stood the laws of England at the entry of William I., and it
+   seems plain that the laws, commonly called the laws of Edward the
+   Confessor, were at that time the standing laws of the kingdom, and
+   considered the great rule of their rights and liberties; and that the
+   English were so zealous for them, 'that they were never satisfied
+   till the said laws were reënforced, and mingled, for the most part,
+   with the coronation oath.' Accordingly, we find that this great
+   conqueror, at his coronation on the Christmas day succeeding his
+   victory, took an oath at the altar of St. Peter, Westminster, _in
+   sense and substance the very same with that which the Saxon kings
+   used to take at their coronations_. * * And at Barkhamstead, in the
+   fourth year of his reign, in the presence of Lanfranc, Archbishop of
+   Canterbury, for the quieting of the people, he swore that he would
+   inviolably observe the good and approved ancient laws which had been
+   made by the devout and pious kings of England, his ancestors, and
+   chiefly by King Edward; and we are told that the people then departed
+   in good humor."--_Kelham's Preliminary Discourse to the Laws of
+   William the Conqueror._ See, also, _1 Hale's History of the Common
+   Law_, 186.
+
+Crabbe says that William the Conqueror "solemnly swore that he would
+observe the good and approved laws of Edward the Confessor."--_Crabbe's
+History of the English Law_, p. 43.
+
+The successors of William, up to the time of Magna Carta, probably all
+took the same oath, according to the custom of the kingdom; although
+there may be no historical accounts extant of the oath of each separate
+king. But history tells us specially that Henry I., Stephen, and Henry
+II., confirmed these ancient laws and customs. It appears, also, that
+the barons desired of John (what he afterwards granted by Magna Carta)
+"_that the laws and liberties of King Edward_, with other privileges
+granted to the kingdom and church of England, might be confirmed, as
+they were contained in the charters of Henry the First; further
+alleging, _that at the time of his absolution, he promised by his oath
+to observe these very laws and liberties_."--_Echard's History of
+England_, p. 105-6.
+
+It would appear, from the following authorities, that since Magna Carta
+the form of the coronation oath has been "_to maintain the law of the
+land_,"--meaning that law as embodied in Magna Carta. Or perhaps it is
+more probable that the ancient form has been still observed, but that,
+as its substance and purport were "_to maintain the law of the land_,"
+this latter form of expression has been used, in the instances here
+cited, from motives of brevity and convenience. This supposition is the
+more probable, from the fact that I find no statute prescribing a change
+in the form of the oath until 1688.
+
+That Magna Carta was considered as embodying "the law of the land," or
+"common law," is shown by a statute passed by Edward I., wherein he
+"grants," or concedes,
+
+   "That the Charter of Liberties and the Charter of the Forest * *
+   shall be kept in every point, without breach, * * and that our
+   justices, sheriffs, mayors, and other ministers, which, under us,
+   have the _laws of our land_[63] to guide, shall allow the said
+   charters pleaded before them in judgment, in all their points, that
+   is, to wit, _the Great Charter as the Common Law_, and the Charter of
+   the Forest for the wealth of the realm.
+
+   "And we will, that if any judgment be given from henceforth, contrary
+   to the points of the charters aforesaid, by the justices, or by any
+   other our ministers that hold plea before them against the points of
+   the charters, it shall be undone, and holden for naught."--_25 Edward
+   I._, ch. 1 and 2. (1297.)
+
+Blackstone also says:
+
+   "It is agreed by all our historians that the Great Charter of King
+   John was, for the most part, _compiled from the ancient customs of
+   the realm, or the laws of Edward the Confessor; by which they usually
+   mean the old common law which was established under our Saxon
+   princes_."--_Blackstone's Introduction to the Charters._ See
+   _Blackstone's Law Tracts_, 289.
+
+Crabbe says:
+
+   "It is admitted, on all hands, that it (Magna Carta) contains nothing
+   but what was confirmatory of the common law, and the ancient usages
+   of the realm, and is, properly speaking, only an enlargement of the
+   charter of Henry I., and his successors."--_Crabbe's History of the
+   English Law_, p. 127.
+
+That the coronation oath of the kings subsequent to Magna Carta was, in
+substance, if not in form, "_to maintain this law of the land, or common
+law_," is shown by a statute of Edward Third, commencing as follows:
+
+   "Edward, by the Grace of God, &c., &c., to the Sheriff of Stafford,
+   Greeting: Because that by divers complaints made to us, we have
+   perceived that _the law of the land, which we by oath are bound to
+   maintain_," &c.--_St. 20 Edward III._ (1346.)
+
+The following extract from Lord Somers' tract on Grand Juries shows that
+the coronation oath continued the same as late as 1616, (four hundred
+years after Magna Carta.) He says:
+
+   "King James, in his speech to the judges, in the Star Chamber, Anno
+   1616, told them, 'That he had, after many years, resolved to renew
+   his oath, made at his coronation, concerning justice, and the promise
+   therein contained for _maintaining the law of the land_.' And, in the
+   next page save one, says, '_I was sworn to maintain the law of the
+   land_, and therefore had been perjured if I had broken it. God is my
+   judge, I never intended it.'"--_Somers on Grand Juries_, p. 82.
+
+In 1688, the coronation oath was changed by act of Parliament, and the
+king was made to swear:
+
+   "To govern the people of this kingdom of England, and the dominions
+   thereto belonging, _according to the statutes in Parliament agreed
+   on, and the laws and customs of the same_."--_St. 1 William and
+   Mary_, ch. 6. (1688.)
+
+The effect and legality of this oath will hereafter be considered. For
+the present it is sufficient to show, as has been already sufficiently
+done, that from the Saxon times until at least as lately as 1616, the
+coronation oath has been, in substance, _to maintain the law of the
+land, or the common law_, meaning thereby the ancient Saxon customs, as
+embodied in the laws of Alfred, of Edward the Confessor, and finally in
+Magna Carta.
+
+It may here be repeated that this oath plainly proves that the statutes
+of the king were of no authority over juries, if inconsistent with their
+ideas of right; because it was one part of the common law that juries
+should try all causes according to their own consciences, any
+legislation of the king to the contrary notwithstanding.[64]
+
+[Footnote 34: Hale says:
+
+   "The trial by jury of twelve men was the usual trial among the
+   Normans, in most suits; especially in assizes, et juris utrum."--_1
+   Hale's History of the Common Law_, 219.
+
+This was in Normandy, before the conquest of England by the Normans.
+_See Ditto_, p. 218.
+
+Crabbe says:
+
+   "It cannot be denied that the practice of submitting causes to the
+   decision of twelve men was universal among all the northern tribes
+   (of Europe) from the very remotest antiquity."--_Crabbe's History of
+   the English Law_, p. 32.]
+
+[Footnote 35: "The people, who in every general council or assembly
+could oppose and dethrone their sovereigns, were in little dread of
+their encroachments on their liberties; and kings, who found sufficient
+employment in keeping possession of their crowns, would not likely
+attack the more important privileges of their subjects."]
+
+[Footnote 36: This office was afterwards committed to sheriffs. But even
+while the court was held by the lord, "_the Lord was not judge, but the
+Pares (peers) only_."--_Gilbert on the Court of Exchequer_, 61-2.]
+
+[Footnote 37: The opinion expressed in the text, that the Witan had no
+legislative authority, is corroborated by the following authorities:
+
+"From the fact that the new laws passed by the king and the Witan were
+laid before the shire-mote, (county court,) we should be almost
+justified in the inference that a second sanction was necessary before
+they could have the effect of law in that particular county."--_Dunham's
+Middle Ages, Sec._ 2, _B._ 2, _Ch._ 1. _57 Lardner's Cab. Cyc._, 53.
+
+The "_second sanction_" required to give the legislation of the king and
+Witan the effect of law, was undoubtedly, I think, _as a general thing,
+the sanction of a jury_. I know of no evidence whatever that laws were
+ever submitted to popular vote in the county courts, as this author
+seems to suppose possible. Another mode, sometimes resorted to for
+obtaining the sanction of the people to the laws of the Witan, was, it
+seems, to persuade the people themselves to swear to observe them.
+Mackintosh says:
+
+"The preambles of the laws (of the Witan) speak of the infinite number
+of _liegemen_ who attended, as only applauding the measures of the
+assembly. But this applause was neither so unimportant to the success of
+the measures, nor so precisely distinguished from a share in
+legislation, as those who read history with a modern eye might imagine.
+It appears that under Athelstan expedients were resorted to, to obtain a
+consent to the law from great bodies of the people in their districts,
+which their numbers rendered impossible in a national assembly. That
+monarch appears to have sent commissioners to hold _shire-gemotes_ or
+county meetings, where they proclaimed the laws made by the king and his
+counsellors, which, being acknowledged and sworn to at these
+_folk-motes_ (meetings of the people) became, by their assent,
+completely binding on the whole nation."--_Mackintosh's Hist. of
+England_, _Ch._ 2. _45 Lardner's Cab. Cyc._, 75.]
+
+[Footnote 38: Page 31.]
+
+[Footnote 39: Hallam says, "It was, however, to the county court that an
+English freeman chiefly looked for the maintenance of his civil
+rights."--_2 Middle Ages_, 392.
+
+Also, "This (the county court) was the great constitutional judicature
+in all questions of civil right."--_Ditto_, 395.
+
+Also, "The liberties of these Anglo-Saxon thanes were chiefly secured,
+next to their swords and their free spirits, by the inestimable right of
+deciding civil and criminal suits in their own county courts."--_Ditto_,
+399.]
+
+[Footnote 40: "Alfred may, in one sense, be called the founder of these
+laws, (the Saxon,) for until his time they were an unwritten code, but
+he expressly says, '_that I, Alfred, collected the good laws of our
+forefathers into one code, and also I wrote them down_'--which is a
+decisive fact in the history of our laws well worth noting."--_Introduction
+to Gilbert's History of the Common Pleas_, p. 2, _note_.
+
+Kelham says, "Let us consult our own lawyers and historians, and they
+will tell us * * that Alfred, Edgar, and Edward the Confessor, were the
+great _compilers and restorers_ of the English Laws."--_Kelham's
+Preliminary Discourse to the Laws of William the Conqueror_, p. 12.
+_Appendix to Kelham's Dictionary of the Norman Language._
+
+"He (Alfred) also, like another Theodosius, _collected the various
+customs_ that he found dispersed in the kingdom, and reduced and
+digested them into one uniform system, or code of laws, in his
+_som-bec_, or _liber judicialis_ (judicial book). This he _compiled_ for
+the use of the court baron, hundred and county court, the court-leet and
+sheriff's tourn, tribunals which he established for the trial of all
+causes, civil and criminal, in the very districts wherein the complaints
+arose."--_4 Blackstone_, 411.
+
+Alfred himself says, "Hence I, King Alfred, gathered these together, and
+commanded many of those to be written down which our forefathers
+observed--those which I liked--and those which I did not like, by the
+advice of my Witan, I threw aside. For I durst not venture to set down
+in writing over many of my own, since I knew not what among them would
+please those that should come after us. But those which I met with
+either of the days of me, my kinsman, or of Offa, King of Mercia, or of
+Æthelbert, who was the first of the English who received baptism--those
+which appeared to me the justest--I have here collected, and abandoned
+the others. Then I, Alfred, King of the West Saxons, showed these to all
+my Witan, and they then said that they were all willing to observe
+them."--_Laws of Alfred, translated by R. Price, prefixed to
+Mackintosh's History of England_, _vol._ 1. _45 Lardner's Cab. Cyc._
+
+"King Edward * * projected and begun what his grandson, King Edward the
+Confessor, afterwards completed, viz., one uniform digest or body of
+laws to be observed throughout the whole kingdom, _being probably no
+more than a revival of King Alfred's code_, with some improvements
+suggested by necessity and experience, particularly the incorporating
+some of the British, or, rather, Mercian _customs_, and also _such of
+the Danish_ (customs) as were reasonable and approved, into the _West
+Saxon Lage_, which was still the ground-work of the whole. And this
+appears to be the best supported and most plausible conjecture, (for
+certainty is not to be expected,) of the rise and original of that
+admirable system of maxims and unwritten customs which is now known by
+the name of the _common law_, as extending its authority universally
+over all the realm, and which is doubtless of Saxon parentage."--_4
+Blackstone_, 412.
+
+"By the _Lex Terræ_ and _Lex Regni_ is understood the laws of Edward the
+Confessor, confirmed and enlarged as they were by William the Conqueror;
+and this Constitution or Code of Laws is what even to this day are
+called '_The Common Law of the Land_.'"--_Introduction to Gilbert's
+History of the Common Pleas_, p. 22, _note_.]
+
+[Footnote 41: Not the conqueror of the English people, (as the friends
+of liberty maintain,) but only of Harold the usurper.--See _Hale's
+History of the Common Law_, ch. 5.]
+
+[Footnote 42: For all these codes see Wilkins' Laws of the Anglo-Saxons.
+
+"Being regulations adapted to existing institutions, the Anglo-Saxon
+statutes are concise and technical, alluding to the law which was then
+living and in vigor, rather than defining it. The same clauses and
+chapters are often repeated word for word, in the statutes of subsequent
+kings, showing that enactments which bear the appearance of novelty are
+merely declaratory. Consequently the appearance of a law, seemingly for
+the first time, is by no means to be considered as a proof that the
+matter which it contains is new; nor can we trace the progress of the
+Anglo-Saxon institutions with any degree of certainty, by following the
+dates of the statutes in which we find them first noticed. All arguments
+founded on the apparent chronology of the subjects included in the laws,
+are liable to great fallacies. Furthermore, a considerable portion of
+the Anglo-Saxon law was never recorded in writing. There can be no doubt
+but that the rules of inheritance were well established and defined; yet
+we have not a single law, and hardly a single document from which the
+course of the descent of land can be inferred. * * Positive proof cannot
+be obtained of the commencement of any institution, because the first
+written law relating to it may possibly be merely confirmatory or
+declaratory; neither can the non-existence of any institution be
+inferred from the absence of direct evidence. Written laws were modified
+and controlled by customs of which no trace can be discovered, until
+after the lapse of centuries, although those usages must have been in
+constant vigor during the long interval of silence."--_1 Palgrave's Rise
+and Progress of the English Commonwealth_, 58-9.]
+
+[Footnote 43: Rapin says, "The customs now practised in England are, for
+the most part, the same as the Anglo-Saxons brought with them from
+Germany."--_Rapin's Dissertation on the Government of the Anglo-Saxons_,
+vol. 2, Oct. Ed., p. 198. See _Kelham's Discourse before named_.]
+
+[Footnote 44: Hallam says, "The county of Sussex contains sixty-five
+('hundreds'); that of Dorset forty-three; while Yorkshire has only
+twenty-six; and Lancashire but six."--_2 Middle Ages_, 391.]
+
+[Footnote 45: Excepting also matters pertaining to the collection of the
+revenue, which were determined in the king's court of exchequer. But
+even in this court it was the law "_that none be amerced but by his
+peers_."--_Mirror of Justices_, 49.]
+
+[Footnote 46: "For the English laws, _although not written_, may, as it
+should seem, and that without any absurdity, be termed laws, (since this
+itself is law--that which pleases the prince has the force of law,) I
+mean those laws which it is evident were promulgated by the advice of
+the nobles and the authority of the prince, concerning doubts to be
+settled in their assembly. For if from the mere want of writing only,
+they should not be considered laws, then, unquestionably, writing would
+seem to confer more authority upon laws themselves, than either the
+equity of the persons constituting, or the reason of those framing
+them."--_Glanville's Preface_, p. 38. (Glanville was chief justice of
+Henry II., 1180.) _2 Turner's History of the Anglo-Saxons_, 280.]
+
+[Footnote 47: Mackintosh's History of England, ch. 3. Lardner's Cabinet
+Cyclopædia, 266.]
+
+[Footnote 48: If the laws of the king were received as authoritative by
+the juries, what occasion was there for his appointing special
+commissioners for the trial of offences, without the intervention of a
+jury, as he frequently did, in manifest and acknowledged violation of
+Magna Carta, and "the law of the land?" These appointments were
+undoubtedly made for no other reason than that the juries were not
+sufficiently subservient, but judged according to their own notions of
+right, instead of the will of the king--whether the latter were
+expressed in his statutes, or by his judges.]
+
+[Footnote 49: Of course, Mr. Reeve means to be understood that, in the
+hundred court, and court-leet, _the jurors were the judges_, as he
+declares them to have been in the county court; otherwise the "bailiff"
+or "steward" must have been judge.]
+
+[Footnote 50: The jurors were sometimes called "assessors," because they
+assessed, or determined the amount of fines and amercements to be
+imposed.]
+
+[Footnote 51: "The barons of the Hundred" were the freeholders. Hallam
+says: "The word _baro_, originally meaning only a man, was of very large
+significance, and is not unfrequently applied to common freeholders, as
+in the phrase _court-baron_."--_3 Middle Ages_, 14-15.
+
+_Blackstone_ says: "The _court-baron_ * * is a court of common law, and
+it is the court of the barons, by which name the freeholders were
+sometimes anciently called; for that it is held before the freeholders
+who owe suit and service to the manor."--_3 Blackstone_, 33.]
+
+[Footnote 52: The ancient jury courts kept no records, because those who
+composed the courts could neither make nor read records. Their decisions
+were preserved by the memories of the jurors and other persons present.]
+
+[Footnote 53: Stuart says:
+
+"The courts, or civil arrangements, which were modelled in Germany,
+preserved the independence of the people; and having followed the Saxons
+into England, and continuing their importance, they supported the envied
+liberty we boast of. * *
+
+"As a chieftain led out his retainers to the field, and governed them
+during war; so in peace he summoned them together, and exerted a civil
+jurisdiction. He was at once their captain and their judge. They
+constituted his court; and having inquired with him into the guilt of
+those of their order whom justice had accused, they assisted him to
+enforce his decrees.
+
+"This court (the court-baron) was imported into England; but the
+innovation which conquest introduced into the fashion of the times
+altered somewhat its appearance. * *
+
+"The head or lord of the manor called forth his attendants to his hall.
+* * He inquired into the breaches of custom, and of justice, which were
+committed within the precincts of his territory; and with his followers,
+_who sat with him as judges_, he determined in all matters of debt, and
+of trespass to a certain amount. He possessed a similar jurisdiction
+with the chieftain in Germany, and his tenants enjoyed an equal
+authority with the German retainers.
+
+"But a mode of administration which intrusted so much power to the great
+could not long be exercised without blame or injustice. The German,
+guided by the candor of his mind, and entering into all his engagements
+with the greatest ardor, perceived not, at first, that the chieftain to
+whom he submitted his disputes might be swayed, in the judgments he
+pronounced, by partiality, prejudice, or interest; and that the
+influence he maintained with his followers was too strong to be
+restrained by justice. Experience instructed him of his error; he
+acknowledged the necessity of appealing from his lord; and the court of
+the Hundred was erected.
+
+"This establishment was formed both in Germany and England, by the
+inhabitants of a certain division, who extended their jurisdiction over
+the territory they occupied.[65] They bound themselves under a penalty
+to assemble at stated times; _and having elected the wisest to preside
+over them, they judged, not only all civil and criminal matters_, but of
+those also which regarded religion and the priesthood. The judicial
+power thus invested in the people was extensive; they were able to
+preserve their rights, and attended this court in arms.
+
+"As the communication, however, and intercourse, of the individuals of a
+German community began to be wider, and more general, as their dealings
+enlarged, and as disputes arose among the members of different hundreds,
+the insufficiency of these courts for the preservation of order was
+gradually perceived. The _shyre mote_, therefore, or _county court_, was
+instituted; and it formed the chief source of justice both in Germany
+and England.
+
+"The powers, accordingly, which had been enjoyed by the court of the
+_hundred_, were considerably impaired. It decided no longer concerning
+capital offences; it decided not concerning matters of liberty, and the
+property of estates, or of slaves; its judgments, in every case, became
+subject to review; and it lost entirely the decision of causes, when it
+delayed too long to consider them.
+
+"Every subject of claim or contention was brought, in the first
+instance, or by appeal, to the _county court_; and the _earl_, or
+_eorldorman_, who presided there, was active to put the laws in
+execution. He repressed the disorders which fell out within the circuit
+of his authority; and the least remission in his duty, or the least
+fraud he committed, was complained of and punished. He was elected from
+among the great, and was above the temptation of a bribe; but, to
+encourage his activity, he was presented with a share of the territory
+he governed, or was entitled to a proportion of the fines and profits of
+justice. Every man, in his district, was bound to inform him concerning
+criminals, and to assist him to bring them to trial; and, as in rude and
+violent times the poor and helpless were ready to be oppressed by the
+strong, he was instructed particularly to defend them.
+
+"His court was ambulatory, and assembled only twice a year, unless the
+distribution of justice required that its meetings should be oftener.
+Every freeholder in the county was obliged to attend it; and should he
+refuse this service, his possessions were seized, and he was forced to
+find surety for his appearance. The neighboring earls held not their
+courts on the same day; and, what seems very singular, no judge was
+allowed, after meals, to exercise his office.
+
+"The druids also, or priests, in Germany, as we had formerly occasion to
+remark, and the clergy in England, exercised a jurisdiction in the
+_hundred_ and _county_ courts. They instructed the people in religious
+duties, and in matters regarding the priesthood; and the princes, earls,
+or _eorldormen_, related to them the laws and customs of the community.
+These judges were mutually a check to each other; but it was expected
+that they should agree in their judgments, and should willingly unite
+their efforts for the public interest.[66]
+
+"_But the prince or earl performed not, at all times, in person, the
+obligations of his office._ The enjoyment of ease and of pleasure, to
+which in Germany he had delivered himself over, when disengaged from
+war, and the mean idea he conceived of the drudgery of civil affairs,
+_made him often delegate to an inferior person the distribution of
+justice in his district_. The same sentiments were experienced by the
+Saxon nobility; and the service which they owed by their tenures, and
+the high employments they sustained, called them often from the
+management of their counties. The progress, too, of commerce, giving an
+intricacy to cases, and swelling the civil code, added to the difficulty
+of their office, and made them averse to its duties. _Sheriffs,
+therefore, or deputies, were frequently appointed to transact their
+business; and though these were at first under some subordination to the
+earls, they grew at length to be entirely independent of them. The
+connection of jurisdiction and territory ceasing to prevail, and the
+civil being separated from the ecclesiastical power, they became the
+sole and proper officers for the direction of justice in the counties._
+
+"The _hundred_, however, and _county_ courts, were not equal of
+themselves for the purposes of jurisdiction and order. It was necessary
+that a court should be erected, of supreme authority, where the disputes
+of the great should be decided, where the disagreeing sentiments of
+judges should be reconciled, and where protection should be given to the
+people against their fraud and injustice.
+
+"The princes accordingly, or chief nobility, in the German communities,
+assembled together to judge of such matters. The Saxon nobles continued
+this prerogative; and the king, or, in his absence, the chief
+_justiciary_, watched over their deliberations. But it was not on every
+trivial occasion that this court interested itself. In smaller concerns,
+justice was refused during three sessions of the _hundred_, and claimed
+without effect, at four courts of the county, before there could lie an
+appeal to it.
+
+"So gradually were these arrangements established, and so naturally did
+the varying circumstances in the situation of the Germans and
+Anglo-Saxons direct those successive improvements which the preservation
+of order, and the advantage of society, called them to adopt. The
+admission of the people into the courts of justice preserved, among the
+former, that equality of ranks for which they were remarkable; and it
+helped to overturn, among the latter, those envious distinctions which
+the feudal system tended to introduce, and prevented that venality in
+judges, and those arbitrary proceedings, which the growing attachment to
+interest, and the influence of the crown, might otherwise have
+occasioned."--_Stuart on the Constitution of England_, p. 222 to 245.
+
+"In the Anglo-Saxon period, accordingly, _twelve_ only were elected; and
+these, together with the judge, or presiding officer of the district,
+being sworn to regard justice, and the voice of reason, or conscience,
+all causes were submitted to them."--_Ditto_, p. 260.
+
+"Before the orders of men were very nicely distinguished, the jurors
+were elected from the same rank. When, however, a regular subordination
+of orders was established, and when a knowledge of property had inspired
+the necessitous with envy, and the rich with contempt, _every man was
+tried by his equals_. The same spirit of liberty which gave rise to this
+regulation attended its progress. Nor could monarchs assume a more
+arbitrary method of proceeding. 'I will not' (said the Earl of Cornwall
+to his sovereign) 'render up my castles, nor depart the kingdom, but by
+judgment of my peers.' Of this institution, so wisely calculated for the
+preservation of liberty, all our historians have pronounced the
+eulogium."--_Ditto_, p. 262-3.
+
+Blackstone says:
+
+"The policy of our ancient constitution, as regulated and established by
+the great Alfred, was to bring justice home to every man's door, by
+constituting as many courts of judicature as there are manors and towns
+in the kingdom; _wherein injuries were redressed in an easy and
+expeditious manner, by the suffrage of neighbors and friends_. These
+little courts, however, communicated with others of a larger
+jurisdiction, and those with others of a still greater power; ascending
+gradually from the lowest to the supreme courts, which were respectively
+constituted to correct the errors of the inferior ones, and to determine
+such causes as, by reason of their weight and difficulty, demanded a
+more solemn discussion. The course of justice flowing in large streams
+from the king, as the fountain, to his superior courts of record; and
+being then subdivided into smaller channels, till the whole and every
+part of the kingdom were plentifully watered and refreshed. An
+institution that seems highly agreeable to the dictates of natural
+reason, as well as of more enlightened policy. * *
+
+"These inferior courts, at least the name and form of them, still
+continue in our legal constitution; but as the superior courts of record
+have, in practice, obtained a concurrent original jurisdiction, and as
+there is, besides, a power of removing plaints or actions thither from
+all the inferior jurisdictions; upon these accounts (among others) it
+has happened that these petty tribunals have fallen into decay, and
+almost into oblivion; whether for the better or the worse may be matter
+of some speculation, when we consider, on the one hand, the increase of
+expense and delay, and, on the other, the more able and impartial
+decisions that follow from this change of jurisdiction.
+
+"The order I shall observe in discoursing on these several courts,
+constituted for the redress of _civil_ injuries, (for with those of a
+jurisdiction merely _criminal_ I shall not at present concern
+myself,[67]) will be by beginning with the lowest, and those whose
+jurisdiction, though public and generally dispersed through the kingdom,
+is yet (with regard to each particular court) confined to very narrow
+limits; and so ascending gradually to those of the most extensive and
+transcendent power."--3 _Blackstone_, 30 to 32.
+
+"The _court-baron_ is a court incident to every manor in the kingdom,
+_to be holden by the steward within the said manor_. This court-baron is
+of two natures; the one is a customary court, of which we formerly
+spoke, appertaining entirely to the copy-holders, in which their estates
+are transferred by surrender and admittance, and other matters
+transacted relative to their tenures only. The other, of which we now
+speak, is a court of common law, and it is a court of the barons, by
+which name the freeholders were sometimes anciently called; _for that it
+is held by the freeholders who owe suit and service to the manor, the
+steward being rather the registrar than the judge_. These courts, though
+in their nature distinct, are frequently confounded together. _The court
+we are now considering, viz., the freeholders court, was composed of the
+lord's tenants, who were the pares_ (equals) _of each other, and were
+bound by their feudal tenure to assist their lord in the dispensation of
+domestic justice_. This was formerly held every three weeks; and its
+most important business is to determine, by writ of right, all
+controversies relating to the right of lands within the manor. It may
+also hold plea of any personal actions, of debt, trespass in the case,
+or the like, where the debt or damages do not amount to forty shillings;
+which is the same sum, or three marks, that bounded the jurisdiction of
+the ancient Gothic courts in their lowest instance, or _fierding
+courts_, so called because four were instituted within every superior
+district or hundred."--3 _Blackstone_, 33, 34.
+
+"A _hundred court_ is only a larger court-baron, being held for all the
+inhabitants of a particular hundred, instead of a manor. _The free
+suitors are here also the judges, and the steward the registrar, as in
+the case of a court-baron._ It is likewise no court of record,
+resembling the former at all points, except that in point of territory
+it is of greater jurisdiction. This is said by Sir Edward Coke to have
+been derived out of the county court for the ease of the people, that
+they might have justice done to them at their own doors, without any
+charge or loss of time; but its institution was probably coeval with
+that of hundreds themselves, which were formerly observed to have been
+introduced, though not invented, by Alfred, being derived from the
+polity of the ancient Germans. The _centeni_, we may remember, were the
+principal inhabitants of a district composed of different villages,
+originally in number a _hundred_, but afterward only called by that
+name, and who probably gave the same denomination to the district out of
+which they were chosen. Cæsar speaks positively of the judicial power
+exercised in their hundred courts and courts-baron. '_Princeps regiorum
+atque pagorum_' (which we may fairly construe the lords of hundreds and
+manors) '_inter suos jus dicunt, controversias que minuunt_.' (The
+chiefs of the country and the villages declare the law among them, and
+abate controversies.) And Tacitus, who had examined their constitution
+still more attentively, informs us not only of the authority of the
+lords, but that of the _centeni_, the hundreders, or jury, _who were
+taken out of the common freeholders, and had themselves a share in the
+determination. 'Eliguntur in conciliis et principes, qui jura per pagos
+vicosque reddunt, centeni singulis, ex plebe comites concilium simul et
+auctoritas adsunt_.' (The princes are chosen in the assemblies, who
+administer the laws throughout the towns and villages, and with each one
+are associated an hundred companions, taken from the people, for
+purposes both of counsel and authority.) This hundred court was
+denominated _hæreda_ in the Gothic constitution. But this court, as
+causes are equally liable to removal from hence as from the common
+court-baron, and by the same writs, and may also be reviewed by writ of
+false judgment, is therefore fallen into equal disuse with regard to the
+trial of actions."--_3 Blackstone_, 34, 35.
+
+"The _county court_ is a court incident to the jurisdiction of the
+_sheriff_. It is not a court of record, but may hold pleas of debt, or
+damages, under the value of forty shillings; over some of which causes
+these inferior courts have, by the express words of the statute of
+Gloucester, (6 Edward I., ch. 8,) a jurisdiction totally exclusive of
+the king's superior courts. * * The county court may also hold plea of
+many real actions, and of all personal actions to any amount, by virtue
+of a special writ, called a _justicies_, which is a writ empowering the
+sheriff, for the sake of despatch, to do the same justice in his county
+court as might otherwise be had at Westminster. _The freeholders of the
+county court are the real judges in this court, and the sheriff is the
+ministerial officer._ * * In modern times, as proceedings are removable
+from hence into the king's superior courts, by writ of pone or
+_recordari_, in the same manner as from hundred courts and courts-baron,
+and as the same writ of false judgment may be had in nature of a writ of
+error, this has occasioned the same disuse of bringing actions
+therein."--_3 Blackstone_, 36, 37.
+
+"Upon the whole, we cannot but admire the wise economy and admirable
+provision of our ancestors in settling the distribution of justice in a
+method so well calculated for cheapness, expedition, and ease. By the
+constitution which they established, all trivial debts, and injuries of
+small consequence, were to be recovered or redressed in every man's own
+county, hundred, or perhaps parish."--_3 Blackstone_, 59.]
+
+[Footnote 54: 1 Blackstone, 63-67.]
+
+[Footnote 55: This quaint and curious book (Smith's Commonwealth of
+England) describes the _minutiæ_ of trials, giving in detail the mode of
+impanelling the jury, and then the conduct of the lawyers, witnesses,
+and court. I give the following extracts, _tending to show that the
+judges impose no law upon the juries, in either civil or criminal cases,
+but only require them to determine the causes according to their
+consciences_.
+
+In civil causes he says:
+
+   "When it is thought that it is enough pleaded before them, and the
+   witnesses have said what they can, one of the judges, with a brief
+   and pithy recapitulation, reciteth to the twelve in sum the arguments
+   of the sergeants of either side, that which the witnesses have
+   declared, and the chief points of the evidence showed in writing, and
+   once again putteth them in mind of the issue, and sometime giveth it
+   them in writing, delivering to them the evidence which is showed on
+   either part, if any be, (evidence here is called writings of
+   contracts, authentical after the manner of England, that is to say,
+   written, sealed, and delivered,) and biddeth them go together."--p.
+   74.
+
+This is the whole account given of the charge to the jury.
+
+In criminal cases, after the witnesses have been heard, and the prisoner
+has said what he pleases in his defence, the book proceeds:
+
+   "When the judge hath heard them say enough, he asketh if they can say
+   any more: If they say no, then he turneth his speech to the inquest.
+   'Good men, (saith he,) ye of the inquest, ye have heard what these
+   men say against the prisoner. You have also heard what the prisoner
+   can say for himself. _Have an eye to your oath, and to your duty, and
+   do that which God shall put in your minds to the discharge of your
+   consciences_, and mark well what is said.'"--p. 92.
+
+This is the whole account given of the charge in a criminal case.
+
+The following statement goes to confirm the same idea, that jurors in
+England have formerly understood it to be their right and duty to judge
+only according to their consciences, and not to submit to any dictation
+from the court, either as to law or fact.
+
+   "If having pregnant evidence, nevertheless, the twelve do acquit the
+   malefactor, which they will do sometime, especially if they perceive
+   either one of the justices or of the judges, or some other man, to
+   pursue too much and too maliciously the death of the prisoner, * *
+   the prisoner escapeth; but the twelve (are) not only rebuked by the
+   judges, but also threatened of punishment; and many times commanded
+   to appear in the Star-Chamber, or before the Privy Council for the
+   matter. But this threatening chanceth oftener than the execution
+   thereof; _and the twelve answer with most gentle words, they did it
+   according to their consciences_, and pray the judges to be good unto
+   them, _they did as they thought right, and as they accorded all_, and
+   so it passeth away for the most part."--p. 100.
+
+The account given of the trial of a peer of the realm corroborates the
+same point:
+
+   "If any duke, marquis, or any other of the degrees of a baron, or
+   above, lord of the Parliament, be appeached of treason, or any other
+   capital crime, he is judged by his peers and equals; that is, the
+   yeomanry doth not go upon him, but an inquest of the Lords of
+   Parliament, and they give their voice not one for all, but each
+   severally as they do in Parliament, being (beginning) at the youngest
+   lord. And for judge one lord sitteth, who is constable of England for
+   that day. The judgment once given, he breaketh his staff, and
+   abdicateth his office. In the rest there is no difference from that
+   above written," (that is, in the case of a freeman.)--p. 98.]
+
+[Footnote 56: "The present form of the jurors' oath is that they shall
+'give a true verdict _according to the evidence_.' At what time this
+form was introduced is uncertain; but for several centuries after the
+Conquest, the jurors, _both in civil and criminal cases_, were sworn
+merely to _speak the truth_. (Glanville, lib. 2, cap. 17; Bracton, lib.
+3, cap. 22; lib. 4, p. 287, 291; Britton, p. 135.) Hence their decision
+was accurately termed _veredictum_, or verdict, that is, 'a thing truly
+said'; whereas the phrase 'true verdict' in the modern oath is not an
+accurate expression."--_Political Dictionary_, word _Jury_.]
+
+[Footnote 57: Of course, there can be no legal trial by jury, in either
+civil or criminal cases, where the jury are sworn to try the cases
+"_according to law_."]
+
+[Footnote 58: _Coke_, as late as 1588, admits that amercements must be
+fixed by the peers (8 Coke's Rep. 38, 2 Inst. 27); but he attempts,
+wholly without success, as it seems to me, to show a difference between
+fines and amercements. The statutes are very numerous, running through
+the three or four hundred years immediately succeeding Magna Carta, in
+which fines, ransoms, and amercements are spoken of as if they were the
+common punishments of offences, and as if they all meant the same thing.
+If, however, any technical difference could be made out between them,
+there is clearly none in principle; and the word amercement, as used in
+Magna Carta, must be taken in its most comprehensive sense.]
+
+[Footnote 59: "_Common right_" was the common law. _1 Coke's Inst._ 142
+a. 2 _do._ 55, 6.]
+
+[Footnote 60: The oath of the justices is in these words:
+
+"Ye shall swear, that well and lawfully ye shall serve our lord the king
+_and his people_, in the office of justice, and that lawfully ye shall
+counsel the king in his business, and that ye shall not counsel nor
+assent to anything which may turn him in damage or disherison in any
+manner, way, or color. And that ye shall not know the damage or
+disherison of him, whereof ye shall not cause him to be warned by
+yourself, or by other; _and that ye shall do equal law and execution of
+right to all his subjects, rich and poor, without having regard to any
+person_. And that ye take not by yourself, or by other, privily nor
+apertly, gift nor reward of gold nor silver, nor of any other thing that
+may turn to your profit, unless it be meat or drink, and that of small
+value, of any man that shall have any plea or process hanging before
+you, as long as the same process shall be so hanging, nor after for the
+same cause. And that ye take no fee, as long as ye shall be justice, nor
+robe of any man great or small, but of the king himself. And that ye
+give none advice or counsel to no man great or small, in no case where
+the king is party. And in case that any, of what estate or condition
+they be, come before you in your sessions with force and arms, or
+otherwise against the peace, or against the form of the statute thereof
+made, _to disturb execution of the common law_," (mark the term,
+"_common law_,") "or to menace the people that they may not pursue the
+law, that ye shall cause their bodies to be arrested and put in prison;
+and in case they be such that ye cannot arrest them, that ye certify the
+king of their names, and of their misprision, hastily, so that he may
+thereof ordain a convenable remedy. And that ye by yourself, nor by
+other, privily nor apertly, maintain any plea or quarrel hanging in the
+king's court, or elsewhere in the country. _And that ye deny no man
+common right by the king's letters, nor none other man's, nor for none
+other cause; and in case any letters come to you contrary to the law,"
+(that is, the "common law" before mentioned,) "that ye do nothing by
+such letters, but certify the king thereof, and proceed to execute the
+law," (the "common law" before mentioned,) "notwithstanding the same
+letters._ And that ye shall do and procure the profit of the king and of
+his crown, with all things where ye may reasonably do the same. And in
+case ye be from henceforth found in default in any of the points
+aforesaid, ye shall be at the king's will of body, lands, and goods,
+thereof to be done as shall please him, as God you help and all
+saints."--_18 Edward III._, st. 4. (1344.)]
+
+[Footnote 61: That the terms "_Law_" and "_Right_," as used in this
+statute, mean the _common law_, is shown by the preamble, which declares
+the motive of the statute to be that "_the Law of the Land, (the common
+law,) which we (the king) by our oath are bound to maintain_," may be
+the better kept, &c.]
+
+[Footnote 62: The following is a copy of the original:
+
+   "_Forma Juramenti Regis Angliæ in Coronacione sua_:
+
+   (Archiepiscopus Cantuariæ, ad quo de jure et consuetudine Ecclesiæ
+   Cantuariæ, antiqua et approbata, pertinet Reges Angliæ inungere et
+   coronare, die coronacionis Regis, anteque Rex coronetur, faciet Regi
+   Interrogationes subscriptas.)
+
+   Si leges et consuetudines ab antiquis justis et Deo devotis Regibus
+   plebi Anglicano concessas, cum sacramenti confirmacione eidem plebi
+   concedere et servare (volueris:) Et præsertim leges et consuetudines
+   et libertates a glorioso Rege Edwardo clero populoque concessas?
+
+   (Et respondeat Rex,) Concedo et servare volo, et sacramento
+   confirmare.
+
+   Servabis Ecclesiæ Dei, Cleroque, et Populo, pacem ex integro et
+   concordiam in Deo secundum vires tuas?
+
+   (Et respondeat Rex,) Servabo.
+
+   Facies fieri in omnibus Judiciis tuis equam et rectam justiciam, et
+   discrecionem, in misericordia et veritate, secundum vires tuas?
+
+   (Et respondeat Rex,) Faciam.
+
+   Concedis justas, leges et consuetudines esse tenendas, et promittis
+   per te eas esse protegendas, et ad honorem Dei corroborandas, quas
+   vulgus elegit, secundum vires tuas?
+
+   (Et respondeat Rex,) Concedo et promitto."]
+
+[Footnote 63: It would appear, from the text, that the Charter of
+Liberties and the Charter of the Forest were sometimes called "_laws of
+the land_."]
+
+[Footnote 64: As the ancient coronation oath, given in the text, has
+come down from the Saxon times, the following remarks of Palgrave will
+be pertinent, in connection with the oath, as illustrating the fact
+that, in those times, no special authority attached to the laws of the
+king:
+
+"The Imperial Witenagemot was not a legislative assembly, in the strict
+sense of the term, for the whole Anglo-Saxon empire. Promulgating his
+edicts amidst his peers and prelates, the king uses the language of
+command; but the theoretical prerogative was modified by usage, and the
+practice of the constitution required that the law should be accepted by
+the legislatures (courts) of the several kingdoms. * * The 'Basileus'
+speaks in the tone of prerogative: Edgar does not merely recommend, he
+commands that the law shall be adopted by all the people, whether
+English, Danes, or Britons, in every part of his empire. Let this
+statute be observed, he continues, by Earl Oslac, and all the host who
+dwell under his government, and let it be transmitted by writ to the
+ealdormen of the other subordinate states. And yet, in defiance of this
+positive injunction, the laws of Edgar were not accepted in Mercia until
+the reign of Canute the Dane. It might be said that the course so
+adopted may have been an exception to the general rule; but in the
+scanty and imperfect annals of Anglo-Saxon legislation, we shall be able
+to find so many examples of similar proceedings, _that this mode of
+enactment must be considered as dictated by the constitution of the
+empire_. Edward was the supreme lord of the Northumbrians, but more than
+a century elapsed before they obeyed his decrees. The laws of the
+glorious Athelstane had no effect in Kent, (county,) the dependent
+appanage of his crown, until sanctioned by the _Witan_ of the _shire_
+(county court). And the power of Canute himself, the 'King of all
+England,' does not seem to have compelled the Northumbrians to receive
+his code, until the reign of the Confessor, when such acceptance became
+a part of the compact upon the accession of a new earl.
+
+Legislation constituted but a small portion of the ordinary business
+transacted by the Imperial Witenagemot. The wisdom of the assembly was
+shown in avoiding unnecessary change. _Consisting principally of
+traditionary usages and ancestorial customs, the law was upheld by
+opinion. The people considered their jurisprudence as a part of their
+inheritance._ Their privileges and their duties were closely conjoined;
+_most frequently, the statutes themselves were only affirmances of
+ancient customs, or declaratory enactments_. In the Anglo-Saxon
+commonwealth, therefore, the legislative functions of the Witenagemot
+were of far less importance than the other branches of its authority. *
+* The members of the Witenagemot were the 'Pares Curiæ' (Peers of Court)
+of the kingdom. How far, on these occasions, their opinion or their
+equity controlled the power of the crown, cannot be ascertained. But the
+form of inserting their names in the _'Testing Clause_' was retained
+under the Anglo-Norman reigns; and the sovereign, who submitted his
+Charter to the judgment of the _Proceres_, professed to be guided by the
+opinion which they gave. As the '_Pares_' of the empire, the Witenagemot
+decided the disputes between the great vassals of the crown. * * The
+jurisdiction exercised in the Parliament of Edward I., when the barony
+of a _Lord-Marcher_ became the subject of litigation, is entirely
+analogous to the proceedings thus adopted by the great council of
+Edward, the son of Alfred, the Anglo-Saxon king.
+
+In this assembly, the king, the prelates, the dukes, the ealdormen, and
+the optimates passed judgment upon all great offenders. * *
+
+_The sovereign could not compel the obedience of the different nations
+composing the Anglo-Saxon empire._ Hence, it became more necessary for
+him to _conciliate their opinions_, if he solicited any service from a
+vassal prince or a vassal state beyond the ordinary terms of the
+compact; still more so, when he needed the support of a free burgh or
+city. And we may view the assembly (the Witenagemot) as partaking of the
+character of a political congress, in which the liegemen of the crown,
+or the communities protected by the 'Basileus,' (sovereign,) were asked
+or persuaded to relieve the exigences of the state, or to consider those
+measures which might be required for the common weal. The sovereign was
+compelled to parley with his dependents.
+
+It may be doubted whether any one member of the empire had power to
+legislate for any other member. The Regulus of Cumbria was unaffected by
+the vote of the Earl of East Angliæ, if he chose to stand out against
+it. These dignitaries constituted a congress, in which the sovereign
+could treat more conveniently and effectually with his vassals than by
+separate negotiations. * * But the determinations of the Witan bound
+those only who were present, or who concurred in the proposition; and a
+vassal denying his assent to the grant, might assert that the engagement
+which he had contracted with his superior did not involve any pecuniary
+subsidy, but only rendered him liable to perform service in the
+field."--_1 Palgrave's Rise and Progress of the English Commonwealth_,
+637 to 642.]
+
+[Footnote 65: "It was the freemen in Germany, and the possessors of land
+in England, who were _suitors_ (jurors) in the hundred court. These
+ranks of men were the same. The alteration which had happened in
+relation to property had invested the German freemen with land or
+territory."]
+
+[Footnote 66: It would be wholly erroneous, I think, to infer from this
+statement of Stuart, that either the "priests, princes, earls, or
+_eorldormen_" exercised any authority over the jury in the trial of
+causes, in the way of dictating the law to them. Henry's account of this
+matter doubtless gives a much more accurate representation of the truth.
+He says that _anciently_
+
+   "The meeting (the county court) was opened with a discourse by the
+   bishop, explaining, out of the Scriptures and ecclesiastical canons,
+   their several duties as good Christians and members of the church.
+   After this, the alderman, or one of his assessors, made a discourse
+   on the laws of the land, and the duties of good subjects and good
+   citizens. _When these preliminaries were over, they proceeded to try
+   and determine, first the causes of the church, next the pleas of the
+   crown, and last of all the controversies of private parties._"--3
+   _Henry's History of Great Britain_, 348.
+
+This view is corroborated by Tyrrell's _Introduction to the History of
+England_, p. 83-84, and by Spence's _Origin of the Laws and Political
+Institutions of Modern Europe_, p. 447, and the note on the same page.
+Also by a law of Canute to this effect, _In every county let there be
+twice a year an assembly, whereat the bishop and the earl shall be
+present, the one to instruct the people in divine, the other in human,
+laws_.--_Wilkins_, p. 136.]
+
+[Footnote 67: There was no distinction between the civil and criminal
+counts, as to the rights or powers of juries.]
+
+
+
+
+CHAPTER IV.
+
+THE RIGHTS AND DUTIES OF JURIES IN CIVIL SUITS.
+
+
+The evidence already given in the preceding chapters proves that the
+rights and duties of jurors, in civil suits, were anciently the same as
+in criminal ones; that the laws of the king were of no obligation upon
+the consciences of the jurors, any further than the laws were seen by
+them to be just; that very few laws were enacted applicable to civil
+suits; that when a new law was enacted, the nature of it could have been
+known to the jurors only by report, and was very likely not to be known
+to them at all; that nearly all the law involved in civil suits was
+_unwritten_; that there was _usually_ no one in attendance upon juries
+who could possibly enlighten them, unless it were sheriffs, stewards,
+and bailiffs, who were unquestionably too ignorant and untrustworthy to
+instruct them authoritatively; that the jurors must therefore
+necessarily have judged for themselves of the whole case; and that, _as
+a general rule_, they could judge of it by no law but the law of nature,
+or the principles of justice as they existed in their own minds.
+
+The ancient oath of jurors in civil suits, viz., that "_they would make
+known the truth according to their consciences_," implies that the
+jurors were above the authority of all legislation. The modern oath, in
+England, viz., that they "_will well and truly try the issue between the
+parties, and a true verdict give, according to the evidence_," implies
+the same thing. If the laws of the king had been binding upon a jury,
+they would have been sworn to try the cases _according to law_, or
+according to the laws.
+
+The ancient writs, in civil suits, as given in Glanville, (within the
+half century before Magna Carta,) to wit, "Summon twelve free and legal
+men, (or sometimes twelve knights,) to be in court, _prepared upon their
+oaths to declare whether A or B have the greater right to the land in
+question_," indicate that the jurors judged of the whole matter on their
+consciences only.
+
+The language of Magna Carta, already discussed, establishes the same
+point; for, although some of the words, such as "outlawed," and
+"exiled," would apply only to criminal cases, nearly the whole chapter
+applies as well to civil as to criminal suits. For example, how could
+the payment of a debt ever be enforced against an unwilling debtor, if
+he could neither be "arrested, imprisoned, nor deprived of his
+freehold," and if the king could neither "proceed against him, nor send
+any one against him, by force or arms"? Yet Magna Carta as much forbids
+that any of these things shall be done against a debtor, as against a
+criminal, _except according to, or in execution of_, "_a judgment of his
+peers, or the law of the land_,"--a provision which, it has been shown,
+gave the jury the free and absolute right to give or withhold "judgment"
+according to their consciences, irrespective of all legislation.
+
+The following provisions, in the Magna Carta of John, illustrate the
+custom of referring the most important matters of a civil nature, even
+where the king was a party, to the determination of the peers, or of
+twelve men, acting by no rules but their own consciences. These examples
+at least show that there is nothing improbable or unnatural in the idea
+that juries should try all civil suits according to their own judgments,
+independently of all laws of the king.
+
+   _Chap. 65._ "If we have disseized or dispossessed the Welsh of any
+   lands, liberties, or other things, without the legal judgment of
+   their peers, they shall be immediately restored to them. And if any
+   dispute arises upon this head, the matter shall be determined in the
+   Marches,[68] _by the judgment of their peers_," &c.
+
+   _Chap. 68._ "We shall treat with Alexander, king of Scots, concerning
+   the restoring of his sisters, and hostages, and rights and liberties,
+   in the same form and manner as we shall do to the rest of our barons
+   of England; unless by the engagements, which his father William, late
+   king of Scots, hath entered into with us, it ought to be otherwise;
+   _and this shall be left to the determination of his peers in our
+   court_."
+
+   _Chap. 56._ "All evil customs concerning forests, warrens, and
+   foresters, warreners, sheriffs, and their officers, rivers and their
+   keepers, shall forthwith be inquired into in each county, _by twelve
+   knights of the same shire_, chosen by the most creditable persons in
+   the same county, _and upon oath_; and within forty days after the
+   said inquest, be utterly abolished, so as never to be restored."
+
+There is substantially the same reason why a jury _ought_ to judge of
+the justice of laws, and hold all unjust laws invalid, in civil suits,
+as in criminal ones. That reason is the necessity of guarding against
+the tyranny of the government. Nearly the same oppressions can be
+practised in civil suits as in criminal ones. For example, individuals
+may be deprived of their liberty, and robbed of their property, by
+judgments rendered in civil suits, as well as in criminal ones. If the
+laws of the king were imperative upon a jury in civil suits, the king
+might enact laws giving one man's property to another, or confiscating
+it to the king himself, and authorizing civil suits to obtain possession
+of it. Thus a man might be robbed of his property at the arbitrary
+pleasure of the king. In fact, all the property of the kingdom would be
+placed at the arbitrary disposal of the king, through the judgments of
+juries in civil suits, if the laws of the king were imperative upon a
+jury in such suits.[69]
+
+Furthermore, it would be absurd and inconsistent to make a jury
+paramount to legislation in _criminal_ suits, and subordinate to it in
+_civil_ suits; because an individual, by resisting the execution of a
+_civil_ judgment, founded upon an unjust law, could give rise to a
+_criminal_ suit, in which the jury would be bound to hold the same law
+invalid. So that, if an unjust law were binding upon a jury in _civil_
+suits, a defendant, by resisting the execution of the judgment, could,
+_in effect_, convert the civil action into a criminal one, in which the
+jury would be paramount to the same legislation, to which, in the
+_civil_ suit, they were subordinate. In other words, in the _criminal_
+suit, the jury would be obliged to justify the defendant in resisting a
+law, which, in the _civil_ suit, they had said he was bound to submit
+to.
+
+To make this point plain to the most common mind--suppose a law be
+enacted that the property of A shall be given to B. B brings a civil
+action to obtain possession of it. If the jury, in this _civil_ suit,
+are bound to hold the law obligatory, they render a judgment in favor of
+B, that he be put in possession of the property; _thereby declaring that
+A is bound to submit to a law depriving him of his property_. But when
+the execution of that judgment comes to be attempted--that is, when the
+sheriff comes to take the property for the purpose of delivering it to
+B--A acting, as he has a _natural_ right to do, in defence of his
+property, resists and kills the sheriff. He is thereupon indicted for
+murder. On this trial his plea is, that in killing the sheriff, he was
+simply exercising his _natural_ right of defending his property against
+an unjust law. The jury, not being bound, in a _criminal_ case, by the
+authority of an unjust law, judge the act on its merits, and acquit the
+defendant--thus declaring that he was _not_ bound to submit to the same
+law which the jury, in the _civil_ suit, had, by their judgment,
+declared that he _was_ bound to submit to. Here is a contradiction
+between the two judgments. In the _civil_ suit, the law is declared to
+be obligatory upon A; in the _criminal_ suit, the same law is declared
+to be of no obligation.
+
+It would be a solecism and absurdity in government to allow such
+consequences as these. Besides, it would be practically impossible to
+maintain government on such principles; for no government could enforce
+its _civil_ judgments, unless it could support them by _criminal_ ones,
+in case of resistance. A jury must therefore be paramount to legislation
+in both civil and criminal cases, or in neither. If they are paramount
+in neither, they are no protection to liberty. If they are paramount in
+both, then all legislation goes only for what it may chance to be worth
+in the estimation of a jury.
+
+Another reason why Magna Carta makes the discretion and consciences of
+juries paramount to all legislation in _civil_ suits, is, that if
+legislation were binding upon a jury, the jurors--(by reason of their
+being unable to read, as jurors in those days were, and also by reason
+of many of the statutes being unwritten, or at least not so many copies
+written as that juries could be supplied with them)--would have been
+necessitated--at least in those courts in which the king's justices
+sat--to take the word of those justices as to what the laws of the king
+really were. In other words, they would have been necessitated _to take
+the law from the court_, as jurors do now.
+
+Now there were two reasons why, as we may rationally suppose, the people
+did not wish juries to take their law from the king's judges. One was,
+that, at that day, the people probably had sense enough to see, (what
+we, at this day, have not sense enough to see, although we have the
+evidence of it every day before our eyes,) that those judges, being
+dependent upon the legislative power, (the king,) being appointed by it,
+paid by it, and removable by it at pleasure, would be mere tools of that
+power, and would hold all its legislation obligatory, whether it were
+just or unjust. This was one reason, doubtless, why Magna Carta made
+juries, in civil suits, paramount to all instructions of the king's
+judges. The reason was precisely the same as that for making them
+paramount to all instructions of judges in criminal suits, viz., that
+the people did not choose to subject their rights of property, and all
+other rights involved in civil suits, to the operation of such laws as
+the king might please to enact. It was seen that to allow the king's
+judges to dictate the law to the jury would be equivalent to making the
+legislation of the king imperative upon the jury.
+
+Another reason why the people did not wish juries, in civil suits, to
+take their law from the king's judges, doubtless was, that, knowing the
+dependence of the judges upon the king, and knowing that the king would,
+of course, tolerate no judges who were not subservient to his will, they
+necessarily inferred that the king's judges would be as corrupt, in the
+administration of justice, as was the king himself, or as he wished them
+to be. And how corrupt that was, may be inferred from the following
+historical facts.
+
+Hume says:
+
+  "It appears that the ancient kings of England put themselves entirely
+   upon the footing of the barbarous Eastern princes, whom no man must
+   approach without a present, who sell all their good offices, and who
+   intrude themselves into every business that they may have a pretence
+   for extorting money. Even justice was avowedly bought and sold; the
+   king's court itself, though the supreme judicature of the kingdom,
+   was open to none that brought not presents to the king; the bribes
+   given for expedition, delay, suspension, and doubtless for the
+   perversion of justice, were entered in the public registers of the
+   royal revenue, and remain as monuments of the perpetual iniquity and
+   tyranny of the times. The barons of the exchequer, for instance, the
+   first nobility of the kingdom, were not ashamed to insert, as an
+   article in their records, that the county of Norfolk paid a sum that
+   they might be fairly dealt with; the borough of Yarmouth, that the
+   king's charters, which they have for their liberties, might not be
+   violated; Richard, son of Gilbert, for the king's helping him to
+   recover his debt from the Jews; * * Serlo, son of Terlavaston, that
+   he might be permitted to make his defence, in case he were accused of
+   a certain homicide; Walter de Burton, for free law, if accused of
+   wounding another; Robert de Essart, for having an inquest to find
+   whether Roger, the butcher, and Wace and Humphrey, accused him of
+   robbery and theft out of envy and ill-will, or not; William Buhurst,
+   for having an inquest to find whether he were accused of the death of
+   one Godwin, out of ill-will, or for just cause. I have selected these
+   few instances from a great number of the like kind, which Madox had
+   selected from a still greater number, preserved in the ancient rolls
+   of the exchequer.
+
+   Sometimes a party litigant offered the king a certain portion, a
+   half, a third, a fourth, payable out of the debts which he, as the
+   executor of justice, should assist in recovering. Theophania de
+   Westland agreed to pay the half of two hundred and twelve marks, that
+   she might recover that sum against James de Fughleston; Solomon, the
+   Jew, engaged to pay one mark out of every seven that he should
+   recover against Hugh de la Hose; Nicholas Morrel promised to pay
+   sixty pounds, that the Earl of Flanders might be distrained to pay
+   him three hundred and forty-three pounds, which the earl had taken
+   from him; and these sixty pounds were to be paid out of the first
+   money that Nicholas should recover from the earl."--_Hume, Appendix
+   2._
+
+   "In the reign of Henry II., the best and most just of these (the
+   Norman) princes, * * Peter, of Blois, a judicious and even elegant
+   writer, of that age, gives a pathetic description of the _venality of
+   justice_, and the oppressions of the poor, * * and he scruples not to
+   complain to the king himself of these abuses. We may judge what the
+   case would be under the government of worse princes."--_Hume,
+   Appendix 2._
+
+Carte says:
+
+   "The crown exercised in those days an exorbitant and inconvenient
+   power, ordering the justices of the king's court, in suits about
+   lands, to turn out, put, and keep in possession, which of the
+   litigants they pleased; to send contradictory orders; and take large
+   sums of money from each; to respite proceedings; to direct sentences;
+   and the judges, acting by their commission, conceived themselves
+   bound to observe such orders, to the great delay, interruption, and
+   preventing of justice; at least, this was John's practice."--_Carte's
+   History of England_, vol. 1, p. 832.
+
+Hallam says:
+
+   "But of all the abuses that deformed the Anglo-Saxon government, none
+   was so flagitious as the sale of judicial redress. The king, we are
+   often told, is the fountain of justice; but in those ages it was one
+   which gold alone could unseal. Men fined (paid fines) to have right
+   done them; to sue in a certain court; to implead a certain person; to
+   have restitution of land which they had recovered at law. From the
+   sale of that justice which every citizen has a right to demand, it
+   was an easy transition to withhold or deny it. Fines were received
+   for the king's help against the adverse suitor; that is, for
+   perversion of justice, or for delay. Sometimes they were paid by
+   opposite parties, and, of course, for opposite ends."--_2 Middle
+   Ages_, 438.
+
+In allusion to the provision of Magna Carta on this subject, Hallam
+says:
+
+   "A law which enacts that justice shall neither be sold, denied, nor
+   delayed, stamps with infamy that government under which it had become
+   necessary."--_2 Middle Ages_, 451.
+
+Lingard, speaking of the times of Henry II., (say 1184,) says:
+
+   "It was universally understood that money possessed greater influence
+   than justice in the royal courts, and instances are on record, in
+   which one party has made the king a present to accelerate, and the
+   other by a more valuable offer has succeeded in retarding a decision.
+   * * But besides the fines paid to the sovereigns, _the judges often
+   exacted presents for themselves_, and loud complaints existed against
+   their venality and injustice."--_2 Lingard_, 231.
+
+In the narrative of "The costs and charges which I, Richard de Anesty,
+bestowed in recovering the land of William, my uncle," (some fifty years
+before Magna Carta,) are the following items:
+
+   "To Ralph, the king's physician, I gave thirty-six marks and one
+   half; to the king an hundred marks; and to the queen one mark of
+   gold." The result is thus stated. "At last, thanks to our lord the
+   king, and by judgment of his court, my uncle's land was adjudged to
+   me."--_2 Palgrave's Rise and Progress of the English Commonwealth_,
+   p. 9 and 24.
+
+Palgrave also says:
+
+   "The precious ore was cast into the scales of justice, even when held
+   by the most conscientious of our Anglo-Saxon kings. A single case
+   will exemplify the practices which prevailed. Alfric, the heir of
+   'Aylwin, the black,' seeks to set aside the death-bed bequest, by
+   which his kinsman bestowed four rich and fertile manors upon St.
+   Benedict. Alfric, the claimant, was supported by extensive and
+   powerful connexions; and Abbot Alfwine, the defendant, was well aware
+   that there would be _danger_ in the discussion of the dispute in
+   public, or before the Folkmoot, (people's meeting, or county court);
+   or, in other words, that the Thanes of the shire would do their best
+   to give a judgment in favor of their compeer. The plea being removed
+   into the Royal Court, the abbot acted with that prudence which so
+   often calls forth the praises of the monastic scribe. He gladly
+   emptied twenty marks of gold into the sleeve of the Confessor,
+   (Edward,) and five marks of gold presented to Edith, the Fair,
+   encouraged her to aid the bishop, and to exercise her gentle
+   influence in his favor. Alfric, with equal wisdom, withdrew from
+   prosecuting the hopeless cause, in which his opponent might possess
+   an advocate in the royal judge, and a friend in the king's consort.
+   Both parties, therefore, found it desirable to come to an
+   agreement."--_1 Palgrave's Rise and Progress, &c._, p. 650.
+
+But Magna Carta has another provision for the trial of _civil_ suits,
+that obviously had its origin in the corruption of the king's judges.
+The provision is, that four knights, to be chosen in every county, by
+the people of the county, shall sit with the king's judges, in the
+Common Pleas, in jury trials, (assizes,) on the trial of three certain
+kinds of suits, that were among the most important that were tried at
+all. The reason for this provision undoubtedly was, that the corruption
+and subserviency of the king's judges were so well known, that the
+people would not even trust them to sit alone in a jury trial of any
+considerable importance. The provision is this:
+
+   _Chap. 22_, (of John's Charter.) "Common Pleas shall not follow our
+   court, but shall be holden in some certain place. Trials upon the
+   writ of _novel disseisin_, and of _Mort d'Ancester_, and of _Darrein
+   Presentment_, shall be taken but in their proper counties, and after
+   this manner: We, or, if we should be out of our realm, our chief
+   justiciary, shall send two justiciaries through every county four
+   times a year;[70] _who, with four knights chosen out of every shire,
+   by the people, shall hold the assizes_ (juries) _in the county, on
+   the day and at the place appointed_."
+
+It would be very unreasonable to suppose that the king's judges were
+allowed to _dictate_ the law to the juries, when the people would not
+even suffer them to sit alone in jury trials, but themselves chose four
+men to sit with them, to keep them honest.[71]
+
+This practice of sending the king's judges into the counties to preside
+at jury trials, was introduced by the Norman kings. Under the Saxons it
+was not so. _No officer of the king was allowed to preside at a jury
+trial; but only magistrates chosen by the people._[72]
+
+But the following chapter of John's charter, which immediately succeeds
+the one just quoted, and refers to the same suits, affords very strong,
+not to say conclusive, proof, that juries judged of the law in civil
+suits--that is, _made the law_, so far as their deciding according to
+their own notions of justice could make the law.
+
+   _Chap. 23._ "And if, on the county day, the aforesaid assizes cannot
+   be taken, _so many knights and freeholders shall remain, of those who
+   shall have been present on said day, as that the judgments may be
+   rendered by them_, whether the business be more or less."
+
+The meaning of this chapter is, that so many of the _civil_ suits, as
+could not be tried on the day when the king's justices were present,
+should be tried afterwards, _by the four knights before mentioned, and
+the freeholders, that is, the jury_. It must be admitted, of course,
+that the juries, in these cases, judged the matters of law, as well as
+fact, unless it be presumed that the _knights_ dictated the law to the
+jury--a thing of which there is no evidence at all.
+
+As a final proof on this point, there is a statute enacted seventy years
+after Magna Carta, which, although it is contrary to the common law, and
+therefore void, is nevertheless good evidence, inasmuch as it contains
+an acknowledgment, on the part of the king himself, that juries had a
+right to judge of the whole matter, law and fact, in civil suits. The
+provision is this:
+
+   "It is ordained, that the justices assigned to take the assizes,
+   shall not compel the jurors to say precisely whether it be disseisin,
+   or not, so that they do show the truth of the deed, and seek aid of
+   the justices. But if they will, of their own accord, say that it is
+   disseisin, or not, their verdict shall be admitted at their own
+   peril."--_13 Edward I._, st. 1, ch. 3, sec. 2. (1285.)
+
+The question of "disseisin, or not," was a question of law, as well as
+fact. This statute, therefore, admits that the law, as well as the fact,
+was in the hands of the jury. The statute is nevertheless void, because
+the king had no authority to give jurors a dispensation from the
+obligation imposed upon them by their oaths and the "law of the land,"
+that they should "make known the truth according their (own)
+consciences." This they were bound to do, and there was no power in the
+king to absolve them from the duty. And the attempt of the king thus to
+absolve them, and authorize them to throw the case into the hands of the
+judges for decision, was simply an illegal and unconstitutional attempt
+to overturn the "law of the land," which he was sworn to maintain, and
+gather power into his own hands, through his judges. He had just as much
+constitutional power to enact that the jurors should not be compelled to
+declare the _facts_, but that they might leave _them_ to be determined
+by the king's judges, as he had to enact that they should not be
+compelled to declare the _law_, but might leave _it_ to be decided by
+the king's judges. It was as much the legal duty of the jury to decide
+the law as to decide the fact; and no law of the king could affect their
+obligation to do either. And this statute is only one example of the
+numberless contrivances and usurpations which have been resorted to, for
+the purpose of destroying the original and genuine trial by jury.
+
+[Footnote 68: _Marches_, the limits, or boundaries, between England and
+Wales.]
+
+[Footnote 69: That the kings would have had no scruples to enact laws
+for the special purpose of plundering the people, by means of the
+judgments of juries, if they could have got juries to acknowledge the
+authority of their laws, is evident from the audacity with which they
+plundered them, without any judgments of juries to authorize them.
+
+It is not necessary to occupy space here to give details as to these
+robberies; but only some evidence of the general fact.
+
+   Hallam says, that "For the first three reigns (of the Norman kings) *
+   * the intolerable exactions of tribute, the rapine of purveyance, the
+   iniquity of royal courts, are continually in the mouths of the
+   historians. 'God sees the wretched people,' says the Saxon
+   Chronicler, 'most unjustly oppressed; first they are despoiled of
+   their possessions, and then butchered.' This was a grievous year
+   (1124). Whoever had any property, lost it by heavy taxes and unjust
+   decrees."--_2 Middle Ages_, 435-6.
+
+   "In the succeeding reign of _John_, all the rapacious exactions usual
+   to these Norman kings were not only redoubled, but mingled with
+   outrages of tyranny still more intolerable. * *
+
+   "In 1207 John took a seventh of the movables of lay and spiritual
+   persons, all murmuring, but none daring to speak against
+   it."--_Ditto_, 446.
+
+In Hume's account of the extortions of those times, the following
+paragraph occurs:
+
+   "But the most barefaced acts of tyranny and oppression were practised
+   against the Jews, who were entirely out of the protection of the law,
+   and were abandoned to the immeasurable rapacity of the king and his
+   ministers. Besides many other indignities, to which they were
+   continually exposed, it appears that they were once all thrown into
+   prison, and the sum of 66,000 marks exacted for their liberty. At
+   another time, Isaac, the Jew, paid alone 5100 marks; Brun, 3000
+   marks; Jurnet, 2000; Bennet, 500. At another, Licorica, widow of
+   David, the Jew of Oxford, was required to pay 6000 marks."--_Hume's
+   Hist. Eng., Appendix_ 2.
+
+Further accounts of the extortions and oppressions of the kings may be
+found in Hume's History, Appendix 2, and in Hallam's Middle Ages, vol.
+2, p. 435 to 446.
+
+By Magna Carta John bound himself to make restitution for some of the
+spoliations he had committed upon individuals "_without the legal
+judgment of their peers_."--_See Magna Carta of John_, ch. 60, 61, 65
+and 66.
+
+One of the great charges, on account of which the nation rose against
+John, was, that he plundered individuals of their property, "_without
+legal judgment of their peers_." Now it was evidently very weak and
+short-sighted in John to expose himself to such charges, _if his laws
+were really obligatory upon the peers_; because, in that case, he could
+have enacted any laws that were necessary for his purpose, and then, by
+civil suits, have brought the cases before juries for their "judgment,"
+and thus have accomplished all his robberies in a perfectly legal
+manner.
+
+There would evidently have been no sense in these complaints, that he
+deprived men of their property "_without legal judgment of their
+peers_," if his laws had been binding upon the peers; because he could
+then have made the same spoliations as well with the judgment of the
+peers as without it. Taking the judgment of the peers in the matter,
+would have been only a ridiculous and useless formality, if they were to
+exercise no discretion or conscience of their own, independently of the
+laws of the king.
+
+It may here be mentioned, in passing, that the same would be true in
+criminal matters, if the king's laws were obligatory upon juries.
+
+As an illustration of what tyranny the kings would sometimes practise,
+Hume says:
+
+   "It appears from the Great Charter itself, that not only John, a
+   tyrannical prince, and Richard, a violent one, but their father
+   Henry, under whose reign the prevalence of gross abuses is the least
+   to be suspected, were accustomed, from their sole authority, without
+   process of law, to imprison, banish, and attaint the freemen of their
+   kingdom."--_Hume, Appendix_ 2.
+
+The provision, also, in the 64th chapter of Magna Carta, that "all
+unjust and illegal fines, and all amercements, _imposed unjustly, and
+contrary to the Law of the Land, shall be entirely forgiven_," &c.; and
+the provision, in chapter 61, that the king "will cause full justice to
+be administered" in regard to "all those things, of which any person
+has, without legal judgment of his peers, been dispossessed or deprived,
+either by King Henry, our father, or our brother, King Richard,"
+indicate the tyrannical practices that prevailed.
+
+   We are told also that John himself "had dispossessed several great
+   men without any judgment of their peers, condemned others to cruel
+   deaths, * * insomuch that his tyrannical will stood instead of a
+   law."--_Echard's History of England_, 106.
+
+Now all these things were very unnecessary and foolish, if his laws were
+binding upon juries; because, in that case, he could have procured the
+conviction of these men in a legal manner, and thus have saved the
+necessity of such usurpation. In short, if the laws of the king had been
+binding upon juries, there is no robbery, vengeance, or oppression,
+which he could not have accomplished through the judgments of juries.
+This consideration is sufficient, of itself, to prove that the laws of
+the king were of no authority over a jury, in either civil or criminal
+cases, unless the juries regarded the laws as just in themselves.]
+
+[Footnote 70: By the Magna Carta of Henry III. this is changed to once a
+year.]
+
+[Footnote 71: From the provision of Magna Carta, cited in the text, it
+must be inferred that there can be no legal trial by jury, in civil
+cases, if only the king's justices preside; that, to make the trial
+legal, there must be other persons, chosen by the people, to sit with
+them; the object being to prevent the jury's being deceived by the
+justices. I think we must also infer that the king's justices could sit
+only in the three actions specially mentioned. We cannot go beyond the
+letter of Magna Carta, in making innovations upon the common law, which
+required all presiding officers in jury trials to be elected by the
+people.]
+
+[Footnote 72: "The earls, sheriffs, and head-boroughs were annually
+elected in the full folcmote, (people's meeting)."--_Introduction to
+Gilbert's History of the Common Pleas_, p. 2, _note_.
+
+"It was the especial province of the earldomen or earl to attend the
+shyre-meeting, (the county court,) twice a year, and there officiate as
+the county judge in expounding the secular laws, as appears by the fifth
+of Edgar's laws."--_Same_, p. 2, _note_.
+
+"Every ward had its proper alderman, who was _chosen_, and not imposed
+by the prince."--_Same_, p. 4, _text_.
+
+"As the aldermen, or earls, were always _chosen_" (by the people) "from
+among the greatest thanes, who in those times were generally more
+addicted to arms than to letters, they were but ill-qualified for the
+administration of justice, and performing the civil duties of their
+office."--_3 Henry's History of Great Britain_, 343.
+
+"But none of these thanes were annually elected in the full folcmote,
+(people's meeting,) _as the earls, sheriffs, and head-boroughs were_;
+nor did King Alfred (as this author suggests) deprive the people of the
+election of those last mentioned magistrates and nobles, much less did
+he appoint them himself."--_Introd. to Gilbert's Hist. Com. Pleas_, p.
+2, _note_.
+
+"The sheriff was usually not appointed by the lord, but elected by the
+freeholders of the district."--_Political Dictionary_, word _Sheriff_.
+
+"Among the most remarkable of the Saxon laws we may reckon * * the
+election of their magistrates by the people, originally even that of
+their kings, till dear-bought experience evinced the convenience and
+necessity of establishing an hereditary succession to the crown. But
+that (the election) of all subordinate magistrates, their military
+officers or heretochs, their sheriffs, their conservators of the peace,
+their coroners, their portreeves, (since changed into mayors and
+bailiffs,) and even their tithing-men and borsholders at the last,
+continued, some, till the Norman conquest, others for two centuries
+after, and some remain to this day."--_4 Blackstone_, 413.
+
+"The election of sheriffs was left to the people, _according to ancient
+usage_."--_St. West._ 1, c. 27.--_Crabbe's History of English Law_,
+181.]
+
+
+
+
+CHAPTER V.
+
+OBJECTIONS ANSWERED
+
+
+The following objections will be made to the doctrines and the evidence
+presented in the preceding chapters.
+
+1. That it is a _maxim_ of the law, that the judges respond to the
+question of law, and juries only to the question of fact.
+
+The answer to this objection is, that, since Magna Carta, judges have
+had more than six centuries in which to invent and promulgate pretended
+maxims to suit themselves; and this is one of them. Instead of
+expressing the law, it expresses nothing but the ambitious and lawless
+will of the judges themselves, and of those whose instruments they
+are.[73]
+
+2. It will be asked, Of what use are the justices, if the jurors judge
+both of law and fact?
+
+The answer is, that they are of use, 1. To assist and enlighten the
+jurors, if they can, by their advice and information; such advice and
+information to be received only for what they may chance to be worth in
+the estimation of the jurors. 2. To do anything that may be necessary in
+regard to granting appeals and new trials.
+
+3. It is said that it would be absurd that twelve ignorant men should
+have power to judge of the law, while justices learned in the law should
+be compelled to sit by and see the law decided erroneously.
+
+One answer to this objection is, that the powers of juries are not
+granted to them on the supposition that they know the law better than
+the justices; but on the ground that the justices are untrustworthy,
+that they are exposed to bribes, are themselves fond of power and
+authority, and are also the dependent and subservient creatures of the
+legislature; and that to allow them to dictate the law, would not only
+expose the rights of parties to be sold for money, but would be
+equivalent to surrendering all the property, liberty, and rights of the
+people, unreservedly into the hands of arbitrary power, (the
+legislature,) to be disposed of at its pleasure. The powers of juries,
+therefore, not only place a curb upon the powers of legislators and
+judges, but imply also an imputation upon their integrity and
+trustworthiness; and _these_ are the reasons why legislators and judges
+have formerly entertained the intensest hatred of juries, and, so fast
+as they could do it without alarming the people for their liberties,
+have, by indirection, denied, undermined, and practically destroyed
+their power. And it is only since all the real power of juries has been
+destroyed, and they have become mere tools in the hands of legislators
+and judges, that they have become favorites with them.
+
+Legislators and judges are necessarily exposed to all the temptations of
+money, fame, and power, to induce them to disregard justice between
+parties, and sell the rights, and violate the liberties of the people.
+Jurors, on the other hand, are exposed to none of these temptations.
+They are not liable to bribery, for they are unknown to the parties
+until they come into the jury-box. They can rarely gain either fame,
+power, or money, by giving erroneous decisions. Their offices are
+temporary, and they know that when they shall have executed them, they
+must return to the people, to hold all their own rights in life subject
+to the liability of such judgments, by their successors, as they
+themselves have given an example for. The laws of human nature do not
+permit the supposition that twelve men, taken by lot from the mass of
+the people, and acting under such circumstances, will _all_ prove
+dishonest. It is a supposable case that they may not be sufficiently
+enlightened to know and do their whole duty, in all cases whatsoever;
+but that they should _all_ prove _dishonest_, is not within the range
+of probability. A jury, therefore, insures to us--what no other court
+does--that first and indispensable requisite in a judicial tribunal,
+integrity.
+
+4. It is alleged that if juries are allowed to judge of the law, _they
+decide the law absolutely; that their decision must necessarily stand,
+be it right or wrong_; and that this power of absolute decision would be
+dangerous in their hands, by reason of their ignorance of the law.
+
+One answer is, that this power, which juries have of _judging_ of the
+law, is not a power of _absolute decision in all cases_. For example, it
+is a power to declare imperatively that a man's property, liberty, or
+life, shall _not_ be taken from him; but it is not a power to declare
+imperatively that they _shall_ be taken from him.
+
+Magna Carta does not provide that the judgments of the peers _shall be
+executed_; but only that _no other than their judgments_ shall ever be
+executed, _so far as to take a party's goods, rights, or person,
+thereon_.
+
+A judgment of the peers may be reviewed, and invalidated, and a new
+trial granted. So that practically a jury has no absolute power to take
+a party's goods, rights, or person. They have only an absolute veto upon
+their being taken by the government. The government is not bound to do
+everything that a jury may adjudge. It is only prohibited from doing
+anything--(that is, from taking a party's goods, rights, or
+person)--unless a jury have first adjudged it to be done.
+
+But it will, perhaps, be said, that if an erroneous judgment of one jury
+should be reaffirmed by another, on a new trial, it must _then_ be
+executed. But Magna Carta does not command even this--although it might,
+perhaps, have been reasonably safe for it to have done so--for if two
+juries unanimously affirm the same thing, after all the light and aid
+that judges and lawyers can afford them, that fact probably furnishes as
+strong a presumption in favor of the correctness of their opinion, as
+can ordinarily be obtained in favor of a judgment, by any measures of a
+practical character for the administration of justice. Still, there is
+nothing in Magna Carta that _compels_ the execution of even a second
+judgment of a jury. The only injunction of Magna Carta upon the
+government, as to what it _shall do_, on this point, is that it shall
+"do justice and right," without sale, denial, or delay. But this leaves
+the government all power of determining what is justice and right,
+except that it shall not consider anything as justice and right--so far
+as to carry it into execution against the goods, rights, or person of a
+party--unless it be something which a jury have sanctioned.
+
+If the government had no alternative but to execute all judgments of a
+jury indiscriminately, the power of juries would unquestionably be
+dangerous; for there is no doubt that they may sometimes give hasty and
+erroneous judgments. But when it is considered that their judgments can
+be reviewed, and new trials granted, this danger is, for all practical
+purposes, obviated.
+
+If it be said that juries may _successively_ give erroneous judgments,
+and that new trials cannot be granted indefinitely, the answer is, that
+so far as Magna Carta is concerned, there is nothing to prevent the
+granting of new trials indefinitely, if the judgments of juries are
+contrary to "justice and right." So that Magna Carta does not _require_
+any judgment whatever to be executed--so far as to take a party's goods,
+rights, or person, thereon--unless it be concurred in by both court and
+jury.
+
+Nevertheless, we may, for the sake of the argument, suppose the
+existence of a _practical_, if not _legal_, necessity, for executing
+_some_ judgment or other, in cases where juries persist in disagreeing
+with the courts. In such cases, the principle of Magna Carta
+unquestionably is, that the uniform judgments of _successive_ juries
+shall prevail over the opinion of the court. And the reason of this
+principle is obvious, viz., that it is the will of the country, and not
+the will of the court, or the government, that must determine what laws
+shall be established and enforced; that the concurrent judgments of
+successive juries, given in opposition to all the reasoning which judges
+and lawyers can offer to the contrary, must necessarily be presumed to
+be a truer exposition of the will of the country, than are the opinions
+of the judges.
+
+But it may be said that, unless jurors submit to the control of the
+court, in matters of law, they may disagree among themselves, and
+_never_ come to any judgment; and thus justice fail to be done.
+
+Such a case is perhaps possible; but, if possible, it can occur but
+rarely; because, although one jury may disagree, a succession of juries
+are not likely to disagree--that is, _on matters of natural law, or
+abstract justice_.[74] If such a thing should occur, it would almost
+certainly be owing to the attempt of the court to mislead them. It is
+hardly possible that any other cause should be adequate to produce such
+an effect; because justice comes very near to being a self-evident
+principle. The mind perceives it almost intuitively. If, in addition to
+this, the court be uniformly on the side of justice, it is not a
+reasonable supposition that a succession of juries should disagree about
+it. If, therefore, a succession of juries do disagree on the law of any
+case, the presumption is, not that justice fails of being done, but that
+injustice is prevented--_that_ injustice, which would be done, if the
+opinion of the court were suffered to control the jury.
+
+For the sake of the argument, however, it may be admitted to be possible
+that justice should sometimes fail of being done through the
+disagreements of jurors, notwithstanding all the light which judges and
+lawyers can throw upon the question in issue. If it be asked what
+provision the trial by jury makes for such cases, the answer is, _it
+makes none; and justice must fail of being done, from the want of its
+being made sufficiently intelligible_.
+
+Under the trial by jury, justice can never be done--that is, by a
+judgment that shall take a party's goods, rights, or person--until that
+justice can be made intelligible or perceptible to the minds of _all_
+the jurors; or, at least, until it obtain the voluntary assent of
+all--an assent, which ought not to be given until the justice itself
+shall have become perceptible to all.
+
+The principles of the trial by jury, then, are these:
+
+1. That, in criminal cases, the accused is presumed innocent.
+
+2. That, in civil cases, possession is presumptive proof of property;
+or, in other words, every man is presumed to be the rightful proprietor
+of whatever he has in his possession.
+
+3. That these presumptions shall be overcome, in a court of justice,
+only by evidence, the sufficiency of which, and by law, the justice of
+which, are satisfactory to the understanding and consciences of _all_
+the jurors.
+
+These are the bases on which the trial by jury places the property,
+liberty, and rights of every individual.
+
+But some one will say, if these are the principles of the trial by jury,
+then it is plain that justice must often fail to be done. Admitting, for
+the sake of the argument, that this may be true, the compensation for it
+is, that positive _injustice_ will also often fail to be done; whereas
+otherwise it would be done frequently. The very precautions used to
+prevent _injustice_ being done, may often have the effect to prevent
+_justice_ being done. But are we, therefore, to take no precautions
+against injustice? By no means, all will agree. The question then
+arises--Does the trial by jury, _as here explained_, involve such
+extreme and unnecessary precautions against injustice, as to interpose
+unnecessary obstacles to the doing of justice? Men of different minds
+may very likely answer this question differently, according as they have
+more or less confidence in the wisdom and justice of legislators, the
+integrity and independence of judges, and the intelligence of jurors.
+This much, however, may be said in favor of these precautions, viz.,
+that the history of the past, as well as our constant present
+experience, prove how much injustice may, and certainly will, be done,
+systematically and continually, _for the want of these precautions_--that
+is, while the law is authoritatively made and expounded by legislators and
+judges. On the other hand, we have no such evidence of how much justice
+may fail to be done, _by reason of these precautions_--that is, by reason
+of the law being left to the judgments and consciences of jurors. We can
+determine the former point--that is, how much positive injustice is done
+under the first of these two systems--because the system is in full
+operation; but we cannot determine how much justice would fail to be
+done under the latter system, because we have, in modern times, had no
+experience of the use of the precautions themselves. In ancient times,
+when these precautions were _nominally_ in force, such was the tyranny of
+kings, and such the poverty, ignorance, and the inability of concert and
+resistance, on the part of the people, that the system had no full or fair
+operation. It, nevertheless, under all these disadvantages, impressed
+itself upon the understandings, and imbedded itself in the hearts, of the
+people, so as no other system of civil liberty has ever done.
+
+But this view of the two systems compares only the injustice done, and
+the justice omitted to be done, in the individual cases adjudged,
+without looking beyond them. And some persons might, on first thought,
+argue that, if justice failed of being done under the one system,
+oftener than positive injustice were done under the other, the balance
+was in favor of the latter system. But such a weighing of the two
+systems against each other gives no true idea of their comparative
+merits or demerits; for, possibly, in this view alone, the balance would
+not be very great in favor of either. To compare, or rather to contrast,
+the two, we must consider that, under the jury system, the failures to
+do justice would be only rare and exceptional cases; and would be owing
+either to the intrinsic difficulty of the questions, or to the fact that
+the parties had transacted their business in a manner unintelligible to
+the jury, and the effects would be confined to the individual or
+individuals interested in the particular suits. No permanent law would
+be established thereby destructive of the rights of the people in other
+like cases. And the people at large would continue to enjoy all their
+natural rights as before. But under the other system, whenever an unjust
+law is enacted by the legislature, and the judge imposes it upon the
+jury as authoritative, and they give a judgment in accordance therewith,
+the authority of the law is thereby established, and the whole people
+are thus brought under the yoke of that law; because they then
+understand that the law will be enforced against them in future, if they
+presume to exercise their rights, or refuse to comply with the
+exactions of the law. In this manner all unjust laws are established,
+and made operative against the rights of the people.
+
+The difference, then, between the two systems is this: Under the one
+system, a jury, at distant intervals, would (not enforce any positive
+injustice, but only) fail of enforcing justice, in a dark and difficult
+case, or in consequence of the parties not having transacted their
+business in a manner intelligible to a jury; and the plaintiff would
+thus fail of obtaining what was rightfully due him. And there the matter
+would end, _for evil_, though not for good; for thenceforth parties,
+warned of the danger of losing their rights, would be careful to
+transact their business in a more clear and intelligible manner. Under
+the other system--the system of legislative and judicial
+authority--positive injustice is not only done in every suit arising
+under unjust laws,--that is, men's property, liberty, or lives are not
+only unjustly taken on those particular judgments,--but the rights of
+the whole people are struck down by the authority of the laws thus
+enforced, and a wide-sweeping tyranny at once put in operation.
+
+But there is another ample and conclusive answer to the argument that
+justice would often fail to be done, if jurors were allowed to be
+governed by their own consciences, instead of the direction of the
+justices, in matters of law. That answer is this:
+
+Legitimate government can be formed only by the voluntary association of
+all who contribute to its support. As a voluntary association, it can
+have for its objects only those things in which the members of the
+association are _all agreed_. If, therefore, there be any _justice_, in
+regard to which all the parties to the government _are not agreed_, the
+objects of the association do not extend to it.[75]
+
+If any of the members wish more than this,--if they claim to have
+acquired a more extended knowledge of justice than is common to all, and
+wish to have their pretended discoveries carried into effect, in
+reference to themselves,--they must either form a separate association
+for that purpose, or be content to wait until they can make their views
+intelligible to the people at large. They cannot claim or expect that
+the whole people shall practise the folly of taking on trust their
+pretended superior knowledge, and of committing blindly into their hands
+all their own interests, liberties, and rights, to be disposed of on
+principles, the justness of which the people themselves cannot
+comprehend.
+
+A government of the whole, therefore, must necessarily confine itself to
+the administration of such principles of law as _all_ the people, who
+contribute to the support of the government, can comprehend and see the
+justice of. And it can be confined within those limits only by allowing
+the jurors, who represent all the parties to the compact, to judge of
+the law, and the justice of the law, in all cases whatsoever. And if any
+justice be left undone, under these circumstances, it is a justice for
+which the nature of the association does not provide, which the
+association does not undertake to do, and which, as an association, it
+is under no obligation to do.
+
+The people at large, the unlearned and common people, have certainly an
+indisputable right to associate for the establishment and maintenance of
+such a government as _they themselves_ see the justice of, and feel the
+need of, for the promotion of their own interests, and the safety of
+their own rights, without at the same time surrendering all their
+property, liberty, and rights into the hands of men, who, under the
+pretence of a superior and incomprehensible knowledge of justice, may
+dispose of such property, liberties, and rights, in a manner to suit
+their own selfish and dishonest purposes.
+
+If a government were to be established and supported _solely_ by that
+portion of the people who lay claim to superior knowledge, there would
+be some consistency in their saying that the common people should not be
+received as jurors, with power to judge of the justice of the laws. But
+so long as the whole people (or all the male adults) are presumed to be
+voluntary parties to the government, and voluntary contributors to its
+support, there is no consistency in refusing to any one of them more
+than to another the right to sit as juror, with full power to decide for
+himself whether any law that is proposed to be enforced in any
+particular case, be within the objects of the association.
+
+The conclusion, therefore, is, that, in a government formed by voluntary
+association, or on the _theory_ of voluntary association, and voluntary
+support, (as all the North American governments are,) no law can
+rightfully be enforced by the association in its corporate capacity,
+against the goods, rights, or person of any individual, except it be
+such as _all_ the members of the association agree that it may enforce.
+To enforce any other law, to the extent of taking a man's goods, rights,
+or person, would be making _some_ of the parties to the association
+accomplices in what they regard as acts of injustice. It would also be
+making them consent to what they regard as the destruction of their own
+rights. These are things which no legitimate system or theory of
+government can require of any of the parties to it.
+
+The mode adopted, by the trial by jury, for ascertaining whether all the
+parties to the government do approve of a particular law, is to take
+twelve men at random from the whole people, and accept their unanimous
+decision as representing the opinions of the whole. Even this mode is
+not theoretically accurate; for theoretical accuracy would require that
+every man, who was a party to the government, should individually give
+his consent to the enforcement of every law in every separate case. But
+such a thing would be impossible in practice. The consent of twelve men
+is therefore taken instead; with the privilege of appeal, and (in case
+of error found by the appeal court) a new trial, to guard against
+possible mistakes. This system, it is assumed, will ascertain the sense
+of the whole people--"the country"--with sufficient accuracy for all
+practical purposes, and with as much accuracy as is practicable without
+too great inconvenience and expense.
+
+5. Another objection that will perhaps be made to allowing jurors to
+judge of the law, and the justice of the law, is, that the law would be
+uncertain.
+
+If, by this objection, it be meant that the law would be uncertain to
+the minds of the people at large, so that they would not know what the
+juries would sanction and what condemn, and would not therefore know
+practically what their own rights and liberties were under the law, the
+objection is thoroughly baseless and false. No system of law that was
+ever devised could be so entirely intelligible and certain to the minds
+of the people at large as this. Compared with it, the complicated
+systems of law that are compounded of the law of nature, of
+constitutional grants, of innumerable and incessantly changing
+legislative enactments, and of countless and contradictory judicial
+decisions, with no uniform principle of reason or justice running
+through them, are among the blindest of all the mazes in which
+unsophisticated minds were ever bewildered and lost. The uncertainty of
+the law under these systems has become a proverb. So great is this
+uncertainty, that nearly all men, learned as well as unlearned, shun the
+law as their enemy, instead of resorting to it for protection. They
+usually go into courts of justice, so called, only as men go into
+battle--when there is no alternative left for them. And even then they
+go into them as men go into dark labyrinths and caverns--with no
+knowledge of their own, but trusting wholly to their guides. Yet, less
+fortunate than other adventurers, they can have little confidence even
+in their guides, for the reason that the guides themselves know little
+of the mazes they are threading. They know the mode and place of
+entrance; but what they will meet with on their way, and what will be
+the time, mode, place, or condition of their exit; whether they will
+emerge into a prison, or not; whether _wholly_ naked and destitute, or
+not; whether with their reputations left to them, or not; and whether in
+time or eternity; experienced and honest guides rarely venture to
+predict. Was there ever such fatuity as that of a nation of men madly
+bent on building up such labyrinths as these, for no other purpose than
+that of exposing all their rights of reputation, property, liberty, and
+life, to the hazards of being lost in them, instead of being content to
+live in the light of the open day of their own understandings?
+
+What honest, unsophisticated man ever found himself involved in a
+lawsuit, that he did not desire, of all things, that his cause might be
+judged of on principles of natural justice, as those principles were
+understood by plain men like himself? He would then feel that he could
+foresee the result. These plain men are the men who pay the taxes, and
+support the government. Why should they not have such an administration
+of justice as they desire, and can understand?
+
+If the jurors were to judge of the law, and the justice of the law,
+there would be something like certainty in the administration of
+justice, and in the popular knowledge of the law, and men would govern
+themselves accordingly. There would be something like certainty, because
+every man has himself something like definite and clear opinions, and
+also knows something of the opinions of his neighbors, on matters of
+justice. And he would know that no statute, unless it were so clearly
+just as to command the unanimous assent of twelve men, who should be
+taken at random from the whole community, could be enforced so as to
+take from him his reputation, property, liberty, or life. What greater
+certainty can men require or need, as to the laws under which they are
+to live? If a statute were enacted by a legislature, a man, in order to
+know what was its true interpretation, whether it were constitutional,
+and whether it would be enforced, would not be under the necessity of
+waiting for years until some suit had arisen and been carried through
+all the stages of judicial proceeding, to a final decision. He would
+need only to use his own reason as to its meaning and its justice, and
+then talk with his neighbors on the same points. Unless he found them
+nearly unanimous in their interpretation and approbation of it, he would
+conclude that juries would not unite in enforcing it, and that it would
+consequently be a dead letter. And he would be safe in coming to this
+conclusion.
+
+There would be something like certainty in the administration of
+justice, and in the popular knowledge of the law, for the further reason
+that there would be little legislation, and men's rights would be left
+to stand almost solely upon the law of nature, or what was once called
+in England "the _common law_," (before so much legislation and
+usurpation had become incorporated into the common law,)--in other
+words, upon the principles of natural justice.
+
+Of the certainty of this law of nature, or the ancient English common
+law, I may be excused for repeating here what I have said on another
+occasion.
+
+   "Natural law, so far from being uncertain, when compared with
+   statutory and constitutional law, is the only thing that gives any
+   certainty at all to a very large portion of our statutory and
+   constitutional law. The reason is this. The words in which statutes
+   and constitutions are written are susceptible of so many different
+   meanings,--meanings widely different from, often directly opposite
+   to, each other, in their bearing upon men's rights,--that, unless
+   there were some rule of interpretation for determining which of these
+   various and opposite meanings are the true ones, there could be no
+   certainty at all as to the meaning of the statutes and constitutions
+   themselves. Judges could make almost anything they should please out
+   of them. Hence the necessity of a rule of interpretation. _And this
+   rule is, that the language of statutes and constitutions shall be
+   construed, as nearly as possible, consistently with natural law._
+
+   The rule assumes, what is true, that natural law is a thing certain
+   in itself; also that it is capable of being learned. It assumes,
+   furthermore, that it actually is understood by the legislators and
+   judges who make and interpret the written law. Of necessity,
+   therefore, it assumes further, that they (the legislators and judges)
+   are _incompetent_ to make and interpret the _written_ law, unless
+   they previously understand the natural law applicable to the same
+   subject. It also assumes that the _people_ must understand the
+   natural law, before they can understand the written law.
+
+   It is a principle perfectly familiar to lawyers, and one that must be
+   perfectly obvious to every other man that will reflect a moment,
+   that, as a general rule, _no one can know what the written law is,
+   until he knows what it ought to be_; that men are liable to be
+   constantly misled by the various and conflicting senses of the same
+   words, unless they perceive the true legal sense in which the words
+   _ought to be taken_. And this true legal sense is the sense that is
+   most nearly consistent with natural law of any that the words can be
+   made to bear, consistently with the laws of language, and
+   appropriately to the subjects to which they are applied.
+
+   Though the words _contain_ the law, the _words_ themselves are not
+   the law. Were the words themselves the law, each single written law
+   would be liable to embrace many different laws, to wit, as many
+   different laws as there were different senses, and different
+   combinations of senses, in which each and all the words were capable
+   of being taken.
+
+   Take, for example, the Constitution of the United States. By adopting
+   one or another sense of the single word "_free_," the whole
+   instrument is changed. Yet the word _free_ is capable of some ten or
+   twenty different senses. So that, by changing the sense of that
+   single word, some ten or twenty different constitutions could be made
+   out of the same written instrument. But there are, we will suppose, a
+   thousand other words in the constitution, each of which is capable of
+   from two to ten different senses. So that, by changing the sense of
+   only a single word at a time, several thousands of different
+   constitutions would be made. But this is not all. Variations could
+   also be made by changing the senses of two or more words at a time,
+   and these variations could be run through all the changes and
+   combinations of senses that these thousand words are capable of. We
+   see, then, that it is no more than a literal truth, that out of that
+   single instrument, as it now stands, without altering the location of
+   a single word, might be formed, by construction and interpretation,
+   more different constitutions than figures can well estimate.
+
+   But each written law, in order to be a law, must be taken only in
+   some _one_ definite and distinct sense; and that definite and
+   distinct sense must be selected from the almost infinite variety of
+   senses which its words are capable of. How is this selection to be
+   made? It can be only by the aid of that perception of natural law, or
+   natural justice, which men naturally possess.
+
+   Such, then, is the comparative certainty of the natural and the
+   written law. Nearly all the certainty there is in the latter, so far
+   as it relates to principles, is based upon, and derived from, the
+   still greater certainty of the former. In fact, nearly all the
+   uncertainty of the laws under which we live,--which are a mixture of
+   natural and written laws,--arises from the difficulty of construing,
+   or, rather, from the facility of misconstruing, the _written_ law;
+   while natural law has nearly or quite the same certainty as
+   mathematics. On this point, Sir William Jones, one of the most
+   learned judges that have ever lived, learned in Asiatic as well as
+   European law, says,--and the fact should be kept forever in mind, as
+   one of the most important of all truths:--"_It is pleasing to remark
+   the similarity, or, rather, the identity of those conclusions which
+   pure, unbiassed reason, in all ages and nations, seldom fails to
+   draw, in such juridical inquiries as are not fettered and manacled by
+   positive institutions._"[76] In short, the simple fact that the
+   written law must be interpreted by the natural, is, of itself, a
+   sufficient confession of the superior certainty of the latter.
+
+   The written law, then, even where it can be construed consistently
+   with the natural, introduces labor and obscurity, instead of shutting
+   them out. And this must always be the case, because words do not
+   create ideas, but only recall them; and the same word may recall many
+   different ideas. For this reason, nearly all abstract principles can
+   be seen by the single mind more clearly than they can be expressed by
+   words to another. This is owing to the imperfection of language, and
+   the different senses, meanings, and shades of meaning, which
+   different individuals attach to the same words, in the same
+   circumstances.[77]
+
+   Where the written law cannot be construed consistently with the
+   natural, there is no reason why it should ever be enacted at all. It
+   may, indeed, be sufficiently plain and certain to be easily
+   understood; but its certainty and plainness are but a poor
+   compensation for its injustice. Doubtless a law forbidding men to
+   drink water, on pain of death, might be made so intelligible as to
+   cut off all discussion as to its meaning; but would the
+   intelligibleness of such a law be any equivalent for the right to
+   drink water? The principle is the same in regard to all unjust laws.
+   Few persons could reasonably feel compensated for the arbitrary
+   destruction of their rights, by having the order for their
+   destruction made known beforehand, in terms so distinct and
+   unequivocal as to admit of neither mistake nor evasion. Yet this is
+   all the compensation that such laws offer.
+
+   Whether, therefore, written laws correspond with, or differ from, the
+   natural, they are to be condemned. In the first case, they are
+   useless repetitions, introducing labor and obscurity. In the latter
+   case, they are positive violations of men's rights.
+
+   There would be substantially the same reason in enacting mathematics
+   by statute, that there is in enacting natural law. Whenever the
+   natural law is sufficiently certain to all men's minds to justify its
+   being enacted, it is sufficiently certain to need no enactment. On
+   the other hand, until it be thus certain, there is danger of doing
+   injustice by enacting it; it should, therefore, be left open to be
+   discussed by anybody who may be disposed to question it, and to be
+   judged of by the proper tribunal, the judiciary.[78]
+
+   It is not necessary that legislators should enact natural law in
+   order that it may be known to the _people_, because that would be
+   presuming that the legislators already understand it better than the
+   people,--a fact of which I am not aware that they have ever
+   heretofore given any very satisfactory evidence. The same sources of
+   knowledge on the subject are open to the people that are open to the
+   legislators, and the people must be presumed to know it as well as
+   they.
+
+   The objections made to natural law, on the ground of obscurity, are
+   wholly unfounded. It is true, it must be learned, like any other
+   science; but it is equally true that it is very easily learned.
+   Although as illimitable in its applications as the infinite relations
+   of men to each other, it is, nevertheless, made up of simple
+   elementary principles, of the truth and justice of which every
+   ordinary mind has an almost intuitive perception. _It is the science
+   of justice_,--and almost all men have the same perceptions of what
+   constitutes justice, or of what justice requires, when they
+   understand alike the facts from which their inferences are to be
+   drawn. Men living in contact with each other, and having intercourse
+   together, _cannot avoid_ learning natural law, to a very great
+   extent, even if they would. The dealings of men with men, their
+   separate possessions, and their individual wants, are continually
+   forcing upon their minds the questions,--Is this act just? or is it
+   unjust? Is this thing mine? or is it his? And these are questions of
+   natural law; questions, which, in regard to the great mass of cases,
+   are answered alike by the human mind everywhere.
+
+   Children learn many principles of natural law at a very early age.
+   For example: they learn that when one child has picked up an apple or
+   a flower, it is his, and that his associates must not take it from
+   him against his will. They also learn that if he voluntarily exchange
+   his apple or flower with a playmate, for some other article of
+   desire, he has thereby surrendered his right to it, and must not
+   reclaim it. These are fundamental principles of natural law, which
+   govern most of the greatest interests of individuals and society; yet
+   children learn them earlier than they learn that three and three are
+   six, or five and five, ten. Talk of enacting natural law by statute,
+   that it may be known! It would hardly be extravagant to say, that, in
+   nine cases in ten, men learn it before they have learned the language
+   by which we describe it. Nevertheless, numerous treatises are written
+   on it, as on other sciences. The decisions of courts, containing
+   their opinions upon the almost endless variety of cases that have
+   come before them, are reported; and these reports are condensed,
+   codified, and digested, so as to give, in a small compass, the facts,
+   and the opinions of the courts as to the law resulting from them. And
+   these treatises, codes, and digests are open to be read of all men.
+   And a man has the same excuse for being ignorant of arithmetic, or
+   any other science, that he has for being ignorant of natural law. He
+   can learn it as well, if he will, without its being enacted, as he
+   could if it were.
+
+   If our governments would but themselves adhere to natural law, there
+   would be little occasion to complain of the ignorance of the people
+   in regard to it. The popular ignorance of law is attributable mainly
+   to the innovations that have been made upon natural law by
+   legislation; whereby our system has become an incongruous mixture of
+   natural and statute law, with no uniform principle pervading it. To
+   learn such a system,--if system it can be called, and if learned it
+   can be,--is a matter of very similar difficulty to what it would be
+   to learn a system of mathematics, which should consist of the
+   mathematics of nature, interspersed with such other mathematics as
+   might be created by legislation, in violation of all the natural
+   principles of numbers and quantities.
+
+   But whether the difficulties of learning natural law be greater or
+   less than here represented, they exist in the nature of things, and
+   cannot be removed. Legislation, instead of removing, only increases
+   them. This it does by innovating upon natural truths and principles,
+   and introducing jargon and contradiction, in the place of order,
+   analogy, consistency, and uniformity.
+
+   Further than this; legislation does not even profess to remove the
+   obscurity of natural law. That is no part of its object. It only
+   professes to substitute something arbitrary in the place of natural
+   law. Legislators generally have the sense to see that legislation
+   will not make natural law any clearer than it is. Neither is it the
+   object of legislation to establish the authority of natural law.
+   Legislators have the sense to see that they can add nothing to the
+   authority of natural law, and that it will stand on its own
+   authority, unless they overturn it.
+
+   The whole object of legislation, excepting that legislation which
+   merely makes regulations, and provides instrumentalities for carrying
+   other laws into effect, is to overturn natural law, and substitute
+   for it the arbitrary will of power. In other words, the whole object
+   of it is to destroy men's rights. At least, such is its only effect;
+   and its designs must be inferred from its effect. Taking all the
+   statutes in the country, there probably is not one in a
+   hundred,--except the auxiliary ones just mentioned,--that does not
+   violate natural law; that does not invade some right or other.
+
+   Yet the advocates of arbitrary legislation are continually practising
+   the fraud of pretending that unless the legislature _make_ the laws,
+   the laws will not be known. The whole object of the fraud is to
+   secure to the government the authority of making laws that never
+   ought to be known."
+
+In addition to the authority already cited, of Sir William Jones, as to
+the certainty of natural law, and the uniformity of men's opinions in
+regard to it, I may add the following:
+
+   "There is that great simplicity and plainness in the Common Law, that
+   Lord Coke has gone so far as to assert, (and Lord Bacon nearly
+   seconds him in observing,) that 'he never knew two questions arise
+   merely upon common law; but that they were mostly owing to statutes
+   ill-penned and overladen with provisos.'"--_3 Eunomus_, 157-8.
+
+If it still be said that juries would disagree, as to what was natural
+justice, and that one jury would decide one way, and another jury
+another; the answer is, that such a thing is hardly credible, as that
+twelve men, taken at random from the people at large, should
+_unanimously_ decide a question of natural justice one way, and that
+twelve other men, selected in the same manner, should _unanimously_
+decide the same question the other way, _unless they were misled by the
+justices_. If, however, such things should sometimes happen, from any
+cause whatever, the remedy is by appeal, and new trial.
+
+[Footnote 73: Judges do not even live up to that part of their own
+maxim, which requires jurors to try the matter of fact. By dictating to
+them the laws of evidence,--that is, by dictating what evidence they may
+hear, and what they may not hear, and also by dictating to them rules
+for weighing such evidence as they permit them to hear,--they of
+necessity dictate the conclusion to which they shall arrive. And thus
+the court really tries the question of fact, as well as the question of
+law, in every cause. It is clearly impossible, in the nature of things,
+for a jury to try a question of fact, without trying every question of
+law on which the fact depends.]
+
+[Footnote 74: Most disagreements of juries are on matters of fact, which
+are admitted to be within their province. We have little or no evidence
+of their disagreements on matters of natural justice. The disagreements
+of _courts_ on matters of law, afford little or no evidence that juries
+would also disagree on matters of law--that is, _of justice_; because
+the disagreements of courts are generally on matters of _legislation_,
+and not on those principles of abstract justice, by which juries would
+be governed, and in regard to which the minds of men are nearly
+unanimous.]
+
+[Footnote 75: This is the principle of all voluntary associations
+whatsoever. No voluntary association was ever formed, and in the nature
+of things there never can be one formed, for the accomplishment of any
+objects except those in which all the parties to the association are
+agreed. Government, therefore, must be kept within these limits, or it
+is no longer a voluntary association of all who contribute to its
+support, but a mere tyranny established by a part over the rest.
+
+All, or nearly all, voluntary associations give to a majority, or to
+some other portion of the members less than the whole, the right to use
+some _limited_ discretion as to the means to be used to accomplish the
+ends in view; but _the ends themselves to be accomplished_ are always
+precisely defined, and are such as every member necessarily agrees to,
+else he would not voluntarily join the association.
+
+Justice is the object of government, and those who support the
+government, must be agreed as to the justice to be executed by it, or
+they cannot rightfully unite in maintaining the government itself.]
+
+[Footnote 76: Jones on Bailments, 133.]
+
+[Footnote 77: Kent, describing the difficulty of construing the written
+law, says:
+
+"Such is the imperfection of language, and the want of technical skill
+in the makers of the law, that statutes often give occasion to the most
+perplexing and distressing doubts and discussions, arising from the
+ambiguity that attends them. It requires great experience, as well as
+the command of a perspicuous diction, to frame a law in such clear and
+precise terms, as to secure it from ambiguous expressions, and from all
+doubts and criticisms upon its meaning."--_Kent_, 460.
+
+The following extract from a speech of Lord Brougham, in the House of
+Lords, confesses the same difficulty:
+
+"There was another subject, well worthy of the consideration of
+government during the recess,--the expediency, _or rather the absolute
+necessity_, of some arrangement for the preparation of bills, not merely
+private, but public bills, _in order that legislation might be
+consistent and systematic, and that the courts might not have so large a
+portion of their time occupied in endeavoring to construe acts of
+Parliament, in many cases unconstruable, and in most cases difficult to
+be construed_."--_Law Reporter_, 1848, p. 525.]
+
+[Footnote 78: This condemnation of written laws must, of course, be
+understood as applying only to cases where principles and rights are
+involved, and not as condemning any governmental arrangements, or
+instrumentalities, that are consistent with natural right, and which
+must be agreed upon for the purpose of carrying natural law into effect.
+These things may be varied, as expediency may dictate, so only that they
+be allowed to infringe no principle of justice. And they must, of
+course, be written, because they do not exist as fixed principles, or
+laws in nature.]
+
+
+
+
+CHAPTER VI.
+
+JURIES OF THE PRESENT DAY ILLEGAL.
+
+
+It may probably be safely asserted that there are, at this day, no legal
+juries, either in England or America. And if there are no legal juries,
+there is, of course, no legal trial, nor "judgment," by jury.
+
+In saying that there are probably no legal juries, I mean that there are
+probably no juries appointed in conformity with the principles of the
+_common law_.
+
+The term _jury_ is a technical one, derived from the common law; and
+when the American constitutions provide for the trial by jury, they
+provide for the _common law_ trial by jury; and not merely for any trial
+by jury that the government itself may chance to invent, and call by
+that name. It is the _thing_, and not merely the _name_, that is
+guarantied. Any legislation, therefore, that infringes any _essential
+principle_ of the _common law_, in the selection of jurors, is
+unconstitutional; and the juries selected in accordance with such
+legislation are, of course, illegal, and their judgments void.
+
+It will also be shown, in a subsequent chapter,[79] that since Magna
+Carta, the legislative power in England (whether king or parliament) has
+never had any constitutional authority to infringe, by legislation, any
+essential principle of the common law in the selection of jurors. All
+such legislation is as much unconstitutional and void, as though it
+abolished the trial by jury altogether. In reality it does abolish it.
+
+What, then, are the _essential principles_ of the common law,
+controlling the selection of jurors?
+
+They are two.
+
+1. That _all_ the freemen, or adult male members of the state, shall be
+eligible as jurors.[80]
+
+Any legislation which requires the selection of jurors to be made from a
+less number of freemen than the whole, makes the jury selected an
+illegal one.
+
+If a part only of the freemen, or members of the state, are eligible as
+jurors, the jury no longer represent "the country," but only a part of
+"the country."
+
+If the selection of jurors can be restricted to any less number of
+freemen than the whole, it can be restricted to a very small proportion
+of the whole; and thus the government be taken out of the hands of "the
+country," or the whole people, and be thrown into the hands of a few.
+
+That, at common law, the whole body of freemen were eligible as jurors
+is sufficiently proved, not only by the reason of the thing, but by the
+following evidence:
+
+1. Everybody must be presumed eligible, until the contrary be shown. We
+have no evidence, that I am aware of, of a prior date to Magna Carta, to
+_disprove_ that all freemen were eligible as jurors, unless it be the
+law of Ethelred, which requires that they be elderly[81] men. Since no
+specific age is given, it is probable, I think, that this statute meant
+nothing more than that they be more than twenty-one years old. If it
+meant anything more, it was probably contrary to the common law, and
+therefore void.
+
+2. Since Magna Carta, we have evidence showing quite conclusively that
+all freemen, above the age of twenty-one years, were eligible as jurors.
+
+The _Mirror of Justices_, (written within a century after Magna Carta,)
+in the section "_Of Judges_"--that is, _jurors_--says:
+
+   "All those who are not forbidden by law may be judges (jurors). To
+   women it is forbidden by law that they be judges; and thence it is,
+   that feme coverts are exempted to do suit in inferior courts. On the
+   other part, a villein cannot be a judge, by reason of the two
+   estates, which are repugnants; persons attainted of false judgments
+   cannot be judges, nor infants, nor any under the age of twenty-one
+   years, nor infected persons, nor idiots, nor madmen, nor deaf, nor
+   dumb, nor parties in the pleas, nor men excommunicated by the bishop,
+   nor criminal persons. * * And those who are not of the Christian
+   faith cannot be judges, nor those who are out of the king's
+   allegiance."--_Mirror of Justices_, 59-60.
+
+In the section "_Of Inferior Courts_," it is said:
+
+   "From the first assemblies came consistories, which we now call
+   courts, and that in divers places, and in divers manners; whereof the
+   sheriffs held one monthly, or every five weeks, according to the
+   greatness or largeness of the shires. And these courts are called
+   county courts, _where the judgment is by the suitors_, if there be no
+   writ, and is by warrant of jurisdiction ordinary. The other inferior
+   courts are the courts of every lord of the fee, to the likeness of
+   the hundred courts. * * There are other inferior courts which the
+   bailiffs hold in every hundred, from three weeks to three weeks, _by
+   the suitors of the freeholders of the hundred. All the tenants within
+   the fees are bounden to do their suit there_, and that not for the
+   service of their persons, but for the service of their fees. But
+   women, infants within the age of twenty-one years, deaf, dumb,
+   idiots, those who are indicted or appealed of mortal felony, before
+   they be acquitted, diseased persons, and excommunicated persons are
+   exempted from doing suit."--_Mirror of Justices_, 50-51.
+
+In the section "_Of the Sheriff's Turns_," it is said:
+
+   "The sheriffs by ancient ordinances hold several meetings twice in
+   the year in every hundred; _where all the freeholders within the
+   hundred_ are bound to appear for the service of their fees."--_Mirror
+   of Justices_, 50.
+
+The following statute was passed by Edward I., seventy years after Magna
+Carta:
+
+   "Forasmuch also as sheriffs, hundreders, and bailiffs of liberties,
+   have used to grieve those which be placed under them, putting in
+   assizes and juries men diseased and decrepit, and having continual or
+   sudden disease; and men also that dwelled not in the country at the
+   time of the summons; and summon also an unreasonable number of
+   jurors, for to extort money from some of them, for letting them go
+   in peace, and so the assizes and juries pass many times by poor men,
+   and the rich abide at home by reason of their bribes; it is ordained
+   that from henceforth in one assize no more shall be summoned than
+   four and twenty; and old men above three score and ten years, being
+   continually sick, or being diseased at the time of the summons, or
+   not dwelling in that country, shall not be put in juries of petit
+   assizes."--_St. 13 Edward I._, ch. 38. (1285.)
+
+Although this command to the sheriffs and other officers, not to summon,
+as jurors, those who, from age and disease, were physically incapable of
+performing the duties, may not, of itself, afford any absolute or legal
+implication, by which we can determine precisely who were, and who were
+not, eligible as jurors at common law, yet the exceptions here made
+nevertheless carry a seeming confession with them that, at common law,
+all male adults were eligible as jurors.
+
+But the main principle of the feudal system itself shows that _all_ the
+full and free adult male members of the state--that is, all who were
+free born, and had not lost their civil rights by crime, or
+otherwise--_must_, at common law, have been eligible as jurors. What was
+that principle? It was, that the state rested for support upon the land,
+and not upon taxation levied upon the people personally. The lands of
+the country were considered the property of the state, and were made to
+support the state _in this way_. A portion of them was set apart to the
+king, the rents of which went to pay his personal and official
+expenditures, not including the maintenance of armies, or the
+administration of justice. War and the administration of justice were
+provided for in the following manner. The freemen, or the freeborn adult
+male members of the state--who had not forfeited their political
+rights--were entitled to land _of right_, (until all the land was taken
+up,) on condition of their rendering certain military and civil services
+to the state. The military services consisted in serving personally as
+soldiers, or contributing an equivalent in horses, provisions, or other
+military supplies. The civil services consisted, among other things, in
+serving as jurors (and, it would appear, as witnesses) in the courts of
+justice. For these services they received no compensation other than
+the use of their lands. In this way the state was sustained; and the
+king had no power to levy additional burdens or taxes upon the people.
+The persons holding lands on these terms were called _freeholders_--in
+later times _freemen_--meaning free and full members of the state.
+
+Now, as the principle of the system was that the freeholders held their
+lands of the state, on the condition of rendering these military and
+civil services as _rents_ for their lands, the principle implies that
+_all_ the freeholders were liable to these rents, and were therefore
+eligible as jurors. Indeed, I do not know that it has ever been doubted
+that, at common law, _all_ the freeholders were eligible as jurors. If
+all had not been eligible, we unquestionably should have had abundant
+evidence of the exceptions. And if anybody, at this day, allege any
+exceptions, the burden will be on him to prove them. The presumption
+clearly is that _all_ were eligible.
+
+The first invasion, which I find made, by the English statutes, upon
+this common law principle, was made in 1285, seventy years after Magna
+Carta. It was then enacted as follows:
+
+   "Nor shall any be put in assizes or juries, though they ought to be
+   taken in their own shire, that hold a tenement of less than the value
+   of _twenty shillings yearly_. And if such assizes and juries be taken
+   out of the shire, no one shall be placed in them who holds a tenement
+   of less value than forty shillings yearly at the least, except such
+   as be witnesses in deeds or other writings, whose presence is
+   necessary, so that they be able to travel."--_St. 13 Edward I._, ch.
+   38. (1285.)
+
+The next invasion of the common law, in this particular, was made in
+1414, about two hundred years after Magna Carta, when it was enacted:
+
+   "That no person shall be admitted to pass in any inquest upon trial
+   of the death of a man, nor in any inquest betwixt party and party in
+   plea real, nor in plea personal, whereof the debt or the damage
+   declared amount to forty marks, if the same person have not lands or
+   tenements of the yearly value of _forty shillings above all charges
+   of the same_."--_2 Henry V._, st. 2, ch. 3. (1414.)
+
+Other statutes on this subject of the property qualifications of jurors,
+are given in the note.[82]
+
+From these statutes it will be seen that, since 1285, seventy years
+after Magna Carta, the common law right of all free British subjects to
+eligibility as jurors has been abolished, and the qualifications of
+jurors have been made a subject of arbitrary legislation. In other
+words, the government has usurped the authority of _selecting_ the
+jurors that were to sit in judgment upon its own acts. This is
+destroying the vital principle of the trial by jury itself, which is
+that the legislation of the government shall be subjected to the
+judgment of a tribunal, taken indiscriminately from the whole people,
+without any choice by the government, and over which the government can
+exercise no control. If the government can select the jurors, it will,
+of course, select those whom it supposes will be favorable to its
+enactments. And an exclusion of _any_ of the freemen from eligibility is
+a _selection_ of those not excluded.
+
+It will be seen, from the statutes cited, that the most absolute
+authority over the jury box--that is, over the right of the people to
+sit in juries--has been usurped by the government; that the
+qualifications of jurors have been repeatedly changed, and made to vary
+from a freehold of _ten shillings yearly_, to one of "_twenty pounds by
+the year at least above reprises_." They have also been made different,
+in the counties of Southampton, Surrey, and Sussex, from what they were
+in the other counties; different in Wales from what they were in
+England; and different in the city of London, and in the county of
+Middlesex, from what they were in any other part of the kingdom.
+
+But this is not all. The government has not only assumed arbitrarily to
+classify the people, on the basis of property, but it has even assumed
+to give to some of its judges entire and absolute personal discretion in
+the selection of the jurors to be impanelled in criminal cases, as the
+following statutes show.
+
+   "Be it also ordained and enacted by the same authority, that all
+   panels hereafter to be returned, which be not at the suit of any
+   party, that shall be made and put in afore any justice of gaol
+   delivery or justices of peace in their open sessions _to inquire for
+   the king, shall hereafter be reformed by additions and taking out of
+   names of persons by discretion of the same justices before whom such
+   panel shall be returned; and the same justices shall hereafter
+   command the sheriff, or his ministers in his absence, to put other
+   persons in the same panel by their discretions; and that panel so
+   hereafter to be made, to be good and lawful_. This act to endure only
+   to the next Parliament."--_11 Henry VII._, ch. 24, sec. 6. (1495.)
+
+This act was continued in force by 1 Henry VIII., ch. 11, (1509,) to the
+end of the then next Parliament.
+
+It was reënacted, and made perpetual, by 3 Henry VIII., ch. 12. (1511.)
+
+_These acts gave unlimited authority to the king's justices to pack
+juries at their discretion; and abolished the last vestige of the common
+law right of the people to sit as jurors, and judge of their own
+liberties, in the courts to which the acts applied._
+
+Yet, as matters of law, these statutes were no more clear violations of
+the common law, the fundamental and paramount "law of the land," than
+were those statutes which affixed the property qualifications before
+named; because, if the king, or the government, can select the jurors on
+the ground of property, it can select them on any other ground
+whatever.
+
+Any infringement or restriction of the common law right of the whole
+body of the freemen of the kingdom to eligibility as jurors, was legally
+an abolition of the trial by jury itself. The juries no longer
+represented "the country," but only a part of the country; that part,
+too, on whose favor the government chose to rely for the maintenance of
+its power, and which it therefore saw fit to select as being the most
+reliable instruments for its purposes of oppression towards the rest.
+And the selection was made on the same principle, on which tyrannical
+governments generally select their supporters, viz., that of
+conciliating those who would be most dangerous as enemies, and most
+powerful as friends--that is, the wealthy.[83]
+
+These restrictions, or indeed any one of them, of the right of
+eligibility as jurors, was, in principle, a complete abolition of the
+English constitution; or, at least, of its most vital and valuable part.
+It was, in principle, an assertion of a right, on the part of the
+government, to _select_ the individuals who were to determine the
+authority of its own laws, and the extent of its own powers. It was,
+therefore, _in effect_, the assertion of a right, on the part of the
+government itself, to determine its own powers, and the authority of its
+own legislation, over the people; and a denial of all right, on the part
+of the people, to judge of or determine their own liberties against the
+government. It was, therefore, in reality, a declaration of entire
+absolutism on the part of the government. It was an act as purely
+despotic, _in principle_, as would have been the express abolition of
+all juries whatsoever. By "the law of the land," which the kings were
+sworn to maintain, every free adult male British subject was eligible to
+the jury box, with full power to exercise his own judgment as to the
+authority and obligation of every statute of the king, which might come
+before him. But the principle of these statutes (fixing the
+qualifications of jurors) is, that nobody is to sit in judgment upon the
+acts or legislation of the king, or the government, except those whom
+the government itself shall select for that purpose. A more complete
+subversion of the essential principles of the English constitution could
+not be devised.
+
+The juries of England are illegal for another reason, viz., that the
+statutes cited require the jurors (except in London and a few other
+places) to be _freeholders_. All the other free British subjects are
+excluded; whereas, at common law, all such subjects are eligible to sit
+in juries, whether they be freeholders or not.
+
+It is true, the ancient common law required the jurors to be
+freeholders; but the term _freeholder_ no longer expresses the same idea
+that it did in the ancient common law; because no land is now holden in
+England on the same principle, or by the same tenure, as that on which
+all the land was held in the early times of the common law.
+
+As has heretofore been mentioned, in the early times of the common law
+the land was considered the property of the state; and was all holden by
+the _tenants_, so called, (that is, _holders_,) on the condition of
+their rendering certain military and civil services to the state, (or to
+the king as the representative of the state,) under the name of _rents_.
+Those who held lands on these terms were called free _tenants_, that is,
+_free holders_--meaning free persons, or members of the state, holding
+lands--to distinguish them from villeins, or serfs, who were not members
+of the state, but held their lands by a more servile tenure, and also to
+distinguish them from persons of foreign birth, outlaws, and all other
+persons, who were not members of the state.
+
+Every freeborn adult male Englishman (who had not lost his civil rights
+by crime or otherwise) was entitled to land of _right_; that is, by
+virtue of his civil freedom, or membership of the body politic. Every
+member of the state was therefore a freeholder; and every freeholder was
+a member of the state. And the members of the state were therefore
+called freeholders. But what is material to be observed, is, that a
+man's right to land was an incident to his _civil freedom_; not his
+civil freedom an incident to his right to land. He was a freeholder
+because he was a _freeborn_ member of the state; and not a freeborn
+member of the state because he was a freeholder; for this last would be
+an absurdity.
+
+As the tenures of lands changed, the term _freeholder_ lost its original
+significance, and no longer described a man who held land of the state
+by virtue of his civil freedom, but only one who held it in
+fee-simple--that is, free of any liability to military or civil
+services. But the government, in fixing the qualifications of jurors,
+has adhered to the term _freeholder_ after that term has ceased to
+express the _thing_ originally designated by it.
+
+The principle, then, of the common law, was, that every freeman, or
+freeborn male Englishman, of adult age, &c., was eligible to sit in
+juries, by virtue of his civil freedom, or his being a member of the
+state, or body politic. But the principle of the present English
+statutes is, that a man shall have a right to sit in juries because he
+owns lands in fee-simple. At the common law a man was _born_ to the
+right to sit in juries. By the present statutes he _buys_ that right
+when he buys his land. And thus this, the greatest of all the political
+rights of an Englishman, has become a mere article of merchandise; a
+thing that is bought and sold in the market for what it will bring.
+
+Of course, there can be no legality in such juries as these; but only in
+juries to which every free or natural born adult male Englishman is
+eligible.
+
+The second essential principle of the common law, controlling the
+selection of jurors, is, that when the selection of the actual jurors
+comes to be made, (from the whole body of male adults,) that selection
+shall be made in some mode that excludes the possibility of choice _on
+the part of the government_.
+
+Of course, this principle forbids the selection to be made _by any
+officer of the government_.
+
+There seem to have been at least three modes of selecting the jurors, at
+the common law. 1. By lot.[84] 2. Two knights, or other freeholders,
+were appointed, (probably by the sheriff,) to select the jurors. 3. By
+the sheriff, bailiff, or other person, who held the court, or rather
+acted as its ministerial officer. Probably the latter mode may have been
+the most common, although there may be some doubt on this point.
+
+At the common law the sheriffs, bailiffs, and other officers _were
+chosen by the people, instead of being appointed by the king_. (_4
+Blackstone_, 413. _Introduction to Gilbert's History of the Common
+Pleas_, p. 2, _note_, and p. 4.) This has been shown in a former
+chapter.[85] At common law, therefore, jurors selected by these officers
+were legally selected, so far as the principle now under discussion is
+concerned; that is, they were not selected by any officer who was
+dependent on the government.
+
+But in the year 1315, one hundred years after Magna Carta, the choice of
+sheriffs was taken from the people, and it was enacted:
+
+   "That the sheriffs shall henceforth be assigned by the chancellor,
+   treasurer, barons of the exchequer, and by the justices. And in the
+   absence of the chancellor, by the treasurer, barons and
+   justices."--_9 Edward II._, st. 2. (1315.)
+
+These officers, who appointed the sheriffs, were themselves appointed by
+the king, and held their offices during his pleasure. Their appointment
+of sheriffs was, therefore, equivalent to an appointment by the king
+himself. And the sheriffs, thus appointed, held their offices only
+during the pleasure of the king, and were of course mere tools of the
+king; and their selection of jurors was really a selection by the king
+himself. In this manner the king usurped the selection of the jurors who
+were to sit in judgment upon his own laws.
+
+Here, then, was another usurpation, by which the common law trial by
+jury was destroyed, so far as related to the county courts, in which the
+sheriffs presided, and which were the most important courts of the
+kingdom. From this cause alone, if there were no other, there has not
+been a legal jury in a _county_ court in England, for more than five
+hundred years.
+
+In nearly or quite all the States of the United States the juries are
+illegal, for one or the other of the same reasons that make the juries
+in England illegal.
+
+In order that the juries in the United States may be legal--that is, in
+accordance with the principles of the common law--it is necessary that
+every adult male member of the state should have his name in the jury
+box, or be eligible as a juror. Yet this is the case in hardly a single
+state.
+
+In New Jersey, Maryland, North Carolina, Tennessee, and Mississippi, the
+jurors are required to be _freeholders_. But this requirement is
+illegal, for the reason that the term _freeholder_, in this country, has
+no meaning analogous to the meaning it had in the ancient common law.
+
+In Arkansas, Missouri, Indiana, and Alabama, jurors are required to be
+"freeholders or householders." Each of these requirements is illegal.
+
+In Florida, they are required to be "householders."
+
+In Connecticut, Maine, Ohio, and Georgia, jurors are required to have
+the qualifications of "electors."
+
+In Virginia, they are required to have a property qualification of one
+hundred dollars.
+
+In Maine, Massachusetts, Vermont, Connecticut, New York, Ohio, Indiana,
+Michigan, and Wisconsin, certain civil authorities of the towns, cities,
+and counties are authorized to select, once in one, two, or three years,
+a certain number of the people--a small number compared with the
+whole--from whom jurors are to be taken when wanted; thus disfranchising
+all except the few thus selected.
+
+In Maine and Vermont, the inhabitants, by vote in town meeting, have a
+veto upon the jurors selected by the authorities of the town.
+
+In Massachusetts, the inhabitants, by vote in town meeting, can strike
+out any names inserted by the authorities, and insert others; thus
+making jurors elective by the people, and, of course, representatives
+only of a majority of the people.
+
+In Illinois, the jurors are selected, for each term of court, by the
+county commissioners.
+
+In North Carolina, "_the courts of pleas and quarter sessions_ * * shall
+select the names of such persons only as are freeholders, and as are
+well qualified to act as jurors, &c.; thus giving the courts power to
+pack the juries."--(_Revised Statutes_, 147.)
+
+In Arkansas, too, "It shall be the duty of the _county court_ of each
+county * * to make out and cause to be delivered to the sheriff a list
+of not less than sixteen, nor more than twenty-three persons, qualified
+to serve as _grand_ jurors;" and the sheriff is to summon such persons
+to serve as _grand_ jurors.
+
+In Tennessee, also, the jurors are to be selected by the _county
+courts_.
+
+In Georgia, the jurors are to be selected by "the justices of the
+inferior courts of each county, together with the sheriff and clerk, or
+a majority of them."
+
+In Alabama, "the sheriff, judge of the county court, and clerks of the
+circuit and county courts," or "a majority of" them, select the jurors.
+
+In Virginia, the jurors are selected by the sheriffs; but the sheriffs
+are appointed by the governor of the state, and that is enough to make
+the juries illegal. Probably the same objection lies against the
+legality of the juries in some other states.
+
+How jurors are appointed, and what are their qualifications, in New
+Hampshire, Rhode Island, Pennsylvania, Delaware, South Carolina,
+Kentucky, Iowa, Texas, and California, I know not. There is little doubt
+that there is some valid objection to them, of the kinds already
+suggested, in all these states.
+
+In regard to jurors in the courts of the United States, it is enacted,
+by act of Congress:
+
+   "That jurors to serve in the courts of the United States, in each
+   state respectively, shall have the like qualifications, and be
+   entitled to the like exemptions, as jurors of the highest court of
+   law of such state now have and are entitled to, and shall hereafter,
+   from time to time, have and be entitled to, and shall be designated
+   by ballot, lot, or otherwise, according to the mode of forming such
+   juries now practised and hereafter to be practised therein, in so far
+   as such mode may be practicable by the courts of the United States,
+   or the officers thereof; and for this purpose, the said courts shall
+   have power to make all necessary rules and regulations for conforming
+   the designation and empanelling of jurors, in substance, to the laws
+   and usages now in force in such state; and, further, shall have
+   power, by rule or order, from time to time, to conform the same to
+   any change in these respects which may be hereafter adopted by the
+   legislatures of the respective states for the state courts."--_St._
+   1840, ch. 47, _Statutes at Large_, vol. 5, p. 394.
+
+In this corrupt and lawless manner, Congress, instead of taking care to
+preserve the trial by jury, so far as they might, by providing for the
+appointment of legal juries--incomparably the most important of all our
+judicial tribunals, and the only ones on which the least reliance can be
+placed for the preservation of liberty--have given the selection of them
+over entirely to the control of an indefinite number of state
+legislatures, and thus authorized each state legislature to adapt the
+juries of the United States to the maintenance of any and every system
+of tyranny that may prevail in such state.
+
+Congress have as much constitutional right to give over all the
+functions of the United States government into the hands of the state
+legislatures, to be exercised within each state in such manner as the
+legislature of such state shall please to exercise them, as they have to
+thus give up to these legislatures the selection of juries for the
+courts of the United States.
+
+There has, probably, never been a legal jury, nor a legal trial by jury,
+in a single court of the United States, since the adoption of the
+constitution.
+
+These facts show how much reliance can be placed in written
+constitutions, to control the action of the government, and preserve the
+liberties of the people.
+
+If the real trial by jury had been preserved in the courts of the United
+States--that is, if we had had legal juries, and the jurors had known
+their rights--it is hardly probable that one tenth of the past
+legislation of Congress would ever have been enacted, or, at least,
+that, if enacted, it could have been enforced.
+
+Probably the best mode of appointing jurors would be this: Let the names
+of _all_ the adult male members of the state, in each township, be kept
+in a jury box, by the officers of the township; and when a court is to
+be held for a county or other district, let the officers of a sufficient
+number of townships be required (without seeing the names) to draw out a
+name from their boxes respectively, to be returned to the court as a
+juror. This mode of appointment would guard against collusion and
+selection; and juries so appointed would be likely to be a fair epitome
+of "the country."
+
+[Footnote 79: On the English Constitution.]
+
+[Footnote 80: Although all the freemen are legally eligible as jurors,
+any one may nevertheless be challenged and set aside, at the trial, for
+any special _personal_ disqualification; such as mental or physical
+inability to perform the duties; having been convicted, or being under
+charge, of crime; interest, bias, &c. But it is clear that the common
+law allows none of these points to be determined by the court, but only
+by "_triers_."]
+
+[Footnote 81: What was the precise meaning of the Saxon word, which I
+have here called _elderly_, I do not know. In the Latin translations it
+is rendered by _seniores_, which may perhaps mean simply those who have
+attained their majority.]
+
+[Footnote 82: In 1483 it was enacted, by a statute entitled "Of what
+credit and estate those jurors must be which shall be impanelled in the
+Sheriff's Turn."
+
+   "That no bailiff nor other officer from henceforth return or impanel
+   any such person in any shire of England, to be taken or put in or
+   upon any inquiry in any of the said Turns, but such as be of good
+   name and fame, and having lands and tenements of freehold within the
+   same shires, to the yearly value of _twenty shillings_ at the least,
+   or else lands and tenements holden by custom of manor, commonly
+   called _copy-hold_, within the said shires, to the yearly value of
+   twenty-six shillings eight pence over all charges at the least."--_1
+   Richard III._, ch. 4. (1483.)
+
+   In 1486 it was enacted, "That the justices of the peace of every
+   shire of this realm for the time being may take, by their discretion,
+   an inquest, whereof every man shall have lands and tenements to the
+   yearly value of _forty shillings_ at the least, to inquire of the
+   concealments of others," &c., &c.--_3 Henry VII._, ch. 1 (1486.)
+
+A statute passed in 1494, in regard to jurors in the city of London,
+enacts:
+
+   "That no person nor persons hereafter be impanelled, summoned, or
+   sworn in any jury or inquest in courts within the same city, (of
+   London,) except he be of lands, tenements, or goods and chattels, to
+   the value of _forty marks_;[86] and that no person or persons
+   hereafter be impanelled, summoned, nor sworn in any jury or inquest
+   in any court within the said city, for lands or tenements, or action
+   personal, wherein the debt or damage amounteth to the sum of forty
+   marks, or above, except he be in lands, tenements, goods, or
+   chattels, to the value of _one hundred marks_."--_11 Henry VII._, ch.
+   21. (1494.)
+
+The statute _4 Henry VIII._, ch. 3, sec. 4, (1512) requires jurors in
+London to have "_goods_ to the value of one hundred marks."
+
+   In 1494 it was enacted that "It shall be lawful to every sheriff of
+   the counties of _Southampton_, _Surrey_, _and Sussex_, to impanel and
+   summons twenty-four lawful men of such, inhabiting within the
+   precinct of his or their turns, as owe suit to the same turn, whereof
+   every one hath lands or freehold to the yearly value of _ten_
+   shillings, or copy-hold lands to the yearly value of _thirteen
+   shillings four pence_, above all charges within any of the said
+   counties, or men of less livelihood, if there be not so many there,
+   notwithstanding the statute of _1 Richard III._, ch. 4. To endure to
+   the next parliament."--_11 Henry VII._, ch. 26. (1494.)
+
+This statute was continued in force by _19 Henry VII._, ch. 16. (1503.)
+
+   In 1531 it was enacted, "That every person or persons, being the
+   king's natural subject born, which either by the name of citizen, or
+   of a freeman, or any other name, doth enjoy and use the liberties and
+   privileges of any city, borough, or town corporate, where he dwelleth
+   and maketh his abode, being worth in _movable goods and substance_ to
+   the clear value of _forty pounds_, be henceforth admitted in trials
+   of murders and felonies in every sessions and gaol delivery, to be
+   kept and holden in and for the liberty of such cities, boroughs, and
+   towns corporate, albeit they have no freehold; any act, statute, use,
+   custom, or ordinance to the contrary hereof notwithstanding."--_23
+   Henry VIII._, ch. 13. (1531.)
+
+   In 1585 it was enacted, "That in all cases where any jurors to be
+   returned for trial of any issue or issues joined in any of the
+   Queen's majesty's courts of King's Bench, Common Pleas, and the
+   Exchequer, or before justices of assize, by the laws of this realm
+   now in force, ought to have estate of freehold in lands, tenements,
+   or hereditaments, of the clear yearly value of _forty shillings_,
+   that in every such case the jurors that shall be returned from and
+   after the end of this present session of parliament, shall every of
+   them have estate of freehold in lands, tenements, or hereditaments,
+   to the clear yearly value of _four pounds_ at the least."--_27
+   Elizabeth_, ch. 6. (1585.)
+
+   In 1664-5 it was enacted, "That all jurors (other than strangers upon
+   trials _per medietatem linguæ_) who are to be returned for the trials
+   of issues joined in any of (his) majesty's courts of king's bench,
+   common pleas, or the exchequer, or before justices of assize, or nisi
+   prius, oyer and terminer, gaol delivery, or general or quarter
+   sessions of the peace, from and after the twentieth day of April,
+   which shall be in the year of our Lord one thousand six hundred and
+   sixty-five, in any county of this realm of England, shall every of
+   them thon have, in their own name, or in trust for them, within the
+   same county, _twenty pounds by the year_, at least, above reprises,
+   in their own or their wives' right, of freehold lands, or of ancient
+   demesne, or of rents in fee, fee-tail, or for life. And that in every
+   county within the dominion of Wales every such juror shall then have,
+   within the same, _eight pounds by the year_, at the least, above
+   reprises, in manner aforesaid. All which persons having such estate
+   as aforesaid are hereby enabled and made liable to be returned and
+   serve as jurors for the trial of issues before the justices
+   aforesaid, any law or statute to the contrary in any wise
+   notwithstanding."--_16 and 17 Charles II._, ch. 3. (1664-5.)
+
+By a statute passed in 1692, jurors in England are to have landed
+estates of the value of _ten pounds a year_; and jurors in Wales to have
+similar estates of the realm of _six pounds a year_.--_4 and 5 William
+and Mary_, ch. 24, sec. 14. (1692.)
+
+By the same statute, (sec. 18,) persons may be returned to serve upon
+the _tales_ in any county of England, who shall have, within the same
+county, _five pounds by the year_, above reprises, in the manner
+aforesaid.
+
+By _St_. 3 _George II_., ch. 25, sec. 19, 20, no one is to be a juror in
+London, who shall not be "an householder within the said city, and have
+lands, tenements, or personal estate, to the value of _one hundred
+pounds_."
+
+By another statute, applicable only to the county of _Middlesex_, it is
+enacted,
+
+   "That all leaseholders, upon leases where the improved rents or value
+   shall amount to _fifty pounds or upwards per annum_, over and above
+   all ground rents or other reservations payable by virtue of the said
+   leases, shall be liable and obliged to serve upon juries when they
+   shall be legally summoned for that purpose."--_4 George II._, ch. 7,
+   sec. 3. (1731.)]
+
+[Footnote 83: Suppose these statutes, instead of disfranchising all
+whose freeholds were of less than the standard value fixed by the
+statutes, had disfranchised all whose freeholds were of greater value
+than the same standard--would anybody ever have doubted that such
+legislation was inconsistent with the English constitution; or that it
+amounted to an entire abolition of the trial by jury? Certainly not. Yet
+it was as clearly inconsistent with the common law, or the English
+constitution, to disfranchise those whose freeholds fell below any
+arbitrary standard fixed by the government, as it would have been to
+disfranchise all whose freeholds rose above that standard.]
+
+[Footnote 84: _Lingard_ says: "These compurgators or jurors * * were
+sometimes * * _drawn by lot_."--_1 Lingard's History of England_, p.
+300.]
+
+[Footnote 85: Chapter 4, p. 120, note.]
+
+[Footnote 86: A mark was thirteen shillings and four pence.]
+
+
+
+
+CHAPTER VII.
+
+ILLEGAL JUDGES.
+
+
+It is a principle of Magna Carta, and therefore of the trial by jury,
+(for all parts of Magna Carta must be construed together,) that no judge
+or other officer _appointed by the king_, shall preside in jury trials,
+_in criminal cases_, or "pleas of the crown."
+
+This provision is contained in the great charters of both John and
+Henry, and is second in importance only to the provision guaranteeing
+the trial by jury, of which it is really a part. Consequently, without
+the observance of this prohibition, there can be no genuine or
+_legal_--that is, _common law_--trial by jury.
+
+At the common law, all officers who held jury trials, whether in civil
+or criminal cases, were chosen by the people.[87]
+
+But previous to Magna Carta, the kings had adopted the practice of
+sending officers of their own appointment, called justices, into the
+counties, to hold jury trials in some cases; and Magna Carta authorizes
+this practice to be continued so far as it relates to _three_ kinds of
+_civil_ actions, to wit: "novel disseisin, mort de ancestor, and darrein
+presentment;"[88] but specially forbids its being extended to criminal
+cases, or pleas of the crown.
+
+This prohibition is in these words:
+
+   "Nullus vicecomes, constabularius, coronator, _vel alii balivi
+   nostri_, teneant placita coronæ nostræ." (No sheriff, constable,
+   coroner, _or other our bailiffs_, shall hold pleas of our
+   crown.)--_John's Charter_, ch. 53. _Henry's ditto_, ch. 17.
+
+Some persons seem to have supposed that this was a prohibition merely
+upon officers _bearing the specific names of_ "_sheriffs, constables,
+coroners and bailiffs_," to hold criminal trials. But such is not the
+meaning. If it were, the _name_ could be changed, and the _thing_
+retained; and thus the prohibition be evaded. The prohibition applies
+(as will presently be seen) to all officers of the king whatsoever; and
+it sets up a distinction between officers _of the king_, ("_our_
+bailiffs,") and officers chosen by the people.
+
+The prohibition upon the king's _justices_ sitting in criminal trials,
+is included in the words "_vel alii balivi nostri_," (or other our
+bailiffs.) The word _bailiff_ was anciently a sort of general name for
+_judicial officers_ and persons employed in and about the administration
+of justice. In modern times its use, as applied to the higher grades of
+judicial officers, has been superseded by other words; and it therefore
+now, more generally, if not universally, signifies an executive or
+police officer, _a servant of courts_, rather than one whose functions
+are purely judicial.
+
+The word is a French word, brought into England by the Normans.
+
+   Coke says, "_Baylife_ is a French word, and signifies an officer
+   concerned in the administration of justice of a certain province; and
+   because a sheriff hath an office concerning the administration of
+   justice within his county, or bailiwick, therefore he called his
+   county _baliva sua_, (his bailiwick.)
+
+   "I have heard great question made what the true exposition of this
+   word _balivus_ is. In the statute of Magna Carta, cap. 28, the letter
+   of that statute is, _nullus balivus de cætero ponat aliquem ad legem
+   manifestam nec ad juramentum simplici loquela sua sine testibus
+   fidelibus ad hoc inductis_." (No bailiff from henceforth shall put
+   any one to his open law, nor to an oath (of self-exculpation) upon
+   his own simple accusation, or complaint, without faithful witnesses
+   brought in for the same.) "And some have said that _balivus_ in this
+   statute signifieth _any judge_; for the law must be waged and made
+   before the judge. And this statute (say they) extends to _the courts
+   of common pleas_, _king's bench_, &c., for they must bring with them
+   _fideles testes_, (faithful witnesses,) &c., _and so hath been the
+   usage to this day_."--_1 Coke's Inst._, 168 b.
+
+Coke makes various references, in his margin to Bracton, Fleta, and
+other authorities, which I have not examined, but which, I presume,
+support the opinion expressed in this quotation.
+
+Coke also, in another place, under the head of the chapter just cited
+from Magna Carta, that "_no bailiff shall put any man to his open law_,"
+&c., gives the following commentary upon it, from the _Mirror of
+Justices_, from which it appears that in the time of Edward I., (1272 to
+1307,) this word _balivus_ was understood to include _all judicial_, as
+well as all other, officers of the king.
+
+   The Mirror says: "The point which forbiddeth that no _bailiff_ put a
+   freeman to his oath without suit, is to be understood in this
+   manner,--_that no justice, no minister of the king_, nor other
+   steward, nor bailiff, have power to make a freeman make oath, (of
+   self-exculpation,) _without the king's command_,[89] nor receive any
+   plaint, without witnesses present who testify the plaint to be
+   true."--_Mirror of Justices_, ch. 5, sec. 2, p. 257.
+
+Coke quotes this commentary, (in the original French,) and then endorses
+it in these words:
+
+   "By this it appeareth, that under this word _balivus_, in this act,
+   is comprehended _every justice, minister of the king_, steward, and
+   bailiff."--2 _Inst._, 44.
+
+Coke also, in his commentary upon this very chapter of Magna Carta, that
+provides that "_no sheriff, constable, coroner, or other our bailiffs,
+shall hold pleas of our crown_," expresses the opinion that it "_is a
+general law_," (that is, applicable to all officers of the king,) "by
+reason of the words _vel alii balivi nostri_, (or other our bailiffs,)
+_under which words are comprehended all judges or justices of any courts
+of justice_." And he cites a decision in the king's bench, in the 17th
+year of Edward I., (1289,) as authority; which decision he calls "a
+notable and leading judgment."--_2 Inst._, 30--1.
+
+And yet Coke, in flat contradiction of this decision, which he quotes
+with such emphasis and approbation, and in flat contradiction also of
+the definition he repeatedly gives of the word _balivus_, showing that
+it embraced _all ministers of the king whatsoever_, whether high or low,
+judicial or executive, fabricates an entirely gratuitous interpretation
+of this chapter of Magna Carta, and pretends that after all it only
+required that _felonies_ should be tried before the king's _justices, on
+account of their superior learning_; and that it permitted all lesser
+offences to be tried before inferior officers, (meaning of course the
+_king's_ inferior officers.)--_2 Inst._, 30.
+
+And thus this chapter of Magna Carta, which, according to his own
+definition of the word _balivus_, applies to all officers of the king;
+and which, according to the common and true definition of the term
+"pleas of the crown," applies to all criminal cases without distinction,
+and which, therefore, forbids any officer or minister of the king to
+preside in a jury trial in any criminal case whatsoever, he coolly and
+gratuitously interprets into a mere senseless provision for simply
+restricting the discretion of the king in giving _names_ to his own
+officers who should preside at the trials of particular offences; as if
+the king, who made and unmade all his officers by a word, could not
+defeat the whole object of the prohibition, by appointing such
+individuals as he pleased, to try such causes as he pleased, and calling
+them by such names as he pleased, _if he were but permitted to appoint
+and name such officers at all_; and as if it were of the least
+importance what _name_ an officer bore, whom the king might appoint to a
+particular duty.[90]
+
+Coke evidently gives this interpretation solely because, as he was
+giving a general commentary on Magna Carta, he was bound to give some
+interpretation or other to every chapter of it; and for this chapter he
+could invent, or fabricate, (for it is a sheer fabrication,) no
+interpretation better suited to his purpose than this. It seems never to
+have entered his mind, (or if it did, he intended that it should never
+enter the mind of anybody else,) that the object of the chapter could be
+to deprive the king of the power of putting his creatures into criminal
+courts, to pack, cheat, and browbeat juries, and thus maintain his
+authority by procuring the conviction of those who should transgress his
+laws, or incur his displeasure.
+
+This example of Coke tends to show how utterly blind, or how utterly
+corrupt, English judges, (dependent upon the crown and the legislature),
+have been in regard to everything in Magna Carta, that went to secure
+the liberties of the people, or limit the power of the government.
+
+Coke's interpretation of this chapter of Magna Carta is of a piece with
+his absurd and gratuitous interpretation of the words "_nec super eum
+ibimus, nec super eum mittemus_," which was pointed out in a former
+article, and by which he attempted to give a _judicial_ power to the
+king and his judges, where Magna Carta had given it only to a jury. It
+is also of a piece with his pretence that there was a difference
+between _fine_ and _amercement_, and that _fines_ might be imposed by
+the king, and that juries were required only for fixing _amercements_.
+
+These are some of the innumerable frauds by which the English people
+have been cheated out of the trial by jury.
+
+_Ex uno disce omnes._ From one judge learn the characters of all.[91]
+
+I give in the note additional and abundant authorities for the meaning
+ascribed to the word _bailiff_. The importance of the principle involved
+will be a sufficient excuse for such an accumulation of authorities as
+would otherwise be tedious and perhaps unnecessary.[92]
+
+The foregoing interpretation of the chapter of Magna Carta now under
+discussion, is corroborated by another chapter of Magna Carta, which
+specially provides that the king's justices shall "go through every
+county" to "take the assizes" (hold jury trials) in three kinds of
+_civil_ actions, to wit, "novel disseisin, mort de ancestor, and darrein
+presentment;" but makes no mention whatever of their holding jury trials
+in _criminal_ cases,--an omission wholly unlikely to be made, if it
+were designed they should attend the trial of such causes. Besides, the
+chapter here spoken of (in John's charter) does not allow these justices
+to sit _alone_ in jury trials, even in _civil_ actions; but provides
+that four knights, chosen by the county, shall sit with them to keep
+them honest. When the king's justices were known to be so corrupt and
+servile that the people would not even trust them to sit alone, in jury
+trials, in _civil_ actions, how preposterous is it to suppose that they
+would not only suffer them to sit, but to sit alone, in _criminal_ ones.
+
+It is entirely incredible that Magna Carta, which makes such careful
+provision in regard to the king's justices sitting in civil actions,
+should make no provision whatever as to their sitting in _criminal_
+trials, if they were to be allowed to sit in them at all. Yet Magna
+Carta has no provision whatever on the subject.[93]
+
+But what would appear to make this matter absolutely certain is, that
+unless the prohibition that "no bailiff, &c., _of ours_ shall hold pleas
+of our crown," apply to all officers of the king, justices as well as
+others, it would be wholly nugatory for any practical or useful purpose,
+because the prohibition could be evaded by the king, at any time, by
+simply changing the titles of his officers. Instead of calling them
+"sheriffs, coroners, constables and bailiffs," he could call them
+"_justices_," or anything else he pleased; and this prohibition, so
+important to the liberty of the people, would then be entirely defeated.
+The king also could make and unmake "justices" at his pleasure; and if
+he could appoint any officers whatever to preside over juries in
+criminal trials, he could appoint any tool that he might at any time
+find adapted to his purpose. It was as easy to make justices of Jeffreys
+and Scroggs, as of any other material; and to have prohibited all the
+king's officers, _except his justices_, from presiding in criminal
+trials, would therefore have been mere fool's play.
+
+We can all perhaps form some idea, though few of us will be likely to
+form any adequate idea, of what a different thing the trial by jury
+would have been _in practice_, and of what would have been the
+difference to the liberties of England, for five hundred years last
+past, had this prohibition of Magna Carta, upon the king's officers
+sitting in the trial of criminal cases, been observed.
+
+The principle of this chapter of Magna Carta, as applicable to the
+governments of the United States of America, forbids that any officer
+appointed either by the executive or _legislative_ power, or dependent
+upon them for their salaries, or responsible to them by impeachment,
+should preside over a jury in criminal trials. To have the trial a legal
+(that is, a _common law_) and true trial by jury, the presiding officers
+must be chosen by the people, and be entirely free from all dependence
+upon, and all accountability to, the executive and legislative branches
+of the government.[94]
+
+[Footnote 87: The proofs of this principle of the common law have
+already been given on page 120, _note_.
+
+There is much confusion and contradiction among authors as to the manner
+in which sheriffs and other officers were appointed; some maintaining
+that they were appointed by the king, others that they were elected by
+the people. I imagine that both these opinions are correct, and that
+several of the king's officers bore the same official names as those
+chosen by the people; and that this is the cause of the confusion that
+has arisen on the subject.
+
+It seems to be a perfectly well established fact that, at common law,
+several magistrates, bearing the names of aldermen, sheriffs, stewards,
+coroners and bailiffs, were chosen by the people; and yet it appears,
+from Magna Carta itself, that some of the _king's_ officers (of whom he
+must have had many) were also called "sheriffs, constables, coroners,
+and bailiffs."
+
+But Magna Carta, in various instances, speaks of sheriffs and bailiffs
+as "_our_ sheriffs and bailiffs;" thus apparently intending to recognize
+the distinction between officers _of the king_, bearing those names, and
+other officers, bearing the same official names, but chosen by the
+people. Thus it says that "no sheriff or bailiff _of ours_, or any other
+(officer), shall take horses or carts of any freeman for carriage,
+unless with the consent of the freeman himself."--_John's Charter_, ch.
+36.
+
+In a kingdom subdivided into so many counties, hundreds, tithings,
+manors, cities and boroughs, each having a judicial or police
+organization of its own, it is evident that many of the officers must
+have been chosen by the people, else the government could not have
+maintained its popular character. On the other hand, it is evident that
+the king, the executive power of the nation, must have had large numbers
+of officers of his own in every part of the kingdom. And it is perfectly
+natural that these different sets of officers should, in many instances,
+bear the same official names; and, consequently that the king, when
+speaking of his own officers, as distinguished from those chosen by the
+people, should call them "our sheriffs, bailiffs," &c., as he does in
+Magna Carta.
+
+I apprehend that inattention to these considerations has been the cause
+of all the confusion of ideas that has arisen on this subject,--a
+confusion very evident in the following paragraph from Dunham, which may
+be given as an illustration of that which is exhibited by others on the
+same points.
+
+   "Subordinate to the ealdormen were the _gerefas_, the sheriffs, or
+   reeves, _of whom there were several in every shire, or county_.
+   _There was one in every borough, as a judge._ There was one at every
+   gate, who witnessed purchases outside the walls; and there was one,
+   higher than either,--the high sheriff,--who was probably the reeve of
+   the shire. This last _appears_ to have been appointed by the king.
+   Their functions were to execute the decrees of the king, or
+   ealdormen, to arrest prisoners, to require bail for their appearance
+   at the sessions, to collect fines or penalties levied by the court of
+   the shire, to preserve the public peace, _and to preside in a
+   subordinate tribunal of their own_."--_Dunham's Middle Ages_, sec. 2,
+   B. 2, ch. 1. 57 _Lardner's Cab. Cyc._, p. 41.
+
+The confusion of _duties_ attributed to these officers indicates clearly
+enough that different officers, bearing, the same official names, must
+have had different duties, and have derived their authority from
+different sources,--to wit, the king, and the people.]
+
+[Footnote 88: _Darrein presentment_ was an inquest to discover who
+presented the last person to a church; _mort de ancestor_, whether the
+last possessor was seized of land in demesne of his own fee; and _novel
+disseisin_, whether the claimant had been unjustly disseized of his
+freehold.]
+
+[Footnote 89: He has no power to do it, _either with, or without, the
+king's command_. The prohibition is absolute, containing no such
+qualification as is here interpolated, viz., "_without the king's
+command_." If it could be done _with_ the king's command, the king would
+be invested with arbitrary power in the matter.]
+
+[Footnote 90: The absurdity of this doctrine of Coke is made more
+apparent by the fact that, at that time, the "justices" and other
+persons appointed by the king to hold courts were not only dependent
+upon the king for their offices, and removable at his pleasure, _but
+that the usual custom was, not to appoint them with any view to
+permanency, but only to give them special commissions for trying a
+single cause, or for holding a single term of a court, or for making a
+single circuit; which, being done, their commissions expired_. The king,
+therefore, could, _and undoubtedly did, appoint any individual he
+pleased, to try any cause he pleased, with a special view to the
+verdicts he desired to obtain in the particular cases_.
+
+This custom of commissioning particular persons to hold jury trials, in
+_criminal_ cases, (and probably also in _civil_ ones,) was of course a
+usurpation upon the common law, but had been practised more or less from
+the time of William the Conqueror. Palgrave says:
+
+   "The frequent absence of William from his insular dominions
+   occasioned another mode of administration, _which ultimately produced
+   still greater changes in the law_. It was the practice of appointing
+   justiciars to represent the king's person, to hold his court, to
+   decide his pleas, to dispense justice on his behalf, to command the
+   military levies, and to act as conservators of the peace in the
+   king's name.[95] ... The justices who were assigned in the name of
+   the sovereign, and whose powers were revocable at his pleasure,
+   derived their authority merely from their grant.... Some of those
+   judges were usually deputed for the purpose of relieving the king
+   from the burden of his judicial functions.... The number as well as
+   the variety of names of the justices appearing in the early
+   chirographs of 'Concords,' leave reason for doubting whether,
+   anterior to the reign of Henry III., (1216 to 1272,) _a court, whose
+   members were changing at almost every session, can be said to have
+   been permanently constituted. It seems more probable that the
+   individuals who composed the tribunal were selected as suited the
+   pleasure of the sovereign, and the convenience of the clerks and
+   barons_; and the history of our legal administration will be much
+   simplified, if we consider all those courts which were afterwards
+   denominated the Exchequer, the King's Bench, the Common Pleas, and
+   the Chancery, _as being originally committees, selected by the king
+   when occasion required_, out of a large body, for the despatch of
+   peculiar branches of business, _and which committees, by degrees,
+   assumed an independent and permanent existence_.... Justices
+   itinerant, who, despatched throughout the land, decided the 'Pleas of
+   the Crown,' may be obscurely traced in the reign of the Conqueror;
+   _not, perhaps, appointed with much regularity, but despatched upon
+   peculiar occasions and emergencies_."--_1 Palgrave's Rise and
+   Progress_, &c., p. 289 to 293.
+
+The following statute, passed in 1354, (139 years after Magna Carta,)
+shows that even after this usurpation of appointing "justices" of his
+own, to try criminal cases, had probably become somewhat established in
+practice, in defiance of Magna Carta, the king was in the habit of
+granting special commissions to still other persons, (especially to
+sheriffs,--_his_ sheriffs, no doubt,) to try particular cases:
+
+   "Because that the people of the realm have suffered many evils and
+   mischiefs, for that sheriffs of divers counties, by virtue of
+   commissions and general writs granted to them at their own suit, for
+   their singular profit to gain of the people, have made and taken
+   divers inquests to cause to indict the people at their will, and have
+   taken fine and ransom of them to their own use, and have delivered
+   them; whereas such persons indicted were not brought before the
+   king's justices to have their deliverance, it is accorded and
+   established, for to eschew all such evils and mischiefs, that such
+   commissions and writs before this time made shall be utterly
+   repealed, and that from henceforth no such commissions shall be
+   granted."--_St. 28 Edward III._, ch. 9, (1354.)
+
+How silly to suppose that the illegality of these commissions to try
+criminal cases, could have been avoided by simply granting them to
+persons under the title of "_justices_," instead of granting them to
+"_sheriffs_." The statute was evidently a cheat, or at least designed as
+such, inasmuch as it virtually asserts the right of the king to appoint
+his tools, under the name of "justices," to try criminal cases, while it
+_disavows_ his right to appoint them under the name of "sheriffs."
+
+   Millar says: "When the king's bench came to have its usual residence
+   at Westminster, the sovereign was induced to _grant special
+   commissions, for trying particular crimes_, in such parts of the
+   country as were found most convenient; and this practice was
+   _gradually_ modelled into a regular appointment of certain
+   commissioners, empowered, at stated seasons, to perform circuits over
+   the kingdom, and to hold courts in particular towns, for the trial of
+   all sorts of crimes. These judges of the circuit, however, _never
+   obtained an ordinary jurisdiction, but continued, on every occasion,
+   to derive their authority from two special commissions_: that of
+   _oyer and terminer_, by which they were appointed to hear and
+   determine all treasons, felonies and misdemeanors, within certain
+   districts; and that of _gaol delivery_, by which they were directed
+   to try every prisoner confined in the gaols of the several towns
+   falling under their inspection."--_Millar's Hist. View of Eng. Gov._,
+   vol. 2, ch. 7, p. 282.
+
+The following extract from Gilbert shows to what lengths of usurpation
+the kings would sometimes go, in their attempts to get the judicial
+power out of the hands of the people, and entrust it to instruments of
+their own choosing:
+
+   "From the time of the _Saxons_," (that is, from the commencement of
+   the reign of William the Conqueror,) "till the reign of Edward the
+   first, (1272 to 1307,) the several county courts and sheriffs courts
+   did decline in their interest and authority. The methods by which
+   they were broken were two-fold. _First, by granting commissions to
+   the sheriffs by writ of_ JUSTICIES, _whereby the sheriff had a
+   particular jurisdiction granted him to be judge of a particular
+   cause, independent of the suitors of the county court_," (that is,
+   without a jury;) "_and these commissions were after the Norman form,
+   by which (according to which) all power of judicature was immediately
+   derived from the king_."--_Gilbert on the Court of Chancery_, p. 1.
+
+The several authorities now given show that it was the custom of the
+_Norman_ kings, not only to appoint persons to sit as judges in jury
+trials, in criminal cases, but that they also commissioned individuals
+to sit in singular and particular cases, as occasion required; and that
+they therefore readily _could_, and naturally _would_, and therefore
+undoubtedly _did_, commission individuals with a special view to their
+adaptation or capacity to procure such judgments as the kings desired.
+
+The extract from Gilbert suggests also the usurpation of the _Norman_
+kings, in their assumption that _they_, (and _not the people_, as by the
+_common law_,) were the fountains of justice. It was only by virtue of
+this illegal assumption that they could claim to appoint their tools to
+hold courts.
+
+All these things show how perfectly lawless and arbitrary the kings were
+both before and after Magna Carta, and how necessary to liberty was the
+principle of Magna Carta and the common law, that no person appointed by
+the king should hold jury trials in criminal cases.]
+
+[Footnote 91: The opinions and decisions of judges and courts are
+undeserving of the least reliance, (beyond the intrinsic merit of the
+arguments offered to sustain them,) and are unworthy even to be quoted
+as evidence of the law, _when those opinions or decisions are favorable
+to the power of the government, or unfavorable to the liberties of the
+people_. The only reasons that their opinions, _when in favor of
+liberty_, are entitled to any confidence, are, first, that all
+presumptions of law are in favor of liberty; and, second, that the
+admissions of all men, the innocent and the criminal alike, _when made
+against their own interests_, are entitled to be received as true,
+because it is contrary to human nature for a man to confess anything but
+truth against himself.
+
+More solemn farces, or more gross impostures, were never practised upon
+mankind, than are all, or very nearly all, those oracular responses by
+which courts assume to determine that certain statutes, in restraint of
+individual liberty, are within the constitutional power of the
+government, and are therefore valid and binding upon the people.
+
+The reason why these courts are so intensely servile and corrupt, is,
+that they are not only parts of, but the veriest creatures of, the very
+governments whose oppressions they are thus seeking to uphold. They
+receive their offices and salaries from, and are impeachable and
+removable by, the very governments upon whose acts they affect to sit in
+judgment. Of course, no one with his eyes open ever places himself in a
+position so incompatible with the liberty of declaring his honest
+opinion, unless he do it with the intention of becoming a mere
+instrument in the hands of the government for the execution of all its
+oppressions.
+
+As proof of this, look at the judicial history of England for the last
+five hundred years, and of America from its settlement. In all that time
+(so far as I know, or presume) no bench of judges, (probably not even
+any single judge,) dependent upon the legislature that passed the
+statute, has ever declared a single _penal_ statute invalid, on account
+of its being in conflict either with the common law, which the judges in
+England have been sworn to preserve, or with the written constitutions,
+(recognizing men's natural rights,) which the American judges were under
+oath to maintain. Every oppression, every atrocity even, that has ever
+been enacted in either country, by the legislative power, in the shape
+of a criminal law, (or, indeed, in almost any other shape,) has been as
+sure of a sanction from the judiciary that was dependent upon, and
+impeachable by, the legislature that enacted the law, as if there were a
+physical necessity that the legislative enactment and the judicial
+sanction should go together. Practically speaking, the sum of their
+decisions, all and singular, has been, that there are no limits to the
+power of the government, and that the people have no rights except what
+the government pleases to allow to them.
+
+It is extreme folly for a people to allow such dependent, servile, and
+perjured creatures to sit either in civil or criminal trials; but to
+allow them to sit in criminal trials, and judge of the people's
+liberties, is not merely fatuity,--it is suicide.]
+
+[Footnote 92: Coke, speaking of the word _bailiffs_, as used in the
+statute of 1 _Westminster_, ch. 35, (1275,) says:
+
+   "Here _bailiffs_ are taken for the _judges of the court_, as
+   manifestly appeareth hereby."--2 _Inst._, 229.
+
+Coke also says, "It is a maxim in law, _aliquis non debet esse judex in
+propria causa_, (no one ought to be judge in his own cause;) and
+therefore a fine levied before the _baylifes of Salop_ was reversed,
+because one of the _baylifes_ was party to the fine, _quia non potest
+esse judex et pars_," (because one cannot be _judge_ and party.)--_1
+Inst._, 141 a.
+
+In the statute of Gloucester, ch. 11 and 12, (1278,) "the mayor and
+_bailiffs_ of London (undoubtedly chosen by the people, or at any rate
+not appointed by the king) are manifestly spoken of as _judges_, or
+magistrates, holding _jury_ trials, as follows:
+
+   _Ch. II._ "It is provided, also, that if any man lease his tenement
+   in the city of London, for a term of years, and he to whom the
+   freehold belongeth causeth himself to be impleaded by collusion, and
+   maketh default after default, or cometh into court and giveth it up,
+   for to make the termor (lessee) lose his term, (lease,) and the
+   demandant hath his suit, so that the termor may recover by writ of
+   covenant; _the mayor and bailiffs may inquire by a good inquest_,
+   (_jury_,) in the presence of the termor and the demandant, whether
+   the demandant moved his plea upon good right that he had, or by
+   collusion, or fraud, to make the termor lose his term; and if it be
+   found by the inquest (jury) that the demandant moved his plea upon
+   good right that he had, the judgment shall be given forthwith; and if
+   it be found by the inquest (jury) that he impleaded him (self) by
+   fraud, to put the termor from his term, then shall the termor enjoy
+   his term, and the execution of judgment for the demandant shall be
+   suspended until the term be expired."--_6 Edward I._, ch. 11, (1278.)
+
+   Coke, in his commentary on this chapter, calls this court of "the
+   mayor and _bailiffs_" of London, "_the court of the hustings, the
+   greatest and highest court in London;_" and adds, "other cities have
+   the like court, and so called, as York, Lincoln, Winchester, &c. Here
+   the city of London is named; but it appeareth by that which hath been
+   said out of Fleta, that this act extends to such cities and boroughs
+   privileged,--that is, such as have such privilege to hold plea as
+   London hath."--_2 Inst._, 322.
+
+The 12th chapter of the same statute is in the following words, which
+plainly recognize the fact that "the mayor and _bailiffs_ of London" are
+judicial officers holding courts in London.
+
+   "It is provided, also, that if a man, impleaded for a tenement in the
+   same city, (London,) doth vouch a foreigner to warranty, that he
+   shall come into the chancery, and have a writ to summon his warrantor
+   at a certain day before the justices of the bench, _and another writ
+   to the mayor and bailiffs of London, that they shall surcease_
+   (suspend proceedings) _in the matter that is before them by writ_,
+   until the plea of the warrantee be determined before the justices of
+   the bench; and when the plea at the bench shall be determined, then
+   shall he that is vouched be commanded to go into the city," (that is,
+   before "the mayor and _bailiffs'_" court,) "to answer unto the chief
+   plea; and a writ shall be awarded at the suit of the demandant by the
+   justices _unto the mayor and bailiffs, that they shall proceed in the
+   plea_," &c.--_6 Edward I._, ch. 12, (1278.)
+
+Coke, in his commentary on this chapter, also speaks repeatedly of "the
+mayor and _bailiffs_" _as judges holding courts_; and also speaks of
+this chapter as applicable not only to "the citie of London, specially
+named for the cause aforesaid, but extended by equity to all other
+privileged places," (that is, privileged to have a court of "mayor and
+_bailiffs_,") "where foreign voucher is made, as to Chester, Durham,
+Salop," &c.--_2 Inst._, 325-7.
+
+BAILIE.--In Scotch law, a municipal magistrate, corresponding with the
+English _alderman_.[96]--_Burrill's Law Dictionary_.
+
+BAILIFFE.--_Baillif._ Fr. A bailiff: a ministerial officer with duties
+similar to those of a sheriff.... _The judge of a court._ A municipal
+magistrate, &c.--_Burrill's Law Dict._
+
+BAILIFF.... The word _bailiff_ is of Norman origin, and was applied in
+England, at an early period, (after the example, it is said, of the
+French,) to the chief magistrates of counties, or shires, such as the
+alderman, the reeve, or sheriff, and also of inferior jurisdictions,
+such as hundreds and wapentakes.--_Spelman, voc. Balivus; 1 Bl. Com._,
+344. _See Bailli_, _Ballivus_. The Latin _ballivus_ occurs, indeed, in
+the laws of Edward the Confessor, but Spelman thinks it was introduced
+by a later hand. _Balliva_ (bailiwick) was the word formed from
+_ballivus_, to denote the extent of territory comprised within a
+bailiff's jurisdiction; and _bailiwick_ is still retained in writs and
+other proceedings, as the name of a sheriff's county.--_1 Bl. Com._,
+344. _See Balliva._ _The office of bailiff was at first strictly, though
+not exclusively, a judicial one._ In France, the word had the sense of
+what Spelman calls _justitia tutelaris_. _Ballivus_ occurs frequently in
+the _Regiam Majestatem_, in the sense of a _judge_.--_Spelman._ In its
+sense of a _deputy_, it was formerly applied, in England, to those
+officers who, by virtue of a deputation, either from the sheriff or the
+lords of private jurisdictions, exercised within the hundred, or
+whatever might be the limits of their bailiwick, certain _judicial_ and
+ministerial functions. With the disuse of private and local
+jurisdictions, the meaning of the term became commonly restricted to
+such persons as were deputed by the sheriff to assist him in the merely
+ministerial portion of his duty; such as the summoning of juries, and
+the execution of writs.--_Brande._ ... The word _bailiff_ is also
+applied in England to the chief magistrates of certain towns and
+jurisdictions, to the keepers of castles, forests and other places, and
+to the stewards or agents of lords of manors.--_Burrill's Law Dict._
+
+"BAILIFF, (from the Lat. _ballivus_; Fr. _baillif_, i.e., _Præfectus
+provinciæ_,) signifies an officer appointed for the administration of
+justice within a certain district. The office, as well as the name,
+appears to have been derived from the French," &c.,--_Brewster's
+Encyclopedia._
+
+Millar says, "The French monarchs, about this period, were not content
+with the power of receiving appeals from the several courts of their
+barons. An expedient was devised of sending royal _bailiffs_ into
+different parts of the kingdom, with a commission to take cognizance of
+all those causes in which the sovereign was interested, and in reality
+for the purpose of abridging and limiting the subordinate jurisdiction
+of the neighboring feudal superiors. By an edict of Phillip Augustus, in
+the year 1190, those _bailiffs_ were appointed in all the principal
+towns of the kingdom."--_Millar's Hist. View of the Eng. Gov._, vol.
+ii., ch. 3, p. 126.
+
+   "BAILIFF-_office_.--Magistrates who formerly administered justice in
+   the parliaments or courts of France, answering to the English
+   sheriffs, as mentioned by Bracton."--_Bouvier's Law Dict._
+
+   "There be several officers called _bailiffs_, whose offices and
+   employments seem quite different from each other.... The chief
+   magistrate, in divers ancient corporations, are called _bailiffs_, as
+   in Ipswich, Yarmouth, Colchester, &c. There are, likewise, officers
+   of the forest, who are termed bailiffs."--_1 Bacon's Abridgment_,
+   498-9.
+
+   "BAILIFF signifies a keeper or superintendent, and is directly
+   derived from the French word _bailli_, which appears to come from the
+   word _balivus_, and that from _bagalus_, a Latin word signifying
+   generally a governor, tutor, or superintendent.... The French word
+   _bailli_ is thus explained by Richelet, (_Dictionaire_, &c.:)
+   _Bailli._--_He who in a province has the superintendence of justice,
+   who is the ordinary judge of the nobles_, who is their head for the
+   _ban_ and _arriere ban_,[97] and who maintains the right and property
+   of others against those who attack them.... All the various officers
+   who are called by this name, though differing as to the nature of
+   their employments, seem to have some kind of superintendence
+   intrusted to them by their superior."--_Political Dictionary._
+
+"BAILIFF, _balivus_. From the French word _bayliff_, that is, _præfectus
+provinciæ_, and as the name, so the office itself was answerable to that
+of France, where there were eight parliaments, which were high courts
+from whence there lay no appeal, and within the precincts of the several
+parts of that kingdom which belonged to each parliament, _there were
+several provinces to which justice was administered by certain officers
+called bailiffs_; and in England we have several counties in which
+justice hath been, and still is, in small suits, administered to the
+inhabitants by the officer whom we now call _sheriff_, or _viscount_;
+(one of which names descends from the Saxons, the other from the
+Normans.) And, though the sheriff is not called _bailiff_, yet it was
+probable that was one of his names also, because the county is often
+called _balliva_; as in the return of a writ, where the person is not
+arrested, the sheriff saith, _infra-nominatus_, _A.B. non est inventus
+in balliva mea_, &c.; (the within named A.B. is not found in my
+bailiwick, &c.) And in the statute of Magna Carta, ch. 28, and 14 Ed. 3,
+ch. 9, the word _bailiff_ seems to comprise as well sheriffs, as
+bailiffs of hundreds.
+
+"_Bailies_, in Scotland, are magistrates of burghs, possessed of certain
+jurisdictions, having the same power within their territory as sheriffs
+in the county....
+
+"As England is divided into counties, so every county is divided into
+hundreds; within which, in ancient times, the people had justice
+administered to them by the several officers of every hundred, which
+were the _bailiffs_. And it appears by Bracton, (_lib. 3, tract_. 2, ch.
+34,) that _bailiffs_ of hundreds might anciently hold plea of appeal and
+approvers; but since that time the hundred courts, except certain
+franchises, are swallowed in the county courts; and now the _bailiff's_
+name and office is grown into contempt, they being generally officers to
+serve writs, &c., within their liberties; though, in other respects, the
+name is still in good esteem, for the chief magistrates in divers towns
+are called _bailiffs_; and sometimes the persons to whom the king's
+castles are committed are termed _bailiffs_, as the _bailiff_ of Dover
+Castle, &c.
+
+"Of the ordinary _bailiffs_ there are several sorts, viz., _bailiffs_ of
+liberties; sheriffs' _bailiffs_; _bailiffs_ of lords of manors;
+_bailiffs_ of husbandry, &c....
+
+"_Bailiffs_ of liberties or franchises are to be sworn to take
+distresses, truly impanel jurors, make returns by indenture between them
+and sheriffs, &c....
+
+"_Bailiffs of courts baron_ summon those courts, and execute the process
+thereof....
+
+"Besides these, there are also _bailiffs of the forest_ ..."--_Jacob's
+Law Dict. Tomlin's do._
+
+"BAILIWICK, _balliva_,--is not only taken for the county, but signifies
+generally that liberty which is exempted from the sheriff of the county,
+over which the lord of the liberty appointeth a _bailiff_, with such
+powers within his precinct as an under-sheriff exerciseth under the
+sheriff of the county; such as the _bailiff_ of Westminster."--_Jacob's
+Law Dict. Tomlin's do._
+
+"_A bailiff of a Leet, Court-baron, Manor, Balivus Letæ, Baronis,
+Manerii._--He is one that is appointed by the lord, or his steward,
+within every manor, to do such offices as appertain thereunto, as to
+summon the court, warn the tenants and resiants; also, to summon the
+Leet and Homage, levy fines, and make distresses, &c., of which you may
+read at large in _Kitchen's Court-leet and Court-baron_."--_A Law
+Dictionary, anonymous_, (_in Suffolk Law Library_.)
+
+"BAILIFF.--In England an officer appointed by the sheriff. Bailiffs are
+either special, and appointed, for their adroitness, to arrest persons;
+or bailiffs of hundreds, who collect fines, summon juries, attend the
+assizes, and execute writs and processes. _The sheriff in England is the
+king's bailiff...._
+
+"_The office of bailiff formerly was high and honorable in England, and
+officers under that title on the continent are still invested with
+important functions._"--_Webster._
+
+"BAILLI, (Scotland.)--An alderman; a magistrate who is second in rank in
+a royal burgh."--_Worcester._
+
+"_Baili, or Bailiff._--(Sorte d'officier de justice.) A bailiff; a sort
+of magistrate."--_Boyer's French Dict._
+
+"By some opinions, a _bailiff_, in Magna Carta, ch. 28, signifies _any
+judge_."--_Cunningham's Law Dict._
+
+"BAILIFF.--In the court of the Greek emperors there was a grand
+_bajulos_, first tutor of the emperor's children. The superintendent of
+foreign merchants seems also to have been called _bajulos_; and, as he
+was appointed by the Venetians, this title (balio) was transferred to
+the Venetian ambassador. From Greece, the official _bajulos_
+(_ballivus_, _bailli_, in France; _bailiff_, in England,) was introduced
+into the south of Europe, and denoted a superintendent; hence the eight
+_ballivi_ of the knights of St. John, which constitute its supreme
+council. In France, the royal bailiffs were commanders of the militia,
+administrators or stewards of the domains, _and judges of their
+districts_. In the course of time, only the first duty remained to the
+bailiff; hence he was _bailli d'épée_, _and laws were administered in
+his name by a lawyer, as his deputy, lieutenant de robe_. The
+seigniories, with which high courts were connected, employed bailiffs,
+who thus constituted, almost everywhere, _the lowest order of judges_.
+From the courts of the nobility, the appellation passed to the royal
+courts; from thence to the parliaments. In the greater bailiwicks of
+cities of importance, Henry II. established a collegial constitution
+under the name of _presidial courts_.... _The name of bailiff was
+introduced into England with William I._ The counties were also called
+_bailiwicks_, (_ballivæ_,) while the subdivisions were called
+_hundreds_; but, as the courts of the hundreds have long since ceased,
+the English bailiffs are only a kind of subordinate officers of justice,
+like the French _huissiers_. These correspond very nearly to the
+officers called _constables_ in the United States. Every sheriff has
+some of them under him, for whom he is answerable. In some cities the
+highest municipal officer yet bears this name, as the high bailiff of
+Westminster. In London, the Lord Mayor is at the same time bailiff,
+(which title he bore before the present became usual,) _and administers,
+in this quality, the criminal jurisdiction of the city, in the court of
+old Bailey_, where there are, annually, eight sittings of the court, for
+the city of London and the county of Middlesex. _Usually, the recorder
+of London supplies his place as judge._ In some instances the term
+_bailiff_, in England, is applied to the chief magistrates of towns, or
+to the commanders of particular castles, as that of Dover. The term
+_baillie_, in Scotland, is applied to a judicial police-officer, having
+powers very similar to those of justices of peace in the United
+States."--_Encyclopædia Americana._]
+
+[Footnote 93: Perhaps it may be said (and such, it has already been
+seen, is the opinion of Coke and others) that the chapter of Magna
+Carta, that "no _bailiff_ from henceforth shall put any man to his open
+law, (put him on trial,) nor to an oath (that is, an oath of
+self-exculpation) upon his (the bailiff's) own accusation or testimony,
+without credible witnesses brought in to prove the charge," _is itself_
+a "provision in regard to the king's justices sitting in criminal
+trials," and therefore implies that _they are to sit_ in such trials.
+
+But, although the word _bailiff_ includes all _judicial_, as well as
+other, officers, and would therefore in this case apply to the king's
+justices, if they were to sit in criminal trials; yet this particular
+chapter of Magna Carta evidently does not contemplate "_bailiffs_" while
+acting in their _judicial_ capacity, (for they were not allowed to sit
+in criminal trials at all,) but only in the character of _witnesses_;
+and that the meaning of the chapter is, that the simple testimony
+(simplici loquela) of "no bailiff," (of whatever kind,) unsupported by
+other and "credible witnesses," shall be sufficient to put any man on
+trial, or to his oath of self-exculpation.[98]
+
+It will be noticed that the words of this chapter are _not_, "no bailiff
+_of ours_,"--that is, _of the king_,--as in some other chapters of Magna
+Carta; but simply "no bailiff," &c. The prohibition, therefore, applies
+to all "bailiffs,"--to those chosen by the people, as well as those
+appointed by the king. And the prohibition is obviously founded upon the
+idea (a very sound one in that age certainly, and probably also in this)
+that public officers (whether appointed by king or people) have
+generally, or at least frequently, too many interests and animosities
+against accused persons, to make it safe to convict any man on their
+testimony alone.
+
+The idea of Coke and others, that the object of this chapter was simply
+to forbid _magistrates_ to put a man on trial, when there were no
+witnesses against him, but only the simple accusation or testimony of
+the magistrates themselves, before whom he was to be tried, is
+preposterous; for that would be equivalent to supposing that magistrates
+acted in the triple character of judge, jury and witnesses, _in the same
+trial_; and that, therefore, _in such cases_, they needed to be
+prohibited from condemning a man on their own accusation or testimony
+alone. But such a provision would have been unnecessary and senseless,
+for two reasons; first, because the bailiffs or magistrates had no power
+to "hold pleas of the crown," still less to try or condemn a man; that
+power resting wholly with the juries; second, because if bailiffs or
+magistrates could try and condemn a man, without a jury, the prohibition
+upon their doing so upon their own accusation or testimony alone, would
+give no additional protection to the accused, so long as these same
+bailiffs or magistrates were allowed to decide what weight should be
+given, _both to their own testimony and that of other witnesses_; for,
+if they wished to convict, they would of course decide that any
+testimony, however frivolous or irrelevant, _in addition to their own_,
+was sufficient. Certainly a magistrate could always procure witnesses
+enough to testify to something or other, which _he himself_ could decide
+to be corroborative of his own testimony. And thus the prohibition would
+be defeated in fact, though observed in form.]
+
+[Footnote 94: In this chapter I have called the justices "_presiding_
+officers," solely for the want of a better term. They are not
+"_presiding_ officers," in the sense of having any authority over the
+jury; but are only assistants to, and teachers and servants of, the
+jury. The foreman of the jury is properly the "presiding officer," so
+far as there is such an officer at all. The sheriff has no authority
+except over other persons than the jury.]
+
+[Footnote 95: In this extract, Palgrave seems to assume that the king
+himself had a right to sit as judge, in _jury_ trials, in the _county_
+courts, in both civil and criminal cases. I apprehend he had no such
+power at the _common law_, but only to sit in the trial of appeals, and
+in the trial of peers, and of civil suits in which peers were parties,
+and possibly in the courts of ancient demesne.]
+
+[Footnote 96: _Alderman_ was a title anciently given to various
+_judicial_ officers, as the Alderman of all England, Alderman of the
+King, Alderman of the County, Alderman of the City or Borough, Alderman
+of the Hundred or Wapentake. These were all _judicial_ officers. See Law
+Dictionaries.]
+
+[Footnote 97: "_Ban and arriere ban_, a proclamation, whereby all that
+hold lands of the crown, (except some privileged officers and citizens,)
+are summoned to meet at a certain place in order to serve the king in
+his wars, either personally, or by proxy."--_Boyer._]
+
+[Footnote 98: At the common law, parties, in both civil and criminal
+cases, were allowed to swear in their own behalf; and it will be so
+again, if the true trial by jury should be reëstablished.]
+
+
+
+
+CHAPTER VIII.
+
+THE FREE ADMINISTRATION OF JUSTICE.
+
+
+The free administration of justice was a principle of the common law;
+and it must necessarily be a part of every system of government which is
+not designed to be an engine in the hands of the rich for the oppression
+of the poor.
+
+In saying that the free administration of justice was a principle of the
+common law, I mean only that parties were subjected to no costs for
+jurors, witnesses, writs, or other necessaries for the trial,
+_preliminary to the trial itself_. Consequently, no one could lose the
+benefit of a trial, for the want of means to defray expenses. _But after
+the trial_, the plaintiff or defendant was liable to be amerced, (by the
+jury, of course,) for having troubled the court with the prosecution or
+defence of an unjust suit.[99] But it is not likely that the losing
+party was subjected to an amercement as a matter of course, but only in
+those cases where the injustice of his cause was so evident as to make
+him inexcusable in bringing it before the courts.
+
+All the freeholders were required to attend the courts, that they might
+serve as jurors and witnesses, and do any other service that could
+legally be required of them; and their attendance was paid for by the
+state. In other words, their attendance and service at the courts were
+part of the rents which they paid the state for their lands.
+
+The freeholders, who were thus required always to attend the courts,
+were doubtless the only witnesses who were _usually_ required in _civil_
+causes. This was owing to the fact that, in those days, when the people
+at large could neither write nor read, few contracts were put in
+writing. The expedient adopted for proving contracts, was that of making
+them in the presence of witnesses, who could afterwards testify to the
+transactions. Most contracts in regard to lands were made at the courts,
+in the presence of the freeholders there assembled.[100]
+
+In the king's courts it was specially provided by Magna Carta that
+"justice and right" should not be "sold;" that is, that the king should
+take nothing from the parties for administering justice.
+
+The oath of a party to the justice of his cause was all that was
+necessary to entitle him to the benefit of the courts free of all
+expense; (except the risk of being amerced after the trial, in case the
+jury should think he deserved it.[101])
+
+_This principle of the free administration of justice connects itself
+necessarily with the trial by jury, because a jury could not rightfully
+give judgment against any man, in either a civil or criminal case, if
+they had any reason to suppose he had been unable to procure his
+witnesses._
+
+The true trial by jury would also compel the free administration of
+justice from another necessity, viz., that of preventing private
+quarrels; because, unless the government enforced a man's rights and
+redressed his wrongs, _free of expense to him_, a jury would be bound to
+protect him in taking the law into his own hands. A man has a natural
+right to enforce his own rights and redress his own wrongs. If one man
+owe another a debt, and refuse to pay it, the creditor has a natural
+right to seize sufficient property of the debtor, wherever he can find
+it, to satisfy the debt. If one man commit a trespass upon the person,
+property or character of another, the injured party has a natural right,
+either to chastise the aggressor, or to take compensation for the injury
+out of his property. But as the government is an impartial party as
+between these individuals, it is more likely to do _exact_ justice
+between them than the injured individual himself would do. The
+government, also, having more power at its command, is likely to right a
+man's wrongs more peacefully than the injured party himself could do it.
+If, therefore, the government will do the work of enforcing a man's
+rights, and redressing his wrongs, _promptly, and free of expense to
+him_, he is under a moral obligation to leave the work in the hands of
+the government; but not otherwise. When the government forbids him to
+enforce his own rights or redress his own wrongs, and deprives him of
+all means of obtaining justice, except on the condition of his employing
+the government to obtain it for him, _and of paying the government for
+doing it_, the government becomes itself the protector and accomplice of
+the wrong-doer. If the government will forbid a man to protect his own
+rights, it is bound to do it for him, _free of expense to him_. And so
+long as government refuses to do this, juries, if they knew their
+duties, would protect a man in defending his own rights.
+
+Under the prevailing system, probably one half of the community are
+virtually deprived of all protection for their rights, except what the
+criminal law affords them. Courts of justice, for all civil suits, are
+as effectually shut against them, as though it were done by bolts and
+bars. Being forbidden to maintain their own rights by force,--as, for
+instance, to compel the payment of debts,--and being unable to pay the
+expenses of civil suits, they have no alternative but submission to many
+acts of injustice, against which the government is bound either to
+protect them, _free of expense_, or allow them to protect themselves.
+
+There would be the same reason in compelling a party to pay the judge
+and jury for their services, that there is in compelling him to pay the
+witnesses, or any other _necessary_ charges.[102]
+
+This compelling parties to pay the expenses of civil suits is one of the
+many cases in which government is false to the fundamental principles on
+which free government is based. What is the object of government, but to
+protect men's rights? On what principle does a man pay his taxes to the
+government, except on that of contributing his proportion towards the
+necessary cost of protecting the rights of all? Yet, when his own rights
+are actually invaded, the government, which he contributes to support,
+instead of fulfilling its implied contract, becomes his enemy, and not
+only refuses to protect his rights, (except at his own cost,) but even
+forbids him to do it himself.
+
+All free government is founded on the theory of voluntary association;
+and on the theory that all the parties to it _voluntarily_ pay their
+taxes for its support, on the condition of receiving protection in
+return. But the idea that any _poor_ man would voluntarily pay taxes to
+build up a government, which will neither protect his rights, (except at
+a cost which he cannot meet,) nor suffer himself to protect them by such
+means as may be in his power, is absurd.
+
+Under the prevailing system, a large portion of the lawsuits determined
+in courts, are mere contests of purses rather than of rights. And a
+jury, sworn to decide causes "according to the evidence" produced, are
+quite likely, _for aught they themselves can know_, to be deciding
+merely the comparative length of the parties' purses, rather than the
+intrinsic strength of their respective rights. Jurors ought to refuse to
+decide a cause at all, except upon the assurance that all the evidence,
+necessary to a full knowledge of the cause, is produced. This assurance
+they can seldom have, unless the government itself produces all the
+witnesses the parties desire.
+
+In criminal cases, the atrocity of accusing a man of crime, and then
+condemning him unless he prove his innocence at his own charges, is so
+evident that a jury could rarely, if ever, be justified in convicting a
+man under such circumstances.
+
+But the free administration of justice is not only indispensable to the
+maintenance of right between man and man; it would also promote
+simplicity and stability in the laws. The mania for legislation would
+be, in an important degree, restrained, if the government were compelled
+to pay the expenses of all the suits that grew out of it.
+
+The free administration of justice would diminish and nearly extinguish
+another great evil,--that of malicious _civil_ suits. It is an old
+saying, that "_multi litigant in foro, non ut aliquid lucrentur, sed ut
+vexant alios_." (Many litigate in court, not that they may gain
+anything, but that they may harass others.) Many men, from motives of
+revenge and oppression, are willing to spend their own money in
+prosecuting a groundless suit, if they can thereby compel their victims,
+who are less able than themselves to bear the loss, to spend money in
+the defence. Under the prevailing system, in which the parties pay the
+expenses of their suits, nothing but money is necessary to enable any
+malicious man to commence and prosecute a groundless suit, to the
+terror, injury, and perhaps ruin, of another man. In this way, a court
+of justice, into which none but a conscientious _plaintiff_ certainly
+should ever be allowed to enter, becomes an arena into which any rich
+and revengeful oppressor may drag any man poorer than himself, and
+harass, terrify, and impoverish him, to almost any extent. It is a
+scandal and an outrage, that government should suffer itself to be made
+an instrument, in this way, for the gratification of private malice. We
+might nearly as well have no courts of justice, as to throw them open,
+as we do, for such flagitious uses. Yet the evil probably admits of no
+remedy except a free administration of justice. Under a free system,
+plaintiffs could rarely be influenced by motives of this kind; because
+they could put their victim to little or no expense, _neither pending
+the suit_, (which it is the object of the oppressor to do,) nor at its
+termination. Besides, if the ancient common law practice should be
+adopted, of amercing a party for troubling the courts with groundless
+suits, the prosecutor himself would, in the end, be likely to be amerced
+by the jury, in such a manner as to make courts of justice a very
+unprofitable place for a man to go to seek revenge.
+
+In estimating the evils of this kind, resulting from the present system,
+we are to consider that they are not, by any means, confined to the
+actual suits in which this kind of oppression is practised; but we are
+to include all those cases in which the fear of such oppression is used
+as a weapon to compel men into a surrender of their rights.
+
+[Footnote 99: _2 Sullivan Lectures_, 234-5. _3 Blackstone_, 274-5, 376.
+Sullivan says that both plaintiffs and defendants were liable to
+amercement. Blackstone speaks of plaintiffs being liable, without saying
+whether defendants were so or not. What the rule really was I do not
+know. There would seem to be some reason in allowing defendants to
+defend themselves, _at their own charges_, without exposing themselves
+to amercement in case of failure.]
+
+[Footnote 100: When any other witnesses than freeholders were required
+in a civil suit, I am not aware of the manner in which their attendance
+was procured; but it was doubtless done at the expense either of the
+state or of the witnesses themselves. And it was doubtless the same in
+criminal cases.]
+
+[Footnote 101: "All claims were established in the first stage by the
+oath of the plaintiff, except when otherwise specially directed by the
+law. The oath, by which any claim was supported, was called the
+fore-oath, or 'Præjuramentum,' and it was the foundation of his suit.
+One of the cases which did not require this initiatory confirmation, was
+when cattle could be tracked into another man's land, and then the
+foot-mark stood for the fore-oath."--_2 Palgrave's Rise and Progress_,
+&c., 114.]
+
+[Footnote 102: Among the necessary expenses of suits, should be reckoned
+reasonable compensation to counsel, for they are nearly or quite as
+important to the administration of justice, as are judges, jurors, or
+witnesses; and the universal practice of employing them, both on the
+part of governments and of private persons, shows that their importance
+is generally understood. As a mere matter of economy, too, it would be
+wise for the government to pay them, rather than they should not be
+employed; because they collect and arrange the testimony and the law
+beforehand, so as to be able to present the whole case to the court and
+jury intelligibly, and in a short space of time. Whereas, if they were
+not employed, the court and jury would be under the necessity either of
+spending much more time than now in the investigation of causes, or of
+despatching them in haste, and with little regard to justice. They would
+be very likely to do the latter, thus defeating the whole object of the
+people in establishing courts.
+
+To prevent the abuse of this right, it should perhaps be left
+discretionary with the jury in each case to determine whether the
+counsel should receive any pay--and, if any, how much--from the
+government.]
+
+
+
+
+CHAPTER IX.
+
+THE CRIMINAL INTENT.
+
+
+It is a maxim of the common law that there can be no crime without a
+criminal intent. And it is a perfectly clear principle, although one
+which judges have in a great measure overthrown in practice, that
+_jurors_ are to judge of the moral intent of an accused person, and hold
+him guiltless, whatever his act, unless they find him to have acted with
+a criminal intent; that is, with a design to do what he knew to be
+criminal.
+
+This principle is clear, because the question for a jury to determine
+is, whether the accused be _guilty_, or _not guilty_. _Guilt_ is a
+personal quality of the actor,--not _necessarily_ involved in the act,
+but depending also upon the intent or motive with which the act was
+done. Consequently, the jury must find that he acted from a criminal
+motive, before they can declare him _guilty_.
+
+There is no moral justice in, nor any political necessity for, punishing
+a man for any act whatever that he may have committed, if he have done
+it without any criminal intent. There can be no _moral justice_ in
+punishing for such an act, because, there having been no _criminal
+motive_, there can have been no other motive which justice can take
+cognizance of, as demanding or justifying punishment. There can be no
+_political necessity_ for punishing, to warn against similar acts in
+future, because, if one man have injured another, however
+unintentionally, he is liable, and justly liable, to a _civil_ suit for
+damages; and in this suit he will be compelled to make compensation for
+the injury, notwithstanding his innocence of any intention to injure. He
+must bear the consequences of his own act, instead of throwing them upon
+another, however innocent he may have been of any intention to do
+wrong. And the damages he will have to pay will be a sufficient warning
+to him not to do the like act again.
+
+If it be alleged that there are crimes against the public, (as treason,
+for example, or any other resistance to government,) for which private
+persons can recover no damages, and that there is a political necessity
+for punishing for such offences, even though the party acted
+conscientiously, the answer is,--the government must bear with all
+resistance that is not so clearly wrong as to give evidence of criminal
+intent. In other words, the government, in all its acts, must keep
+itself so _clearly_ within the limits of justice, as that twelve men,
+taken at random, will all agree that it is in the right, or it must
+incur the risk of resistance, without any power to punish it. This is
+the mode in which the trial by jury operates to prevent the government
+from falling into the hands of a party, or a faction, and to keep it
+within such limits as _all_, or substantially _all_, the people are
+agreed that it may occupy.
+
+This necessity for a criminal intent, to justify conviction, is proved
+by the issue which the jury are to try, and the verdict they are to
+pronounce. The "issue" they are to try is, "_guilty_" or "_not guilty_."
+And those are the terms they are required to use in rendering their
+verdicts. But it is a plain falsehood to say that a man is "_guilty_,"
+unless he have done an act which he knew to be criminal.
+
+This necessity for a criminal intent--in other words, for _guilt_--as a
+preliminary to conviction, makes it impossible that a man can be
+rightfully convicted for an act that is intrinsically innocent, though
+forbidden by the government; because guilt is an intrinsic quality of
+actions and motives, and not one that can be imparted to them by
+arbitrary legislation. All the efforts of the government, therefore, to
+"_make offences by statute_," out of acts that are not criminal by
+nature, must necessarily be ineffectual, unless a jury will declare a
+man "_guilty_" for an act that is really innocent.
+
+The corruption of judges, in their attempts to uphold the arbitrary
+authority of the government, by procuring the conviction of individuals
+for acts innocent in themselves, and forbidden only by some tyrannical
+statute, and the commission of which therefore indicates no criminal
+intent, is very apparent.
+
+To accomplish this object, they have in modern times held it to be
+unnecessary that indictments should charge, as by the common law they
+were required to do, that an act was done "_wickedly_," "_feloniously_,"
+"_with malice aforethought_," or in any other manner that implied a
+criminal intent, without which there can be no criminality; but that it
+is sufficient to charge simply that it was done "_contrary to the form
+of the statute in such case made and provided_." This form of indictment
+proceeds plainly upon the assumption that the government is absolute,
+and that it has authority to prohibit any act it pleases, however
+innocent in its nature the act may be. Judges have been driven to the
+alternative of either sanctioning this new form of indictment, (which
+they never had any constitutional right to sanction,) or of seeing the
+authority of many of the statutes of the government fall to the ground;
+because the acts forbidden by the statutes were so plainly innocent in
+their nature, that even the government itself had not the face to allege
+that the commission of them implied or indicated any criminal intent.
+
+To get rid of the necessity of showing a criminal intent, and thereby
+further to enslave the people, by reducing them to the necessity of a
+blind, unreasoning submission to the arbitrary will of the government,
+and of a surrender of all right, on their own part, to judge what are
+their constitutional and natural rights and liberties, courts have
+invented another idea, which they have incorporated among the pretended
+_maxims_, upon which they act in criminal trials, viz., that "_ignorance
+of the law excuses no one_." As if it were in the nature of things
+possible that there could be an excuse more absolute and complete. What
+else than ignorance of the law is it that excuses persons under the
+years of discretion, and men of imbecile minds? What else than ignorance
+of the law is it that excuses judges themselves for all their erroneous
+decisions? Nothing. They are every day committing errors, which would be
+crimes, but for their ignorance of the law. And yet these same judges,
+who claim to be _learned_ in the law, and who yet could not hold their
+offices for a day, but for the allowance which the law makes for their
+ignorance, are continually asserting it to be a "maxim" that "ignorance
+of the law excuses no one;" (by which, of course, they really mean that
+it excuses no one but themselves; and especially that it excuses no
+_unlearned_ man, who comes before them charged with crime.)
+
+This preposterous doctrine, that "ignorance of the law excuses no one,"
+is asserted by courts because it is an indispensable one to the
+maintenance of absolute power in the government. It is indispensable for
+this purpose, because, if it be once admitted that the people _have_ any
+rights and liberties which the government cannot lawfully take from
+them, then the question arises in regard to every statute of the
+government, whether it be law, or not; that is, whether it infringe, or
+not, the rights and liberties of the people. Of this question every man
+must of course judge according to the light in his own mind. And no man
+can be convicted unless the jury find, not only that the statute is
+_law_,--that it does _not_ infringe the rights and liberties of the
+people,--but also that it was so clearly law, so clearly consistent with
+the rights and liberties of the people, as that the individual himself,
+who transgressed it, _knew it to be so_, and therefore had no moral
+excuse for transgressing it. Governments see that if ignorance of the
+law were allowed to excuse a man for any act whatever, it must excuse
+him for transgressing all statutes whatsoever, which he himself thinks
+inconsistent with his rights and liberties. But such a doctrine would of
+course be inconsistent with the maintenance of arbitrary power by the
+government; and hence governments will not allow the plea, although they
+will not confess their true reasons for disallowing it.
+
+The only reasons, (if they deserve the name of reasons), that I ever
+knew given for the doctrine that ignorance of the law excuses no one,
+are these:
+
+   1. "The reason for the maxim is that of necessity. It prevails, 'not
+   that all men know the law, but because it is an excuse which every
+   man will make, and no man can tell how to confute him.'--_Selden_,
+   (as quoted in the 2d edition of _Starkie on Slander_, Prelim. Disc.,
+   p. 140, note.)"--_Law Magazine_, (_London_,) vol. 27, p. 97.
+
+This reason impliedly admits that ignorance of the law is,
+_intrinsically_, an ample and sufficient excuse for a crime; and that
+the excuse ought to be allowed, if the fact of ignorance could but be
+ascertained. But it asserts that this fact is incapable of being
+ascertained, and that therefore there is a necessity for punishing the
+ignorant and the knowing--that is, the innocent and the guilty--without
+discrimination.
+
+This reason is worthy of the doctrine it is used to uphold; as if a plea
+of ignorance, any more than any other plea, must necessarily be believed
+simply because it is urged; and as if it were not a common and every-day
+practice of courts and juries, in both civil and criminal cases, to
+determine the mental capacity of individuals; as, for example, to
+determine whether they are of sufficient mental capacity to make
+reasonable contracts; whether they are lunatic; whether they are
+_compotes mentis_, "of sound mind and memory," &c. &c. And there is
+obviously no more difficulty in a jury's determining whether an accused
+person knew the law in a criminal case, than there is in determining any
+of these other questions that are continually determined in regard to a
+man's mental capacity. For the question to be settled by the jury is not
+whether the accused person knew the particular _penalty_ attached to his
+act, (for at common law no one knew what penalty a _jury_ would attach
+to an offence,) but whether he knew that his act was _intrinsically
+criminal_. If it were _intrinsically criminal_, it was criminal at
+common law. If it was not intrinsically criminal, it was not criminal at
+common law. (At least, such was the general principle of the common law.
+There may have been exceptions in practice, owing to the fact that the
+opinions of men, as to what was intrinsically criminal, may not have
+been in all cases correct.)
+
+A jury, then, in judging whether an accused person knew his act to be
+illegal, were bound first to use their own judgments, as to whether the
+act were _intrinsically_ criminal. If their own judgments told them the
+act was _intrinsically_ and _clearly_ criminal, they would naturally and
+reasonably infer that the accused also understood that it was
+intrinsically criminal, (and consequently illegal,) unless it should
+appear that he was either below themselves in the scale of intellect, or
+had had less opportunities of knowing what acts were criminal. In
+short, they would judge, from any and every means they might have of
+judging; and if they had any reasonable doubt that he knew his act to be
+criminal in itself, they would be bound to acquit him.
+
+The second reason that has been offered for the doctrine that ignorance
+of the law excuses no one, is this:
+
+   "Ignorance of the municipal law of the kingdom, or of the penalty
+   thereby inflicted on offenders, doth not excuse any that is of the
+   age of discretion and compos mentis, from the penalty of the breach
+   of it; because every person, of the age of discretion and compos
+   mentis, _is bound to know the law_, and presumed to do so.
+   _Ignorantia eorum, quæ quis scire tenetur non excusat_." (Ignorance
+   of those things which every one is bound to know, does not
+   excuse.)--_1 Hale's Pleas of the Crown_, 42. _Doctor and Student,
+   Dialog. 2_, ch. 46. _Law Magazine_, (_London_,) vol. 27, p. 97.
+
+The sum of this reason is, that ignorance of the law excuses no one,
+(who is of the age of discretion and is compos mentis,) because every
+such person "_is bound to know the law_." But this is giving no reason
+at all for the doctrine, since saying that a man "is bound to know the
+law," is only saying, _in another form_, that "ignorance of the law does
+not excuse him." There is no difference at all in the two ideas. To say,
+therefore, that "ignorance of the law excuses no one, _because_ every
+one is bound to know the law," is only equivalent to saying that
+"ignorance of the law excuses no one, _because_ ignorance of the law
+excuses no one." It is merely reässerting the doctrine, without giving
+any reason at all.
+
+And yet these reasons, which are really no reasons at all, are the only
+ones, so far as I know, that have ever been offered for this absurd and
+brutal doctrine.
+
+The idea suggested, that "the age of discretion" determines the guilt of
+a person,--that there is a particular age, prior to which _all_ persons
+alike should be held incapable of knowing _any_ crime, and subsequent to
+which _all_ persons alike should be held capable of knowing _all_
+crimes,--is another of this most ridiculous nest of ideas. All mankind
+acquire their knowledge of crimes, as they do of other things,
+_gradually_. Some they learn at an early age; others not till a later
+one. One individual acquires a knowledge of crimes, as he does of
+arithmetic, at an earlier age than others do. And to apply the same
+presumption to all, on the ground of age alone, is not only gross
+injustice, but gross folly. A universal presumption might, with nearly
+or quite as much reason, be founded upon weight, or height, as upon
+age.[103]
+
+This doctrine, that "ignorance of the law excuses no one," is constantly
+repeated in the form that "every one is bound to know the law." The
+doctrine is true in civil matters, especially in contracts, so far as
+this: that no man, who has the _ordinary_ capacity to make reasonable
+contracts, can escape the consequences of his own agreement, on the
+ground that he did not know the law applicable to it. When a man makes a
+contract, he gives the other party rights; and he must of necessity
+judge for himself, and take his own risk, as to what those rights
+are,--otherwise the contract would not be binding, and men could not
+make contracts that would convey rights to each other. Besides, the
+capacity to make reasonable contracts, _implies and includes_ a
+capacity to form a reasonable judgment as to the law applicable to them.
+But in _criminal_ matters, where the question is one of punishment, or
+not; where no second party has acquired any right to have the crime
+punished, unless it were committed with criminal intent, (but only to
+have it compensated for by damages in a civil suit;) and when the
+criminal intent is the only moral justification for the punishment, the
+principle does not apply, and a man is bound to know the law _only as
+well as he reasonably may_. The criminal law requires neither
+impossibilities nor extraordinaries of any one. It requires only
+thoughtfulness and a good conscience. It requires only that a man fairly
+and properly use the judgment he possesses, and the means he has of
+learning his duty. It requires of him only the same care to know his
+duty in regard to the law, that he is morally bound to use in other
+matters of equal importance. _And this care it does require of him._ Any
+ignorance of the law, therefore, that is unnecessary, or that arises
+from indifference or disregard of one's duty, is no excuse. An accused
+person, therefore, may be rightfully held responsible for such a
+knowledge of the law as is common to men in general, having no greater
+natural capacities than himself, and no greater opportunities for
+learning the law. And he can rightfully be held to no greater knowledge
+of the law than this. To hold him responsible for a greater knowledge of
+the law than is common to mankind, when other things are equal, would be
+gross injustice and cruelty. The mass of mankind can give but little of
+their attention to acquiring a knowledge of the law. Their other duties
+in life forbid it. Of course, they cannot investigate abstruse or
+difficult questions. All that can rightfully be required of each of
+them, then, is that he exercise such a candid and conscientious judgment
+as it is common for mankind generally to exercise in such matters. If he
+have done this, it would be monstrous to punish him criminally for his
+errors; errors not of conscience, but only of judgment. It would also be
+contrary to the first principles of a free government (that is, a
+government formed by voluntary association) to punish men in such cases,
+because it would be absurd to suppose that any man would voluntarily
+assist to establish or support a government that would punish himself
+for acts which he himself did not know to be crimes. But a man may
+reasonably unite with his fellow-men to maintain a government to punish
+those acts which he himself considers criminal, and may reasonably
+acquiesce in his own liability to be punished for such acts. As those
+are the only grounds on which any one can be supposed to render any
+voluntary support to a government, it follows that a government formed
+by voluntary association, and of course having no powers except such as
+_all_ the associates have consented that it may have, can have no power
+to punish a man for acts which he did not himself know to be criminal.
+
+The safety of society, which is the only object of the criminal law,
+requires only that those acts _which are understood by mankind at large
+to be intrinsically criminal_, should be punished as crimes. The
+remaining few (if there are any) may safely be left to go unpunished.
+Nor does the safety of society require that any individuals, other than
+those who have sufficient mental capacity to understand that their acts
+are criminal, should be criminally punished. All others may safely be
+left to their liability, under the _civil_ law, to compensate for their
+unintentional wrongs.
+
+The only real object of this absurd and atrocious doctrine, that
+"ignorance of the law (that is, of crime) excuses no one," and that
+"every one is bound to know the _criminal_ law," (that is, bound to know
+what is a crime,) is to maintain an entirely arbitrary authority on the
+part of the government, and to deny to the people all right to judge for
+themselves what their own rights and liberties are. In other words, the
+whole object of the doctrine is to deny to the people themselves all
+right to judge what statutes and other acts of the government are
+consistent or inconsistent with their own rights and liberties; and thus
+to reduce the people to the condition of mere slaves to a despotic
+power, such as the people themselves would never have voluntarily
+established, and the justice of whose laws the people themselves cannot
+understand.
+
+Under the true trial by jury all tyranny of this kind would be
+abolished. A jury would not only judge what acts were really criminal,
+but they would judge of the mental capacity of an accused person, and of
+his opportunities for understanding the true character of his conduct.
+In short, they would judge of his moral intent from all the
+circumstances of the case, and acquit him, if they had any reasonable
+doubt that he knew that he was committing a crime.[104]
+
+[Footnote 103: This presumption, founded upon age alone, is as absurd in
+civil matters as in criminal. What can be more entirely ludicrous than
+the idea that all men (not manifestly imbecile) become mentally
+competent to make all contracts whatsoever on the day they become
+twenty-one years of age?--and that, previous to that day, no man becomes
+competent to make any contract whatever, except for the present supply
+of the most obvious wants of nature? In reason, a man's _legal_
+competency to make _binding_ contracts, in any and every case whatever,
+depends wholly upon his _mental_ capacity to make _reasonable_ contracts
+in each particular case. It of course requires more capacity to make a
+reasonable contract in some cases than in others. It requires, for
+example, more capacity to make a reasonable contract in the purchase of
+a large estate, than in the purchase of a pair of shoes. But the mental
+capacity to make a reasonable contract, in any particular case, is, in
+reason, the only legal criterion of the legal competency to make a
+binding contract in that case. The age, whether more or less than
+twenty-one years, is of no legal consequence whatever, except that it is
+entitled to some consideration as _evidence of capacity_.
+
+It may be mentioned, in this connection, that the rules that prevail,
+that every man is entitled to freedom from parental authority at
+twenty-one years of age, and no one before that age, are of the same
+class of absurdities with those that have been mentioned. The only
+ground on which a parent is ever entitled to exercise authority over his
+child, is that the child is incapable of taking reasonable care of
+himself. The child would be entitled to his freedom from his birth, if
+he were at that time capable of taking reasonable care of himself. Some
+become capable of taking care of themselves at an earlier age than
+others. And whenever any one becomes capable of taking reasonable care
+of himself, and not until then, he is entitled to his freedom, be his
+age more or less.
+
+These principles would prevail under the true trial by jury, the jury
+being the judges of the capacity of every individual whose capacity
+should be called in question.]
+
+[Footnote 104: In contrast to the doctrines of the text, it may be
+proper to present more distinctly the doctrines that are maintained by
+judges, and that prevail in courts of justice.
+
+Of course, no judge, either of the present day, or perhaps within the
+last five hundred years, has admitted the right of a jury to judge of
+the _justice_ of a law, or to hold any law invalid for its injustice.
+Every judge asserts the power of the government to punish for acts that
+are intrinsically innocent, and which therefore involve or evince no
+criminal intent. To accommodate the administration of law to this
+principle, all judges, so far as I am aware, hold it to be unnecessary
+that an indictment should charge, or that a jury should find, that an
+act was done with a criminal intent, except in those cases where the act
+is _malum in se_,--criminal in itself. In all other cases, so far as I
+am aware, they hold it sufficient that the indictment charge, and
+consequently that the jury find, simply that the act was done "contrary
+to the form of the statute in such case made and provided;" in other
+words, contrary to the orders of the government.
+
+All these doctrines prevail universally among judges, and are, I think,
+uniformly practised upon in courts of justice; and they plainly involve
+the most absolute despotism on the part of the government.
+
+But there is still another doctrine that extensively, and perhaps most
+generally, prevails in practice, although judges are not agreed in
+regard to its soundness. It is this: that it is not even necessary that
+the jury should see or know, _for themselves_, what the law _is_ that is
+charged to have been violated; nor to see or know, _for themselves_,
+that the act charged was in violation of any law whatever;--but that it
+is sufficient that they be simply _told by the judge_ that any act
+whatever, charged in an indictment, is in violation of law, and that
+they are then bound blindly to receive the declaration as true, and
+convict a man accordingly, if they find that he has done the act
+charged.
+
+This doctrine is adopted by many among the most eminent judges, and the
+reasons for it are thus given by Lord Mansfield:
+
+   "They (the jury) do not know, and are not presumed to know, the law.
+   They are not sworn to decide the law;[105] they are not required to
+   do it.... The jury ought not to assume the jurisdiction of law. They
+   do not know, and are not presumed to know, anything of the matter.
+   They do not understand the language in which it is conceived, or the
+   meaning of the terms. They have no rule to go by but their passions
+   and wishes."--_3 Term Rep._, 428, note.
+
+What is this but saying that the people, who are supposed to be
+represented in juries, and who institute and support the government, (of
+course for the protection of their own rights and liberties, _as they
+understand them_, for plainly no other motive can be attributed to
+them,) are really the slaves of a despotic power, whose arbitrary
+commands even they are not supposed competent to understand, but for the
+transgression of which they are nevertheless to be punished as
+criminals?
+
+This is plainly the sum of the doctrine, because the jury are the peers
+(equals) of the accused, and are therefore supposed to know the law as
+well as he does, and as well as it is known by the people at large. If
+_they_ (the jury) are not presumed to know the law, neither the accused
+nor the people at large can be presumed to know it. Hence, it follows
+that one principle of the _true_ trial by jury is, that no accused
+person shall be held responsible for any other or greater knowledge of
+the law than is common to his political equals, who will generally be
+men of nearly similar condition in life. But the doctrine of Mansfield
+is, that the body of the people, from whom jurors are taken, are
+responsible to a law, _which it is agreed they cannot understand_. What
+is this but despotism?--and not merely despotism, but insult and
+oppression of the intensest kind?
+
+This doctrine of Mansfield is the doctrine of all who deny the right of
+juries to judge of the law, although all may not choose to express it in
+so blunt and unambiguous terms. But the doctrine evidently admits of no
+other interpretation or defence.]
+
+[Footnote 105: This declaration of Mansfield, that juries in England
+"are not sworn to decide the law" in criminal cases, is a plain
+falsehood. They are sworn to try the whole case at issue between the
+king and the prisoner, and that includes the law as well as the fact.
+See _juror's oath_, page 86.]
+
+
+
+
+CHAPTER X.
+
+MORAL CONSIDERATIONS FOR JURORS.
+
+
+The trial by jury must, if possible, be construed to be such that a man
+can rightfully sit in a jury, and unite with his fellows in giving
+judgment. But no man can rightfully do this, unless he hold in his own
+hand alone a veto upon any judgment or sentence whatever to be rendered
+by the jury against a defendant, which veto he must be permitted to use
+according to his own discretion and conscience, and not bound to use
+according to the dictation of either legislatures or judges.
+
+The prevalent idea, that a juror may, at the mere dictation of a
+legislature or a judge, and without the concurrence of his own
+conscience or understanding, declare a man "_guilty_," and thus in
+effect license the government to punish him; and that the legislature or
+the judge, and not himself, has in that case all the moral
+responsibility for the correctness of the principles on which the
+judgment was rendered, is one of the many gross impostures by which it
+could hardly have been supposed that any sane man could ever have been
+deluded, but which governments have nevertheless succeeded in inducing
+the people at large to receive and act upon.
+
+As a moral proposition, it is perfectly self-evident that, unless juries
+have all the legal rights that have been claimed for them in the
+preceding chapters,--that is, the rights of judging what the law is,
+whether the law be a just one, what evidence is admissible, what weight
+the evidence is entitled to, whether an act were done with a criminal
+intent, and the right also to _limit_ the sentence, free of all
+dictation from any quarter,--they have no _moral_ right to sit in the
+trial at all, and cannot do so without making themselves accomplices in
+any injustice that they may have reason to believe may result from
+their verdict. It is absurd to say that they have no moral
+responsibility for the use that may be made of their verdict by the
+government, when they have reason to suppose it will be used for
+purposes of injustice.
+
+It is, for instance, manifestly absurd to say that jurors have no moral
+responsibility for the enforcement of an unjust law, when they consent
+to render a verdict of _guilty_ for the transgression of it; which
+verdict they know, or have good reason to believe, will be used by the
+government as a justification for inflicting a penalty.
+
+It is absurd, also, to say that jurors have no moral responsibility for
+a punishment inflicted upon a man _against law_, when, at the dictation
+of a judge as to what the law is, they have consented to render a
+verdict against their own opinions of the law.
+
+It is absurd, too, to say that jurors have no moral responsibility for
+the conviction and punishment of an innocent man, when they consent to
+render a verdict against him on the strength of evidence, or laws of
+evidence, dictated to them by the court, if any evidence or laws of
+evidence have been excluded, which _they_ (the jurors) think ought to
+have been admitted in his defence.
+
+It is absurd to say that jurors have no moral responsibility for
+rendering a verdict of "_guilty_" against a man, for an act which he did
+not know to be a crime, and in the commission of which, therefore, he
+could have had no criminal intent, in obedience to the instructions of
+courts that "ignorance of the law (that is, of crime) excuses no one."
+
+It is absurd, also, to say that jurors have no moral responsibility for
+any cruel or unreasonable _sentence_ that may be inflicted even upon a
+_guilty_ man, when they consent to render a verdict which they have
+reason to believe will be used by the government as a justification for
+the infliction of such sentence.
+
+The consequence is, that jurors must have the whole case in their hands,
+and judge of law, evidence, and sentence, or they incur the moral
+responsibility of accomplices in any injustice which they have reason to
+believe will be done by the government on the authority of their
+verdict.
+
+The same principles apply to civil cases as to criminal. If a jury
+consent, at the dictation of the court, as to either law or evidence, to
+render a verdict, on the strength of which they have reason to believe
+that a man's property will be taken from him and given to another,
+against their own notions of justice, they make themselves morally
+responsible for the wrong.
+
+Every man, therefore, ought to refuse to sit in a jury, and to take the
+oath of a juror, unless the form of the oath be such as to allow him to
+use his own judgment, on every part of the case, free of all dictation
+whatsoever, and to hold in his own hand a veto upon any verdict that can
+be rendered against a defendant, and any sentence that can be inflicted
+upon him, even if he be guilty.
+
+Of course, no man can rightfully take an oath as juror, to try a case
+"according to law," (if by law be meant anything other than his own
+ideas of justice,) nor "according to the law and the evidence, _as they
+shall be given him_." Nor can he rightfully take an oath even to try a
+case "_according to the evidence_," because in all cases he may have
+good reason to believe that a party has been unable to produce all the
+evidence legitimately entitled to be received. The only oath which it
+would seem that a man can rightfully take as juror, in either a civil or
+criminal case, is, that he "will try the case _according to his
+conscience_." Of course, the form may admit of variation, but this
+should be the substance. Such, we have seen, were the ancient common law
+oaths.
+
+
+
+
+CHAPTER XI.
+
+AUTHORITY OF MAGNA CARTA.
+
+
+Probably no political compact between king and people was ever entered
+into in a manner to settle more authoritatively the fundamental law of a
+nation, than was Magna Carta. Probably no people were ever more united
+and resolute in demanding from their king a definite and unambiguous
+acknowledgment of their rights and liberties, than were the English at
+that time. Probably no king was ever more completely stripped of all
+power to maintain his throne, and at the same time resist the demands of
+his people, than was John on the 15th day of June, 1215. Probably no
+king ever consented, more deliberately or explicitly, to hold his throne
+subject to specific and enumerated limitations upon his power, than did
+John when he put his seal to the Great Charter of the Liberties of
+England. And if any political compact between king and people was ever
+valid to settle the liberties of the people, or to limit the power of
+the crown, that compact is now to be found in Magna Carta. If,
+therefore, the constitutional authority of Magna Carta had rested solely
+upon the compact of John with his people, that authority would have been
+entitled to stand forever as the supreme law of the land, unless revoked
+by the will of the people themselves.
+
+But the authority of Magna Carta does not rest alone upon the compact
+with _John_. When, in the next year, (1216,) his son, Henry III., came
+to the throne, the charter was ratified by him, and again in 1217, and
+again in 1225, in substantially the same form, and especially without
+allowing any new powers, legislative, judicial, or executive, to the
+king or his judges, and without detracting in the least from the powers
+of the jury. And from the latter date to this, the charter has remained
+unchanged.
+
+In the course of two hundred years the charter was confirmed by Henry
+and his successors more than thirty times. And although they were guilty
+of numerous and almost continual breaches of it, and were constantly
+seeking to evade it, yet such were the spirit, vigilance and courage of
+the nation, that the kings held their thrones only on the condition of
+their renewed and solemn promises of observance. And it was not until
+1429, (as will be more fully shown hereafter,) when a truce between
+themselves, and a formal combination against the mass of the people, had
+been entered into, by the king, the nobility, and the "_forty shilling
+freeholders_," (a class whom Mackintosh designates as "_a few
+freeholders then accounted wealthy_,"[106]) by the exclusion of all
+others than such freeholders from all voice in the election of knights
+to represent the counties in the House of Commons, that a repetition of
+these confirmations of Magna Carta ceased to be demanded and
+obtained.[107]
+
+The terms and the formalities of some of these "confirmations" make them
+worthy of insertion at length.
+
+Hume thus describes one which took place in the 38th year of Henry III.
+(1253):
+
+   "But as they (the barons) had experienced his (the king's) frequent
+   breach of promise, they required that he should ratify the Great
+   Charter in a manner still more authentic and solemn than any which he
+   had hitherto employed. All the prelates and abbots were assembled.
+   They held burning tapers in their hands. The Great Charter was read
+   before them. They denounced the sentence of excommunication against
+   every one who should thenceforth violate that fundamental law. They
+   threw their tapers on the ground, and exclaimed, _May the soul of
+   every one who incurs this sentence so stink and corrupt in hell!_ The
+   king bore a part in this ceremony, and subjoined, 'So help me God! I
+   will keep all these articles inviolate, as I am a man, as I am a
+   Christian, as I am a knight, and as I am a king crowned and
+   anointed.'"--_Hume_, ch. 12. See also _Blackstone's Introd. to the
+   Charters. Black. Law Tracts_, Oxford ed., p. 332. _Mackintosh's Hist.
+   of Eng._, ch. 3. _Lardner's Cab. Cyc._, vol. 45, p. 233-4.
+
+The following is the form of "the sentence of excommunication" referred
+to by Hume:
+
+   "_The Sentence of Curse, Given by the Bishops, against the Breakers
+   of the Charters._
+
+   "The year of our Lord a thousand two hundred and fifty-three, the
+   third day of May, in the great Hall of the King at Westminster, _in
+   the presence, and by the assent, of the Lord Henry, by the Grace of
+   God King of England_, and the Lords Richard, Earl of Cornwall, his
+   brother, Roger (Bigot) Earl of Norfolk and Suffolk, marshal of
+   England, Humphrey, Earl of Hereford, Henry, Earl of Oxford, John,
+   Earl of Warwick, and other estates of the Realm of England: We,
+   Boniface, by the mercy of God Archbishop of Canterbury, Primate of
+   all England, F. of London, H. of Ely, S. of Worcester, E. of Lincoln,
+   W. of Norwich, P. of Hereford, W. of Salisbury, W. of Durham, R. of
+   Exeter, M. of Carlisle, W. of Bath, E. of Rochester, T. of Saint
+   David's, Bishops, apparelled in Pontificals, with tapers burning,
+   against the breakers of the Church's Liberties, and of the Liberties
+   or free customs of the Realm of England, and especially of those
+   which are contained in the Charter of the Common Liberties of the
+   Realm, and the Charter of the Forest, have solemnly denounced the
+   sentence of Excommunication in this form. By the authority of
+   Almighty God, the Father, the Son, and the Holy Ghost, and of the
+   glorious Mother of God, and perpetual Virgin Mary, of the blessed
+   Apostles Peter and Paul, and of all apostles, of the blessed Thomas,
+   Archbishop and Martyr, and of all martyrs, of blessed Edward of
+   England, and of all Confessors and virgins, and of all the saints of
+   heaven: We excommunicate, accurse, and from the thresholds
+   (liminibus) of our Holy Mother the Church, We sequester, all those
+   that hereafter willingly and maliciously deprive or spoil the Church
+   of her right: And all those that by any craft or wiliness do violate,
+   break, diminish, or change the Church's Liberties, or the ancient
+   approved customs of the Realm, and especially the Liberties and free
+   Customs contained in the Charters of the Common Liberties, and of the
+   Forest, conceded by our Lord the King, to Archbishops, Bishops, and
+   other Prelates of England; and likewise to the Earls, Barons,
+   Knights, and other Freeholders of the Realm: And all that secretly,
+   or openly, by deed, word, or counsel, _do make statutes, or observe
+   them being made_, and that bring in Customs, or keep them when they
+   be brought in, against the said Liberties, or any of them, the
+   Writers and Counsellors of said statutes, and the Executors of them,
+   and all those that shall presume to judge according to them. All and
+   every which persons before mentioned, that wittingly shall commit
+   anything of the premises, let them well know that they incur the
+   aforesaid sentence, _ipso facto_, (i.e., upon the deed being done.)
+   And those that ignorantly do so, and be admonished, except they
+   reform themselves within fifteen days after the time of the
+   admonition, and make full satisfaction for that they have done, at
+   the will of the ordinary, shall be from that time forth included in
+   the same sentence. And with the same sentence we burden all those
+   that presume to perturb the peace of our sovereign Lord the King, and
+   of the Realm. To the perpetual memory of which thing, We, the
+   aforesaid Prelates, have put our seals to these presents."--_Statutes
+   of the Realm_, vol. 1, p. 6. _Ruffhead's Statutes_, vol. 1, p. 20.
+
+One of the Confirmations of the Charters, by Edward I., was by statute,
+in the 25th year of his reign, (1297,) in the following terms. The
+statute is usually entitled "_Confirmatio Cartarum_," (Confirmation of
+the Charters.)
+
+   _Ch. 1._ "Edward, by the Grace of God, King of England, Lord of
+   Ireland, and Duke of Guyan, To all those that these presents shall
+   hear or see, Greeting. Know ye, that We, to the honor of God, and of
+   Holy Church, and to the profit of our Realm, have granted, for us and
+   our heirs, that the Charter of Liberties, and the Charter of the
+   Forest, which were made by common assent of all the Realm, in the
+   time of King Henry our Father, shall be kept in every point without
+   breach. And we will that the same Charters shall be sent under our
+   seal, as well to our justices of the Forest, as to others, and to all
+   Sheriffs of shires, and to all our other officers, and to all our
+   cities throughout the Realm, together with our writs, in the which it
+   shall be contained, that they cause the aforesaid Charters to be
+   published, and to declare to the people that We have confirmed them
+   at all points; and to our Justices, Sheriffs, Mayors, and other
+   ministers, which under us have the Laws of our Land to guide, that
+   they allow the same Charters, in all their points, in pleas before
+   them, and in judgment; that is, to wit, the Great Charter as the
+   Common Law, and the Charter of the Forest for the wealth of our
+   Realm.
+
+   _Ch. 2._ "And we will that if any judgment be given from henceforth
+   contrary to the points of the charters aforesaid by the justices, or
+   by any others our ministers that hold plea before them, against the
+   points of the Charters, it shall be undone and holden for naught.
+
+   _Ch. 3._ "And we will, that the same Charters shall be sent, under
+   our seal, to Cathedral Churches throughout our Realm, there to
+   remain, and shall be read before the people two times in the year.
+
+   _Ch. 4._ "And that all Archbishops and Bishops shall pronounce the
+   sentence of excommunication against all those that by word, deed, or
+   counsel, do contrary to the foresaid charters, or that in any point
+   break or undo them. And that the said Curses be twice a year
+   denounced and published by the prelates aforesaid. And if the same
+   prelates, or any of them, be remiss in the denunciation of the said
+   sentences, the Archbishops of Canterbury and York, for the time
+   being, shall compel and distrain them to make the denunciation in the
+   form aforesaid."--_St. 25 Edward I._, (1297.) _Statutes of the
+   Realm_, vol. 1, p. 123.
+
+It is unnecessary to repeat the terms of the various confirmations, most
+of which were less formal than those that have been given, though of
+course equally authoritative. Most of them are brief, and in the form of
+a simple statute, or promise, to the effect that "The Great Charter, and
+the Charter of the Forest, shall be firmly kept and maintained in all
+points." They are to be found printed with the other statutes of the
+realm. One of them, after having "again granted, renewed and confirmed"
+the charters, requires as follows:
+
+   "That the Charters be delivered to every sheriff of England under the
+   king's seal, to be read four times in the year before the people in
+   the full county," (that is, at the county court,) "that is, to wit,
+   the next county (court) after the feast of Saint Michael, and the
+   next county (court) after Christmas, and at the next county (court)
+   after Easter, and at the next county (court) after the feast of Saint
+   John."--_28 Edward I._, ch. 1, (1300.)
+
+   Lingard says, "The Charter was ratified four times by Henry III.,
+   twice by Edward I., fifteen times by Edward III., seven times by
+   Richard II., six times by Henry IV., and once by Henry V.;" making
+   thirty-five times in all.--_3 Lingard_, 50, note, Philad. ed.
+
+Coke says Magna Carta was confirmed thirty-two times.--Preface_ to_ 2
+_Inst_., p. 6.
+
+   Lingard calls these "thirty-five successive ratifications" of the
+   charter, "a sufficient proof how much its provisions were abhorred
+   by the sovereign, and how highly they were prized by the nation."--_3
+   Lingard_, 50.
+
+   Mackintosh says, "For almost five centuries (that is, until 1688) it
+   (Magna Carta) was appealed to as the decisive authority on behalf of
+   the people, though commonly so far only as the necessities of each
+   case demanded."--_Mackintosh's Hist. of Eng._ ch. 3. _45 Lardner's
+   Cab. Cyc._, 221.
+
+Coke, who has labored so hard to overthrow the most vital principles of
+Magna Carta, and who, therefore, ought to be considered good authority
+when he speaks in its favor,[108] says:
+
+   "It is called Magna Carta, not that it is great in quantity, for
+   there be many voluminous charters commonly passed, specially in these
+   later times, longer than this is; nor comparatively in respect that
+   it is greater than _Charta de Foresta_, but in respect of the great
+   importance and weightiness of the matter, as hereafter shall appear;
+   and likewise for the same cause _Charta de Foresta_; and both of them
+   are called _Magnæ Chartæ Libertatum Angliæ_, (The Great Charters of
+   the Liberties of England.) ...
+
+   "And it is also called _Charta Libertatum regni_, (Charter of the
+   Liberties of the kingdom;) and upon great reason it is so called of
+   the effect, _quia liberos facit_, (because it makes men free.)
+   Sometime for the same cause (it is called) _communis libertas_,
+   (common liberty,) and _le chartre des franchises_, (the charter of
+   franchises.) ...
+
+   "It was for the most part declaratory of the principal grounds of the
+   fundamental laws of England, and for the residue it is additional to
+   supply some defects of the common law....
+
+   "Also, by the said act of 25 Edward I., (called _Confirmatio
+   Chartarum_,) it is adjudged in parliament that the Great Charter and
+   the Charter of the Forest shall be taken as the common law....
+
+   "They (Magna Carta and Carta de Foresta) were, for the most part, but
+   declarations of the ancient common laws of England, to the
+   observation and keeping whereof, the king was bound and sworn.
+
+   "After the making of Magna Charta, and Charta de Foresta, divers
+   learned men in the laws, that I may use the words of the record, kept
+   schools of the law in the city of London, and taught such as resorted
+   to them the laws of the realm, taking their foundation of Magna
+   Charta and Charta de Foresta.
+
+   "And the said two charters have been confirmed, established, and
+   commanded to be put in execution by thirty-two several acts of
+   parliament in all.
+
+   "This appeareth partly by that which hath been said, for that it hath
+   so often been confirmed by the wise providence of so many acts of
+   parliament.
+
+   "And albeit judgments in the king's courts are of high regard in law,
+   and _judicia_ (judgments) are accounted as _jurisdicta_, (the speech
+   of the law itself,) yet it is provided by act of parliament, that if
+   any judgment be given contrary to any of the points of the Great
+   Charter and Charta de Foresta, by the justices, or by any other of
+   the king's ministers, &c., it shall be undone, and holden for naught.
+
+   "And that both the said charters shall be sent under the great seal
+   to all cathedral churches throughout the realm, there to remain, and
+   shall be read to the people twice every year.
+
+   "The highest and most binding laws are the statutes which are
+   established by parliament; and by authority of that highest court it
+   is enacted (only to show their tender care of Magna Carta and Carta
+   de Foresta) that if any statute be made contrary to the Great
+   Charter, or the Charter of the Forest, that shall be holden for none;
+   by which words all former statutes made against either of those
+   charters are now repealed; and the nobles and great officers were to
+   be sworn to the observation of Magna Charta and Charta de Foresta.
+
+   "_Magna fuit quondam magnæ reverentia chartæ._" (Great was formerly
+   the reverence for Magna Carta.)--_Coke's Proem to 2 Inst._, p. 1 to
+   7.
+
+Coke also says, "All pretence of prerogative against Magna Charta is
+taken away."--_2 Inst._, 36.
+
+He also says, "That after this parliament (_52 Henry_ III., in 1267)
+neither Magna Carta nor Carta de Foresta was ever attempted to be
+impugned or questioned."--_2 Inst._, 102.[109]
+
+To give all the evidence of the authority of Magna Carta, it would be
+necessary to give the constitutional history of England since the year
+1215. This history would show that Magna Carta, although continually
+violated and evaded, was still acknowledged as law by the government,
+and was held up by the people as the great standard and proof of their
+rights and liberties. It would show also that the judicial tribunals,
+_whenever it suited their purposes to do so_, were in the habit of
+referring to Magna Carta as authority, in the same manner, and with the
+same real or pretended veneration, with which American courts now refer
+to the constitution of the United States, or the constitutions of the
+states. And, what is equally to the point, it would show that these same
+tribunals, the mere tools of kings and parliaments, would resort to the
+same artifices of assumption, _precedent_, construction, and false
+interpretation, to evade the requirements of Magna Carta, and to
+emasculate it of all its power for the preservation of liberty, that are
+resorted to by American courts to accomplish the same work on our
+American constitutions.
+
+I take it for granted, therefore, that if the authority of Magna Carta
+had rested simply upon its character as a _compact_ between the king and
+the people, it would have been forever binding upon the king, (that is,
+upon the government, for the king was the government,) in his
+legislative, judicial, and executive character; and that there was no
+_constitutional_ possibility of his escaping from its restraints, unless
+the people themselves should freely discharge him from them.
+
+But the authority of Magna Carta does not rest, either wholly or mainly,
+upon its character as a compact. For centuries before the charter was
+granted, its main principles constituted "the Law of the Land,"--the
+fundamental and constitutional law of the realm, which the kings were
+sworn to maintain. And the principal benefit of the charter was, that it
+contained a _written_ description and acknowledgment, by the king
+himself, of what the constitutional law of the kingdom was, which his
+coronation oath bound him to observe. Previous to Magna Carta, this
+constitutional law rested mainly in precedents, customs, and the
+memories of the people. And if the king could but make one innovation
+upon this law, without arousing resistance, and being compelled to
+retreat from his usurpation, he would cite that innovation as a
+precedent for another act of the same kind; next, assert a custom; and,
+finally, raise a controversy as to what the Law of the Land really was.
+The great object of the barons and people, in demanding from the king a
+written description and acknowledgment of the Law of the Land, was to
+put an end to all disputes of this kind, and to put it out of the power
+of the king to plead any misunderstanding of the constitutional law of
+the kingdom. And the charter, no doubt, accomplished very much in this
+way. After Magna Carta, it required much more audacity, cunning, or
+strength, on the part of the king, than it had before, to invade the
+people's liberties with impunity. Still, Magna Carta, like all other
+written constitutions, proved inadequate to the full accomplishment of
+its purpose; for when did a parchment ever have power adequately to
+restrain a government, that had either cunning to evade its
+requirements, or strength to overcome those who attempted its defence?
+The work of usurpation, therefore, though seriously checked, still went
+on, to a great extent, after Magna Carta. Innovations upon the Law of
+the Land are still made by the government. One innovation was cited as a
+precedent; precedents made customs; and customs became laws, so far as
+practice was concerned; until the government, composed of the king, the
+high functionaries of the church, the nobility, a House of Commons
+representing the "forty shilling freeholders," and a dependent and
+servile judiciary, all acting in conspiracy against the mass of the
+people, became practically absolute, as it is at this day.
+
+As proof that Magna Carta embraced little else than what was previously
+recognized as the common law, or Law of the Land, I repeat some
+authorities that have been already cited.
+
+   Crabbe says, "It is admitted on all hands that it (Magna Carta)
+   contains nothing but what was confirmatory of the common law and the
+   ancient usages of the realm; and is, properly speaking, only an
+   enlargement of the charter of Henry I. and his
+   successors."--_Crabbe's Hist. of the Eng. Law_, p. 127.
+
+   Blackstone says, "It is agreed by all our historians that the Great
+   Charter of King John was, for the most part, compiled from the
+   ancient customs of the realm, or the laws of Edward the Confessor; by
+   which they mean the old common law which was established under our
+   Saxon princes."--_Blackstone's Introd. to the Charters._ See
+   _Blackstone's Law Tracts_, Oxford ed., p. 289.
+
+   Coke says, "The common law is the most general and ancient law of
+   the realm.... The common law appeareth in the statute of _Magna
+   Carta_, and other ancient statutes, (which for the most part are
+   affirmations of the common law,) in the original writs, in judicial
+   records, and in our books of terms and years."--_1 Inst._, 115 b.
+
+   Coke also says, "It (Magna Carta) was for the most part declaratory
+   of the principal grounds of the fundamental laws of England, and for
+   the residue it was additional to supply some defects of the common
+   law.... They (Magna Carta and Carta de Foresta) were, for the most
+   part, but declarations of the ancient common laws of England, _to the
+   observation and keeping whereof the king was bound and
+   sworn_."--_Preface to 2 Inst._, p. 3 and 5.
+
+   Hume says, "We may now, from the tenor of this charter, (Magna
+   Carta,) conjecture what those laws were of King Edward, (the
+   Confessor,) which the English nation during so many generations still
+   desired, with such an obstinate perseverance, to have recalled and
+   established. They were chiefly these latter articles of Magna Carta;
+   and the barons who, at the beginning of these commotions, demanded
+   the revival of the Saxon laws, undoubtedly thought that they had
+   sufficiently satisfied the people, by procuring them this concession,
+   which comprehended the principal objects to which they had so long
+   aspired."--_Hume_, ch. 11.
+
+Edward the First confessed that the Great Charter was substantially
+identical with the common law, as far as it went, when he commanded his
+justices to allow "the Great Charter as the Common Law," "in pleas
+before them, and in judgment," as has been already cited in this
+chapter.--_25 Edward_ I., ch. 1, (1297.)
+
+In conclusion of this chapter, it may be safely asserted that the
+veneration, attachment, and pride, which the English nation, for more
+than six centuries, have felt towards Magna Carta, are in their nature
+among the most irrefragable of all proofs that it was the fundamental
+law of the land, and constitutionally binding upon the government; for,
+otherwise, it would have been, in their eyes, an unimportant and
+worthless thing. What those sentiments were I will use the words of
+others to describe,--the words, too, of men, who, like all modern
+authors who have written on the same topic, had utterly inadequate ideas
+of the true character of the instrument on which they lavished their
+eulogiums.
+
+Hume, speaking of the Great Charter and the Charter of the Forest, as
+they were confirmed by Henry III., in 1217, says:
+
+   "Thus these famous charters were brought nearly to the shape in which
+   they have ever since stood; and they were, during many generations,
+   the peculiar favorites of the English nation, and esteemed the most
+   sacred rampart to national liberty and independence. As they secured
+   the rights of all orders of men, they were anxiously defended by all,
+   and became the basis, in a manner, of the English monarchy, and a
+   kind of original contract, which both limited the authority of the
+   king and ensured the conditional allegiance of his subjects. Though
+   often violated, they were still claimed by the nobility and people;
+   and, as no precedents were supposed valid that infringed them, they
+   rather acquired than lost authority, from the frequent attempts made
+   against them in several ages, by regal and arbitrary power."--_Hume_,
+   ch. 12.
+
+   Mackintosh says, "It was understood by the simplest of the unlettered
+   age for whom it was intended. It was remembered by them.... For
+   almost five centuries it was appealed to as the decisive authority on
+   behalf of the people.... To have produced it, to have preserved it,
+   to have matured it, constitute the immortal claim of England on the
+   esteem of mankind. Her Bacons and Shakspeares, her Miltons and
+   Newtons, with all the truth which they have revealed, and all the
+   generous virtues which they have inspired, are of inferior value when
+   compared with the subjection of men and their rulers to the
+   principles of justice; if, indeed, it be not more true that these
+   mighty spirits could not have been formed except under equal laws,
+   nor roused to full activity without the influence of that spirit
+   which the Great Charter breathed over their
+   forefathers."--_Mackintosh's Hist. of Eng._, ch. 3.[110]
+
+Of the Great Charter, the trial by jury is the vital part, and the only
+part that places the liberties of the people in their own keeping. Of
+this Blackstone says:
+
+   "The trial by jury, or the country, _per patriam_, is also that trial
+   by the peers of every Englishman, which, as the grand bulwark of his
+   liberties, is secured to him by the Great Charter; _nullus liber homo
+   capiatur, vel imprisonetur, aut exuletur, aut aliquo modo destruatur,
+   nisi per legale judicium parium suorum, vel per legem terrae...._
+
+   The liberties of England cannot but subsist so long as this palladium
+   remains sacred and inviolate, not only from all open attacks, which
+   none will be so hardy as to make, but also from all secret
+   machinations which may sap and undermine it."[111]
+
+   "The trial by jury ever has been, and I trust ever will be, looked
+   upon as the glory of the English law.... It is the most transcendent
+   privilege which any subject can enjoy or wish for, that he cannot be
+   affected in his property, his liberty, or his person, but by the
+   unanimous consent of twelve of his neighbors and equals."[112]
+
+   Hume calls the trial by jury "An institution admirable in itself, and
+   the best calculated for the preservation of liberty and the
+   administration of justice, that ever was devised by the wit of
+   man."[113]
+
+An old book, called "English Liberties," says:
+
+   "English Parliaments have all along been most zealous for preserving
+   this great Jewel of Liberty, trials by juries having no less than
+   fifty-eight several times, since the Norman Conquest, been
+   established and confirmed by the legislative power, no one privilege
+   besides having been ever so often remembered in parliament."[114]
+
+[Footnote 106: _Mackintosh's Hist. of Eng._, ch. 3. _45 Lardner's Cab.
+Cyc._, 354.]
+
+[Footnote 107: "_Forty shilling freeholders_" were those "people
+dwelling and resident in the same counties, whereof every one of them
+shall have free land or tenement to the value of forty shillings by the
+year at the least above all charges." By statute _8 Henry_ 6, ch. 7,
+(1429,) these freeholders only were allowed to vote for members of
+Parliament from the _counties_.]
+
+[Footnote 108: He probably speaks in its favor only to blind the eyes of
+the people to the frauds he has attempted upon its true meaning.]
+
+[Footnote 109: It will be noticed that Coke calls these confirmations of
+the charter "acts of parliament," instead of acts of the king alone.
+This needs explanation.
+
+It was one of Coke's ridiculous pretences, that laws anciently enacted
+by the king, at the request, or with the consent, or by the advice, of
+his parliament, was "an act of parliament," instead of the act of the
+king. And in the extracts cited, he carries this idea so far as to
+pretend that the various confirmations of the Great Charter were "acts
+of parliament," instead of the acts of the kings. He might as well have
+pretended that the original grant of the Charter was an "act of
+parliament;" because it was not only granted at the request, and with
+the consent, and by the advice, but on the compulsion even, of those who
+commonly constituted his parliaments. Yet this did not make the grant of
+the charter "an act of parliament." It was simply an act of the king.
+
+The object of Coke, in this pretence, was to furnish some color for the
+palpable falsehood that the legislative authority, which parliament was
+trying to assume in his own day, and which it finally succeeded in
+obtaining, had a precedent in the ancient constitution of the kingdom.
+
+There would be as much reason in saying that, because the ancient kings
+were in the habit of passing laws in special answer to the _petitions_
+of their subjects, therefore those _petitioners_ were a part of the
+legislative power of the kingdom.
+
+One great objection to this argument of Coke, for the legislative
+authority of the ancient parliaments, is that a very large--probably
+much the larger--number of legislative acts were done _without_ the
+advice, consent, request, or even presence, of a parliament. Not only
+were many formal statutes passed without any mention of the consent or
+advice of parliament, but a simple order of the king in council, or a
+simple proclamation, writ, or letter under seal, issued by his command,
+had the same force as what Coke calls "an act of parliament." And this
+practice continued, to a considerable extent at least, down to Coke's
+own time.
+
+The kings were always in the habit of consulting their parliaments, more
+or less, in regard to matters of legislation,--not because their consent
+was constitutionally necessary, but in order to make influence in favor
+of their laws, and thus induce the people to observe them, and the
+juries to enforce them.
+
+The general duties of the ancient parliaments were not legislative, but
+judicial, as will be shown more fully hereafter. The _people_ were not
+represented in the parliaments at the time of Magna Carta, but only the
+archbishops, bishops, earls, barons, and knights; so that little or
+nothing would have been gained for liberty by Coke's idea that
+parliament had a legislative power. He would only have substituted an
+aristocracy for a king. Even after the Commons were represented in
+parliament, they for some centuries appeared only as _petitioners_,
+except in the matter of taxation, when their _consent_ was asked. And
+almost the only source of their influence on legislation was this: that
+they would sometimes refuse their consent to the taxation, unless the
+king would pass such laws as they petitioned for; or, as would seem to
+have been much more frequently the case, unless he would abolish such
+laws and practices as they remonstrated against.
+
+The _influence_ or power of parliament, and especially of the Commons,
+in the general legislation of the country, was a thing of slow growth,
+having its origin in a device of the king to get money contrary to law,
+(as will be seen in the next volume,) and not at all a part of the
+constitution of the kingdom, nor having its foundation in the consent of
+the people. The power, _as at present exercised_, was not fully
+established until 1688, (near five hundred years after Magna Carta,)
+when the House of Commons (falsely so called) had acquired such
+influence as the representative, _not of the people, but of the wealth,
+of the nation_, that they compelled the king to discard the oath fixed
+by the constitution of the kingdom; (which oath has been already given
+in a former chapter,(page 101) and was, in substance, to preserve and
+execute the Common Law, the Law of the Land,--or, in the words of the
+oath, "_the just laws and customs which the common people had chosen_;")
+and to swear that he would "govern the people of this kingdom of
+England, and the dominions thereto belonging, _according to the statutes
+in parliament agreed on_, and the laws and customs of the same."[115]
+
+The passage and enforcement of this statute, and the assumption of this
+oath by the king, were plain violations of the English constitution,
+inasmuch as they abolished, so far as such an oath could abolish, the
+legislative power of the king, and also "those just laws and customs
+which the common people (through their juries) had chosen," and
+substituted the will of parliament in their stead.
+
+Coke was a great advocate for the legislative power of parliament, as a
+means of restraining the power of the king. As he denied all power to
+_juries_ to decide upon the obligation of laws, and as he held that the
+legislative power was "_so transcendent and absolute as (that) it cannot
+be confined, either for causes or persons, within any bounds_,"[116] he
+was perhaps honest in holding that it was safer to trust this terrific
+power in the hands of parliament, than in the hands of the king. His
+error consisted in holding that either the king or parliament had any
+such power, or that they had any power at all to pass laws that should
+be binding upon a jury.
+
+These declarations of Coke, that the charter was confirmed by thirty-two
+"acts of parliament," have a mischievous bearing in another respect.
+They tend to weaken the authority of the charter, by conveying the
+impression that the charter itself might be _abolished_ by "act of
+parliament." Coke himself admits that it could not be revoked or
+rescinded by the _king_; for he says, "All pretence of prerogative
+against Magna Carta is taken away." (_2 Inst._, 36.)
+
+He knew perfectly well, and the whole English nation knew, that the
+_king_ could not lawfully infringe Magna Carta. Magna Carta, therefore,
+made it impossible that absolute power could ever be practically
+established in England, _in the hands of the king_. Hence, as Coke was
+an advocate for absolute power,--that is, for a legislative power "so
+transcendent and absolute as (that) it cannot be confined, either for
+causes or persons, within any bounds,"--there was no alternative for him
+but to vest this absolute power in parliament. Had he not vested it in
+parliament, he would have been obliged to abjure it altogether, and to
+confess that the people, _through their juries_, had the right to judge
+of the obligation of all legislation whatsoever; in other words, that
+they had the right to confine the government within the limits of "those
+just laws and customs which the common people (acting as jurors) had
+chosen." True to his instincts, as a judge, and as a tyrant, he assumed
+that this absolute power was vested in the hands of parliament.
+
+But the truth was that, as by the English constitution parliament had no
+authority at all for _general_ legislation, it could no more confirm,
+than it could abolish, Magna Carta.
+
+These thirty-two confirmations of Magna Carta, which Coke speaks of as
+"acts of parliament," were merely acts of the king. The parliaments,
+indeed, by refusing to grant him money, except on that condition, and
+otherwise, had contributed to oblige him to make the confirmations; just
+as they had helped to oblige him by arms to grant the charter in the
+first place. But the confirmations themselves were nevertheless
+constitutionally, as well as formally, the acts of the king alone.]
+
+[Footnote 110: Under the head of "_John._"]
+
+[Footnote 111: _4 Blackstone_, 349-50.]
+
+[Footnote 112: _3 Blackstone_, 379.]
+
+[Footnote 113: _Hume_, ch. 2.]
+
+[Footnote 114: Page 203, 5th edition, 1721.]
+
+[Footnote 115: St. 1 _William and Mary_, ch. 6, (1688.)]
+
+[Footnote 116: 4 _Inst._, 36.]
+
+
+
+
+CHAPTER XII.
+
+LIMITATIONS IMPOSED UPON THE MAJORITY BY THE TRIAL BY JURY.
+
+
+The principal objection, that will be made to the doctrine of this
+essay, is, that under it, a jury would paralyze the power of the
+majority, and veto all legislation that was not in accordance with the
+will of the whole, or nearly the whole, people.
+
+The answer to this objection is, that the limitation, which would be
+thus imposed upon the legislative power, (whether that power be vested
+in the majority, or minority, of the people,) is the crowning merit of
+the trial by jury. It has other merits; but, though important in
+themselves, they are utterly insignificant and worthless in comparison
+with this.
+
+It is this power of vetoing all partial and oppressive legislation, and
+of restricting the government to the maintenance of such laws as the
+_whole_, or substantially the whole, people _are agreed in_, that makes
+the trial by jury "the palladium of liberty." Without this power it
+would never have deserved that name.
+
+The will, or the pretended will, of the majority, is the last lurking
+place of tyranny at the present day. The dogma, that certain individuals
+and families have a divine appointment to govern the rest of mankind, is
+fast giving place to the one that the larger number have a right to
+govern the smaller; a dogma, which may, or may not, be less oppressive
+in its practical operation, but which certainly is no less false or
+tyrannical in principle, than the one it is so rapidly supplanting.
+Obviously there is nothing in the nature of majorities, that insures
+justice at their hands. They have the same passions as minorities, and
+they have no qualities whatever that should be expected to prevent them
+from practising the same tyranny as minorities, if they think it will
+be for their interest to do so.
+
+There is no particle of truth in the notion that the majority have a
+_right_ to rule, or to exercise arbitrary power over, the minority,
+simply because the former are more numerous than the latter. Two men
+have no more natural right to rule one, than one has to rule two. Any
+single man, or any body of men, many or few, have a natural right to
+maintain justice for themselves, and for any others who may need their
+assistance, against the injustice of any and all other men, without
+regard to their numbers; and majorities have no right to do any more
+than this. The relative numbers of the opposing parties have nothing to
+do with the question of right. And no more tyrannical principle was ever
+avowed, than that the will of the majority ought to have the force of
+law, without regard to its justice; or, what is the same thing, that the
+will of the majority ought always to be presumed to be in accordance
+with justice. Such a doctrine is only another form of the doctrine that
+might makes right.
+
+When _two_ men meet _one_ upon the highway, or in the wilderness, have
+they a right to dispose of his life, liberty, or property at their
+pleasure, simply because they are the more numerous party? Or is he
+bound to submit to lose his life, liberty, or property, if they demand
+it, merely because he is the less numerous party? Or, because they are
+more numerous than he, is he bound to presume that they are governed
+only by superior wisdom, and the principles of justice, and by no
+selfish passion that can lead them to do him a wrong? Yet this is the
+principle, which it is claimed should govern men in all their civil
+relations to each other. Mankind fall in company with each other on the
+highway or in the wilderness of life, and it is claimed that the more
+numerous party, simply by virtue of their superior numbers, have the
+right arbitrarily to dispose of the life, liberty, and property of the
+minority; and that the minority are bound, by reason of their inferior
+numbers, to practise abject submission, and consent to hold their
+natural rights,--any, all, or none, as the case may be,--at the mere
+will and pleasure of the majority; as if all a man's natural rights
+expired, or were suspended by the operation of a paramount law, the
+moment he came into the presence of superior numbers.
+
+If such be the true nature of the relations men hold to each other in
+this world, it puts an end to all such things as crimes, unless they be
+perpetrated upon those who are equal or superior, in number, to the
+actors. All acts committed against persons _inferior_ in number to the
+aggressors, become but the exercise of rightful authority. And
+consistency with their own principles requires that all governments,
+founded on the will of the majority, should recognize this plea as a
+sufficient justification for all crimes whatsoever.
+
+If it be said that the majority should be allowed to rule, not because
+they are stronger than the minority, but because their superior numbers
+furnish a _probability_ that they are in the right; one answer is, that
+the lives, liberties, and properties of men are too valuable to them,
+and the natural presumptions are too strong in their favor, to justify
+the destruction of them by their fellow-men on a mere balancing of
+probabilities, _or on any ground whatever short of certainty beyond a
+reasonable doubt_. This last is the moral rule universally recognized to
+be binding upon single individuals. And in the forum of conscience the
+same rule is equally binding upon governments, for governments are mere
+associations of individuals. This is the rule on which the trial by jury
+is based. And it is plainly the only rule that ought to induce a man to
+submit his rights to the adjudication of his fellow-men, or dissuade him
+from a forcible defence of them.
+
+Another answer is, that if two opposing parties could be supposed to
+have no personal interests or passions involved, to warp their
+judgments, or corrupt their motives, the fact that one of the parties
+was more numerous than the other, (a fact that leaves the comparative
+intellectual competency of the two parties entirely out of
+consideration,) might, perhaps, furnish a slight, but at best only a
+very slight, probability that such party was on the side of justice. But
+when it is considered that the parties are liable to differ in their
+intellectual capacities, and that one, or the other, or both, are
+undoubtedly under the influence of such passions as rivalry, hatred,
+avarice, and ambition,--passions that are nearly certain to pervert
+their judgments, and very likely to corrupt their motives,--all
+probabilities founded upon a mere numerical majority, in one party, or
+the other, vanish at once; and the decision of the majority becomes, to
+all practical purposes, a mere decision of chance. And to dispose of
+men's properties, liberties, and lives, by the mere process of
+enumerating such parties, is not only as palpable gambling as was ever
+practised, but it is also the most atrocious that was ever practised,
+except in matters of government. And where government is instituted on
+this principle, (as in the United States, for example,) the nation is at
+once converted into one great gambling establishment; where all the
+rights of men are the stakes; a few bold bad men throw the dice--(dice
+loaded with all the hopes, fears, interests, and passions which rage in
+the breasts of ambitious and desperate men,)--and all the people, from
+the interests they have depending, become enlisted, excited, agitated,
+and generally corrupted, by the hazards of the game.
+
+The trial by jury disavows the majority principle altogether; and
+proceeds upon the ground that every man should be presumed to be
+entitled to life, liberty, and such property as he has in his
+possession; and that the government should lay its hand upon none of
+them, (except for the purpose of bringing them before a tribunal for
+adjudication,) unless it be first ascertained, _beyond a reasonable
+doubt_, in every individual case, that justice requires it.
+
+To ascertain whether there be such reasonable doubt, it takes twelve men
+_by lot_ from the whole body of mature men. If any of these twelve are
+proved to be under the influence of any _special_ interest or passion,
+that may either pervert their judgments, or corrupt their motives, they
+are set aside as unsuitable for the performance of a duty requiring such
+absolute impartiality and integrity; and others substituted in their
+stead. When the utmost practicable impartiality is attained on the part
+of the whole twelve, they are sworn to the observance of justice; and
+their unanimous concurrence is then held to be necessary to remove that
+reasonable doubt, which, unremoved, would forbid the government to lay
+its hand on its victim.
+
+Such is the caution which the trial by jury both practises and
+inculcates, against the violation of justice, on the part of the
+government, towards the humblest individual, in the smallest matter
+affecting his civil rights, his property, liberty, or life. And such is
+the contrast, which the trial by jury presents, to that gambler's and
+robber's rule, that the majority have a right, by virtue of their
+superior numbers, and without regard to justice, to dispose at pleasure
+of the property and persons of all bodies of men less numerous than
+themselves.
+
+The difference, in short, between the two systems, is this. The trial by
+jury protects person and property, inviolate to their possessors, from
+the hand of the law, unless _justice, beyond a reasonable doubt_,
+require them to be taken. The majority principle takes person and
+property from their possessors, at the mere arbitrary will of a
+majority, who are liable and likely to be influenced, in taking them, by
+motives of oppression, avarice, and ambition.
+
+If the relative numbers of opposing parties afforded sufficient evidence
+of the comparative justice of their claims, the government should carry
+the principle into its courts of justice; and instead of referring
+controversies to impartial and disinterested men,--to judges and jurors,
+sworn to do justice, and bound patiently to hear and weigh all the
+evidence and arguments that can be offered on either side,--it should
+simply _count_ the plaintiffs and defendants in each case, (where there
+were more than one of either,) and then give the case to the majority;
+after ample opportunity had been given to the plaintiffs and defendants
+to reason with, flatter, cheat, threaten, and bribe each other, by way
+of inducing them to change sides. Such a process would be just as
+rational in courts of justice, as in halls of legislation; for it is of
+no importance to a man, who has his rights taken from him, whether it be
+done by a legislative enactment, or a judicial decision.
+
+In legislation, the people are all arranged as plaintiffs and defendants
+in their own causes; (those who are in favor of a particular law,
+standing as plaintiffs, and those who are opposed to the same law,
+standing as defendants); and to allow these causes to be decided by
+majorities, is plainly as absurd as it would be to allow judicial
+decisions to be determined by the relative number of plaintiffs and
+defendants.
+
+If this mode of decision were introduced into courts of justice, we
+should see a parallel, and only a parallel, to that system of
+legislation which we witness daily. We should see large bodies of men
+conspiring to bring perfectly groundless suits, against other bodies of
+men, for large sums of money, and to carry them by sheer force of
+numbers; just as we now continually see large bodies of men conspiring
+to carry, by mere force of numbers, some scheme of legislation that
+will, directly or indirectly, take money out of other men's pockets, and
+put it into their own. And we should also see distinct bodies of men,
+parties in separate suits, combining and agreeing all to appear and be
+counted as plaintiffs or defendants in each other's suits, for the
+purpose of ekeing out the necessary majority; just as we now see
+distinct bodies of men, interested in separate schemes of ambition or
+plunder, conspiring to carry through a batch of legislative enactments,
+that shall accomplish their several purposes.
+
+This system of combination and conspiracy would go on, until at length
+whole states and a whole nation would become divided into two great
+litigating parties, each party composed of several smaller bodies,
+having their separate suits, but all confederating for the purpose of
+making up the necessary majority in each case. The individuals composing
+each of these two great parties, would at length become so accustomed to
+acting together, and so well acquainted with each others' schemes, and
+so mutually dependent upon each others' fidelity for success, that they
+would become organized as permanent associations; bound together by that
+kind of honor that prevails among thieves; and pledged by all their
+interests, sympathies, and animosities, to mutual fidelity, and to
+unceasing hostility to their opponents; and exerting all their arts and
+all their resources of threats, injuries, promises, and bribes, to drive
+or seduce from the other party enough to enable their own to retain or
+acquire such a majority as would be necessary to gain their own suits,
+and defeat the suits of their opponents. All the wealth and talent of
+the country would become enlisted in the service of these rival
+associations; and both would at length become so compact, so well
+organized, so powerful, and yet always so much in need of recruits,
+that a private person would be nearly or quite unable to obtain justice
+in the most paltry suit with his neighbor, except on the condition of
+joining one of these great litigating associations, who would agree to
+carry through his cause, on condition of his assisting them to carry
+through all the others, good and bad, which they had already undertaken.
+If he refused this, they would threaten to make a similar offer to his
+antagonist, and suffer their whole numbers to be counted against him.
+
+Now this picture is no caricature, but a true and honest likeness. And
+such a system of administering justice, would be no more false, absurd,
+or atrocious, than that system of working by majorities, which seeks to
+accomplish, by legislation, the same ends which, in the case supposed,
+would be accomplished by judicial decisions.
+
+Again, the doctrine that the minority ought to submit to the will of the
+majority, proceeds, not upon the principle that government is formed by
+voluntary association, and for an _agreed purpose_, on the part of all
+who contribute to its support, but upon the presumption that all
+government must be practically a state of war and plunder between
+opposing parties; and that, in order to save blood, and prevent mutual
+extermination, the parties come to an agreement that they will count
+their respective numbers periodically, and the one party shall then be
+permitted quietly to rule and plunder, (restrained only by their own
+discretion,) and the other submit quietly to be ruled and plundered,
+until the time of the next enumeration.
+
+Such an agreement may possibly be wiser than unceasing and deadly
+conflict; it nevertheless partakes too much of the ludicrous to deserve
+to be seriously considered as an expedient for the maintenance of civil
+society. It would certainly seem that mankind might agree upon a
+cessation of hostilities, upon more rational and equitable terms than
+that of unconditional submission on the part of the less numerous body.
+Unconditional submission is usually the last act of one who confesses
+himself subdued and enslaved. How any one ever came to imagine that
+condition to be one of freedom, has never been explained. And as for the
+system being adapted to the maintenance of justice among men, it is a
+mystery that any human mind could ever have been visited with an
+insanity wild enough to originate the idea.
+
+If it be said that other corporations, than governments, surrender their
+affairs into the hands of the majority, the answer is, that they allow
+majorities to determine only trifling matters, that are in their nature
+mere questions of discretion, and where there is no natural presumption
+of justice or right on one side rather than the other. They _never_
+surrender to the majority the power to dispose of, or, what is
+practically the same thing, to _determine_, the _rights_ of any
+individual member. The _rights_ of every member are determined by the
+written compact, to which all the members have voluntarily agreed.
+
+For example. A banking corporation allows a majority to determine such
+questions of discretion as whether the note of A or of B shall be
+discounted; whether notes shall be discounted on one, two, or six days
+in the week; how many hours in a day their banking-house shall be kept
+open; how many clerks shall be employed; what salaries they shall
+receive, and such like matters, which are in their nature mere subjects
+of discretion, and where there are no natural presumptions of justice or
+right in favor of one course over the other. But no banking corporation
+allows a majority, or any other number of its members less than the
+whole, to divert the funds of the corporation to any other purpose than
+the one to which _every member_ of the corporation has legally agreed
+that they may be devoted; nor to take the stock of one member and give
+it to another; nor to distribute the dividends among the stockholders
+otherwise than to each one the proportion which he has agreed to accept,
+and all the others have agreed that he shall receive. Nor does any
+banking corporation allow a majority to impose taxes upon the members
+for the payment of the corporate expenses, except in such proportions as
+_every member_ has consented that they may be imposed. All these
+questions, involving the _rights_ of the members as against each other,
+are fixed by the articles of the association,--that is, by the agreement
+to which _every member_ has personally assented.
+
+What is also specially to be noticed, and what constitutes a vital
+difference between the banking corporation and the political
+corporation, or government, is, that in case of controversy among the
+members of the banking corporation, as to the _rights_ of any member,
+the question is determined, not by any number, either majority, or
+minority, of the corporation itself, _but by persons out of the
+corporation_; by twelve men acting as jurors, or by other tribunals of
+justice, of which no member of the corporation is allowed to be a part.
+But in the case of the political corporation, controversies among the
+parties to it, as to the rights of individual members, must of necessity
+be settled by members of the corporation itself, because there are no
+persons out of the corporation to whom the question can be referred.
+
+Since, then, all questions as to the _rights_ of the members of the
+political corporation, must be determined by members of the corporation
+itself, the trial by jury says that no man's _rights_,--neither his
+right to his life, his liberty, nor his property,--shall be determined
+by any such standard as the mere will and pleasure of majorities; but
+only by the unanimous verdict of a tribunal fairly representing the
+whole people,--that is, a tribunal of twelve men, taken, at random from
+the whole body, and ascertained to be as impartial as the nature of the
+case will admit, _and sworn to the observance of justice_. Such is the
+difference in the two kinds of corporations; and the custom of managing
+by majorities the mere discretionary matters of business corporations,
+(the majority having no power to determine the _rights_ of any member,)
+furnishes no analogy to the practice, adopted by political corporations,
+of disposing of all the _rights_ of their members by the arbitrary will
+of majorities.
+
+But further. The doctrine that the majority have a _right_ to rule,
+proceeds upon the principle that minorities have no _rights_ in the
+government; for certainly the minority cannot be said to have any
+_rights_ in a government, so long as the majority alone determine what
+their rights shall be. They hold everything, or nothing, as the case may
+be, at the mere will of the majority.
+
+It is indispensable to a "_free_ government," (in the political sense of
+that term,) that the minority, the weaker party, have a veto upon the
+acts of the majority. Political liberty is liberty for the _weaker
+party_ in a nation. It is only the weaker party that lose their
+liberties, when a government becomes oppressive. The stronger party, in
+all governments, are free by virtue of their superior strength. They
+never oppress themselves.
+
+Legislation is the work of this stronger party; and if, in addition to
+the sole power of legislating, they have the sole power of determining
+what legislation shall be enforced, they have all power in their hands,
+and the weaker party are the subjects of an absolute government.
+
+Unless the weaker party have a veto, either upon the making, or the
+enforcement of laws, they have no power whatever in the government, and
+can of course have no liberties except such as the stronger party, in
+their arbitrary discretion, see fit to permit them to enjoy.
+
+In England and the United States, the trial by jury is the only
+institution that gives the weaker party any veto upon the power of the
+stronger. Consequently it is the only institution, that gives them any
+effective voice in the government, or any guaranty against oppression.
+
+Suffrage, however free, is of no avail for this purpose; because the
+suffrage of the minority is overborne by the suffrage of the majority,
+and is thus rendered powerless for purposes of legislation. The
+responsibility of officers can be made of no avail, because they are
+responsible only to the majority. The minority, therefore, are wholly
+without rights in the government, wholly at the mercy of the majority,
+unless, through the trial by jury, they have a veto upon such
+legislation as they think unjust.
+
+Government is established for the protection of the weak against the
+strong. This is the principal, if not the sole, motive for the
+establishment of all legitimate government. Laws, that are sufficient
+for the protection of the weaker party, are of course sufficient for the
+protection of the stronger party; because the strong can certainly need
+no more protection than the weak. It is, therefore, right that the
+weaker party should be represented in the tribunal which is finally to
+determine what legislation may be enforced; and that no legislation
+shall be enforced against their consent. They being presumed to be
+competent judges of what kind of legislation makes for their safety, and
+what for their injury, it must be presumed that any legislation, which
+_they_ object to enforcing, tends to their oppression, and not to their
+security.
+
+There is still another reason why the weaker party, or the minority,
+should have a veto upon all legislation which they disapprove. _That
+reason is, that that is the only means by which the government can be
+kept within the limits of the contract, compact, or constitution, by
+which the whole people agree to establish government._ If the majority
+were allowed to interpret the compact for themselves, and enforce it
+according to their own interpretation, they would, of course, make it
+authorize them to do whatever they wish to do.
+
+The theory of free government is that it is formed by the voluntary
+contract of the people individually with each other. This is the theory,
+(although it is not, as it ought to be, the fact,) in all the
+governments in the United States, as also in the government of England.
+The theory assumes that each man, who is a party to the government, and
+contributes to its support, has individually and freely consented to it.
+Otherwise the government would have no right to tax him for its
+support,--for taxation without consent is robbery. This theory, then,
+necessarily supposes that this government, which is formed by the free
+consent of all, has no powers except such as _all_ the parties to it
+have individually agreed that it shall have; and especially that it has
+no power to pass any _laws_, except such as _all_ the parties have
+agreed that it may pass.
+
+This theory supposes that there may be certain laws that will be
+beneficial to _all_,--so beneficial that _all_ consent to be taxed for
+their maintenance. For the maintenance of these specific laws, in which
+all are interested, all associate. And they associate for the
+maintenance of those laws _only_, in which _all_ are interested. It
+would be absurd to suppose that all would associate, and consent to be
+taxed, for purposes which were beneficial only to a part; and especially
+for purposes that were injurious to any. A government of the whole,
+therefore, can have no powers except such as _all_ the parties consent
+that it may have. It can do nothing except what _all_ have consented
+that it may do. And if any portion of the people,--no matter how large
+their number, if it be less than the whole,--desire a government for any
+purposes other than those that are common to all, and desired by all,
+they must form a separate association for those purposes. They have no
+right,--by perverting this government of the whole, to the
+accomplishment of purposes desired only by a part,--to compel any one to
+contribute to purposes that are either useless or injurious to himself.
+
+Such being the principles on which the government is formed, the
+question arises, how shall this government, when formed, be kept within
+the limits of the contract by which it was established? How shall this
+government, instituted by the whole people, agreed to by the whole
+people, supported by the contributions of the whole people, be confined
+to the accomplishment of those purposes alone, which the whole people
+desire? How shall it be preserved from degenerating into a mere
+government for the benefit of a part only of those who established, and
+who support it? How shall it be prevented from even injuring a part of
+its own members, for the aggrandizement of the rest? Its laws must be,
+(or at least now are,) passed, and most of its other acts performed, by
+mere agents,--agents chosen by a part of the people, and not by the
+whole. How can these agents be restrained from seeking their own
+interests, and the interests of those who elected them, at the expense
+of the rights of the remainder of the people, by the passage and
+enforcement of laws that shall be partial, unequal, and unjust in their
+operation? That is the great question. And the trial by jury answers it.
+And how does the trial by jury answer it? It answers it, as has already
+been shown throughout this volume, by saying that these mere agents and
+attorneys, who are chosen by a part only of the people, and are liable
+to be influenced by partial and unequal purposes, shall not have
+unlimited authority in the enactment and enforcement of laws; that they
+shall not exercise _all_ the functions of government. It says that they
+shall never exercise that ultimate power of compelling obedience to the
+laws by punishing for disobedience, or of executing the laws against the
+person or property of any man, without first getting the consent of the
+people, through a tribunal that may fairly be presumed to represent the
+whole, or substantially the whole, people. It says that if the power to
+make laws, and the power also to enforce them, were committed to these
+agents, they would have all power,--would be absolute masters of the
+people, and could deprive them of their rights at pleasure. It says,
+therefore, that the people themselves will hold a veto upon the
+enforcement of any and every law, which these agents may enact, and that
+whenever the occasion arises for them to give or withhold their
+consent,--inasmuch as the whole people cannot assemble, or devote the
+time and attention necessary to the investigation of each case,--twelve
+of their number shall be taken by lot, or otherwise at random, from the
+whole body; that they shall not be chosen by majorities, (the same
+majorities that elected the agents who enacted the laws to be put in
+issue,) nor by any interested or suspected party; that they shall not be
+appointed by, or be in any way dependent upon, those who enacted the
+law; that their opinions, whether for or against the law that is in
+issue, shall not be inquired of beforehand; and that if these twelve men
+give their consent to the enforcement of the law, their consent shall
+stand for the consent of the whole.
+
+This is the mode, which the trial by jury provides, for keeping the
+government within the limits designed by the whole people, who have
+associated for its establishment. And it is the only mode, provided
+either by the English or American constitutions, for the accomplishment
+of that object.
+
+But it will, perhaps, be said that if the minority can defeat the will
+of the majority, then the minority _rule_ the majority. But this is not
+true in any unjust sense. The minority enact no laws of their own. They
+simply refuse their assent to such laws of the majority as they do not
+approve. The minority assume no authority over the majority; they simply
+defend themselves. They do not interfere with the right of the majority
+to seek their own happiness in their own way, so long as they (the
+majority) do not interfere with the minority. They claim simply not to
+be oppressed, and not to be compelled to assist in doing anything which
+they do not approve. They say to the majority, "We will unite with you,
+if you desire it, for the accomplishment of all those purposes, in
+which we have a common interest with you. You can certainly expect us to
+do nothing more. If you do not choose to associate with us on those
+terms, there must be two separate associations. You must associate for
+the accomplishment of your purposes; we for the accomplishment of ours."
+
+In this case, the minority assume no authority over the majority; they
+simply refuse to surrender their own liberties into the hands of the
+majority. They propose a union; but decline submission. The majority are
+still at liberty to refuse the connection, and to seek their own
+happiness in their own way, except that they cannot be gratified in
+their desire to become absolute masters of the minority.
+
+But, it may be asked, how can the minority be trusted to enforce even
+such legislation as is equal and just? The answer is, that they are as
+reliable for that purpose as are the majority; they are as much presumed
+to have associated, and are as likely to have associated, for that
+object, as are the majority; and they have as much interest in such
+legislation as have the majority. They have even more interest in it;
+for, being the weaker party, they must rely on it for their
+security,--having no other security on which they can rely. Hence their
+consent to the establishment of government, and to the _taxation_
+required for its support, is _presumed_, (although it ought not to be
+presumed,) without any express consent being given. This presumption of
+their consent to be taxed for the maintenance of laws, would be absurd,
+if they could not themselves be trusted to act in good faith in
+enforcing those laws. And hence they cannot be presumed to have
+consented to be taxed for the maintenance of any laws, except such as
+they are themselves ready to aid in enforcing. It is therefore unjust to
+tax them, unless they are eligible to seats in a jury, with power to
+judge of the justice of the laws. Taxing them for the support of the
+laws, on the assumption that they are in favor of the laws, and at the
+same time refusing them the right, as jurors, to judge of the justice of
+the laws, on the assumption that they are opposed to the laws, are flat
+contradictions.
+
+But, it will be asked, what motive have the majority, when they have
+all power in their own hands, to submit their will to the veto of the
+minority?
+
+One answer is, that they have the motive of justice. It would be
+_unjust_ to compel the minority to contribute, by taxation, to the
+support of any laws which they did not approve.
+
+Another answer is, that if the stronger party wish to use their power
+only for purposes of justice, they have no occasion to fear the veto of
+the weaker party; for the latter have as strong motives for the
+maintenance of _just_ government, as have the former.
+
+Another answer is, that if the stronger party use their power
+_unjustly_, they will hold it by an uncertain tenure, especially in a
+community where knowledge is diffused; for knowledge will enable the
+weaker party to make itself in time the stronger party. It also enables
+the weaker party, even while it remains the weaker party, perpetually to
+annoy, alarm, and injure their oppressors. Unjust power,--or rather
+power that is _grossly_ unjust, and that is known to be so by the
+minority,--can be sustained only at the expense of standing armies, and
+all the other machinery of force; for the oppressed party are always
+ready to risk their lives for purposes of vengeance, and the acquisition
+of their rights, whenever there is any tolerable chance of success.
+Peace, safety, and quiet for all, can be enjoyed only under laws that
+obtain the consent of all. Hence tyrants frequently yield to the demands
+of justice from those weaker than themselves, as a means of buying peace
+and safety.
+
+Still another answer is, that those who are in the majority on one law,
+will be in the minority on another. All, therefore, need the benefit of
+the veto, at some time or other, to protect themselves from injustice.
+
+That the limits, within which legislation would, by this process, be
+confined, would be exceedingly narrow, in comparison with those it at
+present occupies, there can be no doubt. All monopolies, all special
+privileges, all sumptuary laws, all restraints upon any traffic,
+bargain, or contract, that was naturally lawful,[117] all restraints
+upon men's natural rights, the whole catalogue of _mala prohibita_, and
+all taxation to which the taxed parties had not individually, severally,
+and freely consented, would be at an end; because all such legislation
+implies a violation of the rights of a greater or less minority. This
+minority would disregard, trample upon, or resist, the execution of such
+legislation, and then throw themselves upon a jury of the whole people
+for justification and protection. In this way all legislation would be
+nullified, except the legislation of that general nature which
+impartially protected the rights, and subserved the interests, of all.
+The only legislation that could be sustained, would probably be such as
+tended directly to the maintenance of justice and liberty; such, for
+example, as should contribute to the enforcement of contracts, the
+protection of property, and the prevention and punishment of acts
+intrinsically criminal. In short, government in practice would be
+brought to the necessity of a strict adherence to natural law, and
+natural justice, instead of being, as it now is, a great battle, in
+which avarice and ambition are constantly fighting for and obtaining
+advantages over the natural rights of mankind.
+
+[Footnote 117: Such as restraints upon banking, upon the rates of
+interest, upon traffic with foreigners, &c., &c.]
+
+
+
+
+APPENDIX.
+
+TAXATION.
+
+
+It was a principle of the Common Law, as it is of the law of nature, and
+of common sense, that no man can be taxed without his personal consent.
+The Common Law knew nothing of that system, which now prevails in
+England, of _assuming_ a man's own consent to be taxed, because some
+pretended representative, whom he never authorized to act for him, has
+taken it upon himself to consent that he may be taxed. That is one of
+the many frauds on the Common Law, and the English constitution, which
+have been introduced since Magna Carta. Having finally established
+itself in England, it has been stupidly and servilely copied and
+submitted to in the United States.
+
+If the trial by jury were reëstablished, the Common Law principle of
+taxation would be reëstablished with it; for it is not to be supposed
+that juries would enforce a tax upon an individual which he had never
+agreed to pay. Taxation without consent is as plainly robbery, when
+enforced against one man, as when enforced against millions; and it is
+not to be imagined that juries could be blind to so self-evident a
+principle. Taking a man's money without his consent, is also as much
+robbery, when it is done by millions of men, acting in concert, and
+calling themselves a government, as when it is done by a single
+individual, acting on his own responsibility, and calling himself a
+highwayman. Neither the numbers engaged in the act, nor the different
+characters they assume as a cover for the act, alter the nature of the
+act itself.
+
+If the government can take a man's money without his consent, there is
+no limit to the additional tyranny it may practise upon him; for, with
+his money, it can hire soldiers to stand over him, keep him in
+subjection, plunder him at discretion, and kill him if he resists. And
+governments always will do this, as they everywhere and always have done
+it, except where the Common Law principle has been established. It is
+therefore a first principle, a very _sine qua non_ of political freedom,
+that a man can be taxed only by his personal consent. And the
+establishment of this principle, with _trial by jury_, insures freedom
+of course; because: 1. No man would pay his money unless he had first
+contracted for such a government as he was willing to support; and, 2.
+Unless the government then kept itself within the terms of its contract,
+juries would not enforce the payment of the tax. Besides, the agreement
+to be taxed would probably be entered into but for a year at a time. If,
+in that year, the government proved itself either inefficient or
+tyrannical, to any serious degree, the contract would not be renewed.
+The dissatisfied parties, if sufficiently numerous for a new
+organization, would form themselves into a separate association for
+mutual protection. If not sufficiently numerous for that purpose, those
+who were conscientious would forego all governmental protection, rather
+than contribute to the support of a government which they deemed unjust.
+
+All legitimate government is a mutual insurance company, voluntarily
+agreed upon by the parties to it, for the protection of their rights
+against wrong-doers. In its voluntary character it is precisely similar
+to an association for mutual protection against fire or shipwreck.
+Before a man will join an association for these latter purposes, and pay
+the premium for being insured, he will, if he be a man of sense, look at
+the articles of the association; see what the company promises to do;
+what it is likely to do; and what are the rates of insurance. If he be
+satisfied on all these points, he will become a member, pay his premium
+for a year, and then hold the company to its contract. If the conduct of
+the company prove unsatisfactory, he will let his policy expire at the
+end of the year for which he has paid; will decline to pay any further
+premiums, and either seek insurance elsewhere, or take his own risk
+without any insurance. And as men act in the insurance of their ships
+and dwellings, they would act in the insurance of their properties,
+liberties and lives, in the political association, or government.
+
+The political insurance company, or government, have no more right, in
+nature or reason, to _assume_ a man's consent to be protected by them,
+and to be taxed for that protection, when he has given no actual
+consent, than a fire or marine insurance company have to assume a man's
+consent to be protected by them, and to pay the premium, when his actual
+consent has never been given. To take a man's property without his
+consent is robbery; and to assume his consent, where no actual consent
+is given, makes the taking none the less robbery. If it did, the
+highwayman has the same right to assume a man's consent to part with his
+purse, that any other man, or body of men, can have. And his assumption
+would afford as much moral justification for his robbery as does a like
+assumption, on the part of the government, for taking a man's property
+without his consent. The government's pretence of protecting him, as an
+equivalent for the taxation, affords no justification. It is for himself
+to decide whether he desires such protection as the government offers
+him. If he do not desire it, or do not bargain for it, the government
+has no more right than any other insurance company to impose it upon
+him, or make him pay for it.
+
+Trial by the country, and no taxation without consent, were the two
+pillars of English liberty, (when England had any liberty,) and the
+first principles of the Common Law. They mutually sustain each other;
+and neither can stand without the other. Without both, no people have
+any guaranty for their freedom; with both, no people can be otherwise
+than free.[118]
+
+By what force, fraud, and conspiracy, on the part of kings, nobles, and
+"a few wealthy freeholders," these pillars have been prostrated in
+England, it is designed to show more fully in the next volume, if it
+should be necessary.
+
+[Footnote 118: Trial by the country, and no taxation without consent,
+mutually sustain each other, and can be sustained only by each other,
+for these reasons: 1. Juries would refuse to enforce a tax against a man
+who had never agreed to pay it. They would also protect men in forcibly
+resisting the collection of taxes to which they had never consented.
+Otherwise the jurors would authorize the government to tax themselves
+without their consent,--a thing which no jury would be likely to do. In
+these two ways, then, trial by the country would sustain the principle
+of no taxation without consent. 2. On the other hand, the principle of
+no taxation without consent would sustain the trial by the country,
+because men in general would not consent to be taxed for the support of
+a government under which trial by the country was not secured. Thus
+these two principles mutually sustain each other.
+
+But, if either of these principles were broken down, the other would
+fall with it, and for these reasons: 1. If trial by the country were
+broken down, the principle of no taxation without consent would fall
+with it, because the government would then be _able_ to tax the people
+without their consent, inasmuch as the legal tribunals would be mere
+tools of the government, and would enforce such taxation, and punish men
+for resisting such taxation, as the government ordered. 2. On the other
+hand, if the principle of no taxation without consent were broken down,
+trial by the country would fall with it, because the government, if it
+could tax people without their consent, would, of course, take enough of
+their money to enable it to employ all the force necessary for
+sustaining its own tribunals, (in the place of juries,) and carrying
+their decrees into execution.]
+
+
+
+
+
+End of Project Gutenberg's An Essay on the Trial by Jury, by Lysander Spooner
+
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+Project Gutenberg's An Essay on the Trial by Jury, by Lysander Spooner
+
+This eBook is for the use of anyone anywhere at no cost and with
+almost no restrictions whatsoever.  You may copy it, give it away or
+re-use it under the terms of the Project Gutenberg License included
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+
+Title: An Essay on the Trial by Jury
+
+Author: Lysander Spooner
+
+Release Date: June 27, 2010 [EBook #32984]
+
+Language: English
+
+Character set encoding: ISO-8859-1
+
+*** START OF THIS PROJECT GUTENBERG EBOOK AN ESSAY ON THE TRIAL BY JURY ***
+
+
+
+
+Produced by Susan Goble, Curtis Weyant, Graeme Mackreth
+and the Online Distributed Proofreading Team at
+https://www.pgdp.net
+
+
+
+
+
+
+</pre>
+
+
+
+
+<h3>
+AN ESSAY</h3>
+
+<h4>ON THE</h4>
+
+<h1>TRIAL BY JURY.</h1>
+
+
+<h3>BY LYSANDER SPOONER.</h3>
+
+
+<p style="margin-top: 10em;" class='center'><small>BOSTON:<br />
+JOHN P. JEWETT AND COMPANY.<br />
+CLEVELAND, OHIO:<br />
+JEWETT, PROCTOR &amp; WORTHINGTON.<br />
+1852.</small>
+</p>
+
+<p style="margin-top: 5em; font-size:smaller;" class='center'><small>
+Entered according to Act of Congress, in the year 1852, by<br />
+LYSANDER SPOONER,<br />
+In the Clerk's Office of the District Court of Massachusetts.</small>
+</p>
+
+
+<p style="margin-top: 5em;" class='center'>NOTICE TO ENGLISH PUBLISHERS.</p>
+
+<p>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.</p>
+
+<p style="margin-top: 5em; font-size:smaller;" class='center'><small>
+Stereotyped by<br />
+HOBART &amp; ROBBINS;<br />
+New England Type and Stereotype Foundery,<br />
+BOSTON.</small>
+</p>
+
+<p  style="margin-top: 10em;" class='center'>NOTE.</p>
+
+<p>This volume, it is presumed by the author, gives what will generally be
+considered satisfactory evidence,&mdash;though not all the evidence,&mdash;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 re&euml;stablished.</p>
+
+
+
+<hr style="width: 65%;" />
+<h2>CONTENTS.</h2>
+
+
+
+<table summary='TOC'>
+<tr>
+<td>CHAPTER I.
+</td>
+<td><a href="#CHAPTER_I">THE RIGHT OF JURIES TO JUDGE OF THE JUSTICE OF LAWS,</a>
+</td>
+</tr>
+<tr>
+<td>
+</td>
+<td> <span class="smcap"><a href="#link_1">Section 1</a></span>,
+</td>
+</tr>
+<tr>
+<td>
+</td>
+<td><span class="smcap"><a href="#link_2">Section 2</a></span>,
+</td>
+</tr>
+<tr>
+<td>CHAPTER II.
+</td>
+<td><a href="#CHAPTER_II">THE TRIAL BY JURY, AS DEFINED BY MAGNA CARTA,</a>
+</td>
+</tr>
+<tr>
+<td>
+</td>
+<td><span class="smcap">Section 1.</span> <a href="#link_3"><i>The History of Magna Carta</i></a>,
+</td>
+</tr>
+<tr>
+<td>
+</td>
+<td><span class="smcap">Section 2.</span> <a href="#link_4"><i>The Language of Magna Carta</i>,</a>
+</td>
+</tr>
+<tr>
+<td>CHAPTER III.
+</td>
+<td><a href="#CHAPTER_III">ADDITIONAL PROOFS OF THE RIGHTS AND DUTIES OF JURORS,</a>
+</td>
+</tr>
+<tr>
+<td>
+</td>
+<td><span class="smcap">Section 1.</span><a href="#link_5"><i>Weakness of the Regal Authority</i>,</a>
+</td>
+</tr>
+<tr>
+<td>
+</td>
+<td><span class="smcap">Section 2.</span> <a href="#link_6"><i>The Ancient Common Law Juries were mere Courts of Conscience</i></a>,
+</td>
+</tr>
+<tr>
+<td>
+</td>
+<td><span class="smcap">Section 3.</span> <a href="#link_7"><i>The Oaths of Jurors</i>,</a>
+</td>
+</tr>
+<tr>
+<td>
+</td>
+<td><span class="smcap">Section 4.</span><a href="#link_8"><i>The Right of Jurors to fix the Sentence</i>,</a>
+</td>
+</tr>
+<tr>
+<td>
+</td>
+<td><span class="smcap">Section 5.</span> <a href="#link_9"><i>The Oaths of Judges</i>,</a>
+</td>
+</tr>
+<tr>
+<td>
+</td>
+<td><span class="smcap">Section 6.</span> <a href="#link_10"><i>The Coronation Oath</i>,</a>
+</td>
+</tr>
+<tr>
+<td>CHAPTER IV.
+</td>
+<td><a href="#CHAPTER_IV">THE RIGHTS AND DUTIES OF JURIES IN CIVIL SUITS,</a>
+</td>
+</tr>
+<tr>
+<td>CHAPTER V.
+</td>
+<td><a href="#CHAPTER_V">OBJECTIONS ANSWERED,</a>
+</td>
+</tr>
+<tr>
+<td>CHAPTER VI.
+</td>
+<td><a href="#CHAPTER_VI">JURIES OF THE PRESENT DAY ILLEGAL,</a>
+</td>
+</tr>
+<tr>
+<td>CHAPTER VII.
+</td>
+<td><a href="#CHAPTER_VII">ILLEGAL JUDGES,</a>
+</td>
+</tr>
+<tr>
+<td>CHAPTER VIII.
+</td>
+<td><a href="#CHAPTER_VIII">THE FREE ADMINISTRATION OF JUSTICE,</a>
+</td>
+</tr>
+<tr>
+<td>CHAPTER IX.
+</td>
+<td><a href="#CHAPTER_IX">THE CRIMINAL INTENT,</a>
+</td>
+</tr>
+<tr>
+<td>CHAPTER X.
+</td>
+<td><a href="#CHAPTER_X">MORAL CONSIDERATIONS FOR JURORS,</a>
+</td>
+</tr>
+<tr>
+<td>CHAPTER XI.
+</td>
+<td><a href="#CHAPTER_XI">AUTHORITY OF MAGNA CARTA,</a>
+</td>
+</tr>
+<tr>
+<td>CHAPTER XII.
+</td>
+<td><a href="#CHAPTER_XII"> LIMITATIONS IMPOSED UPON THE MAJORITY BY THE TRIAL BY JURY,</a>
+</td>
+</tr>
+<tr>
+<td>APPENDIX&mdash;
+</td>
+<td><span class="smcap"><a href="#link_11">Taxation</a></span>,
+</td>
+</tr>
+</table>
+
+
+
+
+
+
+
+
+
+
+
+
+<hr style="width: 65%;" />
+<h2>TRIAL BY JURY.</h2>
+
+
+
+<hr style="width: 65%;" />
+<h2><a name="CHAPTER_I" id="CHAPTER_I"></a>CHAPTER I.</h2>
+
+<p class='center'><b>THE RIGHT OF JURIES TO JUDGE OF THE JUSTICE OF LAWS.</b></p>
+
+
+<p class='center' ><b><a name="link_1" id="link_1"></a>SECTION I.</b><span class='pagenum'><a name="Page_5" id="Page_5">[Pg 5]</a></span></p>
+
+<p>For more than six hundred years&mdash;that is, since Magna Carta, in
+1215&mdash;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; <i>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</i>.</p>
+
+<p>Unless such be the right and duty of jurors, it is plain that, instead
+of juries being a "palladium of liberty"&mdash;a barrier against the tyranny
+and oppression of the government&mdash;they are really mere tools in its
+hands, for carrying into execution any injustice and oppression it may
+desire to have executed.</p>
+
+<p>But for their right to judge of the law, <i>and the justice of the law</i>,
+juries would be no protection to an accused person, <i>even as to matters
+of fact</i>; 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, <i>and also what force or weight is to be given to the
+evidence admitted</i>. 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<span class='pagenum'><a name="Page_6" id="Page_6">[Pg 6]</a></span> to convict on any evidence whatever
+that it pleases to offer them.</p>
+
+<p>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.</p>
+
+<p><i>"The trial by jury," then, is a "trial by the country"&mdash;that is, by the
+people&mdash;as distinguished from a trial by the government.</i></p>
+
+<p>It was anciently called "trial <i>per pais</i>"&mdash;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 <i>country</i>; which <i>country</i>
+you (the jury) are."</p>
+
+<p><i>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?</i></p>
+
+<p>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&mdash;or at least no more accurate&mdash;definition of a
+despotism than this.</p>
+
+<p>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.
+<i>And this is freedom.</i> At least, it is freedom <i>to them</i>; because,
+although it may be theoretically imperfect, it, nevertheless,
+corresponds to <i>their</i> highest notions of freedom.</p>
+
+<p>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, <i>by lot</i>, or by some
+process that precludes any previous knowledge, choice, or selection of
+them, on the part of the government.<span class='pagenum'><a name="Page_7" id="Page_7">[Pg 7]</a></span> 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 <i>packing</i> a jury, with a view
+to maintain its own laws, and accomplish its own purposes.</p>
+
+<p>It is supposed that, if twelve men be taken, <i>by lot</i>, 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&mdash;that is, with the government.</p>
+
+<p>It is fairly presumable that such a tribunal will agree to no conviction
+except such as <i>substantially the whole country</i> 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 <i>whole</i> country, as any trial
+that it is practicable to have, without too great inconvenience and
+expense. And as unanimity is required for a conviction, it follows that
+no one can be convicted, except for the violation of such laws as
+substantially the whole country wish to have maintained. The government
+can enforce none of its laws, (by punishing offenders, through the
+verdicts of juries,) except such as substantially the whole people wish
+to have enforced. The government, therefore, consistently with the trial
+by jury, can exercise no powers over the people, (or, what is the same
+thing, over the accused person, who represents the rights of the
+people,) except such as substantially the whole people of the country
+consent that it may exercise. In such a trial, therefore, "the country,"
+or the people, judge of and determine their own liberties against the
+government, instead of the<span class='pagenum'><a name="Page_8" id="Page_8">[Pg 8]</a></span> government's judging of and determining its
+own powers over the people.</p>
+
+<p>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.</p>
+
+<p>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.<a name="FNanchor_1_1" id="FNanchor_1_1"></a><a href="#Footnote_1_1" class="fnanchor">[1]</a></p>
+
+<p>So, also, if the government may dictate to the jury <i>what laws they are
+to enforce</i>, it is no longer a "trial by the country,"<span class='pagenum'><a name="Page_9" id="Page_9">[Pg 9]</a></span> but a trial by
+the government; because the jury then try the accused, not by any
+standard of their own&mdash;not by their own judgments of their rightful
+liberties&mdash;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.</p>
+
+<p>The jury are also to judge whether the laws are rightly expounded to
+them by the court. Unless they judge on this point, they do nothing to
+protect their liberties against the oppressions that are capable of
+being practised under cover of a corrupt exposition of the laws. If the
+judiciary can authoritatively dictate to a jury any exposition of the
+law, they can dictate to them the law itself, and such laws as they
+please; because laws are, in practice, one thing or another, according
+as they are expounded.<span class='pagenum'><a name="Page_10" id="Page_10">[Pg 10]</a></span></p>
+
+<p>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.</p>
+
+<p>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.</p>
+
+<p>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; <i>of the justice
+of the law</i>; 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.</p>
+
+<p>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&mdash;the government, or the people; because
+there is no third party to whom it can be entrusted. If the authority be
+vested in the government, the government is absolute, and the people
+have no liberties except such as the government sees fit to indulge them
+with. If, on the other hand, that authority be vested in the people,
+then the people have all liberties, (as against the government,) except
+such as substan<span class='pagenum'><a name="Page_11" id="Page_11">[Pg 11]</a></span>tially the whole people (through a jury) choose to
+disclaim; and the government can exercise no power except such as
+substantially the whole people (through a jury) consent that it may
+exercise.</p>
+
+
+<p class='center'><b><a name="link_2" id="link_2"></a>SECTION II.</b></p>
+
+<p>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.</p>
+
+<p>There are two answers to such an argument.</p>
+
+<p>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,<a name="FNanchor_2_2" id="FNanchor_2_2"></a><a href="#Footnote_2_2" class="fnanchor">[2]</a> 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<span class='pagenum'><a name="Page_12" id="Page_12">[Pg 12]</a></span> same
+veto is exercised by the representatives, the senate, the executive, or
+the judges.</p>
+
+<p>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, <i>are
+merely the servants and agents of the people</i>; 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&mdash;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 <i>punish</i> 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.</p>
+
+<p>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? <i>If it have now but got it</i>, the
+government is absolute.</p>
+
+<p>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.</p>
+
+<p>It is of no avail to say, in answer to this view of the case, that in
+surrendering their liberties into the hands of the government, the
+people took an oath from the government, that it would exercise its
+power within certain constitutional limits; for when did oaths ever
+restrain a government that was otherwise unrestrained? Or when did a
+government fail to determine that all its acts were within the
+constitutional and authorized<span class='pagenum'><a name="Page_13" id="Page_13">[Pg 13]</a></span> limits of its power, if it were permitted
+to determine that question for itself?</p>
+
+<p>Neither is it of any avail to say, that, if the government abuse its
+power, and enact unjust and oppressive laws, the government may be
+changed by the influence of discussion, and the exercise of the right of
+suffrage. Discussion can do nothing to prevent the enactment, or procure
+the repeal, of unjust laws, unless it be understood that the discussion
+is to be followed by resistance. Tyrants care nothing for discussions
+that are to end only in discussion. Discussions, which do not interfere
+with the enforcement of their laws, are but idle wind to them. Suffrage
+is equally powerless and unreliable. It can be exercised only
+periodically; and the tyranny must at least be borne until the time for
+suffrage comes. Besides, when the suffrage is exercised, it gives no
+guaranty for the repeal of existing laws that are oppressive, and no
+security against the enactment of new ones that are equally so. The
+second body of legislators are liable and likely to be just as
+tyrannical as the first. If it be said that the second body may be
+chosen for their integrity, the answer is, that the first were chosen
+for that very reason, and yet proved tyrants. The second will be exposed
+to the same temptations as the first, and will be just as likely to
+prove tyrannical. Who ever heard that succeeding legislatures were, on
+the whole, more honest than those that preceded them? What is there in
+the nature of men or things to make them so? If it be said that the
+first body were chosen from motives of injustice, that fact proves that
+there is a portion of society who desire to establish injustice; and if
+they were powerful or artful enough to procure the election of their
+instruments to compose the first legislature, they will be likely to be
+powerful or artful enough to procure the election of the same or similar
+instruments to compose the second. The right of suffrage, therefore, and
+even a change of legislators, guarantees no change of
+legislation&mdash;certainly no change for the better. Even if a change for
+the better actually comes, it comes too late, because it comes only
+after more or less injustice has been irreparably done.</p>
+
+<p>But, at best, the right of suffrage can be exercised only periodically;
+and between the periods the legislators are wholly<span class='pagenum'><a name="Page_14" id="Page_14">[Pg 14]</a></span> 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 <i>to the people</i>, 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.</p>
+
+<p>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.</p>
+
+<p>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&mdash;that is, if
+it can, for a day, enforce obedience to its own laws&mdash;it can, in that
+day, secure its power for all time&mdash;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.</p>
+
+<p>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.<span class='pagenum'><a name="Page_15" id="Page_15">[Pg 15]</a></span></p>
+
+<p>The conclusion, therefore, is, that any government, that can, <i>for a
+day</i>, 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.</p>
+
+<p>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.</p>
+
+<p>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.<a name="FNanchor_3_3" id="FNanchor_3_3"></a><a href="#Footnote_3_3" class="fnanchor">[3]</a></p>
+
+<p>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.</p>
+
+<p>Those who deny the right of a jury to protect an individual in resisting
+an unjust law of the government, deny him all<span class='pagenum'><a name="Page_16" id="Page_16">[Pg 16]</a></span> <i>legal</i> defence
+whatsoever against oppression. The right of revolution, which tyrants,
+in mockery, accord to mankind, is no <i>legal</i> right <i>under</i> a government;
+it is only a <i>natural</i> 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 <i>unsuccessful</i>
+attempts at revolution, however justifiable in themselves, are punished
+as treason, if the government be permitted to judge of the treason. The
+government itself never admits the injustice of its laws, as a legal
+defence for those who have attempted a revolution, and failed. The right
+of revolution, therefore, is a right of no practical value, except for
+those who are stronger than the government. So long, therefore, as the
+oppressions of a government are kept within such limits as simply not to
+exasperate against it a power greater than its own, the right of
+revolution cannot be appealed to, and is therefore inapplicable to the
+case. This affords a wide field for tyranny; and if a jury cannot <i>here</i>
+intervene, the oppressed are utterly defenceless.</p>
+
+<p>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, <i>unless it
+be forcibly resisted</i>. And if it be but suffered to be executed, it must
+then be borne; for the government never makes compensation for its own
+wrongs.</p>
+
+<p>Since, then, this forcible resistance to the injustice of the government
+is the only possible means of preserving liberty, it is indispensable to
+all <i>legal</i> liberty that this <i>resistance</i> should be <i>legalized</i>. It is
+perfectly self-evident that where there is no <i>legal</i> right to resist
+the oppression of the government, there can be no <i>legal</i> liberty. And
+here it is all-important to notice, that, <i>practically speaking</i>, there
+can be no <i>legal</i> right to resist the oppressions of the government,
+unless there be some <i>legal</i> tribunal, other than the government, and
+wholly independent of, and <i>above</i>, 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<span class='pagenum'><a name="Page_17" id="Page_17">[Pg 17]</a></span> 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, <i>legally
+speaking</i>, are slaves. Like many other slaves they may have sufficient
+courage and strength to keep their masters somewhat in check; but they
+are nevertheless <i>known to the law</i> only as slaves.</p>
+
+<p>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.<a name="FNanchor_4_4" id="FNanchor_4_4"></a><a href="#Footnote_4_4" class="fnanchor">[4]</a></p>
+
+<p>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"&mdash;that is, by the country&mdash;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&mdash;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<span class='pagenum'><a name="Page_18" id="Page_18">[Pg 18]</a></span> 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 <i>legal</i>
+defence for a person accused of using arms against the government, if he
+can show, to the satisfaction of a jury, <i>or even any one of a jury</i>,
+that the law he resisted was an unjust one.</p>
+
+<p>In the American <i>State</i> 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 "<i>defending</i>
+their lives and liberties." This, of course, means that they have a
+right to defend them against any injustice <i>on the part of the
+government</i>, 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, <i>as against the government</i>, 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.</p>
+
+<p>Many of these bills of rights also assert the natural right of all men
+to protect their property&mdash;that is, to protect it <i>against the
+government</i>. 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.<span class='pagenum'><a name="Page_19" id="Page_19">[Pg 19]</a></span></p>
+
+<p>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."</p>
+
+<p>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.</p>
+
+<p>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&mdash;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.</p>
+
+<p>The bounds set to the power of the government, by the trial by jury, as
+will hereafter be shown, are these&mdash;that the government shall never
+touch the property, person, or natural or civil rights of an individual,
+against his consent, (except for the purpose of bringing them before a
+jury for trial,) unless in pursuance and <i>execution</i> of a judgment, or
+decree, rendered by a jury in each individual case, upon such evidence,
+and such law, as are satisfactory to their own understandings and
+consciences, irrespective of all legislation of the government.</p>
+
+<div class='footnotes'><h3>Footnotes</h3>
+<div class="footnote"><p><a name="Footnote_1_1" id="Footnote_1_1"></a><a href="#FNanchor_1_1"><span class="label">[1]</span></a> 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 <i>against the government</i>&mdash;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.
+</p>
+<div class="blockquot"><p>"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, <i>and
+constituting the offence</i>, are proved against him, and the court
+direct you that the law is constitutional?"</p></div>
+<p>
+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.
+</p><p>
+A similar question was soon afterwards propounded to the persons drawn
+as jurors in the United States <i>Circuit</i> 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.
+</p><p>
+It has also been an habitual practice with the Supreme Court of
+Massachusetts, in empanelling juries for the trial of <i>capital</i>
+offences, to inquire of the persons drawn as jurors whether they had any
+conscientious scruples against finding verdicts of guilty in such cases;
+that is, whether they had any conscientious scruples against sustaining
+the law prescribing death as the punishment of the crime to be tried;
+and to exclude from the panel all who answered in the affirmative.
+</p><p>
+The only principle upon which these questions are asked, is this&mdash;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.
+</p><p>
+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&mdash;and not a trial by the
+country&mdash;because it is a trial only by men specially selected by the
+government for their readiness to enforce its own tyrannical measures.
+</p><p>
+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.
+</p><p>
+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.</p></div>
+
+<div class="footnote"><p><a name="Footnote_2_2" id="Footnote_2_2"></a><a href="#FNanchor_2_2"><span class="label">[2]</span></a> 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.</p></div>
+
+<div class="footnote"><p><a name="Footnote_3_3" id="Footnote_3_3"></a><a href="#FNanchor_3_3"><span class="label">[3]</span></a> And if there be so much as a reasonable <i>doubt</i> 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 <i>clearly</i> within the limits of justice, if it would ask a jury
+to enforce them.</p></div>
+
+<div class="footnote"><p><a name="Footnote_4_4" id="Footnote_4_4"></a><a href="#FNanchor_4_4"><span class="label">[4]</span></a> <i>Hallam</i> 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 <i>lawfully</i> 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."&mdash;<i>3 Middle Ages</i>,
+240-2.</p></div></div>
+
+
+
+<hr style="width: 65%;" />
+<h2><a name="CHAPTER_II" id="CHAPTER_II"></a>CHAPTER II.</h2>
+
+<p class='center'><b>THE TRIAL BY JURY, AS DEFINED BY MAGNA CARTA.</b><span class='pagenum'><a name="Page_20" id="Page_20">[Pg 20]</a></span></p>
+
+
+<p>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.</p>
+
+
+<p class='center'><b>SECTION I.</b></p>
+
+<p class='center'><i><a name="link_3" id="link_3"></a>The History of Magna Carta.</i></p>
+
+<p>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 <i>legislative</i>, <i>judicial</i>, 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."<a name="FNanchor_5_5" id="FNanchor_5_5"></a><a href="#Footnote_5_5" class="fnanchor">[5]</a> 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."<a name="FNanchor_6_6" id="FNanchor_6_6"></a><a href="#Footnote_6_6" class="fnanchor">[6]</a><span class='pagenum'><a name="Page_21" id="Page_21">[Pg 21]</a></span></p>
+
+<p>Parliament, so far as there was a parliament, was a mere <i>council</i> of
+the king.<a name="FNanchor_7_7" id="FNanchor_7_7"></a><a href="#Footnote_7_7" class="fnanchor">[7]</a> It assembled only at the pleasure of the king; sat only
+during his pleasure; and when sitting had no power, so far as <i>general</i>
+legislation was concerned, beyond that of simply <i>advising</i> the king.
+The only legislation to which their assent was constitutionally
+necessary, was demands for money and military services for
+<i>extraordinary</i> 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 <i>extraordinary</i> necessity.<a name="FNanchor_8_8" id="FNanchor_8_8"></a><a href="#Footnote_8_8" class="fnanchor">[8]</a> He had
+no need of parliaments to raise taxes for the <i>ordinary</i> 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.<a name="FNanchor_9_9" id="FNanchor_9_9"></a><a href="#Footnote_9_9" class="fnanchor">[9]</a> There was
+no House of Commons at that time, and the people had no right to be
+heard, unless as petitioners.<a name="FNanchor_10_10" id="FNanchor_10_10"></a><a href="#Footnote_10_10" class="fnanchor">[10]</a><span class='pagenum'><a name="Page_22" id="Page_22">[Pg 22]</a></span></p>
+
+<p>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 <i>consent</i> or <i>advice</i> 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 "<i>The King wills
+and commands</i>," 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."<a name="FNanchor_11_11" id="FNanchor_11_11"></a><a href="#Footnote_11_11" class="fnanchor">[11]</a>
+And other authorities abundantly corroborate this assertion.<a name="FNanchor_12_12" id="FNanchor_12_12"></a><a href="#Footnote_12_12" class="fnanchor">[12]</a></p>
+
+<p>The king was, therefore, constitutionally the government; and the only
+legal limitation upon his power seems to have been simply the <i>Common
+Law</i>, usually called "<i>the law of the land</i>," 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.</p>
+
+<p>It was under these circumstances, that the Great Charter of<span class='pagenum'><a name="Page_23" id="Page_23">[Pg 23]</a></span> English
+Liberties was granted. The barons of England, sustained by the common
+people, having their king in their power, compelled him, as the price of
+his throne, to pledge himself that he would punish no freeman for a
+violation of any of his laws, unless with the consent of the peers&mdash;that
+is, the equals&mdash;of the accused.</p>
+
+<p>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 <i>justice</i> 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 <i>fact</i> whether those laws had been
+transgressed? Was this the only restraint, which, when they had all
+power in their hands, they placed upon the tyranny of a king, whose
+oppressions they had risen in arms to resist? Was it to obtain such a
+charter as that, that the whole nation had united, as it were, like one
+man, against their king? Was it on such a charter that they intended to
+rely, for all future time, for the security of their liberties? No. They
+were engaged in no such senseless work as that. On the contrary, when
+they required him to renounce forever the power to punish any freeman,
+unless by the consent of his peers, they intended those peers should
+judge of, and try, the whole case on its merits, independently of all
+arbitrary legislation, or judicial authority, on the part of the king.
+In this way they took the liberties of each individual&mdash;and thus the
+liberties of the whole people&mdash;entirely out of the hands of the king,
+and out of the power of his laws, and placed them in the keeping of the
+people themselves. And this it was that made the trial by jury the
+palladium of their liberties.</p>
+
+<p>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<span class='pagenum'><a name="Page_24" id="Page_24">[Pg 24]</a></span> 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.</p>
+
+<p>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?
+<i>He</i> 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 "<i>the king wills and
+commands</i>" was to have no weight with them contrary to their own
+judgments of what was intrinsically right.<a name="FNanchor_13_13" id="FNanchor_13_13"></a><a href="#Footnote_13_13" class="fnanchor">[13]</a></p>
+
+<p>The barons and people having obtained by the charter all the liberties
+they had demanded of the king, it was further<span class='pagenum'><a name="Page_25" id="Page_25">[Pg 25]</a></span> provided by the charter
+itself that twenty-five barons should be appointed by the barons, out of
+their number, to keep special vigilance in the kingdom to see that the
+charter was observed, with authority to make war upon the king in case
+of its violation. The king also, by the charter, so far absolved all the
+people of the kingdom from their allegiance to him, as to authorize and
+require them to swear to obey the twenty-five barons, in case they
+should make war upon the king for infringement of the charter. It was
+then thought by the barons and people, that something substantial had
+been done for the security of their liberties.</p>
+
+<p>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.</p>
+
+
+<p class='center'><b>SECTION II.</b></p>
+
+<p class='center'><i><a name="link_4" id="link_4"></a>The Language of Magna Carta.</i></p>
+
+<p>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.<span class='pagenum'><a name="Page_26" id="Page_26">[Pg 26]</a></span></p>
+
+<p>The chapter guaranteeing the trial by jury is in these words:</p>
+
+<div class="blockquot"><p>"Nullus liber homo capiatur, vel imprisonetur, aut disseisetur, aut
+utlagetur, aut exuletur, aut aliquo modo destruatur; nec super eum
+ibimus, nec super eum mittemus, nisi per legale judicium parium
+suorum, vel per legem terr&aelig;."<a name="FNanchor_14_14" id="FNanchor_14_14"></a><a href="#Footnote_14_14" class="fnanchor">[14]</a></p></div>
+
+<p>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:</p>
+
+<div class="blockquot"><p>"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 terr&aelig;."</p></div>
+
+<p>The most common translation of these words, at the present day, is as
+follows:</p>
+
+<div class="blockquot"><p>"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, <i>nor will we (the king) pass upon him,
+nor condemn him</i>, unless by the judgment of his peers, or the law of
+the land."</p></div>
+
+<div class="blockquot"><p>"<i>Nec super eum ibimus, nec super eum mittemus.</i>"</p></div>
+
+<p>There has been much confusion and doubt as to the true meaning of the
+words, "<i>nec super eum ibimus, nec super eum mittemus</i>." The more common
+rendering has been, "<i>nor will we pass upon him, nor condemn him</i>." But
+some have translated them to mean, "<i>nor will we pass upon him, nor
+commit him to prison</i>." 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."<a name="FNanchor_15_15" id="FNanchor_15_15"></a><a href="#Footnote_15_15" class="fnanchor">[15]</a></p>
+
+<p>But all these translations are clearly erroneous. In the first<span class='pagenum'><a name="Page_27" id="Page_27">[Pg 27]</a></span> place,
+"<i>nor will we pass upon him</i>,"&mdash;meaning thereby to decide upon his guilt
+or innocence <i>judicially</i>&mdash;is not a correct rendering of the words,
+"<i>nec super eum ibimus</i>." There is nothing whatever, in these latter
+words, that indicates <i>judicial</i> action or opinion at all. The words, in
+their common signification, describe <i>physical</i> action alone. And the
+true translation of them, as will hereafter be seen, is, <i>"nor will we
+proceed against him," executively</i>.</p>
+
+<p>In the second place, the rendering, "<i>nor will we condemn him</i>," bears
+little or no analogy to any common, or even uncommon, signification of
+the words "<i>nec super eum mittemus</i>." There is nothing in these latter
+words that indicates <i>judicial</i> action or decision. Their common
+signification, like that of the words <i>nec super eum ibimus</i>, describes
+<i>physical</i> action alone. "<i>Nor will we send upon (or against) him</i>,"
+would be the most obvious translation, and, as we shall hereafter see,
+such is the true translation.</p>
+
+<p>But although these words describe <i>physical</i> action, on the part of the
+king, as distinguished from judicial, they nevertheless do not mean, as
+one of the translations has it, "<i>nor will we commit him to prison</i>;"
+for that would be a mere repetition of what had been already declared by
+the words "<i>nec imprisonetur</i>." Besides, there is nothing about prisons
+in the words "<i>nec super eum mittemus</i>;" nothing about sending <i>him</i>
+anywhere; but only about sending (something or somebody) <i>upon</i> him, or
+<i>against</i> him&mdash;that is, <i>executively</i>.</p>
+
+<p>Coke's rendering is, if possible, the most absurd and gratuitous of all.
+What is there in the words, "<i>nec super eum mittemus</i>" that can be made
+to mean "<i>nor shall he be condemned before any other commissioner or
+judge whatsoever</i>?" Clearly there is nothing. The whole rendering is a
+sheer fabrication. And the whole object of it is to give color for the
+exercise of a <i>judicial</i> power, by the king, or his judges, which is
+nowhere given them.</p>
+
+<p>Neither the words, "<i>nec super eum ibimus, nec super eum mittemus</i>," nor
+any other words in the whole chapter, authorize, provide for, describe,
+or suggest, any <i>judicial</i> action whatever, on the part either of the
+king, or of his judges, or of anybody, <i>except the peers, or jury</i>.
+There is nothing about<span class='pagenum'><a name="Page_28" id="Page_28">[Pg 28]</a></span> the king's <i>judges</i> at all. And there is nothing
+whatever, in the whole chapter, <i>so far as relates to the action of the
+king</i>, that describes or suggests anything but <i>executive</i> action.<a name="FNanchor_16_16" id="FNanchor_16_16"></a><a href="#Footnote_16_16" class="fnanchor">[16]</a></p>
+
+<p>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:</p>
+
+<p>"Sciatis nos concessisse baronibus nostris qui contra nos sunt quod nec
+eos nec homines suos capiemus, nec disseisiemus <i>nec super eos per vim
+vel per arma ibimus</i> nisi per legem regni nostri vel per judicium parium
+suorum in curia nostra donec consideratio facta fuerit," &amp;c., &amp;c.</p>
+
+<p>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, <i>nor
+will we proceed against them by force or by arms</i>, unless by the law of
+our kingdom, or by the judgment of their peers in our court, until
+consideration shall be had," &amp;c., &amp;c.</p>
+
+<p>A copy of this charter is given in a note in Blackstone's Introduction
+to the Charters.<a name="FNanchor_17_17" id="FNanchor_17_17"></a><a href="#Footnote_17_17" class="fnanchor">[17]</a></p>
+
+<p>Mr. Christian speaks of this charter as settling the true meaning of the
+corresponding clause of Magna Carta, on the principle that laws and
+charters on the same subject are to be construed with reference to each
+other. See <i>3 Christian's Blackstone</i>, 41, <i>note</i>.<span class='pagenum'><a name="Page_29" id="Page_29">[Pg 29]</a></span></p>
+
+<p>The true meaning of the words, <i>nec super eum ibimus, nec super eum
+mittemus</i>, is also proved by the "<i>Articles of the Great Charter of
+Liberties</i>," 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.<a name="FNanchor_18_18" id="FNanchor_18_18"></a><a href="#Footnote_18_18" class="fnanchor">[18]</a> Here the words used are these:</p>
+
+<div class="blockquot"><p>"Ne corpus liberi hominis capiatur nec imprisonetur nec disseisetur
+nec utlagetur nec exuletur nec aliquo modo destruatur <i>nec rex eat
+vel mittat super eum vi</i> nisi per judicium parium suorum vel per
+legem terr&aelig;."</p>
+
+<p>That is, "The body of a freeman shall not be arrested, nor
+imprisoned, nor disseized, nor outlawed, nor exiled, nor in any
+manner destroyed, <i>nor shall the king proceed or send (any one)
+against him</i> <span class="smcap">WITH FORCE</span>, unless by the judgment of his
+peers, or the law of the land."</p></div>
+
+<p>The true translation of the words <i>nec super eum ibimus, nec super eum
+mittemus</i>, in Magna Carta, is thus made certain, as follows, "<i>nor will
+we (the king) proceed against him, nor send (any one) against him</i>
+<span class="smcap">WITH FORCE OR ARMS</span>."<a name="FNanchor_19_19" id="FNanchor_19_19"></a><a href="#Footnote_19_19" class="fnanchor">[19]</a></p>
+
+<p>It is evident that the difference between the true and false
+translations of the words, <i>nec super eum ibimus, nec super eum
+mittemus</i>, is of the highest legal importance, inasmuch as the true
+translation, <i>nor will we (the king) proceed against him, nor send (any
+one) against him by force or arms</i>, represents the king only in an
+<i>executive</i> character, <i>carrying the judgment of the peers and "the law
+of the land" into execution</i>; whereas the false translation, <i>nor will
+we pass upon him, nor condemn him</i>, gives color for the exercise of a
+<i>judicial</i> power, on the<span class='pagenum'><a name="Page_30" id="Page_30">[Pg 30]</a></span> part of the king, to which the king had no
+right, but which, according to the true translation, belongs wholly to
+the jury.</p>
+
+<p class='center'>
+"<i>Per legale judicium parium suorum.</i>"<br />
+</p>
+
+<p>The foregoing interpretation is corroborated, (if it were not already
+too plain to be susceptible of corroboration,) by the true
+interpretation of the phrase "<i>per legale judicium parium suorum</i>."</p>
+
+<p>In giving this interpretation, I leave out, for the present, the word
+<i>legale</i>, which will be defined afterwards.</p>
+
+<p>The true meaning of the phrase, <i>per judicium parium suorum</i>, is,
+<i>according to the sentence of his peers</i>. The word <i>judicium, judgment</i>,
+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
+<i>judgment</i>; in chancery proceedings it is called a <i>decree</i>; in criminal
+actions it is called a <i>sentence</i>, or <i>judgment</i>, indifferently. Thus,
+in a criminal suit, "a motion in arrest of <i>judgment</i>" means a motion in
+arrest of <i>sentence</i>.<a name="FNanchor_20_20" id="FNanchor_20_20"></a><a href="#Footnote_20_20" class="fnanchor">[20]</a></p>
+
+<p>In cases of sentence, therefore, in criminal suits, the words <i>sentence</i>
+and <i>judgment</i> are synonymous terms. They are, to this day, commonly
+used in law books as synonymous terms. And the phrase <i>per judicium
+parium suorum</i>, therefore, implies that the jury are to fix the
+sentence.</p>
+
+<p>The word <i>per</i> means <i>according to</i>. Otherwise there is no sense in the
+phrase <i>per judicium parium suorum</i>. There<span class='pagenum'><a name="Page_31" id="Page_31">[Pg 31]</a></span> 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, <i>by force or
+arms, by</i> 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, <i>according to</i> a
+judgment, or <i>sentence</i>, of his peers; because in that case the king
+would be merely carrying the sentence or judgment of the peers into
+execution.</p>
+
+<p>The word <i>per</i>, in the phrase "<i>per</i> judicium parium suorum," of course
+means precisely what it does in the next phrase, "<i>per</i> legem terr&aelig;;"
+where it obviously means <i>according to</i>, and not <i>by</i>, as it is usually
+translated. There would be no sense in saying that the king might
+proceed against a man by force or arms, <i>by</i> the law of the land; but
+there is sense in saying that he may proceed against him, by force or
+arms, <i>according to</i> 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 <i>by</i>, as used in similar
+cases now, always is <i>according to</i>; as, for example, when we say a
+thing was done by the government, or by the executive, <i>by law</i>, we mean
+only that it was done by them <i>according to law</i>; that is, that they
+merely executed the law.</p>
+
+<p>Or, if we say that the word <i>by</i> signifies <i>by authority of</i>, the result
+will still be the same; for nothing can be done <i>by authority of</i> law,
+except what the law itself authorizes or directs<span class='pagenum'><a name="Page_32" id="Page_32">[Pg 32]</a></span> 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 <i>by authority of</i> the
+sentence of the peers, or <i>by authority of</i> "the law of the land,"
+except what the sentence of the peers, or the law of the land,
+themselves authorized or directed to be done; nothing, in short, but to
+carry the sentence of the peers, or the law of the land, themselves into
+execution.</p>
+
+<p>Doing a thing <i>by</i> law, or <i>according to</i> law, is only carrying the law
+into execution. And punishing a man <i>by</i>, or <i>according to</i>, the
+sentence or judgment of his peers, is only carrying that sentence or
+judgment into execution.</p>
+
+<p>If these reasons could leave any doubt that the word <i>per</i> is to be
+translated <i>according to</i>, that doubt would be removed by the terms of
+an antecedent guaranty for the trial by jury, granted by the Emperor
+Conrad, of Germany,<a name="FNanchor_21_21" id="FNanchor_21_21"></a><a href="#Footnote_21_21" class="fnanchor">[21]</a> two hundred years before Magna Carta. Blackstone
+cites it as follows:&mdash;(<i>3 Blackstone</i>, 350.)</p>
+
+<p>"Nemo beneficium suum perdat, nisi <i>secundum</i> consuetudinem antecessorum
+nostrorum, et judicium parium suorum." That is, No one shall lose his
+estate,<a name="FNanchor_22_22" id="FNanchor_22_22"></a><a href="#Footnote_22_22" class="fnanchor">[22]</a> unless <i>according to</i> ("<i>secundum</i>") the custom (or law) of
+our ancestors, and (<i>according to</i>) the sentence (or judgment) of his
+peers.</p>
+
+<p>The evidence is therefore conclusive that the phrase <i>per judicium
+parium suorum</i> means <i>according to the sentence of his peers</i>; thus
+implying that the jury, and not the government, are to fix the sentence.</p>
+
+<p>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.:</p>
+
+<div class="blockquot"><p>"A freeman shall not be amerced for a small crime, (<i>delicto</i>,) but
+according to the degree of the crime; and for a great crime in
+proportion to the magnitude of it, saving to him his
+<i>contenement</i>;<span class='pagenum'><a name="Page_33" id="Page_33">[Pg 33]</a></span><a name="FNanchor_23_23" id="FNanchor_23_23"></a><a href="#Footnote_23_23" class="fnanchor">[23]</a> and after the same manner a merchant, saving to
+him his merchandise. And a villein shall be amerced after the same
+manner, saving to him his waynage,<a name="FNanchor_24_24" id="FNanchor_24_24"></a><a href="#Footnote_24_24" class="fnanchor">[24]</a> if he fall under our mercy;
+<i>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</i>, and according to the degree of their crime."<a name="FNanchor_25_25" id="FNanchor_25_25"></a><a href="#Footnote_25_25" class="fnanchor">[25]</a></p></div>
+
+<p>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.</p>
+
+<p>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.<a name="FNanchor_26_26" id="FNanchor_26_26"></a><a href="#Footnote_26_26" class="fnanchor">[26]</a></p>
+
+
+<p class='center'>"<i>Legale.</i>"</p>
+
+<p>The word "<i>legale</i>," in the phrase <span class='pagenum'><a name="Page_34" id="Page_34">[Pg 34]</a></span>"<i>per legale judicium parium
+suorum</i>," 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 <i>legale judicium</i>, 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.</p>
+
+<p>The word "<i>legale</i>" clearly did not mean that the <i>judicium parium
+suorum</i> (judgment of his peers) should be a sentence which any law (of
+the king) should <i>require</i> 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.</p>
+
+<p class='center'>
+"<i>Per legem terr&aelig;.</i>"<br />
+</p>
+
+<p>One other phrase remains to be explained, viz., "<i>per legem terr&aelig;</i>,"
+"<i>by the law of the land</i>."</p>
+
+<p>All writers agree that this means the <i>common law</i>. Thus, Sir Matthew
+Hale says:</p>
+
+<div class="blockquot"><p>"The common law is sometimes called, by way of eminence, <i>lex terr&aelig;</i>,
+as in the statute of <i>Magna Carta</i>, chap. 29, where certainly the
+common law is principally intended by those words, <i>aut per legem
+terr&aelig;</i>; 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 <i>lex Angli&aelig;</i>, as in the statute of Merton, cap. 9,
+"<i>Nolumus leges Angli&aelig; mutari</i>," &amp;c., (We will that the laws of
+England be not changed). Sometimes it is called <i>lex et consuetudo
+regni</i> (the law and custom of the kingdom); as in all commissions of
+oyer and terminer; and in the statutes of 18 Edward I., cap.&mdash;, and
+<i>de quo warranto</i>, and divers others. But most <span class='pagenum'><a name="Page_35" id="Page_35">[Pg 35]</a></span>commonly it is called
+the Common Law, or the Common Law of England; as in the statute
+<i>Articuli super Chartas</i>, cap. 15, in the statute 25 Edward III.,
+cap. 5, (4,) and infinite more records and statutes."&mdash;1 <i>Hale's
+History of the Common Law</i>, 128.</p></div>
+
+<p>This common law, or "law of the land," <i>the king was sworn to maintain</i>.
+This fact is recognized by a statute made at Westminster, in 1346, by
+Edward III., which commences in this manner:</p>
+
+<div class="blockquot"><p>"Edward, by the Grace of God, &amp;c., &amp;c., to the Sheriff of Stafford,
+Greeting: Because that by divers complaints made to us, we have
+perceived that <i>the law of the land, which we by oath are bound to
+maintain</i>," &amp;c.&mdash;<i>St. 20 Edward III.</i></p></div>
+
+<p>The foregoing authorities are cited to show to the unprofessional
+reader, what is well known to the profession, that <i>legem terr&aelig;, the law
+of the land</i>, mentioned in Magna Carta, was the common, ancient,
+fundamental law of the land, which the kings were bound by oath to
+observe; <i>and that it did not include any statutes or laws enacted by
+the king himself, the legislative power of the nation</i>.</p>
+
+<p>If the term <i>legem terr&aelig;</i> had included laws enacted by the king himself,
+the whole chapter of Magna Carta, now under discussion, would have
+amounted to nothing as a protection to liberty; because it would have
+imposed no restraint whatever upon the power of the king. The king could
+make laws at any time, and such ones as he pleased. He could, therefore,
+have done anything he pleased, <i>by the law of the land</i>, as well as in
+any other way, if his own laws had been "<i>the law of the land</i>." If his
+own laws had been "the law of the land," within the meaning of that term
+as used in Magna Carta, this chapter of Magna Carta would have been
+sheer nonsense, inasmuch as the whole purport of it would have been
+simply that "no man shall be arrested, imprisoned, or deprived of his
+freehold, or his liberties, or free customs, or outlawed, or exiled, or
+in any manner destroyed (by the king); nor shall the king proceed
+against him, nor send any one against him with force and arms, unless by
+the judgment of his peers, <i>or unless the king shall please to do so</i>."</p>
+
+<p>This chapter of Magna Carta would, therefore, have imposed not the
+slightest restraint upon the power of the king, or<span class='pagenum'><a name="Page_36" id="Page_36">[Pg 36]</a></span> afforded the
+slightest protection to the liberties of the people, if the laws of the
+king had been embraced in the term <i>legem terr&aelig;</i>. But if <i>legem terr&aelig;</i>
+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.</p>
+
+<p>Such, then, being the meaning of <i>legem terr&aelig;</i>, 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, <i>of itself</i>, was wholly incompetent to <i>require</i>
+the conviction or punishment of a man for any offence whatever.</p>
+
+
+<p class='center'><i>Whether Magna Carta allowed of any other trial than by jury.</i></p>
+
+<p>The question here arises, whether "<i>legem terr&aelig;</i>" did not allow of some
+other mode of trial than that by jury.</p>
+
+<p>The answer is, that, at the time of Magna Carta, it is not probable,
+(for the reasons given in the note,) that <i>legem terr&aelig;</i> authorized, in
+criminal cases, any other trial than the trial by jury; but, if it did,
+it certainly authorized none but the trial by battle, the trial by
+ordeal, and the trial by compurgators. These were the only modes of
+trial, except by jury, that had been known in England, in criminal
+cases, for some centuries previous to Magna Carta. All of them had
+become nearly extinct at the time of Magna Carta, and it is not probable
+that they were included in "<i>legem terr&aelig;</i>" 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.<a name="FNanchor_27_27" id="FNanchor_27_27"></a><a href="#Footnote_27_27" class="fnanchor">[27]</a> For all practical purposes of<span class='pagenum'><a name="Page_37" id="Page_37">[Pg 37]</a></span> the present day,
+therefore, it may be asserted that Magna Carta allows no trial whatever
+but trial by jury.</p>
+
+
+<p class='center'><i>Whether Magna Carta allowed sentence to be fixed otherwise than by the
+jury.</i></p>
+
+<p>Still another question arises on the words <i>legem terr&aelig;</i>, viz., whether,
+in cases where the question of guilt was determined by the jury, the
+amount of <i>punishment</i> may not have been fixed by <i>legem terr&aelig;</i>, the
+Common Law, instead of its being fixed by the jury.</p>
+
+<p>I think we have no evidence whatever that, at the time of Magna Carta,
+or indeed at any other time, <i>lex terr&aelig;</i>, the com<span class='pagenum'><a name="Page_38" id="Page_38">[Pg 38]</a></span>mon 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 <i>common law</i>, the <i>lex terr&aelig;</i>, which the king was sworn
+to maintain, required any one specific punishment, or any precise amount
+of punishment, for any one specific offence. If such a thing be claimed,
+it must be shown, for it cannot be presumed. In fact, the contrary must
+be presumed, because, in the nature of things, the amount of punishment
+proper to be inflicted in any particular case, is a matter requiring the
+exercise of discretion at the time, in order to adapt it to the moral
+quality of the offence, which is different in each case, varying with
+the mental and moral constitutions of the offenders, and the
+circumstances of temptation or provocation. And Magna Carta recognizes
+this principle distinctly, as has before been shown, in providing that
+freemen, merchants, and villeins, "shall not be amerced for a small
+crime, but according to the degree of the crime; and for a great crime
+in proportion to the magnitude of it;" and that "none of the aforesaid
+amercements shall be imposed (or assessed) but by the oaths of honest
+men of the neighborhood;" and that "earls and barons shall not be
+amerced but by their peers, and according to the quality of the
+offence."</p>
+
+<p>All this implies that the moral quality of the offence was to be judged
+of at the trial, and that the punishment was to be fixed by the
+discretion of the peers, or jury, and not by any such unvarying rule as
+a common law rule would be.</p>
+
+<p>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.</p>
+
+<p>1. It is uncertain whether the <i>common law</i> fixed the punishment of any
+offence whatever.</p>
+
+<p>2. The words "<i>per judicium parium suorum</i>," <i>according to the sentence
+of his peers</i>, imply that the jury fixed the sentence in <i>some</i> 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.<span class='pagenum'><a name="Page_39" id="Page_39">[Pg 39]</a></span></p>
+
+<p>3. The express provisions of Magna Carta, before adverted to, that no
+amercements, or fines, should be imposed upon freemen, merchants, or
+villeins, "but by the oath of honest men of the neighborhood," and
+"according to the degree of the crime," and that "earls and barons
+should not be amerced but by their peers, and according to the quality
+of the offence," <i>proves</i> that, at least, there was no common law fixing
+the amount of <i>fines</i>, or, if there were, that it was to be no longer in
+force. And if there was no common law fixing the amount of <i>fines</i>, 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.<a name="FNanchor_28_28" id="FNanchor_28_28"></a><a href="#Footnote_28_28" class="fnanchor">[28]</a></p>
+
+<p>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<span class='pagenum'><a name="Page_40" id="Page_40">[Pg 40]</a></span> by fine. When a criminal was unable to pay his
+fine, his relatives often paid it for him. But if it were not paid, he
+was put out of the protection of the law, and the injured parties, (or,
+in the case of murder, the kindred of the deceased,) were allowed to
+inflict such punishment as they pleased. And if the relatives of the
+criminal protected him, it was lawful to take vengeance on them also.
+Afterwards the custom grew up of exacting fines also to the king as a
+punishment for offences.<a name="FNanchor_29_29" id="FNanchor_29_29"></a><a href="#Footnote_29_29" class="fnanchor">[29]</a> 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,"&mdash;with the alternative in some cases
+(perhaps <i>understood</i> in all) of imprisonment, banishment, or outlawry,
+in case of non-payment.<a name="FNanchor_30_30" id="FNanchor_30_30"></a><a href="#Footnote_30_30" class="fnanchor">[30]</a><span class='pagenum'><a name="Page_41" id="Page_41">[Pg 41]</a></span></p>
+
+<p>Judging, therefore, from the special provisions in Magna Carta,
+requiring <i>fines</i>, 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 <i>fines</i>, (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 <i>fines</i> 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 "<i>legem
+terr&aelig;</i>."</p>
+
+<p>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&mdash;<i>and this is what it is material for us to know</i>&mdash;that
+the jury fixed the punishments, in all cases, unless they were fixed by
+the <i>common law</i>; that Magna Carta allowed<span class='pagenum'><a name="Page_42" id="Page_42">[Pg 42]</a></span> no punishments to be
+prescribed by statute&mdash;that is, by the legislative power&mdash;nor in any
+other manner by the king, or his judges, in any case whatever; and,
+consequently, that all statutes prescribing particular punishments for
+particular offences, or giving the king's judges any authority to fix
+punishments, were void.</p>
+
+<p>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&mdash;that is, the people.</p>
+
+
+<p class='center'><i>What lex terr&aelig; did authorize.</i></p>
+
+<p>But here the question arises, What then did "<i>legem terr&aelig;</i>" 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?</p>
+
+<p>The answer is, that, owing to the darkness of history on the point, it
+is probably wholly impossible, at this day, to state, <i>with any
+certainty or precision</i>, anything whatever that the <i>legem terr&aelig;</i> 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, <i>other than to have them tried and sentenced by their peers,
+for common law crimes</i>; and to carry that sentence into execution.</p>
+
+<p>The trial by jury was a part of <i>legem terr&aelig;</i>, 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 <i>try</i> 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<span class='pagenum'><a name="Page_43" id="Page_43">[Pg 43]</a></span> the trial. If
+anything whatever could be dictated to them, either of law or evidence,
+the sentence would not be theirs, but would be dictated to them by the
+power that dictated to them the law or evidence. The trial and sentence,
+then, were wholly in the hands of the jury.</p>
+
+<p>We also have sufficient evidence of the nature of the oath administered
+to jurors in criminal cases. It was simply, that <i>they would neither
+convict the innocent, nor acquit the guilty</i>. This was the oath in the
+Saxon times, and probably continued to be until Magna Carta.</p>
+
+<p>We also know that, in case of <i>conviction</i>, 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.</p>
+
+<p>So much, therefore, of the <i>legem terr&aelig;</i> of Magna Carta, we know with
+reasonable certainty.</p>
+
+<p>We also know that Magna Carta provides that "No bailiff (<i>balivus</i>)
+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 <i>balivus</i>, 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.</p>
+
+<p>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
+<i>contenement</i>, 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 <i>waynage</i>, or
+plough-tackle and carts. This also is likely to have been a principle of
+the common law, inasmuch as, in that rude age, when the means of getting
+employment as laborers were not what they are<span class='pagenum'><a name="Page_44" id="Page_44">[Pg 44]</a></span> now, the man and his
+family would probably have been liable to starvation, if these means of
+subsistence had been taken from him.</p>
+
+<p>We also know, <i>generally</i>, that, at the time of Magna Carta, <i>all acts
+intrinsically criminal</i>, all trespasses against persons and property,
+were crimes, according to <i>lex terr&aelig;</i>, or the common law.</p>
+
+<p>Beyond the points now given, we hardly know anything, probably nothing
+<i>with certainty</i>, as to what the "<i>legem terr&aelig;</i>" of <i>Magna Carta</i> did
+authorize, in regard to crimes. There is hardly anything extant that can
+give us any real light on the subject.</p>
+
+<p>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, &amp;c., &amp;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
+<i>arrested</i>," &amp;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 "<i>legem
+terr&aelig;</i>," the common law. The trial by peers was a part of <i>legem terr&aelig;</i>,
+and we have seen that the peers must necessarily have governed the whole
+proceedings at the trial. But all the proceedings for arresting the man,
+and bringing him to trial, must have been had before the case could come
+under the cognizance of the peers, and they must, therefore, have been
+governed by other rules than the discretion of the peers. We may
+<i>conjecture</i>, although we cannot perhaps know with much certainty, that
+the <i>lex terr&aelig;</i>, or common law, governing these other proceedings, was
+somewhat similar to the common law principles, on the same points, at
+the present day. Such seem to be the opinions of Coke, who says that the
+phrase <i>nisi per legem terr&aelig;</i> means <i>unless by due process of law</i>.</p>
+
+<p>Thus, he says:</p>
+
+<p>"<i>Nisi per legem terr&aelig;. But by the law of the land.</i> For<span class='pagenum'><a name="Page_45" id="Page_45">[Pg 45]</a></span> the true sense
+and exposition of these words, see the statute of 37 Edw. III., cap. 8,
+where the words, <i>by the law of the land</i>, are rendered <i>without due
+process of law</i>; 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, <i>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</i>.</p>
+
+<p>"Without being brought in to answer but by due process of the common
+law.</p>
+
+<p>"No man be put to answer without presentment before justices, or thing
+of record, or by due process, or by writ original, <i>according to the old
+law of the land</i>."&mdash;<i>2 Inst.</i> 50.</p>
+
+<p>The foregoing interpretations of the words <i>nisi per legem terr&aelig;</i> are
+corroborated by the following statutes, enacted in the next century
+after Magna Carta.</p>
+
+<p>"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, <i>and the law of the land</i>."&mdash;<i>St. 5 Edward III., Ch.</i> 9.
+(1331.)</p>
+
+<p>"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, <i>unless it be by the law of the
+land</i>; 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, <i>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</i>;
+nor that none be put out of his franchises, nor of his freehold, <i>unless
+he be duly brought into answer, and forejudged of the same by the course
+of the law</i>; and if anything be done against the same, it shall be
+redressed and holden for none."&mdash;<i>St. 25 Edward III., Ch.</i> 4. (1350.)</p>
+
+<p>"That no man, of what estate or condition that he be, shall be put out
+of land or tenement, nor taken, nor imprisoned, nor disinherited, nor
+put to death, without being brought in answer <i>by due process of
+law</i>."&mdash;<i>St. 28 Edward III., Ch.</i> 3. (1354.)</p>
+
+<p>"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
+<i>old law of the land</i>. And if anything from henceforth be done to the
+contrary, it shall be void in law, and holden for error."&mdash;<i>St. 42
+Edward III., Ch.</i> 3. (1368.)<span class='pagenum'><a name="Page_46" id="Page_46">[Pg 46]</a></span></p>
+
+<p>The foregoing interpretation of the words <i>nisi per legem terr&aelig;</i>&mdash;that
+is, <i>by due process of law</i>&mdash;including indictment, &amp;c., has been adopted
+as the true one by modern writers and courts; as, for example, by Kent,
+(2 <i>Comm.</i> 13,) Story, (3 <i>Comm.</i> 661,) and the Supreme Court of New
+York, (19 <i>Wendell</i>, 676; 4 <i>Hill</i>, 146.)</p>
+
+<p>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, <i>without due
+process of law</i>."<a name="FNanchor_31_31" id="FNanchor_31_31"></a><a href="#Footnote_31_31" class="fnanchor">[31]</a></p>
+
+
+<p><i>Whether the word</i> <span class="smcap">VEL</span> <i>should be rendered by</i> <span class="smcap">OR</span>, <i>or
+by</i> <span class="smcap">AND</span>.</p>
+
+<p>Having thus given the meanings, or rather the applications, which the
+words <i>vel per legem terr&aelig;</i> will reasonably, and perhaps must
+necessarily, bear, it is proper to suggest, that it has been supposed by
+some that the word <i>vel</i>, instead of being rendered by <i>or</i>, as it
+usually is, ought to be rendered by <i>and</i>, inasmuch as the word <i>vel</i> is
+often used for <i>et</i>, and the whole phrase <i>nisi per judicium parium
+suorum, vel per legem terr&aelig;</i>, (which would then read, unless by the
+sentence of his peers, <i>and</i> the law of the land,) would convey a more
+intelligible and harmonious meaning than it otherwise does.</p>
+
+<p>Blackstone suggests that this may be the true reading. (<i>Charters</i>, p.
+41.) Also Mr. Hallam, who says:</p>
+
+<div class="blockquot"><p>"Nisi per legale judicium parium suorum, <i>vel</i> per legem terr&aelig;.
+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, <i>et</i> per legem terr&aelig;, occurs. <i>Blackstone's
+Charters</i>, p. 42 (41.) And the word <i>vel</i> is so frequently used for
+<i>et</i>, that I am not wholly free from a suspicion that it <span class='pagenum'><a name="Page_47" id="Page_47">[Pg 47]</a></span>was so
+intended in this place. The meaning will be, that no person shall be
+disseized, &amp;c., except upon a lawful cause of action, found by the
+verdict of a jury. This really seems as good as any of the
+disjunctive interpretations; but I do not offer it with much
+confidence."&mdash;2 <i>Hallam's Middle Ages, Ch.</i> 8, <i>Part</i> 2, p. 449,
+<i>note</i>.<a name="FNanchor_32_32" id="FNanchor_32_32"></a><a href="#Footnote_32_32" class="fnanchor">[32]</a></p></div><p><span class='pagenum'><a name="Page_48" id="Page_48">[Pg 48]</a></span></p>
+
+<p>The idea that the word <i>vel</i> should be rendered by <i>and</i>, 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,</p>
+
+<p><span class='pagenum'><a name="Page_49" id="Page_49">[Pg 49]</a></span></p><div class="blockquot"><p>"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, <i>et</i>
+judicium parium suorum.'" (No one shall lose his estate unless
+according to the custom of our ancestors, and the judgment of his
+peers.)&mdash;<i>3 Blackstone</i>, 350.</p></div>
+
+<p>If the word <i>vel</i> be rendered by <i>and</i>, (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, <i>and</i> the law of the land."</p>
+
+<p>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, <i>or</i> according to the law of the land. In the
+other case, it requires both the sentence of his peers <i>and</i> the law of
+the land (common law) to authorize his punishment.</p>
+
+<p>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 <i>common law</i>.</p>
+
+<p>But I apprehend the word vel must be rendered both by <i>and</i>, and by
+<i>or</i>; that in cases of a <i>judgment</i>, it should be rendered by <i>and</i>, so
+as to require the concurrence both of "the judgment of the peers <i>and</i>
+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, <i>vel</i> should be
+rendered by or, because there can have been no judgment of a jury in
+such a case, and "the law of the land" must therefore necessarily be the
+only guide to, and restraint upon, the king. If this guide and restraint
+were taken away, the king would be invested with an arbitrary and most
+dangerous power in making arrests, and confining in prison, under
+pretence of an intention to bring to trial.</p>
+
+<p>Having thus examined the language of this chapter of Magna Carta, so far
+as it relates to criminal cases, its legal import may be stated as
+follows, viz.:</p>
+
+<p>No freeman shall be arrested, or imprisoned, or deprived of his
+freehold, or his liberties, or free customs, or be outlawed,<span class='pagenum'><a name="Page_50" id="Page_50">[Pg 50]</a></span> 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, <i>and</i>
+(or <i>or</i>, as the case may require) the Common Law of England, (as it was
+at the time of Magna Carta, in 1215.)</p>
+
+<div class='footnotes'><h3>Footnotes</h3>
+<div class="footnote"><p><a name="Footnote_5_5" id="Footnote_5_5"></a><a href="#FNanchor_5_5"><span class="label">[5]</span></a> 1 Hume, Appendix 2.</p></div>
+
+<div class="footnote"><p><a name="Footnote_6_6" id="Footnote_6_6"></a><a href="#FNanchor_6_6"><span class="label">[6]</span></a> Crabbe's History of the English Law, 236.</p></div>
+
+<div class="footnote"><p><a name="Footnote_7_7" id="Footnote_7_7"></a><a href="#FNanchor_7_7"><span class="label">[7]</span></a> Coke says, "The king of England is armed with divers
+councils, one whereof is called <i>commune concilium</i>, (the common
+council,) and that is the court of parliament, and so it is <i>legally</i>
+called in writs and judicial proceedings <i>commune concilium regni
+Angli&aelig;</i>, (the common council of the kingdom of England.) And another is
+called <i>magnum concilium</i>, (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 <i>magnum
+concilium regis</i>, (the great council of the king;) * * Thirdly, (as
+every man knoweth,) the king hath a privy council for matters of state.
+* * The fourth council of the king are his judges for law matters."
+</p><p>
+<i>1 Coke's Institutes, 110 a.</i></p></div>
+
+<div class="footnote"><p><a name="Footnote_8_8" id="Footnote_8_8"></a><a href="#FNanchor_8_8"><span class="label">[8]</span></a> The Great Charter of Henry III., (1216 and 1225,) confirmed
+by Edward I., (1297,) makes no provision whatever for, or mention of, a
+parliament, unless the provision, (Ch. 37,) that "Escuage, (a military
+contribution,) from henceforth shall be taken like as it was wont to be
+in the time of King Henry our grandfather," mean that a parliament shall
+be summoned for that purpose.</p></div>
+
+<div class="footnote"><p><a name="Footnote_9_9" id="Footnote_9_9"></a><a href="#FNanchor_9_9"><span class="label">[9]</span></a> 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 <i>in chief</i>." Those who held land of the king <i>in
+chief</i> included none below the rank of knights.</p></div>
+
+<div class="footnote"><p><a name="Footnote_10_10" id="Footnote_10_10"></a><a href="#FNanchor_10_10"><span class="label">[10]</span></a> 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."</p></div>
+
+<div class="footnote"><p><a name="Footnote_11_11" id="Footnote_11_11"></a><a href="#FNanchor_11_11"><span class="label">[11]</span></a> Hume, Appendix 2.</p></div>
+
+<div class="footnote"><p><a name="Footnote_12_12" id="Footnote_12_12"></a><a href="#FNanchor_12_12"><span class="label">[12]</span></a> This point will be more fully established hereafter.</p></div>
+
+<div class="footnote"><p><a name="Footnote_13_13" id="Footnote_13_13"></a><a href="#FNanchor_13_13"><span class="label">[13]</span></a> 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, <i>Why the barons did
+not with these exactions demand his kingdom?</i> * * <i>and with a solemn
+oath protested, that he would never grant such liberties as would make
+himself a slave</i>." * * 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 <i>he would grant them
+the laws and liberties they desired</i>." * * 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, <i>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</i>." * * 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, <i>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.</i> 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."&mdash;<i>Echard's History of England</i>, p. 106-7.
+</p><p>
+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. <i>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.</i></p></div>
+
+<div class="footnote"><p><a name="Footnote_14_14" id="Footnote_14_14"></a><a href="#FNanchor_14_14"><span class="label">[14]</span></a> The laws were, at that time, all written in Latin.</p></div>
+
+<div class="footnote"><p><a name="Footnote_15_15" id="Footnote_15_15"></a><a href="#FNanchor_15_15"><span class="label">[15]</span></a> "No man shall be condemned at the king's suit, either
+before the king in his bench, where pleas are <i>coram rege</i>, (before the
+king,) (and so are the words <i>nec super eum ibimus</i>, to be understood,)
+nor before any other commissioner or judge whatsoever, and so are the
+words <i>nec super eum mittemus</i>, to be understood, but by the judgment of
+his peers, that is, equals, or according to the law of the land."&mdash;<i>2
+Coke's Inst.</i>, 46.</p></div>
+
+<div class="footnote"><p><a name="Footnote_16_16" id="Footnote_16_16"></a><a href="#FNanchor_16_16"><span class="label">[16]</span></a> Perhaps the assertion in the text should be made with this
+qualification&mdash;that the words "<i>per legem terr&aelig;</i>," (according to the law
+of the land,) and the words "<i>per legale judicium parium suorum</i>,"
+(according to the <i>legal</i> judgment of his peers,) imply that the king,
+before proceeding to any <i>executive</i> action, will take notice of "the
+law of the land," and of the <i>legality</i> of the judgment of the peers,
+and will <i>execute</i> upon the prisoner nothing except what the law of the
+land authorizes, and no judgments of the peers, except <i>legal</i> ones.
+With this qualification, the assertion in the text is strictly
+correct&mdash;that there is nothing in the whole chapter that grants to the
+king, or his judges, any <i>judicial</i> power at all. The chapter only
+describes and <i>limits</i> his <i>executive</i> power.</p></div>
+
+<div class="footnote"><p><a name="Footnote_17_17" id="Footnote_17_17"></a><a href="#FNanchor_17_17"><span class="label">[17]</span></a> See Blackstone's Law Tracts, page 294, Oxford Edition.</p></div>
+
+<div class="footnote"><p><a name="Footnote_18_18" id="Footnote_18_18"></a><a href="#FNanchor_18_18"><span class="label">[18]</span></a> These Articles of the Charter are given in Blackstone's
+collection of Charters, and are also printed with the <i>Statutes of the
+Realm</i>. Also in Wilkins' Laws of the Anglo-Saxons, p. 356.</p></div>
+
+<div class="footnote"><p><a name="Footnote_19_19" id="Footnote_19_19"></a><a href="#FNanchor_19_19"><span class="label">[19]</span></a> Lingard says, "The words, '<i>We will not destroy him, nor
+will we go upon him, nor will we send upon him</i>,' 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 <i>per vim vel per arma</i> ibimus, nisi per
+legem regni nostri, vel per judicium parium suorum in curia nostra, (nor
+will we go upon them <i>by force or by arms</i>, 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
+<i>going</i> with an armed force, or <i>sending</i> 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."&mdash;3 Lingard, 47
+note.</p></div>
+
+<div class="footnote"><p><a name="Footnote_20_20" id="Footnote_20_20"></a><a href="#FNanchor_20_20"><span class="label">[20]</span></a> "<i>Judgment, judicium.</i> * * The sentence of the law,
+pronounced by the court, upon the matter contained in the record."&mdash;3
+<i>Blackstone</i>, 395. <i>Jacob's Law Dictionary. Tomlin's do.</i>
+</p><p>
+"<i>Judgment</i> 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."&mdash;<i>Bouvier's Law
+Dict.</i>
+</p><p>
+"<i>Judgment, judicium.</i> * * Sentence of a judge against a criminal. * *
+Determination, decision in general."&mdash;<i>Bailey's Dict.</i>
+</p><p>
+"<i>Judgment.</i> * * In a legal sense, a sentence or decision pronounced by
+authority of a king, or other power, either by their own mouth, or by
+that of their judges and officers, whom they appoint to administer
+justice in their stead."&mdash;<i>Chambers' Dict.</i>
+</p><p>
+"<i>Judgment.</i> * * In law, the sentence or doom pronounced in any case,
+civil or criminal, by the judge or court by which it is
+tried."&mdash;<i>Webster's Dict.</i>
+</p><p>
+Sometimes the punishment itself is called <i>judicium</i>, <i>judgment</i>; 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
+<i>judicium</i> 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
+<i>judicium</i> tumbrelli"; that is, ought to be amerced, or suffer the
+punishment, or judgment, of the tumbrel.&mdash;51 <i>Henry</i> 3, <i>St.</i> 6. (1266.)
+</p><p>
+Also the "<i>Statutes of uncertain date</i>," (but supposed to be prior to
+Edward III., or 1326,) provide, in chapters 6, 7, and 10, for
+"<i>judgment</i> of the pillory."&mdash;<i>See 1 Ruffhead's Statutes</i>, 187, 188. 1
+<i>Statutes of the Realm</i>, 203.
+</p><p>
+Blackstone, in his chapter "Of <i>Judgment</i>, and its Consequences," says,
+</p><p>
+"<i>Judgment</i> (unless any matter be offered in arrest thereof) follows
+upon conviction; being the pronouncing of that punishment which is
+expressly ordained by law."&mdash;<i>Blackstone's Analysis of the Laws of
+England, Book 4, Ch. 29, Sec. 1. Blackstone's Law Tracts</i>, 126.
+</p><p>
+Coke says, "<i>Judicium</i> ... the judgment is the guide and direction of
+the execution." 3 <i>Inst.</i> 210.</p></div>
+
+<div class="footnote"><p><a name="Footnote_21_21" id="Footnote_21_21"></a><a href="#FNanchor_21_21"><span class="label">[21]</span></a> 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.</p></div>
+
+<div class="footnote"><p><a name="Footnote_22_22" id="Footnote_22_22"></a><a href="#FNanchor_22_22"><span class="label">[22]</span></a> <i>Beneficium</i> was the legal name of an estate held by a
+feudal tenure. See Spelman's Glossary.</p></div>
+
+<div class="footnote"><p><a name="Footnote_23_23" id="Footnote_23_23"></a><a href="#FNanchor_23_23"><span class="label">[23]</span></a> <i>Contenement</i> of a freeman was the means of living in the
+condition of a freeman.</p></div>
+
+<div class="footnote"><p><a name="Footnote_24_24" id="Footnote_24_24"></a><a href="#FNanchor_24_24"><span class="label">[24]</span></a> <i>Waynage</i> was a villein's plough-tackle and carts.</p></div>
+
+<div class="footnote"><p><a name="Footnote_25_25" id="Footnote_25_25"></a><a href="#FNanchor_25_25"><span class="label">[25]</span></a> Tomlin says, "The ancient practice was, when any such fine
+was imposed, to inquire by a jury <i>quantum inde regi dare valeat per
+annum, salva sustentatione sua et uxoris et liberorum suorum</i>, (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."&mdash;<i>Tomlin's Law Dict., word
+Fine.</i></p></div>
+
+<div class="footnote"><p><a name="Footnote_26_26" id="Footnote_26_26"></a><a href="#FNanchor_26_26"><span class="label">[26]</span></a> Because juries were to fix the sentence, it must not be
+supposed that the king was <i>obliged</i> to carry the sentence into
+execution; <i>but only that he could not go beyond the sentence</i>. He might
+pardon, or he might acquit on grounds of law, notwithstanding the
+sentence; but he could not punish beyond the extent of the sentence.
+Magna Carta does not prescribe that the king <i>shall punish</i> according to
+the sentence of the peers; but only that he shall not punish <i>"unless
+according to" that sentence</i>. He may acquit or pardon, notwithstanding
+their sentence or judgment; but he cannot punish, except according to
+their judgment.</p></div>
+
+<div class="footnote"><p><a name="Footnote_27_27" id="Footnote_27_27"></a><a href="#FNanchor_27_27"><span class="label">[27]</span></a> <i>The trial by battle</i> was one in which the accused
+challenged his accuser to single combat, and staked the question of his
+guilt or innocence on the result of the duel. This trial was introduced
+into England by the Normans, within one hundred and fifty years before
+Magna Carta. It was not very often resorted to even by the Normans
+themselves; probably never by the Anglo-Saxons, unless in their
+controversies with the Normans. It was strongly discouraged by some of
+the Norman princes, particularly by Henry II., by whom the trial by jury
+was especially favored. It is probable that the trial by battle, so far
+as it prevailed at all in England, was rather tolerated as a matter of
+chivalry, than authorized as a matter of law. At any rate, it is not
+likely that it was included in the "<i>legem terr&aelig;</i>" 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 <i>lex terr&aelig;</i>, unless it can be shown
+either to have been of Saxon origin, or to have been recognized by Magna
+Carta.
+</p><p>
+<i>The trial by ordeal</i> 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 <i>morsel of execration</i>; 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 "<i>legem terr&aelig;</i>," 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."&mdash;<i>3 Blackstone</i>
+345, <i>note</i>.
+</p><p>
+I apprehend that this trial was never forced upon accused persons, but
+was only allowed to them, <i>as an appeal to God</i>, from the judgment of a
+jury.<a name="FNanchor_33_33" id="FNanchor_33_33"></a><a href="#Footnote_33_33" class="fnanchor">[33]</a>
+</p><p>
+<i>The trial by compurgators</i> was one in which, if the accused could bring
+twelve of his neighbors, who would make oath that they believed him
+innocent, he was held to be so. It is probable that this trial was
+really the trial by jury, or was allowed as an appeal from a jury. It is
+wholly improbable that two different modes of trial, so nearly
+resembling each other as this and the trial by jury do, should prevail
+at the same time, and among a rude people, whose judicial proceedings
+would naturally be of the simplest kind. But if this trial really were
+any other than the trial by jury, it must have been nearly or quite
+extinct at the time of Magna Carta; and there is no probability that it
+was included in "<i>legem terr&aelig;</i>."</p></div>
+
+<div class="footnote"><p><a name="Footnote_28_28" id="Footnote_28_28"></a><a href="#FNanchor_28_28"><span class="label">[28]</span></a> Coke attempts to show that there is a distinction between
+amercements and fines&mdash;admitting that amercements must be fixed by one's
+peers, but claiming that fines may be fixed by the government. (<i>2
+Inst.</i> 27, <i>8 Coke's Reports</i> 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.
+</p><p>
+The first statute of Westminster, passed sixty years after Magna Carta,
+treats the fine and amercement as synonymous, as follows:
+</p><p>
+"Forasmuch as <i>the common fine and amercement</i> of the whole county in
+Eyre of the justices for false judgments, or for other trespass, is
+unjustly assessed by sheriffs and baretors in the shires, * * it is
+provided, and the king wills, that from henceforth such sums shall be
+assessed before the justices in Eyre, afore their departure, <i>by the
+oath of knights and other honest men</i>," &amp;c.&mdash;<i>3 Edward I., Ch.</i> 18.
+(1275.)
+</p><p>
+And in many other statutes passed after Magna Carta, the terms <i>fine</i>
+and <i>amercement</i> seem to be used indifferently, in prescribing the
+punishment for offences. As late as 1461, (246 years after Magna Carta,)
+the statute <i>1 Edward IV., Ch.</i> 2, speaks of "<i>fines, ransoms, and
+amerciaments</i>" as being levied upon criminals, as if they were the
+common punishments of offences.
+</p><p>
+<i>St.</i> 2 and 3 <i>Philip and Mary, Ch.</i> 8, uses the terms, "<i>fines,
+forfeitures, and amerciaments</i>" five times. (1555.)
+</p><p>
+<i>St. 5 Elizabeth, Ch.</i> 13, <i>Sec.</i> 10, uses the terms "<i>fines,
+forfeitures, and amerciaments</i>."
+</p><p>
+That amercements were fines, or pecuniary punishments, inflicted for
+offences, is proved by the following statutes, (all supposed to have
+been passed within one hundred and fifteen years after Magna Carta,)
+which speak of amercements as a species of "<i>judgment</i>," or punishment,
+and as being inflicted for the same offences as other "judgments."
+</p><p>
+Thus one statute declares that a baker, for default in the weight of his
+bread, "ought to be <i>amerced</i>, or suffer the <i>judgment</i> of the pillory;"
+and that a brewer, for "selling ale contrary to the assize," "ought to
+be <i>amerced</i>, or suffer the <i>judgment</i> of the tumbrel."&mdash;<i>51 Henry III.,
+St.</i> 6. (1266.)
+</p><p>
+Among the "<i>Statutes of Uncertain Date</i>," but supposed to be prior to
+Edward III., (1326,) are the following:
+</p><p>
+<i>Chap.</i> 6 provides that "if a brewer break the assize, (fixing the price
+of ale,) the first, second, and third time, he shall be <i>amerced</i>; but
+the fourth time he shall suffer <i>judgment</i> of the pillory without
+redemption."
+</p><p>
+<i>Chap.</i> 7 provides that "a butcher that selleth swine's flesh measled,
+or flesh dead of the murrain, or that buyeth flesh of Jews, and selleth
+the same unto Christians, after he shall be convict thereof, for the
+first time he shall be grievously <i>amerced</i>; the second time he shall
+suffer <i>judgment</i> of the pillory; and the third time he shall be
+imprisoned and make <i>fine</i>; and the fourth time he shall forswear the
+town."
+</p><p>
+<i>Chap. 10</i>, a statute against <i>forestalling</i>, provides that,
+</p><p>
+"He that is convict thereof, the first time shall be <i>amerced</i>, 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 <i>judgment</i> of the
+pillory; at the third time he shall be imprisoned and make <i>fine</i>; the
+fourth time he shall abjure the town. And this <i>judgment</i> shall be given
+upon all manner of forestallers, and likewise upon them that have given
+them counsel, help, or favor."&mdash;<i>1 Ruffhead's Statutes</i>, 187, 188. <i>1
+Statutes of the Realm</i>, 203.</p></div>
+
+<div class="footnote"><p><a name="Footnote_29_29" id="Footnote_29_29"></a><a href="#FNanchor_29_29"><span class="label">[29]</span></a> 1 Hume, Appendix, 1.</p></div>
+
+<div class="footnote"><p><a name="Footnote_30_30" id="Footnote_30_30"></a><a href="#FNanchor_30_30"><span class="label">[30]</span></a> Blackstone says, "Our ancient Saxon laws nominally
+punished theft with death, if above the value of twelve pence; but the
+criminal was permitted to redeem his life by a pecuniary ransom, as
+among their ancestors, the Germans, by a stated number of cattle. But in
+the ninth year of Henry the First, (1109,) this power of redemption was
+taken away, and all persons guilty of larceny above the value of twelve
+pence were directed to be hanged, which law continues in force to this
+day."&mdash;<i>4 Blackstone</i>, 238.
+</p><p>
+I give this statement of Blackstone, because the latter clause may seem
+to militate with the idea, which the former clause corroborates, viz.,
+that at the time of Magna Carta, fines were the usual punishments of
+offences. But I think there is no probability that a law so unreasonable
+in itself, (unreasonable even after making all allowance for the
+difference in the value of money,) and so contrary to immemorial custom,
+could or did obtain any general or speedy acquiescence among a people
+who cared little for the authority of kings.
+</p><p>
+Maddox, writing of the period from William the Conqueror to John, says:
+</p><p>
+"The amercements in criminal and common pleas, which were wont to be
+imposed during this first period and afterwards, were of so many several
+sorts, that it is not easy to place them under distinct heads. Let them,
+for method's sake, be reduced to the heads following: Amercements for or
+by reason of murders and manslaughters, for misdemeanors, for
+disseisins, for recreancy, for breach of assize, for defaults, for
+non-appearance, for false judgment, and for not making suit, or hue and
+cry. To them may be added miscellaneous amercements, for trespasses of
+divers kinds."&mdash;<i>1 Maddox' History of the Exchequer</i>, 542.</p></div>
+
+<div class="footnote"><p><a name="Footnote_31_31" id="Footnote_31_31"></a><a href="#FNanchor_31_31"><span class="label">[31]</span></a> Coke, in his exposition of the words <i>legem terr&aelig;</i>, gives
+quite in detail the principles of the common law governing <i>arrests</i>;
+and takes it for granted that the words "<i>nisi per legem terr&aelig;</i>" are
+applicable to arrests, as well as to the indictment, &amp;c.&mdash;2 <i>Inst.</i>,
+51,52.</p></div>
+
+<div class="footnote"><p><a name="Footnote_32_32" id="Footnote_32_32"></a><a href="#FNanchor_32_32"><span class="label">[32]</span></a> I cite the above extract from Mr. Hallam solely for the
+sake of his authority for rendering the word <i>vel</i> by <i>and</i>; and not by
+any means for the purpose of indorsing the opinion he suggests, that
+<i>legem terr&aelig;</i> authorized "judgments by default or demurrer," <i>without
+the intervention of a jury</i>. He seems to imagine that <i>lex terr&aelig;</i>, the
+common law, at the time of Magna Carta, included everything, even to the
+practice of courts, that is, <i>at this day</i>, called by the name of
+<i>Common Law</i>; whereas much of what is <i>now</i> 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 <i>trial</i> by jury, through which a party's goods
+or person may be taken." Of course there are <i>now</i> many such ways, in
+which a party's goods or person <i>are</i> taken, besides by the judgment of
+a jury; but the question is, whether such takings are not in violation
+of Magna Carta.
+</p><p>
+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 <i>legem terr&aelig;</i> 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 <i>facts</i>, and not for judging of the law. In case of default,
+the plaintiff must present a <i>prima facie</i> 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 <i>prima facie</i> case, both law and fact, be made out to the
+satisfaction of a jury, as it does that a contested case shall be.
+</p><p>
+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.
+</p><p>
+Mr. Hallam evidently thinks there is no use for a jury, except where
+there is a "<i>trial</i>"&mdash;meaning thereby a contest on matters of <i>fact</i>.
+His language is, that "there are many legal procedures, besides <i>trial</i>
+by jury, through which a party's goods or person may be taken." Now
+Magna Carta says nothing of <i>trial</i> by jury; but only of the <i>judgment</i>,
+or sentence, of a jury. It is only <i>by inference</i> that we come to the
+conclusion that there must be a <i>trial</i> by jury. Since the jury alone
+can give the <i>judgment</i>, or <i>sentence</i>, we <i>infer</i> that they must <i>try</i>
+the case; because otherwise they would be incompetent, and would have no
+moral right, to give <i>judgment</i>. They must, therefore, examine the
+grounds, (both of law and fact,) or rather <i>try</i> 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 <i>against a party's goods or person</i>, (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.
+</p><p>
+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 <i>punishing</i> 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.
+</p><p>
+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.
+</p><p>
+If any <i>summary</i> 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&mdash;not as a punishment, but for
+self-protection, and the maintenance of order&mdash;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.
+</p><p>
+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.
+</p><p>
+Certainly Mr. Hallam may very well say that "one may doubt whether these
+(the several cases he has mentioned) were in contemplation of the
+framers of Magna Carta"&mdash;that is, as exceptions to the rule requiring
+that all judgments, that are to be enforced "<i>against a party's goods or
+person</i>," be rendered by a jury.
+</p><p>
+Again, Mr. Hallam says, if the word <i>vel</i> be rendered by <i>and</i>, "the
+meaning will be, that no person shall be disseized, &amp;c., <i>except upon a
+lawful cause of action</i>." This is true; but it does not follow that any
+cause of action, founded on <i>statute only</i>, is therefore a "<i>lawful</i>
+cause of action," within the meaning of <i>legem terr&aelig;</i>, or the <i>Common
+Law</i>. Within the meaning of the <i>legem terr&aelig;</i> of Magna Carta, nothing
+but a <i>common law</i> cause of action is a "<i>lawful</i>" one.</p></div>
+
+<div class="footnote"><p><a name="Footnote_33_33" id="Footnote_33_33"></a><a href="#FNanchor_33_33"><span class="label">[33]</span></a> Hallam says, "It appears as if the ordeal were permitted
+to persons already convicted by this verdict of a jury."&mdash;<i>2 Middle
+Ages</i>, 446, <i>note</i>.</p></div></div>
+
+
+
+<hr style="width: 65%;" />
+<h2><a name="CHAPTER_III" id="CHAPTER_III"></a>CHAPTER III.</h2>
+
+<p class='center'><b>ADDITIONAL PROOFS OF THE RIGHTS AND DUTIES OF JURORS.</b><span class='pagenum'><a name="Page_51" id="Page_51">[Pg 51]</a></span></p>
+
+
+<p>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 <i>that the
+legislation of the king was to be of no authority with the jury beyond
+what they chose to allow to it</i>, 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, &amp;c., &amp;c.
+This evidence can be exhibited here but partially. To give it all would
+require too much space and labor.</p>
+
+
+<p class='center'><b>SECTION I.</b></p>
+
+<p class='center'><i><a name="link_5" id="link_5"></a>Weakness of the Regal Authority.</i></p>
+
+<p>Hughes, in his preface to his translation of Horne's "<i>Mirror of
+Justices</i>," (a book written in the time of Edward I., 1272 to 1307,)
+giving a concise view of the laws of England generally, says:</p>
+
+<div class="blockquot"><p>"Although in the Saxon's time I find the usual words of the acts then
+to have been <i>edictum</i>, (edict,) <i>constitutio</i>, (statute,) little
+mention being made of the commons, yet I further find that, <i>tum
+demum leges vim et vigerem habuerunt, cum fuerunt non modo institut&aelig;
+sed firmat&aelig; approbatione communitatis</i>." (The laws had force and
+vigor only when they were not only enacted, but confirmed by the
+approval of the community.)</p></div><p><span class='pagenum'><a name="Page_52" id="Page_52">[Pg 52]</a></span></p>
+
+<p>The <i>Mirror of Justices</i> itself also says, (ch. 1, sec. 3,) in speaking
+"<i>Of the first Constitutions of the Ancient Kings</i>:"</p>
+
+<div class="blockquot"><p>"Many ordinances were made by many kings, until the time of the king
+that now is (Edward I.); the which ordinances were abused, <i>or not
+used by many, nor very current</i>, because they were not put in
+writing, and certainly published."&mdash;<i>Mirror of Justices</i>, p. 6.</p></div>
+
+<p>Hallam says:</p>
+
+<div class="blockquot"><p>"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."&mdash;<i>1 Middle Ages</i>, 271.</p></div>
+
+<p>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.<a name="FNanchor_34_34" id="FNanchor_34_34"></a><a href="#Footnote_34_34" class="fnanchor">[34]</a></p>
+
+<p>Hume says:</p>
+
+<div class="blockquot"><p>"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, <i>were more guided by persuasion than authority, in the
+submission which they paid to their princes</i>. The military despotism,
+which had taken place in the Roman empire, and which, previously to
+the irruption of those conquerors, had sunk the genius of men, and
+destroyed every noble principle of science and virtue, was unable to
+resist the vigorous efforts of a free people, and Europe, as from a
+new epoch, rekindled her ancient spirit, and shook off the base
+servitude to arbitrary will and authority under which she had so long
+labored. The free constitutions then established, however impaired by
+the encroachments of succeeding princes, still preserve an air of
+independence and legal administration, which distinguished the
+European nations; and if that part of the globe maintain sentiments
+<span class='pagenum'><a name="Page_53" id="Page_53">[Pg 53]</a></span>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.</p>
+
+<p>"<i>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</i>; and as the Saxons exterminated,
+rather than subdued the ancient inhabitants, they were, indeed,
+transplanted into a new territory, <i>but preserved unaltered all their
+civil and military institutions</i>. 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. <i>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.</i>"&mdash;<i>1 Hume</i>,
+<i>Appendix</i>, 1.</p></div>
+
+<p>Stuart says:</p>
+
+<div class="blockquot"><p>"The Saxons brought along with them into Britain their own customs,
+language, and civil institutions. Free in Germany, they renounced not
+their independence, when they had conquered. Proud from victory, and
+with their swords in their hands, would they surrender their
+liberties to a private man? Would temporary leaders, limited in their
+powers, and unprovided in resources, ever think to usurp an authority
+over warriors, who considered themselves as their equals, were
+impatient of control, and attached with devoted zeal to their
+privileges? Or, would they find leisure to form resolutions, or
+opportunities to put them in practice, amidst the tumult and
+confusion of those fierce and bloody wars, which their nations first
+waged with the Britons, and then engaged in among themselves?
+Sufficiently flattered in leading the armies of their countrymen, the
+ambition of commanders could as little suggest such designs, as the
+liberty of the people could submit to them. The conquerors of Britain
+retained their independ<span class='pagenum'><a name="Page_54" id="Page_54">[Pg 54]</a></span>ence; and this island saw itself again in
+that free state in which the Roman arms had discovered it.</p>
+
+<p>"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."&mdash;<i>Stuart on the Constitution of
+England</i>, p. 59-61.</p></div>
+
+<div class="blockquot"><p>"Kings they (the Germans) respected as the first magistrates of the
+state; but the authority possessed by them was narrow and
+limited."&mdash;<i>Ditto</i>, p. 134.</p></div>
+
+<div class="blockquot"><p>"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. * *</p>
+
+<p>"His long hair was the only ornament he affected, and to be foremost
+to attack an enemy was his chief distinction. Engaged in every
+hazardous expedition, he was a stranger to repose; and, rivalled by
+half the heroes of his tribe, he could obtain little power. Anxious
+and watchful for the public interest, he felt every moment his
+dependence, and gave proofs of his submission.</p>
+
+<p>"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."&mdash;<i>Ditto</i>, p. 135-6.</p></div>
+
+<div class="blockquot"><p>"<i>The authority of a Saxon monarch was not more considerable. The
+Saxons submitted not to the arbitrary rule of princes. They
+administered an oath to their sovereigns, which bound them to
+acknowledge the laws, and to defend the rights of the church and
+people; and if they forgot this obligation, they forfeited their
+office.</i> 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, <span class='pagenum'><a name="Page_55" id="Page_55">[Pg 55]</a></span>or the least step towards
+tyranny, was always dangerous, and often fatal to them."&mdash;<i>Ditto</i>, p.
+139-40.</p></div>
+
+<div class="blockquot"><p>"They were not allowed to impose taxes on the kingdom."&mdash;<i>Ditto</i>, p.
+146.</p></div>
+
+<div class="blockquot"><p>"Like the German monarchs, they deliberated in the general assembly
+of the nation; <i>but their legislative authority was not much
+respected</i>; 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.</p>
+
+<p>"They declared war, it is said, and made peace. In both cases,
+however, they acted as the instruments of the state, and put in
+execution the resolutions which its councils had decreed. If, indeed,
+an enemy had invaded the kingdom, and its glory and its safety were
+concerned, the great lords took the field at the call of their
+sovereign. But had a sovereign declared war against a neighboring
+state, without requiring their advice, or if he meant to revenge by
+arms an insult offered to him by a subject, a haughty and independent
+nobility refused their assistance. These they considered as the
+quarrels of the king, and not of the nation; and in all such
+emergencies he could only be assisted by his retainers and
+dependents."&mdash;<i>Ditto</i>, p. 147-8.</p></div>
+
+<div class="blockquot"><p>"Nor must we imagine that the Saxon, any more than the German
+monarchs, succeeded each other in a lineal descent,<a name="FNanchor_35_35" id="FNanchor_35_35"></a><a href="#Footnote_35_35" class="fnanchor">[35]</a> or that they
+disposed of the crown at their pleasure. In both countries, the free
+election of the people filled the throne; and their choice was the
+only rule by which princes reigned. The succession, accordingly, of
+their kings was often broken and interrupted, and their depositions
+were frequent and groundless. The will of a prince whom they had long
+respected, and the favor they naturally transferred to his
+descendant, made them often advance him to the royal dignity; but the
+crown of his ancestor he considered as the gift of the people, and
+neither expected nor claimed it as a right."&mdash;<i>Ditto</i>, p. 151-3.</p></div>
+
+<p>In Germany "It was the business of the great to command in war, and in
+peace they distributed justice. * *<span class='pagenum'><a name="Page_56" id="Page_56">[Pg 56]</a></span></p>
+
+<div class="blockquot"><p>"The <i>princes</i> in Germany were <i>earls</i> 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
+<i>privilege</i>; 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.</p>
+
+<p>"The judges of the people, they presided in both countries in courts
+of law.<a name="FNanchor_36_36" id="FNanchor_36_36"></a><a href="#Footnote_36_36" class="fnanchor">[36]</a> 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 <i>writ</i> was disregarded. * *</p>
+
+<p>"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 <i>subjects</i>.</p>
+
+<p>"But to attend the general assembly of their nation was the chief
+prerogative of the German and Saxon princes; and as they consulted
+the interest of their country, and deliberated concerning matters of
+state, so in the <i>king's court</i>, of which also they were members,
+they assisted to pronounce judgment in the complaints and appeals
+which were lodged in it."&mdash;<i>Ditto</i>, p. 158 to 165.</p></div>
+
+<p>Henry says:</p>
+
+<div class="blockquot"><p>"Nothing can be more evident than this important truth; that our
+Anglo-Saxon kings were not absolute monarchs; but <span class='pagenum'><a name="Page_57" id="Page_57">[Pg 57]</a></span>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."&mdash;<i>3 Henry's History of Great Britain</i>, 358.</p></div>
+
+<div class="blockquot"><p>Mackintosh says: "The Saxon chiefs, who were called kings, originally
+acquired power by the same natural causes which have gradually, and
+everywhere, raised a few men above their fellows. They were,
+doubtless, more experienced, more skilful, more brave, or more
+beautiful, than those who followed them. * * A king was powerful in
+war by the lustre of his arms, and the obvious necessity of
+obedience. His influence in peace fluctuated with his personal
+character. In the progress of usage his power became more fixed and
+more limited. * * It would be very unreasonable to suppose that the
+northern Germans who had conquered England, had so far changed their
+characteristic habits from the age of Tacitus, that the victors
+became slaves, and that their generals were converted into
+tyrants."&mdash;<i>Mackintosh's Hist. of England, Ch. 2.</i> <i>45 Lardner's Cab.
+Cyc.</i>, 73-4.</p></div>
+
+<p>Rapin, in his discourse on the "Origin and Nature of the English
+Constitution," says:</p>
+
+<div class="blockquot"><p>"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 <span class='pagenum'><a name="Page_58" id="Page_58">[Pg 58]</a></span>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."&mdash;<i>Rapin's Preface to his History of England.</i></p></div>
+
+<p>Hallam says that among the Saxons, "the royal authority was weak."&mdash;<i>2
+Middle Ages</i>, 403.</p>
+
+<p>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, <i>when
+assented to</i> by the <i>Witena-gemote</i>, or assembly of wise men&mdash;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, <i>simply as a
+council</i>, 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.</p>
+
+<p>Lingard says:</p>
+
+<div class="blockquot"><p>"It was necessary that the king should obtain the assent of these
+(the members of the Witena-gemotes) to all legislative enactments;
+<i>because, without their acquiescence and support, it was impossible
+to carry them into execution</i>. To many charters (laws) we have the
+signatures of the Witan. <i>They seldom exceed thirty in number; they
+never amount to sixty.</i>"&mdash;<i>1 Lingard</i>, 486.</p></div><p><span class='pagenum'><a name="Page_59" id="Page_59">[Pg 59]</a></span></p>
+
+<p>It is ridiculous to suppose that the assent of such an assembly gave any
+<i>authority</i> 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.</p>
+
+<p>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, <i>and the people slaves, of course</i>. And this would necessarily
+have been the picture that history would have given us of the
+Anglo-Saxon government, <i>and of Anglo-Saxon liberty</i>.</p>
+
+<p>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, <i>prove</i> that this
+assembly exercised no authority which juries of the people acknowledged,
+except at their own discretion.<a name="FNanchor_37_37" id="FNanchor_37_37"></a><a href="#Footnote_37_37" class="fnanchor">[37]</a><span class='pagenum'><a name="Page_60" id="Page_60">[Pg 60]</a></span></p>
+
+<p>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,<a name="FNanchor_38_38" id="FNanchor_38_38"></a><a href="#Footnote_38_38" class="fnanchor">[38]</a> viz., "<i>that the County and Hundred Courts</i>," (to
+which should have been added the other courts in which juries sat, the
+courts-baron and court-leet,) "<i>in those times were the real and only
+Parliaments of the kingdom</i>." 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, <i>and none others</i>, became
+practically the law of the land as matter of course.<a name="FNanchor_39_39" id="FNanchor_39_39"></a><a href="#Footnote_39_39" class="fnanchor">[39]</a></p>
+
+<p>Finally, on this point. Conclusive proof that the legislation of the
+king was of little or no authority, is found in the fact <i>that the kings
+enacted so few laws</i>. 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<span class='pagenum'><a name="Page_61" id="Page_61">[Pg 61]</a></span> 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 <i>dome-book</i>, with such additions and improvements as
+the experience of a century and a half suggested."&mdash;<i>1 Blackstone</i>,
+66.<a name="FNanchor_40_40" id="FNanchor_40_40"></a><a href="#Footnote_40_40" class="fnanchor">[40]</a><span class='pagenum'><a name="Page_62" id="Page_62">[Pg 62]</a></span></p>
+
+<p>The Code of William the Conqueror<a name="FNanchor_41_41" id="FNanchor_41_41"></a><a href="#Footnote_41_41" class="fnanchor">[41]</a> 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.</p>
+
+<p>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.<a name="FNanchor_42_42" id="FNanchor_42_42"></a><a href="#Footnote_42_42" class="fnanchor">[42]</a> The Norman princes, from William the
+Conqueror to John, I think without exception, bound themselves, and, in
+order to maintain their thrones, were obliged to bind themselves, to
+observe the ancient laws and customs, in other words, the "<i>lex terr&aelig;</i>,"
+or "<i>common law</i>" of the kingdom. Even Magna Carta contains hardly
+anything other than this same "<i>common law</i>," with some new securities
+for its observance.<span class='pagenum'><a name="Page_63" id="Page_63">[Pg 63]</a></span></p>
+
+<p>How is this abstinence from legislation, on the part of the ancient
+kings, to be accounted for, except on the supposition that the people
+would accept, and juries enforce, few or no new laws enacted by their
+kings? Plainly it can be accounted for in no other way. In fact, all
+history informs us that anciently the attempts of the kings to introduce
+or establish new laws, met with determined resistance from the people,
+and generally resulted in failure. "<i>Nolumus Leges Angli&aelig; mutari</i>," (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.<a name="FNanchor_43_43" id="FNanchor_43_43"></a><a href="#Footnote_43_43" class="fnanchor">[43]</a></p>
+
+
+<p class='center'><b>SECTION II.</b></p>
+
+<p class='center'><i><a name="link_6" id="link_6"></a>The Ancient Common Law Juries were mere Courts of Conscience.</i></p>
+
+<p>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&mdash;that is, if his
+will, as it appears in his statutes, be the highest rule of decision
+known to the judicial tribunals,&mdash;the government is a despotism, and the
+people are slaves. If, on the other hand, the rule of decision be those
+principles of natural equity and justice, which constitute, or at least
+are embodied in, the general conscience of mankind, the people are free
+in just so far as that conscience is enlightened.</p>
+
+<p>That the authority of the king was of little weight with the <i>judicial
+tribunals</i>, must necessarily be inferred from the fact already stated,
+that his authority over the <i>people</i> 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<span class='pagenum'><a name="Page_64" id="Page_64">[Pg 64]</a></span> but submission. The fact, then, that his laws were <i>not</i>
+authoritative with the people, is proof that they were <i>not</i>
+authoritative with the tribunals&mdash;in other words, that they were not, as
+matter of course, enforced by the tribunals.</p>
+
+<p>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, <i>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</i>.</p>
+
+<p>These courts, it must be considered, were very numerous, and held very
+frequent sessions. There were probably seven, eight, or nine hundred
+courts <i>a month</i>, in the kingdom; the object being, as Blackstone says,
+"<i>to bring justice home to every man's door</i>." (<i>3 Blackstone</i>, 30.) The
+number of the <i>county</i> courts, of course, corresponded to the number of
+counties, (36.) The <i>court-leet</i> was the criminal court for a district
+less than a county. The <i>hundred court</i> was the court for one of those
+districts anciently called a <i>hundred</i>, because, at the time of their
+first organization for judicial purposes, they comprised (as is
+supposed) but a hundred families.<a name="FNanchor_44_44" id="FNanchor_44_44"></a><a href="#Footnote_44_44" class="fnanchor">[44]</a> The court-baron was the court for
+a single manor, and there was a court for every manor in the kingdom.
+All these courts were holden as often as once in three or five weeks;
+the county court once a month. The king's judges were present at none of
+these courts; the only officers in attendance being sheriffs, bailiffs,
+and stewards, merely ministerial, and not judicial, officers; doubtless
+incompetent, and, if not incompetent, untrustworthy, for giving the
+juries any reliable information in matters of law, beyond what was
+already known to the jurors themselves.<span class='pagenum'><a name="Page_65" id="Page_65">[Pg 65]</a></span> 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.<a name="FNanchor_45_45" id="FNanchor_45_45"></a><a href="#Footnote_45_45" class="fnanchor">[45]</a> 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.</p>
+
+<p>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, <i>and not any laws of the king</i>;
+because but few laws were enacted, and many of those were not written,
+but only agreed upon in council.<a name="FNanchor_46_46" id="FNanchor_46_46"></a><a href="#Footnote_46_46" class="fnanchor">[46]</a> Of those that were written, few
+copies only were made, (printing being then unknown,) and not enough to
+supply all, or any considerable number, of these numerous courts. Beside
+and beyond all this, few or none of the jurors could have read the laws,
+if they had been written; because few or none of the common people
+could, at that time, read. Not only were the common people unable to
+read their own language, but, at the time of Magna Carta, the laws were
+written in Latin, a language that could be read by few persons except
+the priests, who were also the lawyers of the nation. Mackintosh says,
+"the first act of the House of Commons composed and recorded in the
+English tongue," was in 1415, two centuries after Magna Carta.<a name="FNanchor_47_47" id="FNanchor_47_47"></a><a href="#Footnote_47_47" class="fnanchor">[47]</a> Up to
+this time, and for some seventy years later, the laws were generally
+written<span class='pagenum'><a name="Page_66" id="Page_66">[Pg 66]</a></span> either in Latin or French; both languages incapable of being
+read by the common people, as well Normans as Saxons; and one of them,
+the Latin, not only incapable of being read by them, but of being even
+understood when it was heard by them.</p>
+
+<p>To suppose that the people were bound to obey, and juries to enforce,
+laws, many of which were unwritten, none of which <i>they</i> 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.</p>
+
+<p>Their knowledge of the laws passed by the king was, of course, derived
+only from oral information; and "<i>the good laws</i>," as some of them were
+called, in contradistinction to others&mdash;those which the people at large
+esteemed to be good laws&mdash;were doubtless enforced by the juries, and the
+others, as a general thing, disregarded.<a name="FNanchor_48_48" id="FNanchor_48_48"></a><a href="#Footnote_48_48" class="fnanchor">[48]</a></p>
+
+<p>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.</p>
+
+<div class="blockquot"><p>"The sheriffs and bailiffs caused the free tenants of their bailiwics
+to meet at their counties and hundreds; <i>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</i>, until such times as
+the customs of the realm were put in writing, and certainly
+published.</p>
+
+<p>"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 <i>there judged their neighbors</i>."&mdash;<i>Mirror of Justices</i>, p. 7, 8.</p></div><p><span class='pagenum'><a name="Page_67" id="Page_67">[Pg 67]</a></span></p>
+
+<p>Gilbert, in his treatise on the Constitution of England, says:</p>
+
+<div class="blockquot"><p>"In the county courts, if the debt was above forty shillings, there
+issued a <i>justicies</i> (a commission) to the sheriff, to enable him to
+hold such a plea, <i>where the suitors</i> (<i>jurors</i>) <i>are judges of the
+law and fact</i>."&mdash;<i>Gilbert's Cases in Law and Equity, &amp;c., &amp;c.</i>, 456.</p></div>
+
+<p>All the ancient writs, given in Glanville, for summoning jurors,
+indicate that the jurors judged of everything, <i>on their consciences
+only</i>. The writs are in this form:</p>
+
+<div class="blockquot"><p>"Summon twelve free and legal men (or sometimes twelve knights) to be
+in court, <i>prepared upon their oaths to declare whether A or B have
+the greater right to the land</i> (<i>or other thing</i>) <i>in question</i>." See
+Writs in Beames' Glanville, p. 54 to 70, and 233-306 to 332.</p></div>
+
+<p>Crabbe, speaking of the time of Henry I., (1100 to 1135,) recognizes the
+fact that the jurors were the judges. He says:</p>
+
+<div class="blockquot"><p>"By one law, every one was to be tried by his peers, who were of the
+same neighborhood as himself. * * By another law, <i>the judges, for so
+the jury were called</i>, were to be chosen by the party impleaded,
+after the manner of the Danish <i>nembas</i>; 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."&mdash;<i>Crabbe's
+History of the English Law</i>, p. 55.</p></div>
+
+<p>Reeve says:</p>
+
+<div class="blockquot"><p>"The great court for <i>civil</i> business was the <i>county court</i>; held
+once every four weeks. Here the sheriff presided; <i>but the suitors of
+the court, as they were called, that is, the freemen or landholders
+of the county, were the judges</i>; and the sheriff was to execute the
+judgment. * *</p>
+
+<p>"The <i>hundred court</i> was held before <i>some bailiff</i>; the <i>leet</i>
+before the lord of the manor's steward.<a name="FNanchor_49_49" id="FNanchor_49_49"></a><a href="#Footnote_49_49" class="fnanchor">[49]</a> * *</p>
+
+<p>"Out of the county court was derived an inferior court of <i>civil</i>
+jurisdiction, called the <i>court-baron</i>. This was held from three
+weeks to three weeks, and <i>was in every respect like the county
+court</i>;" (<i>that is, the jurors were judges in it</i>;) "only the lord to
+whom this franchise was granted, or <i>his steward</i>, <span class='pagenum'><a name="Page_68" id="Page_68">[Pg 68]</a></span><i>presided instead
+of the sheriff</i>."&mdash;<i>1 Reeve's History of the English Law</i>, p. 7.</p></div>
+
+<p>Chief Baron Gilbert says:</p>
+
+<div class="blockquot"><p>"Besides the tenants of the king, which held <i>per baroniam</i>, (by the
+right of a baron,) and did suit and service (served as judges) at his
+own court; and the burghers and tenants in ancient demesne, that did
+suit and service (served as jurors or judges) in their own court in
+person, and in the king's by proxy, there was also a set of
+freeholders, that did suit and service (served as jurors) at the
+county court. These were such as anciently held of the lord of the
+county, and by the escheats of earldoms had fallen to the king; or
+such as were granted out by service to hold of the king, but with
+particular reservation to do suit and service (serve as jurors)
+before the king's bailiff; <i>because it was necessary the sheriff, or
+bailiff of the king, should have suitors</i> (<i>jurors</i>) <i>at the county
+court, that the business might be despatched. These suitors are the
+pares</i> (<i>peers</i>) <i>of the county court, and indeed the judges of it;
+as the pares</i> (<i>peers</i>) <i>were the judges in every court-baron</i>; and
+therefore the king's bailiff having a court before him, there must be
+<i>pares or judges, for the sheriff himself is not a judge</i>; and though
+the style of the court is <i>Curia prima Comitatus E.C. Milit.'
+vicecom' Comitat' pr&aelig;d' Tent' apud B.</i>, &amp;c. (First Court of the
+county, E.C. knight, sheriff of the aforesaid county, held at B.,
+&amp;c.); by which it appears that the court was the sheriff's; <i>yet, by
+the old feudal constitutions, the lord was not judge, but the pares</i>
+(<i>peers</i>) <i>only</i>; so that, even in a <i>justicies</i>, which was a
+commission to the sheriff to hold plea of more than was allowed by
+the natural jurisdiction of a county court, <i>the pares</i> (<i>peers,
+jurors</i>) <i>only were judges, and not the sheriff</i>; because it was to
+hold plea in the same manner as they used to do in that (the lord's)
+court."&mdash;<i>Gilbert on the Court of Exchequer</i>, ch. 5, p. 61-2.</p></div>
+
+<div class="blockquot"><p>"It is a distinguishing feature of the feudal system, to make civil
+jurisdiction necessarily, and criminal jurisdiction ordinarily,
+co&euml;xtensive with tenure; and accordingly there is inseparably
+incident to every manor a court-baron (curia baronum), <i>being a court
+in which the freeholders of the manor are the sole judges</i>, but in
+which the lord, by himself, or more commonly by his steward,
+presides."&mdash;<i>Political Dictionary</i>, word <i>Manor</i>.</p></div>
+
+<p>The same work, speaking of the county court, says: "<i>The judges were the
+freeholders who did suit to the court.</i>" See word <i>Courts</i>.</p>
+
+<p><span class='pagenum'><a name="Page_69" id="Page_69">[Pg 69]</a></span></p><div class="blockquot"><p>"In the case of freeholders attending as suitors, the county court
+or court-baron, (as in the case of the ancient tenants <i>per baroniam</i>
+attending Parliament,) <i>the suitors are the judges of the court, both
+for law and for fact</i>, 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, <i>with no judicial authority</i>."&mdash;<i>Political
+Dictionary</i>, word <i>Suit</i>.</p></div>
+
+<div class="blockquot"><p>"<span class="smcap">Court</span>, (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, &amp;c. It was next used for those
+who stood in immediate connexion with the lord and master, the <i>pares
+curi&aelig;</i>, (peers of the court,) the limited portion of the general
+assembly, to which was entrusted the pronouncing of judgment,"
+&amp;c.&mdash;<i>Encyclopedia Americana</i>, word <i>Court</i>.</p></div>
+
+<div class="blockquot"><p>"In court-barons or county courts <i>the steward was not judge, but the
+pares</i> (<i>peers</i>, <i>jurors</i>); nor was the speaker in the House of Lords
+judge, but the barons only."&mdash;<i>Gilbert on the Court of Exchequer</i>,
+ch. 3, p. 42.</p></div>
+
+<p>Crabbe, speaking of the Saxon times, says:</p>
+
+<div class="blockquot"><p>"The sheriff presided at the <i>hundred court</i>, * * and sometimes sat
+in the place of the alderman (earl) in the <i>county
+court</i>."&mdash;<i>Crabbe</i>, 23.</p></div>
+
+<p>The sheriff afterwards became the sole presiding officer of the county
+court.</p>
+
+<p>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:</p>
+
+<div class="blockquot"><p>"<i>Judex</i> 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, <i>are not called judges, but the twelve
+men. And the same order as well in civil matters and pecuniary, as in
+matters criminal</i>."&mdash;<i>Smith's Commonwealth of England</i>, ch. 9, p. 53,
+Edition of 1621.</p></div>
+
+<div class="blockquot"><p><i>Court-Leet.</i> "That the <i>leet</i> is the most ancient court in the land
+for <i>criminal</i> matters, (the court-baron being of no less antiquity
+in <i>civil</i>,) 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 <span class='pagenum'><a name="Page_70" id="Page_70">[Pg 70]</a></span>of the manor, may be, and is, entitled to the profits,
+consisting of the essoign pence, fines, and amerciaments.</p>
+
+<p>"<i>It is held before the steward, or was, in ancient times, before the
+bailiff, of the lord.</i>"&mdash;<i>Tomlin's Law Dict.</i>, word <i>Court-Leet</i>.</p></div>
+
+<p>Of course the jury were the judges in this court, where only a "steward"
+or "bailiff" of a manor presided.</p>
+
+<div class="blockquot"><p>"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 <i>Justicies</i> (commission) to the sheriff, to
+enable him to hold such plea, <i>where the suitors are judges of the
+law and fact</i>."&mdash;<i>Gilbert's History of the Common Pleas,
+Introduction</i>, p. 19.</p></div>
+
+<div class="blockquot"><p>"This position" (that "the matter of law was decided by the King's
+Justices, but the matter of fact by the pares") "<i>is wholly
+incompatible with the common law, for the Jurata (jury) were the sole
+judges both of the law and the fact</i>."&mdash;<i>Gilbert's History of the
+Common Pleas</i>, p. 70, <i>note</i>.</p></div>
+
+<div class="blockquot"><p>We come now to the challenge; and of old <i>the suitors in court, who
+were judges</i>, could not be challenged; nor by the feudal law could
+the <i>pares</i> be even challenged, <i>Pares qui ordinariam jurisdictionem
+habent recusari non possunt</i>; (the peers who have ordinary
+jurisdiction cannot be rejected;) "<i>but those suitors who are judges
+of the court</i>, could not be challenged; and the reason is, that there
+are several qualifications required by the writ, viz., that they be
+<i>liberos et legales homines de vincineto</i> (free and legal men of the
+neighborhood) of the place laid in the declaration," &amp;c.,
+&amp;c.&mdash;<i>Ditto</i>, p. 93.</p></div>
+
+<div class="blockquot"><p>"<i>Ad questionem juris non respondent Juratores.</i>" (To the question of
+law the jurors do not answer.) "The Annotist says, that this is
+indeed a maxim in the Civil-Law Jurisprudence, <i>but it does not bind
+an English jury, for by the common law of the land the jury are
+judges as well of the matter of law, as of the fact</i>, 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 <i>fact</i>, but if
+they have any doubt among themselves relating to matter of <i>law</i>,
+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 <i>law</i>. And this is the
+province of the judge on the bench, namely, to show, or <i>teach</i> the
+law, but not to take upon him the trial of the delinquent, either in
+matter of fact or in matter of law." (Here various Saxon laws are
+quoted.) "In neither of these funda<span class='pagenum'><a name="Page_71" id="Page_71">[Pg 71]</a></span>mental laws is there the least
+word, hint, or idea, that the earl or alderman (that is to say, the
+<i>Prepositus</i> (presiding officer) of the court, which is tantamount to
+<i>the judge on the bench</i>) is to take upon him to judge the delinquent
+in any sense whatever, the sole purport of his office is to <i>teach</i>
+the secular or worldly law."&mdash;<i>Ditto</i>, p. 57, <i>note</i>.</p></div>
+
+<div class="blockquot"><p>"The administration of justice was carefully provided for; it was not
+the caprice of their lord, <i>but the sentence of their peers, that
+they obeyed. Each was the judge of his equals, and each by his equals
+was judged.</i>"&mdash;<i>Introd. to Gilbert on Tenures</i>, p. 12.</p></div>
+
+<div class="blockquot"><p>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. <i>They were consequently judges in civil causes,
+determined before the manorial tribunal.</i>"&mdash;<i>2 Middle Ages</i>, 481.</p></div>
+
+<p>Stephens adopts as correct the following quotations from Blackstone:</p>
+
+<div class="blockquot"><p>"The <i>Court-Baron</i> is a court incident to every manor in the kingdom,
+to be holden by the steward within the said manor." * * <i>It "is a
+court of common law, and it is the court before the freeholders who
+owe suit and service to the manor</i>," (are bound to serve as jurors in
+the courts of the manor,) "<i>the steward being rather the registrar
+than the judge</i>. * * The freeholders' court was composed of the
+lord's tenants, who were the <i>pares</i> (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; <i>and
+its most important business was to determine, by writ of right, all
+controversies relating to the right of lands within the manor</i>."&mdash;<i>3
+Stephens' Commentaries</i>, 392-3. <i>3 Blackstone</i>, 32-3.</p></div>
+
+<div class="blockquot"><p>"A <i>Hundred Court</i> is only a larger court-baron, being held for all
+the inhabitants of a particular hundred, instead of a manor. <i>The
+free suitors (jurors) are here also the judges, and the steward the
+register.</i>"&mdash;<i>3 Stephens</i>, 394. <i>3 Blackstone</i>, 33.</p></div>
+
+<div class="blockquot"><p>"The <i>County Court</i> is a court incident to the jurisdiction of the
+sheriff. * * <i>The freeholders of the county are the real judges in
+this court, and the sheriff is the ministerial officer.</i>"&mdash;<i>3
+Stephens</i>, 395-6. <i>3 Blackstone</i>, 35-6.</p></div><p><span class='pagenum'><a name="Page_72" id="Page_72">[Pg 72]</a></span></p>
+
+<p>Blackstone describes these courts, as courts "<i>wherein injuries were
+redressed in an easy and expeditious manner, by the suffrage of
+neighbors and friends</i>."&mdash;<i>3 Blackstone</i>, 30.</p>
+
+<div class="blockquot"><p>"When we read of a certain number of <i>freemen</i> chosen by the parties
+to decide in a dispute&mdash;all bound by oath to vote <i>in foro
+conscientia</i>&mdash;and that <i>their</i> decision, <i>not the will of the judge
+presiding, ended the suit</i>, we at once perceive that a great
+improvement has been made in the old form of compurgation&mdash;an
+improvement which impartial observation can have no hesitation to
+pronounce as identical in its main features with the trial by
+jury."&mdash;<i>Dunham's Middle Ages</i>, Sec. 2, B. 2, Ch. 1. <i>57 Lardner's
+Cab. Cyc.</i>, 60.</p></div>
+
+<div class="blockquot"><p>"The bishop and the earl, or, in his absence, the gerefa, (sheriff,)
+and sometimes both the earl and the gerefa, presided at the
+<i>schyre-mote</i> (county court); the gerefa (sheriff) usually alone
+presided at the <i>mote</i> (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 <i>burgh mote</i>, (borough
+court,) for the administration of justice, at which a gerefa, or a
+magistrate appointed by the king, presided."&mdash;<i>Spence's Origin of the
+Laws and Political Institutions of Modern Europe</i>, p. 444.</p></div>
+
+<div class="blockquot"><p>"The right of the plaintiff and defendant, and of the prosecutor and
+criminal, <i>to challenge the judices</i>, (judges,) <i>or assessors,<a name="FNanchor_50_50" id="FNanchor_50_50"></a><a href="#Footnote_50_50" class="fnanchor">[50]</a>
+appointed to try the cause in civil matters, and to decide upon the
+guilt or innocence of the accused in criminal matters</i>, is recognized
+in the treatise called the Laws of Henry the First; but I cannot
+discover, from the Anglo-Saxon laws or histories, that before the
+Conquest the parties had any general right of challenge; <i>indeed, had
+such right existed, the injunctions to all persons standing in the
+situation of judges (jurors) to do right according to their
+conscience</i>, would scarcely have been so frequently and anxiously
+repeated."&mdash;<i>Spence</i>, 456.</p></div>
+
+<p>Hale says:</p>
+
+<div class="blockquot"><p>"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 <i>Justitiarius Angli&aelig;</i>.<span class='pagenum'><a name="Page_73" id="Page_73">[Pg 73]</a></span>"</p>
+
+<p>This doubtless bred great inconvenience, uncertainty, and variety in
+the laws, viz.:</p>
+
+<p>"<i>First, by the ignorance of the judges, which were the freeholders
+of the county.</i> * *</p>
+
+<p>"Thirdly, a third inconvenience was, that all the business of any
+moment was carried by parties and factions. <i>For the freeholders
+being generally the judges</i>, and conversing one among another, <i>and
+being as it were the chief judges, not only of the fact, but of the
+law</i>; every man that had a suit there, sped according as he could
+make parties."&mdash;<i>1 Hale's History of the Common Law</i>, p. 246.</p></div>
+
+<div class="blockquot"><p>"In all these tribunals," (county court, hundred court, &amp;c.,) "<i>the
+judges were the free tenants</i>, owing suit to the court, and
+afterwards called its peers."&mdash;<i>1 Lingard's History of England</i>, 488.</p></div>
+
+<p>Henry calls the twelve jurors "assessors," and says:</p>
+
+<div class="blockquot"><p>"These assessors, <i>who were in reality judges</i>, 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."&mdash;<i>3 Henry's History of Great Britain</i>, 346.</p></div>
+
+<p>Tyrrell says:</p>
+
+<div class="blockquot"><p>"Alfred cantoned his kingdom, first into <i>Trihings</i> and <i>Lathes</i>, as
+they are still called in Kent and other places, consisting of three
+or four Hundreds; <i>in which, the freeholders being judges</i>, such
+causes were brought as could not be determined in the Hundred
+court."&mdash;<i>Tyrrell's Introduction to the History of England</i>, p. 80.</p></div>
+
+<p>Of the <i>Hundred Court</i> he says:</p>
+
+<div class="blockquot"><p>"In this court anciently, <i>one of the principal inhabitants, called
+the alderman, together with the barons of the Hundred<a name="FNanchor_51_51" id="FNanchor_51_51"></a><a href="#Footnote_51_51" class="fnanchor">[51]</a>&mdash;id est the
+freeholders&mdash;was judge</i>."&mdash;<i>Ditto</i>, p. 80.</p></div>
+
+<p>Also he says:</p>
+
+<p><span class='pagenum'><a name="Page_74" id="Page_74">[Pg 74]</a></span></p><div class="blockquot"><p>"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.'"&mdash;<i>Ditto</i>, p. 86.</p></div>
+
+<div class="blockquot"><p>"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, <i>and whose oaths gave a final decision to the contested
+claim</i>."&mdash;<i>1 Palgrave's Rise and Progress of the English
+Commonwealth</i>, 261.</p></div>
+
+<div class="blockquot"><p>"From the moment when the crown became accustomed to the 'Inquest,' a
+restraint was imposed upon every branch of the prerogative. <i>The king
+could never be informed of his rights, but through the medium of the
+people.</i> Every 'extent' by which he claimed the profits and
+advantages resulting from the casualties of tenure, every process by
+which he repressed the usurpations of the baronage, depended upon the
+'good men and true' who were impanelled to 'pass' between the subject
+and the sovereign; and the thunder of the Exchequer at Westminster
+might be silenced by the honesty, the firmness, or the obstinacy, of
+one sturdy knight or yeoman in the distant shire.</p>
+
+<p>Taxation was controlled in the same manner by the voice of those who
+were most liable to oppression. * * A jury was impanelled to adjudge
+the proportion due to the sovereign; and this course was not
+essentially varied, even after the right of granting aids to the
+crown was fully acknowledged to be vested in the parliament of the
+realm. The people taxed themselves; and the collection of the grants
+was checked and controlled, and, perhaps, in many instances evaded,
+by these virtual representatives of the community.</p>
+
+<p>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."&mdash;<i>1
+Palgrave's Rise and Progress of the English Constitution</i>, 274-7.</p></div><p><span class='pagenum'><a name="Page_75" id="Page_75">[Pg 75]</a></span></p>
+
+<p>Coke says, "The court of the county is no court of record,<a name="FNanchor_52_52" id="FNanchor_52_52"></a><a href="#Footnote_52_52" class="fnanchor">[52]</a> <i>and the
+suitors are the judges thereof</i>."&mdash;<i>4 Inst.</i>, 266.</p>
+
+<p>Also, "The court of the Hundred is no court of record, <i>and the suitors
+be thereof judges</i>."&mdash;<i>4 Inst.</i>, 267.</p>
+
+<p>Also, "The court-baron is a court incident to every manor, and is not of
+record, <i>and the suitors be thereof judges</i>."&mdash;<i>4 Inst.</i>, 268.</p>
+
+<p>Also, "The court of ancient demesne is in the nature of a court-baron,
+<i>wherein the suitors are judges</i>, and is no court of record."&mdash;<i>4
+Inst.</i>, 269.</p>
+
+<p>Millar says, "Some authors have thought that jurymen were originally
+<i>compurgators</i>, called by a defendant to swear that they believed him
+innocent of the facts with which he was charged.... But ... compurgators
+were merely witnesses; <i>jurymen were, in reality, judges</i>. 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;)
+<i>the latter were appointed to try, by witnesses, and by all other means
+of proof, whether he was innocent or guilty</i>.... 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 <i>tell the truth</i>....
+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."&mdash;<i>1 Millar's
+Hist. View of Eng. Gov.</i>, ch. 12, p. 332-4.</p>
+
+<p>Also, "The same form of procedure, which took place in the
+administration of justice among the vassals of a barony, was gradually
+extended to the courts held in the <i>trading towns</i>."&mdash;<i>Same</i>, p. 335.</p>
+
+<p>Also, "The same regulations, concerning the distribution of justice by
+the intervention of juries, ... <i>were introduced into the baron courts
+of the king</i>, as into those of the nobility, or such of his subjects as
+retained their allodial property."&mdash;<i>Same</i>, p. 337.</p>
+
+<p>Also. "This tribunal" (the <i>aula regis</i>, or king's court, afterwards
+divided into the courts of King's Bench, Common<span class='pagenum'><a name="Page_76" id="Page_76">[Pg 76]</a></span> 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."&mdash;<i>Same</i>, vol. 2, p. 292.</p>
+
+<p>Speaking of the times of Edward the First, (1272 to 1307,) Millar says:</p>
+
+<p>"What is called the petty jury was therefore introduced into these
+tribunals, (the King's Bench, the Common Pleas, and the <i>Exchequer</i>,) as
+well as into their auxiliary courts employed to distribute justice in
+the circuits; and was thus rendered essentially necessary in determining
+causes of every sort, whether civil, criminal, or <i>fiscal</i>."&mdash;<i>Same</i>,
+vol. 2, p. 293-4.</p>
+
+<p>Also, "That this form of trial (by jury) obtained universally in all the
+feudal governments, as well as in that of England, there can be no
+reason to doubt. In France, in Germany, and in other European countries,
+where we have any accounts of the constitution and procedure of the
+feudal courts, it appears that lawsuits of every sort concerning the
+freemen or vassals of a barony, were determined by the <i>pares curi&aelig;</i>
+(peers of the court;) <i>and that the judge took little more upon him than
+to regulate the method of proceeding, or to declare the verdict of the
+jury</i>."&mdash;<i>Same</i>, vol. 1, ch. 12, p. 329.</p>
+
+<p>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."&mdash;<i>Same</i>, vol. 2, p. 296.</p>
+
+<p>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."&mdash;2 <i>Palgrave</i>, 147.</p>
+
+<p>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; <i>but they were still substantially
+the judges of the court</i>."&mdash;<i>Same</i>, 148.</p>
+
+<p>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, <i>which men, so
+chosen, were judges and arbitrators</i>, and called Birlaw men."&mdash;1
+<i>Palgrave's Rise</i>, &amp;c., p. 80.<span class='pagenum'><a name="Page_77" id="Page_77">[Pg 77]</a></span></p>
+
+<p>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.<a name="FNanchor_53_53" id="FNanchor_53_53"></a><a href="#Footnote_53_53" class="fnanchor">[53]</a><span class='pagenum'><a name="Page_78" id="Page_78">[Pg 78]</a></span></p>
+
+<p>That all these courts were mere <i>courts of conscience, in which the
+juries were sole judges, administering justice according to their own
+ideas of it</i>, is not only shown by the extracts<span class='pagenum'><a name="Page_79" id="Page_79">[Pg 79]</a></span> already given, but is
+explicitly acknowledged in the following one, in which the <i>modern
+"courts of conscience"</i> are compared with the <i>ancient hundred and
+county courts</i>, and the preference<span class='pagenum'><a name="Page_80" id="Page_80">[Pg 80]</a></span> 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<span class='pagenum'><a name="Page_81" id="Page_81">[Pg 81]</a></span> tribunal than the consciences of individuals specially
+appointed, and holding permanent offices.</p>
+
+<div class="blockquot"><p>"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, <i>or courts of conscience</i>, 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, <i>and make such order therein as is
+consonant to equity and good conscience</i>.* * Divers trading towns and
+other districts have obtained acts of Parlia<span class='pagenum'><a name="Page_82" id="Page_82">[Pg 82]</a></span>ment, for establishing
+in them <i>courts of conscience</i> upon nearly the same plan as that in
+the city of London.</p>
+
+<p>"The anxious desire that has been shown to obtain these several acts,
+proves clearly that the nation, in general, is truly sensible of the
+great inconvenience arising from the disuse of the ancient county and
+hundred courts, wherein causes of this small value were always
+formerly decided with very little trouble and expense to the parties.
+But it is to be feared that the general remedy, which of late hath
+been principally applied to this inconvenience, (the erecting these
+new jurisdictions,) may itself be attended in time with very ill
+consequences; as the method of proceeding therein is entirely in
+derogation of the common law; and their large discretionary powers
+create a petty tyranny in a set of standing commissioners; and as the
+disuse of the trial by jury may tend to estrange the minds of the
+people from that valuable prerogative of Englishmen, which has
+already been more than sufficiently excluded in many instances. <i>How
+much rather is it to be wished that the proceedings in the county and
+hundred courts could be again revived</i>,<span class='pagenum'><a name="Page_83" id="Page_83">[Pg 83]</a></span> 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! <i>And we may, with
+satisfaction, observe, that this experiment has been actually tried,
+and has succeeded in the populous county of Middlesex</i>, which might
+serve as an example for others. For by statute 23 Geo. II., ch. 33,
+it is enacted:</p>
+
+<p>1. That a special county court shall be held at least once in a
+month, in every hundred of the county of Middlesex, <i>by the county
+clerk</i>.</p>
+
+<p>2. <i>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</i>; so as none shall be summoned oftener than
+once a year.</p>
+
+<p>3. That in all causes not exceeding the value of forty shillings,
+<i>the county clerk and twelve suitors (jurors) shall proceed in a
+summary way</i>, examining the parties and witnesses on oath, without
+the formal process anciently used; <i>and shall make such order therein
+as they shall judge agreeable to conscience</i>."&mdash;<i>3 Blackstone</i>,
+81-83.</p></div>
+
+<p>What are these but courts of conscience? And yet Blackstone tells us
+they are a <i>revival of the ancient hundred and county courts</i>. And what
+does this fact prove, but that the ancient common law courts, in which
+juries sat, were mere courts of conscience?</p>
+
+<p>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, <i>that the jurors took their law
+from sheriffs, bailiffs, and stewards</i>, 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,<span class='pagenum'><a name="Page_84" id="Page_84">[Pg 84]</a></span> the latter would have imposed such laws
+upon the people as they pleased.</p>
+
+<p>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, <i>nor in the mode of administering justice in them</i>.</p>
+
+<p>There is no evidence whatever, so far as I am aware, that the juries had
+any <i>less</i> power in the courts held by the king's justices, than in
+those held by sheriffs, bailiffs, and stewards; and there is no
+probability whatever that they had. All the difference between the
+former courts and the latter undoubtedly was, that, in the former, the
+juries had the benefit of the advice and assistance of the justices,
+which would, of course, be considered valuable in difficult cases, on
+account of the justices being regarded as more learned, not only in the
+laws of the king, but also in the common law, or "law of the land."</p>
+
+<p>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:</p>
+
+<div class="blockquot"><p>"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."&mdash;<i>2 Middle Ages</i>, ch. 8, part 2, p. 465.</p></div>
+
+<p>It is evident that it was in this way, <i>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</i>, that the
+laws and customs, which, for the most part, made up the <i>common law</i>,
+and were called, at that day, "<i>the good laws, and good customs</i>," and
+"<i>the law of the land</i>," were established. How otherwise could they ever
+have become established, as Blackstone says they were, "<i>by long and
+immemorial usage, and by their universal reception throughout the
+kingdom</i>,"<a name="FNanchor_54_54" id="FNanchor_54_54"></a><a href="#Footnote_54_54" class="fnanchor">[54]</a> when, as the Mirror says,<span class='pagenum'><a name="Page_85" id="Page_85">[Pg 85]</a></span> "<i>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</i>?"</p>
+
+<p>The fact that, in that dark age, so many of the principles of natural
+equity, as those then embraced in the <i>Common Law</i>, should have been so
+uniformly recognized and enforced by juries, as to have become
+established by general consent as "<i>the law of the land</i>;" and the
+further fact that this "law of the land" was held so sacred that even
+the king could not lawfully infringe or alter it, but was required to
+swear to maintain it, are beautiful and impressive illustrations of the
+truth that men's minds, even in the comparative infancy of other
+knowledge, have clear and coincident ideas of the elementary principles,
+and the paramount obligation, of justice. The same facts also prove that
+the common mind, and the general, or, perhaps, rather, the universal
+conscience, as developed in the untrammelled judgments of juries, may be
+safely relied upon for the preservation of individual rights in civil
+society; and that there is no necessity or excuse for that deluge of
+arbitrary legislation, with which the present age is overwhelmed, under
+the pretext that unless laws be <i>made</i>, the law will not be known; a
+pretext, by the way, almost universally used for overturning, instead of
+establishing, the principles of justice.</p>
+
+
+<p class='center'><b>SECTION III.</b></p>
+
+<p class='center'><i><a name="link_7" id="link_7"></a>The Oaths of Jurors.</i></p>
+
+<p>The oaths that have been administered to jurors, in England, and which
+are their <i>legal</i> guide to their duty, <i>all</i> (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 <i>according to law</i>.</p>
+
+<p>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<span class='pagenum'><a name="Page_86" id="Page_86">[Pg 86]</a></span> "<i>shall swear, with their hands upon a holy
+thing, that they will condemn no man that is innocent, nor acquit any
+that is guilty</i>."&mdash;<i>4 Blackstone</i>, 302. <i>2 Turner's History of the
+Anglo-Saxons, 155. Wilkins' Laws of the Anglo-Saxons</i>, 117. <i>Spelman's
+Glossary</i>, word <i>Jurata</i>.</p>
+
+<p>Blackstone assumes that this was the oath of the <i>grand</i> jury (<i>4
+Blackstone</i>, 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.</p>
+
+<p>Hume, speaking of the administration of justice in the time of Alfred,
+says that, in every hundred,</p>
+
+<div class="blockquot"><p>"Twelve freeholders were chosen, who, having sworn, together with the
+hundreder, or presiding magistrate of that division, <i>to administer
+impartial justice</i>, proceeded to the examination of that cause which
+was submitted to their jurisdiction."&mdash;<i>Hume</i>, ch. 2.</p></div>
+
+<p>By a law of Henry II., in 1164, it was directed that the sheriff
+"<i>faciet jurare duodecim legales homines de vicineto seu de villa, quod
+inde veritatem secundum conscientiam suam manifestabunt</i>," (shall make
+twelve legal men from the neighborhood <i>to swear that they will make
+known the truth according to their conscience</i>.)&mdash;<i>Crabbe's History of
+the English Law</i>, 119. <i>1 Reeves</i>, 87. <i>Wilkins</i>, 321-323.</p>
+
+<p>Glanville, who wrote within the half century previous to Magna Carta,
+says:</p>
+
+<div class="blockquot"><p>"Each of the knights summoned for this purpose (as jurors) ought to
+swear that he will neither utter that which is false, nor knowingly
+conceal the truth."&mdash;<i>Beames' Glanville</i>, 65.</p></div>
+
+<p>Reeve calls the trial by jury "<i>the trial by twelve men sworn to speak
+the truth</i>."&mdash;<i>1 Reeve's History of the English Law</i>, 87.</p>
+
+<p>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."&mdash;<i>3 Henry's Hist. of Great Britain</i>, 346.</p>
+
+<p>The <i>Mirror of Justices</i>, (written within a century after Magna Carta,)
+in the chapter on the abuses of the Common Law, says:</p>
+
+<div class="blockquot"><p>"It is abuse to use the words, <i>to their knowledge</i>, in their oaths,
+to make the jurors speak upon thoughts, <i>since the chief words of
+their oaths be that they speak the truth</i>."&mdash;p. 249.</p></div><p><span class='pagenum'><a name="Page_87" id="Page_87">[Pg 87]</a></span></p>
+
+<p>Smith, writing in the time of Elizabeth, says that, in <i>civil</i> suits,
+the jury "be sworn to declare the truth of that issue according to the
+evidence, and their conscience."&mdash;<i>Smith's Commonwealth of England</i>,
+edition of 1621, p. 73.</p>
+
+<p>In <i>criminal</i> trials, he says:</p>
+
+<div class="blockquot"><p>"The clerk giveth the juror an oath to go uprightly betwixt the
+prince and the prisoner."&mdash;<i>Ditto</i>, p. 90.<a name="FNanchor_55_55" id="FNanchor_55_55"></a><a href="#Footnote_55_55" class="fnanchor">[55]</a></p></div><p><span class='pagenum'><a name="Page_88" id="Page_88">[Pg 88]</a></span></p>
+
+<p>Hale says:</p>
+
+<div class="blockquot"><p>"Then twelve, and no less, of such as are indifferent and are
+returned upon the principal panel, or the <i>tales</i>, are sworn to try
+the same according to the evidence."&mdash;<i>2 Hale's History of the Common
+Law</i>, 141.</p></div>
+
+<p>It appears from Blackstone that, even <i>at this day, neither in civil nor
+criminal cases</i>, are jurors in England sworn to try causes <i>according to
+law</i>. He says that in civil suits the jury are</p>
+
+<div class="blockquot"><p>"Sworn well and truly to <i>try the issue</i> between the parties, and a
+true verdict to give according to the evidence."&mdash;<i>3 Blackstone</i>,
+365.</p></div>
+
+<p>"<i>The issue</i>" 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?</p>
+
+<p>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 <i>unjust</i> 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.</p>
+
+<p>In criminal cases, Blackstone says the oath of the jury in England is:</p>
+
+<div class="blockquot"><p>"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."&mdash;<i>4
+Blackstone</i>, 355.</p></div>
+
+<p>"The issue" to be tried, in a criminal case, is "<i>guilty</i>," or "<i>not
+guilty</i>." The laws passed by a legislature can rarely, if ever, have
+anything to do with this issue. "<i>Guilt</i>" is an<span class='pagenum'><a name="Page_89" id="Page_89">[Pg 89]</a></span> <i>intrinsic</i> 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 <i>guilty</i>, 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.</p>
+
+<p>The words, "<i>according to the evidence</i>," have doubtless been introduced
+into the above oaths in modern times. They are unquestionably in
+violation of the Common Law, and of Magna Carta, if by them be meant
+such evidence only as the government sees fit to allow to go to the
+jury. If the government can dictate the evidence, and require the jury
+to decide according to that evidence, it necessarily dictates the
+conclusion to which they must arrive. In that case the trial is really a
+trial by the government, and not by the jury. <i>The jury</i> cannot <i>try an
+issue</i>, unless <i>they</i> determine what evidence shall be admitted. The
+ancient oaths, it will be observed, say nothing about "<i>according to the
+evidence</i>." They obviously take it for granted that the jury try the
+whole case; and of course that <i>they</i> 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 <i>they</i> thought
+ought to be admitted, for ascertaining the truth.<a name="FNanchor_56_56" id="FNanchor_56_56"></a><a href="#Footnote_56_56" class="fnanchor">[56]</a></p>
+
+<p><i>Grand Jury.</i>&mdash;If jurors are bound to enforce all laws passed by the
+legislature, it is a very remarkable fact that the oath of grand juries
+does not require them to be governed by the laws in finding indictments.
+There have been various forms of oath administered to grand jurors; but
+by none of them that I recollect ever to have seen, except those of the
+States<span class='pagenum'><a name="Page_90" id="Page_90">[Pg 90]</a></span> of Connecticut and Vermont, are they sworn to present men
+<i>according to law</i>. The English form, as given in the essay on Grand
+Juries, written near two hundred years ago, and supposed to have been
+written by <i>Lord Somers</i>, is as follows:</p>
+
+<div class="blockquot"><p>"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."</p></div>
+
+<p>This form of oath is doubtless quite ancient, for the essay says "our
+ancestors appointed" it.&mdash;<i>See Essay</i>, p. 33-34.</p>
+
+<p>On the obligations of this oath, the essay says:</p>
+
+<div class="blockquot"><p>"If it be asked how, or in what manner, the (grand) juries shall
+inquire, the answer is ready, <i>according to the best of their
+understandings</i>. They only, not the judges, are sworn to search
+diligently to find out all treasons, &amp;c., within their charge, and
+they must and ought to use their own discretion in the way and manner
+of their inquiry. <i>No directions can legally be imposed upon them by
+any court or judges</i>; 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
+<span class='pagenum'><a name="Page_91" id="Page_91">[Pg 91]</a></span>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."&mdash;<i>Lord Somers' Essay on Grand Juries</i>, p.
+38.</p></div>
+
+<p>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.<a name="FNanchor_57_57" id="FNanchor_57_57"></a><a href="#Footnote_57_57" class="fnanchor">[57]</a></p>
+
+
+<p class='center'><b>SECTION IV.</b></p>
+
+<p class='center'><i><a name="link_8" id="link_8"></a>The Right of Juries to fix the Sentence.</i></p>
+
+<p>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.</p>
+
+<p>That the juries were to fix the sentence under Magna Carta, is also
+shown by statutes subsequent to Magna Carta.</p>
+
+<p>A statute passed fifty-one years after Magna Carta, says that a baker,
+for default in the weight of his bread, "<i>debeat</i> amerciari vel subire
+judicium pillor&aelig;,"&mdash;that is, "<i>ought</i> to be amerced, or suffer the
+sentence of the pillory." And that a brewer, for "selling ale, contrary
+to the assize," "<i>debeat</i> amerciari, vel pati judicium tumbrelli;" that
+is, "<i>ought</i> to be<span class='pagenum'><a name="Page_92" id="Page_92">[Pg 92]</a></span> amerced, or suffer judgment of the tumbrel."&mdash;<i>51
+Henry III.</i>, st. 6. (1266.)</p>
+
+<p>If the king (the legislative power) had had authority to fix the
+punishments of these offences imperatively, he would naturally have said
+these offenders <i>shall</i> be amerced, and <i>shall</i> suffer judgment of the
+pillory and tumbrel, instead of thus simply expressing the opinion that
+they <i>ought</i> to be punished in that manner.</p>
+
+<p>The statute of Westminster, passed sixty years after Magna Carta,
+provides that,</p>
+
+<div class="blockquot"><p>"No city, borough, nor town, <i>nor any man</i>, 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, <i>and that by his or their
+peers</i>."&mdash;<i>3 Edward I.</i>, ch. 6. (1275.)</p></div>
+
+<p>The same statute (ch. 18) provides further, that,</p>
+
+<div class="blockquot"><p>"Forasmuch as the <i>common fine and amercement</i> of the whole county in
+Eyre of the justices for false judgments, or for other trespass, is
+unjustly assessed by sheriffs and baretors in the shires, so that the
+sum is many times increased, and the parcels otherwise assessed than
+they ought to be, to the damage of the people, which be many times
+paid to the sheriffs and baretors, which do not acquit the payers; it
+is provided, and the king wills, that from henceforth such sums shall
+be assessed before the justices in Eyre, afore their departure, <i>by
+the oath of knights and other honest men</i>, 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."&mdash;<i>St. 3 Edward I.</i>, ch. 18, (1275.)<a name="FNanchor_58_58" id="FNanchor_58_58"></a><a href="#Footnote_58_58" class="fnanchor">[58]</a></p></div>
+
+<p>The following statute, passed in 1341, one hundred and twenty-five years
+after Magna Carta, providing for the trial of peers of the realm, and
+the king's ministers, contains a re<span class='pagenum'><a name="Page_93" id="Page_93">[Pg 93]</a></span>cognition of the principle of Magna
+Carta, that the jury are to fix the sentence.</p>
+
+<div class="blockquot"><p>"Whereas before this time the peers of the land have been arrested
+and imprisoned, and their temporalities, lands, and tenements, goods
+and cattels, asseized in the king's hands, and some put to death
+without judgment of their peers: It is accorded and assented, that no
+peer of the land, officer, nor other, because of his office, nor of
+things touching his office, nor by other cause, shall be brought in
+judgment to lose his temporalities, lands, tenements, goods and
+cattels, nor to be arrested, nor imprisoned, outlawed, exiled, nor
+forejudged, nor put to answer, nor be judged, but by <i>award</i>
+(<i>sentence</i>) of the said peers in Parliament."&mdash;<i>15 Edward III.</i>, st.
+1, sec. 2.</p></div>
+
+<p>Section 4, of the same statute provides,</p>
+
+<div class="blockquot"><p>"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, <i>according to the judgment</i> (<i>sentence</i>) of the said
+peers in the Parliament."</p></div>
+
+<p>Here is an admission that the peers were to fix the sentence, or
+judgment, and the king promises to make execution "<i>according to</i>" that
+sentence.</p>
+
+<p>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.</p>
+
+<p>The first case given in Hargrave's collection of English State Trials,
+is that of <i>Alexander Nevil</i>, Archbishop of York,<span class='pagenum'><a name="Page_94" id="Page_94">[Pg 94]</a></span> <i>Robert Vere</i>, Duke
+of Ireland, <i>Michael de la Pole</i>, Earl of Suffolk, and <i>Robert
+Tresilian</i>, 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.</p>
+
+<div class="blockquot"><p>"Wherefore the said <i>Lords of Parliament</i>, there present, as judges
+in Parliament, in this case, <i>by assent of the king, pronounced their
+sentence</i>, 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."</p>
+
+<p>Also, in the same case, Sir <i>John Holt</i>, Sir <i>William Burgh</i>, Sir
+<i>John Cary</i>, Sir <i>Roger Fulthorpe</i>, and <i>John Locton</i>, "<i>were by the
+lords temporal, by the assent of the king</i>, 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."</p>
+
+<p>Also, in the same case, <i>John Blake</i>, "of council for the king," and
+<i>Thomas Uske</i>, under sheriff of Middlesex, having been convicted of
+treason,</p>
+
+<p>"<i>The lords awarded, by assent of the king</i>, 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."</p>
+
+<p>Also, "<i>Simon Burleigh</i>, the king's chamberlain," being convicted of
+treason, "<i>by joint consent of the king and the lords</i>, 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."</p>
+
+<p>Also, "<i>John Beauchamp</i>, steward of the household to the king, <i>James
+Beroverse</i>, and <i>John Salisbury</i>, knights, gentlemen of the privy
+chamber, <i>were in like manner condemned</i>."&mdash;<i>1 Hargrave's State
+Trials</i>, first case.</p></div>
+
+<p>Here the sentences were all fixed by the peers, <i>with the assent of the
+king</i>. But that the king should be consulted, and his assent obtained to
+the sentence pronounced by the peers,<span class='pagenum'><a name="Page_95" id="Page_95">[Pg 95]</a></span> 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.</p>
+
+<p>So far as we can gather from the reports of state trials, peers of the
+realm were usually sentenced by those who tried them, <i>with the assent
+of the king</i>. 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:</p>
+
+<div class="blockquot"><p>"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."&mdash;<i>2 Howell's State Trials</i>, 1250.</p></div>
+
+<p>Here was a peer of the realm, and a minister of the king, of the highest
+grade; and if it were ever <i>necessary</i> 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.</p>
+
+<p><i>Lord Bacon</i> was sentenced by the House of Lords, (1620,) <i>no mention
+being made of the assent of the king</i>. The sentence is in these words:</p>
+
+<div class="blockquot"><p>"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."</p></div>
+
+<p>And when it was demanded of him, before sentence, whether it were his
+hand that was subscribed to his confession, and<span class='pagenum'><a name="Page_96" id="Page_96">[Pg 96]</a></span> whether he would stand
+to it; he made the following answer, which implies that the lords were
+the ones to determine his sentence.</p>
+
+<div class="blockquot"><p>"My lords, it is my act, my hand, my heart. <i>I beseech your lordships
+to be merciful to a broken reed.</i>"&mdash;<i>1 Hargrave's State Trials</i>,
+386-7.</p></div>
+
+<p>The sentence against Charles the First, (1648,) after reciting the
+grounds of his condemnation, concludes in this form:</p>
+
+<div class="blockquot"><p>"For all which treasons and crimes, <i>this court doth adjudge</i>, 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."</p></div>
+
+<p>The report then adds:</p>
+
+<div class="blockquot"><p>"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.'"&mdash;<i>1
+Hargrave's State Trials</i>, 1037.</p></div>
+
+<p>Unless it had been the received "<i>law of the land</i>" 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 "<i>the sentence of the law</i>," instead of "<i>the act,
+sentence, judgment, and resolution of the court</i>."</p>
+
+<p>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.</p>
+
+<p><i>After being found guilty</i>, the earl addressed the <i>lords</i>, for a
+<i>mitigation of sentence</i>, as follows:</p>
+
+<div class="blockquot"><p>"'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,'" &amp;c., &amp;c.</p></div><p><span class='pagenum'><a name="Page_97" id="Page_97">[Pg 97]</a></span></p>
+
+<p>On being interrupted, he proceeded:</p>
+
+<div class="blockquot"><p>"'My lords, I submit whether this be not proper in <i>mitigation of
+your lordships' sentence</i>; 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.' * *</p>
+
+<p>"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 <i>judgment</i>," (that is,
+<i>sentence</i>, for he had already been found <i>guilty</i>,) "to give upon
+the impeachment against the said earl." * *</p>
+
+<p>"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:</p>
+
+<p>"'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 <i>judgment</i>
+(<i>sentence</i>) of your lordships against Thomas, Earl of Macclesfield,
+for the said high crimes and misdemeanors.'</p>
+
+<p>"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.</p>
+
+<p>"'Thomas, Earl of Macclesfield, the Lords have unanimously found you
+guilty of high crimes and misdemeanors, charged on you by the
+impeachment of the House of Commons, and do now, according to law,
+proceed to <i>judgment</i> against you, which I am ordered to pronounce.
+Their lordships' <i>judgment</i> is, and this high court doth adjudge,
+that you, Thomas, Earl of Macclesfield, be fined in the sum of thirty
+thousand pounds unto our sovereign lord the king; and that you shall
+be imprisoned in the tower of London, and there kept in safe custody,
+until you shall pay the said fine.'"&mdash;<i>6 Hargrave's State Trials</i>,
+762-3-4.</p></div>
+
+<p>This case shows that the principle of Magna Carta, that a man should be
+<i>sentenced only</i> 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 <i>peer of the realm</i>.<span class='pagenum'><a name="Page_98" id="Page_98">[Pg 98]</a></span></p>
+
+<p>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.</p>
+
+
+<p class='center'><b>SECTION V.</b></p>
+
+<p class='center'><i><a name="link_9" id="link_9"></a>The Oaths of Judges.</i></p>
+
+<p>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 <i>common law</i>, 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.</p>
+
+<p>The judges were sworn to "<i>do equal law, and execution of right, to all
+the king's subjects, rich and poor, without having regard to any
+person</i>;" and that they will "<i>deny no man common right</i>;"<a name="FNanchor_59_59" id="FNanchor_59_59"></a><a href="#Footnote_59_59" class="fnanchor">[59]</a> but they
+were <i>not</i> sworn to obey or execute any statutes of the king, or of the
+king and parliament. Indeed, they are virtually sworn <i>not</i> to obey any
+statutes that are against "<i>common right</i>," or contrary to "<i>the common
+law</i>," or "<i>law of the land</i>;" but to "certify the king thereof"&mdash;that
+is, notify him that his statutes are against the common law;&mdash;and then
+proceed to execute the <i>common law</i>, notwithstanding such legislation to
+the contrary. The words of the oath on this point are these:</p>
+
+<div class="blockquot"><p>"<i>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</i>, (that is, the common law,
+as will be seen on reference to the entire oath given in the note,)
+<i>that ye do nothing by such letters, but certify the king thereof
+and proceed to execute the law</i>,<span class='pagenum'><a name="Page_99" id="Page_99">[Pg 99]</a></span> (that is, the common law,)
+<i>notwithstanding the same letters</i>."</p></div>
+
+<p>When it is considered that the king was the sole legislative power, and
+that he exercised this power, to a great extent, by orders in council,
+and by writs and "letters" addressed often-times to some sheriff, or
+other person, and that his commands, when communicated to his justices,
+or any other person, "by letters," or writs, <i>under seal</i>, had as much
+legal authority as laws promulgated in any other form whatever, it will
+be seen that this oath of the justices <i>absolutely required</i> that they
+disregard any legislation that was contrary to "<i>common right</i>," or
+"<i>the common law</i>," 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.<a name="FNanchor_60_60" id="FNanchor_60_60"></a><a href="#Footnote_60_60" class="fnanchor">[60]</a></p>
+
+<p>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:</p>
+
+<div class="blockquot"><p>"Edward, by the Grace of God, &amp;c., to the Sheriff of <i>Stafford</i>,
+greeting: Because that by divers complaints made to us, we have
+perceived that <i>the Law of the Land, which we by our oath are bound
+to maintain</i>, 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 <span class='pagenum'><a name="Page_100" id="Page_100">[Pg 100]</a></span>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:</p>
+
+<p>"First, we have commanded all our justices, that they shall from
+henceforth <i>do equal law and execution of right</i> to all our subjects,
+rich and poor, without having regard to any person, <i>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</i>, (that is, "the law of the
+land," or common law,) <i>as afore is said</i>.<a name="FNanchor_61_61" id="FNanchor_61_61"></a><a href="#Footnote_61_61" class="fnanchor">[61]</a> 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 <span class='pagenum'><a name="Page_101" id="Page_101">[Pg 101]</a></span>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."&mdash;<i>20 Edward III.</i>, ch. 1. (1346.)</p></div>
+
+<p>Other statutes of similar tenor have been enacted, as follows:</p>
+
+<div class="blockquot"><p>"It is accorded and established, that it shall not be commanded by
+the great seal, nor the little seal, to disturb or delay <i>common
+right</i>; and though such commandments do come, the justices shall not
+therefore leave (omit) to do right in any point."&mdash;<i>St. 2 Edward
+III.</i>, ch. 8. (1328.)</p></div>
+
+<div class="blockquot"><p>"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 <i>common law</i>, by
+commandment, which shall come to them under the great seal, or the
+privy seal."&mdash;<i>14 Edward III.</i>, st. 1, ch. 14. (1340.)</p></div>
+
+<div class="blockquot"><p>"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).&mdash;<i>11 Richard II.</i>, ch. 10. (1387.)</p></div>
+
+<p>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."</p>
+
+<p>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 <i>Lord Somers</i>,
+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<span class='pagenum'><a name="Page_102" id="Page_102">[Pg 102]</a></span> 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.</p>
+
+
+<p class='center'><b>SECTION VI.</b></p>
+
+<p class='center'><i><a name="link_10" id="link_10"></a>The Coronation Oath.</i></p>
+
+<p>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
+<i>Saxon</i> kings, down to the seventeenth century, as will be seen from the
+authorities hereafter given.</p>
+
+<p>The purport of the oath is, that the king swears <i>to maintain the law of
+the land</i>&mdash;that is, <i>the common law</i>. In other words, he swears "<i>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)</i>."</p>
+
+<p>These are the same laws and customs which were called by the general
+name of "<i>the law of the land</i>," or "<i>the common law</i>," and, with some
+slight additions, were embodied in <i>Magna Carta</i>.</p>
+
+<p>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,&mdash;that is, of the
+ancient "laws, customs, and liberties," mentioned in the oath,&mdash;that
+juries should judge of all questions that came before them, according to
+their own consciences, independently of the legislation of the king.</p>
+
+<p>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,<span class='pagenum'><a name="Page_103" id="Page_103">[Pg 103]</a></span> to maintain the law of the
+land, or the ancient "laws, customs, and liberties," was equivalent to
+an oath that he would never <i>assume</i> 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.</p>
+
+<p>The ancient coronation oath is printed with the Statutes of the Realm,
+vol. i., p. 168, and is as follows:<a name="FNanchor_62_62" id="FNanchor_62_62"></a><a href="#Footnote_62_62" class="fnanchor">[62]</a></p>
+
+<p class='center'>TRANSLATION.</p>
+
+<div class="blockquot"><p>"<i>Form of the Oath of the King of England, on his Coronation.</i></p>
+
+<p>(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.)</p>
+
+<p>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?<span class='pagenum'><a name="Page_104" id="Page_104">[Pg 104]</a></span></p>
+
+<p>(And the king shall answer,) I do concede, and will preserve them,
+and confirm them by my oath.</p>
+
+<p>Will you preserve to the church of God, the clergy, and the people,
+entire peace and harmony in God, according to your powers?</p>
+
+<p>(And the king shall answer,) I will.</p>
+
+<p>In all your judgments, will you cause equal and right justice and
+discretion to be done, in mercy and truth, according to your powers?</p>
+
+<p>(And the king shall answer,) I will.</p>
+
+<p>Do you concede that the just laws and customs, <i>which the common
+people have chosen</i>, 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?</p>
+
+<p>(And the king shall answer,) I concede and promise."</p></div>
+
+<p>The language used in the last of these questions, "Do you concede that
+the just laws and customs, <i>which the common people have chosen</i>, (<i>quas
+vulgus elegit</i>,) shall be preserved?" &amp;c., is worthy of especial notice,
+as showing that the laws, which were to be preserved, were not
+necessarily <i>all</i> the laws which the kings enacted, <i>but only such of
+them as the common people had selected or approved</i>.</p>
+
+<p>And how had the common people made known their approbation or selection
+of these laws? Plainly, in no other way than this&mdash;<i>that the juries
+composed of the common people had voluntarily enforced them</i>. The common
+people had no other legal form of making known their approbation of
+particular laws.</p>
+
+<p>The word "concede," too, is an important word. In the English statutes
+it is usually translated <i>grant</i>&mdash;as if with an intention to indicate
+that "the laws, customs, and liberties" of the English people were mere
+<i>privileges, granted</i> to them by the king; whereas it should be
+translated <i>concede</i>, to indicate simply an <i>acknowledgment</i>, 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.</p>
+
+<p>I will now give some authorities to show that the foregoing oath has,
+<i>in substance</i>, been the coronation oath from the times of William the
+Conqueror, (1066,) down to the time of James the First, and probably
+until 1688.<span class='pagenum'><a name="Page_105" id="Page_105">[Pg 105]</a></span></p>
+
+<p>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 <i>Saxon</i> kings used to take at their
+coronations."</p>
+
+<p>Hale says:</p>
+
+<div class="blockquot"><p>"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 re&euml;nforced, and mingled, for the most part,
+with the coronation oath of king William I., and some of his
+successors."&mdash;<i>1 Hale's History of Common Law</i>, 157.</p></div>
+
+<div class="blockquot"><p>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."&mdash;<i>Ditto</i>, p. 202, note L.</p></div>
+
+<p>Kelham says:</p>
+
+<div class="blockquot"><p>"Thus stood the laws of England at the entry of William I., and it
+seems plain that the laws, commonly called the laws of Edward the
+Confessor, were at that time the standing laws of the kingdom, and
+considered the great rule of their rights and liberties; and that the
+English were so zealous for them, 'that they were never satisfied
+till the said laws were re&euml;nforced, 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, <i>in
+sense and substance the very same with that which the Saxon kings
+used to take at their coronations</i>. * * 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."&mdash;<i>Kelham's Preliminary Discourse to the Laws of
+William the Conqueror.</i> See, also, <i>1 Hale's History of the Common
+Law</i>, 186.</p></div>
+
+<p>Crabbe says that William the Conqueror "solemnly swore that he would
+observe the good and approved laws of Edward the Confessor."&mdash;<i>Crabbe's
+History of the English Law</i>, p. 43.</p>
+
+<p>The successors of William, up to the time of Magna Carta,<span class='pagenum'><a name="Page_106" id="Page_106">[Pg 106]</a></span> 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)
+"<i>that the laws and liberties of King Edward</i>, 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, <i>that at the time of his absolution, he promised by his oath
+to observe these very laws and liberties</i>."&mdash;<i>Echard's History of
+England</i>, p. 105-6.</p>
+
+<p>It would appear, from the following authorities, that since Magna Carta
+the form of the coronation oath has been "<i>to maintain the law of the
+land</i>,"&mdash;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 "<i>to maintain the law of the land</i>,"
+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.</p>
+
+<p>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,</p>
+
+<div class="blockquot"><p>"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 <i>laws of our land</i><a name="FNanchor_63_63" id="FNanchor_63_63"></a><a href="#Footnote_63_63" class="fnanchor">[63]</a> to guide, shall allow the said
+charters pleaded before them in judgment, in all their points, that
+is, to wit, <i>the Great Charter as the Common Law</i>, and the Charter of
+the Forest for the wealth of the realm.</p>
+
+<p>"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."&mdash;<i>25 Edward
+I.</i>, ch. 1 and 2. (1297.)</p></div><p><span class='pagenum'><a name="Page_107" id="Page_107">[Pg 107]</a></span></p>
+
+<p>Blackstone also says:</p>
+
+<div class="blockquot"><p>"It is agreed by all our historians that the Great Charter of King
+John was, for the most part, <i>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</i>."&mdash;<i>Blackstone's Introduction to the Charters.</i> See
+<i>Blackstone's Law Tracts</i>, 289.</p></div>
+
+<p>Crabbe says:</p>
+
+<div class="blockquot"><p>"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."&mdash;<i>Crabbe's History of the
+English Law</i>, p. 127.</p></div>
+
+<p>That the coronation oath of the kings subsequent to Magna Carta was, in
+substance, if not in form, "<i>to maintain this law of the land, or common
+law</i>," is shown by a statute of Edward Third, commencing as follows:</p>
+
+<div class="blockquot"><p>"Edward, by the Grace of God, &amp;c., &amp;c., to the Sheriff of Stafford,
+Greeting: Because that by divers complaints made to us, we have
+perceived that <i>the law of the land, which we by oath are bound to
+maintain</i>," &amp;c.&mdash;<i>St. 20 Edward III.</i> (1346.)</p></div>
+
+<p>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:</p>
+
+<div class="blockquot"><p>"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 <i>maintaining the law of the land</i>.' And, in the
+next page save one, says, '<i>I was sworn to maintain the law of the
+land</i>, and therefore had been perjured if I had broken it. God is my
+judge, I never intended it.'"&mdash;<i>Somers on Grand Juries</i>, p. 82.</p></div>
+
+<p>In 1688, the coronation oath was changed by act of Parliament, and the
+king was made to swear:</p>
+
+<div class="blockquot"><p>"To govern the people of this kingdom of England, and the dominions
+thereto belonging, <i>according to the statutes in Parliament agreed
+on, and the laws and customs of the same</i>."&mdash;<i>St. 1 William and
+Mary</i>, ch. 6. (1688.)</p></div><p><span class='pagenum'><a name="Page_108" id="Page_108">[Pg 108]</a></span></p>
+
+<p>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, <i>to maintain the law of the
+land, or the common law</i>, meaning thereby the ancient Saxon customs, as
+embodied in the laws of Alfred, of Edward the Confessor, and finally in
+Magna Carta.</p>
+
+<p>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.<a name="FNanchor_64_64" id="FNanchor_64_64"></a><a href="#Footnote_64_64" class="fnanchor">[64]</a></p>
+
+<div class='footnotes'><h3>Footnotes</h3>
+<div class="footnote"><p><a name="Footnote_34_34" id="Footnote_34_34"></a><a href="#FNanchor_34_34"><span class="label">[34]</span></a> Hale says:
+</p>
+<div class="blockquot"><p>"The trial by jury of twelve men was the usual trial among the
+Normans, in most suits; especially in assizes, et juris utrum."&mdash;<i>1
+Hale's History of the Common Law</i>, 219.</p></div>
+<p>
+This was in Normandy, before the conquest of England by the Normans.
+<i>See Ditto</i>, p. 218.
+</p><p>
+Crabbe says:
+</p>
+<div class="blockquot"><p>"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."&mdash;<i>Crabbe's History of
+the English Law</i>, p. 32.</p></div></div>
+
+
+<div class="footnote"><p><a name="Footnote_35_35" id="Footnote_35_35"></a><a href="#FNanchor_35_35"><span class="label">[35]</span></a> "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."</p></div>
+
+<div class="footnote"><p><a name="Footnote_36_36" id="Footnote_36_36"></a><a href="#FNanchor_36_36"><span class="label">[36]</span></a> This office was afterwards committed to sheriffs. But even
+while the court was held by the lord, "<i>the Lord was not judge, but the
+Pares (peers) only</i>."&mdash;<i>Gilbert on the Court of Exchequer</i>, 61-2.</p></div>
+
+<div class="footnote"><p><a name="Footnote_37_37" id="Footnote_37_37"></a><a href="#FNanchor_37_37"><span class="label">[37]</span></a> The opinion expressed in the text, that the Witan had no
+legislative authority, is corroborated by the following authorities:
+</p><p>
+"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."&mdash;<i>Dunham's
+Middle Ages, Sec.</i> 2, <i>B.</i> 2, <i>Ch.</i> 1. <i>57 Lardner's Cab. Cyc.</i>, 53.
+</p><p>
+The "<i>second sanction</i>" required to give the legislation of the king and
+Witan the effect of law, was undoubtedly, I think, <i>as a general thing,
+the sanction of a jury</i>. I know of no evidence whatever that laws were
+ever submitted to popular vote in the county courts, as this author
+seems to suppose possible. Another mode, sometimes resorted to for
+obtaining the sanction of the people to the laws of the Witan, was, it
+seems, to persuade the people themselves to swear to observe them.
+Mackintosh says:
+</p><p>
+"The preambles of the laws (of the Witan) speak of the infinite number
+of <i>liegemen</i> 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 <i>shire-gemotes</i> or
+county meetings, where they proclaimed the laws made by the king and his
+counsellors, which, being acknowledged and sworn to at these
+<i>folk-motes</i> (meetings of the people) became, by their assent,
+completely binding on the whole nation."&mdash;<i>Mackintosh's Hist. of
+England</i>, <i>Ch.</i> 2. <i>45 Lardner's Cab. Cyc.</i>, 75.</p></div>
+
+<div class="footnote"><p><a name="Footnote_38_38" id="Footnote_38_38"></a><a href="#FNanchor_38_38"><span class="label">[38]</span></a> Page 31.</p></div>
+
+<div class="footnote"><p><a name="Footnote_39_39" id="Footnote_39_39"></a><a href="#FNanchor_39_39"><span class="label">[39]</span></a> Hallam says, "It was, however, to the county court that an
+English freeman chiefly looked for the maintenance of his civil
+rights."&mdash;<i>2 Middle Ages</i>, 392.
+</p><p>
+Also, "This (the county court) was the great constitutional judicature
+in all questions of civil right."&mdash;<i>Ditto</i>, 395.
+</p><p>
+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."&mdash;<i>Ditto</i>,
+399.</p></div>
+
+<div class="footnote"><p><a name="Footnote_40_40" id="Footnote_40_40"></a><a href="#FNanchor_40_40"><span class="label">[40]</span></a> "Alfred may, in one sense, be called the founder of these
+laws, (the Saxon,) for until his time they were an unwritten code, but
+he expressly says, '<i>that I, Alfred, collected the good laws of our
+forefathers into one code, and also I wrote them down</i>'&mdash;which is a
+decisive fact in the history of our laws well worth
+noting."&mdash;<i>Introduction to Gilbert's History of the Common Pleas</i>, p. 2,
+<i>note</i>.
+</p><p>
+Kelham says, "Let us consult our own lawyers and historians, and they
+will tell us * * that Alfred, Edgar, and Edward the Confessor, were the
+great <i>compilers and restorers</i> of the English Laws."&mdash;<i>Kelham's
+Preliminary Discourse to the Laws of William the Conqueror</i>, p. 12.
+<i>Appendix to Kelham's Dictionary of the Norman Language.</i>
+</p><p>
+"He (Alfred) also, like another Theodosius, <i>collected the various
+customs</i> that he found dispersed in the kingdom, and reduced and
+digested them into one uniform system, or code of laws, in his
+<i>som-bec</i>, or <i>liber judicialis</i> (judicial book). This he <i>compiled</i> for
+the use of the court baron, hundred and county court, the court-leet and
+sheriff's tourn, tribunals which he established for the trial of all
+causes, civil and criminal, in the very districts wherein the complaints
+arose."&mdash;<i>4 Blackstone</i>, 411.
+</p><p>
+Alfred himself says, "Hence I, King Alfred, gathered these together, and
+commanded many of those to be written down which our forefathers
+observed&mdash;those which I liked&mdash;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
+&AElig;thelbert, who was the first of the English who received baptism&mdash;those
+which appeared to me the justest&mdash;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."&mdash;<i>Laws of Alfred, translated by R. Price, prefixed to
+Mackintosh's History of England</i>, <i>vol.</i> 1. <i>45 Lardner's Cab. Cyc.</i>
+</p><p>
+"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, <i>being probably no
+more than a revival of King Alfred's code</i>, with some improvements
+suggested by necessity and experience, particularly the incorporating
+some of the British, or, rather, Mercian <i>customs</i>, and also <i>such of
+the Danish</i> (customs) as were reasonable and approved, into the <i>West
+Saxon Lage</i>, 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 <i>common law</i>, as extending its authority universally
+over all the realm, and which is doubtless of Saxon parentage."&mdash;<i>4
+Blackstone</i>, 412.
+</p><p>
+"By the <i>Lex Terr&aelig;</i> and <i>Lex Regni</i> 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 '<i>The Common Law of the Land</i>.'"&mdash;<i>Introduction to Gilbert's
+History of the Common Pleas</i>, p. 22, <i>note</i>.</p></div>
+
+<div class="footnote"><p><a name="Footnote_41_41" id="Footnote_41_41"></a><a href="#FNanchor_41_41"><span class="label">[41]</span></a> Not the conqueror of the English people, (as the friends
+of liberty maintain,) but only of Harold the usurper.&mdash;See <i>Hale's
+History of the Common Law</i>, ch. 5.</p></div>
+
+<div class="footnote"><p><a name="Footnote_42_42" id="Footnote_42_42"></a><a href="#FNanchor_42_42"><span class="label">[42]</span></a> For all these codes see Wilkins' Laws of the Anglo-Saxons.
+</p><p>
+"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."&mdash;<i>1 Palgrave's Rise
+and Progress of the English Commonwealth</i>, 58-9.</p></div>
+
+<div class="footnote"><p><a name="Footnote_43_43" id="Footnote_43_43"></a><a href="#FNanchor_43_43"><span class="label">[43]</span></a> Rapin says, "The customs now practised in England are, for
+the most part, the same as the Anglo-Saxons brought with them from
+Germany."&mdash;<i>Rapin's Dissertation on the Government of the Anglo-Saxons</i>,
+vol. 2, Oct. Ed., p. 198. See <i>Kelham's Discourse before named</i>.</p></div>
+
+<div class="footnote"><p><a name="Footnote_44_44" id="Footnote_44_44"></a><a href="#FNanchor_44_44"><span class="label">[44]</span></a> 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."&mdash;<i>2 Middle Ages</i>, 391.</p></div>
+
+<div class="footnote"><p><a name="Footnote_45_45" id="Footnote_45_45"></a><a href="#FNanchor_45_45"><span class="label">[45]</span></a> 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 "<i>that none be amerced but by his
+peers</i>."&mdash;<i>Mirror of Justices</i>, 49.</p></div>
+
+<div class="footnote"><p><a name="Footnote_46_46" id="Footnote_46_46"></a><a href="#FNanchor_46_46"><span class="label">[46]</span></a> "For the English laws, <i>although not written</i>, may, as it
+should seem, and that without any absurdity, be termed laws, (since this
+itself is law&mdash;that which pleases the prince has the force of law,) I
+mean those laws which it is evident were promulgated by the advice of
+the nobles and the authority of the prince, concerning doubts to be
+settled in their assembly. For if from the mere want of writing only,
+they should not be considered laws, then, unquestionably, writing would
+seem to confer more authority upon laws themselves, than either the
+equity of the persons constituting, or the reason of those framing
+them."&mdash;<i>Glanville's Preface</i>, p. 38. (Glanville was chief justice of
+Henry II., 1180.) <i>2 Turner's History of the Anglo-Saxons</i>, 280.</p></div>
+
+<div class="footnote"><p><a name="Footnote_47_47" id="Footnote_47_47"></a><a href="#FNanchor_47_47"><span class="label">[47]</span></a> Mackintosh's History of England, ch. 3. Lardner's Cabinet
+Cyclop&aelig;dia, 266.</p></div>
+
+<div class="footnote"><p><a name="Footnote_48_48" id="Footnote_48_48"></a><a href="#FNanchor_48_48"><span class="label">[48]</span></a> 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&mdash;whether the latter were
+expressed in his statutes, or by his judges.</p></div>
+
+<div class="footnote"><p><a name="Footnote_49_49" id="Footnote_49_49"></a><a href="#FNanchor_49_49"><span class="label">[49]</span></a> Of course, Mr. Reeve means to be understood that, in the
+hundred court, and court-leet, <i>the jurors were the judges</i>, as he
+declares them to have been in the county court; otherwise the "bailiff"
+or "steward" must have been judge.</p></div>
+
+<div class="footnote"><p><a name="Footnote_50_50" id="Footnote_50_50"></a><a href="#FNanchor_50_50"><span class="label">[50]</span></a> The jurors were sometimes called "assessors," because they
+assessed, or determined the amount of fines and amercements to be
+imposed.</p></div>
+
+<div class="footnote"><p><a name="Footnote_51_51" id="Footnote_51_51"></a><a href="#FNanchor_51_51"><span class="label">[51]</span></a> "The barons of the Hundred" were the freeholders. Hallam
+says: "The word <i>baro</i>, originally meaning only a man, was of very large
+significance, and is not unfrequently applied to common freeholders, as
+in the phrase <i>court-baron</i>."&mdash;<i>3 Middle Ages</i>, 14-15.
+</p><p>
+<i>Blackstone</i> says: "The <i>court-baron</i> * * 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."&mdash;<i>3 Blackstone</i>, 33.</p></div>
+
+<div class="footnote"><p><a name="Footnote_52_52" id="Footnote_52_52"></a><a href="#FNanchor_52_52"><span class="label">[52]</span></a> 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.</p></div>
+
+<div class="footnote"><p><a name="Footnote_53_53" id="Footnote_53_53"></a><a href="#FNanchor_53_53"><span class="label">[53]</span></a> Stuart says:
+</p><p>
+"The courts, or civil arrangements, which were modelled in Germany,
+preserved the independence of the people; and having followed the Saxons
+into England, and continuing their importance, they supported the envied
+liberty we boast of. * *
+</p><p>
+"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.
+</p><p>
+"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. * *
+</p><p>
+"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,
+<i>who sat with him as judges</i>, 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.
+</p><p>
+"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.
+</p><p>
+"This establishment was formed both in Germany and England, by the
+inhabitants of a certain division, who extended their jurisdiction over
+the territory they occupied.<a name="FNanchor_65_65" id="FNanchor_65_65"></a><a href="#Footnote_65_65" class="fnanchor">[65]</a> They bound themselves under a penalty
+to assemble at stated times; <i>and having elected the wisest to preside
+over them, they judged, not only all civil and criminal matters</i>, 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.
+</p><p>
+"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 <i>shyre mote</i>, therefore, or <i>county court</i>, was
+instituted; and it formed the chief source of justice both in Germany
+and England.
+</p><p>
+"The powers, accordingly, which had been enjoyed by the court of the
+<i>hundred</i>, 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.
+</p><p>
+"Every subject of claim or contention was brought, in the first
+instance, or by appeal, to the <i>county court</i>; and the <i>earl</i>, or
+<i>eorldorman</i>, who presided there, was active to put the laws in
+execution. He repressed the disorders which fell out within the circuit
+of his authority; and the least remission in his duty, or the least
+fraud he committed, was complained of and punished. He was elected from
+among the great, and was above the temptation of a bribe; but, to
+encourage his activity, he was presented with a share of the territory
+he governed, or was entitled to a proportion of the fines and profits of
+justice. Every man, in his district, was bound to inform him concerning
+criminals, and to assist him to bring them to trial; and, as in rude and
+violent times the poor and helpless were ready to be oppressed by the
+strong, he was instructed particularly to defend them.
+</p><p>
+"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.
+</p><p>
+"The druids also, or priests, in Germany, as we had formerly occasion to
+remark, and the clergy in England, exercised a jurisdiction in the
+<i>hundred</i> and <i>county</i> courts. They instructed the people in religious
+duties, and in matters regarding the priesthood; and the princes, earls,
+or <i>eorldormen</i>, 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.<a name="FNanchor_66_66" id="FNanchor_66_66"></a><a href="#Footnote_66_66" class="fnanchor">[66]</a>
+</p><p>
+"<i>But the prince or earl performed not, at all times, in person, the
+obligations of his office.</i> 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,
+<i>made him often delegate to an inferior person the distribution of
+justice in his district</i>. 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. <i>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.</i>
+</p><p>
+"The <i>hundred</i>, however, and <i>county</i> 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.
+</p><p>
+"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
+<i>justiciary</i>, 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 <i>hundred</i>, and claimed
+without effect, at four courts of the county, before there could lie an
+appeal to it.
+</p><p>
+"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."&mdash;<i>Stuart on the Constitution of England</i>, p. 222 to 245.
+</p><p>
+"In the Anglo-Saxon period, accordingly, <i>twelve</i> 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."&mdash;<i>Ditto</i>, p. 260.
+</p><p>
+"Before the orders of men were very nicely distinguished, the jurors
+were elected from the same rank. When, however, a regular subordination
+of orders was established, and when a knowledge of property had inspired
+the necessitous with envy, and the rich with contempt, <i>every man was
+tried by his equals</i>. 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."&mdash;<i>Ditto</i>, p. 262-3.
+</p><p>
+Blackstone says:
+</p><p>
+"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; <i>wherein injuries were redressed in an easy and
+expeditious manner, by the suffrage of neighbors and friends</i>. 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. * *
+</p><p>
+"These inferior courts, at least the name and form of them, still
+continue in our legal constitution; but as the superior courts of record
+have, in practice, obtained a concurrent original jurisdiction, and as
+there is, besides, a power of removing plaints or actions thither from
+all the inferior jurisdictions; upon these accounts (among others) it
+has happened that these petty tribunals have fallen into decay, and
+almost into oblivion; whether for the better or the worse may be matter
+of some speculation, when we consider, on the one hand, the increase of
+expense and delay, and, on the other, the more able and impartial
+decisions that follow from this change of jurisdiction.
+</p><p>
+"The order I shall observe in discoursing on these several courts,
+constituted for the redress of <i>civil</i> injuries, (for with those of a
+jurisdiction merely <i>criminal</i> I shall not at present concern
+myself,<a name="FNanchor_67_67" id="FNanchor_67_67"></a><a href="#Footnote_67_67" class="fnanchor">[67]</a>) 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."&mdash;3 <i>Blackstone</i>, 30 to 32.
+</p><p>
+"The <i>court-baron</i> is a court incident to every manor in the kingdom,
+<i>to be holden by the steward within the said manor</i>. 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; <i>for that it
+is held by the freeholders who owe suit and service to the manor, the
+steward being rather the registrar than the judge</i>. These courts, though
+in their nature distinct, are frequently confounded together. <i>The court
+we are now considering, viz., the freeholders court, was composed of the
+lord's tenants, who were the pares</i> (equals) <i>of each other, and were
+bound by their feudal tenure to assist their lord in the dispensation of
+domestic justice</i>. 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 <i>fierding
+courts</i>, so called because four were instituted within every superior
+district or hundred."&mdash;3 <i>Blackstone</i>, 33, 34.
+</p><p>
+"A <i>hundred court</i> is only a larger court-baron, being held for all the
+inhabitants of a particular hundred, instead of a manor. <i>The free
+suitors are here also the judges, and the steward the registrar, as in
+the case of a court-baron.</i> 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 <i>centeni</i>, we may remember, were the
+principal inhabitants of a district composed of different villages,
+originally in number a <i>hundred</i>, but afterward only called by that
+name, and who probably gave the same denomination to the district out of
+which they were chosen. C&aelig;sar speaks positively of the judicial power
+exercised in their hundred courts and courts-baron. '<i>Princeps regiorum
+atque pagorum</i>' (which we may fairly construe the lords of hundreds and
+manors) '<i>inter suos jus dicunt, controversias que minuunt</i>.' (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 <i>centeni</i>, the hundreders, or jury, <i>who were
+taken out of the common freeholders, and had themselves a share in the
+determination. 'Eliguntur in conciliis et principes, qui jura per pagos
+vicosque reddunt, centeni singulis, ex plebe comites concilium simul et
+auctoritas adsunt</i>.' (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 <i>h&aelig;reda</i> 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."&mdash;<i>3 Blackstone</i>, 34, 35.
+</p><p>
+"The <i>county court</i> is a court incident to the jurisdiction of the
+<i>sheriff</i>. It is not a court of record, but may hold pleas of debt, or
+damages, under the value of forty shillings; over some of which causes
+these inferior courts have, by the express words of the statute of
+Gloucester, (6 Edward I., ch. 8,) a jurisdiction totally exclusive of
+the king's superior courts. * * The county court may also hold plea of
+many real actions, and of all personal actions to any amount, by virtue
+of a special writ, called a <i>justicies</i>, which is a writ empowering the
+sheriff, for the sake of despatch, to do the same justice in his county
+court as might otherwise be had at Westminster. <i>The freeholders of the
+county court are the real judges in this court, and the sheriff is the
+ministerial officer.</i> * * In modern times, as proceedings are removable
+from hence into the king's superior courts, by writ of pone or
+<i>recordari</i>, 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."&mdash;<i>3 Blackstone</i>, 36, 37.
+</p><p>
+"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."&mdash;<i>3 Blackstone</i>, 59.</p></div>
+
+<div class="footnote"><p><a name="Footnote_54_54" id="Footnote_54_54"></a><a href="#FNanchor_54_54"><span class="label">[54]</span></a> 1 Blackstone, 63-67.</p></div>
+
+<div class="footnote"><p><a name="Footnote_55_55" id="Footnote_55_55"></a><a href="#FNanchor_55_55"><span class="label">[55]</span></a> This quaint and curious book (Smith's Commonwealth of
+England) describes the <i>minuti&aelig;</i> of trials, giving in detail the mode of
+impanelling the jury, and then the conduct of the lawyers, witnesses,
+and court. I give the following extracts, <i>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</i>.
+</p><p>
+In civil causes he says:
+</p>
+<div class="blockquot"><p>"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."&mdash;p.
+74.</p></div>
+<p>
+This is the whole account given of the charge to the jury.
+</p><p>
+In criminal cases, after the witnesses have been heard, and the prisoner
+has said what he pleases in his defence, the book proceeds:
+</p>
+<div class="blockquot"><p>"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. <i>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</i>, and mark well what is said.'"&mdash;p. 92.</p></div>
+<p>
+This is the whole account given of the charge in a criminal case.
+</p><p>
+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.
+</p>
+<div class="blockquot"><p>"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; <i>and the twelve answer with most gentle words, they did it
+according to their consciences</i>, and pray the judges to be good unto
+them, <i>they did as they thought right, and as they accorded all</i>, and
+so it passeth away for the most part."&mdash;p. 100.</p></div>
+<p>
+The account given of the trial of a peer of the realm corroborates the
+same point:
+</p>
+<div class="blockquot"><p>"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.)&mdash;p. 98.</p></div></div>
+
+
+<div class="footnote"><p><a name="Footnote_56_56" id="Footnote_56_56"></a><a href="#FNanchor_56_56"><span class="label">[56]</span></a> "The present form of the jurors' oath is that they shall
+'give a true verdict <i>according to the evidence</i>.' At what time this
+form was introduced is uncertain; but for several centuries after the
+Conquest, the jurors, <i>both in civil and criminal cases</i>, were sworn
+merely to <i>speak the truth</i>. (Glanville, lib. 2, cap. 17; Bracton, lib.
+3, cap. 22; lib. 4, p. 287, 291; Britton, p. 135.) Hence their decision
+was accurately termed <i>veredictum</i>, or verdict, that is, 'a thing truly
+said'; whereas the phrase 'true verdict' in the modern oath is not an
+accurate expression."&mdash;<i>Political Dictionary</i>, word <i>Jury</i>.</p></div>
+
+<div class="footnote"><p><a name="Footnote_57_57" id="Footnote_57_57"></a><a href="#FNanchor_57_57"><span class="label">[57]</span></a> 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
+"<i>according to law</i>."</p></div>
+
+<div class="footnote"><p><a name="Footnote_58_58" id="Footnote_58_58"></a><a href="#FNanchor_58_58"><span class="label">[58]</span></a> <i>Coke</i>, as late as 1588, admits that amercements must be
+fixed by the peers (8 Coke's Rep. 38, 2 Inst. 27); but he attempts,
+wholly without success, as it seems to me, to show a difference between
+fines and amercements. The statutes are very numerous, running through
+the three or four hundred years immediately succeeding Magna Carta, in
+which fines, ransoms, and amercements are spoken of as if they were the
+common punishments of offences, and as if they all meant the same thing.
+If, however, any technical difference could be made out between them,
+there is clearly none in principle; and the word amercement, as used in
+Magna Carta, must be taken in its most comprehensive sense.</p></div>
+
+<div class="footnote"><p><a name="Footnote_59_59" id="Footnote_59_59"></a><a href="#FNanchor_59_59"><span class="label">[59]</span></a> "<i>Common right</i>" was the common law. <i>1 Coke's Inst.</i> 142
+a. 2 <i>do.</i> 55, 6.</p></div>
+
+<div class="footnote"><p><a name="Footnote_60_60" id="Footnote_60_60"></a><a href="#FNanchor_60_60"><span class="label">[60]</span></a> The oath of the justices is in these words:
+</p><p>
+"Ye shall swear, that well and lawfully ye shall serve our lord the king
+<i>and his people</i>, 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; <i>and that ye shall do equal law and execution of
+right to all his subjects, rich and poor, without having regard to any
+person</i>. 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, <i>to disturb execution of the common law</i>," (mark the term,
+"<i>common law</i>,") "or to menace the people that they may not pursue the
+law, that ye shall cause their bodies to be arrested and put in prison;
+and in case they be such that ye cannot arrest them, that ye certify the
+king of their names, and of their misprision, hastily, so that he may
+thereof ordain a convenable remedy. And that ye by yourself, nor by
+other, privily nor apertly, maintain any plea or quarrel hanging in the
+king's court, or elsewhere in the country. <i>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.</i> 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."&mdash;<i>18 Edward III.</i>, st. 4. (1344.)</p></div>
+
+<div class="footnote"><p><a name="Footnote_61_61" id="Footnote_61_61"></a><a href="#FNanchor_61_61"><span class="label">[61]</span></a> That the terms "<i>Law</i>" and "<i>Right</i>," as used in this
+statute, mean the <i>common law</i>, is shown by the preamble, which declares
+the motive of the statute to be that "<i>the Law of the Land, (the common
+law,) which we (the king) by our oath are bound to maintain</i>," may be
+the better kept, &amp;c.</p></div>
+
+<div class="footnote"><p><a name="Footnote_62_62" id="Footnote_62_62"></a><a href="#FNanchor_62_62"><span class="label">[62]</span></a> The following is a copy of the original:
+</p>
+<div class="blockquot"><p>"<i>Forma Juramenti Regis Angli&aelig; in Coronacione sua</i>:
+</p><p>
+(Archiepiscopus Cantuari&aelig;, ad quo de jure et consuetudine Ecclesi&aelig;
+Cantuari&aelig;, antiqua et approbata, pertinet Reges Angli&aelig; inungere et
+coronare, die coronacionis Regis, anteque Rex coronetur, faciet Regi
+Interrogationes subscriptas.)
+</p><p>
+Si leges et consuetudines ab antiquis justis et Deo devotis Regibus
+plebi Anglicano concessas, cum sacramenti confirmacione eidem plebi
+concedere et servare (volueris:) Et pr&aelig;sertim leges et consuetudines
+et libertates a glorioso Rege Edwardo clero populoque concessas?
+</p><p>
+(Et respondeat Rex,) Concedo et servare volo, et sacramento
+confirmare.
+</p><p>
+Servabis Ecclesi&aelig; Dei, Cleroque, et Populo, pacem ex integro et
+concordiam in Deo secundum vires tuas?
+</p><p>
+(Et respondeat Rex,) Servabo.
+</p><p>
+Facies fieri in omnibus Judiciis tuis equam et rectam justiciam, et
+discrecionem, in misericordia et veritate, secundum vires tuas?
+</p><p>
+(Et respondeat Rex,) Faciam.
+</p><p>
+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?
+</p><p>
+(Et respondeat Rex,) Concedo et promitto."</p></div></div>
+
+
+<div class="footnote"><p><a name="Footnote_63_63" id="Footnote_63_63"></a><a href="#FNanchor_63_63"><span class="label">[63]</span></a> It would appear, from the text, that the Charter of
+Liberties and the Charter of the Forest were sometimes called "<i>laws of
+the land</i>."</p></div>
+
+<div class="footnote"><p><a name="Footnote_64_64" id="Footnote_64_64"></a><a href="#FNanchor_64_64"><span class="label">[64]</span></a> As the ancient coronation oath, given in the text, has
+come down from the Saxon times, the following remarks of Palgrave will
+be pertinent, in connection with the oath, as illustrating the fact
+that, in those times, no special authority attached to the laws of the
+king:
+</p><p>
+"The Imperial Witenagemot was not a legislative assembly, in the strict
+sense of the term, for the whole Anglo-Saxon empire. Promulgating his
+edicts amidst his peers and prelates, the king uses the language of
+command; but the theoretical prerogative was modified by usage, and the
+practice of the constitution required that the law should be accepted by
+the legislatures (courts) of the several kingdoms. * * The 'Basileus'
+speaks in the tone of prerogative: Edgar does not merely recommend, he
+commands that the law shall be adopted by all the people, whether
+English, Danes, or Britons, in every part of his empire. Let this
+statute be observed, he continues, by Earl Oslac, and all the host who
+dwell under his government, and let it be transmitted by writ to the
+ealdormen of the other subordinate states. And yet, in defiance of this
+positive injunction, the laws of Edgar were not accepted in Mercia until
+the reign of Canute the Dane. It might be said that the course so
+adopted may have been an exception to the general rule; but in the
+scanty and imperfect annals of Anglo-Saxon legislation, we shall be able
+to find so many examples of similar proceedings, <i>that this mode of
+enactment must be considered as dictated by the constitution of the
+empire</i>. 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 <i>Witan</i> of the <i>shire</i>
+(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.
+</p><p>
+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. <i>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.</i> Their privileges and their duties were closely conjoined;
+<i>most frequently, the statutes themselves were only affirmances of
+ancient customs, or declaratory enactments</i>. 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 Curi&aelig;' (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 <i>'Testing Clause</i>' was retained
+under the Anglo-Norman reigns; and the sovereign, who submitted his
+Charter to the judgment of the <i>Proceres</i>, professed to be guided by the
+opinion which they gave. As the '<i>Pares</i>' 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 <i>Lord-Marcher</i> 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.
+</p><p>
+In this assembly, the king, the prelates, the dukes, the ealdormen, and
+the optimates passed judgment upon all great offenders. * *
+</p><p>
+<i>The sovereign could not compel the obedience of the different nations
+composing the Anglo-Saxon empire.</i> Hence, it became more necessary for
+him to <i>conciliate their opinions</i>, 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.
+</p><p>
+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 Angli&aelig;, 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."&mdash;<i>1 Palgrave's Rise and Progress of the English Commonwealth</i>,
+637 to 642.<span class='pagenum'><a name="Page_109" id="Page_109">[Pg 109]</a></span></p></div>
+
+<div class="footnote"><p><a name="Footnote_65_65" id="Footnote_65_65"></a><a href="#FNanchor_65_65"><span class="label">[65]</span></a> "It was the freemen in Germany, and the possessors of land
+in England, who were <i>suitors</i> (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."</p></div>
+
+<div class="footnote"><p><a name="Footnote_66_66" id="Footnote_66_66"></a><a href="#FNanchor_66_66"><span class="label">[66]</span></a> It would be wholly erroneous, I think, to infer from this
+statement of Stuart, that either the "priests, princes, earls, or
+<i>eorldormen</i>" 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 <i>anciently</i>
+</p>
+<div class="blockquot"><p>"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. <i>When these preliminaries were over, they proceeded to try
+and determine, first the causes of the church, next the pleas of the
+crown, and last of all the controversies of private parties.</i>"&mdash;3
+<i>Henry's History of Great Britain</i>, 348.</p></div>
+<p>
+This view is corroborated by Tyrrell's <i>Introduction to the History of
+England</i>, p. 83-84, and by Spence's <i>Origin of the Laws and Political
+Institutions of Modern Europe</i>, p. 447, and the note on the same page.
+Also by a law of Canute to this effect, <i>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</i>.&mdash;<i>Wilkins</i>, p. 136.</p></div>
+
+<div class="footnote"><p><a name="Footnote_67_67" id="Footnote_67_67"></a><a href="#FNanchor_67_67"><span class="label">[67]</span></a> There was no distinction between the civil and criminal
+counts, as to the rights or powers of juries.</p></div></div>
+
+
+
+<hr style="width: 65%;" />
+<h2><a name="CHAPTER_IV" id="CHAPTER_IV"></a>CHAPTER IV.</h2>
+
+<p class='center'><b>THE RIGHTS AND DUTIES OF JURIES IN CIVIL SUITS.</b><span class='pagenum'><a name="Page_110" id="Page_110">[Pg 110]</a></span></p>
+
+
+<p>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
+<i>unwritten</i>; that there was <i>usually</i> 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, <i>as
+a general rule</i>, 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.</p>
+
+<p>The ancient oath of jurors in civil suits, viz., that "<i>they would make
+known the truth according to their consciences</i>," implies that the
+jurors were above the authority of all legislation. The modern oath, in
+England, viz., that they "<i>will well and truly try the issue between the
+parties, and a true verdict give, according to the evidence</i>," 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 <i>according to law</i>, or
+according to the laws.</p>
+
+<p>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, <i>prepared upon their
+oaths to declare whether A or B have the greater right to the land in
+question</i>," <span class='pagenum'><a name="Page_111" id="Page_111">[Pg 111]</a></span>indicate that the jurors judged of the whole matter on their
+consciences only.</p>
+
+<p>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, <i>except according to, or in execution of</i>, "<i>a judgment of his
+peers, or the law of the land</i>,"&mdash;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.</p>
+
+<p>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.</p>
+
+<div class="blockquot"><p><i>Chap. 65.</i> "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,<a name="FNanchor_68_68" id="FNanchor_68_68"></a><a href="#Footnote_68_68" class="fnanchor">[68]</a> <i>by the judgment of their peers</i>," &amp;c.</p></div>
+
+<div class="blockquot"><p><i>Chap. 68.</i> "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;
+<i>and this shall be left to the determination of his peers in our
+court</i>."</p></div><p><span class='pagenum'><a name="Page_112" id="Page_112">[Pg 112]</a></span></p>
+
+<div class="blockquot"><p><i>Chap. 56.</i> "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, <i>by twelve
+knights of the same shire</i>, chosen by the most creditable persons in
+the same county, <i>and upon oath</i>; and within forty days after the
+said inquest, be utterly abolished, so as never to be restored."</p></div>
+
+<p>There is substantially the same reason why a jury <i>ought</i> 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.<a name="FNanchor_69_69" id="FNanchor_69_69"></a><a href="#Footnote_69_69" class="fnanchor">[69]</a><span class='pagenum'><a name="Page_113" id="Page_113">[Pg 113]</a></span></p>
+
+<p>Furthermore, it would be absurd and inconsistent to make a jury
+paramount to legislation in <i>criminal</i> suits, and subordinate to it in
+<i>civil</i> suits; because an individual, by resisting the execution of a
+<i>civil</i> judgment, founded upon an unjust<span class='pagenum'><a name="Page_114" id="Page_114">[Pg 114]</a></span> law, could give rise to a
+<i>criminal</i> 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 <i>civil</i>
+suits, a defendant, by resisting the execution of the judgment, could,
+<i>in effect</i>, convert the civil action into a criminal one, in which the
+jury would be paramount to the same legislation, to which, in the
+<i>civil</i> suit, they were subordinate. In other words, in the <i>criminal</i>
+suit, the jury would be obliged to justify the defendant in resisting a
+law, which, in the <i>civil</i> suit, they had said he was bound to submit
+to.</p>
+
+<p>To make this point plain to the most common mind&mdash;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 <i>civil</i> 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; <i>thereby declaring that
+A is bound to submit to a law depriving him of his property</i>. But when
+the execution of that judgment comes to be attempted&mdash;that is, when the
+sheriff comes to take the property for the purpose of delivering it to
+B&mdash;A acting, as he has a <i>natural</i> 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 <i>natural</i> right of defending his property against
+an unjust law. The jury, not being bound, in a <i>criminal</i> case, by the
+authority of an unjust law, judge the act on its merits, and acquit the
+defendant&mdash;thus declaring that he was <i>not</i> bound to submit to the same
+law which the jury, in the <i>civil</i> suit, had, by their judgment,
+declared that he <i>was</i> bound to submit to. Here is a contradiction
+between the two judgments. In the <i>civil</i> suit, the law is declared to
+be obligatory upon A; in the <i>criminal</i> suit, the same law is declared
+to be of no obligation.<span class='pagenum'><a name="Page_115" id="Page_115">[Pg 115]</a></span></p>
+
+<p>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 <i>civil</i> judgments, unless it could support them by <i>criminal</i> 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.</p>
+
+<p>Another reason why Magna Carta makes the discretion and consciences of
+juries paramount to all legislation in <i>civil</i> suits, is, that if
+legislation were binding upon a jury, the jurors&mdash;(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)&mdash;would have been
+necessitated&mdash;at least in those courts in which the king's justices
+sat&mdash;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 <i>to take
+the law from the court</i>, as jurors do now.</p>
+
+<p>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 equiva<span class='pagenum'><a name="Page_116" id="Page_116">[Pg 116]</a></span>lent to making the
+legislation of the king imperative upon the jury.</p>
+
+<p>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.</p>
+
+<p>Hume says:</p>
+
+<div class="blockquot"><p>"It appears that the ancient kings of England put themselves entirely
+upon the footing of the barbarous Eastern princes, whom no man must
+approach without a present, who sell all their good offices, and who
+intrude themselves into every business that they may have a pretence
+for extorting money. Even justice was avowedly bought and sold; the
+king's court itself, though the supreme judicature of the kingdom,
+was open to none that brought not presents to the king; the bribes
+given for expedition, delay, suspension, and doubtless for the
+perversion of justice, were entered in the public registers of the
+royal revenue, and remain as monuments of the perpetual iniquity and
+tyranny of the times. The barons of the exchequer, for instance, the
+first nobility of the kingdom, were not ashamed to insert, as an
+article in their records, that the county of Norfolk paid a sum that
+they might be fairly dealt with; the borough of Yarmouth, that the
+king's charters, which they have for their liberties, might not be
+violated; Richard, son of Gilbert, for the king's helping him to
+recover his debt from the Jews; * * Serlo, son of Terlavaston, that
+he might be permitted to make his defence, in case he were accused of
+a certain homicide; Walter de Burton, for free law, if accused of
+wounding another; Robert de Essart, for having an inquest to find
+whether Roger, the butcher, and Wace and Humphrey, accused him of
+robbery and theft out of envy and ill-will, or not; William Buhurst,
+for having an inquest to find whether he were accused of the death of
+one Godwin, out of ill-will, or for just cause. I have selected these
+few instances from a great number of the like kind, which Madox had
+selected from a still greater number, preserved in the ancient rolls
+of the exchequer.</p>
+
+<p>Sometimes a party litigant offered the king a certain por<span class='pagenum'><a name="Page_117" id="Page_117">[Pg 117]</a></span>tion, 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."&mdash;<i>Hume, Appendix
+2.</i></p></div>
+
+<div class="blockquot"><p>"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 <i>venality of
+justice</i>, 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."&mdash;<i>Hume,
+Appendix 2.</i></p></div>
+
+<p>Carte says:</p>
+
+<div class="blockquot"><p>"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."&mdash;<i>Carte's
+History of England</i>, vol. 1, p. 832.</p></div>
+
+<p>Hallam says:</p>
+
+<div class="blockquot"><p>"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."&mdash;<i>2 Middle
+Ages</i>, 438.</p></div><p><span class='pagenum'><a name="Page_118" id="Page_118">[Pg 118]</a></span></p>
+
+<p>In allusion to the provision of Magna Carta on this subject, Hallam
+says:</p>
+
+<div class="blockquot"><p>"A law which enacts that justice shall neither be sold, denied, nor
+delayed, stamps with infamy that government under which it had become
+necessary."&mdash;<i>2 Middle Ages</i>, 451.</p></div>
+
+<p>Lingard, speaking of the times of Henry II., (say 1184,) says:</p>
+
+<div class="blockquot"><p>"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, <i>the judges often
+exacted presents for themselves</i>, and loud complaints existed against
+their venality and injustice."&mdash;<i>2 Lingard</i>, 231.</p></div>
+
+<p>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:</p>
+
+<div class="blockquot"><p>"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."&mdash;<i>2 Palgrave's Rise and Progress of the English Commonwealth</i>,
+p. 9 and 24.</p></div>
+
+<p>Palgrave also says:</p>
+
+<div class="blockquot"><p>"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 <i>danger</i> 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 <span class='pagenum'><a name="Page_119" id="Page_119">[Pg 119]</a></span>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."&mdash;<i>1 Palgrave's Rise and Progress, &amp;c.</i>, p. 650.</p></div>
+
+<p>But Magna Carta has another provision for the trial of <i>civil</i> 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:</p>
+
+<div class="blockquot"><p><i>Chap. 22</i>, (of John's Charter.) "Common Pleas shall not follow our
+court, but shall be holden in some certain place. Trials upon the
+writ of <i>novel disseisin</i>, and of <i>Mort d'Ancester</i>, and of <i>Darrein
+Presentment</i>, shall be taken but in their proper counties, and after
+this manner: We, or, if we should be out of our realm, our chief
+justiciary, shall send two justiciaries through every county four
+times a year;<a name="FNanchor_70_70" id="FNanchor_70_70"></a><a href="#Footnote_70_70" class="fnanchor">[70]</a> <i>who, with four knights chosen out of every shire,
+by the people, shall hold the assizes</i> (juries) <i>in the county, on
+the day and at the place appointed</i>."</p></div>
+
+<p>It would be very unreasonable to suppose that the king's judges were
+allowed to <i>dictate</i> 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.<a name="FNanchor_71_71" id="FNanchor_71_71"></a><a href="#Footnote_71_71" class="fnanchor">[71]</a><span class='pagenum'><a name="Page_120" id="Page_120">[Pg 120]</a></span></p>
+
+<p>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. <i>No officer of the king was allowed to preside at a jury
+trial; but only magistrates chosen by the people.</i><a name="FNanchor_72_72" id="FNanchor_72_72"></a><a href="#Footnote_72_72" class="fnanchor">[72]</a></p>
+
+<p>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&mdash;that is, <i>made the law</i>, so far as their deciding according to
+their own notions of justice could make the law.</p>
+
+<div class="blockquot"><p><i>Chap. 23.</i> "And if, on the county day, the aforesaid assizes cannot
+be taken, <i>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</i>, whether the business be more or less."</p></div><p><span class='pagenum'><a name="Page_121" id="Page_121">[Pg 121]</a></span></p>
+
+<p>The meaning of this chapter is, that so many of the <i>civil</i> suits, as
+could not be tried on the day when the king's justices were present,
+should be tried afterwards, <i>by the four knights before mentioned, and
+the freeholders, that is, the jury</i>. 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 <i>knights</i> dictated the law to the
+jury&mdash;a thing of which there is no evidence at all.</p>
+
+<p>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:</p>
+
+<div class="blockquot"><p>"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."&mdash;<i>13 Edward I.</i>, st. 1, ch. 3, sec. 2. (1285.)</p></div>
+
+<p>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 <i>facts</i>, but that they might leave <i>them</i> to be determined
+by the king's judges, as he had to enact that they<span class='pagenum'><a name="Page_122" id="Page_122">[Pg 122]</a></span> should not be
+compelled to declare the <i>law</i>, but might leave <i>it</i> to be decided by
+the king's judges. It was as much the legal duty of the jury to decide
+the law as to decide the fact; and no law of the king could affect their
+obligation to do either. And this statute is only one example of the
+numberless contrivances and usurpations which have been resorted to, for
+the purpose of destroying the original and genuine trial by jury.</p>
+
+<div class='footnotes'><h3>Footnotes</h3>
+<div class="footnote"><p><a name="Footnote_68_68" id="Footnote_68_68"></a><a href="#FNanchor_68_68"><span class="label">[68]</span></a> <i>Marches</i>, the limits, or boundaries, between England and
+Wales.</p></div>
+
+<div class="footnote"><p><a name="Footnote_69_69" id="Footnote_69_69"></a><a href="#FNanchor_69_69"><span class="label">[69]</span></a> 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.
+</p><p>
+It is not necessary to occupy space here to give details as to these
+robberies; but only some evidence of the general fact.
+</p>
+<div class="blockquot"><p>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."&mdash;<i>2 Middle Ages</i>, 435-6.
+</p><p>
+"In the succeeding reign of <i>John</i>, all the rapacious exactions usual
+to these Norman kings were not only redoubled, but mingled with
+outrages of tyranny still more intolerable. * *
+</p><p>
+"In 1207 John took a seventh of the movables of lay and spiritual
+persons, all murmuring, but none daring to speak against
+it."&mdash;<i>Ditto</i>, 446.</p></div>
+<p>
+In Hume's account of the extortions of those times, the following
+paragraph occurs:
+</p>
+<div class="blockquot"><p>"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."&mdash;<i>Hume's
+Hist. Eng., Appendix</i> 2.</p></div>
+<p>
+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.
+</p><p>
+By Magna Carta John bound himself to make restitution for some of the
+spoliations he had committed upon individuals "<i>without the legal
+judgment of their peers</i>."&mdash;<i>See Magna Carta of John</i>, ch. 60, 61, 65
+and 66.
+</p><p>
+One of the great charges, on account of which the nation rose against
+John, was, that he plundered individuals of their property, "<i>without
+legal judgment of their peers</i>." Now it was evidently very weak and
+short-sighted in John to expose himself to such charges, <i>if his laws
+were really obligatory upon the peers</i>; 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.
+</p><p>
+There would evidently have been no sense in these complaints, that he
+deprived men of their property "<i>without legal judgment of their
+peers</i>," 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.
+</p><p>
+It may here be mentioned, in passing, that the same would be true in
+criminal matters, if the king's laws were obligatory upon juries.
+</p><p>
+As an illustration of what tyranny the kings would sometimes practise,
+Hume says:
+</p>
+<div class="blockquot"><p>"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."&mdash;<i>Hume, Appendix</i> 2.</p></div>
+<p>
+The provision, also, in the 64th chapter of Magna Carta, that "all
+unjust and illegal fines, and all amercements, <i>imposed unjustly, and
+contrary to the Law of the Land, shall be entirely forgiven</i>," &amp;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.
+</p>
+<div class="blockquot"><p>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."&mdash;<i>Echard's History of England</i>, 106.</p></div>
+<p>
+Now all these things were very unnecessary and foolish, if his laws were
+binding upon juries; because, in that case, he could have procured the
+conviction of these men in a legal manner, and thus have saved the
+necessity of such usurpation. In short, if the laws of the king had been
+binding upon juries, there is no robbery, vengeance, or oppression,
+which he could not have accomplished through the judgments of juries.
+This consideration is sufficient, of itself, to prove that the laws of
+the king were of no authority over a jury, in either civil or criminal
+cases, unless the juries regarded the laws as just in themselves.</p></div>
+
+<div class="footnote"><p><a name="Footnote_70_70" id="Footnote_70_70"></a><a href="#FNanchor_70_70"><span class="label">[70]</span></a> By the Magna Carta of Henry III. this is changed to once a
+year.</p></div>
+
+<div class="footnote"><p><a name="Footnote_71_71" id="Footnote_71_71"></a><a href="#FNanchor_71_71"><span class="label">[71]</span></a> From the provision of Magna Carta, cited in the text, it
+must be inferred that there can be no legal trial by jury, in civil
+cases, if only the king's justices preside; that, to make the trial
+legal, there must be other persons, chosen by the people, to sit with
+them; the object being to prevent the jury's being deceived by the
+justices. I think we must also infer that the king's justices could sit
+only in the three actions specially mentioned. We cannot go beyond the
+letter of Magna Carta, in making innovations upon the common law, which
+required all presiding officers in jury trials to be elected by the
+people.</p></div>
+
+<div class="footnote"><p><a name="Footnote_72_72" id="Footnote_72_72"></a><a href="#FNanchor_72_72"><span class="label">[72]</span></a> "The earls, sheriffs, and head-boroughs were annually
+elected in the full folcmote, (people's meeting)."&mdash;<i>Introduction to
+Gilbert's History of the Common Pleas</i>, p. 2, <i>note</i>.
+</p><p>
+"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."&mdash;<i>Same</i>, p. 2, <i>note</i>.
+</p><p>
+"Every ward had its proper alderman, who was <i>chosen</i>, and not imposed
+by the prince."&mdash;<i>Same</i>, p. 4, <i>text</i>.
+</p><p>
+"As the aldermen, or earls, were always <i>chosen</i>" (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."&mdash;<i>3 Henry's History of Great Britain</i>, 343.
+</p><p>
+"But none of these thanes were annually elected in the full folcmote,
+(people's meeting,) <i>as the earls, sheriffs, and head-boroughs were</i>;
+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."&mdash;<i>Introd. to Gilbert's Hist. Com. Pleas</i>, p.
+2, <i>note</i>.
+</p><p>
+"The sheriff was usually not appointed by the lord, but elected by the
+freeholders of the district."&mdash;<i>Political Dictionary</i>, word <i>Sheriff</i>.
+</p><p>
+"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."&mdash;<i>4 Blackstone</i>, 413.
+</p><p>
+"The election of sheriffs was left to the people, <i>according to ancient
+usage</i>."&mdash;<i>St. West.</i> 1, c. 27.&mdash;<i>Crabbe's History of English Law</i>,
+181.</p></div></div>
+
+
+
+<hr style="width: 65%;" />
+<h2><a name="CHAPTER_V" id="CHAPTER_V"></a>CHAPTER V.</h2>
+
+<p class='center'><b>OBJECTIONS ANSWERED</b><span class='pagenum'><a name="Page_123" id="Page_123">[Pg 123]</a></span></p>
+
+
+<p>The following objections will be made to the doctrines and the evidence
+presented in the preceding chapters.</p>
+
+<p>1. That it is a <i>maxim</i> of the law, that the judges respond to the
+question of law, and juries only to the question of fact.</p>
+
+<p>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.<a name="FNanchor_73_73" id="FNanchor_73_73"></a><a href="#Footnote_73_73" class="fnanchor">[73]</a></p>
+
+<p>2. It will be asked, Of what use are the justices, if the jurors judge
+both of law and fact?</p>
+
+<p>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.</p>
+
+<p>3. It is said that it would be absurd that twelve ignorant men should
+have power to judge of the law, while justices learned in the law should
+be compelled to sit by and see the law decided erroneously.</p>
+
+<p>One answer to this objection is, that the powers of juries<span class='pagenum'><a name="Page_124" id="Page_124">[Pg 124]</a></span> 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 <i>these</i> 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.</p>
+
+<p>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 <i>all</i> 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 <i>all</i> prove <i>dishonest</i>, is not within<span class='pagenum'><a name="Page_125" id="Page_125">[Pg 125]</a></span> the range
+of probability. A jury, therefore, insures to us&mdash;what no other court
+does&mdash;that first and indispensable requisite in a judicial tribunal,
+integrity.</p>
+
+<p>4. It is alleged that if juries are allowed to judge of the law, <i>they
+decide the law absolutely; that their decision must necessarily stand,
+be it right or wrong</i>; and that this power of absolute decision would be
+dangerous in their hands, by reason of their ignorance of the law.</p>
+
+<p>One answer is, that this power, which juries have of <i>judging</i> of the
+law, is not a power of <i>absolute decision in all cases</i>. For example, it
+is a power to declare imperatively that a man's property, liberty, or
+life, shall <i>not</i> be taken from him; but it is not a power to declare
+imperatively that they <i>shall</i> be taken from him.</p>
+
+<p>Magna Carta does not provide that the judgments of the peers <i>shall be
+executed</i>; but only that <i>no other than their judgments</i> shall ever be
+executed, <i>so far as to take a party's goods, rights, or person,
+thereon</i>.</p>
+
+<p>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&mdash;(that is, from taking a party's goods, rights, or
+person)&mdash;unless a jury have first adjudged it to be done.</p>
+
+<p>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 <i>then</i> be
+executed. But Magna Carta does not command even this&mdash;although it might,
+perhaps, have been reasonably safe for it to have done so&mdash;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 <i>compels</i> the execution of even a second
+judgment of a jury. The only injunction of Magna Carta upon the<span class='pagenum'><a name="Page_126" id="Page_126">[Pg 126]</a></span>
+government, as to what it <i>shall do</i>, 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&mdash;so far
+as to carry it into execution against the goods, rights, or person of a
+party&mdash;unless it be something which a jury have sanctioned.</p>
+
+<p>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.</p>
+
+<p>If it be said that juries may <i>successively</i> 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 <i>require</i>
+any judgment whatever to be executed&mdash;so far as to take a party's goods,
+rights, or person, thereon&mdash;unless it be concurred in by both court and
+jury.</p>
+
+<p>Nevertheless, we may, for the sake of the argument, suppose the
+existence of a <i>practical</i>, if not <i>legal</i>, necessity, for executing
+<i>some</i> 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 <i>successive</i> juries
+shall prevail over the opinion of the court. And the reason of this
+principle is obvious, viz., that it is the will of the country, and not
+the will of the court, or the government, that must determine what laws
+shall be established and enforced; that the concurrent judgments of
+successive juries, given in opposition to all the reasoning which judges
+and lawyers can offer to the contrary, must necessarily be presumed to
+be a truer exposition of the will of the country, than are the opinions
+of the judges.</p>
+
+<p>But it may be said that, unless jurors submit to the control of the
+court, in matters of law, they may disagree among<span class='pagenum'><a name="Page_127" id="Page_127">[Pg 127]</a></span> themselves, and
+<i>never</i> come to any judgment; and thus justice fail to be done.</p>
+
+<p>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&mdash;that is, <i>on matters of natural law, or
+abstract justice</i>.<a name="FNanchor_74_74" id="FNanchor_74_74"></a><a href="#Footnote_74_74" class="fnanchor">[74]</a> 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&mdash;<i>that</i> injustice, which would be done, if the
+opinion of the court were suffered to control the jury.</p>
+
+<p>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, <i>it
+makes none; and justice must fail of being done, from the want of its
+being made sufficiently intelligible</i>.</p>
+
+<p>Under the trial by jury, justice can never be done&mdash;that is, by a
+judgment that shall take a party's goods, rights, or person&mdash;until that
+justice can be made intelligible or perceptible to the minds of <i>all</i>
+the jurors; or, at least, until it obtain the voluntary assent of
+all&mdash;an assent, which ought not to be given until the justice itself
+shall have become perceptible to all.<span class='pagenum'><a name="Page_128" id="Page_128">[Pg 128]</a></span></p>
+
+<p>The principles of the trial by jury, then, are these:</p>
+
+<p>1. That, in criminal cases, the accused is presumed innocent.</p>
+
+<p>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.</p>
+
+<p>3. That these presumptions shall be overcome, in a court of justice,
+only by evidence, the sufficiency of which, and by law, the justice of
+which, are satisfactory to the understanding and consciences of <i>all</i>
+the jurors.</p>
+
+<p>These are the bases on which the trial by jury places the property,
+liberty, and rights of every individual.</p>
+
+<p>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 <i>injustice</i> will also often fail to be done; whereas
+otherwise it would be done frequently. The very precautions used to
+prevent <i>injustice</i> being done, may often have the effect to prevent
+<i>justice</i> being done. But are we, therefore, to take no precautions
+against injustice? By no means, all will agree. The question then
+arises&mdash;Does the trial by jury, <i>as here explained</i>, 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, <i>for the want of these
+precautions</i>&mdash;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, <i>by reason of these
+precautions</i>&mdash;that is, by reason of the law being left to the judgments
+and consciences of jurors. We can determine the former point&mdash;that is,
+how much positive injustice is done under the first of these two<span class='pagenum'><a name="Page_129" id="Page_129">[Pg 129]</a></span>
+systems&mdash;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 <i>nominally</i> 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.</p>
+
+<p>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<span class='pagenum'><a name="Page_130" id="Page_130">[Pg 130]</a></span> 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.</p>
+
+<p>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, <i>for evil</i>, 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&mdash;the system of legislative and judicial
+authority&mdash;positive injustice is not only done in every suit arising
+under unjust laws,&mdash;that is, men's property, liberty, or lives are not
+only unjustly taken on those particular judgments,&mdash;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.</p>
+
+<p>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:</p>
+
+<p>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 <i>all agreed</i>. If, therefore, there be any <i>justice</i>, in
+regard to which all the parties to the government <i>are not agreed</i>, the
+objects of the association do not extend to it.<a name="FNanchor_75_75" id="FNanchor_75_75"></a><a href="#Footnote_75_75" class="fnanchor">[75]</a><span class='pagenum'><a name="Page_131" id="Page_131">[Pg 131]</a></span></p>
+
+<p>If any of the members wish more than this,&mdash;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,&mdash;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.</p>
+
+<p>A government of the whole, therefore, must necessarily confine itself to
+the administration of such principles of law as <i>all</i> 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.</p>
+
+<p>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 <i>they themselves</i> 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.<span class='pagenum'><a name="Page_132" id="Page_132">[Pg 132]</a></span></p>
+
+<p>If a government were to be established and supported <i>solely</i> by that
+portion of the people who lay claim to superior knowledge, there would
+be some consistency in their saying that the common people should not be
+received as jurors, with power to judge of the justice of the laws. But
+so long as the whole people (or all the male adults) are presumed to be
+voluntary parties to the government, and voluntary contributors to its
+support, there is no consistency in refusing to any one of them more
+than to another the right to sit as juror, with full power to decide for
+himself whether any law that is proposed to be enforced in any
+particular case, be within the objects of the association.</p>
+
+<p>The conclusion, therefore, is, that, in a government formed by voluntary
+association, or on the <i>theory</i> 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 <i>all</i> 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 <i>some</i> 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.</p>
+
+<p>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<span class='pagenum'><a name="Page_133" id="Page_133">[Pg 133]</a></span> the whole people&mdash;"the country"&mdash;with sufficient accuracy for all
+practical purposes, and with as much accuracy as is practicable without
+too great inconvenience and expense.</p>
+
+<p>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.</p>
+
+<p>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&mdash;when there is no alternative left for them. And even then they
+go into them as men go into dark labyrinths and caverns&mdash;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 <i>wholly</i> 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<span class='pagenum'><a name="Page_134" id="Page_134">[Pg 134]</a></span> madly
+bent on building up such labyrinths as these, for no other purpose than
+that of exposing all their rights of reputation, property, liberty, and
+life, to the hazards of being lost in them, instead of being content to
+live in the light of the open day of their own understandings?</p>
+
+<p>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?</p>
+
+<p>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.</p>
+
+<p>There would be something like certainty in the administra<span class='pagenum'><a name="Page_135" id="Page_135">[Pg 135]</a></span>tion of
+justice, and in the popular knowledge of the law, for the further reason
+that there would be little legislation, and men's rights would be left
+to stand almost solely upon the law of nature, or what was once called
+in England "the <i>common law</i>," (before so much legislation and
+usurpation had become incorporated into the common law,)&mdash;in other
+words, upon the principles of natural justice.</p>
+
+<p>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.</p>
+
+<div class="blockquot"><p>"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,&mdash;meanings widely different from, often directly opposite
+to, each other, in their bearing upon men's rights,&mdash;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. <i>And this
+rule is, that the language of statutes and constitutions shall be
+construed, as nearly as possible, consistently with natural law.</i></p>
+
+<p>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 <i>incompetent</i> to make and interpret the <i>written</i> law, unless
+they previously understand the natural law applicable to the same
+subject. It also assumes that the <i>people</i> must understand the
+natural law, before they can understand the written law.</p>
+
+<p>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, <i>no one can know what the written law is,
+until he knows what it ought to be</i>; 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
+<i>ought to be taken</i>. And this true legal sense is the sense that is
+most nearly consistent with <span class='pagenum'><a name="Page_136" id="Page_136">[Pg 136]</a></span>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.</p>
+
+<p>Though the words <i>contain</i> the law, the <i>words</i> 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.</p>
+
+<p>Take, for example, the Constitution of the United States. By adopting
+one or another sense of the single word "<i>free</i>," the whole
+instrument is changed. Yet the word <i>free</i> 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.</p>
+
+<p>But each written law, in order to be a law, must be taken only in
+some <i>one</i> 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.</p>
+
+<p>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,&mdash;which are a mixture of
+natural and written laws,&mdash;arises from the difficulty of construing,
+or, rather, from the facility of misconstruing, the <i>written</i> 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,&mdash;and <span class='pagenum'><a name="Page_137" id="Page_137">[Pg 137]</a></span>the fact should be kept forever in mind, as
+one of the most important of all truths:&mdash;"<i>It is pleasing to remark
+the similarity, or, rather, the identity of those conclusions which
+pure, unbiassed reason, in all ages and nations, seldom fails to
+draw, in such juridical inquiries as are not fettered and manacled by
+positive institutions.</i>"<a name="FNanchor_76_76" id="FNanchor_76_76"></a><a href="#Footnote_76_76" class="fnanchor">[76]</a> 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.</p>
+
+<p>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.<a name="FNanchor_77_77" id="FNanchor_77_77"></a><a href="#Footnote_77_77" class="fnanchor">[77]</a></p>
+
+<p>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 <span class='pagenum'><a name="Page_138" id="Page_138">[Pg 138]</a></span>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.</p>
+
+<p>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.</p>
+
+<p>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.<a name="FNanchor_78_78" id="FNanchor_78_78"></a><a href="#Footnote_78_78" class="fnanchor">[78]</a></p>
+
+<p>It is not necessary that legislators should enact natural law in
+order that it may be known to the <i>people</i>, because that would be
+presuming that the legislators already understand it better than the
+people,&mdash;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.</p>
+
+<p>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. <i>It is the science
+of justice</i>,&mdash;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, <i>cannot avoid</i> learning <span class='pagenum'><a name="Page_139" id="Page_139">[Pg 139]</a></span>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,&mdash;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.</p>
+
+<p>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.</p>
+
+<p>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,&mdash;if system it can be called, and if learned it
+can be,&mdash;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.</p>
+
+<p>But whether the difficulties of learning natural law be <span class='pagenum'><a name="Page_140" id="Page_140">[Pg 140]</a></span>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.</p>
+
+<p>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.</p>
+
+<p>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,&mdash;except the auxiliary ones just mentioned,&mdash;that does not
+violate natural law; that does not invade some right or other.</p>
+
+<p>Yet the advocates of arbitrary legislation are continually practising
+the fraud of pretending that unless the legislature <i>make</i> the laws,
+the laws will not be known. The whole object of the fraud is to
+secure to the government the authority of making laws that never
+ought to be known."</p></div>
+
+<p>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:</p>
+
+<div class="blockquot"><p>"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.'"&mdash;<i>3 Eunomus</i>, 157-8.</p></div>
+
+<p>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<span class='pagenum'><a name="Page_141" id="Page_141">[Pg 141]</a></span> at large, should
+<i>unanimously</i> decide a question of natural justice one way, and that
+twelve other men, selected in the same manner, should <i>unanimously</i>
+decide the same question the other way, <i>unless they were misled by the
+justices</i>. If, however, such things should sometimes happen, from any
+cause whatever, the remedy is by appeal, and new trial.</p>
+
+<div class='footnotes'><h3>Footnotes</h3>
+<div class="footnote"><p><a name="Footnote_73_73" id="Footnote_73_73"></a><a href="#FNanchor_73_73"><span class="label">[73]</span></a> 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,&mdash;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,&mdash;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.</p></div>
+
+<div class="footnote"><p><a name="Footnote_74_74" id="Footnote_74_74"></a><a href="#FNanchor_74_74"><span class="label">[74]</span></a> 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 <i>courts</i> on matters of law, afford little or no evidence that juries
+would also disagree on matters of law&mdash;that is, <i>of justice</i>; because
+the disagreements of courts are generally on matters of <i>legislation</i>,
+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.</p></div>
+
+<div class="footnote"><p><a name="Footnote_75_75" id="Footnote_75_75"></a><a href="#FNanchor_75_75"><span class="label">[75]</span></a> This is the principle of all voluntary associations
+whatsoever. No voluntary association was ever formed, and in the nature
+of things there never can be one formed, for the accomplishment of any
+objects except those in which all the parties to the association are
+agreed. Government, therefore, must be kept within these limits, or it
+is no longer a voluntary association of all who contribute to its
+support, but a mere tyranny established by a part over the rest.
+</p><p>
+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 <i>limited</i> discretion as to the means to be used to accomplish the
+ends in view; but <i>the ends themselves to be accomplished</i> are always
+precisely defined, and are such as every member necessarily agrees to,
+else he would not voluntarily join the association.
+</p><p>
+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.</p></div>
+
+<div class="footnote"><p><a name="Footnote_76_76" id="Footnote_76_76"></a><a href="#FNanchor_76_76"><span class="label">[76]</span></a> Jones on Bailments, 133.</p></div>
+
+<div class="footnote"><p><a name="Footnote_77_77" id="Footnote_77_77"></a><a href="#FNanchor_77_77"><span class="label">[77]</span></a> Kent, describing the difficulty of construing the written
+law, says:
+</p><p>
+"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."&mdash;<i>Kent</i>, 460.
+</p><p>
+The following extract from a speech of Lord Brougham, in the House of
+Lords, confesses the same difficulty:
+</p><p>
+"There was another subject, well worthy of the consideration of
+government during the recess,&mdash;the expediency, <i>or rather the absolute
+necessity</i>, of some arrangement for the preparation of bills, not merely
+private, but public bills, <i>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</i>."&mdash;<i>Law Reporter</i>, 1848, p. 525.</p></div>
+
+<div class="footnote"><p><a name="Footnote_78_78" id="Footnote_78_78"></a><a href="#FNanchor_78_78"><span class="label">[78]</span></a> 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.</p></div></div>
+
+
+
+<hr style="width: 65%;" />
+<h2><a name="CHAPTER_VI" id="CHAPTER_VI"></a>CHAPTER VI.</h2>
+
+<p class='center'><b>JURIES OF THE PRESENT DAY ILLEGAL.</b><span class='pagenum'><a name="Page_142" id="Page_142">[Pg 142]</a></span></p>
+
+
+<p>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.</p>
+
+<p>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
+<i>common law</i>.</p>
+
+<p>The term <i>jury</i> is a technical one, derived from the common law; and
+when the American constitutions provide for the trial by jury, they
+provide for the <i>common law</i> 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 <i>thing</i>, and not merely the <i>name</i>, that is
+guarantied. Any legislation, therefore, that infringes any <i>essential
+principle</i> of the <i>common law</i>, in the selection of jurors, is
+unconstitutional; and the juries selected in accordance with such
+legislation are, of course, illegal, and their judgments void.</p>
+
+<p>It will also be shown, in a subsequent chapter,<a name="FNanchor_79_79" id="FNanchor_79_79"></a><a href="#Footnote_79_79" class="fnanchor">[79]</a> 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.</p>
+
+<p>What, then, are the <i>essential principles</i> of the common law,
+controlling the selection of jurors?</p>
+
+<p>They are two.<span class='pagenum'><a name="Page_143" id="Page_143">[Pg 143]</a></span></p>
+
+<p>1. That <i>all</i> the freemen, or adult male members of the state, shall be
+eligible as jurors.<a name="FNanchor_80_80" id="FNanchor_80_80"></a><a href="#Footnote_80_80" class="fnanchor">[80]</a></p>
+
+<p>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.</p>
+
+<p>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."</p>
+
+<p>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.</p>
+
+<p>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:</p>
+
+<p>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
+<i>disprove</i> that all freemen were eligible as jurors, unless it be the
+law of Ethelred, which requires that they be elderly<a name="FNanchor_81_81" id="FNanchor_81_81"></a><a href="#Footnote_81_81" class="fnanchor">[81]</a> 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.</p>
+
+<p>2. Since Magna Carta, we have evidence showing quite conclusively that
+all freemen, above the age of twenty-one years, were eligible as jurors.</p>
+
+<p>The <i>Mirror of Justices</i>, (written within a century after Magna Carta,)
+in the section "<i>Of Judges</i>"&mdash;that is, <i>jurors</i>&mdash;says:</p>
+
+<p><span class='pagenum'><a name="Page_144" id="Page_144">[Pg 144]</a></span></p><div class="blockquot"><p>"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."&mdash;<i>Mirror of Justices</i>, 59-60.</p></div>
+
+<p>In the section "<i>Of Inferior Courts</i>," it is said:</p>
+
+<div class="blockquot"><p>"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, <i>where the judgment is by the suitors</i>, 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, <i>by
+the suitors of the freeholders of the hundred. All the tenants within
+the fees are bounden to do their suit there</i>, 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."&mdash;<i>Mirror of Justices</i>, 50-51.</p></div>
+
+<p>In the section "<i>Of the Sheriff's Turns</i>," it is said:</p>
+
+<div class="blockquot"><p>"The sheriffs by ancient ordinances hold several meetings twice in
+the year in every hundred; <i>where all the freeholders within the
+hundred</i> are bound to appear for the service of their fees."&mdash;<i>Mirror
+of Justices</i>, 50.</p></div>
+
+<p>The following statute was passed by Edward I., seventy years after Magna
+Carta:</p>
+
+<div class="blockquot"><p>"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 <span class='pagenum'><a name="Page_145" id="Page_145">[Pg 145]</a></span>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."&mdash;<i>St. 13 Edward I.</i>, ch. 38. (1285.)</p></div>
+
+<p>Although this command to the sheriffs and other officers, not to summon,
+as jurors, those who, from age and disease, were physically incapable of
+performing the duties, may not, of itself, afford any absolute or legal
+implication, by which we can determine precisely who were, and who were
+not, eligible as jurors at common law, yet the exceptions here made
+nevertheless carry a seeming confession with them that, at common law,
+all male adults were eligible as jurors.</p>
+
+<p>But the main principle of the feudal system itself shows that <i>all</i> the
+full and free adult male members of the state&mdash;that is, all who were
+free born, and had not lost their civil rights by crime, or
+otherwise&mdash;<i>must</i>, 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 <i>in this way</i>. A portion of them was set apart to the
+king, the rents of which went to pay his personal and official
+expenditures, not including the maintenance of armies, or the
+administration of justice. War and the administration of justice were
+provided for in the following manner. The freemen, or the freeborn adult
+male members of the state&mdash;who had not forfeited their political
+rights&mdash;were entitled to land <i>of right</i>, (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<span class='pagenum'><a name="Page_146" id="Page_146">[Pg 146]</a></span> 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 <i>freeholders</i>&mdash;in
+later times <i>freemen</i>&mdash;meaning free and full members of the state.</p>
+
+<p>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 <i>rents</i> for their lands, the principle implies that
+<i>all</i> 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, <i>all</i> 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 <i>all</i> were eligible.</p>
+
+<p>The first invasion, which I find made, by the English statutes, upon
+this common law principle, was made in 1285, seventy years after Magna
+Carta. It was then enacted as follows:</p>
+
+<div class="blockquot"><p>"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 <i>twenty shillings yearly</i>. 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."&mdash;<i>St. 13 Edward I.</i>, ch.
+38. (1285.)</p></div>
+
+<p>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:</p>
+
+<div class="blockquot"><p>"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 <i>forty shillings above all charges
+of the same</i>."&mdash;<i>2 Henry V.</i>, st. 2, ch. 3. (1414.)</p></div><p><span class='pagenum'><a name="Page_147" id="Page_147">[Pg 147]</a></span></p>
+
+<p>Other statutes on this subject of the property qualifications of jurors,
+are given in the note.<a name="FNanchor_82_82" id="FNanchor_82_82"></a><a href="#Footnote_82_82" class="fnanchor">[82]</a></p>
+
+<p>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,<span class='pagenum'><a name="Page_148" id="Page_148">[Pg 148]</a></span> and the qualifications of
+jurors have been made a subject of arbitrary legislation. In other
+words, the government has usurped the authority of <i>selecting</i> 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 <i>any</i> of the freemen from eligibility is
+a <i>selection</i> of those not excluded.</p>
+
+<p>It will be seen, from the statutes cited, that the most absolute
+authority over the jury box&mdash;that is, over the right of the people to
+sit in juries&mdash;has been usurped by the govern<span class='pagenum'><a name="Page_149" id="Page_149">[Pg 149]</a></span>ment; that the
+qualifications of jurors have been repeatedly changed, and made to vary
+from a freehold of <i>ten shillings yearly</i>, to one of "<i>twenty pounds by
+the year at least above reprises</i>." 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.</p>
+
+<p>But this is not all. The government has not only assumed arbitrarily to
+classify the people, on the basis of property, but it has even assumed
+to give to some of its judges entire and absolute personal discretion in
+the selection of the jurors to be impanelled in criminal cases, as the
+following statutes show.</p>
+
+<div class="blockquot"><p>"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 <i>to inquire for
+the king, shall hereafter be reformed by additions and taking out of
+names of persons by discretion of the same justices before whom such
+panel shall be returned; and the same justices shall hereafter
+command the sheriff, or his ministers in his absence, to put other
+persons in the same panel by their discretions; and that panel so
+hereafter to be made, to be good and lawful</i>. This act to endure only
+to the next Parliament."&mdash;<i>11 Henry VII.</i>, ch. 24, sec. 6. (1495.)</p></div>
+
+<p>This act was continued in force by 1 Henry VIII., ch. 11, (1509,) to the
+end of the then next Parliament.</p>
+
+<p>It was re&euml;nacted, and made perpetual, by 3 Henry VIII., ch. 12. (1511.)</p>
+
+<p><i>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.</i></p>
+
+<p>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.<span class='pagenum'><a name="Page_150" id="Page_150">[Pg 150]</a></span></p>
+
+<p>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&mdash;that is, the wealthy.<a name="FNanchor_83_83" id="FNanchor_83_83"></a><a href="#Footnote_83_83" class="fnanchor">[83]</a></p>
+
+<p>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 <i>select</i> the individuals who were to determine the
+authority of its own laws, and the extent of its own powers. It was,
+therefore, <i>in effect</i>, 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, <i>in principle</i>, 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<span class='pagenum'><a name="Page_151" id="Page_151">[Pg 151]</a></span>
+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.</p>
+
+<p>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 <i>freeholders</i>. 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.</p>
+
+<p>It is true, the ancient common law required the jurors to be
+freeholders; but the term <i>freeholder</i> 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.</p>
+
+<p>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 <i>tenants</i>, so called, (that is, <i>holders</i>,) 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 <i>rents</i>.
+Those who held lands on these terms were called free <i>tenants</i>, that is,
+<i>free holders</i>&mdash;meaning free persons, or members of the state, holding
+lands&mdash;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.</p>
+
+<p>Every freeborn adult male Englishman (who had not lost his civil rights
+by crime or otherwise) was entitled to land of <i>right</i>; 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<span class='pagenum'><a name="Page_152" id="Page_152">[Pg 152]</a></span> land was an incident to his <i>civil freedom</i>; not his
+civil freedom an incident to his right to land. He was a freeholder
+because he was a <i>freeborn</i> member of the state; and not a freeborn
+member of the state because he was a freeholder; for this last would be
+an absurdity.</p>
+
+<p>As the tenures of lands changed, the term <i>freeholder</i> 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&mdash;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 <i>freeholder</i> after that term has ceased to
+express the <i>thing</i> originally designated by it.</p>
+
+<p>The principle, then, of the common law, was, that every freeman, or
+freeborn male Englishman, of adult age, &amp;c., was eligible to sit in
+juries, by virtue of his civil freedom, or his being a member of the
+state, or body politic. But the principle of the present English
+statutes is, that a man shall have a right to sit in juries because he
+owns lands in fee-simple. At the common law a man was <i>born</i> to the
+right to sit in juries. By the present statutes he <i>buys</i> 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.</p>
+
+<p>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.</p>
+
+<p>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 <i>on
+the part of the government</i>.</p>
+
+<p>Of course, this principle forbids the selection to be made <i>by any
+officer of the government</i>.</p>
+
+<p>There seem to have been at least three modes of selecting the jurors, at
+the common law. 1. By lot.<a name="FNanchor_84_84" id="FNanchor_84_84"></a><a href="#Footnote_84_84" class="fnanchor">[84]</a> 2. Two knights, or other freeholders,
+were appointed, (probably by the sheriff,)<span class='pagenum'><a name="Page_153" id="Page_153">[Pg 153]</a></span> 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.</p>
+
+<p>At the common law the sheriffs, bailiffs, and other officers <i>were
+chosen by the people, instead of being appointed by the king</i>. (<i>4
+Blackstone</i>, 413. <i>Introduction to Gilbert's History of the Common
+Pleas</i>, p. 2, <i>note</i>, and p. 4.) This has been shown in a former
+chapter.<a name="FNanchor_85_85" id="FNanchor_85_85"></a><a href="#Footnote_85_85" class="fnanchor">[85]</a> 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.</p>
+
+<p>But in the year 1315, one hundred years after Magna Carta, the choice of
+sheriffs was taken from the people, and it was enacted:</p>
+
+<div class="blockquot"><p>"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."&mdash;<i>9 Edward II.</i>, st. 2. (1315.)</p></div>
+
+<p>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.</p>
+
+<p>Here, then, was another usurpation, by which the common law trial by
+jury was destroyed, so far as related to the county courts, in which the
+sheriffs presided, and which were the most important courts of the
+kingdom. From this cause alone, if there were no other, there has not
+been a legal jury in a <i>county</i> court in England, for more than five
+hundred years.</p>
+
+<p>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.<span class='pagenum'><a name="Page_154" id="Page_154">[Pg 154]</a></span></p>
+
+<p>In order that the juries in the United States may be legal&mdash;that is, in
+accordance with the principles of the common law&mdash;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.</p>
+
+<p>In New Jersey, Maryland, North Carolina, Tennessee, and Mississippi, the
+jurors are required to be <i>freeholders</i>. But this requirement is
+illegal, for the reason that the term <i>freeholder</i>, in this country, has
+no meaning analogous to the meaning it had in the ancient common law.</p>
+
+<p>In Arkansas, Missouri, Indiana, and Alabama, jurors are required to be
+"freeholders or householders." Each of these requirements is illegal.</p>
+
+<p>In Florida, they are required to be "householders."</p>
+
+<p>In Connecticut, Maine, Ohio, and Georgia, jurors are required to have
+the qualifications of "electors."</p>
+
+<p>In Virginia, they are required to have a property qualification of one
+hundred dollars.</p>
+
+<p>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&mdash;a small number compared with the
+whole&mdash;from whom jurors are to be taken when wanted; thus disfranchising
+all except the few thus selected.</p>
+
+<p>In Maine and Vermont, the inhabitants, by vote in town meeting, have a
+veto upon the jurors selected by the authorities of the town.</p>
+
+<p>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.</p>
+
+<p>In Illinois, the jurors are selected, for each term of court, by the
+county commissioners.</p>
+
+<p>In North Carolina, "<i>the courts of pleas and quarter sessions</i> * * shall
+select the names of such persons only as are freeholders, and as are
+well qualified to act as jurors, &amp;c.; thus giving the courts power to
+pack the juries."&mdash;(<i>Revised Statutes</i>, 147.)<span class='pagenum'><a name="Page_155" id="Page_155">[Pg 155]</a></span></p>
+
+<p>In Arkansas, too, "It shall be the duty of the <i>county court</i> 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 <i>grand</i> jurors;" and the sheriff is to summon such persons
+to serve as <i>grand</i> jurors.</p>
+
+<p>In Tennessee, also, the jurors are to be selected by the <i>county
+courts</i>.</p>
+
+<p>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."</p>
+
+<p>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.</p>
+
+<p>In Virginia, the jurors are selected by the sheriffs; but the sheriffs
+are appointed by the governor of the state, and that is enough to make
+the juries illegal. Probably the same objection lies against the
+legality of the juries in some other states.</p>
+
+<p>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.</p>
+
+<p>In regard to jurors in the courts of the United States, it is enacted,
+by act of Congress:</p>
+
+<div class="blockquot"><p>"That jurors to serve in the courts of the United States, in each
+state respectively, shall have the like qualifications, and be
+entitled to the like exemptions, as jurors of the highest court of
+law of such state now have and are entitled to, and shall hereafter,
+from time to time, have and be entitled to, and shall be designated
+by ballot, lot, or otherwise, according to the mode of forming such
+juries now practised and hereafter to be practised therein, in so far
+as such mode may be practicable by the courts of the United States,
+or the officers thereof; and for this purpose, the said courts shall
+have power to make all necessary rules and regulations for conforming
+the designation and empanelling of jurors, in substance, to the laws
+and usages now in force in such state; and, further, shall have
+power, by rule or order, from time to time, to conform the same to
+any change in these respects which may be hereafter adopted by the
+legislatures of the respective states for the state courts."&mdash;<i>St.</i>
+1840, ch. 47, <i>Statutes at Large</i>, vol. 5, p. 394.</p></div><p><span class='pagenum'><a name="Page_156" id="Page_156">[Pg 156]</a></span></p>
+
+<p>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&mdash;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&mdash;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.</p>
+
+<p>Congress have as much constitutional right to give over all the
+functions of the United States government into the hands of the state
+legislatures, to be exercised within each state in such manner as the
+legislature of such state shall please to exercise them, as they have to
+thus give up to these legislatures the selection of juries for the
+courts of the United States.</p>
+
+<p>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.</p>
+
+<p>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.</p>
+
+<p>If the real trial by jury had been preserved in the courts of the United
+States&mdash;that is, if we had had legal juries, and the jurors had known
+their rights&mdash;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.</p>
+
+<p>Probably the best mode of appointing jurors would be this: Let the names
+of <i>all</i> the adult male members of the state, in each township, be kept
+in a jury box, by the officers of the township; and when a court is to
+be held for a county or other district, let the officers of a sufficient
+number of townships be required (without seeing the names) to draw out a
+name from their boxes respectively, to be returned to the court as a
+juror. This mode of appointment would guard against collusion and
+selection; and juries so appointed would be likely to be a fair epitome
+of "the country."</p>
+
+<div class='footnotes'><h3>Footnotes</h3>
+<div class="footnote"><p><a name="Footnote_79_79" id="Footnote_79_79"></a><a href="#FNanchor_79_79"><span class="label">[79]</span></a> On the English Constitution.</p></div>
+
+<div class="footnote"><p><a name="Footnote_80_80" id="Footnote_80_80"></a><a href="#FNanchor_80_80"><span class="label">[80]</span></a> Although all the freemen are legally eligible as jurors,
+any one may nevertheless be challenged and set aside, at the trial, for
+any special <i>personal</i> disqualification; such as mental or physical
+inability to perform the duties; having been convicted, or being under
+charge, of crime; interest, bias, &amp;c. But it is clear that the common
+law allows none of these points to be determined by the court, but only
+by "<i>triers</i>."</p></div>
+
+<div class="footnote"><p><a name="Footnote_81_81" id="Footnote_81_81"></a><a href="#FNanchor_81_81"><span class="label">[81]</span></a> What was the precise meaning of the Saxon word, which I
+have here called <i>elderly</i>, I do not know. In the Latin translations it
+is rendered by <i>seniores</i>, which may perhaps mean simply those who have
+attained their majority.</p></div>
+
+<div class="footnote"><p><a name="Footnote_82_82" id="Footnote_82_82"></a><a href="#FNanchor_82_82"><span class="label">[82]</span></a> In 1483 it was enacted, by a statute entitled "Of what
+credit and estate those jurors must be which shall be impanelled in the
+Sheriff's Turn."
+</p>
+<div class="blockquot"><p>"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 <i>twenty shillings</i> at the least,
+or else lands and tenements holden by custom of manor, commonly
+called <i>copy-hold</i>, within the said shires, to the yearly value of
+twenty-six shillings eight pence over all charges at the least."&mdash;<i>1
+Richard III.</i>, ch. 4. (1483.)</p></div>
+
+<div class="blockquot"><p>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 <i>forty shillings</i> at the least, to inquire of the
+concealments of others," &amp;c., &amp;c.&mdash;<i>3 Henry VII.</i>, ch. 1 (1486.)</p></div>
+<p>
+A statute passed in 1494, in regard to jurors in the city of London,
+enacts:
+</p>
+<div class="blockquot"><p>"That no person nor persons hereafter be impanelled, summoned, or
+sworn in any jury or inquest in courts within the same city, (of
+London,) except he be of lands, tenements, or goods and chattels, to
+the value of <i>forty marks</i>;<a name="FNanchor_86_86" id="FNanchor_86_86"></a><a href="#Footnote_86_86" class="fnanchor">[86]</a> and that no person or persons
+hereafter be impanelled, summoned, nor sworn in any jury or inquest
+in any court within the said city, for lands or tenements, or action
+personal, wherein the debt or damage amounteth to the sum of forty
+marks, or above, except he be in lands, tenements, goods, or
+chattels, to the value of <i>one hundred marks</i>."&mdash;<i>11 Henry VII.</i>, ch.
+21. (1494.)</p></div>
+<p>
+The statute <i>4 Henry VIII.</i>, ch. 3, sec. 4, (1512) requires jurors in
+London to have "<i>goods</i> to the value of one hundred marks."
+</p>
+<div class="blockquot"><p>In 1494 it was enacted that "It shall be lawful to every sheriff of
+the counties of <i>Southampton</i>, <i>Surrey</i>, <i>and Sussex</i>, 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 <i>ten</i>
+shillings, or copy-hold lands to the yearly value of <i>thirteen
+shillings four pence</i>, above all charges within any of the said
+counties, or men of less livelihood, if there be not so many there,
+notwithstanding the statute of <i>1 Richard III.</i>, ch. 4. To endure to
+the next parliament."&mdash;<i>11 Henry VII.</i>, ch. 26. (1494.)</p></div>
+<p>
+This statute was continued in force by <i>19 Henry VII.</i>, ch. 16. (1503.)
+</p>
+<div class="blockquot"><p>In 1531 it was enacted, "That every person or persons, being the
+king's natural subject born, which either by the name of citizen, or
+of a freeman, or any other name, doth enjoy and use the liberties and
+privileges of any city, borough, or town corporate, where he dwelleth
+and maketh his abode, being worth in <i>movable goods and substance</i> to
+the clear value of <i>forty pounds</i>, 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."&mdash;<i>23
+Henry VIII.</i>, ch. 13. (1531.)</p></div>
+
+<div class="blockquot"><p>In 1585 it was enacted, "That in all cases where any jurors to be
+returned for trial of any issue or issues joined in any of the
+Queen's majesty's courts of King's Bench, Common Pleas, and the
+Exchequer, or before justices of assize, by the laws of this realm
+now in force, ought to have estate of freehold in lands, tenements,
+or hereditaments, of the clear yearly value of <i>forty shillings</i>,
+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 <i>four pounds</i> at the least."&mdash;<i>27
+Elizabeth</i>, ch. 6. (1585.)</p></div>
+
+<div class="blockquot"><p>In 1664-5 it was enacted, "That all jurors (other than strangers upon
+trials <i>per medietatem lingu&aelig;</i>) who are to be returned for the trials
+of issues joined in any of (his) majesty's courts of king's bench,
+common pleas, or the exchequer, or before justices of assize, or nisi
+prius, oyer and terminer, gaol delivery, or general or quarter
+sessions of the peace, from and after the twentieth day of April,
+which shall be in the year of our Lord one thousand six hundred and
+sixty-five, in any county of this realm of England, shall every of
+them thon have, in their own name, or in trust for them, within the
+same county, <i>twenty pounds by the year</i>, at least, above reprises,
+in their own or their wives' right, of freehold lands, or of ancient
+demesne, or of rents in fee, fee-tail, or for life. And that in every
+county within the dominion of Wales every such juror shall then have,
+within the same, <i>eight pounds by the year</i>, 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."&mdash;<i>16 and 17 Charles II.</i>, ch. 3. (1664-5.)</p></div>
+<p>
+By a statute passed in 1692, jurors in England are to have landed
+estates of the value of <i>ten pounds a year</i>; and jurors in Wales to have
+similar estates of the realm of <i>six pounds a year</i>.&mdash;<i>4 and 5 William
+and Mary</i>, ch. 24, sec. 14. (1692.)
+</p><p>
+By the same statute, (sec. 18,) persons may be returned to serve upon
+the <i>tales</i> in any county of England, who shall have, within the same
+county, <i>five pounds by the year</i>, above reprises, in the manner
+aforesaid.
+</p><p>
+By <i>St</i>. 3 <i>George II</i>., ch. 25, sec. 19, 20, no one is to be a juror in
+London, who shall not be "an householder within the said city, and have
+lands, tenements, or personal estate, to the value of <i>one hundred
+pounds</i>."
+</p><p>
+By another statute, applicable only to the county of <i>Middlesex</i>, it is
+enacted,
+</p>
+<div class="blockquot"><p>"That all leaseholders, upon leases where the improved rents or value
+shall amount to <i>fifty pounds or upwards per annum</i>, 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."&mdash;<i>4 George II.</i>, ch. 7,
+sec. 3. (1731.)</p></div>
+</div>
+
+<div class="footnote"><p><a name="Footnote_83_83" id="Footnote_83_83"></a><a href="#FNanchor_83_83"><span class="label">[83]</span></a> 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&mdash;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.</p></div>
+
+<div class="footnote"><p><a name="Footnote_84_84" id="Footnote_84_84"></a><a href="#FNanchor_84_84"><span class="label">[84]</span></a> <i>Lingard</i> says: "These compurgators or jurors * * were
+sometimes * * <i>drawn by lot</i>."&mdash;<i>1 Lingard's History of England</i>, p.
+300.</p></div>
+
+<div class="footnote"><p><a name="Footnote_85_85" id="Footnote_85_85"></a><a href="#FNanchor_85_85"><span class="label">[85]</span></a> Chapter 4, p. 120, note.</p></div>
+
+<div class="footnote"><p><a name="Footnote_86_86" id="Footnote_86_86"></a><a href="#FNanchor_86_86"><span class="label">[86]</span></a> A mark was thirteen shillings and four pence.</p></div></div>
+
+
+
+<hr style="width: 65%;" />
+<h2><a name="CHAPTER_VII" id="CHAPTER_VII"></a>CHAPTER VII.</h2>
+
+<p class='center'><b>ILLEGAL JUDGES.</b><span class='pagenum'><a name="Page_157" id="Page_157">[Pg 157]</a></span></p>
+
+
+<p>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 <i>appointed by the king</i>, shall preside in jury trials,
+<i>in criminal cases</i>, or "pleas of the crown."</p>
+
+<p>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
+<i>legal</i>&mdash;that is, <i>common law</i>&mdash;trial by jury.</p>
+
+<p>At the common law, all officers who held jury trials, whether in civil
+or criminal cases, were chosen by the people.<a name="FNanchor_87_87" id="FNanchor_87_87"></a><a href="#Footnote_87_87" class="fnanchor">[87]</a><span class='pagenum'><a name="Page_158" id="Page_158">[Pg 158]</a></span></p>
+
+<p>But previous to Magna Carta, the kings had adopted the practice of
+sending officers of their own appointment, called justices, into the
+counties, to hold jury trials in some cases; and Magna Carta authorizes
+this practice to be continued so far as it relates to <i>three</i> kinds of
+<i>civil</i> actions, to wit: "novel disseisin, mort de ancestor, and darrein
+presentment;"<a name="FNanchor_88_88" id="FNanchor_88_88"></a><a href="#Footnote_88_88" class="fnanchor">[88]</a> but specially forbids its being extended to criminal
+cases, or pleas of the crown.</p>
+
+<p>This prohibition is in these words:</p>
+
+<div class="blockquot"><p>"Nullus vicecomes, constabularius, coronator, <i>vel alii balivi
+nostri</i>, teneant placita coron&aelig; nostr&aelig;." (No sheriff, constable,
+coroner, <i>or other our bailiffs</i>, shall hold pleas of our
+crown.)&mdash;<i>John's Charter</i>, ch. 53. <i>Henry's ditto</i>, ch. 17.</p></div>
+
+<p>Some persons seem to have supposed that this was a prohibition merely
+upon officers <i>bearing the specific names of</i> "<i>sheriffs, constables,
+coroners and bailiffs</i>," to hold criminal trials. But such is not the
+meaning. If it were, the <i>name</i><span class='pagenum'><a name="Page_159" id="Page_159">[Pg 159]</a></span> could be changed, and the <i>thing</i>
+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 <i>of the king</i>, ("<i>our</i>
+bailiffs,") and officers chosen by the people.</p>
+
+<p>The prohibition upon the king's <i>justices</i> sitting in criminal trials,
+is included in the words "<i>vel alii balivi nostri</i>," (or other our
+bailiffs.) The word <i>bailiff</i> was anciently a sort of general name for
+<i>judicial officers</i> 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, <i>a servant of courts</i>, rather than one whose functions
+are purely judicial.</p>
+
+<p>The word is a French word, brought into England by the Normans.</p>
+
+<div class="blockquot"><p>Coke says, "<i>Baylife</i> is a French word, and signifies an officer
+concerned in the administration of justice of a certain province; and
+because a sheriff hath an office concerning the administration of
+justice within his county, or bailiwick, therefore he called his
+county <i>baliva sua</i>, (his bailiwick.)</p>
+
+<p>"I have heard great question made what the true exposition of this
+word <i>balivus</i> is. In the statute of Magna Carta, cap. 28, the letter
+of that statute is, <i>nullus balivus de c&aelig;tero ponat aliquem ad legem
+manifestam nec ad juramentum simplici loquela sua sine testibus
+fidelibus ad hoc inductis</i>." (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 <i>balivus</i> in this
+statute signifieth <i>any judge</i>; for the law must be waged and made
+before the judge. And this statute (say they) extends to <i>the courts
+of common pleas</i>, <i>king's bench</i>, &amp;c., for they must bring with them
+<i>fideles testes</i>, (faithful witnesses,) &amp;c., <i>and so hath been the
+usage to this day</i>."&mdash;<i>1 Coke's Inst.</i>, 168 b.</p></div>
+
+<p>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.</p>
+
+<p>Coke also, in another place, under the head of the chapter<span class='pagenum'><a name="Page_160" id="Page_160">[Pg 160]</a></span> just cited
+from Magna Carta, that "<i>no bailiff shall put any man to his open law</i>,"
+&amp;c., gives the following commentary upon it, from the <i>Mirror of
+Justices</i>, from which it appears that in the time of Edward I., (1272 to
+1307,) this word <i>balivus</i> was understood to include <i>all judicial</i>, as
+well as all other, officers of the king.</p>
+
+<div class="blockquot"><p>The Mirror says: "The point which forbiddeth that no <i>bailiff</i> put a
+freeman to his oath without suit, is to be understood in this
+manner,&mdash;<i>that no justice, no minister of the king</i>, nor other
+steward, nor bailiff, have power to make a freeman make oath, (of
+self-exculpation,) <i>without the king's command</i>,<a name="FNanchor_89_89" id="FNanchor_89_89"></a><a href="#Footnote_89_89" class="fnanchor">[89]</a> nor receive any
+plaint, without witnesses present who testify the plaint to be
+true."&mdash;<i>Mirror of Justices</i>, ch. 5, sec. 2, p. 257.</p></div>
+
+<p>Coke quotes this commentary, (in the original French,) and then endorses
+it in these words:</p>
+
+<div class="blockquot"><p>"By this it appeareth, that under this word <i>balivus</i>, in this act,
+is comprehended <i>every justice, minister of the king</i>, steward, and
+bailiff."&mdash;2 <i>Inst.</i>, 44.</p></div>
+
+<p>Coke also, in his commentary upon this very chapter of Magna Carta, that
+provides that "<i>no sheriff, constable, coroner, or other our bailiffs,
+shall hold pleas of our crown</i>," expresses the opinion that it "<i>is a
+general law</i>," (that is, applicable to all officers of the king,) "by
+reason of the words <i>vel alii balivi nostri</i>, (or other our bailiffs,)
+<i>under which words are comprehended all judges or justices of any courts
+of justice</i>." 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."&mdash;<i>2 Inst.</i>, 30&mdash;1.</p>
+
+<p>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 <i>balivus</i>, showing that
+it embraced <i>all ministers of the king whatsoever</i>, whether high or low,
+judicial or executive, fabricates an entirely gratuitous interpretation
+of this chapter<span class='pagenum'><a name="Page_161" id="Page_161">[Pg 161]</a></span> of Magna Carta, and pretends that after all it only
+required that <i>felonies</i> should be tried before the king's <i>justices, on
+account of their superior learning</i>; and that it permitted all lesser
+offences to be tried before inferior officers, (meaning of course the
+<i>king's</i> inferior officers.)&mdash;<i>2 Inst.</i>, 30.</p>
+
+<p>And thus this chapter of Magna Carta, which, according to his own
+definition of the word <i>balivus</i>, 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 <i>names</i> 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, <i>if he were but permitted to appoint
+and name such officers at all</i>; and as if it were of the least
+importance what <i>name</i> an officer bore, whom the king might appoint to a
+particular duty.<a name="FNanchor_90_90" id="FNanchor_90_90"></a><a href="#Footnote_90_90" class="fnanchor">[90]</a><span class='pagenum'><a name="Page_162" id="Page_162">[Pg 162]</a></span></p>
+
+<p>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<span class='pagenum'><a name="Page_163" id="Page_163">[Pg 163]</a></span> 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.</p>
+
+<p>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.</p>
+
+<p>Coke's interpretation of this chapter of Magna Carta is of a piece with
+his absurd and gratuitous interpretation of the words "<i>nec super eum
+ibimus, nec super eum mittemus</i>," which was pointed out in a former
+article, and by which he attempted to give a <i>judicial</i> 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<span class='pagenum'><a name="Page_164" id="Page_164">[Pg 164]</a></span> <i>fine</i> and <i>amercement</i>, and that <i>fines</i> might be imposed by
+the king, and that juries were required only for fixing <i>amercements</i>.</p>
+
+<p>These are some of the innumerable frauds by which the English people
+have been cheated out of the trial by jury.</p>
+
+<p><i>Ex uno disce omnes.</i> From one judge learn the characters of all.<a name="FNanchor_91_91" id="FNanchor_91_91"></a><a href="#Footnote_91_91" class="fnanchor">[91]</a></p>
+
+<p>I give in the note additional and abundant authorities for<span class='pagenum'><a name="Page_165" id="Page_165">[Pg 165]</a></span> the meaning
+ascribed to the word <i>bailiff</i>. 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.<a name="FNanchor_92_92" id="FNanchor_92_92"></a><a href="#Footnote_92_92" class="fnanchor">[92]</a></p>
+
+<p>The foregoing interpretation of the chapter of Magna Carta now under
+discussion, is corroborated by another chapter of<span class='pagenum'><a name="Page_166" id="Page_166">[Pg 166]</a></span> 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
+<i>civil</i> actions, to wit, "novel disseisin, mort de ancestor, and darrein
+presentment;" but makes no mention whatever of their holding jury trials
+in <i>criminal</i> cases,&mdash;an omission wholly unlikely to be made, if it
+were<span class='pagenum'><a name="Page_167" id="Page_167">[Pg 167]</a></span> designed they should attend the trial of such causes. Besides, the
+chapter here spoken of (in John's charter) does not allow these justices
+to sit <i>alone</i> in jury trials, even in <i>civil</i> actions; but provides
+that four knights, chosen by the county, shall sit<span class='pagenum'><a name="Page_168" id="Page_168">[Pg 168]</a></span> 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 <i>civil</i> actions,<span class='pagenum'><a name="Page_169" id="Page_169">[Pg 169]</a></span> how preposterous is it to suppose that they
+would not only suffer them to sit, but to sit alone, in <i>criminal</i> ones.</p>
+
+<p>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 <i>criminal</i>
+trials, if they were to be allowed to sit in them at all. Yet Magna
+Carta has no provision whatever on the subject.<a name="FNanchor_93_93" id="FNanchor_93_93"></a><a href="#Footnote_93_93" class="fnanchor">[93]</a><span class='pagenum'><a name="Page_170" id="Page_170">[Pg 170]</a></span></p>
+
+<p>But what would appear to make this matter absolutely certain is, that
+unless the prohibition that "no bailiff, &amp;c., <i>of ours</i> 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
+"<i>justices</i>," 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, <i>except his justices</i>, from presiding in criminal
+trials, would therefore have been mere fool's play.</p>
+
+<p>We can all perhaps form some idea, though few of us will be likely to
+form any adequate idea, of what a different thing<span class='pagenum'><a name="Page_171" id="Page_171">[Pg 171]</a></span> the trial by jury
+would have been <i>in practice</i>, 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.</p>
+
+<p>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 <i>legislative</i> 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 <i>common law</i>) 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.<a name="FNanchor_94_94" id="FNanchor_94_94"></a><a href="#Footnote_94_94" class="fnanchor">[94]</a></p>
+
+<div class='footnotes'><h3>Footnotes</h3>
+<div class="footnote"><p><a name="Footnote_87_87" id="Footnote_87_87"></a><a href="#FNanchor_87_87"><span class="label">[87]</span></a> The proofs of this principle of the common law have
+already been given on page 120, <i>note</i>.
+</p><p>
+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.
+</p><p>
+It seems to be a perfectly well established fact that, at common law,
+several magistrates, bearing the names of aldermen, sheriffs, stewards,
+coroners and bailiffs, were chosen by the people; and yet it appears,
+from Magna Carta itself, that some of the <i>king's</i> officers (of whom he
+must have had many) were also called "sheriffs, constables, coroners,
+and bailiffs."
+</p><p>
+But Magna Carta, in various instances, speaks of sheriffs and bailiffs
+as "<i>our</i> sheriffs and bailiffs;" thus apparently intending to recognize
+the distinction between officers <i>of the king</i>, bearing those names, and
+other officers, bearing the same official names, but chosen by the
+people. Thus it says that "no sheriff or bailiff <i>of ours</i>, or any other
+(officer), shall take horses or carts of any freeman for carriage,
+unless with the consent of the freeman himself."&mdash;<i>John's Charter</i>, ch.
+36.
+</p><p>
+In a kingdom subdivided into so many counties, hundreds, tithings,
+manors, cities and boroughs, each having a judicial or police
+organization of its own, it is evident that many of the officers must
+have been chosen by the people, else the government could not have
+maintained its popular character. On the other hand, it is evident that
+the king, the executive power of the nation, must have had large numbers
+of officers of his own in every part of the kingdom. And it is perfectly
+natural that these different sets of officers should, in many instances,
+bear the same official names; and, consequently that the king, when
+speaking of his own officers, as distinguished from those chosen by the
+people, should call them "our sheriffs, bailiffs," &amp;c., as he does in
+Magna Carta.
+</p><p>
+I apprehend that inattention to these considerations has been the cause
+of all the confusion of ideas that has arisen on this subject,&mdash;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.
+</p>
+<div class="blockquot"><p>"Subordinate to the ealdormen were the <i>gerefas</i>, the sheriffs, or
+reeves, <i>of whom there were several in every shire, or county</i>.
+<i>There was one in every borough, as a judge.</i> There was one at every
+gate, who witnessed purchases outside the walls; and there was one,
+higher than either,&mdash;the high sheriff,&mdash;who was probably the reeve of
+the shire. This last <i>appears</i> 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, <i>and to preside in a
+subordinate tribunal of their own</i>."&mdash;<i>Dunham's Middle Ages</i>, sec. 2,
+B. 2, ch. 1. 57 <i>Lardner's Cab. Cyc.</i>, p. 41.</p></div>
+<p>
+The confusion of <i>duties</i> 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,&mdash;to wit, the king, and the people.</p></div>
+
+<div class="footnote"><p><a name="Footnote_88_88" id="Footnote_88_88"></a><a href="#FNanchor_88_88"><span class="label">[88]</span></a> <i>Darrein presentment</i> was an inquest to discover who
+presented the last person to a church; <i>mort de ancestor</i>, whether the
+last possessor was seized of land in demesne of his own fee; and <i>novel
+disseisin</i>, whether the claimant had been unjustly disseized of his
+freehold.</p></div>
+
+<div class="footnote"><p><a name="Footnote_89_89" id="Footnote_89_89"></a><a href="#FNanchor_89_89"><span class="label">[89]</span></a> He has no power to do it, <i>either with, or without, the
+king's command</i>. The prohibition is absolute, containing no such
+qualification as is here interpolated, viz., "<i>without the king's
+command</i>." If it could be done <i>with</i> the king's command, the king would
+be invested with arbitrary power in the matter.</p></div>
+
+<div class="footnote"><p><a name="Footnote_90_90" id="Footnote_90_90"></a><a href="#FNanchor_90_90"><span class="label">[90]</span></a> 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, <i>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</i>. The king,
+therefore, could, <i>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</i>.
+</p><p>
+This custom of commissioning particular persons to hold jury trials, in
+<i>criminal</i> cases, (and probably also in <i>civil</i> 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:
+</p>
+<div class="blockquot"><p>"The frequent absence of William from his insular dominions
+occasioned another mode of administration, <i>which ultimately produced
+still greater changes in the law</i>. 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.<a name="FNanchor_95_95" id="FNanchor_95_95"></a><a href="#Footnote_95_95" class="fnanchor">[95]</a> ... 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,) <i>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</i>; 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, <i>as being originally committees, selected by the king
+when occasion required</i>, out of a large body, for the despatch of
+peculiar branches of business, <i>and which committees, by degrees,
+assumed an independent and permanent existence</i>.... Justices
+itinerant, who, despatched throughout the land, decided the 'Pleas of
+the Crown,' may be obscurely traced in the reign of the Conqueror;
+<i>not, perhaps, appointed with much regularity, but despatched upon
+peculiar occasions and emergencies</i>."&mdash;<i>1 Palgrave's Rise and
+Progress</i>, &amp;c., p. 289 to 293.</p></div>
+<p>
+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,&mdash;<i>his</i> sheriffs, no doubt,) to try particular cases:
+</p>
+<div class="blockquot"><p>"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."&mdash;<i>St. 28 Edward III.</i>, ch. 9, (1354.)</p></div>
+<p>
+How silly to suppose that the illegality of these commissions to try
+criminal cases, could have been avoided by simply granting them to
+persons under the title of "<i>justices</i>," instead of granting them to
+"<i>sheriffs</i>." 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
+<i>disavows</i> his right to appoint them under the name of "sheriffs."
+</p>
+<div class="blockquot"><p>Millar says: "When the king's bench came to have its usual residence
+at Westminster, the sovereign was induced to <i>grant special
+commissions, for trying particular crimes</i>, in such parts of the
+country as were found most convenient; and this practice was
+<i>gradually</i> modelled into a regular appointment of certain
+commissioners, empowered, at stated seasons, to perform circuits over
+the kingdom, and to hold courts in particular towns, for the trial of
+all sorts of crimes. These judges of the circuit, however, <i>never
+obtained an ordinary jurisdiction, but continued, on every occasion,
+to derive their authority from two special commissions</i>: that of
+<i>oyer and terminer</i>, by which they were appointed to hear and
+determine all treasons, felonies and misdemeanors, within certain
+districts; and that of <i>gaol delivery</i>, by which they were directed
+to try every prisoner confined in the gaols of the several towns
+falling under their inspection."&mdash;<i>Millar's Hist. View of Eng. Gov.</i>,
+vol. 2, ch. 7, p. 282.</p></div>
+<p>
+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:
+</p>
+<div class="blockquot"><p>"From the time of the <i>Saxons</i>," (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. <i>First, by granting commissions to
+the sheriffs by writ of</i> JUSTICIES, <i>whereby the sheriff had a
+particular jurisdiction granted him to be judge of a particular
+cause, independent of the suitors of the county court</i>," (that is,
+without a jury;) "<i>and these commissions were after the Norman form,
+by which (according to which) all power of judicature was immediately
+derived from the king</i>."&mdash;<i>Gilbert on the Court of Chancery</i>, p. 1.</p></div>
+<p>
+The several authorities now given show that it was the custom of the
+<i>Norman</i> kings, not only to appoint persons to sit as judges in jury
+trials, in criminal cases, but that they also commissioned individuals
+to sit in singular and particular cases, as occasion required; and that
+they therefore readily <i>could</i>, and naturally <i>would</i>, and therefore
+undoubtedly <i>did</i>, commission individuals with a special view to their
+adaptation or capacity to procure such judgments as the kings desired.
+</p><p>
+The extract from Gilbert suggests also the usurpation of the <i>Norman</i>
+kings, in their assumption that <i>they</i>, (and <i>not the people</i>, as by the
+<i>common law</i>,) 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.
+</p><p>
+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.</p></div>
+
+<div class="footnote"><p><a name="Footnote_91_91" id="Footnote_91_91"></a><a href="#FNanchor_91_91"><span class="label">[91]</span></a> 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, <i>when those opinions or decisions are favorable
+to the power of the government, or unfavorable to the liberties of the
+people</i>. The only reasons that their opinions, <i>when in favor of
+liberty</i>, 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, <i>when made
+against their own interests</i>, are entitled to be received as true,
+because it is contrary to human nature for a man to confess anything but
+truth against himself.
+</p><p>
+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.
+</p><p>
+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.
+</p><p>
+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 <i>penal</i> 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.
+</p><p>
+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,&mdash;it is suicide.</p></div>
+
+<div class="footnote"><p><a name="Footnote_92_92" id="Footnote_92_92"></a><a href="#FNanchor_92_92"><span class="label">[92]</span></a> Coke, speaking of the word <i>bailiffs</i>, as used in the
+statute of 1 <i>Westminster</i>, ch. 35, (1275,) says:
+</p>
+<div class="blockquot"><p>"Here <i>bailiffs</i> are taken for the <i>judges of the court</i>, as
+manifestly appeareth hereby."&mdash;2 <i>Inst.</i>, 229.</p></div>
+<p>
+Coke also says, "It is a maxim in law, <i>aliquis non debet esse judex in
+propria causa</i>, (no one ought to be judge in his own cause;) and
+therefore a fine levied before the <i>baylifes of Salop</i> was reversed,
+because one of the <i>baylifes</i> was party to the fine, <i>quia non potest
+esse judex et pars</i>," (because one cannot be <i>judge</i> and party.)&mdash;<i>1
+Inst.</i>, 141 a.
+</p><p>
+In the statute of Gloucester, ch. 11 and 12, (1278,) "the mayor and
+<i>bailiffs</i> of London (undoubtedly chosen by the people, or at any rate
+not appointed by the king) are manifestly spoken of as <i>judges</i>, or
+magistrates, holding <i>jury</i> trials, as follows:
+</p>
+<div class="blockquot"><p><i>Ch. II.</i> "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; <i>the mayor and bailiffs may inquire by a good inquest</i>,
+(<i>jury</i>,) 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."&mdash;<i>6 Edward I.</i>, ch. 11, (1278.)</p></div>
+
+<div class="blockquot"><p>Coke, in his commentary on this chapter, calls this court of "the
+mayor and <i>bailiffs</i>" of London, "<i>the court of the hustings, the
+greatest and highest court in London;</i>" and adds, "other cities have
+the like court, and so called, as York, Lincoln, Winchester, &amp;c. Here
+the city of London is named; but it appeareth by that which hath been
+said out of Fleta, that this act extends to such cities and boroughs
+privileged,&mdash;that is, such as have such privilege to hold plea as
+London hath."&mdash;<i>2 Inst.</i>, 322.</p></div>
+<p>
+The 12th chapter of the same statute is in the following words, which
+plainly recognize the fact that "the mayor and <i>bailiffs</i> of London" are
+judicial officers holding courts in London.
+</p>
+<div class="blockquot"><p>"It is provided, also, that if a man, impleaded for a tenement in the
+same city, (London,) doth vouch a foreigner to warranty, that he
+shall come into the chancery, and have a writ to summon his warrantor
+at a certain day before the justices of the bench, <i>and another writ
+to the mayor and bailiffs of London, that they shall surcease</i>
+(suspend proceedings) <i>in the matter that is before them by writ</i>,
+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 <i>bailiffs'</i>" court,) "to answer unto the chief
+plea; and a writ shall be awarded at the suit of the demandant by the
+justices <i>unto the mayor and bailiffs, that they shall proceed in the
+plea</i>," &amp;c.&mdash;<i>6 Edward I.</i>, ch. 12, (1278.)</p></div>
+<p>
+Coke, in his commentary on this chapter, also speaks repeatedly of "the
+mayor and <i>bailiffs</i>" <i>as judges holding courts</i>; 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
+<i>bailiffs</i>,") "where foreign voucher is made, as to Chester, Durham,
+Salop," &amp;c.&mdash;<i>2 Inst.</i>, 325-7.
+</p><p>
+<span class="smcap">Bailie.</span>&mdash;In Scotch law, a municipal magistrate, corresponding
+with the English <i>alderman</i>.<a name="FNanchor_96_96" id="FNanchor_96_96"></a><a href="#Footnote_96_96" class="fnanchor">[96]</a>&mdash;<i>Burrill's Law Dictionary</i>.
+</p><p>
+<span class="smcap">Bailiffe.</span>&mdash;<i>Baillif.</i> Fr. A bailiff: a ministerial officer with
+duties similar to those of a sheriff.... <i>The judge of a court.</i> A
+municipal magistrate, &amp;c.&mdash;<i>Burrill's Law Dict.</i>
+</p><p>
+<span class="smcap">Bailiff</span>.... The word <i>bailiff</i> 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.&mdash;<i>Spelman, voc. Balivus; 1 Bl. Com.</i>,
+344. <i>See Bailli</i>, <i>Ballivus</i>. The Latin <i>ballivus</i> occurs, indeed, in
+the laws of Edward the Confessor, but Spelman thinks it was introduced
+by a later hand. <i>Balliva</i> (bailiwick) was the word formed from
+<i>ballivus</i>, to denote the extent of territory comprised within a
+bailiff's jurisdiction; and <i>bailiwick</i> is still retained in writs and
+other proceedings, as the name of a sheriff's county.&mdash;<i>1 Bl. Com.</i>,
+344. <i>See Balliva.</i> <i>The office of bailiff was at first strictly, though
+not exclusively, a judicial one.</i> In France, the word had the sense of
+what Spelman calls <i>justitia tutelaris</i>. <i>Ballivus</i> occurs frequently in
+the <i>Regiam Majestatem</i>, in the sense of a <i>judge</i>.&mdash;<i>Spelman.</i> In its
+sense of a <i>deputy</i>, 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 <i>judicial</i> 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.&mdash;<i>Brande.</i> ... The word <i>bailiff</i> 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.&mdash;<i>Burrill's Law Dict.</i>
+</p><p>
+"<span class="smcap">Bailiff</span>, (from the Lat. <i>ballivus</i>; Fr. <i>baillif</i>, i.e.,
+<i>Pr&aelig;fectus provinci&aelig;</i>,) 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,"
+&amp;c.,&mdash;<i>Brewster's Encyclopedia.</i>
+</p><p>
+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 <i>bailiffs</i> 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 <i>bailiffs</i> were appointed in all the principal
+towns of the kingdom."&mdash;<i>Millar's Hist. View of the Eng. Gov.</i>, vol.
+ii., ch. 3, p. 126.
+</p>
+
+<div class="blockquot"><p>"<span class="smcap">Bailiff</span>-<i>office</i>.&mdash;Magistrates who formerly administered
+justice in the parliaments or courts of France, answering to the
+English sheriffs, as mentioned by Bracton."&mdash;<i>Bouvier's Law Dict.</i></p></div>
+
+<div class="blockquot"><p>"There be several officers called <i>bailiffs</i>, whose offices and
+employments seem quite different from each other.... The chief
+magistrate, in divers ancient corporations, are called <i>bailiffs</i>, as
+in Ipswich, Yarmouth, Colchester, &amp;c. There are, likewise, officers
+of the forest, who are termed bailiffs."&mdash;<i>1 Bacon's Abridgment</i>,
+498-9.</p></div>
+
+<div class="blockquot"><p>"<span class="smcap">Bailiff</span> signifies a keeper or superintendent, and is
+directly derived from the French word <i>bailli</i>, which appears to come
+from the word <i>balivus</i>, and that from <i>bagalus</i>, a Latin word
+signifying generally a governor, tutor, or superintendent.... The
+French word <i>bailli</i> is thus explained by Richelet, (<i>Dictionaire</i>,
+&amp;c.:) <i>Bailli.</i>&mdash;<i>He who in a province has the superintendence of
+justice, who is the ordinary judge of the nobles</i>, who is their head
+for the <i>ban</i> and <i>arriere ban</i>,<a name="FNanchor_97_97" id="FNanchor_97_97"></a><a href="#Footnote_97_97" class="fnanchor">[97]</a> 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."&mdash;<i>Political
+Dictionary.</i></p></div>
+<p>
+"<span class="smcap">Bailiff</span>, <i>balivus</i>. From the French word <i>bayliff</i>, that is,
+<i>pr&aelig;fectus provinci&aelig;</i>, 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, <i>there were several provinces to which justice was
+administered by certain officers called bailiffs</i>; 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
+<i>sheriff</i>, or <i>viscount</i>; (one of which names descends from the Saxons,
+the other from the Normans.) And, though the sheriff is not called
+<i>bailiff</i>, yet it was probable that was one of his names also, because
+the county is often called <i>balliva</i>; as in the return of a writ, where
+the person is not arrested, the sheriff saith, <i>infra-nominatus</i>, <i>A.B.
+non est inventus in balliva mea</i>, &amp;c.; (the within named A.B. is not
+found in my bailiwick, &amp;c.) And in the statute of Magna Carta, ch. 28,
+and 14 Ed. 3, ch. 9, the word <i>bailiff</i> seems to comprise as well
+sheriffs, as bailiffs of hundreds.
+</p><p>
+"<i>Bailies</i>, in Scotland, are magistrates of burghs, possessed of certain
+jurisdictions, having the same power within their territory as sheriffs
+in the county....
+</p><p>
+"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 <i>bailiffs</i>. And it appears by Bracton, (<i>lib. 3, tract</i>. 2, ch.
+34,) that <i>bailiffs</i> 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 <i>bailiff's</i>
+name and office is grown into contempt, they being generally officers to
+serve writs, &amp;c., within their liberties; though, in other respects, the
+name is still in good esteem, for the chief magistrates in divers towns
+are called <i>bailiffs</i>; and sometimes the persons to whom the king's
+castles are committed are termed <i>bailiffs</i>, as the <i>bailiff</i> of Dover
+Castle, &amp;c.
+</p><p>
+"Of the ordinary <i>bailiffs</i> there are several sorts, viz., <i>bailiffs</i> of
+liberties; sheriffs' <i>bailiffs</i>; <i>bailiffs</i> of lords of manors;
+<i>bailiffs</i> of husbandry, &amp;c....
+</p><p>
+"<i>Bailiffs</i> of liberties or franchises are to be sworn to take
+distresses, truly impanel jurors, make returns by indenture between them
+and sheriffs, &amp;c....
+</p><p>
+"<i>Bailiffs of courts baron</i> summon those courts, and execute the process
+thereof....
+</p><p>
+"Besides these, there are also <i>bailiffs of the forest</i> ..."&mdash;<i>Jacob's
+Law Dict. Tomlin's do.</i>
+</p><p>
+"<span class="smcap">Bailiwick</span>, <i>balliva</i>,&mdash;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 <i>bailiff</i>,
+with such powers within his precinct as an under-sheriff exerciseth
+under the sheriff of the county; such as the <i>bailiff</i> of
+Westminster."&mdash;<i>Jacob's Law Dict. Tomlin's do.</i>
+</p><p>
+"<i>A bailiff of a Leet, Court-baron, Manor, Balivus Let&aelig;, Baronis,
+Manerii.</i>&mdash;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, &amp;c., of which you may
+read at large in <i>Kitchen's Court-leet and Court-baron</i>."&mdash;<i>A Law
+Dictionary, anonymous</i>, (<i>in Suffolk Law Library</i>.)
+</p><p>
+"<span class="smcap">Bailiff.</span>&mdash;In England an officer appointed by the sheriff.
+Bailiffs are either special, and appointed, for their adroitness, to
+arrest persons; or bailiffs of hundreds, who collect fines, summon
+juries, attend the assizes, and execute writs and processes. <i>The
+sheriff in England is the king's bailiff....</i>
+</p><p>
+"<i>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.</i>"&mdash;<i>Webster.</i>
+</p><p>
+"<span class="smcap">Bailli</span>, (Scotland.)&mdash;An alderman; a magistrate who is second
+in rank in a royal burgh."&mdash;<i>Worcester.</i>
+</p><p>
+"<i>Baili, or Bailiff.</i>&mdash;(Sorte d'officier de justice.) A bailiff; a sort
+of magistrate."&mdash;<i>Boyer's French Dict.</i>
+</p><p>
+"By some opinions, a <i>bailiff</i>, in Magna Carta, ch. 28, signifies <i>any
+judge</i>."&mdash;<i>Cunningham's Law Dict.</i>
+</p><p>
+"<span class="smcap">Bailiff.</span>&mdash;In the court of the Greek emperors there was a grand
+<i>bajulos</i>, first tutor of the emperor's children. The superintendent of
+foreign merchants seems also to have been called <i>bajulos</i>; and, as he
+was appointed by the Venetians, this title (balio) was transferred to
+the Venetian ambassador. From Greece, the official <i>bajulos</i>
+(<i>ballivus</i>, <i>bailli</i>, in France; <i>bailiff</i>, in England,) was introduced
+into the south of Europe, and denoted a superintendent; hence the eight
+<i>ballivi</i> 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, <i>and judges of their
+districts</i>. In the course of time, only the first duty remained to the
+bailiff; hence he was <i>bailli d'&eacute;p&eacute;e</i>, <i>and laws were administered in
+his name by a lawyer, as his deputy, lieutenant de robe</i>. The
+seigniories, with which high courts were connected, employed bailiffs,
+who thus constituted, almost everywhere, <i>the lowest order of judges</i>.
+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 <i>presidial courts</i>.... <i>The name of bailiff was
+introduced into England with William I.</i> The counties were also called
+<i>bailiwicks</i>, (<i>balliv&aelig;</i>,) while the subdivisions were called
+<i>hundreds</i>; 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 <i>huissiers</i>. These correspond very nearly to the
+officers called <i>constables</i> in the United States. Every sheriff has
+some of them under him, for whom he is answerable. In some cities the
+highest municipal officer yet bears this name, as the high bailiff of
+Westminster. In London, the Lord Mayor is at the same time bailiff,
+(which title he bore before the present became usual,) <i>and administers,
+in this quality, the criminal jurisdiction of the city, in the court of
+old Bailey</i>, where there are, annually, eight sittings of the court, for
+the city of London and the county of Middlesex. <i>Usually, the recorder
+of London supplies his place as judge.</i> In some instances the term
+<i>bailiff</i>, in England, is applied to the chief magistrates of towns, or
+to the commanders of particular castles, as that of Dover. The term
+<i>baillie</i>, in Scotland, is applied to a judicial police-officer, having
+powers very similar to those of justices of peace in the United
+States."&mdash;<i>Encyclop&aelig;dia Americana.</i></p></div>
+
+<div class="footnote"><p><a name="Footnote_93_93" id="Footnote_93_93"></a><a href="#FNanchor_93_93"><span class="label">[93]</span></a> 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 <i>bailiff</i> 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," <i>is itself</i>
+a "provision in regard to the king's justices sitting in criminal
+trials," and therefore implies that <i>they are to sit</i> in such trials.
+</p><p>
+But, although the word <i>bailiff</i> includes all <i>judicial</i>, 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 "<i>bailiffs</i>" while
+acting in their <i>judicial</i> capacity, (for they were not allowed to sit
+in criminal trials at all,) but only in the character of <i>witnesses</i>;
+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.<a name="FNanchor_98_98" id="FNanchor_98_98"></a><a href="#Footnote_98_98" class="fnanchor">[98]</a>
+</p><p>
+It will be noticed that the words of this chapter are <i>not</i>, "no bailiff
+<i>of ours</i>,"&mdash;that is, <i>of the king</i>,&mdash;as in some other chapters of Magna
+Carta; but simply "no bailiff," &amp;c. The prohibition, therefore, applies
+to all "bailiffs,"&mdash;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.
+</p><p>
+The idea of Coke and others, that the object of this chapter was simply
+to forbid <i>magistrates</i> 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, <i>in the same
+trial</i>; and that, therefore, <i>in such cases</i>, 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, <i>both to their own testimony and that of other witnesses</i>; for,
+if they wished to convict, they would of course decide that any
+testimony, however frivolous or irrelevant, <i>in addition to their own</i>,
+was sufficient. Certainly a magistrate could always procure witnesses
+enough to testify to something or other, which <i>he himself</i> could decide
+to be corroborative of his own testimony. And thus the prohibition would
+be defeated in fact, though observed in form.</p></div>
+
+
+<div class="footnote"><p><a name="Footnote_94_94" id="Footnote_94_94"></a><a href="#FNanchor_94_94"><span class="label">[94]</span></a> In this chapter I have called the justices "<i>presiding</i>
+officers," solely for the want of a better term. They are not
+"<i>presiding</i> 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.</p></div>
+
+<div class="footnote"><p><a name="Footnote_95_95" id="Footnote_95_95"></a><a href="#FNanchor_95_95"><span class="label">[95]</span></a> In this extract, Palgrave seems to assume that the king
+himself had a right to sit as judge, in <i>jury</i> trials, in the <i>county</i>
+courts, in both civil and criminal cases. I apprehend he had no such
+power at the <i>common law</i>, 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.</p></div>
+
+<div class="footnote"><p><a name="Footnote_96_96" id="Footnote_96_96"></a><a href="#FNanchor_96_96"><span class="label">[96]</span></a> <i>Alderman</i> was a title anciently given to various
+<i>judicial</i> 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 <i>judicial</i> officers. See Law
+Dictionaries.</p></div>
+
+<div class="footnote"><p><a name="Footnote_97_97" id="Footnote_97_97"></a><a href="#FNanchor_97_97"><span class="label">[97]</span></a> "<i>Ban and arriere ban</i>, 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."&mdash;<i>Boyer.</i></p></div>
+
+<div class="footnote"><p><a name="Footnote_98_98" id="Footnote_98_98"></a><a href="#FNanchor_98_98"><span class="label">[98]</span></a> 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 re&euml;stablished.</p></div></div>
+
+
+
+<hr style="width: 65%;" />
+<h2><a name="CHAPTER_VIII" id="CHAPTER_VIII"></a>CHAPTER VIII.</h2>
+
+<p class='center'><b>THE FREE ADMINISTRATION OF JUSTICE.</b><span class='pagenum'><a name="Page_172" id="Page_172">[Pg 172]</a></span></p>
+
+
+<p>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.</p>
+
+<p>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,
+<i>preliminary to the trial itself</i>. Consequently, no one could lose the
+benefit of a trial, for the want of means to defray expenses. <i>But after
+the trial</i>, 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.<a name="FNanchor_99_99" id="FNanchor_99_99"></a><a href="#Footnote_99_99" class="fnanchor">[99]</a> 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.</p>
+
+<p>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.</p>
+
+<p>The freeholders, who were thus required always to attend<span class='pagenum'><a name="Page_173" id="Page_173">[Pg 173]</a></span> the courts,
+were doubtless the only witnesses who were <i>usually</i> required in <i>civil</i>
+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.<a name="FNanchor_100_100" id="FNanchor_100_100"></a><a href="#Footnote_100_100" class="fnanchor">[100]</a></p>
+
+<p>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.</p>
+
+<p>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.<a name="FNanchor_101_101" id="FNanchor_101_101"></a><a href="#Footnote_101_101" class="fnanchor">[101]</a>)</p>
+
+<p><i>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.</i></p>
+
+<p>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, <i>free of expense to him</i>, 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<span class='pagenum'><a name="Page_174" id="Page_174">[Pg 174]</a></span> 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 <i>exact</i> justice
+between them than the injured individual himself would do. The
+government, also, having more power at its command, is likely to right a
+man's wrongs more peacefully than the injured party himself could do it.
+If, therefore, the government will do the work of enforcing a man's
+rights, and redressing his wrongs, <i>promptly, and free of expense to
+him</i>, 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, <i>and of paying the government for
+doing it</i>, 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, <i>free of expense to him</i>. And so
+long as government refuses to do this, juries, if they knew their
+duties, would protect a man in defending his own rights.</p>
+
+<p>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,&mdash;as, for
+instance, to compel the payment of debts,&mdash;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, <i>free of expense</i>, or allow them to protect themselves.</p>
+
+<p>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 <i>necessary</i> charges.<a name="FNanchor_102_102" id="FNanchor_102_102"></a><a href="#Footnote_102_102" class="fnanchor">[102]</a><span class='pagenum'><a name="Page_175" id="Page_175">[Pg 175]</a></span></p>
+
+<p>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.</p>
+
+<p>All free government is founded on the theory of voluntary association;
+and on the theory that all the parties to it <i>voluntarily</i> pay their
+taxes for its support, on the condition of receiving protection in
+return. But the idea that any <i>poor</i> 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.</p>
+
+<p>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, <i>for aught they themselves can know</i>, 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<span class='pagenum'><a name="Page_176" id="Page_176">[Pg 176]</a></span> 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.</p>
+
+<p>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.</p>
+
+<p>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.</p>
+
+<p>The free administration of justice would diminish and nearly extinguish
+another great evil,&mdash;that of malicious <i>civil</i> suits. It is an old
+saying, that "<i>multi litigant in foro, non ut aliquid lucrentur, sed ut
+vexant alios</i>." (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 <i>plaintiff</i> 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,<span class='pagenum'><a name="Page_177" id="Page_177">[Pg 177]</a></span> <i>neither pending
+the suit</i>, (which it is the object of the oppressor to do,) nor at its
+termination. Besides, if the ancient common law practice should be
+adopted, of amercing a party for troubling the courts with groundless
+suits, the prosecutor himself would, in the end, be likely to be amerced
+by the jury, in such a manner as to make courts of justice a very
+unprofitable place for a man to go to seek revenge.</p>
+
+<p>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.</p>
+
+<div class='footnotes'><h3>Footnotes</h3>
+<div class="footnote"><p><a name="Footnote_99_99" id="Footnote_99_99"></a><a href="#FNanchor_99_99"><span class="label">[99]</span></a> <i>2 Sullivan Lectures</i>, 234-5. <i>3 Blackstone</i>, 274-5, 376.
+Sullivan says that both plaintiffs and defendants were liable to
+amercement. Blackstone speaks of plaintiffs being liable, without saying
+whether defendants were so or not. What the rule really was I do not
+know. There would seem to be some reason in allowing defendants to
+defend themselves, <i>at their own charges</i>, without exposing themselves
+to amercement in case of failure.</p></div>
+
+<div class="footnote"><p><a name="Footnote_100_100" id="Footnote_100_100"></a><a href="#FNanchor_100_100"><span class="label">[100]</span></a> When any other witnesses than freeholders were required
+in a civil suit, I am not aware of the manner in which their attendance
+was procured; but it was doubtless done at the expense either of the
+state or of the witnesses themselves. And it was doubtless the same in
+criminal cases.</p></div>
+
+<div class="footnote"><p><a name="Footnote_101_101" id="Footnote_101_101"></a><a href="#FNanchor_101_101"><span class="label">[101]</span></a> "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 'Pr&aelig;juramentum,' 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."&mdash;<i>2 Palgrave's Rise and Progress</i>,
+&amp;c., 114.</p></div>
+
+<div class="footnote"><p><a name="Footnote_102_102" id="Footnote_102_102"></a><a href="#FNanchor_102_102"><span class="label">[102]</span></a> 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.
+</p><p>
+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&mdash;and, if any, how much&mdash;from the
+government.</p></div></div>
+
+
+
+<hr style="width: 65%;" />
+<h2><a name="CHAPTER_IX" id="CHAPTER_IX"></a>CHAPTER IX.</h2>
+
+<p class='center'><b>THE CRIMINAL INTENT.</b><span class='pagenum'><a name="Page_178" id="Page_178">[Pg 178]</a></span></p>
+
+
+<p>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
+<i>jurors</i> 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.</p>
+
+<p>This principle is clear, because the question for a jury to determine
+is, whether the accused be <i>guilty</i>, or <i>not guilty</i>. <i>Guilt</i> is a
+personal quality of the actor,&mdash;not <i>necessarily</i> 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 <i>guilty</i>.</p>
+
+<p>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 <i>moral justice</i> in
+punishing for such an act, because, there having been no <i>criminal
+motive</i>, there can have been no other motive which justice can take
+cognizance of, as demanding or justifying punishment. There can be no
+<i>political necessity</i> 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 <i>civil</i> 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<span class='pagenum'><a name="Page_179" id="Page_179">[Pg 179]</a></span> 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.</p>
+
+<p>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,&mdash;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 <i>clearly</i> 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 <i>all</i>, or substantially <i>all</i>, the people are
+agreed that it may occupy.</p>
+
+<p>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, "<i>guilty</i>" or "<i>not guilty</i>."
+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 "<i>guilty</i>,"
+unless he have done an act which he knew to be criminal.</p>
+
+<p>This necessity for a criminal intent&mdash;in other words, for <i>guilt</i>&mdash;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
+"<i>make offences by statute</i>," out of acts that are not criminal by
+nature, must necessarily be ineffectual, unless a jury will declare a
+man "<i>guilty</i>" for an act that is really innocent.</p>
+
+<p>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<span class='pagenum'><a name="Page_180" id="Page_180">[Pg 180]</a></span> of which therefore indicates no criminal
+intent, is very apparent.</p>
+
+<p>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 "<i>wickedly</i>," "<i>feloniously</i>,"
+"<i>with malice aforethought</i>," 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 "<i>contrary to the form
+of the statute in such case made and provided</i>." 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.</p>
+
+<p>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
+<i>maxims</i>, upon which they act in criminal trials, viz., that "<i>ignorance
+of the law excuses no one</i>." 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 <i>learned</i> in the law, and who yet could not hold their
+offices for a day, but for the<span class='pagenum'><a name="Page_181" id="Page_181">[Pg 181]</a></span> 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
+<i>unlearned</i> man, who comes before them charged with crime.)</p>
+
+<p>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 <i>have</i> 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
+<i>law</i>,&mdash;that it does <i>not</i> infringe the rights and liberties of the
+people,&mdash;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, <i>knew it to be so</i>, 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.</p>
+
+<p>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:</p>
+
+<div class="blockquot"><p>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.'&mdash;<i>Selden</i>,
+(as quoted in the 2d edition of <i>Starkie on Slander</i>, Prelim. Disc.,
+p. 140, note.)"&mdash;<i>Law Magazine</i>, (<i>London</i>,) vol. 27, p. 97.</p></div><p><span class='pagenum'><a name="Page_182" id="Page_182">[Pg 182]</a></span></p>
+
+<p>This reason impliedly admits that ignorance of the law is,
+<i>intrinsically</i>, 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&mdash;that is, the innocent and the guilty&mdash;without
+discrimination.</p>
+
+<p>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
+<i>compotes mentis</i>, "of sound mind and memory," &amp;c. &amp;c. And there is
+obviously no more difficulty in a jury's determining whether an accused
+person knew the law in a criminal case, than there is in determining any
+of these other questions that are continually determined in regard to a
+man's mental capacity. For the question to be settled by the jury is not
+whether the accused person knew the particular <i>penalty</i> attached to his
+act, (for at common law no one knew what penalty a <i>jury</i> would attach
+to an offence,) but whether he knew that his act was <i>intrinsically
+criminal</i>. If it were <i>intrinsically criminal</i>, 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.)</p>
+
+<p>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 <i>intrinsically</i> criminal. If their own judgments told them the
+act was <i>intrinsically</i> and <i>clearly</i> criminal, they would naturally and
+reasonably infer that the accused also understood that it was
+intrinsically criminal, (and consequently illegal,) unless it should
+appear that he was either below themselves in the scale of intellect, or
+had<span class='pagenum'><a name="Page_183" id="Page_183">[Pg 183]</a></span> 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.</p>
+
+<p>The second reason that has been offered for the doctrine that ignorance
+of the law excuses no one, is this:</p>
+
+<div class="blockquot"><p>"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, <i>is bound to know the law</i>, and presumed to do so.
+<i>Ignorantia eorum, qu&aelig; quis scire tenetur non excusat</i>." (Ignorance
+of those things which every one is bound to know, does not
+excuse.)&mdash;<i>1 Hale's Pleas of the Crown</i>, 42. <i>Doctor and Student,
+Dialog. 2</i>, ch. 46. <i>Law Magazine</i>, (<i>London</i>,) vol. 27, p. 97.</p></div>
+
+<p>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 "<i>is bound to know the law</i>." 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, <i>in another form</i>, 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, <i>because</i> every
+one is bound to know the law," is only equivalent to saying that
+"ignorance of the law excuses no one, <i>because</i> ignorance of the law
+excuses no one." It is merely re&auml;sserting the doctrine, without giving
+any reason at all.</p>
+
+<p>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.</p>
+
+<p>The idea suggested, that "the age of discretion" determines the guilt of
+a person,&mdash;that there is a particular age, prior to which <i>all</i> persons
+alike should be held incapable of knowing <i>any</i> crime, and subsequent to
+which <i>all</i> persons alike should be held capable of knowing <i>all</i>
+crimes,&mdash;is another of this most ridiculous nest of ideas. All mankind
+acquire their knowledge of crimes, as they do of other things,
+<i>gradually</i>. Some they learn at an early age; others not till a later
+one. One individ<span class='pagenum'><a name="Page_184" id="Page_184">[Pg 184]</a></span>ual 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.<a name="FNanchor_103_103" id="FNanchor_103_103"></a><a href="#Footnote_103_103" class="fnanchor">[103]</a></p>
+
+<p>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 <i>ordinary</i> 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,&mdash;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 con<span class='pagenum'><a name="Page_185" id="Page_185">[Pg 185]</a></span>tracts, <i>implies and includes</i> a
+capacity to form a reasonable judgment as to the law applicable to them.
+But in <i>criminal</i> 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 <i>only as
+well as he reasonably may</i>. 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. <i>And this care it does require of him.</i> Any
+ignorance of the law, therefore, that is unnecessary, or that arises
+from indifference or disregard of one's duty, is no excuse. An accused
+person, therefore, may be rightfully held responsible for such a
+knowledge of the law as is common to men in general, having no greater
+natural capacities than himself, and no greater opportunities for
+learning the law. And he can rightfully be held to no greater knowledge
+of the law than this. To hold him responsible for a greater knowledge of
+the law than is common to mankind, when other things are equal, would be
+gross injustice and cruelty. The mass of mankind can give but little of
+their attention to acquiring a knowledge of the law. Their other duties
+in life forbid it. Of course, they cannot investigate abstruse or
+difficult questions. All that can rightfully be required of each of
+them, then, is that he exercise such a candid and conscientious judgment
+as it is common for mankind generally to exercise in such matters. If he
+have done this, it would be monstrous to punish him criminally for his
+errors; errors not of conscience, but only of judgment. It would also be
+contrary to the first principles of a free government (that is, a
+government formed by voluntary association) to punish men in such cases,
+because it would be absurd to suppose that any man would voluntarily
+assist to establish or support a govern<span class='pagenum'><a name="Page_186" id="Page_186">[Pg 186]</a></span>ment that would punish himself
+for acts which he himself did not know to be crimes. But a man may
+reasonably unite with his fellow-men to maintain a government to punish
+those acts which he himself considers criminal, and may reasonably
+acquiesce in his own liability to be punished for such acts. As those
+are the only grounds on which any one can be supposed to render any
+voluntary support to a government, it follows that a government formed
+by voluntary association, and of course having no powers except such as
+<i>all</i> 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.</p>
+
+<p>The safety of society, which is the only object of the criminal law,
+requires only that those acts <i>which are understood by mankind at large
+to be intrinsically criminal</i>, should be punished as crimes. The
+remaining few (if there are any) may safely be left to go unpunished.
+Nor does the safety of society require that any individuals, other than
+those who have sufficient mental capacity to understand that their acts
+are criminal, should be criminally punished. All others may safely be
+left to their liability, under the <i>civil</i> law, to compensate for their
+unintentional wrongs.</p>
+
+<p>The only real object of this absurd and atrocious doctrine, that
+"ignorance of the law (that is, of crime) excuses no one," and that
+"every one is bound to know the <i>criminal</i> 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.</p>
+
+<p>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<span class='pagenum'><a name="Page_187" id="Page_187">[Pg 187]</a></span>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.<a name="FNanchor_104_104" id="FNanchor_104_104"></a><a href="#Footnote_104_104" class="fnanchor">[104]</a><span class='pagenum'><a name="Page_188" id="Page_188">[Pg 188]</a></span></p>
+
+<div class='footnotes'><h3>Footnotes</h3>
+<div class="footnote"><p><a name="Footnote_103_103" id="Footnote_103_103"></a><a href="#FNanchor_103_103"><span class="label">[103]</span></a> 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?&mdash;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 <i>legal</i>
+competency to make <i>binding</i> contracts, in any and every case whatever,
+depends wholly upon his <i>mental</i> capacity to make <i>reasonable</i> 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 <i>evidence of capacity</i>.
+</p><p>
+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.
+</p><p>
+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.</p></div>
+
+<div class="footnote"><p><a name="Footnote_104_104" id="Footnote_104_104"></a><a href="#FNanchor_104_104"><span class="label">[104]</span></a> 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.
+</p><p>
+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 <i>justice</i> 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 <i>malum in se</i>,&mdash;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.
+</p><p>
+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.
+</p><p>
+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, <i>for themselves</i>, what the law <i>is</i> that is
+charged to have been violated; nor to see or know, <i>for themselves</i>,
+that the act charged was in violation of any law whatever;&mdash;but that it
+is sufficient that they be simply <i>told by the judge</i> 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.
+</p><p>
+This doctrine is adopted by many among the most eminent judges, and the
+reasons for it are thus given by Lord Mansfield:
+</p>
+<div class="blockquot"><p>"They (the jury) do not know, and are not presumed to know, the law.
+They are not sworn to decide the law;<a name="FNanchor_105_105" id="FNanchor_105_105"></a><a href="#Footnote_105_105" class="fnanchor">[105]</a> 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."&mdash;<i>3 Term Rep.</i>, 428, note.</p></div>
+<p>
+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, <i>as they
+understand them</i>, 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?
+</p><p>
+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
+<i>they</i> (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 <i>true</i> trial by jury is, that no accused
+person shall be held responsible for any other or greater knowledge of
+the law than is common to his political equals, who will generally be
+men of nearly similar condition in life. But the doctrine of Mansfield
+is, that the body of the people, from whom jurors are taken, are
+responsible to a law, <i>which it is agreed they cannot understand</i>. What
+is this but despotism?&mdash;and not merely despotism, but insult and
+oppression of the intensest kind?
+</p><p>
+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.</p></div>
+
+<div class="footnote"><p><a name="Footnote_105_105" id="Footnote_105_105"></a><a href="#FNanchor_105_105"><span class="label">[105]</span></a> 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 <i>juror's oath</i>, page <a href="#Page_86">86</a>.</p></div></div>
+
+
+
+<hr style="width: 65%;" />
+<h2><a name="CHAPTER_X" id="CHAPTER_X"></a>CHAPTER X.</h2>
+
+<p class='center'><b>MORAL CONSIDERATIONS FOR JURORS.</b><span class='pagenum'><a name="Page_189" id="Page_189">[Pg 189]</a></span></p>
+
+
+<p>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.</p>
+
+<p>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 "<i>guilty</i>," 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.</p>
+
+<p>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,&mdash;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 <i>limit</i> the sentence, free of all
+dictation from any quarter,&mdash;they have no <i>moral</i> 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<span class='pagenum'><a name="Page_190" id="Page_190">[Pg 190]</a></span> 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.</p>
+
+<p>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 <i>guilty</i> 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.</p>
+
+<p>It is absurd, also, to say that jurors have no moral responsibility for
+a punishment inflicted upon a man <i>against law</i>, 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.</p>
+
+<p>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 <i>they</i> (the jurors) think ought to
+have been admitted in his defence.</p>
+
+<p>It is absurd to say that jurors have no moral responsibility for
+rendering a verdict of "<i>guilty</i>" 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."</p>
+
+<p>It is absurd, also, to say that jurors have no moral responsibility for
+any cruel or unreasonable <i>sentence</i> that may be inflicted even upon a
+<i>guilty</i> 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.</p>
+
+<p>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.<span class='pagenum'><a name="Page_191" id="Page_191">[Pg 191]</a></span></p>
+
+<p>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.</p>
+
+<p>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.</p>
+
+<p>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, <i>as they
+shall be given him</i>." Nor can he rightfully take an oath even to try a
+case "<i>according to the evidence</i>," 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 <i>according to his
+conscience</i>." Of course, the form may admit of variation, but this
+should be the substance. Such, we have seen, were the ancient common law
+oaths.</p>
+
+
+
+<hr style="width: 65%;" />
+<h2><a name="CHAPTER_XI" id="CHAPTER_XI"></a>CHAPTER XI.</h2>
+
+<p class='center'><b>AUTHORITY OF MAGNA CARTA.</b><span class='pagenum'><a name="Page_192" id="Page_192">[Pg 192]</a></span></p>
+
+
+<p>Probably no political compact between king and people was ever entered
+into in a manner to settle more authoritatively the fundamental law of a
+nation, than was Magna Carta. Probably no people were ever more united
+and resolute in demanding from their king a definite and unambiguous
+acknowledgment of their rights and liberties, than were the English at
+that time. Probably no king was ever more completely stripped of all
+power to maintain his throne, and at the same time resist the demands of
+his people, than was John on the 15th day of June, 1215. Probably no
+king ever consented, more deliberately or explicitly, to hold his throne
+subject to specific and enumerated limitations upon his power, than did
+John when he put his seal to the Great Charter of the Liberties of
+England. And if any political compact between king and people was ever
+valid to settle the liberties of the people, or to limit the power of
+the crown, that compact is now to be found in Magna Carta. If,
+therefore, the constitutional authority of Magna Carta had rested solely
+upon the compact of John with his people, that authority would have been
+entitled to stand forever as the supreme law of the land, unless revoked
+by the will of the people themselves.</p>
+
+<p>But the authority of Magna Carta does not rest alone upon the compact
+with <i>John</i>. 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.<span class='pagenum'><a name="Page_193" id="Page_193">[Pg 193]</a></span></p>
+
+<p>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 "<i>forty shilling
+freeholders</i>," (a class whom Mackintosh designates as "<i>a few
+freeholders then accounted wealthy</i>,"<a name="FNanchor_106_106" id="FNanchor_106_106"></a><a href="#Footnote_106_106" class="fnanchor">[106]</a>) 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.<a name="FNanchor_107_107" id="FNanchor_107_107"></a><a href="#Footnote_107_107" class="fnanchor">[107]</a></p>
+
+<p>The terms and the formalities of some of these "confirmations" make them
+worthy of insertion at length.</p>
+
+<p>Hume thus describes one which took place in the 38th year of Henry III.
+(1253):</p>
+
+<div class="blockquot"><p>"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, <i>May the soul of
+every one who incurs this sentence so stink and corrupt in hell!</i> 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.'"&mdash;<i>Hume</i>, ch. 12. See also <span class='pagenum'><a name="Page_194" id="Page_194">[Pg 194]</a></span><i>Blackstone's Introd. to the
+Charters. Black. Law Tracts</i>, Oxford ed., p. 332. <i>Mackintosh's Hist.
+of Eng.</i>, ch. 3. <i>Lardner's Cab. Cyc.</i>, vol. 45, p. 233-4.</p></div>
+
+<p>The following is the form of "the sentence of excommunication" referred
+to by Hume:</p>
+
+<div class="blockquot"><p>"<i>The Sentence of Curse, Given by the Bishops, against the Breakers
+of the Charters.</i></p>
+
+<p>"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, <i>in
+the presence, and by the assent, of the Lord Henry, by the Grace of
+God King of England</i>, and the Lords Richard, Earl of Cornwall, his
+brother, Roger (Bigot) Earl of Norfolk and Suffolk, marshal of
+England, Humphrey, Earl of Hereford, Henry, Earl of Oxford, John,
+Earl of Warwick, and other estates of the Realm of England: We,
+Boniface, by the mercy of God Archbishop of Canterbury, Primate of
+all England, F. of London, H. of Ely, S. of Worcester, E. of Lincoln,
+W. of Norwich, P. of Hereford, W. of Salisbury, W. of Durham, R. of
+Exeter, M. of Carlisle, W. of Bath, E. of Rochester, T. of Saint
+David's, Bishops, apparelled in Pontificals, with tapers burning,
+against the breakers of the Church's Liberties, and of the Liberties
+or free customs of the Realm of England, and especially of those
+which are contained in the Charter of the Common Liberties of the
+Realm, and the Charter of the Forest, have solemnly denounced the
+sentence of Excommunication in this form. By the authority of
+Almighty God, the Father, the Son, and the Holy Ghost, and of the
+glorious Mother of God, and perpetual Virgin Mary, of the blessed
+Apostles Peter and Paul, and of all apostles, of the blessed Thomas,
+Archbishop and Martyr, and of all martyrs, of blessed Edward of
+England, and of all Confessors and virgins, and of all the saints of
+heaven: We excommunicate, accurse, and from the thresholds
+(liminibus) of our Holy Mother the Church, We sequester, all those
+that hereafter willingly and maliciously deprive or spoil the Church
+of her right: And all those that by any craft or wiliness do violate,
+break, diminish, or change the Church's Liberties, or the ancient
+approved customs of the Realm, and especially the Liberties and free
+Customs contained in the Charters of the Common Liberties, and of the
+Forest, conceded by our Lord the King, to Archbishops, Bishops, and
+other Prelates of England; and likewise to the Earls, Barons,
+Knights, and other Freeholders of the Realm: And all that secretly,
+or openly, by deed, word, or counsel, <i>do make statutes, or observe
+them being made</i>, and that bring in Customs, or keep them when they
+be brought in, against the said <span class='pagenum'><a name="Page_195" id="Page_195">[Pg 195]</a></span>Liberties, or any of them, the
+Writers and Counsellors of said statutes, and the Executors of them,
+and all those that shall presume to judge according to them. All and
+every which persons before mentioned, that wittingly shall commit
+anything of the premises, let them well know that they incur the
+aforesaid sentence, <i>ipso facto</i>, (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."&mdash;<i>Statutes
+of the Realm</i>, vol. 1, p. 6. <i>Ruffhead's Statutes</i>, vol. 1, p. 20.</p></div>
+
+<p>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 "<i>Confirmatio Cartarum</i>," (Confirmation of
+the Charters.)</p>
+
+<div class="blockquot"><p><i>Ch. 1.</i> "Edward, by the Grace of God, King of England, Lord of
+Ireland, and Duke of Guyan, To all those that these presents shall
+hear or see, Greeting. Know ye, that We, to the honor of God, and of
+Holy Church, and to the profit of our Realm, have granted, for us and
+our heirs, that the Charter of Liberties, and the Charter of the
+Forest, which were made by common assent of all the Realm, in the
+time of King Henry our Father, shall be kept in every point without
+breach. And we will that the same Charters shall be sent under our
+seal, as well to our justices of the Forest, as to others, and to all
+Sheriffs of shires, and to all our other officers, and to all our
+cities throughout the Realm, together with our writs, in the which it
+shall be contained, that they cause the aforesaid Charters to be
+published, and to declare to the people that We have confirmed them
+at all points; and to our Justices, Sheriffs, Mayors, and other
+ministers, which under us have the Laws of our Land to guide, that
+they allow the same Charters, in all their points, in pleas before
+them, and in judgment; that is, to wit, the Great Charter as the
+Common Law, and the Charter of the Forest for the wealth of our
+Realm.</p>
+
+<p><i>Ch. 2.</i> "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.<span class='pagenum'><a name="Page_196" id="Page_196">[Pg 196]</a></span></p>
+
+<p><i>Ch. 3.</i> "And we will, that the same Charters shall be sent, under
+our seal, to Cathedral Churches throughout our Realm, there to
+remain, and shall be read before the people two times in the year.</p>
+
+<p><i>Ch. 4.</i> "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."&mdash;<i>St. 25 Edward I.</i>, (1297.) <i>Statutes of the
+Realm</i>, vol. 1, p. 123.</p></div>
+
+<p>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:</p>
+
+<div class="blockquot"><p>"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."&mdash;<i>28 Edward I.</i>, ch. 1, (1300.)</p>
+
+<p>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.&mdash;<i>3 Lingard</i>, 50, note, Philad. ed.</p></div>
+
+<p>Coke says Magna Carta was confirmed thirty-two times.&mdash;Preface<i> to</i> 2
+<i>Inst</i>., p. 6.</p>
+
+<div class="blockquot"><p>Lingard calls these "thirty-five successive ratifications" of the
+charter, "a sufficient proof how much its provisions were <span class='pagenum'><a name="Page_197" id="Page_197">[Pg 197]</a></span>abhorred
+by the sovereign, and how highly they were prized by the nation."&mdash;<i>3
+Lingard</i>, 50.</p></div>
+
+<div class="blockquot"><p>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."&mdash;<i>Mackintosh's Hist. of Eng.</i> ch. 3. <i>45 Lardner's
+Cab. Cyc.</i>, 221.</p></div>
+
+<p>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,<a name="FNanchor_108_108" id="FNanchor_108_108"></a><a href="#Footnote_108_108" class="fnanchor">[108]</a> says:</p>
+
+<div class="blockquot"><p>"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 <i>Charta de Foresta</i>, but in respect of the great
+importance and weightiness of the matter, as hereafter shall appear;
+and likewise for the same cause <i>Charta de Foresta</i>; and both of them
+are called <i>Magn&aelig; Chart&aelig; Libertatum Angli&aelig;</i>, (The Great Charters of
+the Liberties of England.) ...</p>
+
+<p>"And it is also called <i>Charta Libertatum regni</i>, (Charter of the
+Liberties of the kingdom;) and upon great reason it is so called of
+the effect, <i>quia liberos facit</i>, (because it makes men free.)
+Sometime for the same cause (it is called) <i>communis libertas</i>,
+(common liberty,) and <i>le chartre des franchises</i>, (the charter of
+franchises.) ...</p>
+
+<p>"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....</p>
+
+<p>"Also, by the said act of 25 Edward I., (called <i>Confirmatio
+Chartarum</i>,) it is adjudged in parliament that the Great Charter and
+the Charter of the Forest shall be taken as the common law....</p>
+
+<p>"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.</p>
+
+<p>"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, <span class='pagenum'><a name="Page_198" id="Page_198">[Pg 198]</a></span>taking their foundation of Magna
+Charta and Charta de Foresta.</p>
+
+<p>"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.</p>
+
+<p>"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.</p>
+
+<p>"And albeit judgments in the king's courts are of high regard in law,
+and <i>judicia</i> (judgments) are accounted as <i>jurisdicta</i>, (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, &amp;c., it shall be undone, and holden for naught.</p>
+
+<p>"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.</p>
+
+<p>"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.</p>
+
+<p>"<i>Magna fuit quondam magn&aelig; reverentia chart&aelig;.</i>" (Great was formerly
+the reverence for Magna Carta.)&mdash;<i>Coke's Proem to 2 Inst.</i>, p. 1 to
+7.</p></div>
+
+<p>Coke also says, "All pretence of prerogative against Magna Charta is
+taken away."&mdash;<i>2 Inst.</i>, 36.</p>
+
+<p>He also says, "That after this parliament (<i>52 Henry</i> III., in 1267)
+neither Magna Carta nor Carta de Foresta was ever attempted to be
+impugned or questioned."&mdash;<i>2 Inst.</i>, 102.<a name="FNanchor_109_109" id="FNanchor_109_109"></a><a href="#Footnote_109_109" class="fnanchor">[109]</a><span class='pagenum'><a name="Page_199" id="Page_199">[Pg 199]</a></span></p>
+
+<p>To give all the evidence of the authority of Magna Carta, it would be
+necessary to give the constitutional history of England since the year
+1215. This history would show that Magna Carta, although continually
+violated and evaded, was still acknowl<span class='pagenum'><a name="Page_200" id="Page_200">[Pg 200]</a></span>edged as law by the government,
+and was held up by the people as the great standard and proof of their
+rights and liber<span class='pagenum'><a name="Page_201" id="Page_201">[Pg 201]</a></span>ties. It would show also that the judicial tribunals,
+<i>whenever it suited their purposes to do so</i>, 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, <i>precedent</i>, 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.</p>
+
+<p>I take it for granted, therefore, that if the authority of Magna Carta
+had rested simply upon its character as a <i>compact</i> 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
+<i>constitutional</i> possibility of his escaping from its restraints, unless
+the people themselves should freely discharge him from them.</p>
+
+<p>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,"&mdash;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 <i>written</i> 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 ac<span class='pagenum'><a name="Page_202" id="Page_202">[Pg 202]</a></span>knowledgment of the Law of the Land, was to
+put an end to all disputes of this kind, and to put it out of the power
+of the king to plead any misunderstanding of the constitutional law of
+the kingdom. And the charter, no doubt, accomplished very much in this
+way. After Magna Carta, it required much more audacity, cunning, or
+strength, on the part of the king, than it had before, to invade the
+people's liberties with impunity. Still, Magna Carta, like all other
+written constitutions, proved inadequate to the full accomplishment of
+its purpose; for when did a parchment ever have power adequately to
+restrain a 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.</p>
+
+<p>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.</p>
+
+<div class="blockquot"><p>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."&mdash;<i>Crabbe's Hist. of the Eng. Law</i>, p. 127.</p></div>
+
+<div class="blockquot"><p>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."&mdash;<i>Blackstone's Introd. to the Charters.</i> See
+<i>Blackstone's Law Tracts</i>, Oxford ed., p. 289.</p></div>
+
+<p><span class='pagenum'><a name="Page_203" id="Page_203">[Pg 203]</a></span></p><div class="blockquot"><p>Coke says, "The common law is the most general and ancient law of
+the realm.... The common law appeareth in the statute of <i>Magna
+Carta</i>, 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."&mdash;<i>1 Inst.</i>, 115 b.</p></div>
+
+<div class="blockquot"><p>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, <i>to the
+observation and keeping whereof the king was bound and
+sworn</i>."&mdash;<i>Preface to 2 Inst.</i>, p. 3 and 5.</p></div>
+
+<div class="blockquot"><p>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."&mdash;<i>Hume</i>, ch. 11.</p></div>
+
+<p>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.&mdash;<i>25 Edward</i> I., ch. 1, (1297.)</p>
+
+<p>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,&mdash;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.<span class='pagenum'><a name="Page_204" id="Page_204">[Pg 204]</a></span></p>
+
+<p>Hume, speaking of the Great Charter and the Charter of the Forest, as
+they were confirmed by Henry III., in 1217, says:</p>
+
+<div class="blockquot"><p>"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."&mdash;<i>Hume</i>,
+ch. 12.</p></div>
+
+<div class="blockquot"><p>Mackintosh says, "It was understood by the simplest of the unlettered
+age for whom it was intended. It was remembered by them.... For
+almost five centuries it was appealed to as the decisive authority on
+behalf of the people.... To have produced it, to have preserved it,
+to have matured it, constitute the immortal claim of England on the
+esteem of mankind. Her Bacons and Shakspeares, her Miltons and
+Newtons, with all the truth which they have revealed, and all the
+generous virtues which they have inspired, are of inferior value when
+compared with the subjection of men and their rulers to the
+principles of justice; if, indeed, it be not more true that these
+mighty spirits could not have been formed except under equal laws,
+nor roused to full activity without the influence of that spirit
+which the Great Charter breathed over their
+forefathers."&mdash;<i>Mackintosh's Hist. of Eng.</i>, ch. 3.<a name="FNanchor_110_110" id="FNanchor_110_110"></a><a href="#Footnote_110_110" class="fnanchor">[110]</a></p></div>
+
+<p>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:</p>
+
+<div class="blockquot"><p>"The trial by jury, or the country, <i>per patriam</i>, 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; <i>nullus liber homo
+capiatur, vel imprisonetur, aut exuletur, aut aliquo modo destruatur,
+nisi per legale judicium parium suorum, vel per legem terrae....</i></p>
+
+<p>The liberties of England cannot but subsist so long as this palladium
+remains sacred and inviolate, not only from all <span class='pagenum'><a name="Page_205" id="Page_205">[Pg 205]</a></span>open attacks, which
+none will be so hardy as to make, but also from all secret
+machinations which may sap and undermine it."<a name="FNanchor_111_111" id="FNanchor_111_111"></a><a href="#Footnote_111_111" class="fnanchor">[111]</a></p>
+
+<p>"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."<a name="FNanchor_112_112" id="FNanchor_112_112"></a><a href="#Footnote_112_112" class="fnanchor">[112]</a></p>
+
+<p>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."<a name="FNanchor_113_113" id="FNanchor_113_113"></a><a href="#Footnote_113_113" class="fnanchor">[113]</a></p></div>
+
+<p>An old book, called "English Liberties," says:</p>
+
+<div class="blockquot"><p>"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."<a name="FNanchor_114_114" id="FNanchor_114_114"></a><a href="#Footnote_114_114" class="fnanchor">[114]</a></p></div>
+
+<div class='footnotes'><h3>Footnotes</h3>
+<div class="footnote"><p><a name="Footnote_106_106" id="Footnote_106_106"></a><a href="#FNanchor_106_106"><span class="label">[106]</span></a> <i>Mackintosh's Hist. of Eng.</i>, ch. 3. <i>45 Lardner's Cab.
+Cyc.</i>, 354.</p></div>
+
+<div class="footnote"><p><a name="Footnote_107_107" id="Footnote_107_107"></a><a href="#FNanchor_107_107"><span class="label">[107]</span></a> "<i>Forty shilling freeholders</i>" 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 <i>8 Henry</i> 6, ch. 7,
+(1429,) these freeholders only were allowed to vote for members of
+Parliament from the <i>counties</i>.</p></div>
+
+<div class="footnote"><p><a name="Footnote_108_108" id="Footnote_108_108"></a><a href="#FNanchor_108_108"><span class="label">[108]</span></a> He probably speaks in its favor only to blind the eyes of
+the people to the frauds he has attempted upon its true meaning.</p></div>
+
+<div class="footnote"><p><a name="Footnote_109_109" id="Footnote_109_109"></a><a href="#FNanchor_109_109"><span class="label">[109]</span></a> 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.
+</p><p>
+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.
+</p><p>
+The object of Coke, in this pretence, was to furnish some color for the
+palpable falsehood that the legislative authority, which parliament was
+trying to assume in his own day, and which it finally succeeded in
+obtaining, had a precedent in the ancient constitution of the kingdom.
+</p><p>
+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 <i>petitions</i>
+of their subjects, therefore those <i>petitioners</i> were a part of the
+legislative power of the kingdom.
+</p><p>
+One great objection to this argument of Coke, for the legislative
+authority of the ancient parliaments, is that a very large&mdash;probably
+much the larger&mdash;number of legislative acts were done <i>without</i> 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.
+</p><p>
+The kings were always in the habit of consulting their parliaments, more
+or less, in regard to matters of legislation,&mdash;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.
+</p><p>
+The general duties of the ancient parliaments were not legislative, but
+judicial, as will be shown more fully hereafter. The <i>people</i> 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 <i>petitioners</i>,
+except in the matter of taxation, when their <i>consent</i> 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.
+</p><p>
+The <i>influence</i> 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, <i>as at present exercised</i>, 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, <i>not of the people, but of the wealth,
+of the nation</i>, that they compelled the king to discard the oath fixed
+by the constitution of the kingdom; (which oath has been already given
+in a former chapter,(page <a href="#Page_101">101</a>) and was, in substance, to preserve and
+execute the Common Law, the Law of the Land,&mdash;or, in the words of the
+oath, "<i>the just laws and customs which the common people had chosen</i>;")
+and to swear that he would "govern the people of this kingdom of
+England, and the dominions thereto belonging, <i>according to the statutes
+in parliament agreed on</i>, and the laws and customs of the same."<a name="FNanchor_115_115" id="FNanchor_115_115"></a><a href="#Footnote_115_115" class="fnanchor">[115]</a>
+</p><p>
+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.
+</p><p>
+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
+<i>juries</i> to decide upon the obligation of laws, and as he held that the
+legislative power was "<i>so transcendent and absolute as (that) it cannot
+be confined, either for causes or persons, within any bounds</i>,"<a name="FNanchor_116_116" id="FNanchor_116_116"></a><a href="#Footnote_116_116" class="fnanchor">[116]</a> 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.
+</p><p>
+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 <i>abolished</i> by "act of
+parliament." Coke himself admits that it could not be revoked or
+rescinded by the <i>king</i>; for he says, "All pretence of prerogative
+against Magna Carta is taken away." (<i>2 Inst.</i>, 36.)
+</p><p>
+He knew perfectly well, and the whole English nation knew, that the
+<i>king</i> could not lawfully infringe Magna Carta. Magna Carta, therefore,
+made it impossible that absolute power could ever be practically
+established in England, <i>in the hands of the king</i>. Hence, as Coke was
+an advocate for absolute power,&mdash;that is, for a legislative power "so
+transcendent and absolute as (that) it cannot be confined, either for
+causes or persons, within any bounds,"&mdash;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, <i>through their juries</i>, 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.
+</p><p>
+But the truth was that, as by the English constitution parliament had no
+authority at all for <i>general</i> legislation, it could no more confirm,
+than it could abolish, Magna Carta.
+</p><p>
+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.</p></div>
+
+<div class="footnote"><p><a name="Footnote_110_110" id="Footnote_110_110"></a><a href="#FNanchor_110_110"><span class="label">[110]</span></a> Under the head of "<i>John.</i>"</p></div>
+
+<div class="footnote"><p><a name="Footnote_111_111" id="Footnote_111_111"></a><a href="#FNanchor_111_111"><span class="label">[111]</span></a> <i>4 Blackstone</i>, 349-50.</p></div>
+
+<div class="footnote"><p><a name="Footnote_112_112" id="Footnote_112_112"></a><a href="#FNanchor_112_112"><span class="label">[112]</span></a> <i>3 Blackstone</i>, 379.</p></div>
+
+<div class="footnote"><p><a name="Footnote_113_113" id="Footnote_113_113"></a><a href="#FNanchor_113_113"><span class="label">[113]</span></a> <i>Hume</i>, ch. 2.</p></div>
+
+<div class="footnote"><p><a name="Footnote_114_114" id="Footnote_114_114"></a><a href="#FNanchor_114_114"><span class="label">[114]</span></a> Page 203, 5th edition, 1721.</p></div>
+
+<div class="footnote"><p><a name="Footnote_115_115" id="Footnote_115_115"></a><a href="#FNanchor_115_115"><span class="label">[115]</span></a> St. 1 <i>William and Mary</i>, ch. 6, (1688.)</p></div>
+
+<div class="footnote"><p><a name="Footnote_116_116" id="Footnote_116_116"></a><a href="#FNanchor_116_116"><span class="label">[116]</span></a> 4 <i>Inst.</i>, 36.</p></div></div>
+
+
+
+<hr style="width: 65%;" />
+<h2><a name="CHAPTER_XII" id="CHAPTER_XII"></a>CHAPTER XII.</h2>
+
+<p class='center'><b>LIMITATIONS IMPOSED UPON THE MAJORITY BY THE TRIAL BY JURY.</b><span class='pagenum'><a name="Page_206" id="Page_206">[Pg 206]</a></span></p>
+
+
+<p>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.</p>
+
+<p>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.</p>
+
+<p>It is this power of vetoing all partial and oppressive legislation, and
+of restricting the government to the maintenance of such laws as the
+<i>whole</i>, or substantially the whole, people <i>are agreed in</i>, that makes
+the trial by jury "the palladium of liberty." Without this power it
+would never have deserved that name.</p>
+
+<p>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<span class='pagenum'><a name="Page_207" id="Page_207">[Pg 207]</a></span> as minorities, if they think it will
+be for their interest to do so.</p>
+
+<p>There is no particle of truth in the notion that the majority have a
+<i>right</i> 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.</p>
+
+<p>When <i>two</i> men meet <i>one</i> 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,&mdash;any, all, or none, as the case may be,&mdash;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<span class='pagenum'><a name="Page_208" id="Page_208">[Pg 208]</a></span> a paramount law, the
+moment he came into the presence of superior numbers.</p>
+
+<p>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 <i>inferior</i> in number to the
+aggressors, become but the exercise of rightful authority. And
+consistency with their own principles requires that all governments,
+founded on the will of the majority, should recognize this plea as a
+sufficient justification for all crimes whatsoever.</p>
+
+<p>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 <i>probability</i> 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, <i>or on any ground whatever short of certainty beyond a
+reasonable doubt</i>. 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.</p>
+
+<p>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,&mdash;passions that are nearly certain to pervert
+their<span class='pagenum'><a name="Page_209" id="Page_209">[Pg 209]</a></span> judgments, and very likely to corrupt their motives,&mdash;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&mdash;(dice
+loaded with all the hopes, fears, interests, and passions which rage in
+the breasts of ambitious and desperate men,)&mdash;and all the people, from
+the interests they have depending, become enlisted, excited, agitated,
+and generally corrupted, by the hazards of the game.</p>
+
+<p>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, <i>beyond a reasonable
+doubt</i>, in every individual case, that justice requires it.</p>
+
+<p>To ascertain whether there be such reasonable doubt, it takes twelve men
+<i>by lot</i> from the whole body of mature men. If any of these twelve are
+proved to be under the influence of any <i>special</i> 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.</p>
+
+<p>Such is the caution which the trial by jury both practises<span class='pagenum'><a name="Page_210" id="Page_210">[Pg 210]</a></span> 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.</p>
+
+<p>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 <i>justice, beyond a reasonable doubt</i>,
+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.</p>
+
+<p>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,&mdash;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,&mdash;it should
+simply <i>count</i> the plaintiffs and defendants in each case, (where there
+were more than one of either,) and then give the case to the majority;
+after ample opportunity had been given to the plaintiffs and defendants
+to reason with, flatter, cheat, threaten, and bribe each other, by way
+of inducing them to change sides. Such a process would be just as
+rational in courts of justice, as in halls of legislation; for it is of
+no importance to a man, who has his rights taken from him, whether it be
+done by a legislative enactment, or a judicial decision.</p>
+
+<p>In legislation, the people are all arranged as plaintiffs and defendants
+in their own causes; (those who are in favor of a particular law,
+standing as plaintiffs, and those who are opposed to the same law,
+standing as defendants); and to allow these causes to be decided by
+majorities, is plainly as absurd as it would be to allow judicial
+decisions to be determined by the relative number of plaintiffs and
+defendants.<span class='pagenum'><a name="Page_211" id="Page_211">[Pg 211]</a></span></p>
+
+<p>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.</p>
+
+<p>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,<span class='pagenum'><a name="Page_212" id="Page_212">[Pg 212]</a></span>
+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.</p>
+
+<p>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.</p>
+
+<p>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 <i>agreed purpose</i>, 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.</p>
+
+<p>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 main<span class='pagenum'><a name="Page_213" id="Page_213">[Pg 213]</a></span>tenance of justice among men, it is a
+mystery that any human mind could ever have been visited with an
+insanity wild enough to originate the idea.</p>
+
+<p>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 <i>never</i>
+surrender to the majority the power to dispose of, or, what is
+practically the same thing, to <i>determine</i>, the <i>rights</i> of any
+individual member. The <i>rights</i> of every member are determined by the
+written compact, to which all the members have voluntarily agreed.</p>
+
+<p>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 <i>every member</i> 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
+<i>every member</i> has consented that they may be imposed. All these
+questions, involving the <i>rights</i> of the members as against each other,
+are fixed by the articles of the association,&mdash;that is, by the agreement
+to which <i>every member</i> has personally assented.</p>
+
+<p>What is also specially to be noticed, and what constitutes a<span class='pagenum'><a name="Page_214" id="Page_214">[Pg 214]</a></span> 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 <i>rights</i> of any member,
+the question is determined, not by any number, either majority, or
+minority, of the corporation itself, <i>but by persons out of the
+corporation</i>; 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.</p>
+
+<p>Since, then, all questions as to the <i>rights</i> 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 <i>rights</i>,&mdash;neither his
+right to his life, his liberty, nor his property,&mdash;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,&mdash;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, <i>and sworn to the observance of justice</i>. 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 <i>rights</i> of any member,)
+furnishes no analogy to the practice, adopted by political corporations,
+of disposing of all the <i>rights</i> of their members by the arbitrary will
+of majorities.</p>
+
+<p>But further. The doctrine that the majority have a <i>right</i> to rule,
+proceeds upon the principle that minorities have no <i>rights</i> in the
+government; for certainly the minority cannot be said to have any
+<i>rights</i> 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.</p>
+
+<p>It is indispensable to a "<i>free</i> government," (in the political sense of
+that term,) that the minority, the weaker party, have<span class='pagenum'><a name="Page_215" id="Page_215">[Pg 215]</a></span> a veto upon the
+acts of the majority. Political liberty is liberty for the <i>weaker
+party</i> 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.</p>
+
+<p>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.</p>
+
+<p>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.</p>
+
+<p>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.</p>
+
+<p>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.</p>
+
+<p>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<span class='pagenum'><a name="Page_216" id="Page_216">[Pg 216]</a></span> 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
+<i>they</i> object to enforcing, tends to their oppression, and not to their
+security.</p>
+
+<p>There is still another reason why the weaker party, or the minority,
+should have a veto upon all legislation which they disapprove. <i>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.</i> 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.</p>
+
+<p>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,&mdash;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 <i>all</i> the parties to it
+have individually agreed that it shall have; and especially that it has
+no power to pass any <i>laws</i>, except such as <i>all</i> the parties have
+agreed that it may pass.</p>
+
+<p>This theory supposes that there may be certain laws that will be
+beneficial to <i>all</i>,&mdash;so beneficial that <i>all</i> 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 <i>only</i>, in which <i>all</i> are interested. It
+would be absurd to suppose that all would associate, and consent to be
+taxed, for purposes which were beneficial only to a part; and especially
+for purposes that were injurious to any. A government of the whole,
+therefore, can have no powers except such as <i>all</i> the parties consent
+that it may have. It can do nothing except what <i>all</i> have con<span class='pagenum'><a name="Page_217" id="Page_217">[Pg 217]</a></span>sented
+that it may do. And if any portion of the people,&mdash;no matter how large
+their number, if it be less than the whole,&mdash;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,&mdash;by perverting this government of the whole, to the
+accomplishment of purposes desired only by a part,&mdash;to compel any one to
+contribute to purposes that are either useless or injurious to himself.</p>
+
+<p>Such being the principles on which the government is formed, the
+question arises, how shall this government, when formed, be kept within
+the limits of the contract by which it was established? How shall this
+government, instituted by the whole people, agreed to by the whole
+people, supported by the contributions of the whole people, be confined
+to the accomplishment of those purposes alone, which the whole people
+desire? How shall it be preserved from degenerating into a mere
+government for the benefit of a part only of those who established, and
+who support it? How shall it be prevented from even injuring a part of
+its own members, for the aggrandizement of the rest? Its laws must be,
+(or at least now are,) passed, and most of its other acts performed, by
+mere agents,&mdash;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 <i>all</i> 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<span class='pagenum'><a name="Page_218" id="Page_218">[Pg 218]</a></span> 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,&mdash;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,&mdash;inasmuch as the whole people cannot assemble, or devote the
+time and attention necessary to the investigation of each case,&mdash;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.</p>
+
+<p>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.</p>
+
+<p>But it will, perhaps, be said that if the minority can defeat the will
+of the majority, then the minority <i>rule</i> 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<span class='pagenum'><a name="Page_219" id="Page_219">[Pg 219]</a></span> 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."</p>
+
+<p>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.</p>
+
+<p>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,&mdash;having no other security on which they can rely. Hence their
+consent to the establishment of government, and to the <i>taxation</i>
+required for its support, is <i>presumed</i>, (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.</p>
+
+<p>But, it will be asked, what motive have the majority, when<span class='pagenum'><a name="Page_220" id="Page_220">[Pg 220]</a></span> they have
+all power in their own hands, to submit their will to the veto of the
+minority?</p>
+
+<p>One answer is, that they have the motive of justice. It would be
+<i>unjust</i> to compel the minority to contribute, by taxation, to the
+support of any laws which they did not approve.</p>
+
+<p>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 <i>just</i> government, as have the former.</p>
+
+<p>Another answer is, that if the stronger party use their power
+<i>unjustly</i>, 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,&mdash;or rather
+power that is <i>grossly</i> unjust, and that is known to be so by the
+minority,&mdash;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.</p>
+
+<p>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.</p>
+
+<p>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,<a name="FNanchor_117_117" id="FNanchor_117_117"></a><a href="#Footnote_117_117" class="fnanchor">[117]</a> all restraints
+upon men's natural<span class='pagenum'><a name="Page_221" id="Page_221">[Pg 221]</a></span> rights, the whole catalogue of <i>mala prohibita</i>, 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.</p>
+
+<div class='footnotes'><h3>Footnotes</h3>
+<div class="footnote"><p><a name="Footnote_117_117" id="Footnote_117_117"></a><a href="#FNanchor_117_117"><span class="label">[117]</span></a> Such as restraints upon banking, upon the rates of
+interest, upon traffic with foreigners, &amp;c., &amp;c.</p></div></div>
+
+
+
+<hr style="width: 65%;" />
+<h2><a name="link_11" id="link_11"></a>APPENDIX.</h2>
+
+<p class='center'><b>TAXATION.</b><span class='pagenum'><a name="Page_222" id="Page_222">[Pg 222]</a></span></p>
+
+
+<p>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 <i>assuming</i> 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.</p>
+
+<p>If the trial by jury were re&euml;stablished, the Common Law principle of
+taxation would be re&euml;stablished with it; for it is not to be supposed
+that juries would enforce a tax upon an individual which he had never
+agreed to pay. Taxation without consent is as plainly robbery, when
+enforced against one man, as when enforced against millions; and it is
+not to be imagined that juries could be blind to so self-evident a
+principle. Taking a man's money without his consent, is also as much
+robbery, when it is done by millions of men, acting in concert, and
+calling themselves a government, as when it is done by a single
+individual, acting on his own responsibility, and calling himself a
+highwayman. Neither the numbers engaged in the act, nor the different
+characters they assume as a cover for the act, alter the nature of the
+act itself.</p>
+
+<p>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 <i>sine qua non</i> of political freedom,
+that a man can be taxed only by his personal consent. And the
+establishment of this principle, with <i>trial by jury</i>, 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.<span class='pagenum'><a name="Page_223" id="Page_223">[Pg 223]</a></span>
+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.</p>
+
+<p>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.</p>
+
+<p>The political insurance company, or government, have no more right, in
+nature or reason, to <i>assume</i> 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.</p>
+
+<p>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.<a name="FNanchor_118_118" id="FNanchor_118_118"></a><a href="#Footnote_118_118" class="fnanchor">[118]</a><span class='pagenum'><a name="Page_224" id="Page_224">[Pg 224]</a></span></p>
+
+<p>By what force, fraud, and conspiracy, on the part of kings, nobles, and
+"a few wealthy freeholders," these pillars have been prostrated in
+England, it is designed to show more fully in the next volume, if it
+should be necessary.</p>
+
+<div class='footnotes'><h3>Footnotes</h3>
+<div class="footnote"><p><a name="Footnote_118_118" id="Footnote_118_118"></a><a href="#FNanchor_118_118"><span class="label">[118]</span></a> 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,&mdash;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.
+</p><p>
+But, if either of these principles were broken down, the other would
+fall with it, and for these reasons: 1. If trial by the country were
+broken down, the principle of no taxation without consent would fall
+with it, because the government would then be <i>able</i> to tax the people
+without their consent, inasmuch as the legal tribunals would be mere
+tools of the government, and would enforce such taxation, and punish men
+for resisting such taxation, as the government ordered. 2. On the other
+hand, if the principle of no taxation without consent were broken down,
+trial by the country would fall with it, because the government, if it
+could tax people without their consent, would, of course, take enough of
+their money to enable it to employ all the force necessary for
+sustaining its own tribunals, (in the place of juries,) and carrying
+their decrees into execution.</p></div></div>
+
+
+
+
+
+
+
+
+<pre>
+
+
+
+
+
+End of Project Gutenberg's An Essay on the Trial by Jury, by Lysander Spooner
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diff --git a/32984.txt b/32984.txt
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+++ b/32984.txt
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+Project Gutenberg's An Essay on the Trial by Jury, by Lysander Spooner
+
+This eBook is for the use of anyone anywhere at no cost and with
+almost no restrictions whatsoever.  You may copy it, give it away or
+re-use it under the terms of the Project Gutenberg License included
+with this eBook or online at www.gutenberg.org
+
+
+Title: An Essay on the Trial by Jury
+
+Author: Lysander Spooner
+
+Release Date: June 27, 2010 [EBook #32984]
+
+Language: English
+
+Character set encoding: ASCII
+
+*** START OF THIS PROJECT GUTENBERG EBOOK AN ESSAY ON THE TRIAL BY JURY ***
+
+
+
+
+Produced by Susan Goble, Curtis Weyant, Graeme Mackreth
+and the Online Distributed Proofreading Team at
+https://www.pgdp.net
+
+
+
+
+
+
+
+AN ESSAY
+
+ON THE
+
+TRIAL BY JURY.
+
+
+BY LYSANDER SPOONER.
+
+
+ BOSTON:
+ JOHN P. JEWETT AND COMPANY.
+ CLEVELAND, OHIO:
+ JEWETT, PROCTOR & WORTHINGTON.
+ 1852.
+
+
+ Entered according to Act of Congress, in the year 1852, by
+ LYSANDER SPOONER,
+ In the Clerk's Office of the District Court of Massachusetts.
+
+
+NOTICE TO ENGLISH PUBLISHERS.
+
+The author claims the copyright of this book in England, on Common Law
+principles, without regard to acts of parliament; and if the main
+principle of the book itself be true, viz., that no legislation, in
+conflict with the Common Law, is of any validity, his claim is a legal
+one. He forbids any one to reprint the book without his consent.
+
+
+ Stereotyped by
+ HOBART & ROBBINS;
+ New England Type and Stereotype Foundery,
+ BOSTON.
+
+
+NOTE.
+
+This volume, it is presumed by the author, gives what will generally be
+considered satisfactory evidence,--though not all the evidence,--of what
+the Common Law trial by jury really is. In a future volume, if it should
+be called for, it is designed to corroborate the grounds taken in this;
+give a concise view of the English constitution; show the
+unconstitutional character of the existing government in England, and
+the unconstitutional means by which the trial by jury has been broken
+down in practice; prove that, neither in England nor the United States,
+have legislatures ever been invested by the people with any authority to
+impair the powers, change the oaths, or (with few exceptions) abridge
+the jurisdiction, of juries, or select jurors on any other than Common
+Law principles; and, consequently, that, in both countries, legislation
+is still constitutionally subordinate to the discretion and consciences
+of Common Law juries, in all cases, both civil and criminal, in which
+juries sit. The same volume will probably also discuss several political
+and legal questions, which will naturally assume importance if the trial
+by jury should be reestablished.
+
+
+
+
+CONTENTS.
+
+                                                                       PAGE
+
+
+CHAPTER I.   THE RIGHT OF JURIES TO JUDGE OF THE JUSTICE OF LAWS,         5
+
+             SECTION 1,                                                   5
+
+             SECTION 2,                                                  11
+
+
+CHAPTER II.  THE TRIAL BY JURY, AS DEFINED BY MAGNA CARTA,               20
+
+             SECTION 1. _The History of Magna Carta_,                    20
+
+             SECTION 2. _The Language of Magna Carta_,                   25
+
+
+CHAPTER III.  ADDITIONAL PROOFS OF THE RIGHTS AND DUTIES OF JURORS,      51
+
+              SECTION 1. _Weakness of the Regal Authority_,              51
+
+              SECTION 2. _The Ancient Common Law Juries were mere
+              Courts of Conscience_,                                     63
+
+              SECTION 3. _The Oaths of Jurors_,                          85
+
+              SECTION 4. _The Right of Jurors to fix the Sentence_,      91
+
+              SECTION 5. _The Oaths of Judges_,                          98
+
+              SECTION 6. _The Coronation Oath_,                         102
+
+
+CHAPTER IV.   THE RIGHTS AND DUTIES OF JURIES IN CIVIL SUITS,           110
+
+
+CHAPTER V.    OBJECTIONS ANSWERED,                                      128
+
+
+CHAPTER VI.   JURIES OF THE PRESENT DAY ILLEGAL,                        142
+
+
+CHAPTER VII.  ILLEGAL JUDGES,                                           157
+
+
+CHAPTER VIII. THE FREE ADMINISTRATION OF JUSTICE,                       172
+
+
+CHAPTER IX.   THE CRIMINAL INTENT,                                      178
+
+
+CHAPTER X.    MORAL CONSIDERATIONS FOR JURORS,                          189
+
+
+CHAPTER XI.   AUTHORITY OF MAGNA CARTA,                                 192
+
+
+CHAPTER XII.  LIMITATIONS IMPOSED UPON THE MAJORITY BY
+              THE TRIAL BY JURY,                                        206
+
+
+APPENDIX--TAXATION,                                                     222
+
+
+
+
+TRIAL BY JURY.
+
+
+
+
+CHAPTER I.
+
+THE RIGHT OF JURIES TO JUDGE OF THE JUSTICE OF LAWS.
+
+
+SECTION I.
+
+For more than six hundred years--that is, since Magna Carta, in
+1215--there has been no clearer principle of English or American
+constitutional law, than that, in criminal cases, it is not only the
+right and duty of juries to judge what are the facts, what is the law,
+and what was the moral intent of the accused; _but that it is also their
+right, and their primary and paramount duty, to judge of the justice of
+the law, and to hold all laws invalid, that are, in their opinion,
+unjust or oppressive, and all persons guiltless in violating, or
+resisting the execution of, such laws_.
+
+Unless such be the right and duty of jurors, it is plain that, instead
+of juries being a "palladium of liberty"--a barrier against the tyranny
+and oppression of the government--they are really mere tools in its
+hands, for carrying into execution any injustice and oppression it may
+desire to have executed.
+
+But for their right to judge of the law, _and the justice of the law_,
+juries would be no protection to an accused person, _even as to matters
+of fact_; for, if the government can dictate to a jury any law whatever,
+in a criminal case, it can certainly dictate to them the laws of
+evidence. That is, it can dictate what evidence is admissible, and what
+inadmissible, _and also what force or weight is to be given to the
+evidence admitted_. And if the government can thus dictate to a jury the
+laws of evidence, it can not only make it necessary for them to convict
+on a partial exhibition of the evidence rightfully pertaining to the
+case, but it can even require them to convict on any evidence whatever
+that it pleases to offer them.
+
+That the rights and duties of jurors must necessarily be such as are
+here claimed for them, will be evident when it is considered what the
+trial by jury is, and what is its object.
+
+_"The trial by jury," then, is a "trial by the country"--that is, by the
+people--as distinguished from a trial by the government._
+
+It was anciently called "trial _per pais_"--that is, "trial by the
+country." And now, in every criminal trial, the jury are told that the
+accused "has, for trial, put himself upon the _country_; which _country_
+you (the jury) are."
+
+_The object of this trial "by the country" or by the people, in
+preference to a trial by the government, is to guard against every
+species of oppression by the government. In order to effect this end, it
+is indispensable that the people, or "the country," judge of and
+determine their own liberties against the government; instead of the
+government's judging of and determining its own powers over the people.
+How is it possible that juries can do anything to protect the liberties
+of the people against the government, if they are not allowed to
+determine what those liberties are?_
+
+Any government, that is its own judge of, and determines authoritatively
+for the people, what are its own powers over the people, is an absolute
+government of course. It has all the powers that it chooses to exercise.
+There is no other--or at least no more accurate--definition of a
+despotism than this.
+
+On the other hand, any people, that judge of, and determine
+authoritatively for the government, what are their own liberties against
+the government, of course retain all the liberties they wish to enjoy.
+_And this is freedom._ At least, it is freedom _to them_; because,
+although it may be theoretically imperfect, it, nevertheless,
+corresponds to _their_ highest notions of freedom.
+
+To secure this right of the people to judge of their own liberties
+against the government, the jurors are taken, (or must be, to make them
+lawful jurors,) from the body of the people, _by lot_, or by some
+process that precludes any previous knowledge, choice, or selection of
+them, on the part of the government. This is done to prevent the
+government's constituting a jury of its own partisans or friends; in
+other words, to prevent the government's _packing_ a jury, with a view
+to maintain its own laws, and accomplish its own purposes.
+
+It is supposed that, if twelve men be taken, _by lot_, from the mass of
+the people, without the possibility of any previous knowledge, choice,
+or selection of them, on the part of the government, the jury will be a
+fair epitome of "the country" at large, and not merely of the party or
+faction that sustain the measures of the government; that substantially
+all classes of opinions, prevailing among the people, will be
+represented in the jury; and especially that the opponents of the
+government, (if the government have any opponents,) will be represented
+there, as well as its friends; that the classes, who are oppressed by
+the laws of the government, (if any are thus oppressed,) will have their
+representatives in the jury, as well as those classes, who take sides
+with the oppressor--that is, with the government.
+
+It is fairly presumable that such a tribunal will agree to no conviction
+except such as _substantially the whole country_ would agree to, if they
+were present, taking part in the trial. A trial by such a tribunal is,
+therefore, in effect, "a trial by the country." In its results it
+probably comes as near to a trial by the _whole_ country, as any trial
+that it is practicable to have, without too great inconvenience and
+expense. And as unanimity is required for a conviction, it follows that
+no one can be convicted, except for the violation of such laws as
+substantially the whole country wish to have maintained. The government
+can enforce none of its laws, (by punishing offenders, through the
+verdicts of juries,) except such as substantially the whole people wish
+to have enforced. The government, therefore, consistently with the trial
+by jury, can exercise no powers over the people, (or, what is the same
+thing, over the accused person, who represents the rights of the
+people,) except such as substantially the whole people of the country
+consent that it may exercise. In such a trial, therefore, "the country,"
+or the people, judge of and determine their own liberties against the
+government, instead of the government's judging of and determining its
+own powers over the people.
+
+But all this "trial by the country" would be no trial at all "by the
+country," but only a trial by the government, if the government could
+either declare who may, and who may not, be jurors, or could dictate to
+the jury anything whatever, either of law or evidence, that is of the
+essence of the trial.
+
+If the government may decide who may, and who may not, be jurors, it
+will of course select only its partisans, and those friendly to its
+measures. It may not only prescribe who may, and who may not, be
+eligible to be drawn as jurors; but it may also question each person
+drawn as a juror, as to his sentiments in regard to the particular law
+involved in each trial, before suffering him to be sworn on the panel;
+and exclude him if he be found unfavorable to the maintenance of such a
+law.[1]
+
+So, also, if the government may dictate to the jury _what laws they are
+to enforce_, it is no longer a "trial by the country," but a trial by
+the government; because the jury then try the accused, not by any
+standard of their own--not by their own judgments of their rightful
+liberties--but by a standard dictated to them by the government. And the
+standard, thus dictated by the government, becomes the measure of the
+people's liberties. If the government dictate the standard of trial, it
+of course dictates the results of the trial. And such a trial is no
+trial by the country, but only a trial by the government; and in it the
+government determines what are its own powers over the people, instead
+of the people's determining what are their own liberties against the
+government. In short, if the jury have no right to judge of the justice
+of a law of the government, they plainly can do nothing to protect the
+people against the oppressions of the government; for there are no
+oppressions which the government may not authorize by law.
+
+The jury are also to judge whether the laws are rightly expounded to
+them by the court. Unless they judge on this point, they do nothing to
+protect their liberties against the oppressions that are capable of
+being practised under cover of a corrupt exposition of the laws. If the
+judiciary can authoritatively dictate to a jury any exposition of the
+law, they can dictate to them the law itself, and such laws as they
+please; because laws are, in practice, one thing or another, according
+as they are expounded.
+
+The jury must also judge whether there really be any such law, (be it
+good or bad,) as the accused is charged with having transgressed. Unless
+they judge on this point, the people are liable to have their liberties
+taken from them by brute force, without any law at all.
+
+The jury must also judge of the laws of evidence. If the government can
+dictate to a jury the laws of evidence, it can not only shut out any
+evidence it pleases, tending to vindicate the accused, but it can
+require that any evidence whatever, that it pleases to offer, be held as
+conclusive proof of any offence whatever which the government chooses to
+allege.
+
+It is manifest, therefore, that the jury must judge of and try the whole
+case, and every part and parcel of the case, free of any dictation or
+authority on the part of the government. They must judge of the
+existence of the law; of the true exposition of the law; _of the justice
+of the law_; and of the admissibility and weight of all the evidence
+offered; otherwise the government will have everything its own way; the
+jury will be mere puppets in the hands of the government; and the trial
+will be, in reality, a trial by the government, and not a "trial by the
+country." By such trials the government will determine its own powers
+over the people, instead of the people's determining their own liberties
+against the government; and it will be an entire delusion to talk, as
+for centuries we have done, of the trial by jury, as a "palladium of
+liberty," or as any protection to the people against the oppression and
+tyranny of the government.
+
+The question, then, between trial by jury, as thus described, and trial
+by the government, is simply a question between liberty and despotism.
+The authority to judge what are the powers of the government, and what
+the liberties of the people, must necessarily be vested in one or the
+other of the parties themselves--the government, or the people; because
+there is no third party to whom it can be entrusted. If the authority be
+vested in the government, the government is absolute, and the people
+have no liberties except such as the government sees fit to indulge them
+with. If, on the other hand, that authority be vested in the people,
+then the people have all liberties, (as against the government,) except
+such as substantially the whole people (through a jury) choose to
+disclaim; and the government can exercise no power except such as
+substantially the whole people (through a jury) consent that it may
+exercise.
+
+
+SECTION II.
+
+The force and justice of the preceding argument cannot be evaded by
+saying that the government is chosen by the people; that, in theory, it
+represents the people; that it is designed to do the will of the people;
+that its members are all sworn to observe the fundamental or
+constitutional law instituted by the people; that its acts are therefore
+entitled to be considered the acts of the people; and that to allow a
+jury, representing the people, to invalidate the acts of the government,
+would therefore be arraying the people against themselves.
+
+There are two answers to such an argument.
+
+One answer is, that, in a representative government, there is no
+absurdity or contradiction, nor any arraying of the people against
+themselves, in requiring that the statutes or enactments of the
+government shall pass the ordeal of any number of separate tribunals,
+before it shall be determined that they are to have the force of laws.
+Our American constitutions have provided five of these separate
+tribunals, to wit, representatives, senate, executive,[2] jury, and
+judges; and have made it necessary that each enactment shall pass the
+ordeal of all these separate tribunals, before its authority can be
+established by the punishment of those who choose to transgress it. And
+there is no more absurdity or inconsistency in making a jury one of
+these several tribunals, than there is in making the representatives, or
+the senate, or the executive, or the judges, one of them. There is no
+more absurdity in giving a jury a veto upon the laws, than there is in
+giving a veto to each of these other tribunals. The people are no more
+arrayed against themselves, when a jury puts its veto upon a statute,
+which the other tribunals have sanctioned, than they are when the same
+veto is exercised by the representatives, the senate, the executive, or
+the judges.
+
+But another answer to the argument that the people are arrayed against
+themselves, when a jury hold an enactment of the government invalid, is,
+that the government, and all the departments of the government, _are
+merely the servants and agents of the people_; not invested with
+arbitrary or absolute authority to bind the people, but required to
+submit all their enactments to the judgment of a tribunal more fairly
+representing the whole people, before they carry them into execution, by
+punishing any individual for transgressing them. If the government were
+not thus required to submit their enactments to the judgment of "the
+country," before executing them upon individuals--if, in other words,
+the people had reserved to themselves no veto upon the acts of the
+government, the government, instead of being a mere servant and agent of
+the people, would be an absolute despot over the people. It would have
+all power in its own hands; because the power to _punish_ carries all
+other powers with it. A power that can, of itself, and by its own
+authority, punish disobedience, can compel obedience and submission, and
+is above all responsibility for the character of its laws. In short, it
+is a despotism.
+
+And it is of no consequence to inquire how a government came by this
+power to punish, whether by prescription, by inheritance, by usurpation,
+or by delegation from the people? _If it have now but got it_, the
+government is absolute.
+
+It is plain, therefore, that if the people have invested the government
+with power to make laws that absolutely bind the people, and to punish
+the people for transgressing those laws, the people have surrendered
+their liberties unreservedly into the hands of the government.
+
+It is of no avail to say, in answer to this view of the case, that in
+surrendering their liberties into the hands of the government, the
+people took an oath from the government, that it would exercise its
+power within certain constitutional limits; for when did oaths ever
+restrain a government that was otherwise unrestrained? Or when did a
+government fail to determine that all its acts were within the
+constitutional and authorized limits of its power, if it were permitted
+to determine that question for itself?
+
+Neither is it of any avail to say, that, if the government abuse its
+power, and enact unjust and oppressive laws, the government may be
+changed by the influence of discussion, and the exercise of the right of
+suffrage. Discussion can do nothing to prevent the enactment, or procure
+the repeal, of unjust laws, unless it be understood that the discussion
+is to be followed by resistance. Tyrants care nothing for discussions
+that are to end only in discussion. Discussions, which do not interfere
+with the enforcement of their laws, are but idle wind to them. Suffrage
+is equally powerless and unreliable. It can be exercised only
+periodically; and the tyranny must at least be borne until the time for
+suffrage comes. Besides, when the suffrage is exercised, it gives no
+guaranty for the repeal of existing laws that are oppressive, and no
+security against the enactment of new ones that are equally so. The
+second body of legislators are liable and likely to be just as
+tyrannical as the first. If it be said that the second body may be
+chosen for their integrity, the answer is, that the first were chosen
+for that very reason, and yet proved tyrants. The second will be exposed
+to the same temptations as the first, and will be just as likely to
+prove tyrannical. Who ever heard that succeeding legislatures were, on
+the whole, more honest than those that preceded them? What is there in
+the nature of men or things to make them so? If it be said that the first
+body were chosen from motives of injustice, that fact proves that there is
+a portion of society who desire to establish injustice; and if they were
+powerful or artful enough to procure the election of their instruments to
+compose the first legislature, they will be likely to be powerful or
+artful enough to procure the election of the same or similar instruments
+to compose the second. The right of suffrage, therefore, and even a change
+of legislators, guarantees no change of legislation--certainly no change
+for the better. Even if a change for the better actually comes, it comes
+too late, because it comes only after more or less injustice has been
+irreparably done.
+
+But, at best, the right of suffrage can be exercised only periodically;
+and between the periods the legislators are wholly irresponsible. No
+despot was ever more entirely irresponsible than are republican
+legislators during the period for which they are chosen. They can
+neither be removed from their office, nor called to account while in
+their office, nor punished after they leave their office, be their
+tyranny what it may. Moreover, the judicial and executive departments of
+the government are equally irresponsible _to the people_, and are only
+responsible, (by impeachment, and dependence for their salaries), to
+these irresponsible legislators. This dependence of the judiciary and
+executive upon the legislature is a guaranty that they will always
+sanction and execute its laws, whether just or unjust. Thus the
+legislators hold the whole power of the government in their hands, and
+are at the same time utterly irresponsible for the manner in which they
+use it.
+
+If, now, this government, (the three branches thus really united in
+one), can determine the validity of, and enforce, its own laws, it is,
+for the time being, entirely absolute, and wholly irresponsible to the
+people.
+
+But this is not all. These legislators, and this government, so
+irresponsible while in power, can perpetuate their power at pleasure, if
+they can determine what legislation is authoritative upon the people,
+and can enforce obedience to it; for they can not only declare their
+power perpetual, but they can enforce submission to all legislation that
+is necessary to secure its perpetuity. They can, for example, prohibit
+all discussion of the rightfulness of their authority; forbid the use of
+the suffrage; prevent the election of any successors; disarm, plunder,
+imprison, and even kill all who refuse submission. If, therefore, the
+government (all departments united) be absolute for a day--that is, if
+it can, for a day, enforce obedience to its own laws--it can, in that
+day, secure its power for all time--like the queen, who wished to reign
+but for a day, but in that day caused the king, her husband, to be
+slain, and usurped his throne.
+
+Nor will it avail to say that such acts would be unconstitutional, and
+that unconstitutional acts may be lawfully resisted; for everything a
+government pleases to do will, of course, be determined to be
+constitutional, if the government itself be permitted to determine the
+question of the constitutionality of its own acts. Those who are capable
+of tyranny, are capable of perjury to sustain it.
+
+The conclusion, therefore, is, that any government, that can, _for a
+day_, enforce its own laws, without appealing to the people, (or to a
+tribunal fairly representing the people,) for their consent, is, in
+theory, an absolute government, irresponsible to the people, and can
+perpetuate its power at pleasure.
+
+The trial by jury is based upon a recognition of this principle, and
+therefore forbids the government to execute any of its laws, by
+punishing violators, in any case whatever, without first getting the
+consent of "the country," or the people, through a jury. In this way,
+the people, at all times, hold their liberties in their own hands, and
+never surrender them, even for a moment, into the hands of the
+government.
+
+The trial by jury, then, gives to any and every individual the liberty,
+at any time, to disregard or resist any law whatever of the government,
+if he be willing to submit to the decision of a jury, the questions,
+whether the law be intrinsically just and obligatory? and whether his
+conduct, in disregarding or resisting it, were right in itself? And any
+law, which does not, in such trial, obtain the unanimous sanction of
+twelve men, taken at random from the people, and judging according to
+the standard of justice in their own minds, free from all dictation and
+authority of the government, may be transgressed and resisted with
+impunity, by whomsoever pleases to transgress or resist it.[3]
+
+The trial by jury authorizes all this, or it is a sham and a hoax,
+utterly worthless for protecting the people against oppression. If it do
+not authorize an individual to resist the first and least act of
+injustice or tyranny, on the part of the government, it does not
+authorize him to resist the last and the greatest. If it do not
+authorize individuals to nip tyranny in the bud, it does not authorize
+them to cut it down when its branches are filled with the ripe fruits of
+plunder and oppression.
+
+Those who deny the right of a jury to protect an individual in resisting
+an unjust law of the government, deny him all _legal_ defence
+whatsoever against oppression. The right of revolution, which tyrants,
+in mockery, accord to mankind, is no _legal_ right _under_ a government;
+it is only a _natural_ right to overturn a government. The government
+itself never acknowledges this right. And the right is practically
+established only when and because the government no longer exists to
+call it in question. The right, therefore, can be exercised with
+impunity, only when it is exercised victoriously. All _unsuccessful_
+attempts at revolution, however justifiable in themselves, are punished
+as treason, if the government be permitted to judge of the treason. The
+government itself never admits the injustice of its laws, as a legal
+defence for those who have attempted a revolution, and failed. The right
+of revolution, therefore, is a right of no practical value, except for
+those who are stronger than the government. So long, therefore, as the
+oppressions of a government are kept within such limits as simply not to
+exasperate against it a power greater than its own, the right of
+revolution cannot be appealed to, and is therefore inapplicable to the
+case. This affords a wide field for tyranny; and if a jury cannot _here_
+intervene, the oppressed are utterly defenceless.
+
+It is manifest that the only security against the tyranny of the
+government lies in forcible resistance to the execution of the
+injustice; because the injustice will certainly be executed, _unless it
+be forcibly resisted_. And if it be but suffered to be executed, it must
+then be borne; for the government never makes compensation for its own
+wrongs.
+
+Since, then, this forcible resistance to the injustice of the government
+is the only possible means of preserving liberty, it is indispensable to
+all _legal_ liberty that this _resistance_ should be _legalized_. It is
+perfectly self-evident that where there is no _legal_ right to resist
+the oppression of the government, there can be no _legal_ liberty. And
+here it is all-important to notice, that, _practically speaking_, there
+can be no _legal_ right to resist the oppressions of the government,
+unless there be some _legal_ tribunal, other than the government, and
+wholly independent of, and _above_, the government, to judge between the
+government and those who resist its oppressions; in other words, to
+judge what laws of the government are to be obeyed, and what may be
+resisted and held for nought. The only tribunal known to our laws, for
+this purpose, is a jury. If a jury have not the right to judge between
+the government and those who disobey its laws, and resist its
+oppressions, the government is absolute, and the people, _legally
+speaking_, are slaves. Like many other slaves they may have sufficient
+courage and strength to keep their masters somewhat in check; but they
+are nevertheless _known to the law_ only as slaves.
+
+That this right of resistance was recognized as a common law right, when
+the ancient and genuine trial by jury was in force, is not only proved
+by the nature of the trial itself, but is acknowledged by history.[4]
+
+This right of resistance is recognized by the constitution of the United
+States, as a strictly legal and constitutional right. It is so
+recognized, first by the provision that "the trial of all crimes, except
+in cases of impeachment, shall be by jury"--that is, by the country--and
+not by the government; secondly, by the provision that "the right of the
+people to keep and bear arms shall not be infringed." This
+constitutional security for "the right to keep and bear arms," implies
+the right to use them--as much as a constitutional security for the
+right to buy and keep food would have implied the right to eat it. The
+constitution, therefore, takes it for granted that the people will
+judge of the conduct of the government, and that, as they have the
+right, they will also have the sense, to use arms, whenever the
+necessity of the case justifies it. And it is a sufficient and _legal_
+defence for a person accused of using arms against the government, if he
+can show, to the satisfaction of a jury, _or even any one of a jury_,
+that the law he resisted was an unjust one.
+
+In the American _State_ constitutions also, this right of resistance to
+the oppressions of the government is recognized, in various ways, as a
+natural, legal, and constitutional right. In the first place, it is so
+recognized by provisions establishing the trial by jury; thus requiring
+that accused persons shall be tried by "the country," instead of the
+government. In the second place, it is recognized by many of them, as,
+for example, those of Massachusetts, Maine, Vermont, Connecticut,
+Pennsylvania, Ohio, Indiana, Michigan, Kentucky, Tennessee, Arkansas,
+Mississippi, Alabama, and Florida, by provisions expressly declaring
+that the people shall have the right to bear arms. In many of them also,
+as, for example, those of Maine, New Hampshire, Vermont, Massachusetts,
+New Jersey, Pennsylvania, Delaware, Ohio, Indiana, Illinois, Florida,
+Iowa, and Arkansas, by provisions, in their bills of rights, declaring
+that men have a natural, inherent, and inalienable right of "_defending_
+their lives and liberties." This, of course, means that they have a
+right to defend them against any injustice _on the part of the
+government_, and not merely on the part of private individuals; because
+the object of all bills of rights is to assert the rights of individuals
+and the people, _as against the government_, and not as against private
+persons. It would be a matter of ridiculous supererogation to assert, in
+a constitution of government, the natural right of men to defend their
+lives and liberties against private trespassers.
+
+Many of these bills of rights also assert the natural right of all men
+to protect their property--that is, to protect it _against the
+government_. It would be unnecessary and silly indeed to assert, in a
+constitution of government, the natural right of individuals to protect
+their property against thieves and robbers.
+
+The constitutions of New Hampshire and Tennessee also declare that "The
+doctrine of non-resistance against arbitrary power and oppression is
+absurd, slavish, and destructive of the good and happiness of mankind."
+
+The legal effect of these constitutional recognitions of the right of
+individuals to defend their property, liberties, and lives, against the
+government, is to legalize resistance to all injustice and oppression,
+of every name and nature whatsoever, on the part of the government.
+
+But for this right of resistance, on the part of the people, all
+governments would become tyrannical to a degree of which few people are
+aware. Constitutions are utterly worthless to restrain the tyranny of
+governments, unless it be understood that the people will, by force,
+compel the government to keep within the constitutional limits.
+Practically speaking, no government knows any limits to its power,
+except the endurance of the people. But that the people are stronger
+than the government, and will resist in extreme cases, our governments
+would be little or nothing else than organized systems of plunder and
+oppression. All, or nearly all, the advantage there is in fixing any
+constitutional limits to the power of a government, is simply to give
+notice to the government of the point at which it will meet with
+resistance. If the people are then as good as their word, they may keep
+the government within the bounds they have set for it; otherwise it will
+disregard them--as is proved by the example of all our American
+governments, in which the constitutions have all become obsolete, at the
+moment of their adoption, for nearly or quite all purposes except the
+appointment of officers, who at once become practically absolute, except
+so far as they are restrained by the fear of popular resistance.
+
+The bounds set to the power of the government, by the trial by jury, as
+will hereafter be shown, are these--that the government shall never
+touch the property, person, or natural or civil rights of an individual,
+against his consent, (except for the purpose of bringing them before a
+jury for trial,) unless in pursuance and _execution_ of a judgment, or
+decree, rendered by a jury in each individual case, upon such evidence,
+and such law, as are satisfactory to their own understandings and
+consciences, irrespective of all legislation of the government.
+
+[Footnote 1: To show that this supposition is not an extravagant one, it
+may be mentioned that courts have repeatedly questioned jurors to
+ascertain whether they were prejudiced _against the government_--that
+is, whether they were in favor of, or opposed to, such laws of the
+government as were to be put in issue in the then pending trial. This
+was done (in 1851) in the United States District Court for the District
+of Massachusetts, by Peleg Sprague, the United States district judge, in
+empanelling three several juries for the trials of Scott, Hayden, and
+Morris, charged with having aided in the rescue of a fugitive slave from
+the custody of the United States deputy marshal. This judge caused the
+following question to be propounded to all the jurors separately; and
+those who answered unfavorably for the purposes of the government, were
+excluded from the panel.
+
+   "Do you hold any opinions upon the subject of the Fugitive Slave Law,
+   so called, which will induce you to refuse to convict a person
+   indicted under it, if the facts set forth in the indictment, _and
+   constituting the offence_, are proved against him, and the court
+   direct you that the law is constitutional?"
+
+The reason of this question was, that "the Fugitive Slave Law, so
+called," was so obnoxious to a large portion of the people, as to render
+a conviction under it hopeless, if the jurors were taken
+indiscriminately from among the people.
+
+A similar question was soon afterwards propounded to the persons drawn
+as jurors in the United States _Circuit_ Court for the District of
+Massachusetts, by Benjamin R. Curtis one of the Justices of the Supreme
+Court of the United States, in empanelling a jury for the trial of the
+aforesaid Morris on the charge before mentioned; and those who did not
+answer the question favorably for the government were again excluded
+from the panel.
+
+It has also been an habitual practice with the Supreme Court of
+Massachusetts, in empanelling juries for the trial of _capital_
+offences, to inquire of the persons drawn as jurors whether they had any
+conscientious scruples against finding verdicts of guilty in such cases;
+that is, whether they had any conscientious scruples against sustaining
+the law prescribing death as the punishment of the crime to be tried;
+and to exclude from the panel all who answered in the affirmative.
+
+The only principle upon which these questions are asked, is this--that
+no man shall be allowed to serve as juror, unless he be ready to enforce
+any enactment of the government, however cruel or tyrannical it may be.
+
+What is such a jury good for, as a protection against the tyranny of the
+government? A jury like that is palpably nothing but a mere tool of
+oppression in the hands of the government. A trial by such a jury is
+really a trial by the government itself--and not a trial by the
+country--because it is a trial only by men specially selected by the
+government for their readiness to enforce its own tyrannical measures.
+
+If that be the true principle of the trial by jury, the trial is utterly
+worthless as a security to liberty. The Czar might, with perfect safety
+to his authority, introduce the trial by jury into Russia, if he could
+but be permitted to select his jurors from those who were ready to
+maintain his laws, without regard to their injustice.
+
+This example is sufficient to show that the very pith of the trial by
+jury, as a safeguard to liberty, consists in the jurors being taken
+indiscriminately from the whole people, and in their right to hold
+invalid all laws which they think unjust.]
+
+[Footnote 2: The executive has a qualified veto upon the passage of
+laws, in most of our governments, and an absolute veto, in all of them,
+upon the execution of any laws which he deems unconstitutional; because
+his oath to support the constitution (as he understands it) forbids him
+to execute any law that he deems unconstitutional.]
+
+[Footnote 3: And if there be so much as a reasonable _doubt_ of the
+justice of the laws, the benefit of that doubt must be given to the
+defendant, and not to the government. So that the government must keep
+its laws _clearly_ within the limits of justice, if it would ask a jury
+to enforce them.]
+
+[Footnote 4: _Hallam_ says, "The relation established between a lord and
+his vassal by the feudal tenure, far from containing principles of any
+servile and implicit obedience, permitted the compact to be dissolved in
+case of its violation by either party. This extended as much to the
+sovereign as to inferior lords. * * If a vassal was aggrieved, and if
+justice was denied him, he sent a defiance, that is, a renunciation of
+fealty to the king, and was entitled to enforce redress at the point of
+his sword. It then became a contest of strength as between two
+independent potentates, and was terminated by treaty, advantageous or
+otherwise, according to the fortune of war. * * There remained the
+original principle, that allegiance depended conditionally upon good
+treatment, and that an appeal might be _lawfully_ made to arms against
+an oppressive government. Nor was this, we may be sure, left for extreme
+necessity, or thought to require a long-enduring forbearance. In modern
+times, a king, compelled by his subjects' swords to abandon any
+pretension, would be supposed to have ceased to reign; and the express
+recognition of such a right as that of insurrection has been justly
+deemed inconsistent with the majesty of law. But ruder ages had ruder
+sentiments. Force was necessary to repel force; and men accustomed to
+see the king's authority defied by a private riot, were not much shocked
+when it was resisted in defence of public freedom."--_3 Middle Ages_,
+240-2.]
+
+
+
+
+CHAPTER II.
+
+THE TRIAL BY JURY, AS DEFINED BY MAGNA CARTA.
+
+
+That the trial by jury is all that has been claimed for it in the
+preceding chapter, is proved both by the history and the language of the
+Great Charter of English Liberties, to which we are to look for a true
+definition of the trial by jury, and of which the guaranty for that
+trial is the vital, and most memorable, part.
+
+
+SECTION I.
+
+_The History of Magna Carta._
+
+In order to judge of the object and meaning of that chapter of Magna
+Carta which secures the trial by jury, it is to be borne in mind that,
+at the time of Magna Carta, the king (with exceptions immaterial to this
+discussion, but which will appear hereafter) was, constitutionally, the
+entire government; the sole _legislative_, _judicial_, and executive
+power of the nation. The executive and judicial officers were merely his
+servants, appointed by him, and removable at his pleasure. In addition
+to this, "the king himself often sat in his court, which always attended
+his person. He there heard causes, and pronounced judgment; and though
+he was assisted by the advice of other members, it is not to be imagined
+that a decision could be obtained contrary to his inclination or
+opinion."[5] Judges were in those days, and afterwards, such abject
+servants of the king, that "we find that King Edward I. (1272 to 1307)
+fined and imprisoned his judges, in the same manner as Alfred the Great,
+among the Saxons, had done before him, by the sole exercise of his
+authority."[6]
+
+Parliament, so far as there was a parliament, was a mere _council_ of
+the king.[7] It assembled only at the pleasure of the king; sat only
+during his pleasure; and when sitting had no power, so far as _general_
+legislation was concerned, beyond that of simply _advising_ the king.
+The only legislation to which their assent was constitutionally
+necessary, was demands for money and military services for
+_extraordinary_ occasions. Even Magna Carta itself makes no provisions
+whatever for any parliaments, except when the king should want means to
+carry on war, or to meet some other _extraordinary_ necessity.[8] He had
+no need of parliaments to raise taxes for the _ordinary_ purposes of
+government; for his revenues from the rents of the crown lands and other
+sources, were ample for all except extraordinary occasions. Parliaments,
+too, when assembled, consisted only of bishops, barons, and other great
+men of the kingdom, unless the king chose to invite others.[9] There was
+no House of Commons at that time, and the people had no right to be
+heard, unless as petitioners.[10]
+
+Even when laws were made at the time of a parliament, they were made in
+the name of the king alone. Sometimes it was inserted in the laws, that
+they were made with the _consent_ or _advice_ of the bishops, barons,
+and others assembled; but often this was omitted. Their consent or
+advice was evidently a matter of no legal importance to the enactment or
+validity of the laws, but only inserted, when inserted at all, with a
+view of obtaining a more willing submission to them on the part of the
+people. The style of enactment generally was, either "_The King wills
+and commands_," or some other form significant of the sole legislative
+authority of the king. The king could pass laws at any time when it
+pleased him. The presence of a parliament was wholly unnecessary. Hume
+says, "It is asserted by Sir Harry Spelman, as an undoubted fact, that,
+during the reigns of the Norman princes, every order of the king, issued
+with the consent of his privy council, had the full force of law."[11]
+And other authorities abundantly corroborate this assertion.[12]
+
+The king was, therefore, constitutionally the government; and the only
+legal limitation upon his power seems to have been simply the _Common
+Law_, usually called "_the law of the land_," which he was bound by oath
+to maintain; (which oath had about the same practical value as similar
+oaths have always had.) This "law of the land" seems not to have been
+regarded at all by many of the kings, except so far as they found it
+convenient to do so, or were constrained to observe it by the fear of
+arousing resistance. But as all people are slow in making resistance,
+oppression and usurpation often reached a great height; and, in the case
+of John, they had become so intolerable as to enlist the nation almost
+universally against him; and he was reduced to the necessity of
+complying with any terms the barons saw fit to dictate to him.
+
+It was under these circumstances, that the Great Charter of English
+Liberties was granted. The barons of England, sustained by the common
+people, having their king in their power, compelled him, as the price of
+his throne, to pledge himself that he would punish no freeman for a
+violation of any of his laws, unless with the consent of the peers--that
+is, the equals--of the accused.
+
+The question here arises, Whether the barons and people intended that
+those peers (the jury) should be mere puppets in the hands of the king,
+exercising no opinion of their own as to the intrinsic merits of the
+accusations they should try, or the _justice_ of the laws they should be
+called on to enforce? Whether those haughty and victorious barons, when
+they had their tyrant king at their feet, gave back to him his throne,
+with full power to enact any tyrannical laws he might please, reserving
+only to a jury ("the country") the contemptible and servile privilege of
+ascertaining, (under the dictation of the king, or his judges, as to the
+laws of evidence), the simple _fact_ whether those laws had been
+transgressed? Was this the only restraint, which, when they had all
+power in their hands, they placed upon the tyranny of a king, whose
+oppressions they had risen in arms to resist? Was it to obtain such a
+charter as that, that the whole nation had united, as it were, like one
+man, against their king? Was it on such a charter that they intended to
+rely, for all future time, for the security of their liberties? No. They
+were engaged in no such senseless work as that. On the contrary, when
+they required him to renounce forever the power to punish any freeman,
+unless by the consent of his peers, they intended those peers should
+judge of, and try, the whole case on its merits, independently of all
+arbitrary legislation, or judicial authority, on the part of the king.
+In this way they took the liberties of each individual--and thus the
+liberties of the whole people--entirely out of the hands of the king,
+and out of the power of his laws, and placed them in the keeping of the
+people themselves. And this it was that made the trial by jury the
+palladium of their liberties.
+
+The trial by jury, be it observed, was the only real barrier interposed
+by them against absolute despotism. Could this trial, then, have been
+such an entire farce as it necessarily must have been, if the jury had
+had no power to judge of the justice of the laws the people were
+required to obey? Did it not rather imply that the jury were to judge
+independently and fearlessly as to everything involved in the charge,
+and especially as to its intrinsic justice, and thereon give their
+decision, (unbiased by any legislation of the king,) whether the accused
+might be punished? The reason of the thing, no less than the historical
+celebrity of the events, as securing the liberties of the people, and
+the veneration with which the trial by jury has continued to be
+regarded, notwithstanding its essence and vitality have been almost
+entirely extracted from it in practice, would settle the question, if
+other evidences had left the matter in doubt.
+
+Besides, if his laws were to be authoritative with the jury, why should
+John indignantly refuse, as at first he did, to grant the charter, (and
+finally grant it only when brought to the last extremity,) on the ground
+that it deprived him of all power, and left him only the name of a king?
+_He_ evidently understood that the juries were to veto his laws, and
+paralyze his power, at discretion, by forming their own opinions as to
+the true character of the offences they were to try, and the laws they
+were to be called on to enforce; and that "_the king wills and
+commands_" was to have no weight with them contrary to their own
+judgments of what was intrinsically right.[13]
+
+The barons and people having obtained by the charter all the liberties
+they had demanded of the king, it was further provided by the charter
+itself that twenty-five barons should be appointed by the barons, out of
+their number, to keep special vigilance in the kingdom to see that the
+charter was observed, with authority to make war upon the king in case
+of its violation. The king also, by the charter, so far absolved all the
+people of the kingdom from their allegiance to him, as to authorize and
+require them to swear to obey the twenty-five barons, in case they
+should make war upon the king for infringement of the charter. It was
+then thought by the barons and people, that something substantial had
+been done for the security of their liberties.
+
+This charter, in its most essential features, and without any abatement
+as to the trial by jury, has since been confirmed more than thirty
+times; and the people of England have always had a traditionary idea
+that it was of some value as a guaranty against oppression. Yet that
+idea has been an entire delusion, unless the jury have had the right to
+judge of the justice of the laws they were called on to enforce.
+
+
+SECTION II.
+
+_The Language of Magna Carta._
+
+The language of the Great Charter establishes the same point that is
+established by its history, viz., that it is the right and duty of the
+jury to judge of the justice of the laws.
+
+The chapter guaranteeing the trial by jury is in these words:
+
+   "Nullus liber homo capiatur, vel imprisonetur, aut disseisetur, aut
+   utlagetur, aut exuletur, aut aliquo modo destruatur; nec super eum
+   ibimus, nec super eum mittemus, nisi per legale judicium parium
+   suorum, vel per legem terrae."[14]
+
+The corresponding chapter in the Great Charter, granted by Henry III.,
+(1225,) and confirmed by Edward I., (1297,) (which charter is now
+considered the basis of the English laws and constitution,) is in nearly
+the same words, as follows:
+
+   "Nullus liber homo capiatur, vel imprisonetur, aut disseisetur de
+   libero tenemento, vel libertatibus, vel liberis consuetudinibus suis,
+   aut utlagetur, aut exuletur, aut aliquo modo destruatur, nec super
+   eum ibimus, nec super eum mittemus, nisi per legale judicium parium
+   suorum, vel per legem 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, nec super eum mittemus_." The more common
+rendering has been, "_nor will we pass upon him, nor condemn him_." But
+some have translated them to mean, "_nor will we pass upon him, nor
+commit him to prison_." Coke gives still a different rendering, to the
+effect that "No man shall be condemned at the king's suit, either before
+the king in his bench, nor before any other commissioner or judge
+whatsoever."[15]
+
+But all these translations are clearly erroneous. In the first place,
+"_nor will we pass upon him_,"--meaning thereby to decide upon his guilt
+or innocence _judicially_--is not a correct rendering of the words,
+"_nec super eum ibimus_." There is nothing whatever, in these latter
+words, that indicates _judicial_ action or opinion at all. The words, in
+their common signification, describe _physical_ action alone. And the
+true translation of them, as will hereafter be seen, is, _"nor will we
+proceed against him," executively_.
+
+In the second place, the rendering, "_nor will we condemn him_," bears
+little or no analogy to any common, or even uncommon, signification of
+the words "_nec super eum mittemus_." There is nothing in these latter
+words that indicates _judicial_ action or decision. Their common
+signification, like that of the words _nec super eum ibimus_, describes
+_physical_ action alone. "_Nor will we send upon (or against) him_,"
+would be the most obvious translation, and, as we shall hereafter see,
+such is the true translation.
+
+But although these words describe _physical_ action, on the part of the
+king, as distinguished from judicial, they nevertheless do not mean, as
+one of the translations has it, "_nor will we commit him to prison_;"
+for that would be a mere repetition of what had been already declared by
+the words "_nec imprisonetur_." Besides, there is nothing about prisons
+in the words "_nec super eum mittemus_;" nothing about sending _him_
+anywhere; but only about sending (something or somebody) _upon_ him, or
+_against_ him--that is, _executively_.
+
+Coke's rendering is, if possible, the most absurd and gratuitous of all.
+What is there in the words, "_nec super eum mittemus_" that can be made
+to mean "_nor shall he be condemned before any other commissioner or
+judge whatsoever_?" Clearly there is nothing. The whole rendering is a
+sheer fabrication. And the whole object of it is to give color for the
+exercise of a _judicial_ power, by the king, or his judges, which is
+nowhere given them.
+
+Neither the words, "_nec super eum ibimus, nec super eum mittemus_," nor
+any other words in the whole chapter, authorize, provide for, describe,
+or suggest, any _judicial_ action whatever, on the part either of the
+king, or of his judges, or of anybody, _except the peers, or jury_.
+There is nothing about the king's _judges_ at all. And there is nothing
+whatever, in the whole chapter, _so far as relates to the action of the
+king_, that describes or suggests anything but _executive_ action.[16]
+
+But that all these translations are certainly erroneous, is proved by a
+temporary charter, granted by John a short time previous to the Great
+Charter, for the purpose of giving an opportunity for conference,
+arbitration, and reconciliation between him and his barons. It was to
+have force until the matters in controversy between them could be
+submitted to the Pope, and to other persons to be chosen, some by the
+king, and some by the barons. The words of the charter are as follows:
+
+"Sciatis nos concessisse baronibus nostris qui contra nos sunt quod nec
+eos nec homines suos capiemus, nec disseisiemus _nec super eos per vim
+vel per arma ibimus_ nisi per legem regni nostri vel per judicium parium
+suorum in curia nostra donec consideratio facta fuerit," &c., &c.
+
+That is, "Know that we have granted to our barons who are opposed to us,
+that we will neither arrest them nor their men, nor disseize them, _nor
+will we proceed against them by force or by arms_, unless by the law of
+our kingdom, or by the judgment of their peers in our court, until
+consideration shall be had," &c., &c.
+
+A copy of this charter is given in a note in Blackstone's Introduction
+to the Charters.[17]
+
+Mr. Christian speaks of this charter as settling the true meaning of the
+corresponding clause of Magna Carta, on the principle that laws and
+charters on the same subject are to be construed with reference to each
+other. See _3 Christian's Blackstone_, 41, _note_.
+
+The true meaning of the words, _nec super eum ibimus, nec super eum
+mittemus_, is also proved by the "_Articles of the Great Charter of
+Liberties_," demanded of the king by the barons, and agreed to by the
+king, under seal, a few days before the date of the Charter, and from
+which the Charter was framed.[18] Here the words used are these:
+
+   "Ne corpus liberi hominis capiatur nec imprisonetur nec disseisetur
+   nec utlagetur nec exuletur nec aliquo modo destruatur _nec rex eat
+   vel mittat super eum vi_ nisi per judicium parium suorum vel per
+   legem 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."[19]
+
+It is evident that the difference between the true and false
+translations of the words, _nec super eum ibimus, nec super eum
+mittemus_, is of the highest legal importance, inasmuch as the true
+translation, _nor will we (the king) proceed against him, nor send (any
+one) against him by force or arms_, represents the king only in an
+_executive_ character, _carrying the judgment of the peers and "the law
+of the land" into execution_; whereas the false translation, _nor will
+we pass upon him, nor condemn him_, gives color for the exercise of a
+_judicial_ power, on the part of the king, to which the king had no
+right, but which, according to the true translation, belongs wholly to
+the jury.
+
+   "_Per legale judicium parium suorum._"
+
+The foregoing interpretation is corroborated, (if it were not already
+too plain to be susceptible of corroboration,) by the true
+interpretation of the phrase "_per legale judicium parium suorum_."
+
+In giving this interpretation, I leave out, for the present, the word
+_legale_, which will be defined afterwards.
+
+The true meaning of the phrase, _per judicium parium suorum_, is,
+_according to the sentence of his peers_. The word _judicium, judgment_,
+has a technical meaning in the law, signifying the decree rendered in
+the decision of a cause. In civil suits this decision is called a
+_judgment_; in chancery proceedings it is called a _decree_; in criminal
+actions it is called a _sentence_, or _judgment_, indifferently. Thus,
+in a criminal suit, "a motion in arrest of _judgment_" means a motion in
+arrest of _sentence_.[20]
+
+In cases of sentence, therefore, in criminal suits, the words _sentence_
+and _judgment_ are synonymous terms. They are, to this day, commonly
+used in law books as synonymous terms. And the phrase _per judicium
+parium suorum_, therefore, implies that the jury are to fix the
+sentence.
+
+The word _per_ means _according to_. Otherwise there is no sense in the
+phrase _per judicium parium suorum_. There would be no sense in saying
+that a king might imprison, disseize, outlaw, exile, or otherwise punish
+a man, or proceed against him, or send any one against him, _by force or
+arms, by_ a judgment of his peers; but there is sense in saying that the
+king may imprison, disseize, and punish a man, or proceed against him,
+or send any one against him, by force or arms, _according to_ a
+judgment, or _sentence_, of his peers; because in that case the king
+would be merely carrying the sentence or judgment of the peers into
+execution.
+
+The word _per_, in the phrase "_per_ judicium parium suorum," of course
+means precisely what it does in the next phrase, "_per_ legem 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 sentence of the peers, or the law of the land, themselves into
+execution.
+
+Doing a thing _by_ law, or _according to_ law, is only carrying the law
+into execution. And punishing a man _by_, or _according to_, the
+sentence or judgment of his peers, is only carrying that sentence or
+judgment into execution.
+
+If these reasons could leave any doubt that the word _per_ is to be
+translated _according to_, that doubt would be removed by the terms of
+an antecedent guaranty for the trial by jury, granted by the Emperor
+Conrad, of Germany,[21] two hundred years before Magna Carta. Blackstone
+cites it as follows:--(_3 Blackstone_, 350.)
+
+"Nemo beneficium suum perdat, nisi _secundum_ consuetudinem antecessorum
+nostrorum, et judicium parium suorum." That is, No one shall lose his
+estate,[22] unless _according to_ ("_secundum_") the custom (or law) of
+our ancestors, and (_according to_) the sentence (or judgment) of his
+peers.
+
+The evidence is therefore conclusive that the phrase _per judicium
+parium suorum_ means _according to the sentence of his peers_; thus
+implying that the jury, and not the government, are to fix the sentence.
+
+If any additional proof were wanted that juries were to fix the
+sentence, it would be found in the following provisions of Magna Carta,
+viz.:
+
+   "A freeman shall not be amerced for a small crime, (_delicto_,) but
+   according to the degree of the crime; and for a great crime in
+   proportion to the magnitude of it, saving to him his
+   _contenement_;[23] and after the same manner a merchant, saving to
+   him his merchandise. And a villein shall be amerced after the same
+   manner, saving to him his waynage,[24] if he fall under our mercy;
+   _and none of the aforesaid amercements shall be imposed, (or
+   assessed, ponatur,) but by the oath of honest men of the
+   neighborhood. Earls and Barons shall not be amerced but by their
+   peers_, and according to the degree of their crime."[25]
+
+Pecuniary punishments were the most common punishments at that day, and
+the foregoing provisions of Magna Carta show that the amount of those
+punishments was to be fixed by the jury.
+
+Fines went to the king, and were a source of revenue; and if the amounts
+of the fines had been left to be fixed by the king, he would have had a
+pecuniary temptation to impose unreasonable and oppressive ones. So,
+also, in regard to other punishments than fines. If it were left to the
+king to fix the punishment, he might often have motives to inflict cruel
+and oppressive ones. As it was the object of the trial by jury to
+protect the people against all possible oppression from the king, it was
+necessary that the jury, and not the king, should fix the
+punishments.[26]
+
+"_Legale._"
+
+The word "_legale_," in the phrase "_per legale judicium parium
+suorum_," doubtless means two things. 1. That the sentence must be given
+in a legal manner; that is, by the legal number of jurors, legally
+empanelled and sworn to try the cause; and that they give their judgment
+or sentence after a legal trial, both in form and substance, has been
+had. 2. That the sentence shall be for a legal cause or offence. If,
+therefore, a jury should convict and sentence a man, either without
+giving him a legal trial, or for an act that was not really and legally
+criminal, the sentence itself would not be legal; and consequently this
+clause forbids the king to carry such a sentence into execution; for the
+clause guarantees that he will execute no judgment or sentence, except
+it be _legale judicium_, a legal sentence. Whether a sentence be a legal
+one, would have to be ascertained by the king or his judges, on appeal,
+or might be judged of informally by the king himself.
+
+The word "_legale_" clearly did not mean that the _judicium parium
+suorum_ (judgment of his peers) should be a sentence which any law (of
+the king) should _require_ the peers to pronounce; for in that case the
+sentence would not be the sentence of the peers, but only the sentence
+of the law, (that is, of the king); and the peers would be only a
+mouthpiece of the law, (that is, of the king,) in uttering it.
+
+   "_Per legem 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,
+   "_Nolumus leges 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 to
+   maintain_," &c.--_St. 20 Edward III._
+
+The foregoing authorities are cited to show to the unprofessional
+reader, what is well known to the profession, that _legem 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 terrae_ had included laws enacted by the king himself,
+the whole chapter of Magna Carta, now under discussion, would have
+amounted to nothing as a protection to liberty; because it would have
+imposed no restraint whatever upon the power of the king. The king could
+make laws at any time, and such ones as he pleased. He could, therefore,
+have done anything he pleased, _by the law of the land_, as well as in
+any other way, if his own laws had been "_the law of the land_." If his
+own laws had been "the law of the land," within the meaning of that term
+as used in Magna Carta, this chapter of Magna Carta would have been
+sheer nonsense, inasmuch as the whole purport of it would have been
+simply that "no man shall be arrested, imprisoned, or deprived of his
+freehold, or his liberties, or free customs, or outlawed, or exiled, or
+in any manner destroyed (by the king); nor shall the king proceed
+against him, nor send any one against him with force and arms, unless by
+the judgment of his peers, _or unless the king shall please to do so_."
+
+This chapter of Magna Carta would, therefore, have imposed not the
+slightest restraint upon the power of the king, or afforded the
+slightest protection to the liberties of the people, if the laws of the
+king had been embraced in the term _legem 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 known in England, in criminal
+cases, for some centuries previous to Magna Carta. All of them had
+become nearly extinct at the time of Magna Carta, and it is not probable
+that they were included in "_legem 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.[27] For all practical purposes of the present day,
+therefore, it may be asserted that Magna Carta allows no trial whatever
+but trial by jury.
+
+_Whether Magna Carta allowed sentence to be fixed otherwise than by the
+jury._
+
+Still another question arises on the words _legem 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 in any particular case, is a matter requiring the
+exercise of discretion at the time, in order to adapt it to the moral
+quality of the offence, which is different in each case, varying with
+the mental and moral constitutions of the offenders, and the
+circumstances of temptation or provocation. And Magna Carta recognizes
+this principle distinctly, as has before been shown, in providing that
+freemen, merchants, and villeins, "shall not be amerced for a small
+crime, but according to the degree of the crime; and for a great crime
+in proportion to the magnitude of it;" and that "none of the aforesaid
+amercements shall be imposed (or assessed) but by the oaths of honest
+men of the neighborhood;" and that "earls and barons shall not be
+amerced but by their peers, and according to the quality of the
+offence."
+
+All this implies that the moral quality of the offence was to be judged
+of at the trial, and that the punishment was to be fixed by the
+discretion of the peers, or jury, and not by any such unvarying rule as
+a common law rule would be.
+
+I think, therefore, it must be conceded that, in all cases, tried by a
+jury, Magna Carta intended that the punishment should be fixed by the
+jury, and not by the common law, for these several reasons.
+
+1. It is uncertain whether the _common law_ fixed the punishment of any
+offence whatever.
+
+2. The words "_per judicium parium suorum_," _according to the sentence
+of his peers_, imply that the jury fixed the sentence in _some_ cases
+tried by them; and if they fixed the sentence in some cases, it must be
+presumed they did in all, unless the contrary be clearly shown.
+
+3. The express provisions of Magna Carta, before adverted to, that no
+amercements, or fines, should be imposed upon freemen, merchants, or
+villeins, "but by the oath of honest men of the neighborhood," and
+"according to the degree of the crime," and that "earls and barons
+should not be amerced but by their peers, and according to the quality
+of the offence," _proves_ that, at least, there was no common law fixing
+the amount of _fines_, or, if there were, that it was to be no longer in
+force. And if there was no common law fixing the amount of _fines_, or
+if it was to be no longer in force, it is reasonable to infer, (in the
+absence of all evidence to the contrary,) either that the common law did
+not fix the amount of any other punishment, or that it was to be no
+longer in force for that purpose.[28]
+
+Under the Saxon laws, fines, payable to the injured party, seem to have
+been the common punishments for all offences. Even murder was punishable
+by a fine payable to the relatives of the deceased. The murder of the
+king even was punishable by fine. When a criminal was unable to pay his
+fine, his relatives often paid it for him. But if it were not paid, he
+was put out of the protection of the law, and the injured parties, (or,
+in the case of murder, the kindred of the deceased,) were allowed to
+inflict such punishment as they pleased. And if the relatives of the
+criminal protected him, it was lawful to take vengeance on them also.
+Afterwards the custom grew up of exacting fines also to the king as a
+punishment for offences.[29] And this latter was, doubtless, the usual
+punishment at the time of Magna Carta, as is evidenced by the fact that
+for many years immediately following Magna Carta, nearly or quite all
+statutes that prescribed any punishment at all, prescribed that the
+offender should "be grievously amerced," or "pay a great fine to the
+king," or a "grievous ransom,"--with the alternative in some cases
+(perhaps _understood_ in all) of imprisonment, banishment, or outlawry,
+in case of non-payment.[30]
+
+Judging, therefore, from the special provisions in Magna Carta,
+requiring _fines_, or amercements, to be imposed only by juries,
+(without mentioning any other punishments;) judging, also, from the
+statutes which immediately followed Magna Carta, it is probable that the
+Saxon custom of punishing all, or nearly all, offences by _fines_, (with
+the alternative to the criminal of being imprisoned, banished, or
+outlawed, and exposed to private vengeance, in case of non-payment,)
+continued until the time of Magna Carta; and that in providing expressly
+that _fines_ should be fixed by the juries, Magna Carta provided for
+nearly or quite all the punishments that were expected to be inflicted;
+that if there were to be any others, they were to be fixed by the
+juries; and consequently that nothing was left to be fixed by "_legem
+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 it is material for us to know_--that
+the jury fixed the punishments, in all cases, unless they were fixed by
+the _common law_; that Magna Carta allowed no punishments to be
+prescribed by statute--that is, by the legislative power--nor in any
+other manner by the king, or his judges, in any case whatever; and,
+consequently, that all statutes prescribing particular punishments for
+particular offences, or giving the king's judges any authority to fix
+punishments, were void.
+
+If the power to fix punishments had been left in the hands of the king,
+it would have given him a power of oppression, which was liable to be
+greatly abused; which there was no occasion to leave with him; and which
+would have been incongruous with the whole object of this chapter of
+Magna Carta; which object was to take all discretionary or arbitrary
+power over individuals entirely out of the hands of the king, and his
+laws, and entrust it only to the common law, and the peers, or
+jury--that is, the people.
+
+_What lex 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 and sentence,
+then, were wholly in the hands of the jury.
+
+We also have sufficient evidence of the nature of the oath administered
+to jurors in criminal cases. It was simply, that _they would neither
+convict the innocent, nor acquit the guilty_. This was the oath in the
+Saxon times, and probably continued to be until Magna Carta.
+
+We also know that, in case of _conviction_, the sentence of the jury was
+not necessarily final; that the accused had the right of appeal to the
+king and his judges, and to demand either a new trial, or an acquittal,
+if the trial or conviction had been against law.
+
+So much, therefore, of the _legem 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 getting
+employment as laborers were not what they are now, the man and his
+family would probably have been liable to starvation, if these means of
+subsistence had been taken from him.
+
+We also know, _generally_, that, at the time of Magna Carta, _all acts
+intrinsically criminal_, all trespasses against persons and property,
+were crimes, according to _lex terrae_, or the common law.
+
+Beyond the points now given, we hardly know anything, probably nothing
+_with certainty_, as to what the "_legem terrae_" of _Magna Carta_ did
+authorize, in regard to crimes. There is hardly anything extant that can
+give us any real light on the subject.
+
+It would seem, however, that there were, even at that day, some common
+law principles governing arrests; and some common law forms and rules as
+to holding a man for trial, (by bail or imprisonment;) putting him on
+trial, such as by indictment or complaint; summoning and empanelling
+jurors, &c., &c. Whatever these common law principles were, Magna Carta
+requires them to be observed; for Magna Carta provides for the whole
+proceedings, commencing with the arrest, ("no freeman shall be
+_arrested_," &c.,) and ending with the execution of the sentence. And it
+provides that nothing shall be done, by the government, from beginning
+to end, unless according to the sentence of the peers, or "_legem
+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 trial. But all the proceedings for arresting the man,
+and bringing him to trial, must have been had before the case could come
+under the cognizance of the peers, and they must, therefore, have been
+governed by other rules than the discretion of the peers. We may
+_conjecture_, although we cannot perhaps know with much certainty, that
+the _lex terrae_, or common law, governing these other proceedings, was
+somewhat similar to the common law principles, on the same points, at
+the present day. Such seem to be the opinions of Coke, who says that the
+phrase _nisi per legem terrae_ means _unless by due process of law_.
+
+Thus, he says:
+
+"_Nisi per legem terrae. But by the law of the land._ For the true sense
+and exposition of these words, see the statute of 37 Edw. III., cap. 8,
+where the words, _by the law of the land_, are rendered _without due
+process of law_; for there it is said, though it be contained in the
+Great Charter, that no man be taken, imprisoned, or put out of his
+freehold, _without process of the law; that is, by indictment or
+presentment of good and lawful men, where such deeds be done in due
+manner, or by writ original of the common law_.
+
+"Without being brought in to answer but by due process of the common
+law.
+
+"No man be put to answer without presentment before justices, or thing
+of record, or by due process, or by writ original, _according to the old
+law of the land_."--_2 Inst._ 50.
+
+The foregoing interpretations of the words _nisi per legem 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."--_St. 25 Edward III., Ch._ 4. (1350.)
+
+"That no man, of what estate or condition that he be, shall be put out
+of land or tenement, nor taken, nor imprisoned, nor disinherited, nor
+put to death, without being brought in answer _by due process of
+law_."--_St. 28 Edward III., Ch._ 3. (1354.)
+
+"That no man be put to answer without presentment before justices, or
+matter of record, or by due process and writ original, according to the
+_old law of the land_. And if anything from henceforth be done to the
+contrary, it shall be void in law, and holden for error."--_St. 42
+Edward III., Ch._ 3. (1368.)
+
+The foregoing interpretation of the words _nisi per legem 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_, 676; 4 _Hill_, 146.)
+
+The fifth amendment to the constitution of the United States seems to
+have been framed on the same idea, inasmuch as it provides that "no
+person shall be deprived of life, liberty, or property, _without due
+process of law_."[31]
+
+_Whether the word_ VEL _should be rendered by_ OR, _or by_ AND.
+
+Having thus given the meanings, or rather the applications, which the
+words _vel per legem 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 parium
+suorum, vel per legem terrae_, (which would then read, unless by the
+sentence of his peers, _and_ the law of the land,) would convey a more
+intelligible and harmonious meaning than it otherwise does.
+
+Blackstone suggests that this may be the true reading. (_Charters_, p.
+41.) Also Mr. Hallam, who says:
+
+   "Nisi per legale judicium parium suorum, _vel_ per legem terrae.
+   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 am not wholly free from a suspicion that it was so
+   intended in this place. The meaning will be, that no person shall be
+   disseized, &c., except upon a lawful cause of action, found by the
+   verdict of a jury. This really seems as good as any of the
+   disjunctive interpretations; but I do not offer it with much
+   confidence."--2 _Hallam's Middle Ages, Ch._ 8, _Part_ 2, p. 449,
+   _note_.[32]
+
+The idea that the word _vel_ should be rendered by _and_, is
+corroborated, if not absolutely confirmed, by the following passage in
+Blackstone, which has before been cited. Speaking of the trial by jury,
+as established by Magna Carta, he calls it,
+
+   "A privilege which is couched in almost the same words with that of
+   the Emperor Conrad two hundred years before: 'nemo beneficium suum
+   perdat, nisi secundum consuetudinem antecessorum nostrorum, _et_
+   judicium parium suorum.'" (No one shall lose his estate unless
+   according to the custom of our ancestors, and the judgment of his
+   peers.)--_3 Blackstone_, 350.
+
+If the word _vel_ be rendered by _and_, (as I think it must be, at least
+in some cases,) this chapter of Magna Carta will then read that no
+freeman shall be arrested or punished, "unless according to the sentence
+of his peers, _and_ the law of the land."
+
+The difference between this reading and the other is important. In the
+one case, there would be, at first view, some color of ground for saying
+that a man might be punished in either of two ways, viz., according to
+the sentence of his peers, _or_ according to the law of the land. In the
+other case, it requires both the sentence of his peers _and_ the law of
+the land (common law) to authorize his punishment.
+
+If this latter reading be adopted, the provision would seem to exclude
+all trials except trial by jury, and all causes of action except those
+of the _common law_.
+
+But I apprehend the word vel must be rendered both by _and_, and by
+_or_; that in cases of a _judgment_, it should be rendered by _and_, so
+as to require the concurrence both of "the judgment of the peers _and_
+the law of the land," to authorize the king to make execution upon a
+party's goods or person; but that in cases of arrest and imprisonment,
+simply for the purpose of bringing a man to trial, _vel_ should be
+rendered by or, because there can have been no judgment of a jury in
+such a case, and "the law of the land" must therefore necessarily be the
+only guide to, and restraint upon, the king. If this guide and restraint
+were taken away, the king would be invested with an arbitrary and most
+dangerous power in making arrests, and confining in prison, under
+pretence of an intention to bring to trial.
+
+Having thus examined the language of this chapter of Magna Carta, so far
+as it relates to criminal cases, its legal import may be stated as
+follows, viz.:
+
+No freeman shall be arrested, or imprisoned, or deprived of his
+freehold, or his liberties, or free customs, or be outlawed, or exiled,
+or in any manner destroyed, (harmed,) nor will we (the king) proceed
+against him, nor send any one against him, by force or arms, unless
+according to (that is, in execution of) the sentence of his peers, _and_
+(or _or_, as the case may require) the Common Law of England, (as it was
+at the time of Magna Carta, in 1215.)
+
+[Footnote 5: 1 Hume, Appendix 2.]
+
+[Footnote 6: Crabbe's History of the English Law, 236.]
+
+[Footnote 7: Coke says, "The king of England is armed with divers
+councils, one whereof is called _commune concilium_, (the common
+council,) and that is the court of parliament, and so it is _legally_
+called in writs and judicial proceedings _commune concilium regni
+Angliae_, (the common council of the kingdom of England.) And another is
+called _magnum concilium_, (great council;) this is sometimes applied to
+the upper house of parliament, and sometimes, out of parliament time, to
+the peers of the realm, lords of parliament, who are called _magnum
+concilium regis_, (the great council of the king;) * * Thirdly, (as
+every man knoweth,) the king hath a privy council for matters of state.
+* * The fourth council of the king are his judges for law matters."
+
+_1 Coke's Institutes, 110 a._]
+
+[Footnote 8: The Great Charter of Henry III., (1216 and 1225,) confirmed
+by Edward I., (1297,) makes no provision whatever for, or mention of, a
+parliament, unless the provision, (Ch. 37,) that "Escuage, (a military
+contribution,) from henceforth shall be taken like as it was wont to be
+in the time of King Henry our grandfather," mean that a parliament shall
+be summoned for that purpose.]
+
+[Footnote 9: The Magna Carta of John, (Ch. 17 and 18,) defines those who
+were entitled to be summoned to parliament, to wit, "The Archbishops,
+Bishops, Abbots, Earls, and Great Barons of the Realm, * * and all
+others who hold of us _in chief_." Those who held land of the king _in
+chief_ included none below the rank of knights.]
+
+[Footnote 10: The parliaments of that time were, doubtless, such as
+Carlyle describes them, when he says, "The parliament was at first a
+most simple assemblage, quite cognate to the situation; that Red
+William, or whoever had taken on him the terrible task of being King of
+England, was wont to invite, oftenest about Christmas time, his
+subordinate Kinglets, Barons as he called them, to give him the pleasure
+of their company for a week or two; there, in earnest conference all
+morning, in freer talk over Christmas cheer all evening, in some big
+royal hall of Westminster, Winchester, or wherever it might be, with log
+fires, huge rounds of roast and boiled, not lacking malmsey and other
+generous liquor, they took counsel concerning the arduous matters of the
+kingdom."]
+
+[Footnote 11: Hume, Appendix 2.]
+
+[Footnote 12: This point will be more fully established hereafter.]
+
+[Footnote 13: It is plain that the king and all his partisans looked
+upon the charter as utterly prostrating the king's legislative supremacy
+before the discretion of juries. When the schedule of liberties demanded
+by the barons was shown to him, (of which the trial by jury was the most
+important, because it was the only one that protected all the rest,)
+"the king, falling into a violent passion, asked, _Why the barons did
+not with these exactions demand his kingdom?_ * * _and with a solemn
+oath protested, that he would never grant such liberties as would make
+himself a slave_." * * But afterwards, "seeing himself deserted, and
+fearing they would seize his castles, he sent the Earl of Pembroke and
+other faithful messengers to them, to let them know _he would grant them
+the laws and liberties they desired_." * * But after the charter had
+been granted, "the king's mercenary soldiers, desiring war more than
+peace, were by their leaders continually whispering in his ears, _that
+he was now no longer king, but the scorn of other princes; and that it
+was more eligible to be no king, than such a one as he_." * * He applied
+"to the Pope, that he might by his apostolic authority make void what
+the barons had done. * * At Rome he met with what success he could
+desire, where all the transactions with the barons were fully
+represented to the Pope, and the Charter of Liberties shown to him, in
+writing; which, when he had carefully perused, he, with a furious look,
+cried out, _What! Do the barons of England endeavor to dethrone a king,
+who has taken upon him the Holy Cross, and is under the protection of
+the Apostolic See; and would they force him to transfer the dominions of
+the Roman Church to others? By St. Peter, this injury must not pass
+unpunished._ Then debating the matter with the cardinals, he, by a
+definitive sentence, damned and cassated forever the Charter of
+Liberties, and sent the king a bull containing that sentence at
+large."--_Echard's History of England_, p. 106-7.
+
+These things show that the nature and effect of the charter were well
+understood by the king and his friends; that they all agreed that he was
+effectually stripped of power. _Yet the legislative power had not been
+taken from him; but only the power to enforce his laws, unless juries
+should freely consent to their enforcement._]
+
+[Footnote 14: The laws were, at that time, all written in Latin.]
+
+[Footnote 15: "No man shall be condemned at the king's suit, either
+before the king in his bench, where pleas are _coram rege_, (before the
+king,) (and so are the words _nec super eum ibimus_, to be understood,)
+nor before any other commissioner or judge whatsoever, and so are the
+words _nec super eum mittemus_, to be understood, but by the judgment of
+his peers, that is, equals, or according to the law of the land."--_2
+Coke's Inst._, 46.]
+
+[Footnote 16: Perhaps the assertion in the text should be made with this
+qualification--that the words "_per legem terrae_," (according to the law
+of the land,) and the words "_per legale judicium parium suorum_,"
+(according to the _legal_ judgment of his peers,) imply that the king,
+before proceeding to any _executive_ action, will take notice of "the
+law of the land," and of the _legality_ of the judgment of the peers,
+and will _execute_ upon the prisoner nothing except what the law of the
+land authorizes, and no judgments of the peers, except _legal_ ones.
+With this qualification, the assertion in the text is strictly
+correct--that there is nothing in the whole chapter that grants to the
+king, or his judges, any _judicial_ power at all. The chapter only
+describes and _limits_ his _executive_ power.]
+
+[Footnote 17: See Blackstone's Law Tracts, page 294, Oxford Edition.]
+
+[Footnote 18: These Articles of the Charter are given in Blackstone's
+collection of Charters, and are also printed with the _Statutes of the
+Realm_. Also in Wilkins' Laws of the Anglo-Saxons, p. 356.]
+
+[Footnote 19: Lingard says, "The words, '_We will not destroy him, nor
+will we go upon him, nor will we send upon him_,' have been very
+differently expounded by different legal authorities. Their real meaning
+may be learned from John himself, who the next year promised by his
+letters patent ... nec super eos _per vim vel per arma_ ibimus, nisi per
+legem regni nostri, vel per judicium parium suorum in curia nostra, (nor
+will we go upon them _by force or by arms_, unless by the law of our
+kingdom, or the judgment of their peers in our court.) Pat. 16 Johan,
+apud Drad. 11, app. no. 124. He had hitherto been in the habit of
+_going_ with an armed force, or _sending_ an armed force on the lands,
+and against the castles, of all whom he knew or suspected to be his
+secret enemies, without observing any form of law."--3 Lingard, 47
+note.]
+
+[Footnote 20: "_Judgment, judicium._ * * The sentence of the law,
+pronounced by the court, upon the matter contained in the record."--3
+_Blackstone_, 395. _Jacob's Law Dictionary. Tomlin's do._
+
+"_Judgment_ is the decision or sentence of the law, given by a court of
+justice or other competent tribunal, as the result of the proceedings
+instituted therein, for the redress of an injury."--_Bouvier's Law
+Dict._
+
+"_Judgment, judicium._ * * Sentence of a judge against a criminal. * *
+Determination, decision in general."--_Bailey's Dict._
+
+"_Judgment._ * * In a legal sense, a sentence or decision pronounced by
+authority of a king, or other power, either by their own mouth, or by
+that of their judges and officers, whom they appoint to administer
+justice in their stead."--_Chambers' Dict._
+
+"_Judgment._ * * In law, the sentence or doom pronounced in any case,
+civil or criminal, by the judge or court by which it is
+tried."--_Webster's Dict._
+
+Sometimes the punishment itself is called _judicium_, _judgment_; or,
+rather, it was at the time of Magna Carta. For example, in a statute
+passed fifty-one years after Magna Carta, it was said that a baker, for
+default in the weight of his bread, "debeat amerciari vel subire
+_judicium_ pillorie;" that is, ought to be amerced, or suffer the
+punishment, or judgment, of the pillory. Also that a brewer, for
+"selling ale contrary to the assize," "debeat amerciari, vel pati
+_judicium_ tumbrelli"; that is, ought to be amerced, or suffer the
+punishment, or judgment, of the tumbrel.--51 _Henry_ 3, _St._ 6. (1266.)
+
+Also the "_Statutes of uncertain date_," (but supposed to be prior to
+Edward III., or 1326,) provide, in chapters 6, 7, and 10, for
+"_judgment_ of the pillory."--_See 1 Ruffhead's Statutes_, 187, 188. 1
+_Statutes of the Realm_, 203.
+
+Blackstone, in his chapter "Of _Judgment_, and its Consequences," says,
+
+"_Judgment_ (unless any matter be offered in arrest thereof) follows
+upon conviction; being the pronouncing of that punishment which is
+expressly ordained by law."--_Blackstone's Analysis of the Laws of
+England, Book 4, Ch. 29, Sec. 1. Blackstone's Law Tracts_, 126.
+
+Coke says, "_Judicium_ ... the judgment is the guide and direction of
+the execution." 3 _Inst._ 210.]
+
+[Footnote 21: This precedent from Germany is good authority, because the
+trial by jury was in use, in the northern nations of Europe generally,
+long before Magna Carta, and probably from time immemorial; and the
+Saxons and Normans were familiar with it before they settled in
+England.]
+
+[Footnote 22: _Beneficium_ was the legal name of an estate held by a
+feudal tenure. See Spelman's Glossary.]
+
+[Footnote 23: _Contenement_ of a freeman was the means of living in the
+condition of a freeman.]
+
+[Footnote 24: _Waynage_ was a villein's plough-tackle and carts.]
+
+[Footnote 25: Tomlin says, "The ancient practice was, when any such fine
+was imposed, to inquire by a jury _quantum inde regi dare valeat per
+annum, salva sustentatione sua et uxoris et liberorum suorum_, (how much
+is he able to give to the king per annum, saving his own maintenance,
+and that of his wife and children). And since the disuse of such
+inquest, it is never usual to assess a larger fine than a man is able to
+pay, without touching the implements of his livelihood; but to inflict
+corporal punishment, or a limited imprisonment, instead of such a fine
+as might amount to imprisonment for life. And this is the reason why
+fines in the king's courts are frequently denominated ransoms, because
+the penalty must otherwise fall upon a man's person, unless it be
+redeemed or ransomed by a pecuniary fine."--_Tomlin's Law Dict., word
+Fine._]
+
+[Footnote 26: Because juries were to fix the sentence, it must not be
+supposed that the king was _obliged_ to carry the sentence into
+execution; _but only that he could not go beyond the sentence_. He might
+pardon, or he might acquit on grounds of law, notwithstanding the
+sentence; but he could not punish beyond the extent of the sentence.
+Magna Carta does not prescribe that the king _shall punish_ according to
+the sentence of the peers; but only that he shall not punish _"unless
+according to" that sentence_. He may acquit or pardon, notwithstanding
+their sentence or judgment; but he cannot punish, except according to
+their judgment.]
+
+[Footnote 27: _The trial by battle_ was one in which the accused
+challenged his accuser to single combat, and staked the question of his
+guilt or innocence on the result of the duel. This trial was introduced
+into England by the Normans, within one hundred and fifty years before
+Magna Carta. It was not very often resorted to even by the Normans
+themselves; probably never by the Anglo-Saxons, unless in their
+controversies with the Normans. It was strongly discouraged by some of
+the Norman princes, particularly by Henry II., by whom the trial by jury
+was especially favored. It is probable that the trial by battle, so far
+as it prevailed at all in England, was rather tolerated as a matter of
+chivalry, than authorized as a matter of law. At any rate, it is not
+likely that it was included in the "_legem 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 Blackstone_
+345, _note_.
+
+I apprehend that this trial was never forced upon accused persons, but
+was only allowed to them, _as an appeal to God_, from the judgment of a
+jury.[33]
+
+_The trial by compurgators_ was one in which, if the accused could bring
+twelve of his neighbors, who would make oath that they believed him
+innocent, he was held to be so. It is probable that this trial was
+really the trial by jury, or was allowed as an appeal from a jury. It is
+wholly improbable that two different modes of trial, so nearly
+resembling each other as this and the trial by jury do, should prevail
+at the same time, and among a rude people, whose judicial proceedings
+would naturally be of the simplest kind. But if this trial really were
+any other than the trial by jury, it must have been nearly or quite
+extinct at the time of Magna Carta; and there is no probability that it
+was included in "_legem terrae_."]
+
+[Footnote 28: Coke attempts to show that there is a distinction between
+amercements and fines--admitting that amercements must be fixed by one's
+peers, but claiming that fines may be fixed by the government. (_2
+Inst._ 27, _8 Coke's Reports_ 38.) But there seems to have been no
+ground whatever for supposing that any such distinction existed at the
+time of Magna Carta. If there were any such distinction in the time of
+Coke, it had doubtless grown up within the four centuries that had
+elapsed since Magna Carta, and is to be set down as one of the
+numberless inventions of government for getting rid of the restraints of
+Magna Carta, and for taking men out of the protection of their peers,
+and subjecting them to such punishments as the government chooses to
+inflict.
+
+The first statute of Westminster, passed sixty years after Magna Carta,
+treats the fine and amercement as synonymous, as follows:
+
+"Forasmuch as _the common fine and amercement_ of the whole county in
+Eyre of the justices for false judgments, or for other trespass, is
+unjustly assessed by sheriffs and baretors in the shires, * * it is
+provided, and the king wills, that from henceforth such sums shall be
+assessed before the justices in Eyre, afore their departure, _by the
+oath of knights and other honest men_," &c.--_3 Edward I., Ch._ 18.
+(1275.)
+
+And in many other statutes passed after Magna Carta, the terms _fine_
+and _amercement_ seem to be used indifferently, in prescribing the
+punishment for offences. As late as 1461, (246 years after Magna Carta,)
+the statute _1 Edward IV., Ch._ 2, speaks of "_fines, ransoms, and
+amerciaments_" as being levied upon criminals, as if they were the
+common punishments of offences.
+
+_St._ 2 and 3 _Philip and Mary, Ch._ 8, uses the terms, "_fines,
+forfeitures, and amerciaments_" five times. (1555.)
+
+_St. 5 Elizabeth, Ch._ 13, _Sec._ 10, uses the terms "_fines,
+forfeitures, and amerciaments_."
+
+That amercements were fines, or pecuniary punishments, inflicted for
+offences, is proved by the following statutes, (all supposed to have
+been passed within one hundred and fifteen years after Magna Carta,)
+which speak of amercements as a species of "_judgment_," or punishment,
+and as being inflicted for the same offences as other "judgments."
+
+Thus one statute declares that a baker, for default in the weight of his
+bread, "ought to be _amerced_, or suffer the _judgment_ of the pillory;"
+and that a brewer, for "selling ale contrary to the assize," "ought to
+be _amerced_, or suffer the _judgment_ of the tumbrel."--_51 Henry III.,
+St._ 6. (1266.)
+
+Among the "_Statutes of Uncertain Date_," but supposed to be prior to
+Edward III., (1326,) are the following:
+
+_Chap._ 6 provides that "if a brewer break the assize, (fixing the price
+of ale,) the first, second, and third time, he shall be _amerced_; but
+the fourth time he shall suffer _judgment_ of the pillory without
+redemption."
+
+_Chap._ 7 provides that "a butcher that selleth swine's flesh measled,
+or flesh dead of the murrain, or that buyeth flesh of Jews, and selleth
+the same unto Christians, after he shall be convict thereof, for the
+first time he shall be grievously _amerced_; the second time he shall
+suffer _judgment_ of the pillory; and the third time he shall be
+imprisoned and make _fine_; and the fourth time he shall forswear the
+town."
+
+_Chap. 10_, a statute against _forestalling_, provides that,
+
+"He that is convict thereof, the first time shall be _amerced_, and
+shall lose the thing so bought, and that according to the custom of the
+town; he that is convicted the second time shall have _judgment_ of the
+pillory; at the third time he shall be imprisoned and make _fine_; the
+fourth time he shall abjure the town. And this _judgment_ shall be given
+upon all manner of forestallers, and likewise upon them that have given
+them counsel, help, or favor."--_1 Ruffhead's Statutes_, 187, 188. _1
+Statutes of the Realm_, 203.]
+
+[Footnote 29: 1 Hume, Appendix, 1.]
+
+[Footnote 30: Blackstone says, "Our ancient Saxon laws nominally
+punished theft with death, if above the value of twelve pence; but the
+criminal was permitted to redeem his life by a pecuniary ransom, as
+among their ancestors, the Germans, by a stated number of cattle. But in
+the ninth year of Henry the First, (1109,) this power of redemption was
+taken away, and all persons guilty of larceny above the value of twelve
+pence were directed to be hanged, which law continues in force to this
+day."--_4 Blackstone_, 238.
+
+I give this statement of Blackstone, because the latter clause may seem
+to militate with the idea, which the former clause corroborates, viz.,
+that at the time of Magna Carta, fines were the usual punishments of
+offences. But I think there is no probability that a law so unreasonable
+in itself, (unreasonable even after making all allowance for the
+difference in the value of money,) and so contrary to immemorial custom,
+could or did obtain any general or speedy acquiescence among a people
+who cared little for the authority of kings.
+
+Maddox, writing of the period from William the Conqueror to John, says:
+
+"The amercements in criminal and common pleas, which were wont to be
+imposed during this first period and afterwards, were of so many several
+sorts, that it is not easy to place them under distinct heads. Let them,
+for method's sake, be reduced to the heads following: Amercements for or
+by reason of murders and manslaughters, for misdemeanors, for
+disseisins, for recreancy, for breach of assize, for defaults, for
+non-appearance, for false judgment, and for not making suit, or hue and
+cry. To them may be added miscellaneous amercements, for trespasses of
+divers kinds."--_1 Maddox' History of the Exchequer_, 542.]
+
+[Footnote 31: Coke, in his exposition of the words _legem terrae_, gives
+quite in detail the principles of the common law governing _arrests_;
+and takes it for granted that the words "_nisi per legem terrae_" are
+applicable to arrests, as well as to the indictment, &c.--2 _Inst._,
+51,52.]
+
+[Footnote 32: I cite the above extract from Mr. Hallam solely for the
+sake of his authority for rendering the word _vel_ by _and_; and not by
+any means for the purpose of indorsing the opinion he suggests, that
+_legem 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 plaintiff must present a _prima facie_ case before he is entitled to
+a judgment; and Magna Carta, (supposing it to require a jury trial in
+civil cases, as Mr. Hallam assumes that it does,) as much requires that
+this _prima facie_ case, both law and fact, be made out to the
+satisfaction of a jury, as it does that a contested case shall be.
+
+As for a demurrer, the jury must try a demurrer (having the advice and
+assistance of the court, of course) as much as any other matter of law
+arising in a case.
+
+Mr. Hallam evidently thinks there is no use for a jury, except where
+there is a "_trial_"--meaning thereby a contest on matters of _fact_.
+His language is, that "there are many legal procedures, besides _trial_
+by jury, through which a party's goods or person may be taken." Now
+Magna Carta says nothing of _trial_ by jury; but only of the _judgment_,
+or sentence, of a jury. It is only _by inference_ that we come to the
+conclusion that there must be a _trial_ by jury. Since the jury alone
+can give the _judgment_, or _sentence_, we _infer_ that they must _try_
+the case; because otherwise they would be incompetent, and would have no
+moral right, to give _judgment_. They must, therefore, examine the
+grounds, (both of law and fact,) or rather _try_ the grounds, of every
+action whatsoever, whether it be decided on "default, demurrer," or
+otherwise, and render their judgment, or sentence, thereon, before any
+judgment can be a legal one, on which "to take a party's goods or
+person." In short, the principle of Magna Carta is, that no judgment can
+be valid _against a party's goods or person_, (not even a judgment for
+costs,) except a judgment rendered by a jury. Of course a jury must try
+every question, both of law and fact, that is involved in the rendering
+of that judgment. They are to have the assistance and advice of the
+judges, so far as they desire them; but the judgment itself must be
+theirs, and not the judgment of the court.
+
+As to "process of attachment for contempt," it is of course lawful for a
+judge, in his character of a peace officer, to issue a warrant for the
+arrest of a man guilty of a contempt, as he would for the arrest of any
+other offender, and hold him to bail, (or, in default of bail, commit
+him to prison,) to answer for his offence before a jury. Or he may order
+him into custody without a warrant when the offence is committed in the
+judge's presence. But there is no reason why a judge should have the
+power of _punishing_ for contempt, any more than for any other offence.
+And it is one of the most dangerous powers a judge can have, because it
+gives him absolute authority in a court of justice, and enables him to
+tyrannize as he pleases over parties, counsel, witnesses, and jurors. If
+a judge have power to punish for contempt, and to determine for himself
+what is a contempt, the whole administration of justice (or injustice,
+if he choose to make it so) is in his hands. And all the rights of
+jurors, witnesses, counsel, and parties, are held subject to his
+pleasure, and can be exercised only agreeably to his will. He can of
+course control the entire proceedings in, and consequently the decision
+of, every cause, by restraining and punishing every one, whether party,
+counsel, witness, or juror, who presumes to offer anything contrary to
+his pleasure.
+
+This arbitrary power, which has been usurped and exercised by judges to
+punish for contempt, has undoubtedly had much to do in subduing counsel
+into those servile, obsequious, and cowardly habits, which so
+universally prevail among them, and which have not only cost so many
+clients their rights, but have also cost the people so many of their
+liberties.
+
+If any _summary_ punishment for contempt be ever necessary, (as it
+probably is not,) beyond exclusion for the time being from the
+court-room, (which should be done, not as a punishment, but for
+self-protection, and the preservation of order,) the judgment for it
+should be given by the jury, (where the trial is before a jury,) and not
+by the court, for the jury, and not the court, are really the judges.
+For the same reason, exclusion from the court-room should be ordered
+only by the jury, in cases when the trial is before a jury, because
+they, being the real judges and triers of the cause, are entitled, if
+anybody, to the control of the court-room. In appeal courts, where no
+juries sit, it may be necessary--not as a punishment, but for
+self-protection, and the maintenance of order--that the court should
+exercise the power of excluding a person, for the time being, from the
+court-room; but there is no reason why they should proceed to sentence
+him as a criminal, without his being tried by a jury.
+
+If the people wish to have their rights respected and protected in
+courts of justice, it is manifestly of the last importance that they
+jealously guard the liberty of parties, counsel, witnesses, and jurors,
+against all arbitrary power on the part of the court.
+
+Certainly Mr. Hallam may very well say that "one may doubt whether these
+(the several cases he has mentioned) were in contemplation of the
+framers of Magna Carta"--that is, as exceptions to the rule requiring
+that all judgments, that are to be enforced "_against a party's goods or
+person_," be rendered by a jury.
+
+Again, Mr. Hallam says, if the word _vel_ be rendered by _and_, "the
+meaning will be, that no person shall be disseized, &c., _except upon a
+lawful cause of action_." This is true; but it does not follow that any
+cause of action, founded on _statute only_, is therefore a "_lawful_
+cause of action," within the meaning of _legem 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.]
+
+[Footnote 33: Hallam says, "It appears as if the ordeal were permitted
+to persons already convicted by this verdict of a jury."--_2 Middle
+Ages_, 446, _note_.]
+
+
+
+
+CHAPTER III.
+
+ADDITIONAL PROOFS OF THE RIGHTS AND DUTIES OF JURORS.
+
+
+If any evidence, extraneous to the history and language of Magna Carta,
+were needed to prove that, by that chapter which guaranties the trial by
+jury, all was meant that has now been ascribed to it, and _that the
+legislation of the king was to be of no authority with the jury beyond
+what they chose to allow to it_, and that the juries were to limit the
+punishments to be inflicted, we should find that evidence in various
+sources, such as the laws, customs, and characters of their ancestors on
+the continent, and of the northern Europeans generally; in the
+legislation and customs that immediately succeeded Magna Carta; in the
+oaths that have at different times been administered to jurors, &c., &c.
+This evidence can be exhibited here but partially. To give it all would
+require too much space and labor.
+
+
+SECTION I.
+
+_Weakness of the Regal Authority._
+
+Hughes, in his preface to his translation of Horne's "_Mirror of
+Justices_," (a book written in the time of Edward I., 1272 to 1307,)
+giving a concise view of the laws of England generally, says:
+
+   "Although in the Saxon's time I find the usual words of the acts then
+   to have been _edictum_, (edict,) _constitutio_, (statute,) little
+   mention being made of the commons, yet I further find that, _tum
+   demum leges vim et vigerem habuerunt, cum fuerunt non modo 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 Kings_:"
+
+   "Many ordinances were made by many kings, until the time of the king
+   that now is (Edward I.); the which ordinances were abused, _or not
+   used by many, nor very current_, because they were not put in
+   writing, and certainly published."--_Mirror of Justices_, p. 6.
+
+Hallam says:
+
+   "The Franks, Lombards, and Saxons seem alike to have been jealous of
+   judicial authority; and averse to surrendering what concerned every
+   man's private right, out of the hands of his neighbors and
+   equals."--_1 Middle Ages_, 271.
+
+The "judicial authority," here spoken of, was the authority of the
+kings, (who at that time united the office of both legislators and
+judges,) and not of a separate department of government, called the
+judiciary, like what has existed in more modern times.[34]
+
+Hume says:
+
+   "The government of the Germans, and that of all the northern nations,
+   who established themselves on the ruins of Rome, was always extremely
+   free; and those fierce people, accustomed to independence and inured
+   to arms, _were more guided by persuasion than authority, in the
+   submission which they paid to their princes_. The military despotism,
+   which had taken place in the Roman empire, and which, previously to
+   the irruption of those conquerors, had sunk the genius of men, and
+   destroyed every noble principle of science and virtue, was unable to
+   resist the vigorous efforts of a free people, and Europe, as from a
+   new epoch, rekindled her ancient spirit, and shook off the base
+   servitude to arbitrary will and authority under which she had so long
+   labored. The free constitutions then established, however impaired by
+   the encroachments of succeeding princes, still preserve an air of
+   independence and legal administration, which distinguished the
+   European nations; and if that part of the globe maintain sentiments
+   of liberty, honor, equity, and valor, superior to the rest of
+   mankind, it owes these advantages chiefly to the seeds implanted by
+   those generous barbarians.
+
+   "_The Saxons, who subdued Britain, as they enjoyed great liberty in
+   their own country, obstinately retained that invaluable possession in
+   their new settlement; and they imported into this island the same
+   principles of independence, which they had inherited from their
+   ancestors. The chieftains, (for such they were, more than kings or
+   princes,) who commanded them in those military expeditions, still
+   possessed a very limited authority_; and as the Saxons exterminated,
+   rather than subdued the ancient inhabitants, they were, indeed,
+   transplanted into a new territory, _but preserved unaltered all their
+   civil and military institutions_. The language was pure Saxon; even
+   the names of places, which often remain while the tongue entirely
+   changes, were almost all affixed by the conquerors; the manners and
+   customs were wholly German; and the same picture of a fierce and bold
+   liberty, which is drawn by the masterly pen of Tacitus, will suit
+   those founders of the English government. _The king, so far from
+   being invested with arbitrary power, was only considered as the first
+   among the citizens; his authority depended more on his personal
+   qualities than on his station; he was even so far on a level with the
+   people, that a stated price was fixed for his head, and a legal fine
+   was levied upon his murderer, which though proportionate to his
+   station, and superior to that paid for the life of a subject, was a
+   sensible mark of his subordination to the community._"--_1 Hume_,
+   _Appendix_, 1.
+
+Stuart says:
+
+   "The Saxons brought along with them into Britain their own customs,
+   language, and civil institutions. Free in Germany, they renounced not
+   their independence, when they had conquered. Proud from victory, and
+   with their swords in their hands, would they surrender their
+   liberties to a private man? Would temporary leaders, limited in their
+   powers, and unprovided in resources, ever think to usurp an authority
+   over warriors, who considered themselves as their equals, were
+   impatient of control, and attached with devoted zeal to their
+   privileges? Or, would they find leisure to form resolutions, or
+   opportunities to put them in practice, amidst the tumult and
+   confusion of those fierce and bloody wars, which their nations first
+   waged with the Britons, and then engaged in among themselves?
+   Sufficiently flattered in leading the armies of their countrymen, the
+   ambition of commanders could as little suggest such designs, as the
+   liberty of the people could submit to them. The conquerors of Britain
+   retained their independence; and this island saw itself again in
+   that free state in which the Roman arms had discovered it.
+
+   "The same firmness of character, and generosity of manners, which, in
+   general, distinguished the Germans, were possessed in an eminent
+   degree by the Saxons; and while we endeavor to unfold their political
+   institutions, we must perpetually turn our observation to that
+   masterly picture in which the Roman historian has described these
+   nations. In the woods of Germany shall we find the principles which
+   directed the state of land, in the different kingdoms of Europe; and
+   there shall we find the foundation of those ranks of men, and of
+   those civil arrangements, which the barbarians everywhere
+   established; and which the English alone have had the good fortune,
+   or the spirit, to preserve."--_Stuart on the Constitution of
+   England_, p. 59-61.
+
+   "Kings they (the Germans) respected as the first magistrates of the
+   state; but the authority possessed by them was narrow and
+   limited."--_Ditto_, p. 134.
+
+   "Did he, (the king,) at any time, relax his activity and martial
+   ardor, did he employ his abilities to the prejudice of his nation, or
+   fancy he was superior to the laws; the same power which raised him to
+   honor, humbled and degraded him. The customs and councils of his
+   country pointed out to him his duty; and if he infringed on the
+   former, or disobeyed the latter, a fierce people set aside his
+   authority. * *
+
+   "His long hair was the only ornament he affected, and to be foremost
+   to attack an enemy was his chief distinction. Engaged in every
+   hazardous expedition, he was a stranger to repose; and, rivalled by
+   half the heroes of his tribe, he could obtain little power. Anxious
+   and watchful for the public interest, he felt every moment his
+   dependence, and gave proofs of his submission.
+
+   "He attended the general assembly of his nation, and was allowed the
+   privilege to harangue it first; but the arts of persuasion, though
+   known and respected by a rude people, were unequally opposed to the
+   prejudices and passions of men."--_Ditto_, p. 135-6.
+
+   "_The authority of a Saxon monarch was not more considerable. The
+   Saxons submitted not to the arbitrary rule of princes. They
+   administered an oath to their sovereigns, which bound them to
+   acknowledge the laws, and to defend the rights of the church and
+   people; and if they forgot this obligation, they forfeited their
+   office._ In both countries, a price was affixed on kings, a fine
+   expiated their murder, as well as that of the meanest citizen; and
+   the smallest violation of ancient usage, or the least step towards
+   tyranny, was always dangerous, and often fatal to them."--_Ditto_, p.
+   139-40.
+
+   "They were not allowed to impose taxes on the kingdom."--_Ditto_, p.
+   146.
+
+   "Like the German monarchs, they deliberated in the general assembly
+   of the nation; _but their legislative authority was not much
+   respected_; and their assent was considered in no better light than
+   as a form. This, however, was their chief prerogative; and they
+   employed it to acquire an ascendant in the state. To art and
+   insinuation they turned, as their only resource, and flattered a
+   people whom they could not awe; but address, and the abilities to
+   persuade, were a weak compensation for the absence of real power.
+
+   "They declared war, it is said, and made peace. In both cases,
+   however, they acted as the instruments of the state, and put in
+   execution the resolutions which its councils had decreed. If, indeed,
+   an enemy had invaded the kingdom, and its glory and its safety were
+   concerned, the great lords took the field at the call of their
+   sovereign. But had a sovereign declared war against a neighboring
+   state, without requiring their advice, or if he meant to revenge by
+   arms an insult offered to him by a subject, a haughty and independent
+   nobility refused their assistance. These they considered as the
+   quarrels of the king, and not of the nation; and in all such
+   emergencies he could only be assisted by his retainers and
+   dependents."--_Ditto_, p. 147-8.
+
+   "Nor must we imagine that the Saxon, any more than the German
+   monarchs, succeeded each other in a lineal descent,[35] or that they
+   disposed of the crown at their pleasure. In both countries, the free
+   election of the people filled the throne; and their choice was the
+   only rule by which princes reigned. The succession, accordingly, of
+   their kings was often broken and interrupted, and their depositions
+   were frequent and groundless. The will of a prince whom they had long
+   respected, and the favor they naturally transferred to his
+   descendant, made them often advance him to the royal dignity; but the
+   crown of his ancestor he considered as the gift of the people, and
+   neither expected nor claimed it as a right."--_Ditto_, p. 151-3.
+
+In Germany "It was the business of the great to command in war, and in
+peace they distributed justice. * *
+
+   "The _princes_ in Germany were _earls_ in England. The great
+   contended in both countries in the number of their retainers, and in
+   that splendor and magnificence which are so alluring to a rude
+   people; and though they joined to set bounds to regal power, they
+   were often animated against each other with the fiercest hatred. To a
+   proud and impatient nobility it seemed little and unsuiting to give
+   or accept compositions for the injuries they committed or received;
+   and their vassals adopting their resentment and passions, war and
+   bloodshed alone could terminate their quarrels. What necessarily
+   resulted from their situation in society, was continued as a
+   _privilege_; and the great, in both countries, made war, of their
+   private authority, on their enemies. The Saxon earls even carried
+   their arms against their sovereigns; and, surrounded with retainers,
+   or secure in fortresses and castles, they despised their resentment,
+   and defied their power.
+
+   "The judges of the people, they presided in both countries in courts
+   of law.[36] The particular districts over which they exerted their
+   authority were marked out in Germany by the council of the state; and
+   in England their jurisdiction extended over the fiefs and other
+   territories they possessed. All causes, both civil and criminal, were
+   tried before them; and they judged, except in cases of the utmost
+   importance, without appeal. They were even allowed to grant pardon to
+   criminals, and to correct by their clemency the rigors of justice.
+   Nor did the sovereign exercise any authority in their lands. In these
+   his officers formed no courts, and his _writ_ was disregarded. * *
+
+   "They had officers, as well as the king, who collected their
+   revenues, and added to their greatness; and the inhabitants of their
+   lands they distinguished by the name of _subjects_.
+
+   "But to attend the general assembly of their nation was the chief
+   prerogative of the German and Saxon princes; and as they consulted
+   the interest of their country, and deliberated concerning matters of
+   state, so in the _king's court_, of which also they were members,
+   they assisted to pronounce judgment in the complaints and appeals
+   which were lodged in it."--_Ditto_, p. 158 to 165.
+
+Henry says:
+
+   "Nothing can be more evident than this important truth; that our
+   Anglo-Saxon kings were not absolute monarchs; but that their powers
+   and prerogatives were limited by the laws and customs of the country.
+   Our Saxon ancestors had been governed by limited monarchs in their
+   native seats on the continent; and there is not the least appearance
+   or probability that they relinquished their liberties, and submitted
+   to absolute government in their new settlements in this island. It is
+   not to be imagined that men, whose reigning passion was the love of
+   liberty, would willingly resign it; and their new sovereigns, who had
+   been their fellow-soldiers, had certainly no power to compel them to
+   such a resignation."--_3 Henry's History of Great Britain_, 358.
+
+   Mackintosh says: "The Saxon chiefs, who were called kings, originally
+   acquired power by the same natural causes which have gradually, and
+   everywhere, raised a few men above their fellows. They were,
+   doubtless, more experienced, more skilful, more brave, or more
+   beautiful, than those who followed them. * * A king was powerful in
+   war by the lustre of his arms, and the obvious necessity of
+   obedience. His influence in peace fluctuated with his personal
+   character. In the progress of usage his power became more fixed and
+   more limited. * * It would be very unreasonable to suppose that the
+   northern Germans who had conquered England, had so far changed their
+   characteristic habits from the age of Tacitus, that the victors
+   became slaves, and that their generals were converted into
+   tyrants."--_Mackintosh's Hist. of England, Ch. 2._ _45 Lardner's Cab.
+   Cyc._, 73-4.
+
+Rapin, in his discourse on the "Origin and Nature of the English
+Constitution," says:
+
+   "There are but two things the Saxons did not think proper to trust
+   their kings with; for being of like passions with other men, they
+   might very possibly abuse them; namely, the power of changing the
+   laws enacted by consent of king and people; and the power of raising
+   taxes at pleasure. From these two articles sprung numberless branches
+   concerning the liberty and property of the subject, which the king
+   cannot touch, without breaking the constitution, and they are the
+   distinguishing character of the English monarchy. The prerogatives of
+   the crown, and the rights and privileges of the people, flowing from
+   the two fore-mentioned articles, are the ground of all the laws that
+   from time to time have been made by unanimous consent of king and
+   people. The English government consists in the strict union of the
+   king's prerogatives with the people's liberties. * * But when kings
+   arose, as some there were, that aimed at absolute power, by changing
+   the old, and making new laws, at pleasure; by imposing illegal taxes
+   on the people; this excellent government being, in a manner,
+   dissolved by these destructive measures, confusion and civil wars
+   ensued, which some very wrongfully ascribe to the fickle and restless
+   temper of the English."--_Rapin's Preface to his History of England._
+
+Hallam says that among the Saxons, "the royal authority was weak."--_2
+Middle Ages_, 403.
+
+But although the king himself had so little authority, that it cannot be
+supposed for a moment that his laws were regarded as imperative by the
+people, it has nevertheless been claimed, in modern times, by some who
+seem determined to find or make a precedent for the present legislative
+authority of parliament, that his laws were authoritative, _when
+assented to_ by the _Witena-gemote_, or assembly of wise men--that is,
+the bishops and barons. But this assembly evidently had no legislative
+power whatever. The king would occasionally invite the bishops and
+barons to meet him for consultation on public affairs, _simply as a
+council_, and not as a legislative body. Such as saw fit to attend, did
+so. If they were agreed upon what ought to be done, the king would pass
+a law accordingly, and the barons and bishops would then return and
+inform the people orally what laws had been passed, and use their
+influence with them to induce them to conform to the law of the king,
+and the recommendation of the council. And the people no doubt were much
+more likely to accept a law of the king, if it had been approved by this
+council, than if it had not. But it was still only a law of the king,
+which they obeyed or disregarded according to their own notions of
+expediency. The numbers who usually attended this council were too small
+to admit of the supposition that they had any legislative authority
+whatever, to impose laws upon the people against their will.
+
+Lingard says:
+
+   "It was necessary that the king should obtain the assent of these
+   (the members of the Witena-gemotes) to all legislative enactments;
+   _because, without their acquiescence and support, it was impossible
+   to carry them into execution_. To many charters (laws) we have the
+   signatures of the Witan. _They seldom exceed thirty in number; they
+   never amount to sixty._"--_1 Lingard_, 486.
+
+It is ridiculous to suppose that the assent of such an assembly gave any
+_authority_ to the laws of the king, or had any influence in securing
+obedience to them, otherwise than by way of persuasion. If this body had
+had any real legislative authority, such as is accorded to legislative
+bodies of the present day, they would have made themselves at once the
+most conspicuous portion of the government, and would have left behind
+them abundant evidence of their power, instead of the evidence simply of
+their assent to a few laws passed by the king.
+
+More than this. If this body had had any real legislative authority,
+they would have constituted an aristocracy, having, in conjunction with
+the king, absolute power over the people. Assembling voluntarily, merely
+on the invitation of the king; deputed by nobody but themselves;
+representing nobody but themselves; responsible to nobody but
+themselves; their legislative authority, if they had had any, would of
+necessity have made the government the government of an aristocracy
+merely, _and the people slaves, of course_. And this would necessarily
+have been the picture that history would have given us of the
+Anglo-Saxon government, _and of Anglo-Saxon liberty_.
+
+The fact that the people had no representation in this assembly, and the
+further fact that, through their juries alone, they nevertheless
+maintained that noble freedom, the very tradition of which (after the
+substance of the thing itself has ceased to exist) has constituted the
+greatest pride and glory of the nation to this day, _prove_ that this
+assembly exercised no authority which juries of the people acknowledged,
+except at their own discretion.[37]
+
+There is not a more palpable truth, in the history of the Anglo-Saxon
+government, than that stated in the Introduction to Gilbert's History of
+the Common Pleas,[38] viz., "_that the County and Hundred Courts_," (to
+which should have been added the other courts in which juries sat, the
+courts-baron and court-leet,) "_in those times were the real and only
+Parliaments of the kingdom_." And why were they the real and only
+parliaments of the kingdom? Solely because, as will be hereafter shown,
+the juries in those courts tried causes on their intrinsic merits,
+according to their own ideas of justice, irrespective of the laws agreed
+upon by kings, priests, and barons; and whatever principles they
+uniformly, or perhaps generally, enforced, _and none others_, became
+practically the law of the land as matter of course.[39]
+
+Finally, on this point. Conclusive proof that the legislation of the
+king was of little or no authority, is found in the fact _that the kings
+enacted so few laws_. If their laws had been received as authoritative,
+in the manner that legislative enactments are at this day, they would
+have been making laws continually. Yet the codes of the most celebrated
+kings are very small, and were little more than compilations of
+immemorial customs. The code of Alfred would not fill twelve pages of
+the statute book of Massachusetts, and was little or nothing else than a
+compilation of the laws of Moses, and the Saxon customs, evidently
+collected from considerations of convenience, rather than enacted on the
+principle of authority. The code of Edward the Confessor would not fill
+twenty pages of the statute book of Massachusetts, and, says Blackstone,
+"seems to have been no more than a new edition, or fresh promulgation of
+Alfred's code, or _dome-book_, with such additions and improvements as
+the experience of a century and a half suggested."--_1 Blackstone_,
+66.[40]
+
+The Code of William the Conqueror[41] would fill less than seven pages
+of the statute book of Massachusetts; and most of the laws contained in
+it are taken from the laws of the preceding kings, and especially of
+Edward the Confessor (whose laws William swore to observe); but few of
+his own being added.
+
+The codes of the other Saxon and Norman kings were, as a general rule,
+less voluminous even than these that have been named; and probably did
+not exceed them in originality.[42] The Norman princes, from William the
+Conqueror to John, I think without exception, bound themselves, and, in
+order to maintain their thrones, were obliged to bind themselves, to
+observe the ancient laws and customs, in other words, the "_lex 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 other way. In fact, all
+history informs us that anciently the attempts of the kings to introduce
+or establish new laws, met with determined resistance from the people,
+and generally resulted in failure. "_Nolumus Leges 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.[43]
+
+
+SECTION II.
+
+_The Ancient Common Law Juries were mere Courts of Conscience._
+
+But it is in the administration of justice, or of law, that the freedom
+or subjection of a people is tested. If this administration be in
+accordance with the arbitrary will of the legislator--that is, if his
+will, as it appears in his statutes, be the highest rule of decision
+known to the judicial tribunals,--the government is a despotism, and the
+people are slaves. If, on the other hand, the rule of decision be those
+principles of natural equity and justice, which constitute, or at least
+are embodied in, the general conscience of mankind, the people are free
+in just so far as that conscience is enlightened.
+
+That the authority of the king was of little weight with the _judicial
+tribunals_, must necessarily be inferred from the fact already stated,
+that his authority over the _people_ was but weak. If the authority of
+his laws had been paramount in the judicial tribunals, it would have
+been paramount with the people, of course; because they would have had
+no alternative but submission. The fact, then, that his laws were _not_
+authoritative with the people, is proof that they were _not_
+authoritative with the tribunals--in other words, that they were not, as
+matter of course, enforced by the tribunals.
+
+But we have additional evidence that, up to the time of Magna Carta, the
+laws of the king were not binding upon the judicial tribunals; and if
+they were not binding before that time, they certainly were not
+afterwards, as has already been shown from Magna Carta itself. It is
+manifest from all the accounts we have of the courts in which juries
+sat, prior to Magna Carta, such as the court-baron, the hundred court,
+the court-leet, and the county court, _that they were mere courts of
+conscience, and that the juries were the judges, deciding causes
+according to their own notions of equity, and not according to any laws
+of the king, unless they thought them just_.
+
+These courts, it must be considered, were very numerous, and held very
+frequent sessions. There were probably seven, eight, or nine hundred
+courts _a month_, in the kingdom; the object being, as Blackstone says,
+"_to bring justice home to every man's door_." (_3 Blackstone_, 30.) The
+number of the _county_ courts, of course, corresponded to the number of
+counties, (36.) The _court-leet_ was the criminal court for a district
+less than a county. The _hundred court_ was the court for one of those
+districts anciently called a _hundred_, because, at the time of their
+first organization for judicial purposes, they comprised (as is
+supposed) but a hundred families.[44] The court-baron was the court for
+a single manor, and there was a court for every manor in the kingdom.
+All these courts were holden as often as once in three or five weeks;
+the county court once a month. The king's judges were present at none of
+these courts; the only officers in attendance being sheriffs, bailiffs,
+and stewards, merely ministerial, and not judicial, officers; doubtless
+incompetent, and, if not incompetent, untrustworthy, for giving the
+juries any reliable information in matters of law, beyond what was
+already known to the jurors themselves. And yet these were the courts,
+in which was done all the judicial business, both civil and criminal, of
+the nation, except appeals, and some of the more important and difficult
+cases.[45] It is plain that the juries, in these courts, must, of
+necessity, have been the sole judges of all matters of law whatsoever;
+because there was no one present, but sheriffs, bailiffs, and stewards,
+to give them any instructions; and surely it will not be pretended that
+the jurors were bound to take their law from such sources as these.
+
+In the second place, it is manifest that the principles of law, by which
+the juries determined causes, were, as a general rule, nothing else than
+their own ideas of natural equity, _and not any laws of the king_;
+because but few laws were enacted, and many of those were not written,
+but only agreed upon in council.[46] Of those that were written, few
+copies only were made, (printing being then unknown,) and not enough to
+supply all, or any considerable number, of these numerous courts. Beside
+and beyond all this, few or none of the jurors could have read the laws,
+if they had been written; because few or none of the common people
+could, at that time, read. Not only were the common people unable to
+read their own language, but, at the time of Magna Carta, the laws were
+written in Latin, a language that could be read by few persons except
+the priests, who were also the lawyers of the nation. Mackintosh says,
+"the first act of the House of Commons composed and recorded in the
+English tongue," was in 1415, two centuries after Magna Carta.[47] Up to
+this time, and for some seventy years later, the laws were generally
+written either in Latin or French; both languages incapable of being
+read by the common people, as well Normans as Saxons; and one of them,
+the Latin, not only incapable of being read by them, but of being even
+understood when it was heard by them.
+
+To suppose that the people were bound to obey, and juries to enforce,
+laws, many of which were unwritten, none of which _they_ could read, and
+the larger part of which (those written in Latin) they could not
+translate, or understand when they heard them read, is equivalent to
+supposing the nation sunk in the most degrading slavery, instead of
+enjoying a liberty of their own choosing.
+
+Their knowledge of the laws passed by the king was, of course, derived
+only from oral information; and "_the good laws_," as some of them were
+called, in contradistinction to others--those which the people at large
+esteemed to be good laws--were doubtless enforced by the juries, and the
+others, as a general thing, disregarded.[48]
+
+That such was the nature of judicial proceedings, and of the power of
+juries, up to the time of Magna Carta, is further shown by the following
+authorities.
+
+   "The sheriffs and bailiffs caused the free tenants of their bailiwics
+   to meet at their counties and hundreds; _at which justice was so
+   done, that every one so judged his neighbor by such judgment as a man
+   could not elsewhere receive in the like cases_, until such times as
+   the customs of the realm were put in writing, and certainly
+   published.
+
+   "And although a freeman commonly was not to serve (as a juror or
+   judge) without his assent, nevertheless it was assented unto that
+   free tenants should meet together in the counties and hundreds, and
+   lords courts, if they were not specially exempted to do such suits,
+   and _there judged their neighbors_."--_Mirror of Justices_, p. 7, 8.
+
+Gilbert, in his treatise on the Constitution of England, says:
+
+   "In the county courts, if the debt was above forty shillings, there
+   issued a _justicies_ (a commission) to the sheriff, to enable him to
+   hold such a plea, _where the suitors_ (_jurors_) _are judges of the
+   law and fact_."--_Gilbert's Cases in Law and Equity, &c., &c._, 456.
+
+All the ancient writs, given in Glanville, for summoning jurors,
+indicate that the jurors judged of everything, _on their consciences
+only_. The writs are in this form:
+
+   "Summon twelve free and legal men (or sometimes twelve knights) to be
+   in court, _prepared upon their oaths to declare whether A or B have
+   the greater right to the land_ (_or other thing_) _in question_." See
+   Writs in Beames' Glanville, p. 54 to 70, and 233-306 to 332.
+
+Crabbe, speaking of the time of Henry I., (1100 to 1135,) recognizes the
+fact that the jurors were the judges. He says:
+
+   "By one law, every one was to be tried by his peers, who were of the
+   same neighborhood as himself. * * By another law, _the judges, for so
+   the jury were called_, were to be chosen by the party impleaded,
+   after the manner of the Danish _nembas_; by which, probably, is to be
+   understood that the defendant had the liberty of taking exceptions
+   to, or challenging the jury, as it was afterwards called."--_Crabbe's
+   History of the English Law_, p. 55.
+
+Reeve says:
+
+   "The great court for _civil_ business was the _county court_; held
+   once every four weeks. Here the sheriff presided; _but the suitors of
+   the court, as they were called, that is, the freemen or landholders
+   of the county, were the judges_; and the sheriff was to execute the
+   judgment. * *
+
+   "The _hundred court_ was held before _some bailiff_; the _leet_
+   before the lord of the manor's steward.[49] * *
+
+   "Out of the county court was derived an inferior court of _civil_
+   jurisdiction, called the _court-baron_. This was held from three
+   weeks to three weeks, and _was in every respect like the county
+   court_;" (_that is, the jurors were judges in it_;) "only the lord to
+   whom this franchise was granted, or _his steward_, _presided instead
+   of the sheriff_."--_1 Reeve's History of the English Law_, p. 7.
+
+Chief Baron Gilbert says:
+
+   "Besides the tenants of the king, which held _per baroniam_, (by the
+   right of a baron,) and did suit and service (served as judges) at his
+   own court; and the burghers and tenants in ancient demesne, that did
+   suit and service (served as jurors or judges) in their own court in
+   person, and in the king's by proxy, there was also a set of
+   freeholders, that did suit and service (served as jurors) at the
+   county court. These were such as anciently held of the lord of the
+   county, and by the escheats of earldoms had fallen to the king; or
+   such as were granted out by service to hold of the king, but with
+   particular reservation to do suit and service (serve as jurors)
+   before the king's bailiff; _because it was necessary the sheriff, or
+   bailiff of the king, should have suitors_ (_jurors_) _at the county
+   court, that the business might be despatched. These suitors are the
+   pares_ (_peers_) _of the county court, and indeed the judges of it;
+   as the pares_ (_peers_) _were the judges in every court-baron_; and
+   therefore the king's bailiff having a court before him, there must be
+   _pares or judges, for the sheriff himself is not a judge_; and though
+   the style of the court is _Curia prima Comitatus E.C. Milit.'
+   vicecom' Comitat' 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 sheriff's; _yet, by
+   the old feudal constitutions, the lord was not judge, but the pares_
+   (_peers_) _only_; so that, even in a _justicies_, which was a
+   commission to the sheriff to hold plea of more than was allowed by
+   the natural jurisdiction of a county court, _the pares_ (_peers,
+   jurors_) _only were judges, and not the sheriff_; because it was to
+   hold plea in the same manner as they used to do in that (the lord's)
+   court."--_Gilbert on the Court of Exchequer_, ch. 5, p. 61-2.
+
+   "It is a distinguishing feature of the feudal system, to make civil
+   jurisdiction necessarily, and criminal jurisdiction ordinarily,
+   coextensive with tenure; and accordingly there is inseparably
+   incident to every manor a court-baron (curia baronum), _being a court
+   in which the freeholders of the manor are the sole judges_, but in
+   which the lord, by himself, or more commonly by his steward,
+   presides."--_Political Dictionary_, word _Manor_.
+
+The same work, speaking of the county court, says: "_The judges were the
+freeholders who did suit to the court._" See word _Courts_.
+
+   "In the case of freeholders attending as suitors, the county 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 Exchequer_,
+   ch. 3, p. 42.
+
+Crabbe, speaking of the Saxon times, says:
+
+   "The sheriff presided at the _hundred court_, * * and sometimes sat
+   in the place of the alderman (earl) in the _county
+   court_."--_Crabbe_, 23.
+
+The sheriff afterwards became the sole presiding officer of the county
+court.
+
+Sir Thomas Smith, Secretary of State to Queen Elizabeth, writing more
+than three hundred years after Magna Carta, in describing the difference
+between the Civil Law and the English Law, says:
+
+   "_Judex_ is of us called Judge, but our fashion is so divers, that
+   they which give the deadly stroke, and either condemn or acquit the
+   man for guilty or not guilty, _are not called judges, but the twelve
+   men. And the same order as well in civil matters and pecuniary, as in
+   matters criminal_."--_Smith's Commonwealth of England_, ch. 9, p. 53,
+   Edition of 1621.
+
+   _Court-Leet._ "That the _leet_ is the most ancient court in the land
+   for _criminal_ matters, (the court-baron being of no less antiquity
+   in _civil_,) has been pronounced by the highest legal authority. * *
+   Lord Mansfield states that this court was coeval with the
+   establishment of the Saxons here, and its activity marked very
+   visibly both among the Saxons and Danes. * * The leet is a court of
+   record for the cognizance of criminal matters, or pleas of the crown;
+   and necessarily belongs to the king; though a subject, usually the
+   lord of the manor, may be, and is, entitled to the profits,
+   consisting of the essoign pence, fines, and amerciaments.
+
+   "_It is held before the steward, or was, in ancient times, before the
+   bailiff, of the lord._"--_Tomlin's Law Dict._, word _Court-Leet_.
+
+Of course the jury were the judges in this court, where only a "steward"
+or "bailiff" of a manor presided.
+
+   "No cause of consequence was determined without the king's writ; for
+   even in the county courts, of the debts, which were above forty
+   shillings, there issued a _Justicies_ (commission) to the sheriff, to
+   enable him to hold such plea, _where the suitors are judges of the
+   law and fact_."--_Gilbert's History of the Common Pleas,
+   Introduction_, p. 19.
+
+   "This position" (that "the matter of law was decided by the King's
+   Justices, but the matter of fact by the pares") "_is wholly
+   incompatible with the common law, for the Jurata (jury) were the sole
+   judges both of the law and the fact_."--_Gilbert's History of the
+   Common Pleas_, p. 70, _note_.
+
+   We come now to the challenge; and of old _the suitors in court, who
+   were judges_, could not be challenged; nor by the feudal law could
+   the _pares_ be even challenged, _Pares qui ordinariam jurisdictionem
+   habent recusari non possunt_; (the peers who have ordinary
+   jurisdiction cannot be rejected;) "_but those suitors who are judges
+   of the court_, could not be challenged; and the reason is, that there
+   are several qualifications required by the writ, viz., that they be
+   _liberos et legales homines de vincineto_ (free and legal men of the
+   neighborhood) of the place laid in the declaration," &c.,
+   &c.--_Ditto_, p. 93.
+
+   "_Ad questionem juris non respondent Juratores._" (To the question of
+   law the jurors do not answer.) "The Annotist says, that this is
+   indeed a maxim in the Civil-Law Jurisprudence, _but it does not bind
+   an English jury, for by the common law of the land the jury are
+   judges as well of the matter of law, as of the fact_, with this
+   difference only, that the (a Saxon word) or judge on the bench is to
+   give them no assistance in determining the matter of _fact_, but if
+   they have any doubt among themselves relating to matter of _law_,
+   they may then request him to explain it to them, which when he hath
+   done, and they are thus become well informed, they, and they only,
+   become competent judges of the matter of _law_. And this is the
+   province of the judge on the bench, namely, to show, or _teach_ the
+   law, but not to take upon him the trial of the delinquent, either in
+   matter of fact or in matter of law." (Here various Saxon laws are
+   quoted.) "In neither of these fundamental laws is there the least
+   word, hint, or idea, that the earl or alderman (that is to say, the
+   _Prepositus_ (presiding officer) of the court, which is tantamount to
+   _the judge on the bench_) is to take upon him to judge the delinquent
+   in any sense whatever, the sole purport of his office is to _teach_
+   the secular or worldly law."--_Ditto_, p. 57, _note_.
+
+   "The administration of justice was carefully provided for; it was not
+   the caprice of their lord, _but the sentence of their peers, that
+   they obeyed. Each was the judge of his equals, and each by his equals
+   was judged._"--_Introd. to Gilbert on Tenures_, p. 12.
+
+   Hallam says: "A respectable class of free socagers, having, in
+   general, full rights of alienating their lands, and holding them
+   probably at a small certain rent from the lord of the manor,
+   frequently occur in Domes-day Book. * * They undoubtedly were suitors
+   to the court-baron of the lord, to whose soc, or right of justice,
+   they belonged. _They were consequently judges in civil causes,
+   determined before the manorial tribunal._"--_2 Middle Ages_, 481.
+
+Stephens adopts as correct the following quotations from Blackstone:
+
+   "The _Court-Baron_ is a court incident to every manor in the kingdom,
+   to be holden by the steward within the said manor." * * _It "is a
+   court of common law, and it is the court before the freeholders who
+   owe suit and service to the manor_," (are bound to serve as jurors in
+   the courts of the manor,) "_the steward being rather the registrar
+   than the judge_. * * The freeholders' court was composed of the
+   lord's tenants, who were the _pares_ (equals) of each other, and were
+   bound by their feudal tenure to assist their lord in the dispensation
+   of domestic justice. This was formerly held every three weeks; _and
+   its most important business was to determine, by writ of right, all
+   controversies relating to the right of lands within the manor_."--_3
+   Stephens' Commentaries_, 392-3. _3 Blackstone_, 32-3.
+
+   "A _Hundred Court_ is only a larger court-baron, being held for all
+   the inhabitants of a particular hundred, instead of a manor. _The
+   free suitors (jurors) are here also the judges, and the steward the
+   register._"--_3 Stephens_, 394. _3 Blackstone_, 33.
+
+   "The _County Court_ is a court incident to the jurisdiction of the
+   sheriff. * * _The freeholders of the county are the real judges in
+   this court, and the sheriff is the ministerial officer._"--_3
+   Stephens_, 395-6. _3 Blackstone_, 35-6.
+
+Blackstone describes these courts, as courts "_wherein injuries were
+redressed in an easy and expeditious manner, by the suffrage of
+neighbors and friends_."--_3 Blackstone_, 30.
+
+   "When we read of a certain number of _freemen_ chosen by the parties
+   to decide in a dispute--all bound by oath to vote _in foro
+   conscientia_--and that _their_ decision, _not the will of the judge
+   presiding, ended the suit_, we at once perceive that a great
+   improvement has been made in the old form of compurgation--an
+   improvement which impartial observation can have no hesitation to
+   pronounce as identical in its main features with the trial by
+   jury."--_Dunham's Middle Ages_, Sec. 2, B. 2, Ch. 1. _57 Lardner's
+   Cab. Cyc._, 60.
+
+   "The bishop and the earl, or, in his absence, the gerefa, (sheriff,)
+   and sometimes both the earl and the gerefa, presided at the
+   _schyre-mote_ (county court); the gerefa (sheriff) usually alone
+   presided at the _mote_ (meeting or court) of the hundred. In the
+   cities and towns which were not within any peculiar jurisdiction,
+   there was held, at regular stated intervals, a _burgh mote_, (borough
+   court,) for the administration of justice, at which a gerefa, or a
+   magistrate appointed by the king, presided."--_Spence's Origin of the
+   Laws and Political Institutions of Modern Europe_, p. 444.
+
+   "The right of the plaintiff and defendant, and of the prosecutor and
+   criminal, _to challenge the judices_, (judges,) _or assessors,[50]
+   appointed to try the cause in civil matters, and to decide upon the
+   guilt or innocence of the accused in criminal matters_, is recognized
+   in the treatise called the Laws of Henry the First; but I cannot
+   discover, from the Anglo-Saxon laws or histories, that before the
+   Conquest the parties had any general right of challenge; _indeed, had
+   such right existed, the injunctions to all persons standing in the
+   situation of judges (jurors) to do right according to their
+   conscience_, would scarcely have been so frequently and anxiously
+   repeated."--_Spence_, 456.
+
+Hale says:
+
+   "The administration of the common justice of the kingdom seems to be
+   wholly dispensed in the county courts, hundred courts, and
+   courts-baron; except some of the greater crimes reformed by the laws
+   of King Henry I., and that part thereof which was sometimes taken up
+   by the _Justitiarius 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.
+
+Tyrrell says:
+
+   "Alfred cantoned his kingdom, first into _Trihings_ and _Lathes_, as
+   they are still called in Kent and other places, consisting of three
+   or four Hundreds; _in which, the freeholders being judges_, such
+   causes were brought as could not be determined in the Hundred
+   court."--_Tyrrell's Introduction to the History of England_, p. 80.
+
+Of the _Hundred Court_ he says:
+
+   "In this court anciently, _one of the principal inhabitants, called
+   the alderman, together with the barons of the Hundred[51]--id est the
+   freeholders--was judge_."--_Ditto_, p. 80.
+
+Also he says:
+
+   "By a law of Edward the Elder, 'Every sheriff shall convene the
+   people once a month, and do equal right to all, putting an end to
+   controversies at times appointed.'"--_Ditto_, p. 86.
+
+   "A statute, emphatically termed the 'Grand Assize,' enabled the
+   defendant, if he thought proper, to abide by the testimony of the
+   twelve good and lawful knights, chosen by four others of the
+   vicinage, _and whose oaths gave a final decision to the contested
+   claim_."--_1 Palgrave's Rise and Progress of the English
+   Commonwealth_, 261.
+
+   "From the moment when the crown became accustomed to the 'Inquest,' a
+   restraint was imposed upon every branch of the prerogative. _The king
+   could never be informed of his rights, but through the medium of the
+   people._ Every 'extent' by which he claimed the profits and
+   advantages resulting from the casualties of tenure, every process by
+   which he repressed the usurpations of the baronage, depended upon the
+   'good men and true' who were impanelled to 'pass' between the subject
+   and the sovereign; and the thunder of the Exchequer at Westminster
+   might be silenced by the honesty, the firmness, or the obstinacy, of
+   one sturdy knight or yeoman in the distant shire.
+
+   Taxation was controlled in the same manner by the voice of those who
+   were most liable to oppression. * * A jury was impanelled to adjudge
+   the proportion due to the sovereign; and this course was not
+   essentially varied, even after the right of granting aids to the
+   crown was fully acknowledged to be vested in the parliament of the
+   realm. The people taxed themselves; and the collection of the grants
+   was checked and controlled, and, perhaps, in many instances evaded,
+   by these virtual representatives of the community.
+
+   The principle of the jury was, therefore, not confined to its mere
+   application as a mode of trying contested facts, whether in civil or
+   criminal cases; and, both in its form and in its consequences, it had
+   a very material influence upon the general constitution of the realm.
+   * * The main-spring of the machinery of remedial justice existed in
+   the franchise of the lower and lowest orders of the political
+   hierarchy. Without the suffrage of the yeoman, the burgess, and the
+   churl, the sovereign could not exercise the most important and most
+   essential function of royalty; from them he received the power of
+   life and death; he could not wield the sword of justice until the
+   humblest of his subjects placed the weapon in his hand."--_1
+   Palgrave's Rise and Progress of the English Constitution_, 274-7.
+
+Coke says, "The court of the county is no court of record,[52] _and the
+suitors are the judges thereof_."--_4 Inst._, 266.
+
+Also, "The court of the Hundred is no court of record, _and the suitors
+be thereof judges_."--_4 Inst._, 267.
+
+Also, "The court-baron is a court incident to every manor, and is not of
+record, _and the suitors be thereof judges_."--_4 Inst._, 268.
+
+Also, "The court of ancient demesne is in the nature of a court-baron,
+_wherein the suitors are judges_, and is no court of record."--_4
+Inst._, 269.
+
+Millar says, "Some authors have thought that jurymen were originally
+_compurgators_, called by a defendant to swear that they believed him
+innocent of the facts with which he was charged.... But ... compurgators
+were merely witnesses; _jurymen were, in reality, judges_. The former
+were called to confirm the oath of the party by swearing, according to
+their belief, that he had told the truth, (in his oath of purgation;)
+_the latter were appointed to try, by witnesses, and by all other means
+of proof, whether he was innocent or guilty_.... Juries were accustomed
+to ascertain the truth of facts, by the defendant's oath of purgation,
+together with that of his compurgators.... Both of them (jurymen and
+compurgators) were obliged to swear that they would _tell the truth_....
+According to the simple idea of our forefathers, guilt or innocence was
+regarded as a mere matter of fact; and it was thought that no man, who
+knew the real circumstances of a case, could be at a loss to determine
+whether the culprit ought to be condemned or acquitted."--_1 Millar's
+Hist. View of Eng. Gov._, ch. 12, p. 332-4.
+
+Also, "The same form of procedure, which took place in the
+administration of justice among the vassals of a barony, was gradually
+extended to the courts held in the _trading towns_."--_Same_, p. 335.
+
+Also, "The same regulations, concerning the distribution of justice by
+the intervention of juries, ... _were introduced into the baron courts
+of the king_, as into those of the nobility, or such of his subjects as
+retained their allodial property."--_Same_, p. 337.
+
+Also. "This tribunal" (the _aula regis_, or king's court, afterwards
+divided into the courts of King's Bench, Common Pleas, and Exchequer)
+"was properly the ordinary baron-court of the king; and, being in the
+same circumstances with the baron-courts of the nobility, it was under
+the same necessity of trying causes by the intervention of a
+jury."--_Same_, vol. 2, p. 292.
+
+Speaking of the times of Edward the First, (1272 to 1307,) Millar says:
+
+"What is called the petty jury was therefore introduced into these
+tribunals, (the King's Bench, the Common Pleas, and the _Exchequer_,) as
+well as into their auxiliary courts employed to distribute justice in
+the circuits; and was thus rendered essentially necessary in determining
+causes of every sort, whether civil, criminal, or _fiscal_."--_Same_,
+vol. 2, p. 293-4.
+
+Also, "That this form of trial (by jury) obtained universally in all the
+feudal governments, as well as in that of England, there can be no
+reason to doubt. In France, in Germany, and in other European countries,
+where we have any accounts of the constitution and procedure of the
+feudal courts, it appears that lawsuits of every sort concerning the
+freemen or vassals of a barony, were determined by the _pares 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.[53]
+
+That all these courts were mere _courts of conscience, in which the
+juries were sole judges, administering justice according to their own
+ideas of it_, is not only shown by the extracts already given, but is
+explicitly acknowledged in the following one, in which the _modern
+"courts of conscience"_ are compared with the _ancient hundred and
+county courts_, and the preference given to the latter, on the ground
+that the duties of the jurors in the one case, and of the commissioners
+in the other, are the same, and that the consciences of a jury are a
+safer and purer tribunal than the consciences of individuals specially
+appointed, and holding permanent offices.
+
+   "But there is one species of courts constituted by act of Parliament,
+   in the city of London, and other trading and populous districts,
+   which, in their proceedings, so vary from the course of the common
+   law, that they deserve a more particular consideration. I mean the
+   court of requests, _or courts of conscience_, for the recovery of
+   small debts. The first of these was established in London so early as
+   the reign of Henry VIII., by an act of their common council; which,
+   however, was certainly insufficient for that purpose, and illegal,
+   till confirmed by statute 3 Jac. I., ch. 15, which has since been
+   explained and amended by statute 14 Geo. II., ch. 10. The
+   constitution is this: two aldermen and four commoners sit twice a
+   week to hear all causes of debt not exceeding the value of forty
+   shillings; which they examine in a summary way, by the oath of the
+   parties or other witnesses, _and make such order therein as is
+   consonant to equity and good conscience_.* * Divers trading towns and
+   other districts have obtained acts of Parliament, for establishing
+   in them _courts of conscience_ upon nearly the same plan as that in
+   the city of London.
+
+   "The anxious desire that has been shown to obtain these several acts,
+   proves clearly that the nation, in general, is truly sensible of the
+   great inconvenience arising from the disuse of the ancient county and
+   hundred courts, wherein causes of this small value were always
+   formerly decided with very little trouble and expense to the parties.
+   But it is to be feared that the general remedy, which of late hath
+   been principally applied to this inconvenience, (the erecting these
+   new jurisdictions,) may itself be attended in time with very ill
+   consequences; as the method of proceeding therein is entirely in
+   derogation of the common law; and their large discretionary powers
+   create a petty tyranny in a set of standing commissioners; and as the
+   disuse of the trial by jury may tend to estrange the minds of the
+   people from that valuable prerogative of Englishmen, which has
+   already been more than sufficiently excluded in many instances. _How
+   much rather is it to be wished that the proceedings in the county and
+   hundred courts could be again revived_, without burdening the
+   freeholders with too frequent and tedious attendances; and at the
+   same time removing the delays that have insensibly crept into their
+   proceedings, and the power that either party has of transferring at
+   pleasure their suits to the courts at Westminster! _And we may, with
+   satisfaction, observe, that this experiment has been actually tried,
+   and has succeeded in the populous county of Middlesex_, which might
+   serve as an example for others. For by statute 23 Geo. II., ch. 33,
+   it is enacted:
+
+   1. That a special county court shall be held at least once in a
+   month, in every hundred of the county of Middlesex, _by the county
+   clerk_.
+
+   2. _That twelve freeholders of that hundred, qualified to serve on
+   juries, and struck by the sheriff, shall be summoned to appear at
+   such court by rotation_; so as none shall be summoned oftener than
+   once a year.
+
+   3. That in all causes not exceeding the value of forty shillings,
+   _the county clerk and twelve suitors (jurors) shall proceed in a
+   summary way_, examining the parties and witnesses on oath, without
+   the formal process anciently used; _and shall make such order therein
+   as they shall judge agreeable to conscience_."--_3 Blackstone_,
+   81-83.
+
+What are these but courts of conscience? And yet Blackstone tells us
+they are a _revival of the ancient hundred and county courts_. And what
+does this fact prove, but that the ancient common law courts, in which
+juries sat, were mere courts of conscience?
+
+It is perfectly evident that in all these courts the jurors were the
+judges, and determined all questions of law for themselves; because the
+only alternative to that supposition is, _that the jurors took their law
+from sheriffs, bailiffs, and stewards_, of which there is not the least
+evidence in history, nor the least probability in reason. It is evident,
+also, that they judged independently of the laws of the king, for the
+reasons before given, viz., that the authority of the king was held in
+very little esteem; and, secondly, that the laws of the king (not being
+printed, and the people being unable to read them if they had been
+printed) must have been in a great measure unknown to them, and could
+have been received by them only on the authority of the sheriff,
+bailiff, or steward. If laws were to be received by them on the
+authority of these officers, the latter would have imposed such laws
+upon the people as they pleased.
+
+These courts, that have now been described, were continued in full power
+long after Magna Carta, no alteration being made in them by that
+instrument, _nor in the mode of administering justice in them_.
+
+There is no evidence whatever, so far as I am aware, that the juries had
+any _less_ power in the courts held by the king's justices, than in
+those held by sheriffs, bailiffs, and stewards; and there is no
+probability whatever that they had. All the difference between the
+former courts and the latter undoubtedly was, that, in the former, the
+juries had the benefit of the advice and assistance of the justices,
+which would, of course, be considered valuable in difficult cases, on
+account of the justices being regarded as more learned, not only in the
+laws of the king, but also in the common law, or "law of the land."
+
+The conclusion, therefore, I think, inevitably must be, that neither the
+laws of the king, nor the instructions of his justices, had any
+authority over jurors beyond what the latter saw fit to accord to them.
+And this view is confirmed by this remark of Hallam, the truth of which
+all will acknowledge:
+
+   "The rules of legal decision, among a rude people, are always very
+   simple; not serving much to guide, far less to control the feelings
+   of natural equity."--_2 Middle Ages_, ch. 8, part 2, p. 465.
+
+It is evident that it was in this way, _by the free and concurrent
+judgments of juries, approving and enforcing certain laws and rules of
+conduct, corresponding to their notions of right and justice_, that the
+laws and customs, which, for the most part, made up the _common law_,
+and were called, at that day, "_the good laws, and good customs_," and
+"_the law of the land_," were established. How otherwise could they ever
+have become established, as Blackstone says they were, "_by long and
+immemorial usage, and by their universal reception throughout the
+kingdom_,"[54] when, as the Mirror says, "_justice was so done, that
+every one so judged his neighbor, by such judgment as a man could not
+elsewhere receive in the like cases, until such times as the customs of
+the realm were put in writing and certainly published_?"
+
+The fact that, in that dark age, so many of the principles of natural
+equity, as those then embraced in the _Common Law_, should have been so
+uniformly recognized and enforced by juries, as to have become
+established by general consent as "_the law of the land_;" and the
+further fact that this "law of the land" was held so sacred that even
+the king could not lawfully infringe or alter it, but was required to
+swear to maintain it, are beautiful and impressive illustrations of the
+truth that men's minds, even in the comparative infancy of other
+knowledge, have clear and coincident ideas of the elementary principles,
+and the paramount obligation, of justice. The same facts also prove that
+the common mind, and the general, or, perhaps, rather, the universal
+conscience, as developed in the untrammelled judgments of juries, may be
+safely relied upon for the preservation of individual rights in civil
+society; and that there is no necessity or excuse for that deluge of
+arbitrary legislation, with which the present age is overwhelmed, under
+the pretext that unless laws be _made_, the law will not be known; a
+pretext, by the way, almost universally used for overturning, instead of
+establishing, the principles of justice.
+
+
+SECTION III.
+
+_The Oaths of Jurors._
+
+The oaths that have been administered to jurors, in England, and which
+are their _legal_ guide to their duty, _all_ (so far as I have
+ascertained them) corroborate the idea that the jurors are to try all
+cases on their intrinsic merits, independently of any laws that they
+deem unjust or oppressive. It is probable that an oath was never
+administered to a jury in England, either in a civil or criminal case,
+to try it _according to law_.
+
+The earliest oath that I have found prescribed by law to be administered
+to jurors is in the laws of Ethelred, (about the year 1015,) which
+require that the jurors "_shall swear, with their hands upon a holy
+thing, that they will condemn no man that is innocent, nor acquit any
+that is guilty_."--_4 Blackstone_, 302. _2 Turner's History of the
+Anglo-Saxons, 155. Wilkins' Laws of the Anglo-Saxons_, 117. _Spelman's
+Glossary_, word _Jurata_.
+
+Blackstone assumes that this was the oath of the _grand_ jury (_4
+Blackstone_, 302); but there was but one jury at the time this oath was
+ordained. The institution of two juries, grand and petit, took place
+after the Norman Conquest.
+
+Hume, speaking of the administration of justice in the time of Alfred,
+says that, in every hundred,
+
+   "Twelve freeholders were chosen, who, having sworn, together with the
+   hundreder, or presiding magistrate of that division, _to administer
+   impartial justice_, proceeded to the examination of that cause which
+   was submitted to their jurisdiction."--_Hume_, ch. 2.
+
+By a law of Henry II., in 1164, it was directed that the sheriff
+"_faciet jurare duodecim legales homines de vicineto seu de villa, quod
+inde veritatem secundum conscientiam suam manifestabunt_," (shall make
+twelve legal men from the neighborhood _to swear that they will make
+known the truth according to their conscience_.)--_Crabbe's History of
+the English Law_, 119. _1 Reeves_, 87. _Wilkins_, 321-323.
+
+Glanville, who wrote within the half century previous to Magna Carta,
+says:
+
+   "Each of the knights summoned for this purpose (as jurors) ought to
+   swear that he will neither utter that which is false, nor knowingly
+   conceal the truth."--_Beames' Glanville_, 65.
+
+Reeve calls the trial by jury "_the trial by twelve men sworn to speak
+the truth_."--_1 Reeve's History of the English Law_, 87.
+
+Henry says that the jurors "took a solemn oath, that they would
+faithfully discharge the duties of their office, and not suffer an
+innocent man to be condemned, nor any guilty person to be
+acquitted."--_3 Henry's Hist. of Great Britain_, 346.
+
+The _Mirror of Justices_, (written within a century after Magna Carta,)
+in the chapter on the abuses of the Common Law, says:
+
+   "It is abuse to use the words, _to their knowledge_, in their oaths,
+   to make the jurors speak upon thoughts, _since the chief words of
+   their oaths be that they speak the truth_."--p. 249.
+
+Smith, writing in the time of Elizabeth, says that, in _civil_ suits,
+the jury "be sworn to declare the truth of that issue according to the
+evidence, and their conscience."--_Smith's Commonwealth of England_,
+edition of 1621, p. 73.
+
+In _criminal_ trials, he says:
+
+   "The clerk giveth the juror an oath to go uprightly betwixt the
+   prince and the prisoner."--_Ditto_, p. 90.[55]
+
+Hale says:
+
+   "Then twelve, and no less, of such as are indifferent and are
+   returned upon the principal panel, or the _tales_, are sworn to try
+   the same according to the evidence."--_2 Hale's History of the Common
+   Law_, 141.
+
+It appears from Blackstone that, even _at this day, neither in civil nor
+criminal cases_, are jurors in England sworn to try causes _according to
+law_. He says that in civil suits the jury are
+
+   "Sworn well and truly to _try the issue_ between the parties, and a
+   true verdict to give according to the evidence."--_3 Blackstone_,
+   365.
+
+"_The issue_" to be tried is whether A owes B anything; and if so, how
+much? or whether A has in his possession anything that belongs to B; or
+whether A has wronged B, and ought to make compensation; and if so, how
+much?
+
+No statute passed by a legislature, simply as a legislature, can alter
+either of these "issues" in hardly any conceivable case, perhaps in
+none. No _unjust_ law could ever alter them in any. They are all mere
+questions of natural justice, which legislatures have no power to alter,
+and with which they have no right to interfere, further than to provide
+for having them settled by the most competent and impartial tribunal
+that it is practicable to have, and then for having all just decisions
+enforced. And any tribunal, whether judge or jury, that attempts to try
+these issues, has no more moral right to be swerved from the line of
+justice, by the will of a legislature, than by the will of any other
+body of men whatever. And this oath does not require or permit a jury to
+be so swerved.
+
+In criminal cases, Blackstone says the oath of the jury in England is:
+
+   "Well and truly to try, and true deliverance make, between our
+   sovereign lord, the king, and the prisoner whom they have in charge,
+   and a true verdict to give according to the evidence."--_4
+   Blackstone_, 355.
+
+"The issue" to be tried, in a criminal case, is "_guilty_," or "_not
+guilty_." The laws passed by a legislature can rarely, if ever, have
+anything to do with this issue. "_Guilt_" is an _intrinsic_ quality of
+actions, and can neither be created, destroyed, nor changed by
+legislation. And no tribunal that attempts to try this issue can have
+any moral right to declare a man _guilty_, for an act that is
+intrinsically innocent, at the bidding of a legislature, any more than
+at the bidding of anybody else. And this oath does not require or permit
+a jury to do so.
+
+The words, "_according to the evidence_," have doubtless been introduced
+into the above oaths in modern times. They are unquestionably in
+violation of the Common Law, and of Magna Carta, if by them be meant
+such evidence only as the government sees fit to allow to go to the
+jury. If the government can dictate the evidence, and require the jury
+to decide according to that evidence, it necessarily dictates the
+conclusion to which they must arrive. In that case the trial is really a
+trial by the government, and not by the jury. _The jury_ cannot _try an
+issue_, unless _they_ determine what evidence shall be admitted. The
+ancient oaths, it will be observed, say nothing about "_according to the
+evidence_." They obviously take it for granted that the jury try the
+whole case; and of course that _they_ decide what evidence shall be
+admitted. It would be intrinsically an immoral and criminal act for a
+jury to declare a man guilty, or to declare that one man owed money to
+another, unless all the evidence were admitted, which _they_ thought
+ought to be admitted, for ascertaining the truth.[56]
+
+_Grand Jury._--If jurors are bound to enforce all laws passed by the
+legislature, it is a very remarkable fact that the oath of grand juries
+does not require them to be governed by the laws in finding indictments.
+There have been various forms of oath administered to grand jurors; but
+by none of them that I recollect ever to have seen, except those of the
+States of Connecticut and Vermont, are they sworn to present men
+_according to law_. The English form, as given in the essay on Grand
+Juries, written near two hundred years ago, and supposed to have been
+written by _Lord Somers_, is as follows:
+
+   "You shall diligently inquire, and true presentment make, of all such
+   articles, matters, and things, as shall be given you in charge, and
+   of all other matters and things as shall come to your knowledge
+   touching this present service. The king's council, your fellows, and
+   your own, you shall keep secret. You shall present no person for
+   hatred or malice; neither shall you leave any one unpresented for
+   favor, or affection, for love or gain, or any hopes thereof; but in
+   all things you shall present the truth, the whole truth, and nothing
+   but the truth, to the best of your knowledge. So help you God."
+
+This form of oath is doubtless quite ancient, for the essay says "our
+ancestors appointed" it.--_See Essay_, p. 33-34.
+
+On the obligations of this oath, the essay says:
+
+   "If it be asked how, or in what manner, the (grand) juries shall
+   inquire, the answer is ready, _according to the best of their
+   understandings_. They only, not the judges, are sworn to search
+   diligently to find out all treasons, &c., within their charge, and
+   they must and ought to use their own discretion in the way and manner
+   of their inquiry. _No directions can legally be imposed upon them by
+   any court or judges_; an honest jury will thankfully accept good
+   advice from judges, as their assistants; but they are bound by their
+   oaths to present the truth, the whole truth, and nothing but the
+   truth, to the best of their own, not the judge's, knowledge. Neither
+   can they, without breach of that oath, resign their consciences, or
+   blindly submit to the dictates of others; and therefore ought to
+   receive or reject such advices, as they judge them good or bad. * *
+   Nothing can be more plain and express than the words of the oath are
+   to this purpose. The jurors need not search the law books, nor tumble
+   over heaps of old records, for the explanation of them. Our greatest
+   lawyers may from hence learn more certainly our ancient law in this
+   case, than from all the books in their studies. The language wherein
+   the oath is penned is known and understood by every man, and the
+   words in it have the same signification as they have wheresoever else
+   they are used. The judges, without assuming to themselves a
+   legislative power, cannot put a new sense upon them, other than
+   according to their genuine, common meaning. They cannot magisterially
+   impose their opinions upon the jury, and make them forsake the direct
+   words of their oath, to pursue their glosses. The grand inquest are
+   bound to observe alike strictly every part of their oath, and to use
+   all just and proper ways which may enable them to perform it;
+   otherwise it were to say, that after men had sworn to inquire
+   diligently after the truth, according to the best of their knowledge,
+   they were bound to forsake all the natural and proper means which
+   their understandings suggest for the discovery of it, if it be
+   commanded by the judges."--_Lord Somers' Essay on Grand Juries_, p.
+   38.
+
+What is here said so plainly and forcibly of the oath and obligations of
+grand juries, is equally applicable to the oath and obligations of petit
+juries. In both cases the simple oaths of the jurors, and not the
+instructions of the judges, nor the statutes of kings nor legislatures,
+are their legal guides to their duties.[57]
+
+
+SECTION IV.
+
+_The Right of Juries to fix the Sentence._
+
+The nature of the common law courts existing prior to Magna Carta, such
+as the county courts, the hundred courts, the court-leet, and the
+court-baron, all prove, what has already been proved from Magna Carta,
+that, in jury trials, the juries fixed the sentence; because, in those
+courts, there was no one but the jury who could fix it, unless it were
+the sheriff, bailiff, or steward; and no one will pretend that it was
+fixed by them. The juries unquestionably gave the "judgment" in both
+civil and criminal cases.
+
+That the juries were to fix the sentence under Magna Carta, is also
+shown by statutes subsequent to Magna Carta.
+
+A statute passed fifty-one years after Magna Carta, says that a baker,
+for default in the weight of his bread, "_debeat_ amerciari vel subire
+judicium pillorae,"--that is, "_ought_ to be amerced, or suffer the
+sentence of the pillory." And that a brewer, for "selling ale, contrary
+to the assize," "_debeat_ amerciari, vel pati judicium tumbrelli;" that
+is, "_ought_ to be amerced, or suffer judgment of the tumbrel."--_51
+Henry III._, st. 6. (1266.)
+
+If the king (the legislative power) had had authority to fix the
+punishments of these offences imperatively, he would naturally have said
+these offenders _shall_ be amerced, and _shall_ suffer judgment of the
+pillory and tumbrel, instead of thus simply expressing the opinion that
+they _ought_ to be punished in that manner.
+
+The statute of Westminster, passed sixty years after Magna Carta,
+provides that,
+
+   "No city, borough, nor town, _nor any man_, be amerced, without
+   reasonable cause, and according to the quantity of the trespass; that
+   is to say, every freeman saving his freehold, a merchant saving his
+   merchandise, a villein his waynage, _and that by his or their
+   peers_."--_3 Edward I._, ch. 6. (1275.)
+
+The same statute (ch. 18) provides further, that,
+
+   "Forasmuch as the _common fine and amercement_ of the whole county in
+   Eyre of the justices for false judgments, or for other trespass, is
+   unjustly assessed by sheriffs and baretors in the shires, so that the
+   sum is many times increased, and the parcels otherwise assessed than
+   they ought to be, to the damage of the people, which be many times
+   paid to the sheriffs and baretors, which do not acquit the payers; it
+   is provided, and the king wills, that from henceforth such sums shall
+   be assessed before the justices in Eyre, afore their departure, _by
+   the oath of knights and other honest men_, upon all such as ought to
+   pay; and the justices shall cause the parcels to be put into their
+   estreats, which shall be delivered up unto the exchequer, and not the
+   whole sum."--_St. 3 Edward I._, ch. 18, (1275.)[58]
+
+The following statute, passed in 1341, one hundred and twenty-five years
+after Magna Carta, providing for the trial of peers of the realm, and
+the king's ministers, contains a recognition of the principle of Magna
+Carta, that the jury are to fix the sentence.
+
+   "Whereas before this time the peers of the land have been arrested
+   and imprisoned, and their temporalities, lands, and tenements, goods
+   and cattels, asseized in the king's hands, and some put to death
+   without judgment of their peers: It is accorded and assented, that no
+   peer of the land, officer, nor other, because of his office, nor of
+   things touching his office, nor by other cause, shall be brought in
+   judgment to lose his temporalities, lands, tenements, goods and
+   cattels, nor to be arrested, nor imprisoned, outlawed, exiled, nor
+   forejudged, nor put to answer, nor be judged, but by _award_
+   (_sentence_) of the said peers in Parliament."--_15 Edward III._, st.
+   1, sec. 2.
+
+Section 4, of the same statute provides,
+
+   "That in every Parliament, at the third day of every Parliament, the
+   king shall take in his hands the offices of all the ministers
+   aforesaid," (that is, "the chancellor, treasurer, barons, and
+   chancellor of the exchequer, the justices of the one bench and of the
+   other, justices assigned in the country, steward and chamberlain of
+   the king's house, keeper of the privy seal, treasurer of the
+   wardrobe, controllers, and they that be chief deputed to abide nigh
+   the king's son, Duke of Cornwall,") "and so they shall abide four or
+   five days; except the offices of justices of the one place or the
+   other, justices assigned, barons of exchequer; so always that they
+   and all other ministers be put to answer to every complaint; and if
+   default be found in any of the said ministers, by complaint or other
+   manner, and of that attainted in Parliament, he shall be punished by
+   judgment of the peers, and put out of his office, and another
+   convenient put in his place. And upon the same our said sovereign
+   lord the king shall do (cause) to be pronounced and made execution
+   without delay, _according to the judgment_ (_sentence_) of the said
+   peers in the Parliament."
+
+Here is an admission that the peers were to fix the sentence, or
+judgment, and the king promises to make execution "_according to_" that
+sentence.
+
+And this appears to be the law, under which peers of the realm and the
+great officers of the crown were tried and sentenced, for four hundred
+years after its passage, and, for aught I know, until this day.
+
+The first case given in Hargrave's collection of English State Trials,
+is that of _Alexander Nevil_, Archbishop of York, _Robert Vere_, Duke
+of Ireland, _Michael de la Pole_, Earl of Suffolk, and _Robert
+Tresilian_, Lord Chief Justice of England, with several others,
+convicted of treason, before "the Lords of Parliament," in 1388. The
+sentences in these cases were adjudged by the "Lords of Parliament," in
+the following terms, as they are reported.
+
+   "Wherefore the said _Lords of Parliament_, there present, as judges
+   in Parliament, in this case, _by assent of the king, pronounced their
+   sentence_, and did adjudge the said archbishop, duke, and earl, with
+   Robert Tresilian, so appealed, as aforesaid, to be guilty, and
+   convicted of treason, and to be drawn and hanged, as traitors and
+   enemies to the king and kingdom; and that their heirs should be
+   disinherited forever, and their lands and tenements, goods and
+   chattels, forfeited to the king, and that the temporalities of the
+   Archbishop of York should be taken into the king's hands."
+
+   Also, in the same case, Sir _John Holt_, Sir _William Burgh_, Sir
+   _John Cary_, Sir _Roger Fulthorpe_, and _John Locton_, "_were by the
+   lords temporal, by the assent of the king_, adjudged to be drawn and
+   hanged, as traitors, their heirs disinherited, and their lands and
+   tenements, goods and chattels, to be forfeited to the king."
+
+   Also, in the same case, _John Blake_, "of council for the king," and
+   _Thomas Uske_, under sheriff of Middlesex, having been convicted of
+   treason,
+
+   "_The lords awarded, by assent of the king_, that they should both be
+   hanged and drawn as traitors, as open enemies to the king and
+   kingdom, and their heirs disinherited forever, and their lands and
+   tenements, goods and chattels, forfeited to the king."
+
+   Also, "_Simon Burleigh_, the king's chamberlain," being convicted of
+   treason, "_by joint consent of the king and the lords_, sentence was
+   pronounced against the said Simon Burleigh, that he should be drawn
+   from the town to Tyburn, and there be hanged till he be dead, and
+   then have his head struck from his body."
+
+   Also, "_John Beauchamp_, steward of the household to the king, _James
+   Beroverse_, and _John Salisbury_, knights, gentlemen of the privy
+   chamber, _were in like manner condemned_."--_1 Hargrave's State
+   Trials_, first case.
+
+Here the sentences were all fixed by the peers, _with the assent of the
+king_. But that the king should be consulted, and his assent obtained to
+the sentence pronounced by the peers, does not imply any deficiency of
+power on their part to fix the sentence independently of the king. There
+are obvious reasons why they might choose to consult the king, and
+obtain his approbation of the sentence they were about to impose,
+without supposing any legal necessity for their so doing.
+
+So far as we can gather from the reports of state trials, peers of the
+realm were usually sentenced by those who tried them, _with the assent
+of the king_. But in some instances no mention is made of the assent of
+the king, as in the case of "Lionel, Earl of Middlesex, Lord High
+Treasurer of England," in 1624, (four hundred years after Magna Carta,)
+where the sentence was as follows:
+
+   "This High Court of Parliament doth adjudge, that Lionel, Earl of
+   Middlesex, now Lord Treasurer of England, shall lose all his offices
+   which he holds in this kingdom, and shall, hereafter, be made
+   incapable of any office, place, or employment in the state and
+   commonwealth. That he shall be imprisoned in the tower of London,
+   during the king's pleasure. That he shall pay unto our sovereign lord
+   the king a fine of 50,000 pounds. That he shall never sit in
+   Parliament any more, and that he shall never come within the verge of
+   the court."--_2 Howell's State Trials_, 1250.
+
+Here was a peer of the realm, and a minister of the king, of the highest
+grade; and if it were ever _necessary_ to obtain the assent of the king
+to sentences pronounced by the peers, it would unquestionably have been
+obtained in this instance, and his assent would have appeared in the
+sentence.
+
+_Lord Bacon_ was sentenced by the House of Lords, (1620,) _no mention
+being made of the assent of the king_. The sentence is in these words:
+
+   "And, therefore, this High Court doth adjudge, That the Lord Viscount
+   St. Albans, Lord Chancellor of England, shall undergo fine and ransom
+   of 40,000 pounds. That he shall be imprisoned in the tower during the
+   king's pleasure. That he shall forever be incapable of any office,
+   place, or employment in the state or commonwealth. That he shall
+   never sit in Parliament, nor come within the verge of the court."
+
+And when it was demanded of him, before sentence, whether it were his
+hand that was subscribed to his confession, and whether he would stand
+to it; he made the following answer, which implies that the lords were
+the ones to determine his sentence.
+
+   "My lords, it is my act, my hand, my heart. _I beseech your lordships
+   to be merciful to a broken reed._"--_1 Hargrave's State Trials_,
+   386-7.
+
+The sentence against Charles the First, (1648,) after reciting the
+grounds of his condemnation, concludes in this form:
+
+   "For all which treasons and crimes, _this court doth adjudge_, that
+   he, the said Charles Stuart, as a tyrant, traitor, murderer, and
+   public enemy to the good people of this nation, shall be put to death
+   by the severing his head from his body."
+
+The report then adds:
+
+   "This sentence being read, the president (of the court) spake as
+   followeth: 'This sentence now read and published, is the act,
+   sentence, judgment and resolution of the whole court.'"--_1
+   Hargrave's State Trials_, 1037.
+
+Unless it had been the received "_law of the land_" that those who tried
+a man should fix his sentence, it would have required an act of
+Parliament to fix the sentence of Charles, and his sentence would have
+been declared to be "_the sentence of the law_," instead of "_the act,
+sentence, judgment, and resolution of the court_."
+
+But the report of the proceedings in "the trial of Thomas, Earl of
+Macclesfield, Lord High Chancellor of Great Britain, before the House of
+Lords, for high crimes and misdemeanors in the execution of his office,"
+in 1725, is so full on this point, and shows so clearly that it rested
+wholly with the lords to fix the sentence, and that the assent of the
+king was wholly unnecessary, that I give the report somewhat at length.
+
+_After being found guilty_, the earl addressed the _lords_, for a
+_mitigation of sentence_, as follows:
+
+   "'I am now to expect your lordships' judgment; and I hope that you
+   will be pleased to consider that I have suffered no small matter
+   already in the trial, in the expense I have been at, the fatigue, and
+   what I have suffered otherways. * * I have paid back 10,800 pounds of
+   the money already; I have lost my office; I have undergone the
+   censure of both houses of Parliament, which is in itself a severe
+   punishment,'" &c., &c.
+
+On being interrupted, he proceeded:
+
+   "'My lords, I submit whether this be not proper in _mitigation of
+   your lordships' sentence_; but whether it be or not, I leave myself
+   to your lordships' justice and mercy; I am sure neither of them will
+   be wanting, and I entirely submit.' * *
+
+   "Then the said earl, as also the managers, were directed to withdraw;
+   and the House (of Lords) ordered Thomas, Earl of Macclesfield, to be
+   committed to the custody of the gentleman usher of the black rod; and
+   then proceeded to the consideration of what _judgment_," (that is,
+   _sentence_, for he had already been found _guilty_,) "to give upon
+   the impeachment against the said earl." * *
+
+   "The next day, the Commons, with their speaker, being present at the
+   bar of the House (of Lords), * * the speaker of the House of Commons
+   said as follows:
+
+   "'My Lords, the knights, citizens, and burgesses in Parliament
+   assembled, in the name of themselves, and of all the commons of Great
+   Britain, did at this bar impeach Thomas, Earl of Macclesfield, of
+   high crimes and misdemeanors, and did exhibit articles of impeachment
+   against him, and have made good their charge. I do, therefore, in the
+   name of the knights, citizens, and burgesses, in Parliament
+   assembled, and of all the commons of Great Britain, demand _judgment_
+   (_sentence_) of your lordships against Thomas, Earl of Macclesfield,
+   for the said high crimes and misdemeanors.'
+
+   "Then the Lord Chief Justice King, Speaker of the House of Lords,
+   said: 'Mr. Speaker, the Lords are now ready to proceed to judgment in
+   the case by you mentioned.
+
+   "'Thomas, Earl of Macclesfield, the Lords have unanimously found you
+   guilty of high crimes and misdemeanors, charged on you by the
+   impeachment of the House of Commons, and do now, according to law,
+   proceed to _judgment_ against you, which I am ordered to pronounce.
+   Their lordships' _judgment_ is, and this high court doth adjudge,
+   that you, Thomas, Earl of Macclesfield, be fined in the sum of thirty
+   thousand pounds unto our sovereign lord the king; and that you shall
+   be imprisoned in the tower of London, and there kept in safe custody,
+   until you shall pay the said fine.'"--_6 Hargrave's State Trials_,
+   762-3-4.
+
+This case shows that the principle of Magna Carta, that a man should be
+_sentenced only_ by his peers, was in force, and acted upon as law, in
+England, so lately as 1725, (five hundred years after Magna Carta,) so
+far as it applied to a _peer of the realm_.
+
+But the same principle, on this point, that applies to a peer of the
+realm, applies to every freeman. The only difference between the two is,
+that the peers of the realm have had influence enough to preserve their
+constitutional rights; while the constitutional rights of the people
+have been trampled upon and rendered obsolete by the usurpation and
+corruption of the government and the courts.
+
+
+SECTION V.
+
+_The Oaths of Judges._
+
+As further proof that the legislation of the king, whether enacted with
+or without the assent and advice of his parliaments, was of no authority
+unless it were consistent with the _common law_, and unless juries and
+judges saw fit to enforce it, it may be mentioned that it is probable
+that no judge in England was ever sworn to observe the laws enacted
+either by the king alone, or by the king with the advice and assent of
+parliament.
+
+The judges were sworn to "_do equal law, and execution of right, to all
+the king's subjects, rich and poor, without having regard to any
+person_;" and that they will "_deny no man common right_;"[59] but they
+were _not_ sworn to obey or execute any statutes of the king, or of the
+king and parliament. Indeed, they are virtually sworn _not_ to obey any
+statutes that are against "_common right_," or contrary to "_the common
+law_," or "_law of the land_;" but to "certify the king thereof"--that
+is, notify him that his statutes are against the common law;--and then
+proceed to execute the _common law_, notwithstanding such legislation to
+the contrary. The words of the oath on this point are these:
+
+   "_That ye deny no man common right by (virtue of) the king's letters,
+   nor none other man's, nor for none other cause; and in case any
+   letters come to you contrary to the law_, (that is, the common law,
+   as will be seen on reference to the entire oath given in the note,)
+   _that ye do nothing by such letters, but certify the king thereof
+   and proceed to execute the law_, (that is, the common law,)
+   _notwithstanding the same letters_."
+
+When it is considered that the king was the sole legislative power, and
+that he exercised this power, to a great extent, by orders in council,
+and by writs and "letters" addressed often-times to some sheriff, or
+other person, and that his commands, when communicated to his justices,
+or any other person, "by letters," or writs, _under seal_, had as much
+legal authority as laws promulgated in any other form whatever, it will
+be seen that this oath of the justices _absolutely required_ that they
+disregard any legislation that was contrary to "_common right_," or
+"_the common law_," and notify the king that it was contrary to common
+right, or the common law, and then proceed to execute the common law,
+notwithstanding such legislation.[60]
+
+If there could be any doubt that such was the meaning of this oath, that
+doubt would be removed by a statute passed by the king two years
+afterwards, which fully explains this oath, as follows:
+
+   "Edward, by the Grace of God, &c., to the Sheriff of _Stafford_,
+   greeting: Because that by divers complaints made to us, we have
+   perceived that _the Law of the Land, which we by our oath are bound
+   to maintain_, is the less well kept, and the execution of the same
+   disturbed many times by maintenance and procurement, as well in the
+   court as in the country; we greatly moved of conscience in this
+   matter, and for this cause desiring as much for the pleasure of God,
+   and ease and quietness of our subjects, as to save our conscience,
+   and for to save and keep our said oath, by the assent of the great
+   men and other wise men of our council, we have ordained these things
+   following:
+
+   "First, we have commanded all our justices, that they shall from
+   henceforth _do equal law and execution of right_ to all our subjects,
+   rich and poor, without having regard to any person, _and without
+   omitting to do right for any letters or commandment which may come to
+   them from us, or from any other, or by any other cause. And if that
+   any letters, writs, or commandments come to the justices, or to other
+   deputed to do law and right according to the usage of the realm, in
+   disturbance of the law, or of the execution of the same, or of right
+   to the parties, the justices and other aforesaid shall proceed and
+   hold their courts and processes, where the pleas and matters be
+   depending before them, as if no such letters, writs, or commandments
+   were come to them; and they shall certify us and our council of such
+   commandments which be contrary to the law_, (that is, "the law of the
+   land," or common law,) _as afore is said_.[61] And to the intent that
+   our justices shall do even right to all people in the manner
+   aforesaid, without more favor showing to one than to another, we have
+   ordained and caused our said justices to be sworn, that they shall
+   not from henceforth, as long as they shall be in the office of
+   justice, take fee nor robe of any man, but of ourself, and that they
+   shall take no gift nor reward by themselves, nor by other, privily
+   nor apertly, of any man that hath to do before them by any way,
+   except meat and drink, and that of small value; and that they shall
+   give no counsel to great men or small, in case where we be party, or
+   which do or may touch us in any point, upon pain to be at our will,
+   body, lands, and goods, to do thereof as shall please us, in case
+   they do contrary. And for this cause we have increased the fees of
+   the same, our justices, in such manner as it ought reasonably to
+   suffice them."--_20 Edward III._, ch. 1. (1346.)
+
+Other statutes of similar tenor have been enacted, as follows:
+
+   "It is accorded and established, that it shall not be commanded by
+   the great seal, nor the little seal, to disturb or delay _common
+   right_; and though such commandments do come, the justices shall not
+   therefore leave (omit) to do right in any point."--_St. 2 Edward
+   III._, ch. 8. (1328.)
+
+   "That by commandment of the great seal, or privy seal, no point of
+   this statute shall be put in delay; nor that the justices of
+   whatsoever place it be shall let (omit) to do the _common law_, by
+   commandment, which shall come to them under the great seal, or the
+   privy seal."--_14 Edward III._, st. 1, ch. 14. (1340.)
+
+   "It is ordained and established, that neither letters of the signet,
+   nor of the king's privy seal, shall be from henceforth sent in damage
+   or prejudice of the realm, nor in disturbance of the law" (the common
+   law).--_11 Richard II._, ch. 10. (1387.)
+
+It is perfectly apparent from these statutes, and from the oath
+administered to the justices, that it was a matter freely confessed by
+the king himself, that his statutes were of no validity, if contrary to
+the common law, or "common right."
+
+The oath of the justices, before given, is, I presume, the same that has
+been administered to judges in England from the day when it was first
+prescribed to them, (1344,) until now. I do not find from the English
+statutes that the oath has ever been changed. The Essay on Grand Juries,
+before referred to, and supposed to have been written by _Lord Somers_,
+mentions this oath (page 73) as being still administered to judges, that
+is, in the time of Charles II., more than three hundred years after the
+oath was first ordained. If the oath has never been changed, it follows
+that judges have not only never been sworn to support any statutes
+whatever of the king, or of parliament, but that, for five hundred
+years past, they actually have been sworn to treat as invalid all
+statutes that were contrary to the common law.
+
+
+SECTION VI.
+
+_The Coronation Oath._
+
+That the legislation of the king was of no authority over a jury, is
+further proved by the oath taken by the kings at their coronation. This
+oath seems to have been substantially the same, from the time of the
+_Saxon_ kings, down to the seventeenth century, as will be seen from the
+authorities hereafter given.
+
+The purport of the oath is, that the king swears _to maintain the law of
+the land_--that is, _the common law_. In other words, he swears "_to
+concede and preserve to the English people the laws and customs conceded
+to them by the ancient, just, and pious English kings, * * and
+especially the laws, customs, and liberties conceded to the clergy and
+people by the illustrious king Edward;" * * and "the just laws and
+customs which the common people have chosen, (quas vulgus elegit)_."
+
+These are the same laws and customs which were called by the general
+name of "_the law of the land_," or "_the common law_," and, with some
+slight additions, were embodied in _Magna Carta_.
+
+This oath not only forbids the king to enact any statutes contrary to
+the common law, but it proves that his statutes could be of no authority
+over the consciences of a jury; since, as has already been sufficiently
+shown, it was one part of this very common law itself,--that is, of the
+ancient "laws, customs, and liberties," mentioned in the oath,--that
+juries should judge of all questions that came before them, according to
+their own consciences, independently of the legislation of the king.
+
+It was impossible that this right of the jury could subsist consistently
+with any right, on the part of the king, to impose any authoritative
+legislation upon them. His oath, therefore, to maintain the law of the
+land, or the ancient "laws, customs, and liberties," was equivalent to
+an oath that he would never _assume_ to impose laws upon juries, as
+imperative rules of decision, or take from them the right to try all
+cases according to their own consciences. It is also an admission that
+he had no constitutional power to do so, if he should ever desire it.
+This oath, then, is conclusive proof that his legislation was of no
+authority with a jury, and that they were under no obligation whatever
+to enforce it, unless it coincided with their own ideas of justice.
+
+The ancient coronation oath is printed with the Statutes of the Realm,
+vol. i., p. 168, and is as follows:[62]
+
+TRANSLATION.
+
+   "_Form of the Oath of the King of England, on his Coronation._
+
+   (The Archbishop of Canterbury, to whom, of right and custom of the
+   Church of Canterbury, ancient and approved, it pertains to anoint and
+   crown the kings of England, on the day of the coronation of the king,
+   and before the king is crowned, shall propound the underwritten
+   questions to the king.)
+
+   The laws and customs, conceded to the English people by the ancient,
+   just, and pious English kings, will you concede and preserve to the
+   same people, with the confirmation of an oath? and especially the
+   laws, customs, and liberties conceded to the clergy and people by the
+   illustrious king Edward?
+
+   (And the king shall answer,) I do concede, and will preserve them,
+   and confirm them by my oath.
+
+   Will you preserve to the church of God, the clergy, and the people,
+   entire peace and harmony in God, according to your powers?
+
+   (And the king shall answer,) I will.
+
+   In all your judgments, will you cause equal and right justice and
+   discretion to be done, in mercy and truth, according to your powers?
+
+   (And the king shall answer,) I will.
+
+   Do you concede that the just laws and customs, _which the common
+   people have chosen_, shall be preserved; and do you promise that they
+   shall be protected by you, and strengthened to the honor of God,
+   according to your powers?
+
+   (And the king shall answer,) I concede and promise."
+
+The language used in the last of these questions, "Do you concede that
+the just laws and customs, _which the common people have chosen_, (_quas
+vulgus elegit_,) shall be preserved?" &c., is worthy of especial notice,
+as showing that the laws, which were to be preserved, were not
+necessarily _all_ the laws which the kings enacted, _but only such of
+them as the common people had selected or approved_.
+
+And how had the common people made known their approbation or selection
+of these laws? Plainly, in no other way than this--_that the juries
+composed of the common people had voluntarily enforced them_. The common
+people had no other legal form of making known their approbation of
+particular laws.
+
+The word "concede," too, is an important word. In the English statutes
+it is usually translated _grant_--as if with an intention to indicate
+that "the laws, customs, and liberties" of the English people were mere
+_privileges, granted_ to them by the king; whereas it should be
+translated _concede_, to indicate simply an _acknowledgment_, on the
+part of the king, that such were the laws, customs, and liberties, which
+had been chosen and established by the people themselves, and of right
+belonged to them, and which he was bound to respect.
+
+I will now give some authorities to show that the foregoing oath has,
+_in substance_, been the coronation oath from the times of William the
+Conqueror, (1066,) down to the time of James the First, and probably
+until 1688.
+
+It will be noticed, in the quotation from Kelham, that he says this oath
+(or the oath of William the Conqueror) is "in sense and substance the
+very same with that which the _Saxon_ kings used to take at their
+coronations."
+
+Hale says:
+
+   "Yet the English were very zealous for them," (that is, for the laws
+   of Edward the Confessor,) "no less or otherwise than they are at this
+   time for the Great Charter; insomuch that they were never satisfied
+   till the said laws were 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
+   English 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_[63] to guide, shall allow the said
+   charters pleaded before them in judgment, in all their points, that
+   is, to wit, _the Great Charter as the Common Law_, and the Charter of
+   the Forest for the wealth of the realm.
+
+   "And we will, that if any judgment be given from henceforth, contrary
+   to the points of the charters aforesaid, by the justices, or by any
+   other our ministers that hold plea before them against the points of
+   the charters, it shall be undone, and holden for naught."--_25 Edward
+   I._, ch. 1 and 2. (1297.)
+
+Blackstone also says:
+
+   "It is agreed by all our historians that the Great Charter of King
+   John was, for the most part, _compiled from the ancient customs of
+   the realm, or the laws of Edward the Confessor; by which they usually
+   mean the old common law which was established under our Saxon
+   princes_."--_Blackstone's Introduction to the Charters._ See
+   _Blackstone's Law Tracts_, 289.
+
+Crabbe says:
+
+   "It is admitted, on all hands, that it (Magna Carta) contains nothing
+   but what was confirmatory of the common law, and the ancient usages
+   of the realm, and is, properly speaking, only an enlargement of the
+   charter of Henry I., and his successors."--_Crabbe's History of the
+   English Law_, p. 127.
+
+That the coronation oath of the kings subsequent to Magna Carta was, in
+substance, if not in form, "_to maintain this law of the land, or common
+law_," is shown by a statute of Edward Third, commencing as follows:
+
+   "Edward, by the Grace of God, &c., &c., to the Sheriff of Stafford,
+   Greeting: Because that by divers complaints made to us, we have
+   perceived that _the law of the land, which we by oath are bound to
+   maintain_," &c.--_St. 20 Edward III._ (1346.)
+
+The following extract from Lord Somers' tract on Grand Juries shows that
+the coronation oath continued the same as late as 1616, (four hundred
+years after Magna Carta.) He says:
+
+   "King James, in his speech to the judges, in the Star Chamber, Anno
+   1616, told them, 'That he had, after many years, resolved to renew
+   his oath, made at his coronation, concerning justice, and the promise
+   therein contained for _maintaining the law of the land_.' And, in the
+   next page save one, says, '_I was sworn to maintain the law of the
+   land_, and therefore had been perjured if I had broken it. God is my
+   judge, I never intended it.'"--_Somers on Grand Juries_, p. 82.
+
+In 1688, the coronation oath was changed by act of Parliament, and the
+king was made to swear:
+
+   "To govern the people of this kingdom of England, and the dominions
+   thereto belonging, _according to the statutes in Parliament agreed
+   on, and the laws and customs of the same_."--_St. 1 William and
+   Mary_, ch. 6. (1688.)
+
+The effect and legality of this oath will hereafter be considered. For
+the present it is sufficient to show, as has been already sufficiently
+done, that from the Saxon times until at least as lately as 1616, the
+coronation oath has been, in substance, _to maintain the law of the
+land, or the common law_, meaning thereby the ancient Saxon customs, as
+embodied in the laws of Alfred, of Edward the Confessor, and finally in
+Magna Carta.
+
+It may here be repeated that this oath plainly proves that the statutes
+of the king were of no authority over juries, if inconsistent with their
+ideas of right; because it was one part of the common law that juries
+should try all causes according to their own consciences, any
+legislation of the king to the contrary notwithstanding.[64]
+
+[Footnote 34: Hale says:
+
+   "The trial by jury of twelve men was the usual trial among the
+   Normans, in most suits; especially in assizes, et juris utrum."--_1
+   Hale's History of the Common Law_, 219.
+
+This was in Normandy, before the conquest of England by the Normans.
+_See Ditto_, p. 218.
+
+Crabbe says:
+
+   "It cannot be denied that the practice of submitting causes to the
+   decision of twelve men was universal among all the northern tribes
+   (of Europe) from the very remotest antiquity."--_Crabbe's History of
+   the English Law_, p. 32.]
+
+[Footnote 35: "The people, who in every general council or assembly
+could oppose and dethrone their sovereigns, were in little dread of
+their encroachments on their liberties; and kings, who found sufficient
+employment in keeping possession of their crowns, would not likely
+attack the more important privileges of their subjects."]
+
+[Footnote 36: This office was afterwards committed to sheriffs. But even
+while the court was held by the lord, "_the Lord was not judge, but the
+Pares (peers) only_."--_Gilbert on the Court of Exchequer_, 61-2.]
+
+[Footnote 37: The opinion expressed in the text, that the Witan had no
+legislative authority, is corroborated by the following authorities:
+
+"From the fact that the new laws passed by the king and the Witan were
+laid before the shire-mote, (county court,) we should be almost
+justified in the inference that a second sanction was necessary before
+they could have the effect of law in that particular county."--_Dunham's
+Middle Ages, Sec._ 2, _B._ 2, _Ch._ 1. _57 Lardner's Cab. Cyc._, 53.
+
+The "_second sanction_" required to give the legislation of the king and
+Witan the effect of law, was undoubtedly, I think, _as a general thing,
+the sanction of a jury_. I know of no evidence whatever that laws were
+ever submitted to popular vote in the county courts, as this author
+seems to suppose possible. Another mode, sometimes resorted to for
+obtaining the sanction of the people to the laws of the Witan, was, it
+seems, to persuade the people themselves to swear to observe them.
+Mackintosh says:
+
+"The preambles of the laws (of the Witan) speak of the infinite number
+of _liegemen_ who attended, as only applauding the measures of the
+assembly. But this applause was neither so unimportant to the success of
+the measures, nor so precisely distinguished from a share in
+legislation, as those who read history with a modern eye might imagine.
+It appears that under Athelstan expedients were resorted to, to obtain a
+consent to the law from great bodies of the people in their districts,
+which their numbers rendered impossible in a national assembly. That
+monarch appears to have sent commissioners to hold _shire-gemotes_ or
+county meetings, where they proclaimed the laws made by the king and his
+counsellors, which, being acknowledged and sworn to at these
+_folk-motes_ (meetings of the people) became, by their assent,
+completely binding on the whole nation."--_Mackintosh's Hist. of
+England_, _Ch._ 2. _45 Lardner's Cab. Cyc._, 75.]
+
+[Footnote 38: Page 31.]
+
+[Footnote 39: Hallam says, "It was, however, to the county court that an
+English freeman chiefly looked for the maintenance of his civil
+rights."--_2 Middle Ages_, 392.
+
+Also, "This (the county court) was the great constitutional judicature
+in all questions of civil right."--_Ditto_, 395.
+
+Also, "The liberties of these Anglo-Saxon thanes were chiefly secured,
+next to their swords and their free spirits, by the inestimable right of
+deciding civil and criminal suits in their own county courts."--_Ditto_,
+399.]
+
+[Footnote 40: "Alfred may, in one sense, be called the founder of these
+laws, (the Saxon,) for until his time they were an unwritten code, but
+he expressly says, '_that I, Alfred, collected the good laws of our
+forefathers into one code, and also I wrote them down_'--which is a
+decisive fact in the history of our laws well worth noting."--_Introduction
+to Gilbert's History of the Common Pleas_, p. 2, _note_.
+
+Kelham says, "Let us consult our own lawyers and historians, and they
+will tell us * * that Alfred, Edgar, and Edward the Confessor, were the
+great _compilers and restorers_ of the English Laws."--_Kelham's
+Preliminary Discourse to the Laws of William the Conqueror_, p. 12.
+_Appendix to Kelham's Dictionary of the Norman Language._
+
+"He (Alfred) also, like another Theodosius, _collected the various
+customs_ that he found dispersed in the kingdom, and reduced and
+digested them into one uniform system, or code of laws, in his
+_som-bec_, or _liber judicialis_ (judicial book). This he _compiled_ for
+the use of the court baron, hundred and county court, the court-leet and
+sheriff's tourn, tribunals which he established for the trial of all
+causes, civil and criminal, in the very districts wherein the complaints
+arose."--_4 Blackstone_, 411.
+
+Alfred himself says, "Hence I, King Alfred, gathered these together, and
+commanded many of those to be written down which our forefathers
+observed--those which I liked--and those which I did not like, by the
+advice of my Witan, I threw aside. For I durst not venture to set down
+in writing over many of my own, since I knew not what among them would
+please those that should come after us. But those which I met with
+either of the days of me, my kinsman, or of Offa, King of Mercia, or of
+AEthelbert, who was the first of the English who received baptism--those
+which appeared to me the justest--I have here collected, and abandoned
+the others. Then I, Alfred, King of the West Saxons, showed these to all
+my Witan, and they then said that they were all willing to observe
+them."--_Laws of Alfred, translated by R. Price, prefixed to
+Mackintosh's History of England_, _vol._ 1. _45 Lardner's Cab. Cyc._
+
+"King Edward * * projected and begun what his grandson, King Edward the
+Confessor, afterwards completed, viz., one uniform digest or body of
+laws to be observed throughout the whole kingdom, _being probably no
+more than a revival of King Alfred's code_, with some improvements
+suggested by necessity and experience, particularly the incorporating
+some of the British, or, rather, Mercian _customs_, and also _such of
+the Danish_ (customs) as were reasonable and approved, into the _West
+Saxon Lage_, which was still the ground-work of the whole. And this
+appears to be the best supported and most plausible conjecture, (for
+certainty is not to be expected,) of the rise and original of that
+admirable system of maxims and unwritten customs which is now known by
+the name of the _common law_, as extending its authority universally
+over all the realm, and which is doubtless of Saxon parentage."--_4
+Blackstone_, 412.
+
+"By the _Lex 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_.]
+
+[Footnote 41: Not the conqueror of the English people, (as the friends
+of liberty maintain,) but only of Harold the usurper.--See _Hale's
+History of the Common Law_, ch. 5.]
+
+[Footnote 42: For all these codes see Wilkins' Laws of the Anglo-Saxons.
+
+"Being regulations adapted to existing institutions, the Anglo-Saxon
+statutes are concise and technical, alluding to the law which was then
+living and in vigor, rather than defining it. The same clauses and
+chapters are often repeated word for word, in the statutes of subsequent
+kings, showing that enactments which bear the appearance of novelty are
+merely declaratory. Consequently the appearance of a law, seemingly for
+the first time, is by no means to be considered as a proof that the
+matter which it contains is new; nor can we trace the progress of the
+Anglo-Saxon institutions with any degree of certainty, by following the
+dates of the statutes in which we find them first noticed. All arguments
+founded on the apparent chronology of the subjects included in the laws,
+are liable to great fallacies. Furthermore, a considerable portion of
+the Anglo-Saxon law was never recorded in writing. There can be no doubt
+but that the rules of inheritance were well established and defined; yet
+we have not a single law, and hardly a single document from which the
+course of the descent of land can be inferred. * * Positive proof cannot
+be obtained of the commencement of any institution, because the first
+written law relating to it may possibly be merely confirmatory or
+declaratory; neither can the non-existence of any institution be
+inferred from the absence of direct evidence. Written laws were modified
+and controlled by customs of which no trace can be discovered, until
+after the lapse of centuries, although those usages must have been in
+constant vigor during the long interval of silence."--_1 Palgrave's Rise
+and Progress of the English Commonwealth_, 58-9.]
+
+[Footnote 43: Rapin says, "The customs now practised in England are, for
+the most part, the same as the Anglo-Saxons brought with them from
+Germany."--_Rapin's Dissertation on the Government of the Anglo-Saxons_,
+vol. 2, Oct. Ed., p. 198. See _Kelham's Discourse before named_.]
+
+[Footnote 44: Hallam says, "The county of Sussex contains sixty-five
+('hundreds'); that of Dorset forty-three; while Yorkshire has only
+twenty-six; and Lancashire but six."--_2 Middle Ages_, 391.]
+
+[Footnote 45: Excepting also matters pertaining to the collection of the
+revenue, which were determined in the king's court of exchequer. But
+even in this court it was the law "_that none be amerced but by his
+peers_."--_Mirror of Justices_, 49.]
+
+[Footnote 46: "For the English laws, _although not written_, may, as it
+should seem, and that without any absurdity, be termed laws, (since this
+itself is law--that which pleases the prince has the force of law,) I
+mean those laws which it is evident were promulgated by the advice of
+the nobles and the authority of the prince, concerning doubts to be
+settled in their assembly. For if from the mere want of writing only,
+they should not be considered laws, then, unquestionably, writing would
+seem to confer more authority upon laws themselves, than either the
+equity of the persons constituting, or the reason of those framing
+them."--_Glanville's Preface_, p. 38. (Glanville was chief justice of
+Henry II., 1180.) _2 Turner's History of the Anglo-Saxons_, 280.]
+
+[Footnote 47: Mackintosh's History of England, ch. 3. Lardner's Cabinet
+Cyclopaedia, 266.]
+
+[Footnote 48: If the laws of the king were received as authoritative by
+the juries, what occasion was there for his appointing special
+commissioners for the trial of offences, without the intervention of a
+jury, as he frequently did, in manifest and acknowledged violation of
+Magna Carta, and "the law of the land?" These appointments were
+undoubtedly made for no other reason than that the juries were not
+sufficiently subservient, but judged according to their own notions of
+right, instead of the will of the king--whether the latter were
+expressed in his statutes, or by his judges.]
+
+[Footnote 49: Of course, Mr. Reeve means to be understood that, in the
+hundred court, and court-leet, _the jurors were the judges_, as he
+declares them to have been in the county court; otherwise the "bailiff"
+or "steward" must have been judge.]
+
+[Footnote 50: The jurors were sometimes called "assessors," because they
+assessed, or determined the amount of fines and amercements to be
+imposed.]
+
+[Footnote 51: "The barons of the Hundred" were the freeholders. Hallam
+says: "The word _baro_, originally meaning only a man, was of very large
+significance, and is not unfrequently applied to common freeholders, as
+in the phrase _court-baron_."--_3 Middle Ages_, 14-15.
+
+_Blackstone_ says: "The _court-baron_ * * is a court of common law, and
+it is the court of the barons, by which name the freeholders were
+sometimes anciently called; for that it is held before the freeholders
+who owe suit and service to the manor."--_3 Blackstone_, 33.]
+
+[Footnote 52: The ancient jury courts kept no records, because those who
+composed the courts could neither make nor read records. Their decisions
+were preserved by the memories of the jurors and other persons present.]
+
+[Footnote 53: Stuart says:
+
+"The courts, or civil arrangements, which were modelled in Germany,
+preserved the independence of the people; and having followed the Saxons
+into England, and continuing their importance, they supported the envied
+liberty we boast of. * *
+
+"As a chieftain led out his retainers to the field, and governed them
+during war; so in peace he summoned them together, and exerted a civil
+jurisdiction. He was at once their captain and their judge. They
+constituted his court; and having inquired with him into the guilt of
+those of their order whom justice had accused, they assisted him to
+enforce his decrees.
+
+"This court (the court-baron) was imported into England; but the
+innovation which conquest introduced into the fashion of the times
+altered somewhat its appearance. * *
+
+"The head or lord of the manor called forth his attendants to his hall.
+* * He inquired into the breaches of custom, and of justice, which were
+committed within the precincts of his territory; and with his followers,
+_who sat with him as judges_, he determined in all matters of debt, and
+of trespass to a certain amount. He possessed a similar jurisdiction
+with the chieftain in Germany, and his tenants enjoyed an equal
+authority with the German retainers.
+
+"But a mode of administration which intrusted so much power to the great
+could not long be exercised without blame or injustice. The German,
+guided by the candor of his mind, and entering into all his engagements
+with the greatest ardor, perceived not, at first, that the chieftain to
+whom he submitted his disputes might be swayed, in the judgments he
+pronounced, by partiality, prejudice, or interest; and that the
+influence he maintained with his followers was too strong to be
+restrained by justice. Experience instructed him of his error; he
+acknowledged the necessity of appealing from his lord; and the court of
+the Hundred was erected.
+
+"This establishment was formed both in Germany and England, by the
+inhabitants of a certain division, who extended their jurisdiction over
+the territory they occupied.[65] They bound themselves under a penalty
+to assemble at stated times; _and having elected the wisest to preside
+over them, they judged, not only all civil and criminal matters_, but of
+those also which regarded religion and the priesthood. The judicial
+power thus invested in the people was extensive; they were able to
+preserve their rights, and attended this court in arms.
+
+"As the communication, however, and intercourse, of the individuals of a
+German community began to be wider, and more general, as their dealings
+enlarged, and as disputes arose among the members of different hundreds,
+the insufficiency of these courts for the preservation of order was
+gradually perceived. The _shyre mote_, therefore, or _county court_, was
+instituted; and it formed the chief source of justice both in Germany
+and England.
+
+"The powers, accordingly, which had been enjoyed by the court of the
+_hundred_, were considerably impaired. It decided no longer concerning
+capital offences; it decided not concerning matters of liberty, and the
+property of estates, or of slaves; its judgments, in every case, became
+subject to review; and it lost entirely the decision of causes, when it
+delayed too long to consider them.
+
+"Every subject of claim or contention was brought, in the first
+instance, or by appeal, to the _county court_; and the _earl_, or
+_eorldorman_, who presided there, was active to put the laws in
+execution. He repressed the disorders which fell out within the circuit
+of his authority; and the least remission in his duty, or the least
+fraud he committed, was complained of and punished. He was elected from
+among the great, and was above the temptation of a bribe; but, to
+encourage his activity, he was presented with a share of the territory
+he governed, or was entitled to a proportion of the fines and profits of
+justice. Every man, in his district, was bound to inform him concerning
+criminals, and to assist him to bring them to trial; and, as in rude and
+violent times the poor and helpless were ready to be oppressed by the
+strong, he was instructed particularly to defend them.
+
+"His court was ambulatory, and assembled only twice a year, unless the
+distribution of justice required that its meetings should be oftener.
+Every freeholder in the county was obliged to attend it; and should he
+refuse this service, his possessions were seized, and he was forced to
+find surety for his appearance. The neighboring earls held not their
+courts on the same day; and, what seems very singular, no judge was
+allowed, after meals, to exercise his office.
+
+"The druids also, or priests, in Germany, as we had formerly occasion to
+remark, and the clergy in England, exercised a jurisdiction in the
+_hundred_ and _county_ courts. They instructed the people in religious
+duties, and in matters regarding the priesthood; and the princes, earls,
+or _eorldormen_, related to them the laws and customs of the community.
+These judges were mutually a check to each other; but it was expected
+that they should agree in their judgments, and should willingly unite
+their efforts for the public interest.[66]
+
+"_But the prince or earl performed not, at all times, in person, the
+obligations of his office._ The enjoyment of ease and of pleasure, to
+which in Germany he had delivered himself over, when disengaged from
+war, and the mean idea he conceived of the drudgery of civil affairs,
+_made him often delegate to an inferior person the distribution of
+justice in his district_. The same sentiments were experienced by the
+Saxon nobility; and the service which they owed by their tenures, and
+the high employments they sustained, called them often from the
+management of their counties. The progress, too, of commerce, giving an
+intricacy to cases, and swelling the civil code, added to the difficulty
+of their office, and made them averse to its duties. _Sheriffs,
+therefore, or deputies, were frequently appointed to transact their
+business; and though these were at first under some subordination to the
+earls, they grew at length to be entirely independent of them. The
+connection of jurisdiction and territory ceasing to prevail, and the
+civil being separated from the ecclesiastical power, they became the
+sole and proper officers for the direction of justice in the counties._
+
+"The _hundred_, however, and _county_ courts, were not equal of
+themselves for the purposes of jurisdiction and order. It was necessary
+that a court should be erected, of supreme authority, where the disputes
+of the great should be decided, where the disagreeing sentiments of
+judges should be reconciled, and where protection should be given to the
+people against their fraud and injustice.
+
+"The princes accordingly, or chief nobility, in the German communities,
+assembled together to judge of such matters. The Saxon nobles continued
+this prerogative; and the king, or, in his absence, the chief
+_justiciary_, watched over their deliberations. But it was not on every
+trivial occasion that this court interested itself. In smaller concerns,
+justice was refused during three sessions of the _hundred_, and claimed
+without effect, at four courts of the county, before there could lie an
+appeal to it.
+
+"So gradually were these arrangements established, and so naturally did
+the varying circumstances in the situation of the Germans and
+Anglo-Saxons direct those successive improvements which the preservation
+of order, and the advantage of society, called them to adopt. The
+admission of the people into the courts of justice preserved, among the
+former, that equality of ranks for which they were remarkable; and it
+helped to overturn, among the latter, those envious distinctions which
+the feudal system tended to introduce, and prevented that venality in
+judges, and those arbitrary proceedings, which the growing attachment to
+interest, and the influence of the crown, might otherwise have
+occasioned."--_Stuart on the Constitution of England_, p. 222 to 245.
+
+"In the Anglo-Saxon period, accordingly, _twelve_ only were elected; and
+these, together with the judge, or presiding officer of the district,
+being sworn to regard justice, and the voice of reason, or conscience,
+all causes were submitted to them."--_Ditto_, p. 260.
+
+"Before the orders of men were very nicely distinguished, the jurors
+were elected from the same rank. When, however, a regular subordination
+of orders was established, and when a knowledge of property had inspired
+the necessitous with envy, and the rich with contempt, _every man was
+tried by his equals_. The same spirit of liberty which gave rise to this
+regulation attended its progress. Nor could monarchs assume a more
+arbitrary method of proceeding. 'I will not' (said the Earl of Cornwall
+to his sovereign) 'render up my castles, nor depart the kingdom, but by
+judgment of my peers.' Of this institution, so wisely calculated for the
+preservation of liberty, all our historians have pronounced the
+eulogium."--_Ditto_, p. 262-3.
+
+Blackstone says:
+
+"The policy of our ancient constitution, as regulated and established by
+the great Alfred, was to bring justice home to every man's door, by
+constituting as many courts of judicature as there are manors and towns
+in the kingdom; _wherein injuries were redressed in an easy and
+expeditious manner, by the suffrage of neighbors and friends_. These
+little courts, however, communicated with others of a larger
+jurisdiction, and those with others of a still greater power; ascending
+gradually from the lowest to the supreme courts, which were respectively
+constituted to correct the errors of the inferior ones, and to determine
+such causes as, by reason of their weight and difficulty, demanded a
+more solemn discussion. The course of justice flowing in large streams
+from the king, as the fountain, to his superior courts of record; and
+being then subdivided into smaller channels, till the whole and every
+part of the kingdom were plentifully watered and refreshed. An
+institution that seems highly agreeable to the dictates of natural
+reason, as well as of more enlightened policy. * *
+
+"These inferior courts, at least the name and form of them, still
+continue in our legal constitution; but as the superior courts of record
+have, in practice, obtained a concurrent original jurisdiction, and as
+there is, besides, a power of removing plaints or actions thither from
+all the inferior jurisdictions; upon these accounts (among others) it
+has happened that these petty tribunals have fallen into decay, and
+almost into oblivion; whether for the better or the worse may be matter
+of some speculation, when we consider, on the one hand, the increase of
+expense and delay, and, on the other, the more able and impartial
+decisions that follow from this change of jurisdiction.
+
+"The order I shall observe in discoursing on these several courts,
+constituted for the redress of _civil_ injuries, (for with those of a
+jurisdiction merely _criminal_ I shall not at present concern
+myself,[67]) will be by beginning with the lowest, and those whose
+jurisdiction, though public and generally dispersed through the kingdom,
+is yet (with regard to each particular court) confined to very narrow
+limits; and so ascending gradually to those of the most extensive and
+transcendent power."--3 _Blackstone_, 30 to 32.
+
+"The _court-baron_ is a court incident to every manor in the kingdom,
+_to be holden by the steward within the said manor_. This court-baron is
+of two natures; the one is a customary court, of which we formerly
+spoke, appertaining entirely to the copy-holders, in which their estates
+are transferred by surrender and admittance, and other matters
+transacted relative to their tenures only. The other, of which we now
+speak, is a court of common law, and it is a court of the barons, by
+which name the freeholders were sometimes anciently called; _for that it
+is held by the freeholders who owe suit and service to the manor, the
+steward being rather the registrar than the judge_. These courts, though
+in their nature distinct, are frequently confounded together. _The court
+we are now considering, viz., the freeholders court, was composed of the
+lord's tenants, who were the pares_ (equals) _of each other, and were
+bound by their feudal tenure to assist their lord in the dispensation of
+domestic justice_. This was formerly held every three weeks; and its
+most important business is to determine, by writ of right, all
+controversies relating to the right of lands within the manor. It may
+also hold plea of any personal actions, of debt, trespass in the case,
+or the like, where the debt or damages do not amount to forty shillings;
+which is the same sum, or three marks, that bounded the jurisdiction of
+the ancient Gothic courts in their lowest instance, or _fierding
+courts_, so called because four were instituted within every superior
+district or hundred."--3 _Blackstone_, 33, 34.
+
+"A _hundred court_ is only a larger court-baron, being held for all the
+inhabitants of a particular hundred, instead of a manor. _The free
+suitors are here also the judges, and the steward the registrar, as in
+the case of a court-baron._ It is likewise no court of record,
+resembling the former at all points, except that in point of territory
+it is of greater jurisdiction. This is said by Sir Edward Coke to have
+been derived out of the county court for the ease of the people, that
+they might have justice done to them at their own doors, without any
+charge or loss of time; but its institution was probably coeval with
+that of hundreds themselves, which were formerly observed to have been
+introduced, though not invented, by Alfred, being derived from the
+polity of the ancient Germans. The _centeni_, we may remember, were the
+principal inhabitants of a district composed of different villages,
+originally in number a _hundred_, but afterward only called by that
+name, and who probably gave the same denomination to the district out of
+which they were chosen. 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, centeni singulis, ex plebe comites concilium simul et
+auctoritas adsunt_.' (The princes are chosen in the assemblies, who
+administer the laws throughout the towns and villages, and with each one
+are associated an hundred companions, taken from the people, for
+purposes both of counsel and authority.) This hundred court was
+denominated _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."--_3 Blackstone_, 34, 35.
+
+"The _county court_ is a court incident to the jurisdiction of the
+_sheriff_. It is not a court of record, but may hold pleas of debt, or
+damages, under the value of forty shillings; over some of which causes
+these inferior courts have, by the express words of the statute of
+Gloucester, (6 Edward I., ch. 8,) a jurisdiction totally exclusive of
+the king's superior courts. * * The county court may also hold plea of
+many real actions, and of all personal actions to any amount, by virtue
+of a special writ, called a _justicies_, which is a writ empowering the
+sheriff, for the sake of despatch, to do the same justice in his county
+court as might otherwise be had at Westminster. _The freeholders of the
+county court are the real judges in this court, and the sheriff is the
+ministerial officer._ * * In modern times, as proceedings are removable
+from hence into the king's superior courts, by writ of pone or
+_recordari_, in the same manner as from hundred courts and courts-baron,
+and as the same writ of false judgment may be had in nature of a writ of
+error, this has occasioned the same disuse of bringing actions
+therein."--_3 Blackstone_, 36, 37.
+
+"Upon the whole, we cannot but admire the wise economy and admirable
+provision of our ancestors in settling the distribution of justice in a
+method so well calculated for cheapness, expedition, and ease. By the
+constitution which they established, all trivial debts, and injuries of
+small consequence, were to be recovered or redressed in every man's own
+county, hundred, or perhaps parish."--_3 Blackstone_, 59.]
+
+[Footnote 54: 1 Blackstone, 63-67.]
+
+[Footnote 55: This quaint and curious book (Smith's Commonwealth of
+England) describes the _minutiae_ of trials, giving in detail the mode of
+impanelling the jury, and then the conduct of the lawyers, witnesses,
+and court. I give the following extracts, _tending to show that the
+judges impose no law upon the juries, in either civil or criminal cases,
+but only require them to determine the causes according to their
+consciences_.
+
+In civil causes he says:
+
+   "When it is thought that it is enough pleaded before them, and the
+   witnesses have said what they can, one of the judges, with a brief
+   and pithy recapitulation, reciteth to the twelve in sum the arguments
+   of the sergeants of either side, that which the witnesses have
+   declared, and the chief points of the evidence showed in writing, and
+   once again putteth them in mind of the issue, and sometime giveth it
+   them in writing, delivering to them the evidence which is showed on
+   either part, if any be, (evidence here is called writings of
+   contracts, authentical after the manner of England, that is to say,
+   written, sealed, and delivered,) and biddeth them go together."--p.
+   74.
+
+This is the whole account given of the charge to the jury.
+
+In criminal cases, after the witnesses have been heard, and the prisoner
+has said what he pleases in his defence, the book proceeds:
+
+   "When the judge hath heard them say enough, he asketh if they can say
+   any more: If they say no, then he turneth his speech to the inquest.
+   'Good men, (saith he,) ye of the inquest, ye have heard what these
+   men say against the prisoner. You have also heard what the prisoner
+   can say for himself. _Have an eye to your oath, and to your duty, and
+   do that which God shall put in your minds to the discharge of your
+   consciences_, and mark well what is said.'"--p. 92.
+
+This is the whole account given of the charge in a criminal case.
+
+The following statement goes to confirm the same idea, that jurors in
+England have formerly understood it to be their right and duty to judge
+only according to their consciences, and not to submit to any dictation
+from the court, either as to law or fact.
+
+   "If having pregnant evidence, nevertheless, the twelve do acquit the
+   malefactor, which they will do sometime, especially if they perceive
+   either one of the justices or of the judges, or some other man, to
+   pursue too much and too maliciously the death of the prisoner, * *
+   the prisoner escapeth; but the twelve (are) not only rebuked by the
+   judges, but also threatened of punishment; and many times commanded
+   to appear in the Star-Chamber, or before the Privy Council for the
+   matter. But this threatening chanceth oftener than the execution
+   thereof; _and the twelve answer with most gentle words, they did it
+   according to their consciences_, and pray the judges to be good unto
+   them, _they did as they thought right, and as they accorded all_, and
+   so it passeth away for the most part."--p. 100.
+
+The account given of the trial of a peer of the realm corroborates the
+same point:
+
+   "If any duke, marquis, or any other of the degrees of a baron, or
+   above, lord of the Parliament, be appeached of treason, or any other
+   capital crime, he is judged by his peers and equals; that is, the
+   yeomanry doth not go upon him, but an inquest of the Lords of
+   Parliament, and they give their voice not one for all, but each
+   severally as they do in Parliament, being (beginning) at the youngest
+   lord. And for judge one lord sitteth, who is constable of England for
+   that day. The judgment once given, he breaketh his staff, and
+   abdicateth his office. In the rest there is no difference from that
+   above written," (that is, in the case of a freeman.)--p. 98.]
+
+[Footnote 56: "The present form of the jurors' oath is that they shall
+'give a true verdict _according to the evidence_.' At what time this
+form was introduced is uncertain; but for several centuries after the
+Conquest, the jurors, _both in civil and criminal cases_, were sworn
+merely to _speak the truth_. (Glanville, lib. 2, cap. 17; Bracton, lib.
+3, cap. 22; lib. 4, p. 287, 291; Britton, p. 135.) Hence their decision
+was accurately termed _veredictum_, or verdict, that is, 'a thing truly
+said'; whereas the phrase 'true verdict' in the modern oath is not an
+accurate expression."--_Political Dictionary_, word _Jury_.]
+
+[Footnote 57: Of course, there can be no legal trial by jury, in either
+civil or criminal cases, where the jury are sworn to try the cases
+"_according to law_."]
+
+[Footnote 58: _Coke_, as late as 1588, admits that amercements must be
+fixed by the peers (8 Coke's Rep. 38, 2 Inst. 27); but he attempts,
+wholly without success, as it seems to me, to show a difference between
+fines and amercements. The statutes are very numerous, running through
+the three or four hundred years immediately succeeding Magna Carta, in
+which fines, ransoms, and amercements are spoken of as if they were the
+common punishments of offences, and as if they all meant the same thing.
+If, however, any technical difference could be made out between them,
+there is clearly none in principle; and the word amercement, as used in
+Magna Carta, must be taken in its most comprehensive sense.]
+
+[Footnote 59: "_Common right_" was the common law. _1 Coke's Inst._ 142
+a. 2 _do._ 55, 6.]
+
+[Footnote 60: The oath of the justices is in these words:
+
+"Ye shall swear, that well and lawfully ye shall serve our lord the king
+_and his people_, in the office of justice, and that lawfully ye shall
+counsel the king in his business, and that ye shall not counsel nor
+assent to anything which may turn him in damage or disherison in any
+manner, way, or color. And that ye shall not know the damage or
+disherison of him, whereof ye shall not cause him to be warned by
+yourself, or by other; _and that ye shall do equal law and execution of
+right to all his subjects, rich and poor, without having regard to any
+person_. And that ye take not by yourself, or by other, privily nor
+apertly, gift nor reward of gold nor silver, nor of any other thing that
+may turn to your profit, unless it be meat or drink, and that of small
+value, of any man that shall have any plea or process hanging before
+you, as long as the same process shall be so hanging, nor after for the
+same cause. And that ye take no fee, as long as ye shall be justice, nor
+robe of any man great or small, but of the king himself. And that ye
+give none advice or counsel to no man great or small, in no case where
+the king is party. And in case that any, of what estate or condition
+they be, come before you in your sessions with force and arms, or
+otherwise against the peace, or against the form of the statute thereof
+made, _to disturb execution of the common law_," (mark the term,
+"_common law_,") "or to menace the people that they may not pursue the
+law, that ye shall cause their bodies to be arrested and put in prison;
+and in case they be such that ye cannot arrest them, that ye certify the
+king of their names, and of their misprision, hastily, so that he may
+thereof ordain a convenable remedy. And that ye by yourself, nor by
+other, privily nor apertly, maintain any plea or quarrel hanging in the
+king's court, or elsewhere in the country. _And that ye deny no man
+common right by the king's letters, nor none other man's, nor for none
+other cause; and in case any letters come to you contrary to the law,"
+(that is, the "common law" before mentioned,) "that ye do nothing by
+such letters, but certify the king thereof, and proceed to execute the
+law," (the "common law" before mentioned,) "notwithstanding the same
+letters._ And that ye shall do and procure the profit of the king and of
+his crown, with all things where ye may reasonably do the same. And in
+case ye be from henceforth found in default in any of the points
+aforesaid, ye shall be at the king's will of body, lands, and goods,
+thereof to be done as shall please him, as God you help and all
+saints."--_18 Edward III._, st. 4. (1344.)]
+
+[Footnote 61: That the terms "_Law_" and "_Right_," as used in this
+statute, mean the _common law_, is shown by the preamble, which declares
+the motive of the statute to be that "_the Law of the Land, (the common
+law,) which we (the king) by our oath are bound to maintain_," may be
+the better kept, &c.]
+
+[Footnote 62: The following is a copy of the original:
+
+   "_Forma Juramenti Regis Angliae 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 Judiciis tuis equam et rectam justiciam, et
+   discrecionem, in misericordia et veritate, secundum vires tuas?
+
+   (Et respondeat Rex,) Faciam.
+
+   Concedis justas, leges et consuetudines esse tenendas, et promittis
+   per te eas esse protegendas, et ad honorem Dei corroborandas, quas
+   vulgus elegit, secundum vires tuas?
+
+   (Et respondeat Rex,) Concedo et promitto."]
+
+[Footnote 63: It would appear, from the text, that the Charter of
+Liberties and the Charter of the Forest were sometimes called "_laws of
+the land_."]
+
+[Footnote 64: As the ancient coronation oath, given in the text, has
+come down from the Saxon times, the following remarks of Palgrave will
+be pertinent, in connection with the oath, as illustrating the fact
+that, in those times, no special authority attached to the laws of the
+king:
+
+"The Imperial Witenagemot was not a legislative assembly, in the strict
+sense of the term, for the whole Anglo-Saxon empire. Promulgating his
+edicts amidst his peers and prelates, the king uses the language of
+command; but the theoretical prerogative was modified by usage, and the
+practice of the constitution required that the law should be accepted by
+the legislatures (courts) of the several kingdoms. * * The 'Basileus'
+speaks in the tone of prerogative: Edgar does not merely recommend, he
+commands that the law shall be adopted by all the people, whether
+English, Danes, or Britons, in every part of his empire. Let this
+statute be observed, he continues, by Earl Oslac, and all the host who
+dwell under his government, and let it be transmitted by writ to the
+ealdormen of the other subordinate states. And yet, in defiance of this
+positive injunction, the laws of Edgar were not accepted in Mercia until
+the reign of Canute the Dane. It might be said that the course so
+adopted may have been an exception to the general rule; but in the
+scanty and imperfect annals of Anglo-Saxon legislation, we shall be able
+to find so many examples of similar proceedings, _that this mode of
+enactment must be considered as dictated by the constitution of the
+empire_. Edward was the supreme lord of the Northumbrians, but more than
+a century elapsed before they obeyed his decrees. The laws of the
+glorious Athelstane had no effect in Kent, (county,) the dependent
+appanage of his crown, until sanctioned by the _Witan_ of the _shire_
+(county court). And the power of Canute himself, the 'King of all
+England,' does not seem to have compelled the Northumbrians to receive
+his code, until the reign of the Confessor, when such acceptance became
+a part of the compact upon the accession of a new earl.
+
+Legislation constituted but a small portion of the ordinary business
+transacted by the Imperial Witenagemot. The wisdom of the assembly was
+shown in avoiding unnecessary change. _Consisting principally of
+traditionary usages and ancestorial customs, the law was upheld by
+opinion. The people considered their jurisprudence as a part of their
+inheritance._ Their privileges and their duties were closely conjoined;
+_most frequently, the statutes themselves were only affirmances of
+ancient customs, or declaratory enactments_. In the Anglo-Saxon
+commonwealth, therefore, the legislative functions of the Witenagemot
+were of far less importance than the other branches of its authority. *
+* The members of the Witenagemot were the 'Pares 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.]
+
+[Footnote 65: "It was the freemen in Germany, and the possessors of land
+in England, who were _suitors_ (jurors) in the hundred court. These
+ranks of men were the same. The alteration which had happened in
+relation to property had invested the German freemen with land or
+territory."]
+
+[Footnote 66: It would be wholly erroneous, I think, to infer from this
+statement of Stuart, that either the "priests, princes, earls, or
+_eorldormen_" exercised any authority over the jury in the trial of
+causes, in the way of dictating the law to them. Henry's account of this
+matter doubtless gives a much more accurate representation of the truth.
+He says that _anciently_
+
+   "The meeting (the county court) was opened with a discourse by the
+   bishop, explaining, out of the Scriptures and ecclesiastical canons,
+   their several duties as good Christians and members of the church.
+   After this, the alderman, or one of his assessors, made a discourse
+   on the laws of the land, and the duties of good subjects and good
+   citizens. _When these preliminaries were over, they proceeded to try
+   and determine, first the causes of the church, next the pleas of the
+   crown, and last of all the controversies of private parties._"--3
+   _Henry's History of Great Britain_, 348.
+
+This view is corroborated by Tyrrell's _Introduction to the History of
+England_, p. 83-84, and by Spence's _Origin of the Laws and Political
+Institutions of Modern Europe_, p. 447, and the note on the same page.
+Also by a law of Canute to this effect, _In every county let there be
+twice a year an assembly, whereat the bishop and the earl shall be
+present, the one to instruct the people in divine, the other in human,
+laws_.--_Wilkins_, p. 136.]
+
+[Footnote 67: There was no distinction between the civil and criminal
+counts, as to the rights or powers of juries.]
+
+
+
+
+CHAPTER IV.
+
+THE RIGHTS AND DUTIES OF JURIES IN CIVIL SUITS.
+
+
+The evidence already given in the preceding chapters proves that the
+rights and duties of jurors, in civil suits, were anciently the same as
+in criminal ones; that the laws of the king were of no obligation upon
+the consciences of the jurors, any further than the laws were seen by
+them to be just; that very few laws were enacted applicable to civil
+suits; that when a new law was enacted, the nature of it could have been
+known to the jurors only by report, and was very likely not to be known
+to them at all; that nearly all the law involved in civil suits was
+_unwritten_; that there was _usually_ no one in attendance upon juries
+who could possibly enlighten them, unless it were sheriffs, stewards,
+and bailiffs, who were unquestionably too ignorant and untrustworthy to
+instruct them authoritatively; that the jurors must therefore
+necessarily have judged for themselves of the whole case; and that, _as
+a general rule_, they could judge of it by no law but the law of nature,
+or the principles of justice as they existed in their own minds.
+
+The ancient oath of jurors in civil suits, viz., that "_they would make
+known the truth according to their consciences_," implies that the
+jurors were above the authority of all legislation. The modern oath, in
+England, viz., that they "_will well and truly try the issue between the
+parties, and a true verdict give, according to the evidence_," implies
+the same thing. If the laws of the king had been binding upon a jury,
+they would have been sworn to try the cases _according to law_, or
+according to the laws.
+
+The ancient writs, in civil suits, as given in Glanville, (within the
+half century before Magna Carta,) to wit, "Summon twelve free and legal
+men, (or sometimes twelve knights,) to be in court, _prepared upon their
+oaths to declare whether A or B have the greater right to the land in
+question_," indicate that the jurors judged of the whole matter on their
+consciences only.
+
+The language of Magna Carta, already discussed, establishes the same
+point; for, although some of the words, such as "outlawed," and
+"exiled," would apply only to criminal cases, nearly the whole chapter
+applies as well to civil as to criminal suits. For example, how could
+the payment of a debt ever be enforced against an unwilling debtor, if
+he could neither be "arrested, imprisoned, nor deprived of his
+freehold," and if the king could neither "proceed against him, nor send
+any one against him, by force or arms"? Yet Magna Carta as much forbids
+that any of these things shall be done against a debtor, as against a
+criminal, _except according to, or in execution of_, "_a judgment of his
+peers, or the law of the land_,"--a provision which, it has been shown,
+gave the jury the free and absolute right to give or withhold "judgment"
+according to their consciences, irrespective of all legislation.
+
+The following provisions, in the Magna Carta of John, illustrate the
+custom of referring the most important matters of a civil nature, even
+where the king was a party, to the determination of the peers, or of
+twelve men, acting by no rules but their own consciences. These examples
+at least show that there is nothing improbable or unnatural in the idea
+that juries should try all civil suits according to their own judgments,
+independently of all laws of the king.
+
+   _Chap. 65._ "If we have disseized or dispossessed the Welsh of any
+   lands, liberties, or other things, without the legal judgment of
+   their peers, they shall be immediately restored to them. And if any
+   dispute arises upon this head, the matter shall be determined in the
+   Marches,[68] _by the judgment of their peers_," &c.
+
+   _Chap. 68._ "We shall treat with Alexander, king of Scots, concerning
+   the restoring of his sisters, and hostages, and rights and liberties,
+   in the same form and manner as we shall do to the rest of our barons
+   of England; unless by the engagements, which his father William, late
+   king of Scots, hath entered into with us, it ought to be otherwise;
+   _and this shall be left to the determination of his peers in our
+   court_."
+
+   _Chap. 56._ "All evil customs concerning forests, warrens, and
+   foresters, warreners, sheriffs, and their officers, rivers and their
+   keepers, shall forthwith be inquired into in each county, _by twelve
+   knights of the same shire_, chosen by the most creditable persons in
+   the same county, _and upon oath_; and within forty days after the
+   said inquest, be utterly abolished, so as never to be restored."
+
+There is substantially the same reason why a jury _ought_ to judge of
+the justice of laws, and hold all unjust laws invalid, in civil suits,
+as in criminal ones. That reason is the necessity of guarding against
+the tyranny of the government. Nearly the same oppressions can be
+practised in civil suits as in criminal ones. For example, individuals
+may be deprived of their liberty, and robbed of their property, by
+judgments rendered in civil suits, as well as in criminal ones. If the
+laws of the king were imperative upon a jury in civil suits, the king
+might enact laws giving one man's property to another, or confiscating
+it to the king himself, and authorizing civil suits to obtain possession
+of it. Thus a man might be robbed of his property at the arbitrary
+pleasure of the king. In fact, all the property of the kingdom would be
+placed at the arbitrary disposal of the king, through the judgments of
+juries in civil suits, if the laws of the king were imperative upon a
+jury in such suits.[69]
+
+Furthermore, it would be absurd and inconsistent to make a jury
+paramount to legislation in _criminal_ suits, and subordinate to it in
+_civil_ suits; because an individual, by resisting the execution of a
+_civil_ judgment, founded upon an unjust law, could give rise to a
+_criminal_ suit, in which the jury would be bound to hold the same law
+invalid. So that, if an unjust law were binding upon a jury in _civil_
+suits, a defendant, by resisting the execution of the judgment, could,
+_in effect_, convert the civil action into a criminal one, in which the
+jury would be paramount to the same legislation, to which, in the
+_civil_ suit, they were subordinate. In other words, in the _criminal_
+suit, the jury would be obliged to justify the defendant in resisting a
+law, which, in the _civil_ suit, they had said he was bound to submit
+to.
+
+To make this point plain to the most common mind--suppose a law be
+enacted that the property of A shall be given to B. B brings a civil
+action to obtain possession of it. If the jury, in this _civil_ suit,
+are bound to hold the law obligatory, they render a judgment in favor of
+B, that he be put in possession of the property; _thereby declaring that
+A is bound to submit to a law depriving him of his property_. But when
+the execution of that judgment comes to be attempted--that is, when the
+sheriff comes to take the property for the purpose of delivering it to
+B--A acting, as he has a _natural_ right to do, in defence of his
+property, resists and kills the sheriff. He is thereupon indicted for
+murder. On this trial his plea is, that in killing the sheriff, he was
+simply exercising his _natural_ right of defending his property against
+an unjust law. The jury, not being bound, in a _criminal_ case, by the
+authority of an unjust law, judge the act on its merits, and acquit the
+defendant--thus declaring that he was _not_ bound to submit to the same
+law which the jury, in the _civil_ suit, had, by their judgment,
+declared that he _was_ bound to submit to. Here is a contradiction
+between the two judgments. In the _civil_ suit, the law is declared to
+be obligatory upon A; in the _criminal_ suit, the same law is declared
+to be of no obligation.
+
+It would be a solecism and absurdity in government to allow such
+consequences as these. Besides, it would be practically impossible to
+maintain government on such principles; for no government could enforce
+its _civil_ judgments, unless it could support them by _criminal_ ones,
+in case of resistance. A jury must therefore be paramount to legislation
+in both civil and criminal cases, or in neither. If they are paramount
+in neither, they are no protection to liberty. If they are paramount in
+both, then all legislation goes only for what it may chance to be worth
+in the estimation of a jury.
+
+Another reason why Magna Carta makes the discretion and consciences of
+juries paramount to all legislation in _civil_ suits, is, that if
+legislation were binding upon a jury, the jurors--(by reason of their
+being unable to read, as jurors in those days were, and also by reason
+of many of the statutes being unwritten, or at least not so many copies
+written as that juries could be supplied with them)--would have been
+necessitated--at least in those courts in which the king's justices
+sat--to take the word of those justices as to what the laws of the king
+really were. In other words, they would have been necessitated _to take
+the law from the court_, as jurors do now.
+
+Now there were two reasons why, as we may rationally suppose, the people
+did not wish juries to take their law from the king's judges. One was,
+that, at that day, the people probably had sense enough to see, (what
+we, at this day, have not sense enough to see, although we have the
+evidence of it every day before our eyes,) that those judges, being
+dependent upon the legislative power, (the king,) being appointed by it,
+paid by it, and removable by it at pleasure, would be mere tools of that
+power, and would hold all its legislation obligatory, whether it were
+just or unjust. This was one reason, doubtless, why Magna Carta made
+juries, in civil suits, paramount to all instructions of the king's
+judges. The reason was precisely the same as that for making them
+paramount to all instructions of judges in criminal suits, viz., that
+the people did not choose to subject their rights of property, and all
+other rights involved in civil suits, to the operation of such laws as
+the king might please to enact. It was seen that to allow the king's
+judges to dictate the law to the jury would be equivalent to making the
+legislation of the king imperative upon the jury.
+
+Another reason why the people did not wish juries, in civil suits, to
+take their law from the king's judges, doubtless was, that, knowing the
+dependence of the judges upon the king, and knowing that the king would,
+of course, tolerate no judges who were not subservient to his will, they
+necessarily inferred that the king's judges would be as corrupt, in the
+administration of justice, as was the king himself, or as he wished them
+to be. And how corrupt that was, may be inferred from the following
+historical facts.
+
+Hume says:
+
+  "It appears that the ancient kings of England put themselves entirely
+   upon the footing of the barbarous Eastern princes, whom no man must
+   approach without a present, who sell all their good offices, and who
+   intrude themselves into every business that they may have a pretence
+   for extorting money. Even justice was avowedly bought and sold; the
+   king's court itself, though the supreme judicature of the kingdom,
+   was open to none that brought not presents to the king; the bribes
+   given for expedition, delay, suspension, and doubtless for the
+   perversion of justice, were entered in the public registers of the
+   royal revenue, and remain as monuments of the perpetual iniquity and
+   tyranny of the times. The barons of the exchequer, for instance, the
+   first nobility of the kingdom, were not ashamed to insert, as an
+   article in their records, that the county of Norfolk paid a sum that
+   they might be fairly dealt with; the borough of Yarmouth, that the
+   king's charters, which they have for their liberties, might not be
+   violated; Richard, son of Gilbert, for the king's helping him to
+   recover his debt from the Jews; * * Serlo, son of Terlavaston, that
+   he might be permitted to make his defence, in case he were accused of
+   a certain homicide; Walter de Burton, for free law, if accused of
+   wounding another; Robert de Essart, for having an inquest to find
+   whether Roger, the butcher, and Wace and Humphrey, accused him of
+   robbery and theft out of envy and ill-will, or not; William Buhurst,
+   for having an inquest to find whether he were accused of the death of
+   one Godwin, out of ill-will, or for just cause. I have selected these
+   few instances from a great number of the like kind, which Madox had
+   selected from a still greater number, preserved in the ancient rolls
+   of the exchequer.
+
+   Sometimes a party litigant offered the king a certain portion, a
+   half, a third, a fourth, payable out of the debts which he, as the
+   executor of justice, should assist in recovering. Theophania de
+   Westland agreed to pay the half of two hundred and twelve marks, that
+   she might recover that sum against James de Fughleston; Solomon, the
+   Jew, engaged to pay one mark out of every seven that he should
+   recover against Hugh de la Hose; Nicholas Morrel promised to pay
+   sixty pounds, that the Earl of Flanders might be distrained to pay
+   him three hundred and forty-three pounds, which the earl had taken
+   from him; and these sixty pounds were to be paid out of the first
+   money that Nicholas should recover from the earl."--_Hume, Appendix
+   2._
+
+   "In the reign of Henry II., the best and most just of these (the
+   Norman) princes, * * Peter, of Blois, a judicious and even elegant
+   writer, of that age, gives a pathetic description of the _venality of
+   justice_, and the oppressions of the poor, * * and he scruples not to
+   complain to the king himself of these abuses. We may judge what the
+   case would be under the government of worse princes."--_Hume,
+   Appendix 2._
+
+Carte says:
+
+   "The crown exercised in those days an exorbitant and inconvenient
+   power, ordering the justices of the king's court, in suits about
+   lands, to turn out, put, and keep in possession, which of the
+   litigants they pleased; to send contradictory orders; and take large
+   sums of money from each; to respite proceedings; to direct sentences;
+   and the judges, acting by their commission, conceived themselves
+   bound to observe such orders, to the great delay, interruption, and
+   preventing of justice; at least, this was John's practice."--_Carte's
+   History of England_, vol. 1, p. 832.
+
+Hallam says:
+
+   "But of all the abuses that deformed the Anglo-Saxon government, none
+   was so flagitious as the sale of judicial redress. The king, we are
+   often told, is the fountain of justice; but in those ages it was one
+   which gold alone could unseal. Men fined (paid fines) to have right
+   done them; to sue in a certain court; to implead a certain person; to
+   have restitution of land which they had recovered at law. From the
+   sale of that justice which every citizen has a right to demand, it
+   was an easy transition to withhold or deny it. Fines were received
+   for the king's help against the adverse suitor; that is, for
+   perversion of justice, or for delay. Sometimes they were paid by
+   opposite parties, and, of course, for opposite ends."--_2 Middle
+   Ages_, 438.
+
+In allusion to the provision of Magna Carta on this subject, Hallam
+says:
+
+   "A law which enacts that justice shall neither be sold, denied, nor
+   delayed, stamps with infamy that government under which it had become
+   necessary."--_2 Middle Ages_, 451.
+
+Lingard, speaking of the times of Henry II., (say 1184,) says:
+
+   "It was universally understood that money possessed greater influence
+   than justice in the royal courts, and instances are on record, in
+   which one party has made the king a present to accelerate, and the
+   other by a more valuable offer has succeeded in retarding a decision.
+   * * But besides the fines paid to the sovereigns, _the judges often
+   exacted presents for themselves_, and loud complaints existed against
+   their venality and injustice."--_2 Lingard_, 231.
+
+In the narrative of "The costs and charges which I, Richard de Anesty,
+bestowed in recovering the land of William, my uncle," (some fifty years
+before Magna Carta,) are the following items:
+
+   "To Ralph, the king's physician, I gave thirty-six marks and one
+   half; to the king an hundred marks; and to the queen one mark of
+   gold." The result is thus stated. "At last, thanks to our lord the
+   king, and by judgment of his court, my uncle's land was adjudged to
+   me."--_2 Palgrave's Rise and Progress of the English Commonwealth_,
+   p. 9 and 24.
+
+Palgrave also says:
+
+   "The precious ore was cast into the scales of justice, even when held
+   by the most conscientious of our Anglo-Saxon kings. A single case
+   will exemplify the practices which prevailed. Alfric, the heir of
+   'Aylwin, the black,' seeks to set aside the death-bed bequest, by
+   which his kinsman bestowed four rich and fertile manors upon St.
+   Benedict. Alfric, the claimant, was supported by extensive and
+   powerful connexions; and Abbot Alfwine, the defendant, was well aware
+   that there would be _danger_ in the discussion of the dispute in
+   public, or before the Folkmoot, (people's meeting, or county court);
+   or, in other words, that the Thanes of the shire would do their best
+   to give a judgment in favor of their compeer. The plea being removed
+   into the Royal Court, the abbot acted with that prudence which so
+   often calls forth the praises of the monastic scribe. He gladly
+   emptied twenty marks of gold into the sleeve of the Confessor,
+   (Edward,) and five marks of gold presented to Edith, the Fair,
+   encouraged her to aid the bishop, and to exercise her gentle
+   influence in his favor. Alfric, with equal wisdom, withdrew from
+   prosecuting the hopeless cause, in which his opponent might possess
+   an advocate in the royal judge, and a friend in the king's consort.
+   Both parties, therefore, found it desirable to come to an
+   agreement."--_1 Palgrave's Rise and Progress, &c._, p. 650.
+
+But Magna Carta has another provision for the trial of _civil_ suits,
+that obviously had its origin in the corruption of the king's judges.
+The provision is, that four knights, to be chosen in every county, by
+the people of the county, shall sit with the king's judges, in the
+Common Pleas, in jury trials, (assizes,) on the trial of three certain
+kinds of suits, that were among the most important that were tried at
+all. The reason for this provision undoubtedly was, that the corruption
+and subserviency of the king's judges were so well known, that the
+people would not even trust them to sit alone in a jury trial of any
+considerable importance. The provision is this:
+
+   _Chap. 22_, (of John's Charter.) "Common Pleas shall not follow our
+   court, but shall be holden in some certain place. Trials upon the
+   writ of _novel disseisin_, and of _Mort d'Ancester_, and of _Darrein
+   Presentment_, shall be taken but in their proper counties, and after
+   this manner: We, or, if we should be out of our realm, our chief
+   justiciary, shall send two justiciaries through every county four
+   times a year;[70] _who, with four knights chosen out of every shire,
+   by the people, shall hold the assizes_ (juries) _in the county, on
+   the day and at the place appointed_."
+
+It would be very unreasonable to suppose that the king's judges were
+allowed to _dictate_ the law to the juries, when the people would not
+even suffer them to sit alone in jury trials, but themselves chose four
+men to sit with them, to keep them honest.[71]
+
+This practice of sending the king's judges into the counties to preside
+at jury trials, was introduced by the Norman kings. Under the Saxons it
+was not so. _No officer of the king was allowed to preside at a jury
+trial; but only magistrates chosen by the people._[72]
+
+But the following chapter of John's charter, which immediately succeeds
+the one just quoted, and refers to the same suits, affords very strong,
+not to say conclusive, proof, that juries judged of the law in civil
+suits--that is, _made the law_, so far as their deciding according to
+their own notions of justice could make the law.
+
+   _Chap. 23._ "And if, on the county day, the aforesaid assizes cannot
+   be taken, _so many knights and freeholders shall remain, of those who
+   shall have been present on said day, as that the judgments may be
+   rendered by them_, whether the business be more or less."
+
+The meaning of this chapter is, that so many of the _civil_ suits, as
+could not be tried on the day when the king's justices were present,
+should be tried afterwards, _by the four knights before mentioned, and
+the freeholders, that is, the jury_. It must be admitted, of course,
+that the juries, in these cases, judged the matters of law, as well as
+fact, unless it be presumed that the _knights_ dictated the law to the
+jury--a thing of which there is no evidence at all.
+
+As a final proof on this point, there is a statute enacted seventy years
+after Magna Carta, which, although it is contrary to the common law, and
+therefore void, is nevertheless good evidence, inasmuch as it contains
+an acknowledgment, on the part of the king himself, that juries had a
+right to judge of the whole matter, law and fact, in civil suits. The
+provision is this:
+
+   "It is ordained, that the justices assigned to take the assizes,
+   shall not compel the jurors to say precisely whether it be disseisin,
+   or not, so that they do show the truth of the deed, and seek aid of
+   the justices. But if they will, of their own accord, say that it is
+   disseisin, or not, their verdict shall be admitted at their own
+   peril."--_13 Edward I._, st. 1, ch. 3, sec. 2. (1285.)
+
+The question of "disseisin, or not," was a question of law, as well as
+fact. This statute, therefore, admits that the law, as well as the fact,
+was in the hands of the jury. The statute is nevertheless void, because
+the king had no authority to give jurors a dispensation from the
+obligation imposed upon them by their oaths and the "law of the land,"
+that they should "make known the truth according their (own)
+consciences." This they were bound to do, and there was no power in the
+king to absolve them from the duty. And the attempt of the king thus to
+absolve them, and authorize them to throw the case into the hands of the
+judges for decision, was simply an illegal and unconstitutional attempt
+to overturn the "law of the land," which he was sworn to maintain, and
+gather power into his own hands, through his judges. He had just as much
+constitutional power to enact that the jurors should not be compelled to
+declare the _facts_, but that they might leave _them_ to be determined
+by the king's judges, as he had to enact that they should not be
+compelled to declare the _law_, but might leave _it_ to be decided by
+the king's judges. It was as much the legal duty of the jury to decide
+the law as to decide the fact; and no law of the king could affect their
+obligation to do either. And this statute is only one example of the
+numberless contrivances and usurpations which have been resorted to, for
+the purpose of destroying the original and genuine trial by jury.
+
+[Footnote 68: _Marches_, the limits, or boundaries, between England and
+Wales.]
+
+[Footnote 69: That the kings would have had no scruples to enact laws
+for the special purpose of plundering the people, by means of the
+judgments of juries, if they could have got juries to acknowledge the
+authority of their laws, is evident from the audacity with which they
+plundered them, without any judgments of juries to authorize them.
+
+It is not necessary to occupy space here to give details as to these
+robberies; but only some evidence of the general fact.
+
+   Hallam says, that "For the first three reigns (of the Norman kings) *
+   * the intolerable exactions of tribute, the rapine of purveyance, the
+   iniquity of royal courts, are continually in the mouths of the
+   historians. 'God sees the wretched people,' says the Saxon
+   Chronicler, 'most unjustly oppressed; first they are despoiled of
+   their possessions, and then butchered.' This was a grievous year
+   (1124). Whoever had any property, lost it by heavy taxes and unjust
+   decrees."--_2 Middle Ages_, 435-6.
+
+   "In the succeeding reign of _John_, all the rapacious exactions usual
+   to these Norman kings were not only redoubled, but mingled with
+   outrages of tyranny still more intolerable. * *
+
+   "In 1207 John took a seventh of the movables of lay and spiritual
+   persons, all murmuring, but none daring to speak against
+   it."--_Ditto_, 446.
+
+In Hume's account of the extortions of those times, the following
+paragraph occurs:
+
+   "But the most barefaced acts of tyranny and oppression were practised
+   against the Jews, who were entirely out of the protection of the law,
+   and were abandoned to the immeasurable rapacity of the king and his
+   ministers. Besides many other indignities, to which they were
+   continually exposed, it appears that they were once all thrown into
+   prison, and the sum of 66,000 marks exacted for their liberty. At
+   another time, Isaac, the Jew, paid alone 5100 marks; Brun, 3000
+   marks; Jurnet, 2000; Bennet, 500. At another, Licorica, widow of
+   David, the Jew of Oxford, was required to pay 6000 marks."--_Hume's
+   Hist. Eng., Appendix_ 2.
+
+Further accounts of the extortions and oppressions of the kings may be
+found in Hume's History, Appendix 2, and in Hallam's Middle Ages, vol.
+2, p. 435 to 446.
+
+By Magna Carta John bound himself to make restitution for some of the
+spoliations he had committed upon individuals "_without the legal
+judgment of their peers_."--_See Magna Carta of John_, ch. 60, 61, 65
+and 66.
+
+One of the great charges, on account of which the nation rose against
+John, was, that he plundered individuals of their property, "_without
+legal judgment of their peers_." Now it was evidently very weak and
+short-sighted in John to expose himself to such charges, _if his laws
+were really obligatory upon the peers_; because, in that case, he could
+have enacted any laws that were necessary for his purpose, and then, by
+civil suits, have brought the cases before juries for their "judgment,"
+and thus have accomplished all his robberies in a perfectly legal
+manner.
+
+There would evidently have been no sense in these complaints, that he
+deprived men of their property "_without legal judgment of their
+peers_," if his laws had been binding upon the peers; because he could
+then have made the same spoliations as well with the judgment of the
+peers as without it. Taking the judgment of the peers in the matter,
+would have been only a ridiculous and useless formality, if they were to
+exercise no discretion or conscience of their own, independently of the
+laws of the king.
+
+It may here be mentioned, in passing, that the same would be true in
+criminal matters, if the king's laws were obligatory upon juries.
+
+As an illustration of what tyranny the kings would sometimes practise,
+Hume says:
+
+   "It appears from the Great Charter itself, that not only John, a
+   tyrannical prince, and Richard, a violent one, but their father
+   Henry, under whose reign the prevalence of gross abuses is the least
+   to be suspected, were accustomed, from their sole authority, without
+   process of law, to imprison, banish, and attaint the freemen of their
+   kingdom."--_Hume, Appendix_ 2.
+
+The provision, also, in the 64th chapter of Magna Carta, that "all
+unjust and illegal fines, and all amercements, _imposed unjustly, and
+contrary to the Law of the Land, shall be entirely forgiven_," &c.; and
+the provision, in chapter 61, that the king "will cause full justice to
+be administered" in regard to "all those things, of which any person
+has, without legal judgment of his peers, been dispossessed or deprived,
+either by King Henry, our father, or our brother, King Richard,"
+indicate the tyrannical practices that prevailed.
+
+   We are told also that John himself "had dispossessed several great
+   men without any judgment of their peers, condemned others to cruel
+   deaths, * * insomuch that his tyrannical will stood instead of a
+   law."--_Echard's History of England_, 106.
+
+Now all these things were very unnecessary and foolish, if his laws were
+binding upon juries; because, in that case, he could have procured the
+conviction of these men in a legal manner, and thus have saved the
+necessity of such usurpation. In short, if the laws of the king had been
+binding upon juries, there is no robbery, vengeance, or oppression,
+which he could not have accomplished through the judgments of juries.
+This consideration is sufficient, of itself, to prove that the laws of
+the king were of no authority over a jury, in either civil or criminal
+cases, unless the juries regarded the laws as just in themselves.]
+
+[Footnote 70: By the Magna Carta of Henry III. this is changed to once a
+year.]
+
+[Footnote 71: From the provision of Magna Carta, cited in the text, it
+must be inferred that there can be no legal trial by jury, in civil
+cases, if only the king's justices preside; that, to make the trial
+legal, there must be other persons, chosen by the people, to sit with
+them; the object being to prevent the jury's being deceived by the
+justices. I think we must also infer that the king's justices could sit
+only in the three actions specially mentioned. We cannot go beyond the
+letter of Magna Carta, in making innovations upon the common law, which
+required all presiding officers in jury trials to be elected by the
+people.]
+
+[Footnote 72: "The earls, sheriffs, and head-boroughs were annually
+elected in the full folcmote, (people's meeting)."--_Introduction to
+Gilbert's History of the Common Pleas_, p. 2, _note_.
+
+"It was the especial province of the earldomen or earl to attend the
+shyre-meeting, (the county court,) twice a year, and there officiate as
+the county judge in expounding the secular laws, as appears by the fifth
+of Edgar's laws."--_Same_, p. 2, _note_.
+
+"Every ward had its proper alderman, who was _chosen_, and not imposed
+by the prince."--_Same_, p. 4, _text_.
+
+"As the aldermen, or earls, were always _chosen_" (by the people) "from
+among the greatest thanes, who in those times were generally more
+addicted to arms than to letters, they were but ill-qualified for the
+administration of justice, and performing the civil duties of their
+office."--_3 Henry's History of Great Britain_, 343.
+
+"But none of these thanes were annually elected in the full folcmote,
+(people's meeting,) _as the earls, sheriffs, and head-boroughs were_;
+nor did King Alfred (as this author suggests) deprive the people of the
+election of those last mentioned magistrates and nobles, much less did
+he appoint them himself."--_Introd. to Gilbert's Hist. Com. Pleas_, p.
+2, _note_.
+
+"The sheriff was usually not appointed by the lord, but elected by the
+freeholders of the district."--_Political Dictionary_, word _Sheriff_.
+
+"Among the most remarkable of the Saxon laws we may reckon * * the
+election of their magistrates by the people, originally even that of
+their kings, till dear-bought experience evinced the convenience and
+necessity of establishing an hereditary succession to the crown. But
+that (the election) of all subordinate magistrates, their military
+officers or heretochs, their sheriffs, their conservators of the peace,
+their coroners, their portreeves, (since changed into mayors and
+bailiffs,) and even their tithing-men and borsholders at the last,
+continued, some, till the Norman conquest, others for two centuries
+after, and some remain to this day."--_4 Blackstone_, 413.
+
+"The election of sheriffs was left to the people, _according to ancient
+usage_."--_St. West._ 1, c. 27.--_Crabbe's History of English Law_,
+181.]
+
+
+
+
+CHAPTER V.
+
+OBJECTIONS ANSWERED
+
+
+The following objections will be made to the doctrines and the evidence
+presented in the preceding chapters.
+
+1. That it is a _maxim_ of the law, that the judges respond to the
+question of law, and juries only to the question of fact.
+
+The answer to this objection is, that, since Magna Carta, judges have
+had more than six centuries in which to invent and promulgate pretended
+maxims to suit themselves; and this is one of them. Instead of
+expressing the law, it expresses nothing but the ambitious and lawless
+will of the judges themselves, and of those whose instruments they
+are.[73]
+
+2. It will be asked, Of what use are the justices, if the jurors judge
+both of law and fact?
+
+The answer is, that they are of use, 1. To assist and enlighten the
+jurors, if they can, by their advice and information; such advice and
+information to be received only for what they may chance to be worth in
+the estimation of the jurors. 2. To do anything that may be necessary in
+regard to granting appeals and new trials.
+
+3. It is said that it would be absurd that twelve ignorant men should
+have power to judge of the law, while justices learned in the law should
+be compelled to sit by and see the law decided erroneously.
+
+One answer to this objection is, that the powers of juries are not
+granted to them on the supposition that they know the law better than
+the justices; but on the ground that the justices are untrustworthy,
+that they are exposed to bribes, are themselves fond of power and
+authority, and are also the dependent and subservient creatures of the
+legislature; and that to allow them to dictate the law, would not only
+expose the rights of parties to be sold for money, but would be
+equivalent to surrendering all the property, liberty, and rights of the
+people, unreservedly into the hands of arbitrary power, (the
+legislature,) to be disposed of at its pleasure. The powers of juries,
+therefore, not only place a curb upon the powers of legislators and
+judges, but imply also an imputation upon their integrity and
+trustworthiness; and _these_ are the reasons why legislators and judges
+have formerly entertained the intensest hatred of juries, and, so fast
+as they could do it without alarming the people for their liberties,
+have, by indirection, denied, undermined, and practically destroyed
+their power. And it is only since all the real power of juries has been
+destroyed, and they have become mere tools in the hands of legislators
+and judges, that they have become favorites with them.
+
+Legislators and judges are necessarily exposed to all the temptations of
+money, fame, and power, to induce them to disregard justice between
+parties, and sell the rights, and violate the liberties of the people.
+Jurors, on the other hand, are exposed to none of these temptations.
+They are not liable to bribery, for they are unknown to the parties
+until they come into the jury-box. They can rarely gain either fame,
+power, or money, by giving erroneous decisions. Their offices are
+temporary, and they know that when they shall have executed them, they
+must return to the people, to hold all their own rights in life subject
+to the liability of such judgments, by their successors, as they
+themselves have given an example for. The laws of human nature do not
+permit the supposition that twelve men, taken by lot from the mass of
+the people, and acting under such circumstances, will _all_ prove
+dishonest. It is a supposable case that they may not be sufficiently
+enlightened to know and do their whole duty, in all cases whatsoever;
+but that they should _all_ prove _dishonest_, is not within the range
+of probability. A jury, therefore, insures to us--what no other court
+does--that first and indispensable requisite in a judicial tribunal,
+integrity.
+
+4. It is alleged that if juries are allowed to judge of the law, _they
+decide the law absolutely; that their decision must necessarily stand,
+be it right or wrong_; and that this power of absolute decision would be
+dangerous in their hands, by reason of their ignorance of the law.
+
+One answer is, that this power, which juries have of _judging_ of the
+law, is not a power of _absolute decision in all cases_. For example, it
+is a power to declare imperatively that a man's property, liberty, or
+life, shall _not_ be taken from him; but it is not a power to declare
+imperatively that they _shall_ be taken from him.
+
+Magna Carta does not provide that the judgments of the peers _shall be
+executed_; but only that _no other than their judgments_ shall ever be
+executed, _so far as to take a party's goods, rights, or person,
+thereon_.
+
+A judgment of the peers may be reviewed, and invalidated, and a new
+trial granted. So that practically a jury has no absolute power to take
+a party's goods, rights, or person. They have only an absolute veto upon
+their being taken by the government. The government is not bound to do
+everything that a jury may adjudge. It is only prohibited from doing
+anything--(that is, from taking a party's goods, rights, or
+person)--unless a jury have first adjudged it to be done.
+
+But it will, perhaps, be said, that if an erroneous judgment of one jury
+should be reaffirmed by another, on a new trial, it must _then_ be
+executed. But Magna Carta does not command even this--although it might,
+perhaps, have been reasonably safe for it to have done so--for if two
+juries unanimously affirm the same thing, after all the light and aid
+that judges and lawyers can afford them, that fact probably furnishes as
+strong a presumption in favor of the correctness of their opinion, as
+can ordinarily be obtained in favor of a judgment, by any measures of a
+practical character for the administration of justice. Still, there is
+nothing in Magna Carta that _compels_ the execution of even a second
+judgment of a jury. The only injunction of Magna Carta upon the
+government, as to what it _shall do_, on this point, is that it shall
+"do justice and right," without sale, denial, or delay. But this leaves
+the government all power of determining what is justice and right,
+except that it shall not consider anything as justice and right--so far
+as to carry it into execution against the goods, rights, or person of a
+party--unless it be something which a jury have sanctioned.
+
+If the government had no alternative but to execute all judgments of a
+jury indiscriminately, the power of juries would unquestionably be
+dangerous; for there is no doubt that they may sometimes give hasty and
+erroneous judgments. But when it is considered that their judgments can
+be reviewed, and new trials granted, this danger is, for all practical
+purposes, obviated.
+
+If it be said that juries may _successively_ give erroneous judgments,
+and that new trials cannot be granted indefinitely, the answer is, that
+so far as Magna Carta is concerned, there is nothing to prevent the
+granting of new trials indefinitely, if the judgments of juries are
+contrary to "justice and right." So that Magna Carta does not _require_
+any judgment whatever to be executed--so far as to take a party's goods,
+rights, or person, thereon--unless it be concurred in by both court and
+jury.
+
+Nevertheless, we may, for the sake of the argument, suppose the
+existence of a _practical_, if not _legal_, necessity, for executing
+_some_ judgment or other, in cases where juries persist in disagreeing
+with the courts. In such cases, the principle of Magna Carta
+unquestionably is, that the uniform judgments of _successive_ juries
+shall prevail over the opinion of the court. And the reason of this
+principle is obvious, viz., that it is the will of the country, and not
+the will of the court, or the government, that must determine what laws
+shall be established and enforced; that the concurrent judgments of
+successive juries, given in opposition to all the reasoning which judges
+and lawyers can offer to the contrary, must necessarily be presumed to
+be a truer exposition of the will of the country, than are the opinions
+of the judges.
+
+But it may be said that, unless jurors submit to the control of the
+court, in matters of law, they may disagree among themselves, and
+_never_ come to any judgment; and thus justice fail to be done.
+
+Such a case is perhaps possible; but, if possible, it can occur but
+rarely; because, although one jury may disagree, a succession of juries
+are not likely to disagree--that is, _on matters of natural law, or
+abstract justice_.[74] If such a thing should occur, it would almost
+certainly be owing to the attempt of the court to mislead them. It is
+hardly possible that any other cause should be adequate to produce such
+an effect; because justice comes very near to being a self-evident
+principle. The mind perceives it almost intuitively. If, in addition to
+this, the court be uniformly on the side of justice, it is not a
+reasonable supposition that a succession of juries should disagree about
+it. If, therefore, a succession of juries do disagree on the law of any
+case, the presumption is, not that justice fails of being done, but that
+injustice is prevented--_that_ injustice, which would be done, if the
+opinion of the court were suffered to control the jury.
+
+For the sake of the argument, however, it may be admitted to be possible
+that justice should sometimes fail of being done through the
+disagreements of jurors, notwithstanding all the light which judges and
+lawyers can throw upon the question in issue. If it be asked what
+provision the trial by jury makes for such cases, the answer is, _it
+makes none; and justice must fail of being done, from the want of its
+being made sufficiently intelligible_.
+
+Under the trial by jury, justice can never be done--that is, by a
+judgment that shall take a party's goods, rights, or person--until that
+justice can be made intelligible or perceptible to the minds of _all_
+the jurors; or, at least, until it obtain the voluntary assent of
+all--an assent, which ought not to be given until the justice itself
+shall have become perceptible to all.
+
+The principles of the trial by jury, then, are these:
+
+1. That, in criminal cases, the accused is presumed innocent.
+
+2. That, in civil cases, possession is presumptive proof of property;
+or, in other words, every man is presumed to be the rightful proprietor
+of whatever he has in his possession.
+
+3. That these presumptions shall be overcome, in a court of justice,
+only by evidence, the sufficiency of which, and by law, the justice of
+which, are satisfactory to the understanding and consciences of _all_
+the jurors.
+
+These are the bases on which the trial by jury places the property,
+liberty, and rights of every individual.
+
+But some one will say, if these are the principles of the trial by jury,
+then it is plain that justice must often fail to be done. Admitting, for
+the sake of the argument, that this may be true, the compensation for it
+is, that positive _injustice_ will also often fail to be done; whereas
+otherwise it would be done frequently. The very precautions used to
+prevent _injustice_ being done, may often have the effect to prevent
+_justice_ being done. But are we, therefore, to take no precautions
+against injustice? By no means, all will agree. The question then
+arises--Does the trial by jury, _as here explained_, involve such
+extreme and unnecessary precautions against injustice, as to interpose
+unnecessary obstacles to the doing of justice? Men of different minds
+may very likely answer this question differently, according as they have
+more or less confidence in the wisdom and justice of legislators, the
+integrity and independence of judges, and the intelligence of jurors.
+This much, however, may be said in favor of these precautions, viz.,
+that the history of the past, as well as our constant present
+experience, prove how much injustice may, and certainly will, be done,
+systematically and continually, _for the want of these precautions_--that
+is, while the law is authoritatively made and expounded by legislators and
+judges. On the other hand, we have no such evidence of how much justice
+may fail to be done, _by reason of these precautions_--that is, by reason
+of the law being left to the judgments and consciences of jurors. We can
+determine the former point--that is, how much positive injustice is done
+under the first of these two systems--because the system is in full
+operation; but we cannot determine how much justice would fail to be
+done under the latter system, because we have, in modern times, had no
+experience of the use of the precautions themselves. In ancient times,
+when these precautions were _nominally_ in force, such was the tyranny of
+kings, and such the poverty, ignorance, and the inability of concert and
+resistance, on the part of the people, that the system had no full or fair
+operation. It, nevertheless, under all these disadvantages, impressed
+itself upon the understandings, and imbedded itself in the hearts, of the
+people, so as no other system of civil liberty has ever done.
+
+But this view of the two systems compares only the injustice done, and
+the justice omitted to be done, in the individual cases adjudged,
+without looking beyond them. And some persons might, on first thought,
+argue that, if justice failed of being done under the one system,
+oftener than positive injustice were done under the other, the balance
+was in favor of the latter system. But such a weighing of the two
+systems against each other gives no true idea of their comparative
+merits or demerits; for, possibly, in this view alone, the balance would
+not be very great in favor of either. To compare, or rather to contrast,
+the two, we must consider that, under the jury system, the failures to
+do justice would be only rare and exceptional cases; and would be owing
+either to the intrinsic difficulty of the questions, or to the fact that
+the parties had transacted their business in a manner unintelligible to
+the jury, and the effects would be confined to the individual or
+individuals interested in the particular suits. No permanent law would
+be established thereby destructive of the rights of the people in other
+like cases. And the people at large would continue to enjoy all their
+natural rights as before. But under the other system, whenever an unjust
+law is enacted by the legislature, and the judge imposes it upon the
+jury as authoritative, and they give a judgment in accordance therewith,
+the authority of the law is thereby established, and the whole people
+are thus brought under the yoke of that law; because they then
+understand that the law will be enforced against them in future, if they
+presume to exercise their rights, or refuse to comply with the
+exactions of the law. In this manner all unjust laws are established,
+and made operative against the rights of the people.
+
+The difference, then, between the two systems is this: Under the one
+system, a jury, at distant intervals, would (not enforce any positive
+injustice, but only) fail of enforcing justice, in a dark and difficult
+case, or in consequence of the parties not having transacted their
+business in a manner intelligible to a jury; and the plaintiff would
+thus fail of obtaining what was rightfully due him. And there the matter
+would end, _for evil_, though not for good; for thenceforth parties,
+warned of the danger of losing their rights, would be careful to
+transact their business in a more clear and intelligible manner. Under
+the other system--the system of legislative and judicial
+authority--positive injustice is not only done in every suit arising
+under unjust laws,--that is, men's property, liberty, or lives are not
+only unjustly taken on those particular judgments,--but the rights of
+the whole people are struck down by the authority of the laws thus
+enforced, and a wide-sweeping tyranny at once put in operation.
+
+But there is another ample and conclusive answer to the argument that
+justice would often fail to be done, if jurors were allowed to be
+governed by their own consciences, instead of the direction of the
+justices, in matters of law. That answer is this:
+
+Legitimate government can be formed only by the voluntary association of
+all who contribute to its support. As a voluntary association, it can
+have for its objects only those things in which the members of the
+association are _all agreed_. If, therefore, there be any _justice_, in
+regard to which all the parties to the government _are not agreed_, the
+objects of the association do not extend to it.[75]
+
+If any of the members wish more than this,--if they claim to have
+acquired a more extended knowledge of justice than is common to all, and
+wish to have their pretended discoveries carried into effect, in
+reference to themselves,--they must either form a separate association
+for that purpose, or be content to wait until they can make their views
+intelligible to the people at large. They cannot claim or expect that
+the whole people shall practise the folly of taking on trust their
+pretended superior knowledge, and of committing blindly into their hands
+all their own interests, liberties, and rights, to be disposed of on
+principles, the justness of which the people themselves cannot
+comprehend.
+
+A government of the whole, therefore, must necessarily confine itself to
+the administration of such principles of law as _all_ the people, who
+contribute to the support of the government, can comprehend and see the
+justice of. And it can be confined within those limits only by allowing
+the jurors, who represent all the parties to the compact, to judge of
+the law, and the justice of the law, in all cases whatsoever. And if any
+justice be left undone, under these circumstances, it is a justice for
+which the nature of the association does not provide, which the
+association does not undertake to do, and which, as an association, it
+is under no obligation to do.
+
+The people at large, the unlearned and common people, have certainly an
+indisputable right to associate for the establishment and maintenance of
+such a government as _they themselves_ see the justice of, and feel the
+need of, for the promotion of their own interests, and the safety of
+their own rights, without at the same time surrendering all their
+property, liberty, and rights into the hands of men, who, under the
+pretence of a superior and incomprehensible knowledge of justice, may
+dispose of such property, liberties, and rights, in a manner to suit
+their own selfish and dishonest purposes.
+
+If a government were to be established and supported _solely_ by that
+portion of the people who lay claim to superior knowledge, there would
+be some consistency in their saying that the common people should not be
+received as jurors, with power to judge of the justice of the laws. But
+so long as the whole people (or all the male adults) are presumed to be
+voluntary parties to the government, and voluntary contributors to its
+support, there is no consistency in refusing to any one of them more
+than to another the right to sit as juror, with full power to decide for
+himself whether any law that is proposed to be enforced in any
+particular case, be within the objects of the association.
+
+The conclusion, therefore, is, that, in a government formed by voluntary
+association, or on the _theory_ of voluntary association, and voluntary
+support, (as all the North American governments are,) no law can
+rightfully be enforced by the association in its corporate capacity,
+against the goods, rights, or person of any individual, except it be
+such as _all_ the members of the association agree that it may enforce.
+To enforce any other law, to the extent of taking a man's goods, rights,
+or person, would be making _some_ of the parties to the association
+accomplices in what they regard as acts of injustice. It would also be
+making them consent to what they regard as the destruction of their own
+rights. These are things which no legitimate system or theory of
+government can require of any of the parties to it.
+
+The mode adopted, by the trial by jury, for ascertaining whether all the
+parties to the government do approve of a particular law, is to take
+twelve men at random from the whole people, and accept their unanimous
+decision as representing the opinions of the whole. Even this mode is
+not theoretically accurate; for theoretical accuracy would require that
+every man, who was a party to the government, should individually give
+his consent to the enforcement of every law in every separate case. But
+such a thing would be impossible in practice. The consent of twelve men
+is therefore taken instead; with the privilege of appeal, and (in case
+of error found by the appeal court) a new trial, to guard against
+possible mistakes. This system, it is assumed, will ascertain the sense
+of the whole people--"the country"--with sufficient accuracy for all
+practical purposes, and with as much accuracy as is practicable without
+too great inconvenience and expense.
+
+5. Another objection that will perhaps be made to allowing jurors to
+judge of the law, and the justice of the law, is, that the law would be
+uncertain.
+
+If, by this objection, it be meant that the law would be uncertain to
+the minds of the people at large, so that they would not know what the
+juries would sanction and what condemn, and would not therefore know
+practically what their own rights and liberties were under the law, the
+objection is thoroughly baseless and false. No system of law that was
+ever devised could be so entirely intelligible and certain to the minds
+of the people at large as this. Compared with it, the complicated
+systems of law that are compounded of the law of nature, of
+constitutional grants, of innumerable and incessantly changing
+legislative enactments, and of countless and contradictory judicial
+decisions, with no uniform principle of reason or justice running
+through them, are among the blindest of all the mazes in which
+unsophisticated minds were ever bewildered and lost. The uncertainty of
+the law under these systems has become a proverb. So great is this
+uncertainty, that nearly all men, learned as well as unlearned, shun the
+law as their enemy, instead of resorting to it for protection. They
+usually go into courts of justice, so called, only as men go into
+battle--when there is no alternative left for them. And even then they
+go into them as men go into dark labyrinths and caverns--with no
+knowledge of their own, but trusting wholly to their guides. Yet, less
+fortunate than other adventurers, they can have little confidence even
+in their guides, for the reason that the guides themselves know little
+of the mazes they are threading. They know the mode and place of
+entrance; but what they will meet with on their way, and what will be
+the time, mode, place, or condition of their exit; whether they will
+emerge into a prison, or not; whether _wholly_ naked and destitute, or
+not; whether with their reputations left to them, or not; and whether in
+time or eternity; experienced and honest guides rarely venture to
+predict. Was there ever such fatuity as that of a nation of men madly
+bent on building up such labyrinths as these, for no other purpose than
+that of exposing all their rights of reputation, property, liberty, and
+life, to the hazards of being lost in them, instead of being content to
+live in the light of the open day of their own understandings?
+
+What honest, unsophisticated man ever found himself involved in a
+lawsuit, that he did not desire, of all things, that his cause might be
+judged of on principles of natural justice, as those principles were
+understood by plain men like himself? He would then feel that he could
+foresee the result. These plain men are the men who pay the taxes, and
+support the government. Why should they not have such an administration
+of justice as they desire, and can understand?
+
+If the jurors were to judge of the law, and the justice of the law,
+there would be something like certainty in the administration of
+justice, and in the popular knowledge of the law, and men would govern
+themselves accordingly. There would be something like certainty, because
+every man has himself something like definite and clear opinions, and
+also knows something of the opinions of his neighbors, on matters of
+justice. And he would know that no statute, unless it were so clearly
+just as to command the unanimous assent of twelve men, who should be
+taken at random from the whole community, could be enforced so as to
+take from him his reputation, property, liberty, or life. What greater
+certainty can men require or need, as to the laws under which they are
+to live? If a statute were enacted by a legislature, a man, in order to
+know what was its true interpretation, whether it were constitutional,
+and whether it would be enforced, would not be under the necessity of
+waiting for years until some suit had arisen and been carried through
+all the stages of judicial proceeding, to a final decision. He would
+need only to use his own reason as to its meaning and its justice, and
+then talk with his neighbors on the same points. Unless he found them
+nearly unanimous in their interpretation and approbation of it, he would
+conclude that juries would not unite in enforcing it, and that it would
+consequently be a dead letter. And he would be safe in coming to this
+conclusion.
+
+There would be something like certainty in the administration of
+justice, and in the popular knowledge of the law, for the further reason
+that there would be little legislation, and men's rights would be left
+to stand almost solely upon the law of nature, or what was once called
+in England "the _common law_," (before so much legislation and
+usurpation had become incorporated into the common law,)--in other
+words, upon the principles of natural justice.
+
+Of the certainty of this law of nature, or the ancient English common
+law, I may be excused for repeating here what I have said on another
+occasion.
+
+   "Natural law, so far from being uncertain, when compared with
+   statutory and constitutional law, is the only thing that gives any
+   certainty at all to a very large portion of our statutory and
+   constitutional law. The reason is this. The words in which statutes
+   and constitutions are written are susceptible of so many different
+   meanings,--meanings widely different from, often directly opposite
+   to, each other, in their bearing upon men's rights,--that, unless
+   there were some rule of interpretation for determining which of these
+   various and opposite meanings are the true ones, there could be no
+   certainty at all as to the meaning of the statutes and constitutions
+   themselves. Judges could make almost anything they should please out
+   of them. Hence the necessity of a rule of interpretation. _And this
+   rule is, that the language of statutes and constitutions shall be
+   construed, as nearly as possible, consistently with natural law._
+
+   The rule assumes, what is true, that natural law is a thing certain
+   in itself; also that it is capable of being learned. It assumes,
+   furthermore, that it actually is understood by the legislators and
+   judges who make and interpret the written law. Of necessity,
+   therefore, it assumes further, that they (the legislators and judges)
+   are _incompetent_ to make and interpret the _written_ law, unless
+   they previously understand the natural law applicable to the same
+   subject. It also assumes that the _people_ must understand the
+   natural law, before they can understand the written law.
+
+   It is a principle perfectly familiar to lawyers, and one that must be
+   perfectly obvious to every other man that will reflect a moment,
+   that, as a general rule, _no one can know what the written law is,
+   until he knows what it ought to be_; that men are liable to be
+   constantly misled by the various and conflicting senses of the same
+   words, unless they perceive the true legal sense in which the words
+   _ought to be taken_. And this true legal sense is the sense that is
+   most nearly consistent with natural law of any that the words can be
+   made to bear, consistently with the laws of language, and
+   appropriately to the subjects to which they are applied.
+
+   Though the words _contain_ the law, the _words_ themselves are not
+   the law. Were the words themselves the law, each single written law
+   would be liable to embrace many different laws, to wit, as many
+   different laws as there were different senses, and different
+   combinations of senses, in which each and all the words were capable
+   of being taken.
+
+   Take, for example, the Constitution of the United States. By adopting
+   one or another sense of the single word "_free_," the whole
+   instrument is changed. Yet the word _free_ is capable of some ten or
+   twenty different senses. So that, by changing the sense of that
+   single word, some ten or twenty different constitutions could be made
+   out of the same written instrument. But there are, we will suppose, a
+   thousand other words in the constitution, each of which is capable of
+   from two to ten different senses. So that, by changing the sense of
+   only a single word at a time, several thousands of different
+   constitutions would be made. But this is not all. Variations could
+   also be made by changing the senses of two or more words at a time,
+   and these variations could be run through all the changes and
+   combinations of senses that these thousand words are capable of. We
+   see, then, that it is no more than a literal truth, that out of that
+   single instrument, as it now stands, without altering the location of
+   a single word, might be formed, by construction and interpretation,
+   more different constitutions than figures can well estimate.
+
+   But each written law, in order to be a law, must be taken only in
+   some _one_ definite and distinct sense; and that definite and
+   distinct sense must be selected from the almost infinite variety of
+   senses which its words are capable of. How is this selection to be
+   made? It can be only by the aid of that perception of natural law, or
+   natural justice, which men naturally possess.
+
+   Such, then, is the comparative certainty of the natural and the
+   written law. Nearly all the certainty there is in the latter, so far
+   as it relates to principles, is based upon, and derived from, the
+   still greater certainty of the former. In fact, nearly all the
+   uncertainty of the laws under which we live,--which are a mixture of
+   natural and written laws,--arises from the difficulty of construing,
+   or, rather, from the facility of misconstruing, the _written_ law;
+   while natural law has nearly or quite the same certainty as
+   mathematics. On this point, Sir William Jones, one of the most
+   learned judges that have ever lived, learned in Asiatic as well as
+   European law, says,--and the fact should be kept forever in mind, as
+   one of the most important of all truths:--"_It is pleasing to remark
+   the similarity, or, rather, the identity of those conclusions which
+   pure, unbiassed reason, in all ages and nations, seldom fails to
+   draw, in such juridical inquiries as are not fettered and manacled by
+   positive institutions._"[76] In short, the simple fact that the
+   written law must be interpreted by the natural, is, of itself, a
+   sufficient confession of the superior certainty of the latter.
+
+   The written law, then, even where it can be construed consistently
+   with the natural, introduces labor and obscurity, instead of shutting
+   them out. And this must always be the case, because words do not
+   create ideas, but only recall them; and the same word may recall many
+   different ideas. For this reason, nearly all abstract principles can
+   be seen by the single mind more clearly than they can be expressed by
+   words to another. This is owing to the imperfection of language, and
+   the different senses, meanings, and shades of meaning, which
+   different individuals attach to the same words, in the same
+   circumstances.[77]
+
+   Where the written law cannot be construed consistently with the
+   natural, there is no reason why it should ever be enacted at all. It
+   may, indeed, be sufficiently plain and certain to be easily
+   understood; but its certainty and plainness are but a poor
+   compensation for its injustice. Doubtless a law forbidding men to
+   drink water, on pain of death, might be made so intelligible as to
+   cut off all discussion as to its meaning; but would the
+   intelligibleness of such a law be any equivalent for the right to
+   drink water? The principle is the same in regard to all unjust laws.
+   Few persons could reasonably feel compensated for the arbitrary
+   destruction of their rights, by having the order for their
+   destruction made known beforehand, in terms so distinct and
+   unequivocal as to admit of neither mistake nor evasion. Yet this is
+   all the compensation that such laws offer.
+
+   Whether, therefore, written laws correspond with, or differ from, the
+   natural, they are to be condemned. In the first case, they are
+   useless repetitions, introducing labor and obscurity. In the latter
+   case, they are positive violations of men's rights.
+
+   There would be substantially the same reason in enacting mathematics
+   by statute, that there is in enacting natural law. Whenever the
+   natural law is sufficiently certain to all men's minds to justify its
+   being enacted, it is sufficiently certain to need no enactment. On
+   the other hand, until it be thus certain, there is danger of doing
+   injustice by enacting it; it should, therefore, be left open to be
+   discussed by anybody who may be disposed to question it, and to be
+   judged of by the proper tribunal, the judiciary.[78]
+
+   It is not necessary that legislators should enact natural law in
+   order that it may be known to the _people_, because that would be
+   presuming that the legislators already understand it better than the
+   people,--a fact of which I am not aware that they have ever
+   heretofore given any very satisfactory evidence. The same sources of
+   knowledge on the subject are open to the people that are open to the
+   legislators, and the people must be presumed to know it as well as
+   they.
+
+   The objections made to natural law, on the ground of obscurity, are
+   wholly unfounded. It is true, it must be learned, like any other
+   science; but it is equally true that it is very easily learned.
+   Although as illimitable in its applications as the infinite relations
+   of men to each other, it is, nevertheless, made up of simple
+   elementary principles, of the truth and justice of which every
+   ordinary mind has an almost intuitive perception. _It is the science
+   of justice_,--and almost all men have the same perceptions of what
+   constitutes justice, or of what justice requires, when they
+   understand alike the facts from which their inferences are to be
+   drawn. Men living in contact with each other, and having intercourse
+   together, _cannot avoid_ learning natural law, to a very great
+   extent, even if they would. The dealings of men with men, their
+   separate possessions, and their individual wants, are continually
+   forcing upon their minds the questions,--Is this act just? or is it
+   unjust? Is this thing mine? or is it his? And these are questions of
+   natural law; questions, which, in regard to the great mass of cases,
+   are answered alike by the human mind everywhere.
+
+   Children learn many principles of natural law at a very early age.
+   For example: they learn that when one child has picked up an apple or
+   a flower, it is his, and that his associates must not take it from
+   him against his will. They also learn that if he voluntarily exchange
+   his apple or flower with a playmate, for some other article of
+   desire, he has thereby surrendered his right to it, and must not
+   reclaim it. These are fundamental principles of natural law, which
+   govern most of the greatest interests of individuals and society; yet
+   children learn them earlier than they learn that three and three are
+   six, or five and five, ten. Talk of enacting natural law by statute,
+   that it may be known! It would hardly be extravagant to say, that, in
+   nine cases in ten, men learn it before they have learned the language
+   by which we describe it. Nevertheless, numerous treatises are written
+   on it, as on other sciences. The decisions of courts, containing
+   their opinions upon the almost endless variety of cases that have
+   come before them, are reported; and these reports are condensed,
+   codified, and digested, so as to give, in a small compass, the facts,
+   and the opinions of the courts as to the law resulting from them. And
+   these treatises, codes, and digests are open to be read of all men.
+   And a man has the same excuse for being ignorant of arithmetic, or
+   any other science, that he has for being ignorant of natural law. He
+   can learn it as well, if he will, without its being enacted, as he
+   could if it were.
+
+   If our governments would but themselves adhere to natural law, there
+   would be little occasion to complain of the ignorance of the people
+   in regard to it. The popular ignorance of law is attributable mainly
+   to the innovations that have been made upon natural law by
+   legislation; whereby our system has become an incongruous mixture of
+   natural and statute law, with no uniform principle pervading it. To
+   learn such a system,--if system it can be called, and if learned it
+   can be,--is a matter of very similar difficulty to what it would be
+   to learn a system of mathematics, which should consist of the
+   mathematics of nature, interspersed with such other mathematics as
+   might be created by legislation, in violation of all the natural
+   principles of numbers and quantities.
+
+   But whether the difficulties of learning natural law be greater or
+   less than here represented, they exist in the nature of things, and
+   cannot be removed. Legislation, instead of removing, only increases
+   them. This it does by innovating upon natural truths and principles,
+   and introducing jargon and contradiction, in the place of order,
+   analogy, consistency, and uniformity.
+
+   Further than this; legislation does not even profess to remove the
+   obscurity of natural law. That is no part of its object. It only
+   professes to substitute something arbitrary in the place of natural
+   law. Legislators generally have the sense to see that legislation
+   will not make natural law any clearer than it is. Neither is it the
+   object of legislation to establish the authority of natural law.
+   Legislators have the sense to see that they can add nothing to the
+   authority of natural law, and that it will stand on its own
+   authority, unless they overturn it.
+
+   The whole object of legislation, excepting that legislation which
+   merely makes regulations, and provides instrumentalities for carrying
+   other laws into effect, is to overturn natural law, and substitute
+   for it the arbitrary will of power. In other words, the whole object
+   of it is to destroy men's rights. At least, such is its only effect;
+   and its designs must be inferred from its effect. Taking all the
+   statutes in the country, there probably is not one in a
+   hundred,--except the auxiliary ones just mentioned,--that does not
+   violate natural law; that does not invade some right or other.
+
+   Yet the advocates of arbitrary legislation are continually practising
+   the fraud of pretending that unless the legislature _make_ the laws,
+   the laws will not be known. The whole object of the fraud is to
+   secure to the government the authority of making laws that never
+   ought to be known."
+
+In addition to the authority already cited, of Sir William Jones, as to
+the certainty of natural law, and the uniformity of men's opinions in
+regard to it, I may add the following:
+
+   "There is that great simplicity and plainness in the Common Law, that
+   Lord Coke has gone so far as to assert, (and Lord Bacon nearly
+   seconds him in observing,) that 'he never knew two questions arise
+   merely upon common law; but that they were mostly owing to statutes
+   ill-penned and overladen with provisos.'"--_3 Eunomus_, 157-8.
+
+If it still be said that juries would disagree, as to what was natural
+justice, and that one jury would decide one way, and another jury
+another; the answer is, that such a thing is hardly credible, as that
+twelve men, taken at random from the people at large, should
+_unanimously_ decide a question of natural justice one way, and that
+twelve other men, selected in the same manner, should _unanimously_
+decide the same question the other way, _unless they were misled by the
+justices_. If, however, such things should sometimes happen, from any
+cause whatever, the remedy is by appeal, and new trial.
+
+[Footnote 73: Judges do not even live up to that part of their own
+maxim, which requires jurors to try the matter of fact. By dictating to
+them the laws of evidence,--that is, by dictating what evidence they may
+hear, and what they may not hear, and also by dictating to them rules
+for weighing such evidence as they permit them to hear,--they of
+necessity dictate the conclusion to which they shall arrive. And thus
+the court really tries the question of fact, as well as the question of
+law, in every cause. It is clearly impossible, in the nature of things,
+for a jury to try a question of fact, without trying every question of
+law on which the fact depends.]
+
+[Footnote 74: Most disagreements of juries are on matters of fact, which
+are admitted to be within their province. We have little or no evidence
+of their disagreements on matters of natural justice. The disagreements
+of _courts_ on matters of law, afford little or no evidence that juries
+would also disagree on matters of law--that is, _of justice_; because
+the disagreements of courts are generally on matters of _legislation_,
+and not on those principles of abstract justice, by which juries would
+be governed, and in regard to which the minds of men are nearly
+unanimous.]
+
+[Footnote 75: This is the principle of all voluntary associations
+whatsoever. No voluntary association was ever formed, and in the nature
+of things there never can be one formed, for the accomplishment of any
+objects except those in which all the parties to the association are
+agreed. Government, therefore, must be kept within these limits, or it
+is no longer a voluntary association of all who contribute to its
+support, but a mere tyranny established by a part over the rest.
+
+All, or nearly all, voluntary associations give to a majority, or to
+some other portion of the members less than the whole, the right to use
+some _limited_ discretion as to the means to be used to accomplish the
+ends in view; but _the ends themselves to be accomplished_ are always
+precisely defined, and are such as every member necessarily agrees to,
+else he would not voluntarily join the association.
+
+Justice is the object of government, and those who support the
+government, must be agreed as to the justice to be executed by it, or
+they cannot rightfully unite in maintaining the government itself.]
+
+[Footnote 76: Jones on Bailments, 133.]
+
+[Footnote 77: Kent, describing the difficulty of construing the written
+law, says:
+
+"Such is the imperfection of language, and the want of technical skill
+in the makers of the law, that statutes often give occasion to the most
+perplexing and distressing doubts and discussions, arising from the
+ambiguity that attends them. It requires great experience, as well as
+the command of a perspicuous diction, to frame a law in such clear and
+precise terms, as to secure it from ambiguous expressions, and from all
+doubts and criticisms upon its meaning."--_Kent_, 460.
+
+The following extract from a speech of Lord Brougham, in the House of
+Lords, confesses the same difficulty:
+
+"There was another subject, well worthy of the consideration of
+government during the recess,--the expediency, _or rather the absolute
+necessity_, of some arrangement for the preparation of bills, not merely
+private, but public bills, _in order that legislation might be
+consistent and systematic, and that the courts might not have so large a
+portion of their time occupied in endeavoring to construe acts of
+Parliament, in many cases unconstruable, and in most cases difficult to
+be construed_."--_Law Reporter_, 1848, p. 525.]
+
+[Footnote 78: This condemnation of written laws must, of course, be
+understood as applying only to cases where principles and rights are
+involved, and not as condemning any governmental arrangements, or
+instrumentalities, that are consistent with natural right, and which
+must be agreed upon for the purpose of carrying natural law into effect.
+These things may be varied, as expediency may dictate, so only that they
+be allowed to infringe no principle of justice. And they must, of
+course, be written, because they do not exist as fixed principles, or
+laws in nature.]
+
+
+
+
+CHAPTER VI.
+
+JURIES OF THE PRESENT DAY ILLEGAL.
+
+
+It may probably be safely asserted that there are, at this day, no legal
+juries, either in England or America. And if there are no legal juries,
+there is, of course, no legal trial, nor "judgment," by jury.
+
+In saying that there are probably no legal juries, I mean that there are
+probably no juries appointed in conformity with the principles of the
+_common law_.
+
+The term _jury_ is a technical one, derived from the common law; and
+when the American constitutions provide for the trial by jury, they
+provide for the _common law_ trial by jury; and not merely for any trial
+by jury that the government itself may chance to invent, and call by
+that name. It is the _thing_, and not merely the _name_, that is
+guarantied. Any legislation, therefore, that infringes any _essential
+principle_ of the _common law_, in the selection of jurors, is
+unconstitutional; and the juries selected in accordance with such
+legislation are, of course, illegal, and their judgments void.
+
+It will also be shown, in a subsequent chapter,[79] that since Magna
+Carta, the legislative power in England (whether king or parliament) has
+never had any constitutional authority to infringe, by legislation, any
+essential principle of the common law in the selection of jurors. All
+such legislation is as much unconstitutional and void, as though it
+abolished the trial by jury altogether. In reality it does abolish it.
+
+What, then, are the _essential principles_ of the common law,
+controlling the selection of jurors?
+
+They are two.
+
+1. That _all_ the freemen, or adult male members of the state, shall be
+eligible as jurors.[80]
+
+Any legislation which requires the selection of jurors to be made from a
+less number of freemen than the whole, makes the jury selected an
+illegal one.
+
+If a part only of the freemen, or members of the state, are eligible as
+jurors, the jury no longer represent "the country," but only a part of
+"the country."
+
+If the selection of jurors can be restricted to any less number of
+freemen than the whole, it can be restricted to a very small proportion
+of the whole; and thus the government be taken out of the hands of "the
+country," or the whole people, and be thrown into the hands of a few.
+
+That, at common law, the whole body of freemen were eligible as jurors
+is sufficiently proved, not only by the reason of the thing, but by the
+following evidence:
+
+1. Everybody must be presumed eligible, until the contrary be shown. We
+have no evidence, that I am aware of, of a prior date to Magna Carta, to
+_disprove_ that all freemen were eligible as jurors, unless it be the
+law of Ethelred, which requires that they be elderly[81] men. Since no
+specific age is given, it is probable, I think, that this statute meant
+nothing more than that they be more than twenty-one years old. If it
+meant anything more, it was probably contrary to the common law, and
+therefore void.
+
+2. Since Magna Carta, we have evidence showing quite conclusively that
+all freemen, above the age of twenty-one years, were eligible as jurors.
+
+The _Mirror of Justices_, (written within a century after Magna Carta,)
+in the section "_Of Judges_"--that is, _jurors_--says:
+
+   "All those who are not forbidden by law may be judges (jurors). To
+   women it is forbidden by law that they be judges; and thence it is,
+   that feme coverts are exempted to do suit in inferior courts. On the
+   other part, a villein cannot be a judge, by reason of the two
+   estates, which are repugnants; persons attainted of false judgments
+   cannot be judges, nor infants, nor any under the age of twenty-one
+   years, nor infected persons, nor idiots, nor madmen, nor deaf, nor
+   dumb, nor parties in the pleas, nor men excommunicated by the bishop,
+   nor criminal persons. * * And those who are not of the Christian
+   faith cannot be judges, nor those who are out of the king's
+   allegiance."--_Mirror of Justices_, 59-60.
+
+In the section "_Of Inferior Courts_," it is said:
+
+   "From the first assemblies came consistories, which we now call
+   courts, and that in divers places, and in divers manners; whereof the
+   sheriffs held one monthly, or every five weeks, according to the
+   greatness or largeness of the shires. And these courts are called
+   county courts, _where the judgment is by the suitors_, if there be no
+   writ, and is by warrant of jurisdiction ordinary. The other inferior
+   courts are the courts of every lord of the fee, to the likeness of
+   the hundred courts. * * There are other inferior courts which the
+   bailiffs hold in every hundred, from three weeks to three weeks, _by
+   the suitors of the freeholders of the hundred. All the tenants within
+   the fees are bounden to do their suit there_, and that not for the
+   service of their persons, but for the service of their fees. But
+   women, infants within the age of twenty-one years, deaf, dumb,
+   idiots, those who are indicted or appealed of mortal felony, before
+   they be acquitted, diseased persons, and excommunicated persons are
+   exempted from doing suit."--_Mirror of Justices_, 50-51.
+
+In the section "_Of the Sheriff's Turns_," it is said:
+
+   "The sheriffs by ancient ordinances hold several meetings twice in
+   the year in every hundred; _where all the freeholders within the
+   hundred_ are bound to appear for the service of their fees."--_Mirror
+   of Justices_, 50.
+
+The following statute was passed by Edward I., seventy years after Magna
+Carta:
+
+   "Forasmuch also as sheriffs, hundreders, and bailiffs of liberties,
+   have used to grieve those which be placed under them, putting in
+   assizes and juries men diseased and decrepit, and having continual or
+   sudden disease; and men also that dwelled not in the country at the
+   time of the summons; and summon also an unreasonable number of
+   jurors, for to extort money from some of them, for letting them go
+   in peace, and so the assizes and juries pass many times by poor men,
+   and the rich abide at home by reason of their bribes; it is ordained
+   that from henceforth in one assize no more shall be summoned than
+   four and twenty; and old men above three score and ten years, being
+   continually sick, or being diseased at the time of the summons, or
+   not dwelling in that country, shall not be put in juries of petit
+   assizes."--_St. 13 Edward I._, ch. 38. (1285.)
+
+Although this command to the sheriffs and other officers, not to summon,
+as jurors, those who, from age and disease, were physically incapable of
+performing the duties, may not, of itself, afford any absolute or legal
+implication, by which we can determine precisely who were, and who were
+not, eligible as jurors at common law, yet the exceptions here made
+nevertheless carry a seeming confession with them that, at common law,
+all male adults were eligible as jurors.
+
+But the main principle of the feudal system itself shows that _all_ the
+full and free adult male members of the state--that is, all who were
+free born, and had not lost their civil rights by crime, or
+otherwise--_must_, at common law, have been eligible as jurors. What was
+that principle? It was, that the state rested for support upon the land,
+and not upon taxation levied upon the people personally. The lands of
+the country were considered the property of the state, and were made to
+support the state _in this way_. A portion of them was set apart to the
+king, the rents of which went to pay his personal and official
+expenditures, not including the maintenance of armies, or the
+administration of justice. War and the administration of justice were
+provided for in the following manner. The freemen, or the freeborn adult
+male members of the state--who had not forfeited their political
+rights--were entitled to land _of right_, (until all the land was taken
+up,) on condition of their rendering certain military and civil services
+to the state. The military services consisted in serving personally as
+soldiers, or contributing an equivalent in horses, provisions, or other
+military supplies. The civil services consisted, among other things, in
+serving as jurors (and, it would appear, as witnesses) in the courts of
+justice. For these services they received no compensation other than
+the use of their lands. In this way the state was sustained; and the
+king had no power to levy additional burdens or taxes upon the people.
+The persons holding lands on these terms were called _freeholders_--in
+later times _freemen_--meaning free and full members of the state.
+
+Now, as the principle of the system was that the freeholders held their
+lands of the state, on the condition of rendering these military and
+civil services as _rents_ for their lands, the principle implies that
+_all_ the freeholders were liable to these rents, and were therefore
+eligible as jurors. Indeed, I do not know that it has ever been doubted
+that, at common law, _all_ the freeholders were eligible as jurors. If
+all had not been eligible, we unquestionably should have had abundant
+evidence of the exceptions. And if anybody, at this day, allege any
+exceptions, the burden will be on him to prove them. The presumption
+clearly is that _all_ were eligible.
+
+The first invasion, which I find made, by the English statutes, upon
+this common law principle, was made in 1285, seventy years after Magna
+Carta. It was then enacted as follows:
+
+   "Nor shall any be put in assizes or juries, though they ought to be
+   taken in their own shire, that hold a tenement of less than the value
+   of _twenty shillings yearly_. And if such assizes and juries be taken
+   out of the shire, no one shall be placed in them who holds a tenement
+   of less value than forty shillings yearly at the least, except such
+   as be witnesses in deeds or other writings, whose presence is
+   necessary, so that they be able to travel."--_St. 13 Edward I._, ch.
+   38. (1285.)
+
+The next invasion of the common law, in this particular, was made in
+1414, about two hundred years after Magna Carta, when it was enacted:
+
+   "That no person shall be admitted to pass in any inquest upon trial
+   of the death of a man, nor in any inquest betwixt party and party in
+   plea real, nor in plea personal, whereof the debt or the damage
+   declared amount to forty marks, if the same person have not lands or
+   tenements of the yearly value of _forty shillings above all charges
+   of the same_."--_2 Henry V._, st. 2, ch. 3. (1414.)
+
+Other statutes on this subject of the property qualifications of jurors,
+are given in the note.[82]
+
+From these statutes it will be seen that, since 1285, seventy years
+after Magna Carta, the common law right of all free British subjects to
+eligibility as jurors has been abolished, and the qualifications of
+jurors have been made a subject of arbitrary legislation. In other
+words, the government has usurped the authority of _selecting_ the
+jurors that were to sit in judgment upon its own acts. This is
+destroying the vital principle of the trial by jury itself, which is
+that the legislation of the government shall be subjected to the
+judgment of a tribunal, taken indiscriminately from the whole people,
+without any choice by the government, and over which the government can
+exercise no control. If the government can select the jurors, it will,
+of course, select those whom it supposes will be favorable to its
+enactments. And an exclusion of _any_ of the freemen from eligibility is
+a _selection_ of those not excluded.
+
+It will be seen, from the statutes cited, that the most absolute
+authority over the jury box--that is, over the right of the people to
+sit in juries--has been usurped by the government; that the
+qualifications of jurors have been repeatedly changed, and made to vary
+from a freehold of _ten shillings yearly_, to one of "_twenty pounds by
+the year at least above reprises_." They have also been made different,
+in the counties of Southampton, Surrey, and Sussex, from what they were
+in the other counties; different in Wales from what they were in
+England; and different in the city of London, and in the county of
+Middlesex, from what they were in any other part of the kingdom.
+
+But this is not all. The government has not only assumed arbitrarily to
+classify the people, on the basis of property, but it has even assumed
+to give to some of its judges entire and absolute personal discretion in
+the selection of the jurors to be impanelled in criminal cases, as the
+following statutes show.
+
+   "Be it also ordained and enacted by the same authority, that all
+   panels hereafter to be returned, which be not at the suit of any
+   party, that shall be made and put in afore any justice of gaol
+   delivery or justices of peace in their open sessions _to inquire for
+   the king, shall hereafter be reformed by additions and taking out of
+   names of persons by discretion of the same justices before whom such
+   panel shall be returned; and the same justices shall hereafter
+   command the sheriff, or his ministers in his absence, to put other
+   persons in the same panel by their discretions; and that panel so
+   hereafter to be made, to be good and lawful_. This act to endure only
+   to the next Parliament."--_11 Henry VII._, ch. 24, sec. 6. (1495.)
+
+This act was continued in force by 1 Henry VIII., ch. 11, (1509,) to the
+end of the then next Parliament.
+
+It was 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.[83]
+
+These restrictions, or indeed any one of them, of the right of
+eligibility as jurors, was, in principle, a complete abolition of the
+English constitution; or, at least, of its most vital and valuable part.
+It was, in principle, an assertion of a right, on the part of the
+government, to _select_ the individuals who were to determine the
+authority of its own laws, and the extent of its own powers. It was,
+therefore, _in effect_, the assertion of a right, on the part of the
+government itself, to determine its own powers, and the authority of its
+own legislation, over the people; and a denial of all right, on the part
+of the people, to judge of or determine their own liberties against the
+government. It was, therefore, in reality, a declaration of entire
+absolutism on the part of the government. It was an act as purely
+despotic, _in principle_, as would have been the express abolition of
+all juries whatsoever. By "the law of the land," which the kings were
+sworn to maintain, every free adult male British subject was eligible to
+the jury box, with full power to exercise his own judgment as to the
+authority and obligation of every statute of the king, which might come
+before him. But the principle of these statutes (fixing the
+qualifications of jurors) is, that nobody is to sit in judgment upon the
+acts or legislation of the king, or the government, except those whom
+the government itself shall select for that purpose. A more complete
+subversion of the essential principles of the English constitution could
+not be devised.
+
+The juries of England are illegal for another reason, viz., that the
+statutes cited require the jurors (except in London and a few other
+places) to be _freeholders_. All the other free British subjects are
+excluded; whereas, at common law, all such subjects are eligible to sit
+in juries, whether they be freeholders or not.
+
+It is true, the ancient common law required the jurors to be
+freeholders; but the term _freeholder_ no longer expresses the same idea
+that it did in the ancient common law; because no land is now holden in
+England on the same principle, or by the same tenure, as that on which
+all the land was held in the early times of the common law.
+
+As has heretofore been mentioned, in the early times of the common law
+the land was considered the property of the state; and was all holden by
+the _tenants_, so called, (that is, _holders_,) on the condition of
+their rendering certain military and civil services to the state, (or to
+the king as the representative of the state,) under the name of _rents_.
+Those who held lands on these terms were called free _tenants_, that is,
+_free holders_--meaning free persons, or members of the state, holding
+lands--to distinguish them from villeins, or serfs, who were not members
+of the state, but held their lands by a more servile tenure, and also to
+distinguish them from persons of foreign birth, outlaws, and all other
+persons, who were not members of the state.
+
+Every freeborn adult male Englishman (who had not lost his civil rights
+by crime or otherwise) was entitled to land of _right_; that is, by
+virtue of his civil freedom, or membership of the body politic. Every
+member of the state was therefore a freeholder; and every freeholder was
+a member of the state. And the members of the state were therefore
+called freeholders. But what is material to be observed, is, that a
+man's right to land was an incident to his _civil freedom_; not his
+civil freedom an incident to his right to land. He was a freeholder
+because he was a _freeborn_ member of the state; and not a freeborn
+member of the state because he was a freeholder; for this last would be
+an absurdity.
+
+As the tenures of lands changed, the term _freeholder_ lost its original
+significance, and no longer described a man who held land of the state
+by virtue of his civil freedom, but only one who held it in
+fee-simple--that is, free of any liability to military or civil
+services. But the government, in fixing the qualifications of jurors,
+has adhered to the term _freeholder_ after that term has ceased to
+express the _thing_ originally designated by it.
+
+The principle, then, of the common law, was, that every freeman, or
+freeborn male Englishman, of adult age, &c., was eligible to sit in
+juries, by virtue of his civil freedom, or his being a member of the
+state, or body politic. But the principle of the present English
+statutes is, that a man shall have a right to sit in juries because he
+owns lands in fee-simple. At the common law a man was _born_ to the
+right to sit in juries. By the present statutes he _buys_ that right
+when he buys his land. And thus this, the greatest of all the political
+rights of an Englishman, has become a mere article of merchandise; a
+thing that is bought and sold in the market for what it will bring.
+
+Of course, there can be no legality in such juries as these; but only in
+juries to which every free or natural born adult male Englishman is
+eligible.
+
+The second essential principle of the common law, controlling the
+selection of jurors, is, that when the selection of the actual jurors
+comes to be made, (from the whole body of male adults,) that selection
+shall be made in some mode that excludes the possibility of choice _on
+the part of the government_.
+
+Of course, this principle forbids the selection to be made _by any
+officer of the government_.
+
+There seem to have been at least three modes of selecting the jurors, at
+the common law. 1. By lot.[84] 2. Two knights, or other freeholders,
+were appointed, (probably by the sheriff,) to select the jurors. 3. By
+the sheriff, bailiff, or other person, who held the court, or rather
+acted as its ministerial officer. Probably the latter mode may have been
+the most common, although there may be some doubt on this point.
+
+At the common law the sheriffs, bailiffs, and other officers _were
+chosen by the people, instead of being appointed by the king_. (_4
+Blackstone_, 413. _Introduction to Gilbert's History of the Common
+Pleas_, p. 2, _note_, and p. 4.) This has been shown in a former
+chapter.[85] At common law, therefore, jurors selected by these officers
+were legally selected, so far as the principle now under discussion is
+concerned; that is, they were not selected by any officer who was
+dependent on the government.
+
+But in the year 1315, one hundred years after Magna Carta, the choice of
+sheriffs was taken from the people, and it was enacted:
+
+   "That the sheriffs shall henceforth be assigned by the chancellor,
+   treasurer, barons of the exchequer, and by the justices. And in the
+   absence of the chancellor, by the treasurer, barons and
+   justices."--_9 Edward II._, st. 2. (1315.)
+
+These officers, who appointed the sheriffs, were themselves appointed by
+the king, and held their offices during his pleasure. Their appointment
+of sheriffs was, therefore, equivalent to an appointment by the king
+himself. And the sheriffs, thus appointed, held their offices only
+during the pleasure of the king, and were of course mere tools of the
+king; and their selection of jurors was really a selection by the king
+himself. In this manner the king usurped the selection of the jurors who
+were to sit in judgment upon his own laws.
+
+Here, then, was another usurpation, by which the common law trial by
+jury was destroyed, so far as related to the county courts, in which the
+sheriffs presided, and which were the most important courts of the
+kingdom. From this cause alone, if there were no other, there has not
+been a legal jury in a _county_ court in England, for more than five
+hundred years.
+
+In nearly or quite all the States of the United States the juries are
+illegal, for one or the other of the same reasons that make the juries
+in England illegal.
+
+In order that the juries in the United States may be legal--that is, in
+accordance with the principles of the common law--it is necessary that
+every adult male member of the state should have his name in the jury
+box, or be eligible as a juror. Yet this is the case in hardly a single
+state.
+
+In New Jersey, Maryland, North Carolina, Tennessee, and Mississippi, the
+jurors are required to be _freeholders_. But this requirement is
+illegal, for the reason that the term _freeholder_, in this country, has
+no meaning analogous to the meaning it had in the ancient common law.
+
+In Arkansas, Missouri, Indiana, and Alabama, jurors are required to be
+"freeholders or householders." Each of these requirements is illegal.
+
+In Florida, they are required to be "householders."
+
+In Connecticut, Maine, Ohio, and Georgia, jurors are required to have
+the qualifications of "electors."
+
+In Virginia, they are required to have a property qualification of one
+hundred dollars.
+
+In Maine, Massachusetts, Vermont, Connecticut, New York, Ohio, Indiana,
+Michigan, and Wisconsin, certain civil authorities of the towns, cities,
+and counties are authorized to select, once in one, two, or three years,
+a certain number of the people--a small number compared with the
+whole--from whom jurors are to be taken when wanted; thus disfranchising
+all except the few thus selected.
+
+In Maine and Vermont, the inhabitants, by vote in town meeting, have a
+veto upon the jurors selected by the authorities of the town.
+
+In Massachusetts, the inhabitants, by vote in town meeting, can strike
+out any names inserted by the authorities, and insert others; thus
+making jurors elective by the people, and, of course, representatives
+only of a majority of the people.
+
+In Illinois, the jurors are selected, for each term of court, by the
+county commissioners.
+
+In North Carolina, "_the courts of pleas and quarter sessions_ * * shall
+select the names of such persons only as are freeholders, and as are
+well qualified to act as jurors, &c.; thus giving the courts power to
+pack the juries."--(_Revised Statutes_, 147.)
+
+In Arkansas, too, "It shall be the duty of the _county court_ of each
+county * * to make out and cause to be delivered to the sheriff a list
+of not less than sixteen, nor more than twenty-three persons, qualified
+to serve as _grand_ jurors;" and the sheriff is to summon such persons
+to serve as _grand_ jurors.
+
+In Tennessee, also, the jurors are to be selected by the _county
+courts_.
+
+In Georgia, the jurors are to be selected by "the justices of the
+inferior courts of each county, together with the sheriff and clerk, or
+a majority of them."
+
+In Alabama, "the sheriff, judge of the county court, and clerks of the
+circuit and county courts," or "a majority of" them, select the jurors.
+
+In Virginia, the jurors are selected by the sheriffs; but the sheriffs
+are appointed by the governor of the state, and that is enough to make
+the juries illegal. Probably the same objection lies against the
+legality of the juries in some other states.
+
+How jurors are appointed, and what are their qualifications, in New
+Hampshire, Rhode Island, Pennsylvania, Delaware, South Carolina,
+Kentucky, Iowa, Texas, and California, I know not. There is little doubt
+that there is some valid objection to them, of the kinds already
+suggested, in all these states.
+
+In regard to jurors in the courts of the United States, it is enacted,
+by act of Congress:
+
+   "That jurors to serve in the courts of the United States, in each
+   state respectively, shall have the like qualifications, and be
+   entitled to the like exemptions, as jurors of the highest court of
+   law of such state now have and are entitled to, and shall hereafter,
+   from time to time, have and be entitled to, and shall be designated
+   by ballot, lot, or otherwise, according to the mode of forming such
+   juries now practised and hereafter to be practised therein, in so far
+   as such mode may be practicable by the courts of the United States,
+   or the officers thereof; and for this purpose, the said courts shall
+   have power to make all necessary rules and regulations for conforming
+   the designation and empanelling of jurors, in substance, to the laws
+   and usages now in force in such state; and, further, shall have
+   power, by rule or order, from time to time, to conform the same to
+   any change in these respects which may be hereafter adopted by the
+   legislatures of the respective states for the state courts."--_St._
+   1840, ch. 47, _Statutes at Large_, vol. 5, p. 394.
+
+In this corrupt and lawless manner, Congress, instead of taking care to
+preserve the trial by jury, so far as they might, by providing for the
+appointment of legal juries--incomparably the most important of all our
+judicial tribunals, and the only ones on which the least reliance can be
+placed for the preservation of liberty--have given the selection of them
+over entirely to the control of an indefinite number of state
+legislatures, and thus authorized each state legislature to adapt the
+juries of the United States to the maintenance of any and every system
+of tyranny that may prevail in such state.
+
+Congress have as much constitutional right to give over all the
+functions of the United States government into the hands of the state
+legislatures, to be exercised within each state in such manner as the
+legislature of such state shall please to exercise them, as they have to
+thus give up to these legislatures the selection of juries for the
+courts of the United States.
+
+There has, probably, never been a legal jury, nor a legal trial by jury,
+in a single court of the United States, since the adoption of the
+constitution.
+
+These facts show how much reliance can be placed in written
+constitutions, to control the action of the government, and preserve the
+liberties of the people.
+
+If the real trial by jury had been preserved in the courts of the United
+States--that is, if we had had legal juries, and the jurors had known
+their rights--it is hardly probable that one tenth of the past
+legislation of Congress would ever have been enacted, or, at least,
+that, if enacted, it could have been enforced.
+
+Probably the best mode of appointing jurors would be this: Let the names
+of _all_ the adult male members of the state, in each township, be kept
+in a jury box, by the officers of the township; and when a court is to
+be held for a county or other district, let the officers of a sufficient
+number of townships be required (without seeing the names) to draw out a
+name from their boxes respectively, to be returned to the court as a
+juror. This mode of appointment would guard against collusion and
+selection; and juries so appointed would be likely to be a fair epitome
+of "the country."
+
+[Footnote 79: On the English Constitution.]
+
+[Footnote 80: Although all the freemen are legally eligible as jurors,
+any one may nevertheless be challenged and set aside, at the trial, for
+any special _personal_ disqualification; such as mental or physical
+inability to perform the duties; having been convicted, or being under
+charge, of crime; interest, bias, &c. But it is clear that the common
+law allows none of these points to be determined by the court, but only
+by "_triers_."]
+
+[Footnote 81: What was the precise meaning of the Saxon word, which I
+have here called _elderly_, I do not know. In the Latin translations it
+is rendered by _seniores_, which may perhaps mean simply those who have
+attained their majority.]
+
+[Footnote 82: In 1483 it was enacted, by a statute entitled "Of what
+credit and estate those jurors must be which shall be impanelled in the
+Sheriff's Turn."
+
+   "That no bailiff nor other officer from henceforth return or impanel
+   any such person in any shire of England, to be taken or put in or
+   upon any inquiry in any of the said Turns, but such as be of good
+   name and fame, and having lands and tenements of freehold within the
+   same shires, to the yearly value of _twenty shillings_ at the least,
+   or else lands and tenements holden by custom of manor, commonly
+   called _copy-hold_, within the said shires, to the yearly value of
+   twenty-six shillings eight pence over all charges at the least."--_1
+   Richard III._, ch. 4. (1483.)
+
+   In 1486 it was enacted, "That the justices of the peace of every
+   shire of this realm for the time being may take, by their discretion,
+   an inquest, whereof every man shall have lands and tenements to the
+   yearly value of _forty shillings_ at the least, to inquire of the
+   concealments of others," &c., &c.--_3 Henry VII._, ch. 1 (1486.)
+
+A statute passed in 1494, in regard to jurors in the city of London,
+enacts:
+
+   "That no person nor persons hereafter be impanelled, summoned, or
+   sworn in any jury or inquest in courts within the same city, (of
+   London,) except he be of lands, tenements, or goods and chattels, to
+   the value of _forty marks_;[86] and that no person or persons
+   hereafter be impanelled, summoned, nor sworn in any jury or inquest
+   in any court within the said city, for lands or tenements, or action
+   personal, wherein the debt or damage amounteth to the sum of forty
+   marks, or above, except he be in lands, tenements, goods, or
+   chattels, to the value of _one hundred marks_."--_11 Henry VII._, ch.
+   21. (1494.)
+
+The statute _4 Henry VIII._, ch. 3, sec. 4, (1512) requires jurors in
+London to have "_goods_ to the value of one hundred marks."
+
+   In 1494 it was enacted that "It shall be lawful to every sheriff of
+   the counties of _Southampton_, _Surrey_, _and Sussex_, to impanel and
+   summons twenty-four lawful men of such, inhabiting within the
+   precinct of his or their turns, as owe suit to the same turn, whereof
+   every one hath lands or freehold to the yearly value of _ten_
+   shillings, or copy-hold lands to the yearly value of _thirteen
+   shillings four pence_, above all charges within any of the said
+   counties, or men of less livelihood, if there be not so many there,
+   notwithstanding the statute of _1 Richard III._, ch. 4. To endure to
+   the next parliament."--_11 Henry VII._, ch. 26. (1494.)
+
+This statute was continued in force by _19 Henry VII._, ch. 16. (1503.)
+
+   In 1531 it was enacted, "That every person or persons, being the
+   king's natural subject born, which either by the name of citizen, or
+   of a freeman, or any other name, doth enjoy and use the liberties and
+   privileges of any city, borough, or town corporate, where he dwelleth
+   and maketh his abode, being worth in _movable goods and substance_ to
+   the clear value of _forty pounds_, be henceforth admitted in trials
+   of murders and felonies in every sessions and gaol delivery, to be
+   kept and holden in and for the liberty of such cities, boroughs, and
+   towns corporate, albeit they have no freehold; any act, statute, use,
+   custom, or ordinance to the contrary hereof notwithstanding."--_23
+   Henry VIII._, ch. 13. (1531.)
+
+   In 1585 it was enacted, "That in all cases where any jurors to be
+   returned for trial of any issue or issues joined in any of the
+   Queen's majesty's courts of King's Bench, Common Pleas, and the
+   Exchequer, or before justices of assize, by the laws of this realm
+   now in force, ought to have estate of freehold in lands, tenements,
+   or hereditaments, of the clear yearly value of _forty shillings_,
+   that in every such case the jurors that shall be returned from and
+   after the end of this present session of parliament, shall every of
+   them have estate of freehold in lands, tenements, or hereditaments,
+   to the clear yearly value of _four pounds_ at the least."--_27
+   Elizabeth_, ch. 6. (1585.)
+
+   In 1664-5 it was enacted, "That all jurors (other than strangers upon
+   trials _per medietatem linguae_) who are to be returned for the trials
+   of issues joined in any of (his) majesty's courts of king's bench,
+   common pleas, or the exchequer, or before justices of assize, or nisi
+   prius, oyer and terminer, gaol delivery, or general or quarter
+   sessions of the peace, from and after the twentieth day of April,
+   which shall be in the year of our Lord one thousand six hundred and
+   sixty-five, in any county of this realm of England, shall every of
+   them thon have, in their own name, or in trust for them, within the
+   same county, _twenty pounds by the year_, at least, above reprises,
+   in their own or their wives' right, of freehold lands, or of ancient
+   demesne, or of rents in fee, fee-tail, or for life. And that in every
+   county within the dominion of Wales every such juror shall then have,
+   within the same, _eight pounds by the year_, at the least, above
+   reprises, in manner aforesaid. All which persons having such estate
+   as aforesaid are hereby enabled and made liable to be returned and
+   serve as jurors for the trial of issues before the justices
+   aforesaid, any law or statute to the contrary in any wise
+   notwithstanding."--_16 and 17 Charles II._, ch. 3. (1664-5.)
+
+By a statute passed in 1692, jurors in England are to have landed
+estates of the value of _ten pounds a year_; and jurors in Wales to have
+similar estates of the realm of _six pounds a year_.--_4 and 5 William
+and Mary_, ch. 24, sec. 14. (1692.)
+
+By the same statute, (sec. 18,) persons may be returned to serve upon
+the _tales_ in any county of England, who shall have, within the same
+county, _five pounds by the year_, above reprises, in the manner
+aforesaid.
+
+By _St_. 3 _George II_., ch. 25, sec. 19, 20, no one is to be a juror in
+London, who shall not be "an householder within the said city, and have
+lands, tenements, or personal estate, to the value of _one hundred
+pounds_."
+
+By another statute, applicable only to the county of _Middlesex_, it is
+enacted,
+
+   "That all leaseholders, upon leases where the improved rents or value
+   shall amount to _fifty pounds or upwards per annum_, over and above
+   all ground rents or other reservations payable by virtue of the said
+   leases, shall be liable and obliged to serve upon juries when they
+   shall be legally summoned for that purpose."--_4 George II._, ch. 7,
+   sec. 3. (1731.)]
+
+[Footnote 83: Suppose these statutes, instead of disfranchising all
+whose freeholds were of less than the standard value fixed by the
+statutes, had disfranchised all whose freeholds were of greater value
+than the same standard--would anybody ever have doubted that such
+legislation was inconsistent with the English constitution; or that it
+amounted to an entire abolition of the trial by jury? Certainly not. Yet
+it was as clearly inconsistent with the common law, or the English
+constitution, to disfranchise those whose freeholds fell below any
+arbitrary standard fixed by the government, as it would have been to
+disfranchise all whose freeholds rose above that standard.]
+
+[Footnote 84: _Lingard_ says: "These compurgators or jurors * * were
+sometimes * * _drawn by lot_."--_1 Lingard's History of England_, p.
+300.]
+
+[Footnote 85: Chapter 4, p. 120, note.]
+
+[Footnote 86: A mark was thirteen shillings and four pence.]
+
+
+
+
+CHAPTER VII.
+
+ILLEGAL JUDGES.
+
+
+It is a principle of Magna Carta, and therefore of the trial by jury,
+(for all parts of Magna Carta must be construed together,) that no judge
+or other officer _appointed by the king_, shall preside in jury trials,
+_in criminal cases_, or "pleas of the crown."
+
+This provision is contained in the great charters of both John and
+Henry, and is second in importance only to the provision guaranteeing
+the trial by jury, of which it is really a part. Consequently, without
+the observance of this prohibition, there can be no genuine or
+_legal_--that is, _common law_--trial by jury.
+
+At the common law, all officers who held jury trials, whether in civil
+or criminal cases, were chosen by the people.[87]
+
+But previous to Magna Carta, the kings had adopted the practice of
+sending officers of their own appointment, called justices, into the
+counties, to hold jury trials in some cases; and Magna Carta authorizes
+this practice to be continued so far as it relates to _three_ kinds of
+_civil_ actions, to wit: "novel disseisin, mort de ancestor, and darrein
+presentment;"[88] but specially forbids its being extended to criminal
+cases, or pleas of the crown.
+
+This prohibition is in these words:
+
+   "Nullus vicecomes, constabularius, coronator, _vel alii balivi
+   nostri_, teneant placita 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 _bailiff_ was anciently a sort of general name for
+_judicial officers_ and persons employed in and about the administration
+of justice. In modern times its use, as applied to the higher grades of
+judicial officers, has been superseded by other words; and it therefore
+now, more generally, if not universally, signifies an executive or
+police officer, _a servant of courts_, rather than one whose functions
+are purely judicial.
+
+The word is a French word, brought into England by the Normans.
+
+   Coke says, "_Baylife_ is a French word, and signifies an officer
+   concerned in the administration of justice of a certain province; and
+   because a sheriff hath an office concerning the administration of
+   justice within his county, or bailiwick, therefore he called his
+   county _baliva sua_, (his bailiwick.)
+
+   "I have heard great question made what the true exposition of this
+   word _balivus_ is. In the statute of Magna Carta, cap. 28, the letter
+   of that statute is, _nullus balivus de caetero ponat aliquem ad legem
+   manifestam nec ad juramentum simplici loquela sua sine testibus
+   fidelibus ad hoc inductis_." (No bailiff from henceforth shall put
+   any one to his open law, nor to an oath (of self-exculpation) upon
+   his own simple accusation, or complaint, without faithful witnesses
+   brought in for the same.) "And some have said that _balivus_ in this
+   statute signifieth _any judge_; for the law must be waged and made
+   before the judge. And this statute (say they) extends to _the courts
+   of common pleas_, _king's bench_, &c., for they must bring with them
+   _fideles testes_, (faithful witnesses,) &c., _and so hath been the
+   usage to this day_."--_1 Coke's Inst._, 168 b.
+
+Coke makes various references, in his margin to Bracton, Fleta, and
+other authorities, which I have not examined, but which, I presume,
+support the opinion expressed in this quotation.
+
+Coke also, in another place, under the head of the chapter just cited
+from Magna Carta, that "_no bailiff shall put any man to his open law_,"
+&c., gives the following commentary upon it, from the _Mirror of
+Justices_, from which it appears that in the time of Edward I., (1272 to
+1307,) this word _balivus_ was understood to include _all judicial_, as
+well as all other, officers of the king.
+
+   The Mirror says: "The point which forbiddeth that no _bailiff_ put a
+   freeman to his oath without suit, is to be understood in this
+   manner,--_that no justice, no minister of the king_, nor other
+   steward, nor bailiff, have power to make a freeman make oath, (of
+   self-exculpation,) _without the king's command_,[89] nor receive any
+   plaint, without witnesses present who testify the plaint to be
+   true."--_Mirror of Justices_, ch. 5, sec. 2, p. 257.
+
+Coke quotes this commentary, (in the original French,) and then endorses
+it in these words:
+
+   "By this it appeareth, that under this word _balivus_, in this act,
+   is comprehended _every justice, minister of the king_, steward, and
+   bailiff."--2 _Inst._, 44.
+
+Coke also, in his commentary upon this very chapter of Magna Carta, that
+provides that "_no sheriff, constable, coroner, or other our bailiffs,
+shall hold pleas of our crown_," expresses the opinion that it "_is a
+general law_," (that is, applicable to all officers of the king,) "by
+reason of the words _vel alii balivi nostri_, (or other our bailiffs,)
+_under which words are comprehended all judges or justices of any courts
+of justice_." And he cites a decision in the king's bench, in the 17th
+year of Edward I., (1289,) as authority; which decision he calls "a
+notable and leading judgment."--_2 Inst._, 30--1.
+
+And yet Coke, in flat contradiction of this decision, which he quotes
+with such emphasis and approbation, and in flat contradiction also of
+the definition he repeatedly gives of the word _balivus_, showing that
+it embraced _all ministers of the king whatsoever_, whether high or low,
+judicial or executive, fabricates an entirely gratuitous interpretation
+of this chapter of Magna Carta, and pretends that after all it only
+required that _felonies_ should be tried before the king's _justices, on
+account of their superior learning_; and that it permitted all lesser
+offences to be tried before inferior officers, (meaning of course the
+_king's_ inferior officers.)--_2 Inst._, 30.
+
+And thus this chapter of Magna Carta, which, according to his own
+definition of the word _balivus_, applies to all officers of the king;
+and which, according to the common and true definition of the term
+"pleas of the crown," applies to all criminal cases without distinction,
+and which, therefore, forbids any officer or minister of the king to
+preside in a jury trial in any criminal case whatsoever, he coolly and
+gratuitously interprets into a mere senseless provision for simply
+restricting the discretion of the king in giving _names_ to his own
+officers who should preside at the trials of particular offences; as if
+the king, who made and unmade all his officers by a word, could not
+defeat the whole object of the prohibition, by appointing such
+individuals as he pleased, to try such causes as he pleased, and calling
+them by such names as he pleased, _if he were but permitted to appoint
+and name such officers at all_; and as if it were of the least
+importance what _name_ an officer bore, whom the king might appoint to a
+particular duty.[90]
+
+Coke evidently gives this interpretation solely because, as he was
+giving a general commentary on Magna Carta, he was bound to give some
+interpretation or other to every chapter of it; and for this chapter he
+could invent, or fabricate, (for it is a sheer fabrication,) no
+interpretation better suited to his purpose than this. It seems never to
+have entered his mind, (or if it did, he intended that it should never
+enter the mind of anybody else,) that the object of the chapter could be
+to deprive the king of the power of putting his creatures into criminal
+courts, to pack, cheat, and browbeat juries, and thus maintain his
+authority by procuring the conviction of those who should transgress his
+laws, or incur his displeasure.
+
+This example of Coke tends to show how utterly blind, or how utterly
+corrupt, English judges, (dependent upon the crown and the legislature),
+have been in regard to everything in Magna Carta, that went to secure
+the liberties of the people, or limit the power of the government.
+
+Coke's interpretation of this chapter of Magna Carta is of a piece with
+his absurd and gratuitous interpretation of the words "_nec super eum
+ibimus, nec super eum mittemus_," which was pointed out in a former
+article, and by which he attempted to give a _judicial_ power to the
+king and his judges, where Magna Carta had given it only to a jury. It
+is also of a piece with his pretence that there was a difference
+between _fine_ and _amercement_, and that _fines_ might be imposed by
+the king, and that juries were required only for fixing _amercements_.
+
+These are some of the innumerable frauds by which the English people
+have been cheated out of the trial by jury.
+
+_Ex uno disce omnes._ From one judge learn the characters of all.[91]
+
+I give in the note additional and abundant authorities for the meaning
+ascribed to the word _bailiff_. The importance of the principle involved
+will be a sufficient excuse for such an accumulation of authorities as
+would otherwise be tedious and perhaps unnecessary.[92]
+
+The foregoing interpretation of the chapter of Magna Carta now under
+discussion, is corroborated by another chapter of Magna Carta, which
+specially provides that the king's justices shall "go through every
+county" to "take the assizes" (hold jury trials) in three kinds of
+_civil_ actions, to wit, "novel disseisin, mort de ancestor, and darrein
+presentment;" but makes no mention whatever of their holding jury trials
+in _criminal_ cases,--an omission wholly unlikely to be made, if it
+were designed they should attend the trial of such causes. Besides, the
+chapter here spoken of (in John's charter) does not allow these justices
+to sit _alone_ in jury trials, even in _civil_ actions; but provides
+that four knights, chosen by the county, shall sit with them to keep
+them honest. When the king's justices were known to be so corrupt and
+servile that the people would not even trust them to sit alone, in jury
+trials, in _civil_ actions, how preposterous is it to suppose that they
+would not only suffer them to sit, but to sit alone, in _criminal_ ones.
+
+It is entirely incredible that Magna Carta, which makes such careful
+provision in regard to the king's justices sitting in civil actions,
+should make no provision whatever as to their sitting in _criminal_
+trials, if they were to be allowed to sit in them at all. Yet Magna
+Carta has no provision whatever on the subject.[93]
+
+But what would appear to make this matter absolutely certain is, that
+unless the prohibition that "no bailiff, &c., _of ours_ shall hold pleas
+of our crown," apply to all officers of the king, justices as well as
+others, it would be wholly nugatory for any practical or useful purpose,
+because the prohibition could be evaded by the king, at any time, by
+simply changing the titles of his officers. Instead of calling them
+"sheriffs, coroners, constables and bailiffs," he could call them
+"_justices_," or anything else he pleased; and this prohibition, so
+important to the liberty of the people, would then be entirely defeated.
+The king also could make and unmake "justices" at his pleasure; and if
+he could appoint any officers whatever to preside over juries in
+criminal trials, he could appoint any tool that he might at any time
+find adapted to his purpose. It was as easy to make justices of Jeffreys
+and Scroggs, as of any other material; and to have prohibited all the
+king's officers, _except his justices_, from presiding in criminal
+trials, would therefore have been mere fool's play.
+
+We can all perhaps form some idea, though few of us will be likely to
+form any adequate idea, of what a different thing the trial by jury
+would have been _in practice_, and of what would have been the
+difference to the liberties of England, for five hundred years last
+past, had this prohibition of Magna Carta, upon the king's officers
+sitting in the trial of criminal cases, been observed.
+
+The principle of this chapter of Magna Carta, as applicable to the
+governments of the United States of America, forbids that any officer
+appointed either by the executive or _legislative_ power, or dependent
+upon them for their salaries, or responsible to them by impeachment,
+should preside over a jury in criminal trials. To have the trial a legal
+(that is, a _common law_) and true trial by jury, the presiding officers
+must be chosen by the people, and be entirely free from all dependence
+upon, and all accountability to, the executive and legislative branches
+of the government.[94]
+
+[Footnote 87: The proofs of this principle of the common law have
+already been given on page 120, _note_.
+
+There is much confusion and contradiction among authors as to the manner
+in which sheriffs and other officers were appointed; some maintaining
+that they were appointed by the king, others that they were elected by
+the people. I imagine that both these opinions are correct, and that
+several of the king's officers bore the same official names as those
+chosen by the people; and that this is the cause of the confusion that
+has arisen on the subject.
+
+It seems to be a perfectly well established fact that, at common law,
+several magistrates, bearing the names of aldermen, sheriffs, stewards,
+coroners and bailiffs, were chosen by the people; and yet it appears,
+from Magna Carta itself, that some of the _king's_ officers (of whom he
+must have had many) were also called "sheriffs, constables, coroners,
+and bailiffs."
+
+But Magna Carta, in various instances, speaks of sheriffs and bailiffs
+as "_our_ sheriffs and bailiffs;" thus apparently intending to recognize
+the distinction between officers _of the king_, bearing those names, and
+other officers, bearing the same official names, but chosen by the
+people. Thus it says that "no sheriff or bailiff _of ours_, or any other
+(officer), shall take horses or carts of any freeman for carriage,
+unless with the consent of the freeman himself."--_John's Charter_, ch.
+36.
+
+In a kingdom subdivided into so many counties, hundreds, tithings,
+manors, cities and boroughs, each having a judicial or police
+organization of its own, it is evident that many of the officers must
+have been chosen by the people, else the government could not have
+maintained its popular character. On the other hand, it is evident that
+the king, the executive power of the nation, must have had large numbers
+of officers of his own in every part of the kingdom. And it is perfectly
+natural that these different sets of officers should, in many instances,
+bear the same official names; and, consequently that the king, when
+speaking of his own officers, as distinguished from those chosen by the
+people, should call them "our sheriffs, bailiffs," &c., as he does in
+Magna Carta.
+
+I apprehend that inattention to these considerations has been the cause
+of all the confusion of ideas that has arisen on this subject,--a
+confusion very evident in the following paragraph from Dunham, which may
+be given as an illustration of that which is exhibited by others on the
+same points.
+
+   "Subordinate to the ealdormen were the _gerefas_, the sheriffs, or
+   reeves, _of whom there were several in every shire, or county_.
+   _There was one in every borough, as a judge._ There was one at every
+   gate, who witnessed purchases outside the walls; and there was one,
+   higher than either,--the high sheriff,--who was probably the reeve of
+   the shire. This last _appears_ to have been appointed by the king.
+   Their functions were to execute the decrees of the king, or
+   ealdormen, to arrest prisoners, to require bail for their appearance
+   at the sessions, to collect fines or penalties levied by the court of
+   the shire, to preserve the public peace, _and to preside in a
+   subordinate tribunal of their own_."--_Dunham's Middle Ages_, sec. 2,
+   B. 2, ch. 1. 57 _Lardner's Cab. Cyc._, p. 41.
+
+The confusion of _duties_ attributed to these officers indicates clearly
+enough that different officers, bearing, the same official names, must
+have had different duties, and have derived their authority from
+different sources,--to wit, the king, and the people.]
+
+[Footnote 88: _Darrein presentment_ was an inquest to discover who
+presented the last person to a church; _mort de ancestor_, whether the
+last possessor was seized of land in demesne of his own fee; and _novel
+disseisin_, whether the claimant had been unjustly disseized of his
+freehold.]
+
+[Footnote 89: He has no power to do it, _either with, or without, the
+king's command_. The prohibition is absolute, containing no such
+qualification as is here interpolated, viz., "_without the king's
+command_." If it could be done _with_ the king's command, the king would
+be invested with arbitrary power in the matter.]
+
+[Footnote 90: The absurdity of this doctrine of Coke is made more
+apparent by the fact that, at that time, the "justices" and other
+persons appointed by the king to hold courts were not only dependent
+upon the king for their offices, and removable at his pleasure, _but
+that the usual custom was, not to appoint them with any view to
+permanency, but only to give them special commissions for trying a
+single cause, or for holding a single term of a court, or for making a
+single circuit; which, being done, their commissions expired_. The king,
+therefore, could, _and undoubtedly did, appoint any individual he
+pleased, to try any cause he pleased, with a special view to the
+verdicts he desired to obtain in the particular cases_.
+
+This custom of commissioning particular persons to hold jury trials, in
+_criminal_ cases, (and probably also in _civil_ ones,) was of course a
+usurpation upon the common law, but had been practised more or less from
+the time of William the Conqueror. Palgrave says:
+
+   "The frequent absence of William from his insular dominions
+   occasioned another mode of administration, _which ultimately produced
+   still greater changes in the law_. It was the practice of appointing
+   justiciars to represent the king's person, to hold his court, to
+   decide his pleas, to dispense justice on his behalf, to command the
+   military levies, and to act as conservators of the peace in the
+   king's name.[95] ... The justices who were assigned in the name of
+   the sovereign, and whose powers were revocable at his pleasure,
+   derived their authority merely from their grant.... Some of those
+   judges were usually deputed for the purpose of relieving the king
+   from the burden of his judicial functions.... The number as well as
+   the variety of names of the justices appearing in the early
+   chirographs of 'Concords,' leave reason for doubting whether,
+   anterior to the reign of Henry III., (1216 to 1272,) _a court, whose
+   members were changing at almost every session, can be said to have
+   been permanently constituted. It seems more probable that the
+   individuals who composed the tribunal were selected as suited the
+   pleasure of the sovereign, and the convenience of the clerks and
+   barons_; and the history of our legal administration will be much
+   simplified, if we consider all those courts which were afterwards
+   denominated the Exchequer, the King's Bench, the Common Pleas, and
+   the Chancery, _as being originally committees, selected by the king
+   when occasion required_, out of a large body, for the despatch of
+   peculiar branches of business, _and which committees, by degrees,
+   assumed an independent and permanent existence_.... Justices
+   itinerant, who, despatched throughout the land, decided the 'Pleas of
+   the Crown,' may be obscurely traced in the reign of the Conqueror;
+   _not, perhaps, appointed with much regularity, but despatched upon
+   peculiar occasions and emergencies_."--_1 Palgrave's Rise and
+   Progress_, &c., p. 289 to 293.
+
+The following statute, passed in 1354, (139 years after Magna Carta,)
+shows that even after this usurpation of appointing "justices" of his
+own, to try criminal cases, had probably become somewhat established in
+practice, in defiance of Magna Carta, the king was in the habit of
+granting special commissions to still other persons, (especially to
+sheriffs,--_his_ sheriffs, no doubt,) to try particular cases:
+
+   "Because that the people of the realm have suffered many evils and
+   mischiefs, for that sheriffs of divers counties, by virtue of
+   commissions and general writs granted to them at their own suit, for
+   their singular profit to gain of the people, have made and taken
+   divers inquests to cause to indict the people at their will, and have
+   taken fine and ransom of them to their own use, and have delivered
+   them; whereas such persons indicted were not brought before the
+   king's justices to have their deliverance, it is accorded and
+   established, for to eschew all such evils and mischiefs, that such
+   commissions and writs before this time made shall be utterly
+   repealed, and that from henceforth no such commissions shall be
+   granted."--_St. 28 Edward III._, ch. 9, (1354.)
+
+How silly to suppose that the illegality of these commissions to try
+criminal cases, could have been avoided by simply granting them to
+persons under the title of "_justices_," instead of granting them to
+"_sheriffs_." The statute was evidently a cheat, or at least designed as
+such, inasmuch as it virtually asserts the right of the king to appoint
+his tools, under the name of "justices," to try criminal cases, while it
+_disavows_ his right to appoint them under the name of "sheriffs."
+
+   Millar says: "When the king's bench came to have its usual residence
+   at Westminster, the sovereign was induced to _grant special
+   commissions, for trying particular crimes_, in such parts of the
+   country as were found most convenient; and this practice was
+   _gradually_ modelled into a regular appointment of certain
+   commissioners, empowered, at stated seasons, to perform circuits over
+   the kingdom, and to hold courts in particular towns, for the trial of
+   all sorts of crimes. These judges of the circuit, however, _never
+   obtained an ordinary jurisdiction, but continued, on every occasion,
+   to derive their authority from two special commissions_: that of
+   _oyer and terminer_, by which they were appointed to hear and
+   determine all treasons, felonies and misdemeanors, within certain
+   districts; and that of _gaol delivery_, by which they were directed
+   to try every prisoner confined in the gaols of the several towns
+   falling under their inspection."--_Millar's Hist. View of Eng. Gov._,
+   vol. 2, ch. 7, p. 282.
+
+The following extract from Gilbert shows to what lengths of usurpation
+the kings would sometimes go, in their attempts to get the judicial
+power out of the hands of the people, and entrust it to instruments of
+their own choosing:
+
+   "From the time of the _Saxons_," (that is, from the commencement of
+   the reign of William the Conqueror,) "till the reign of Edward the
+   first, (1272 to 1307,) the several county courts and sheriffs courts
+   did decline in their interest and authority. The methods by which
+   they were broken were two-fold. _First, by granting commissions to
+   the sheriffs by writ of_ JUSTICIES, _whereby the sheriff had a
+   particular jurisdiction granted him to be judge of a particular
+   cause, independent of the suitors of the county court_," (that is,
+   without a jury;) "_and these commissions were after the Norman form,
+   by which (according to which) all power of judicature was immediately
+   derived from the king_."--_Gilbert on the Court of Chancery_, p. 1.
+
+The several authorities now given show that it was the custom of the
+_Norman_ kings, not only to appoint persons to sit as judges in jury
+trials, in criminal cases, but that they also commissioned individuals
+to sit in singular and particular cases, as occasion required; and that
+they therefore readily _could_, and naturally _would_, and therefore
+undoubtedly _did_, commission individuals with a special view to their
+adaptation or capacity to procure such judgments as the kings desired.
+
+The extract from Gilbert suggests also the usurpation of the _Norman_
+kings, in their assumption that _they_, (and _not the people_, as by the
+_common law_,) were the fountains of justice. It was only by virtue of
+this illegal assumption that they could claim to appoint their tools to
+hold courts.
+
+All these things show how perfectly lawless and arbitrary the kings were
+both before and after Magna Carta, and how necessary to liberty was the
+principle of Magna Carta and the common law, that no person appointed by
+the king should hold jury trials in criminal cases.]
+
+[Footnote 91: The opinions and decisions of judges and courts are
+undeserving of the least reliance, (beyond the intrinsic merit of the
+arguments offered to sustain them,) and are unworthy even to be quoted
+as evidence of the law, _when those opinions or decisions are favorable
+to the power of the government, or unfavorable to the liberties of the
+people_. The only reasons that their opinions, _when in favor of
+liberty_, are entitled to any confidence, are, first, that all
+presumptions of law are in favor of liberty; and, second, that the
+admissions of all men, the innocent and the criminal alike, _when made
+against their own interests_, are entitled to be received as true,
+because it is contrary to human nature for a man to confess anything but
+truth against himself.
+
+More solemn farces, or more gross impostures, were never practised upon
+mankind, than are all, or very nearly all, those oracular responses by
+which courts assume to determine that certain statutes, in restraint of
+individual liberty, are within the constitutional power of the
+government, and are therefore valid and binding upon the people.
+
+The reason why these courts are so intensely servile and corrupt, is,
+that they are not only parts of, but the veriest creatures of, the very
+governments whose oppressions they are thus seeking to uphold. They
+receive their offices and salaries from, and are impeachable and
+removable by, the very governments upon whose acts they affect to sit in
+judgment. Of course, no one with his eyes open ever places himself in a
+position so incompatible with the liberty of declaring his honest
+opinion, unless he do it with the intention of becoming a mere
+instrument in the hands of the government for the execution of all its
+oppressions.
+
+As proof of this, look at the judicial history of England for the last
+five hundred years, and of America from its settlement. In all that time
+(so far as I know, or presume) no bench of judges, (probably not even
+any single judge,) dependent upon the legislature that passed the
+statute, has ever declared a single _penal_ statute invalid, on account
+of its being in conflict either with the common law, which the judges in
+England have been sworn to preserve, or with the written constitutions,
+(recognizing men's natural rights,) which the American judges were under
+oath to maintain. Every oppression, every atrocity even, that has ever
+been enacted in either country, by the legislative power, in the shape
+of a criminal law, (or, indeed, in almost any other shape,) has been as
+sure of a sanction from the judiciary that was dependent upon, and
+impeachable by, the legislature that enacted the law, as if there were a
+physical necessity that the legislative enactment and the judicial
+sanction should go together. Practically speaking, the sum of their
+decisions, all and singular, has been, that there are no limits to the
+power of the government, and that the people have no rights except what
+the government pleases to allow to them.
+
+It is extreme folly for a people to allow such dependent, servile, and
+perjured creatures to sit either in civil or criminal trials; but to
+allow them to sit in criminal trials, and judge of the people's
+liberties, is not merely fatuity,--it is suicide.]
+
+[Footnote 92: Coke, speaking of the word _bailiffs_, as used in the
+statute of 1 _Westminster_, ch. 35, (1275,) says:
+
+   "Here _bailiffs_ are taken for the _judges of the court_, as
+   manifestly appeareth hereby."--2 _Inst._, 229.
+
+Coke also says, "It is a maxim in law, _aliquis non debet esse judex in
+propria causa_, (no one ought to be judge in his own cause;) and
+therefore a fine levied before the _baylifes of Salop_ was reversed,
+because one of the _baylifes_ was party to the fine, _quia non potest
+esse judex et pars_," (because one cannot be _judge_ and party.)--_1
+Inst._, 141 a.
+
+In the statute of Gloucester, ch. 11 and 12, (1278,) "the mayor and
+_bailiffs_ of London (undoubtedly chosen by the people, or at any rate
+not appointed by the king) are manifestly spoken of as _judges_, or
+magistrates, holding _jury_ trials, as follows:
+
+   _Ch. II._ "It is provided, also, that if any man lease his tenement
+   in the city of London, for a term of years, and he to whom the
+   freehold belongeth causeth himself to be impleaded by collusion, and
+   maketh default after default, or cometh into court and giveth it up,
+   for to make the termor (lessee) lose his term, (lease,) and the
+   demandant hath his suit, so that the termor may recover by writ of
+   covenant; _the mayor and bailiffs may inquire by a good inquest_,
+   (_jury_,) in the presence of the termor and the demandant, whether
+   the demandant moved his plea upon good right that he had, or by
+   collusion, or fraud, to make the termor lose his term; and if it be
+   found by the inquest (jury) that the demandant moved his plea upon
+   good right that he had, the judgment shall be given forthwith; and if
+   it be found by the inquest (jury) that he impleaded him (self) by
+   fraud, to put the termor from his term, then shall the termor enjoy
+   his term, and the execution of judgment for the demandant shall be
+   suspended until the term be expired."--_6 Edward I._, ch. 11, (1278.)
+
+   Coke, in his commentary on this chapter, calls this court of "the
+   mayor and _bailiffs_" of London, "_the court of the hustings, the
+   greatest and highest court in London;_" and adds, "other cities have
+   the like court, and so called, as York, Lincoln, Winchester, &c. Here
+   the city of London is named; but it appeareth by that which hath been
+   said out of Fleta, that this act extends to such cities and boroughs
+   privileged,--that is, such as have such privilege to hold plea as
+   London hath."--_2 Inst._, 322.
+
+The 12th chapter of the same statute is in the following words, which
+plainly recognize the fact that "the mayor and _bailiffs_ of London" are
+judicial officers holding courts in London.
+
+   "It is provided, also, that if a man, impleaded for a tenement in the
+   same city, (London,) doth vouch a foreigner to warranty, that he
+   shall come into the chancery, and have a writ to summon his warrantor
+   at a certain day before the justices of the bench, _and another writ
+   to the mayor and bailiffs of London, that they shall surcease_
+   (suspend proceedings) _in the matter that is before them by writ_,
+   until the plea of the warrantee be determined before the justices of
+   the bench; and when the plea at the bench shall be determined, then
+   shall he that is vouched be commanded to go into the city," (that is,
+   before "the mayor and _bailiffs'_" court,) "to answer unto the chief
+   plea; and a writ shall be awarded at the suit of the demandant by the
+   justices _unto the mayor and bailiffs, that they shall proceed in the
+   plea_," &c.--_6 Edward I._, ch. 12, (1278.)
+
+Coke, in his commentary on this chapter, also speaks repeatedly of "the
+mayor and _bailiffs_" _as judges holding courts_; and also speaks of
+this chapter as applicable not only to "the citie of London, specially
+named for the cause aforesaid, but extended by equity to all other
+privileged places," (that is, privileged to have a court of "mayor and
+_bailiffs_,") "where foreign voucher is made, as to Chester, Durham,
+Salop," &c.--_2 Inst._, 325-7.
+
+BAILIE.--In Scotch law, a municipal magistrate, corresponding with the
+English _alderman_.[96]--_Burrill's Law Dictionary_.
+
+BAILIFFE.--_Baillif._ Fr. A bailiff: a ministerial officer with duties
+similar to those of a sheriff.... _The judge of a court._ A municipal
+magistrate, &c.--_Burrill's Law Dict._
+
+BAILIFF.... The word _bailiff_ is of Norman origin, and was applied in
+England, at an early period, (after the example, it is said, of the
+French,) to the chief magistrates of counties, or shires, such as the
+alderman, the reeve, or sheriff, and also of inferior jurisdictions,
+such as hundreds and wapentakes.--_Spelman, voc. Balivus; 1 Bl. Com._,
+344. _See Bailli_, _Ballivus_. The Latin _ballivus_ occurs, indeed, in
+the laws of Edward the Confessor, but Spelman thinks it was introduced
+by a later hand. _Balliva_ (bailiwick) was the word formed from
+_ballivus_, to denote the extent of territory comprised within a
+bailiff's jurisdiction; and _bailiwick_ is still retained in writs and
+other proceedings, as the name of a sheriff's county.--_1 Bl. Com._,
+344. _See Balliva._ _The office of bailiff was at first strictly, though
+not exclusively, a judicial one._ In France, the word had the sense of
+what Spelman calls _justitia tutelaris_. _Ballivus_ occurs frequently in
+the _Regiam Majestatem_, in the sense of a _judge_.--_Spelman._ In its
+sense of a _deputy_, it was formerly applied, in England, to those
+officers who, by virtue of a deputation, either from the sheriff or the
+lords of private jurisdictions, exercised within the hundred, or
+whatever might be the limits of their bailiwick, certain _judicial_ and
+ministerial functions. With the disuse of private and local
+jurisdictions, the meaning of the term became commonly restricted to
+such persons as were deputed by the sheriff to assist him in the merely
+ministerial portion of his duty; such as the summoning of juries, and
+the execution of writs.--_Brande._ ... The word _bailiff_ is also
+applied in England to the chief magistrates of certain towns and
+jurisdictions, to the keepers of castles, forests and other places, and
+to the stewards or agents of lords of manors.--_Burrill's Law Dict._
+
+"BAILIFF, (from the Lat. _ballivus_; Fr. _baillif_, i.e., _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. 3, p. 126.
+
+   "BAILIFF-_office_.--Magistrates who formerly administered justice in
+   the parliaments or courts of France, answering to the English
+   sheriffs, as mentioned by Bracton."--_Bouvier's Law Dict._
+
+   "There be several officers called _bailiffs_, whose offices and
+   employments seem quite different from each other.... The chief
+   magistrate, in divers ancient corporations, are called _bailiffs_, as
+   in Ipswich, Yarmouth, Colchester, &c. There are, likewise, officers
+   of the forest, who are termed bailiffs."--_1 Bacon's Abridgment_,
+   498-9.
+
+   "BAILIFF signifies a keeper or superintendent, and is directly
+   derived from the French word _bailli_, which appears to come from the
+   word _balivus_, and that from _bagalus_, a Latin word signifying
+   generally a governor, tutor, or superintendent.... The French word
+   _bailli_ is thus explained by Richelet, (_Dictionaire_, &c.:)
+   _Bailli._--_He who in a province has the superintendence of justice,
+   who is the ordinary judge of the nobles_, who is their head for the
+   _ban_ and _arriere ban_,[97] and who maintains the right and property
+   of others against those who attack them.... All the various officers
+   who are called by this name, though differing as to the nature of
+   their employments, seem to have some kind of superintendence
+   intrusted to them by their superior."--_Political Dictionary._
+
+"BAILIFF, _balivus_. From the French word _bayliff_, that is, _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. 3,
+ch. 9, the word _bailiff_ seems to comprise as well sheriffs, as
+bailiffs of hundreds.
+
+"_Bailies_, in Scotland, are magistrates of burghs, possessed of certain
+jurisdictions, having the same power within their territory as sheriffs
+in the county....
+
+"As England is divided into counties, so every county is divided into
+hundreds; within which, in ancient times, the people had justice
+administered to them by the several officers of every hundred, which
+were the _bailiffs_. And it appears by Bracton, (_lib. 3, tract_. 2, ch.
+34,) that _bailiffs_ of hundreds might anciently hold plea of appeal and
+approvers; but since that time the hundred courts, except certain
+franchises, are swallowed in the county courts; and now the _bailiff's_
+name and office is grown into contempt, they being generally officers to
+serve writs, &c., within their liberties; though, in other respects, the
+name is still in good esteem, for the chief magistrates in divers towns
+are called _bailiffs_; and sometimes the persons to whom the king's
+castles are committed are termed _bailiffs_, as the _bailiff_ of Dover
+Castle, &c.
+
+"Of the ordinary _bailiffs_ there are several sorts, viz., _bailiffs_ of
+liberties; sheriffs' _bailiffs_; _bailiffs_ of lords of manors;
+_bailiffs_ of husbandry, &c....
+
+"_Bailiffs_ of liberties or franchises are to be sworn to take
+distresses, truly impanel jurors, make returns by indenture between them
+and sheriffs, &c....
+
+"_Bailiffs of courts baron_ summon those courts, and execute the process
+thereof....
+
+"Besides these, there are also _bailiffs of the forest_ ..."--_Jacob's
+Law Dict. Tomlin's do._
+
+"BAILIWICK, _balliva_,--is not only taken for the county, but signifies
+generally that liberty which is exempted from the sheriff of the county,
+over which the lord of the liberty appointeth a _bailiff_, with such
+powers within his precinct as an under-sheriff exerciseth under the
+sheriff of the county; such as the _bailiff_ of Westminster."--_Jacob's
+Law Dict. Tomlin's do._
+
+"_A bailiff of a Leet, Court-baron, Manor, Balivus 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_.)
+
+"BAILIFF.--In England an officer appointed by the sheriff. Bailiffs are
+either special, and appointed, for their adroitness, to arrest persons;
+or bailiffs of hundreds, who collect fines, summon juries, attend the
+assizes, and execute writs and processes. _The sheriff in England is the
+king's bailiff...._
+
+"_The office of bailiff formerly was high and honorable in England, and
+officers under that title on the continent are still invested with
+important functions._"--_Webster._
+
+"BAILLI, (Scotland.)--An alderman; a magistrate who is second in rank in
+a royal burgh."--_Worcester._
+
+"_Baili, or Bailiff._--(Sorte d'officier de justice.) A bailiff; a sort
+of magistrate."--_Boyer's French Dict._
+
+"By some opinions, a _bailiff_, in Magna Carta, ch. 28, signifies _any
+judge_."--_Cunningham's Law Dict._
+
+"BAILIFF.--In the court of the Greek emperors there was a grand
+_bajulos_, first tutor of the emperor's children. The superintendent of
+foreign merchants seems also to have been called _bajulos_; and, as he
+was appointed by the Venetians, this title (balio) was transferred to
+the Venetian ambassador. From Greece, the official _bajulos_
+(_ballivus_, _bailli_, in France; _bailiff_, in England,) was introduced
+into the south of Europe, and denoted a superintendent; hence the eight
+_ballivi_ of the knights of St. John, which constitute its supreme
+council. In France, the royal bailiffs were commanders of the militia,
+administrators or stewards of the domains, _and judges of their
+districts_. In the course of time, only the first duty remained to the
+bailiff; hence he was _bailli d'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_, (_ballivae_,) while the subdivisions were called
+_hundreds_; but, as the courts of the hundreds have long since ceased,
+the English bailiffs are only a kind of subordinate officers of justice,
+like the French _huissiers_. These correspond very nearly to the
+officers called _constables_ in the United States. Every sheriff has
+some of them under him, for whom he is answerable. In some cities the
+highest municipal officer yet bears this name, as the high bailiff of
+Westminster. In London, the Lord Mayor is at the same time bailiff,
+(which title he bore before the present became usual,) _and administers,
+in this quality, the criminal jurisdiction of the city, in the court of
+old Bailey_, where there are, annually, eight sittings of the court, for
+the city of London and the county of Middlesex. _Usually, the recorder
+of London supplies his place as judge._ In some instances the term
+_bailiff_, in England, is applied to the chief magistrates of towns, or
+to the commanders of particular castles, as that of Dover. The term
+_baillie_, in Scotland, is applied to a judicial police-officer, having
+powers very similar to those of justices of peace in the United
+States."--_Encyclopaedia Americana._]
+
+[Footnote 93: Perhaps it may be said (and such, it has already been
+seen, is the opinion of Coke and others) that the chapter of Magna
+Carta, that "no _bailiff_ from henceforth shall put any man to his open
+law, (put him on trial,) nor to an oath (that is, an oath of
+self-exculpation) upon his (the bailiff's) own accusation or testimony,
+without credible witnesses brought in to prove the charge," _is itself_
+a "provision in regard to the king's justices sitting in criminal
+trials," and therefore implies that _they are to sit_ in such trials.
+
+But, although the word _bailiff_ includes all _judicial_, as well as
+other, officers, and would therefore in this case apply to the king's
+justices, if they were to sit in criminal trials; yet this particular
+chapter of Magna Carta evidently does not contemplate "_bailiffs_" while
+acting in their _judicial_ capacity, (for they were not allowed to sit
+in criminal trials at all,) but only in the character of _witnesses_;
+and that the meaning of the chapter is, that the simple testimony
+(simplici loquela) of "no bailiff," (of whatever kind,) unsupported by
+other and "credible witnesses," shall be sufficient to put any man on
+trial, or to his oath of self-exculpation.[98]
+
+It will be noticed that the words of this chapter are _not_, "no bailiff
+_of ours_,"--that is, _of the king_,--as in some other chapters of Magna
+Carta; but simply "no bailiff," &c. The prohibition, therefore, applies
+to all "bailiffs,"--to those chosen by the people, as well as those
+appointed by the king. And the prohibition is obviously founded upon the
+idea (a very sound one in that age certainly, and probably also in this)
+that public officers (whether appointed by king or people) have
+generally, or at least frequently, too many interests and animosities
+against accused persons, to make it safe to convict any man on their
+testimony alone.
+
+The idea of Coke and others, that the object of this chapter was simply
+to forbid _magistrates_ to put a man on trial, when there were no
+witnesses against him, but only the simple accusation or testimony of
+the magistrates themselves, before whom he was to be tried, is
+preposterous; for that would be equivalent to supposing that magistrates
+acted in the triple character of judge, jury and witnesses, _in the same
+trial_; and that, therefore, _in such cases_, they needed to be
+prohibited from condemning a man on their own accusation or testimony
+alone. But such a provision would have been unnecessary and senseless,
+for two reasons; first, because the bailiffs or magistrates had no power
+to "hold pleas of the crown," still less to try or condemn a man; that
+power resting wholly with the juries; second, because if bailiffs or
+magistrates could try and condemn a man, without a jury, the prohibition
+upon their doing so upon their own accusation or testimony alone, would
+give no additional protection to the accused, so long as these same
+bailiffs or magistrates were allowed to decide what weight should be
+given, _both to their own testimony and that of other witnesses_; for,
+if they wished to convict, they would of course decide that any
+testimony, however frivolous or irrelevant, _in addition to their own_,
+was sufficient. Certainly a magistrate could always procure witnesses
+enough to testify to something or other, which _he himself_ could decide
+to be corroborative of his own testimony. And thus the prohibition would
+be defeated in fact, though observed in form.]
+
+[Footnote 94: In this chapter I have called the justices "_presiding_
+officers," solely for the want of a better term. They are not
+"_presiding_ officers," in the sense of having any authority over the
+jury; but are only assistants to, and teachers and servants of, the
+jury. The foreman of the jury is properly the "presiding officer," so
+far as there is such an officer at all. The sheriff has no authority
+except over other persons than the jury.]
+
+[Footnote 95: In this extract, Palgrave seems to assume that the king
+himself had a right to sit as judge, in _jury_ trials, in the _county_
+courts, in both civil and criminal cases. I apprehend he had no such
+power at the _common law_, but only to sit in the trial of appeals, and
+in the trial of peers, and of civil suits in which peers were parties,
+and possibly in the courts of ancient demesne.]
+
+[Footnote 96: _Alderman_ was a title anciently given to various
+_judicial_ officers, as the Alderman of all England, Alderman of the
+King, Alderman of the County, Alderman of the City or Borough, Alderman
+of the Hundred or Wapentake. These were all _judicial_ officers. See Law
+Dictionaries.]
+
+[Footnote 97: "_Ban and arriere ban_, a proclamation, whereby all that
+hold lands of the crown, (except some privileged officers and citizens,)
+are summoned to meet at a certain place in order to serve the king in
+his wars, either personally, or by proxy."--_Boyer._]
+
+[Footnote 98: At the common law, parties, in both civil and criminal
+cases, were allowed to swear in their own behalf; and it will be so
+again, if the true trial by jury should be reestablished.]
+
+
+
+
+CHAPTER VIII.
+
+THE FREE ADMINISTRATION OF JUSTICE.
+
+
+The free administration of justice was a principle of the common law;
+and it must necessarily be a part of every system of government which is
+not designed to be an engine in the hands of the rich for the oppression
+of the poor.
+
+In saying that the free administration of justice was a principle of the
+common law, I mean only that parties were subjected to no costs for
+jurors, witnesses, writs, or other necessaries for the trial,
+_preliminary to the trial itself_. Consequently, no one could lose the
+benefit of a trial, for the want of means to defray expenses. _But after
+the trial_, the plaintiff or defendant was liable to be amerced, (by the
+jury, of course,) for having troubled the court with the prosecution or
+defence of an unjust suit.[99] But it is not likely that the losing
+party was subjected to an amercement as a matter of course, but only in
+those cases where the injustice of his cause was so evident as to make
+him inexcusable in bringing it before the courts.
+
+All the freeholders were required to attend the courts, that they might
+serve as jurors and witnesses, and do any other service that could
+legally be required of them; and their attendance was paid for by the
+state. In other words, their attendance and service at the courts were
+part of the rents which they paid the state for their lands.
+
+The freeholders, who were thus required always to attend the courts,
+were doubtless the only witnesses who were _usually_ required in _civil_
+causes. This was owing to the fact that, in those days, when the people
+at large could neither write nor read, few contracts were put in
+writing. The expedient adopted for proving contracts, was that of making
+them in the presence of witnesses, who could afterwards testify to the
+transactions. Most contracts in regard to lands were made at the courts,
+in the presence of the freeholders there assembled.[100]
+
+In the king's courts it was specially provided by Magna Carta that
+"justice and right" should not be "sold;" that is, that the king should
+take nothing from the parties for administering justice.
+
+The oath of a party to the justice of his cause was all that was
+necessary to entitle him to the benefit of the courts free of all
+expense; (except the risk of being amerced after the trial, in case the
+jury should think he deserved it.[101])
+
+_This principle of the free administration of justice connects itself
+necessarily with the trial by jury, because a jury could not rightfully
+give judgment against any man, in either a civil or criminal case, if
+they had any reason to suppose he had been unable to procure his
+witnesses._
+
+The true trial by jury would also compel the free administration of
+justice from another necessity, viz., that of preventing private
+quarrels; because, unless the government enforced a man's rights and
+redressed his wrongs, _free of expense to him_, a jury would be bound to
+protect him in taking the law into his own hands. A man has a natural
+right to enforce his own rights and redress his own wrongs. If one man
+owe another a debt, and refuse to pay it, the creditor has a natural
+right to seize sufficient property of the debtor, wherever he can find
+it, to satisfy the debt. If one man commit a trespass upon the person,
+property or character of another, the injured party has a natural right,
+either to chastise the aggressor, or to take compensation for the injury
+out of his property. But as the government is an impartial party as
+between these individuals, it is more likely to do _exact_ justice
+between them than the injured individual himself would do. The
+government, also, having more power at its command, is likely to right a
+man's wrongs more peacefully than the injured party himself could do it.
+If, therefore, the government will do the work of enforcing a man's
+rights, and redressing his wrongs, _promptly, and free of expense to
+him_, he is under a moral obligation to leave the work in the hands of
+the government; but not otherwise. When the government forbids him to
+enforce his own rights or redress his own wrongs, and deprives him of
+all means of obtaining justice, except on the condition of his employing
+the government to obtain it for him, _and of paying the government for
+doing it_, the government becomes itself the protector and accomplice of
+the wrong-doer. If the government will forbid a man to protect his own
+rights, it is bound to do it for him, _free of expense to him_. And so
+long as government refuses to do this, juries, if they knew their
+duties, would protect a man in defending his own rights.
+
+Under the prevailing system, probably one half of the community are
+virtually deprived of all protection for their rights, except what the
+criminal law affords them. Courts of justice, for all civil suits, are
+as effectually shut against them, as though it were done by bolts and
+bars. Being forbidden to maintain their own rights by force,--as, for
+instance, to compel the payment of debts,--and being unable to pay the
+expenses of civil suits, they have no alternative but submission to many
+acts of injustice, against which the government is bound either to
+protect them, _free of expense_, or allow them to protect themselves.
+
+There would be the same reason in compelling a party to pay the judge
+and jury for their services, that there is in compelling him to pay the
+witnesses, or any other _necessary_ charges.[102]
+
+This compelling parties to pay the expenses of civil suits is one of the
+many cases in which government is false to the fundamental principles on
+which free government is based. What is the object of government, but to
+protect men's rights? On what principle does a man pay his taxes to the
+government, except on that of contributing his proportion towards the
+necessary cost of protecting the rights of all? Yet, when his own rights
+are actually invaded, the government, which he contributes to support,
+instead of fulfilling its implied contract, becomes his enemy, and not
+only refuses to protect his rights, (except at his own cost,) but even
+forbids him to do it himself.
+
+All free government is founded on the theory of voluntary association;
+and on the theory that all the parties to it _voluntarily_ pay their
+taxes for its support, on the condition of receiving protection in
+return. But the idea that any _poor_ man would voluntarily pay taxes to
+build up a government, which will neither protect his rights, (except at
+a cost which he cannot meet,) nor suffer himself to protect them by such
+means as may be in his power, is absurd.
+
+Under the prevailing system, a large portion of the lawsuits determined
+in courts, are mere contests of purses rather than of rights. And a
+jury, sworn to decide causes "according to the evidence" produced, are
+quite likely, _for aught they themselves can know_, to be deciding
+merely the comparative length of the parties' purses, rather than the
+intrinsic strength of their respective rights. Jurors ought to refuse to
+decide a cause at all, except upon the assurance that all the evidence,
+necessary to a full knowledge of the cause, is produced. This assurance
+they can seldom have, unless the government itself produces all the
+witnesses the parties desire.
+
+In criminal cases, the atrocity of accusing a man of crime, and then
+condemning him unless he prove his innocence at his own charges, is so
+evident that a jury could rarely, if ever, be justified in convicting a
+man under such circumstances.
+
+But the free administration of justice is not only indispensable to the
+maintenance of right between man and man; it would also promote
+simplicity and stability in the laws. The mania for legislation would
+be, in an important degree, restrained, if the government were compelled
+to pay the expenses of all the suits that grew out of it.
+
+The free administration of justice would diminish and nearly extinguish
+another great evil,--that of malicious _civil_ suits. It is an old
+saying, that "_multi litigant in foro, non ut aliquid lucrentur, sed ut
+vexant alios_." (Many litigate in court, not that they may gain
+anything, but that they may harass others.) Many men, from motives of
+revenge and oppression, are willing to spend their own money in
+prosecuting a groundless suit, if they can thereby compel their victims,
+who are less able than themselves to bear the loss, to spend money in
+the defence. Under the prevailing system, in which the parties pay the
+expenses of their suits, nothing but money is necessary to enable any
+malicious man to commence and prosecute a groundless suit, to the
+terror, injury, and perhaps ruin, of another man. In this way, a court
+of justice, into which none but a conscientious _plaintiff_ certainly
+should ever be allowed to enter, becomes an arena into which any rich
+and revengeful oppressor may drag any man poorer than himself, and
+harass, terrify, and impoverish him, to almost any extent. It is a
+scandal and an outrage, that government should suffer itself to be made
+an instrument, in this way, for the gratification of private malice. We
+might nearly as well have no courts of justice, as to throw them open,
+as we do, for such flagitious uses. Yet the evil probably admits of no
+remedy except a free administration of justice. Under a free system,
+plaintiffs could rarely be influenced by motives of this kind; because
+they could put their victim to little or no expense, _neither pending
+the suit_, (which it is the object of the oppressor to do,) nor at its
+termination. Besides, if the ancient common law practice should be
+adopted, of amercing a party for troubling the courts with groundless
+suits, the prosecutor himself would, in the end, be likely to be amerced
+by the jury, in such a manner as to make courts of justice a very
+unprofitable place for a man to go to seek revenge.
+
+In estimating the evils of this kind, resulting from the present system,
+we are to consider that they are not, by any means, confined to the
+actual suits in which this kind of oppression is practised; but we are
+to include all those cases in which the fear of such oppression is used
+as a weapon to compel men into a surrender of their rights.
+
+[Footnote 99: _2 Sullivan Lectures_, 234-5. _3 Blackstone_, 274-5, 376.
+Sullivan says that both plaintiffs and defendants were liable to
+amercement. Blackstone speaks of plaintiffs being liable, without saying
+whether defendants were so or not. What the rule really was I do not
+know. There would seem to be some reason in allowing defendants to
+defend themselves, _at their own charges_, without exposing themselves
+to amercement in case of failure.]
+
+[Footnote 100: When any other witnesses than freeholders were required
+in a civil suit, I am not aware of the manner in which their attendance
+was procured; but it was doubtless done at the expense either of the
+state or of the witnesses themselves. And it was doubtless the same in
+criminal cases.]
+
+[Footnote 101: "All claims were established in the first stage by the
+oath of the plaintiff, except when otherwise specially directed by the
+law. The oath, by which any claim was supported, was called the
+fore-oath, or '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.]
+
+[Footnote 102: Among the necessary expenses of suits, should be reckoned
+reasonable compensation to counsel, for they are nearly or quite as
+important to the administration of justice, as are judges, jurors, or
+witnesses; and the universal practice of employing them, both on the
+part of governments and of private persons, shows that their importance
+is generally understood. As a mere matter of economy, too, it would be
+wise for the government to pay them, rather than they should not be
+employed; because they collect and arrange the testimony and the law
+beforehand, so as to be able to present the whole case to the court and
+jury intelligibly, and in a short space of time. Whereas, if they were
+not employed, the court and jury would be under the necessity either of
+spending much more time than now in the investigation of causes, or of
+despatching them in haste, and with little regard to justice. They would
+be very likely to do the latter, thus defeating the whole object of the
+people in establishing courts.
+
+To prevent the abuse of this right, it should perhaps be left
+discretionary with the jury in each case to determine whether the
+counsel should receive any pay--and, if any, how much--from the
+government.]
+
+
+
+
+CHAPTER IX.
+
+THE CRIMINAL INTENT.
+
+
+It is a maxim of the common law that there can be no crime without a
+criminal intent. And it is a perfectly clear principle, although one
+which judges have in a great measure overthrown in practice, that
+_jurors_ are to judge of the moral intent of an accused person, and hold
+him guiltless, whatever his act, unless they find him to have acted with
+a criminal intent; that is, with a design to do what he knew to be
+criminal.
+
+This principle is clear, because the question for a jury to determine
+is, whether the accused be _guilty_, or _not guilty_. _Guilt_ is a
+personal quality of the actor,--not _necessarily_ involved in the act,
+but depending also upon the intent or motive with which the act was
+done. Consequently, the jury must find that he acted from a criminal
+motive, before they can declare him _guilty_.
+
+There is no moral justice in, nor any political necessity for, punishing
+a man for any act whatever that he may have committed, if he have done
+it without any criminal intent. There can be no _moral justice_ in
+punishing for such an act, because, there having been no _criminal
+motive_, there can have been no other motive which justice can take
+cognizance of, as demanding or justifying punishment. There can be no
+_political necessity_ for punishing, to warn against similar acts in
+future, because, if one man have injured another, however
+unintentionally, he is liable, and justly liable, to a _civil_ suit for
+damages; and in this suit he will be compelled to make compensation for
+the injury, notwithstanding his innocence of any intention to injure. He
+must bear the consequences of his own act, instead of throwing them upon
+another, however innocent he may have been of any intention to do
+wrong. And the damages he will have to pay will be a sufficient warning
+to him not to do the like act again.
+
+If it be alleged that there are crimes against the public, (as treason,
+for example, or any other resistance to government,) for which private
+persons can recover no damages, and that there is a political necessity
+for punishing for such offences, even though the party acted
+conscientiously, the answer is,--the government must bear with all
+resistance that is not so clearly wrong as to give evidence of criminal
+intent. In other words, the government, in all its acts, must keep
+itself so _clearly_ within the limits of justice, as that twelve men,
+taken at random, will all agree that it is in the right, or it must
+incur the risk of resistance, without any power to punish it. This is
+the mode in which the trial by jury operates to prevent the government
+from falling into the hands of a party, or a faction, and to keep it
+within such limits as _all_, or substantially _all_, the people are
+agreed that it may occupy.
+
+This necessity for a criminal intent, to justify conviction, is proved
+by the issue which the jury are to try, and the verdict they are to
+pronounce. The "issue" they are to try is, "_guilty_" or "_not guilty_."
+And those are the terms they are required to use in rendering their
+verdicts. But it is a plain falsehood to say that a man is "_guilty_,"
+unless he have done an act which he knew to be criminal.
+
+This necessity for a criminal intent--in other words, for _guilt_--as a
+preliminary to conviction, makes it impossible that a man can be
+rightfully convicted for an act that is intrinsically innocent, though
+forbidden by the government; because guilt is an intrinsic quality of
+actions and motives, and not one that can be imparted to them by
+arbitrary legislation. All the efforts of the government, therefore, to
+"_make offences by statute_," out of acts that are not criminal by
+nature, must necessarily be ineffectual, unless a jury will declare a
+man "_guilty_" for an act that is really innocent.
+
+The corruption of judges, in their attempts to uphold the arbitrary
+authority of the government, by procuring the conviction of individuals
+for acts innocent in themselves, and forbidden only by some tyrannical
+statute, and the commission of which therefore indicates no criminal
+intent, is very apparent.
+
+To accomplish this object, they have in modern times held it to be
+unnecessary that indictments should charge, as by the common law they
+were required to do, that an act was done "_wickedly_," "_feloniously_,"
+"_with malice aforethought_," or in any other manner that implied a
+criminal intent, without which there can be no criminality; but that it
+is sufficient to charge simply that it was done "_contrary to the form
+of the statute in such case made and provided_." This form of indictment
+proceeds plainly upon the assumption that the government is absolute,
+and that it has authority to prohibit any act it pleases, however
+innocent in its nature the act may be. Judges have been driven to the
+alternative of either sanctioning this new form of indictment, (which
+they never had any constitutional right to sanction,) or of seeing the
+authority of many of the statutes of the government fall to the ground;
+because the acts forbidden by the statutes were so plainly innocent in
+their nature, that even the government itself had not the face to allege
+that the commission of them implied or indicated any criminal intent.
+
+To get rid of the necessity of showing a criminal intent, and thereby
+further to enslave the people, by reducing them to the necessity of a
+blind, unreasoning submission to the arbitrary will of the government,
+and of a surrender of all right, on their own part, to judge what are
+their constitutional and natural rights and liberties, courts have
+invented another idea, which they have incorporated among the pretended
+_maxims_, upon which they act in criminal trials, viz., that "_ignorance
+of the law excuses no one_." As if it were in the nature of things
+possible that there could be an excuse more absolute and complete. What
+else than ignorance of the law is it that excuses persons under the
+years of discretion, and men of imbecile minds? What else than ignorance
+of the law is it that excuses judges themselves for all their erroneous
+decisions? Nothing. They are every day committing errors, which would be
+crimes, but for their ignorance of the law. And yet these same judges,
+who claim to be _learned_ in the law, and who yet could not hold their
+offices for a day, but for the allowance which the law makes for their
+ignorance, are continually asserting it to be a "maxim" that "ignorance
+of the law excuses no one;" (by which, of course, they really mean that
+it excuses no one but themselves; and especially that it excuses no
+_unlearned_ man, who comes before them charged with crime.)
+
+This preposterous doctrine, that "ignorance of the law excuses no one,"
+is asserted by courts because it is an indispensable one to the
+maintenance of absolute power in the government. It is indispensable for
+this purpose, because, if it be once admitted that the people _have_ any
+rights and liberties which the government cannot lawfully take from
+them, then the question arises in regard to every statute of the
+government, whether it be law, or not; that is, whether it infringe, or
+not, the rights and liberties of the people. Of this question every man
+must of course judge according to the light in his own mind. And no man
+can be convicted unless the jury find, not only that the statute is
+_law_,--that it does _not_ infringe the rights and liberties of the
+people,--but also that it was so clearly law, so clearly consistent with
+the rights and liberties of the people, as that the individual himself,
+who transgressed it, _knew it to be so_, and therefore had no moral
+excuse for transgressing it. Governments see that if ignorance of the
+law were allowed to excuse a man for any act whatever, it must excuse
+him for transgressing all statutes whatsoever, which he himself thinks
+inconsistent with his rights and liberties. But such a doctrine would of
+course be inconsistent with the maintenance of arbitrary power by the
+government; and hence governments will not allow the plea, although they
+will not confess their true reasons for disallowing it.
+
+The only reasons, (if they deserve the name of reasons), that I ever
+knew given for the doctrine that ignorance of the law excuses no one,
+are these:
+
+   1. "The reason for the maxim is that of necessity. It prevails, 'not
+   that all men know the law, but because it is an excuse which every
+   man will make, and no man can tell how to confute him.'--_Selden_,
+   (as quoted in the 2d edition of _Starkie on Slander_, Prelim. Disc.,
+   p. 140, note.)"--_Law Magazine_, (_London_,) vol. 27, p. 97.
+
+This reason impliedly admits that ignorance of the law is,
+_intrinsically_, an ample and sufficient excuse for a crime; and that
+the excuse ought to be allowed, if the fact of ignorance could but be
+ascertained. But it asserts that this fact is incapable of being
+ascertained, and that therefore there is a necessity for punishing the
+ignorant and the knowing--that is, the innocent and the guilty--without
+discrimination.
+
+This reason is worthy of the doctrine it is used to uphold; as if a plea
+of ignorance, any more than any other plea, must necessarily be believed
+simply because it is urged; and as if it were not a common and every-day
+practice of courts and juries, in both civil and criminal cases, to
+determine the mental capacity of individuals; as, for example, to
+determine whether they are of sufficient mental capacity to make
+reasonable contracts; whether they are lunatic; whether they are
+_compotes mentis_, "of sound mind and memory," &c. &c. And there is
+obviously no more difficulty in a jury's determining whether an accused
+person knew the law in a criminal case, than there is in determining any
+of these other questions that are continually determined in regard to a
+man's mental capacity. For the question to be settled by the jury is not
+whether the accused person knew the particular _penalty_ attached to his
+act, (for at common law no one knew what penalty a _jury_ would attach
+to an offence,) but whether he knew that his act was _intrinsically
+criminal_. If it were _intrinsically criminal_, it was criminal at
+common law. If it was not intrinsically criminal, it was not criminal at
+common law. (At least, such was the general principle of the common law.
+There may have been exceptions in practice, owing to the fact that the
+opinions of men, as to what was intrinsically criminal, may not have
+been in all cases correct.)
+
+A jury, then, in judging whether an accused person knew his act to be
+illegal, were bound first to use their own judgments, as to whether the
+act were _intrinsically_ criminal. If their own judgments told them the
+act was _intrinsically_ and _clearly_ criminal, they would naturally and
+reasonably infer that the accused also understood that it was
+intrinsically criminal, (and consequently illegal,) unless it should
+appear that he was either below themselves in the scale of intellect, or
+had had less opportunities of knowing what acts were criminal. In
+short, they would judge, from any and every means they might have of
+judging; and if they had any reasonable doubt that he knew his act to be
+criminal in itself, they would be bound to acquit him.
+
+The second reason that has been offered for the doctrine that ignorance
+of the law excuses no one, is this:
+
+   "Ignorance of the municipal law of the kingdom, or of the penalty
+   thereby inflicted on offenders, doth not excuse any that is of the
+   age of discretion and compos mentis, from the penalty of the breach
+   of it; because every person, of the age of discretion and compos
+   mentis, _is bound to know the law_, and presumed to do so.
+   _Ignorantia eorum, 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 reaesserting the doctrine, without giving
+any reason at all.
+
+And yet these reasons, which are really no reasons at all, are the only
+ones, so far as I know, that have ever been offered for this absurd and
+brutal doctrine.
+
+The idea suggested, that "the age of discretion" determines the guilt of
+a person,--that there is a particular age, prior to which _all_ persons
+alike should be held incapable of knowing _any_ crime, and subsequent to
+which _all_ persons alike should be held capable of knowing _all_
+crimes,--is another of this most ridiculous nest of ideas. All mankind
+acquire their knowledge of crimes, as they do of other things,
+_gradually_. Some they learn at an early age; others not till a later
+one. One individual acquires a knowledge of crimes, as he does of
+arithmetic, at an earlier age than others do. And to apply the same
+presumption to all, on the ground of age alone, is not only gross
+injustice, but gross folly. A universal presumption might, with nearly
+or quite as much reason, be founded upon weight, or height, as upon
+age.[103]
+
+This doctrine, that "ignorance of the law excuses no one," is constantly
+repeated in the form that "every one is bound to know the law." The
+doctrine is true in civil matters, especially in contracts, so far as
+this: that no man, who has the _ordinary_ capacity to make reasonable
+contracts, can escape the consequences of his own agreement, on the
+ground that he did not know the law applicable to it. When a man makes a
+contract, he gives the other party rights; and he must of necessity
+judge for himself, and take his own risk, as to what those rights
+are,--otherwise the contract would not be binding, and men could not
+make contracts that would convey rights to each other. Besides, the
+capacity to make reasonable contracts, _implies and includes_ a
+capacity to form a reasonable judgment as to the law applicable to them.
+But in _criminal_ matters, where the question is one of punishment, or
+not; where no second party has acquired any right to have the crime
+punished, unless it were committed with criminal intent, (but only to
+have it compensated for by damages in a civil suit;) and when the
+criminal intent is the only moral justification for the punishment, the
+principle does not apply, and a man is bound to know the law _only as
+well as he reasonably may_. The criminal law requires neither
+impossibilities nor extraordinaries of any one. It requires only
+thoughtfulness and a good conscience. It requires only that a man fairly
+and properly use the judgment he possesses, and the means he has of
+learning his duty. It requires of him only the same care to know his
+duty in regard to the law, that he is morally bound to use in other
+matters of equal importance. _And this care it does require of him._ Any
+ignorance of the law, therefore, that is unnecessary, or that arises
+from indifference or disregard of one's duty, is no excuse. An accused
+person, therefore, may be rightfully held responsible for such a
+knowledge of the law as is common to men in general, having no greater
+natural capacities than himself, and no greater opportunities for
+learning the law. And he can rightfully be held to no greater knowledge
+of the law than this. To hold him responsible for a greater knowledge of
+the law than is common to mankind, when other things are equal, would be
+gross injustice and cruelty. The mass of mankind can give but little of
+their attention to acquiring a knowledge of the law. Their other duties
+in life forbid it. Of course, they cannot investigate abstruse or
+difficult questions. All that can rightfully be required of each of
+them, then, is that he exercise such a candid and conscientious judgment
+as it is common for mankind generally to exercise in such matters. If he
+have done this, it would be monstrous to punish him criminally for his
+errors; errors not of conscience, but only of judgment. It would also be
+contrary to the first principles of a free government (that is, a
+government formed by voluntary association) to punish men in such cases,
+because it would be absurd to suppose that any man would voluntarily
+assist to establish or support a government that would punish himself
+for acts which he himself did not know to be crimes. But a man may
+reasonably unite with his fellow-men to maintain a government to punish
+those acts which he himself considers criminal, and may reasonably
+acquiesce in his own liability to be punished for such acts. As those
+are the only grounds on which any one can be supposed to render any
+voluntary support to a government, it follows that a government formed
+by voluntary association, and of course having no powers except such as
+_all_ the associates have consented that it may have, can have no power
+to punish a man for acts which he did not himself know to be criminal.
+
+The safety of society, which is the only object of the criminal law,
+requires only that those acts _which are understood by mankind at large
+to be intrinsically criminal_, should be punished as crimes. The
+remaining few (if there are any) may safely be left to go unpunished.
+Nor does the safety of society require that any individuals, other than
+those who have sufficient mental capacity to understand that their acts
+are criminal, should be criminally punished. All others may safely be
+left to their liability, under the _civil_ law, to compensate for their
+unintentional wrongs.
+
+The only real object of this absurd and atrocious doctrine, that
+"ignorance of the law (that is, of crime) excuses no one," and that
+"every one is bound to know the _criminal_ law," (that is, bound to know
+what is a crime,) is to maintain an entirely arbitrary authority on the
+part of the government, and to deny to the people all right to judge for
+themselves what their own rights and liberties are. In other words, the
+whole object of the doctrine is to deny to the people themselves all
+right to judge what statutes and other acts of the government are
+consistent or inconsistent with their own rights and liberties; and thus
+to reduce the people to the condition of mere slaves to a despotic
+power, such as the people themselves would never have voluntarily
+established, and the justice of whose laws the people themselves cannot
+understand.
+
+Under the true trial by jury all tyranny of this kind would be
+abolished. A jury would not only judge what acts were really criminal,
+but they would judge of the mental capacity of an accused person, and of
+his opportunities for understanding the true character of his conduct.
+In short, they would judge of his moral intent from all the
+circumstances of the case, and acquit him, if they had any reasonable
+doubt that he knew that he was committing a crime.[104]
+
+[Footnote 103: This presumption, founded upon age alone, is as absurd in
+civil matters as in criminal. What can be more entirely ludicrous than
+the idea that all men (not manifestly imbecile) become mentally
+competent to make all contracts whatsoever on the day they become
+twenty-one years of age?--and that, previous to that day, no man becomes
+competent to make any contract whatever, except for the present supply
+of the most obvious wants of nature? In reason, a man's _legal_
+competency to make _binding_ contracts, in any and every case whatever,
+depends wholly upon his _mental_ capacity to make _reasonable_ contracts
+in each particular case. It of course requires more capacity to make a
+reasonable contract in some cases than in others. It requires, for
+example, more capacity to make a reasonable contract in the purchase of
+a large estate, than in the purchase of a pair of shoes. But the mental
+capacity to make a reasonable contract, in any particular case, is, in
+reason, the only legal criterion of the legal competency to make a
+binding contract in that case. The age, whether more or less than
+twenty-one years, is of no legal consequence whatever, except that it is
+entitled to some consideration as _evidence of capacity_.
+
+It may be mentioned, in this connection, that the rules that prevail,
+that every man is entitled to freedom from parental authority at
+twenty-one years of age, and no one before that age, are of the same
+class of absurdities with those that have been mentioned. The only
+ground on which a parent is ever entitled to exercise authority over his
+child, is that the child is incapable of taking reasonable care of
+himself. The child would be entitled to his freedom from his birth, if
+he were at that time capable of taking reasonable care of himself. Some
+become capable of taking care of themselves at an earlier age than
+others. And whenever any one becomes capable of taking reasonable care
+of himself, and not until then, he is entitled to his freedom, be his
+age more or less.
+
+These principles would prevail under the true trial by jury, the jury
+being the judges of the capacity of every individual whose capacity
+should be called in question.]
+
+[Footnote 104: In contrast to the doctrines of the text, it may be
+proper to present more distinctly the doctrines that are maintained by
+judges, and that prevail in courts of justice.
+
+Of course, no judge, either of the present day, or perhaps within the
+last five hundred years, has admitted the right of a jury to judge of
+the _justice_ of a law, or to hold any law invalid for its injustice.
+Every judge asserts the power of the government to punish for acts that
+are intrinsically innocent, and which therefore involve or evince no
+criminal intent. To accommodate the administration of law to this
+principle, all judges, so far as I am aware, hold it to be unnecessary
+that an indictment should charge, or that a jury should find, that an
+act was done with a criminal intent, except in those cases where the act
+is _malum in se_,--criminal in itself. In all other cases, so far as I
+am aware, they hold it sufficient that the indictment charge, and
+consequently that the jury find, simply that the act was done "contrary
+to the form of the statute in such case made and provided;" in other
+words, contrary to the orders of the government.
+
+All these doctrines prevail universally among judges, and are, I think,
+uniformly practised upon in courts of justice; and they plainly involve
+the most absolute despotism on the part of the government.
+
+But there is still another doctrine that extensively, and perhaps most
+generally, prevails in practice, although judges are not agreed in
+regard to its soundness. It is this: that it is not even necessary that
+the jury should see or know, _for themselves_, what the law _is_ that is
+charged to have been violated; nor to see or know, _for themselves_,
+that the act charged was in violation of any law whatever;--but that it
+is sufficient that they be simply _told by the judge_ that any act
+whatever, charged in an indictment, is in violation of law, and that
+they are then bound blindly to receive the declaration as true, and
+convict a man accordingly, if they find that he has done the act
+charged.
+
+This doctrine is adopted by many among the most eminent judges, and the
+reasons for it are thus given by Lord Mansfield:
+
+   "They (the jury) do not know, and are not presumed to know, the law.
+   They are not sworn to decide the law;[105] they are not required to
+   do it.... The jury ought not to assume the jurisdiction of law. They
+   do not know, and are not presumed to know, anything of the matter.
+   They do not understand the language in which it is conceived, or the
+   meaning of the terms. They have no rule to go by but their passions
+   and wishes."--_3 Term Rep._, 428, note.
+
+What is this but saying that the people, who are supposed to be
+represented in juries, and who institute and support the government, (of
+course for the protection of their own rights and liberties, _as they
+understand them_, for plainly no other motive can be attributed to
+them,) are really the slaves of a despotic power, whose arbitrary
+commands even they are not supposed competent to understand, but for the
+transgression of which they are nevertheless to be punished as
+criminals?
+
+This is plainly the sum of the doctrine, because the jury are the peers
+(equals) of the accused, and are therefore supposed to know the law as
+well as he does, and as well as it is known by the people at large. If
+_they_ (the jury) are not presumed to know the law, neither the accused
+nor the people at large can be presumed to know it. Hence, it follows
+that one principle of the _true_ trial by jury is, that no accused
+person shall be held responsible for any other or greater knowledge of
+the law than is common to his political equals, who will generally be
+men of nearly similar condition in life. But the doctrine of Mansfield
+is, that the body of the people, from whom jurors are taken, are
+responsible to a law, _which it is agreed they cannot understand_. What
+is this but despotism?--and not merely despotism, but insult and
+oppression of the intensest kind?
+
+This doctrine of Mansfield is the doctrine of all who deny the right of
+juries to judge of the law, although all may not choose to express it in
+so blunt and unambiguous terms. But the doctrine evidently admits of no
+other interpretation or defence.]
+
+[Footnote 105: This declaration of Mansfield, that juries in England
+"are not sworn to decide the law" in criminal cases, is a plain
+falsehood. They are sworn to try the whole case at issue between the
+king and the prisoner, and that includes the law as well as the fact.
+See _juror's oath_, page 86.]
+
+
+
+
+CHAPTER X.
+
+MORAL CONSIDERATIONS FOR JURORS.
+
+
+The trial by jury must, if possible, be construed to be such that a man
+can rightfully sit in a jury, and unite with his fellows in giving
+judgment. But no man can rightfully do this, unless he hold in his own
+hand alone a veto upon any judgment or sentence whatever to be rendered
+by the jury against a defendant, which veto he must be permitted to use
+according to his own discretion and conscience, and not bound to use
+according to the dictation of either legislatures or judges.
+
+The prevalent idea, that a juror may, at the mere dictation of a
+legislature or a judge, and without the concurrence of his own
+conscience or understanding, declare a man "_guilty_," and thus in
+effect license the government to punish him; and that the legislature or
+the judge, and not himself, has in that case all the moral
+responsibility for the correctness of the principles on which the
+judgment was rendered, is one of the many gross impostures by which it
+could hardly have been supposed that any sane man could ever have been
+deluded, but which governments have nevertheless succeeded in inducing
+the people at large to receive and act upon.
+
+As a moral proposition, it is perfectly self-evident that, unless juries
+have all the legal rights that have been claimed for them in the
+preceding chapters,--that is, the rights of judging what the law is,
+whether the law be a just one, what evidence is admissible, what weight
+the evidence is entitled to, whether an act were done with a criminal
+intent, and the right also to _limit_ the sentence, free of all
+dictation from any quarter,--they have no _moral_ right to sit in the
+trial at all, and cannot do so without making themselves accomplices in
+any injustice that they may have reason to believe may result from
+their verdict. It is absurd to say that they have no moral
+responsibility for the use that may be made of their verdict by the
+government, when they have reason to suppose it will be used for
+purposes of injustice.
+
+It is, for instance, manifestly absurd to say that jurors have no moral
+responsibility for the enforcement of an unjust law, when they consent
+to render a verdict of _guilty_ for the transgression of it; which
+verdict they know, or have good reason to believe, will be used by the
+government as a justification for inflicting a penalty.
+
+It is absurd, also, to say that jurors have no moral responsibility for
+a punishment inflicted upon a man _against law_, when, at the dictation
+of a judge as to what the law is, they have consented to render a
+verdict against their own opinions of the law.
+
+It is absurd, too, to say that jurors have no moral responsibility for
+the conviction and punishment of an innocent man, when they consent to
+render a verdict against him on the strength of evidence, or laws of
+evidence, dictated to them by the court, if any evidence or laws of
+evidence have been excluded, which _they_ (the jurors) think ought to
+have been admitted in his defence.
+
+It is absurd to say that jurors have no moral responsibility for
+rendering a verdict of "_guilty_" against a man, for an act which he did
+not know to be a crime, and in the commission of which, therefore, he
+could have had no criminal intent, in obedience to the instructions of
+courts that "ignorance of the law (that is, of crime) excuses no one."
+
+It is absurd, also, to say that jurors have no moral responsibility for
+any cruel or unreasonable _sentence_ that may be inflicted even upon a
+_guilty_ man, when they consent to render a verdict which they have
+reason to believe will be used by the government as a justification for
+the infliction of such sentence.
+
+The consequence is, that jurors must have the whole case in their hands,
+and judge of law, evidence, and sentence, or they incur the moral
+responsibility of accomplices in any injustice which they have reason to
+believe will be done by the government on the authority of their
+verdict.
+
+The same principles apply to civil cases as to criminal. If a jury
+consent, at the dictation of the court, as to either law or evidence, to
+render a verdict, on the strength of which they have reason to believe
+that a man's property will be taken from him and given to another,
+against their own notions of justice, they make themselves morally
+responsible for the wrong.
+
+Every man, therefore, ought to refuse to sit in a jury, and to take the
+oath of a juror, unless the form of the oath be such as to allow him to
+use his own judgment, on every part of the case, free of all dictation
+whatsoever, and to hold in his own hand a veto upon any verdict that can
+be rendered against a defendant, and any sentence that can be inflicted
+upon him, even if he be guilty.
+
+Of course, no man can rightfully take an oath as juror, to try a case
+"according to law," (if by law be meant anything other than his own
+ideas of justice,) nor "according to the law and the evidence, _as they
+shall be given him_." Nor can he rightfully take an oath even to try a
+case "_according to the evidence_," because in all cases he may have
+good reason to believe that a party has been unable to produce all the
+evidence legitimately entitled to be received. The only oath which it
+would seem that a man can rightfully take as juror, in either a civil or
+criminal case, is, that he "will try the case _according to his
+conscience_." Of course, the form may admit of variation, but this
+should be the substance. Such, we have seen, were the ancient common law
+oaths.
+
+
+
+
+CHAPTER XI.
+
+AUTHORITY OF MAGNA CARTA.
+
+
+Probably no political compact between king and people was ever entered
+into in a manner to settle more authoritatively the fundamental law of a
+nation, than was Magna Carta. Probably no people were ever more united
+and resolute in demanding from their king a definite and unambiguous
+acknowledgment of their rights and liberties, than were the English at
+that time. Probably no king was ever more completely stripped of all
+power to maintain his throne, and at the same time resist the demands of
+his people, than was John on the 15th day of June, 1215. Probably no
+king ever consented, more deliberately or explicitly, to hold his throne
+subject to specific and enumerated limitations upon his power, than did
+John when he put his seal to the Great Charter of the Liberties of
+England. And if any political compact between king and people was ever
+valid to settle the liberties of the people, or to limit the power of
+the crown, that compact is now to be found in Magna Carta. If,
+therefore, the constitutional authority of Magna Carta had rested solely
+upon the compact of John with his people, that authority would have been
+entitled to stand forever as the supreme law of the land, unless revoked
+by the will of the people themselves.
+
+But the authority of Magna Carta does not rest alone upon the compact
+with _John_. When, in the next year, (1216,) his son, Henry III., came
+to the throne, the charter was ratified by him, and again in 1217, and
+again in 1225, in substantially the same form, and especially without
+allowing any new powers, legislative, judicial, or executive, to the
+king or his judges, and without detracting in the least from the powers
+of the jury. And from the latter date to this, the charter has remained
+unchanged.
+
+In the course of two hundred years the charter was confirmed by Henry
+and his successors more than thirty times. And although they were guilty
+of numerous and almost continual breaches of it, and were constantly
+seeking to evade it, yet such were the spirit, vigilance and courage of
+the nation, that the kings held their thrones only on the condition of
+their renewed and solemn promises of observance. And it was not until
+1429, (as will be more fully shown hereafter,) when a truce between
+themselves, and a formal combination against the mass of the people, had
+been entered into, by the king, the nobility, and the "_forty shilling
+freeholders_," (a class whom Mackintosh designates as "_a few
+freeholders then accounted wealthy_,"[106]) by the exclusion of all
+others than such freeholders from all voice in the election of knights
+to represent the counties in the House of Commons, that a repetition of
+these confirmations of Magna Carta ceased to be demanded and
+obtained.[107]
+
+The terms and the formalities of some of these "confirmations" make them
+worthy of insertion at length.
+
+Hume thus describes one which took place in the 38th year of Henry III.
+(1253):
+
+   "But as they (the barons) had experienced his (the king's) frequent
+   breach of promise, they required that he should ratify the Great
+   Charter in a manner still more authentic and solemn than any which he
+   had hitherto employed. All the prelates and abbots were assembled.
+   They held burning tapers in their hands. The Great Charter was read
+   before them. They denounced the sentence of excommunication against
+   every one who should thenceforth violate that fundamental law. They
+   threw their tapers on the ground, and exclaimed, _May the soul of
+   every one who incurs this sentence so stink and corrupt in hell!_ The
+   king bore a part in this ceremony, and subjoined, 'So help me God! I
+   will keep all these articles inviolate, as I am a man, as I am a
+   Christian, as I am a knight, and as I am a king crowned and
+   anointed.'"--_Hume_, ch. 12. See also _Blackstone's Introd. to the
+   Charters. Black. Law Tracts_, Oxford ed., p. 332. _Mackintosh's Hist.
+   of Eng._, ch. 3. _Lardner's Cab. Cyc._, vol. 45, p. 233-4.
+
+The following is the form of "the sentence of excommunication" referred
+to by Hume:
+
+   "_The Sentence of Curse, Given by the Bishops, against the Breakers
+   of the Charters._
+
+   "The year of our Lord a thousand two hundred and fifty-three, the
+   third day of May, in the great Hall of the King at Westminster, _in
+   the presence, and by the assent, of the Lord Henry, by the Grace of
+   God King of England_, and the Lords Richard, Earl of Cornwall, his
+   brother, Roger (Bigot) Earl of Norfolk and Suffolk, marshal of
+   England, Humphrey, Earl of Hereford, Henry, Earl of Oxford, John,
+   Earl of Warwick, and other estates of the Realm of England: We,
+   Boniface, by the mercy of God Archbishop of Canterbury, Primate of
+   all England, F. of London, H. of Ely, S. of Worcester, E. of Lincoln,
+   W. of Norwich, P. of Hereford, W. of Salisbury, W. of Durham, R. of
+   Exeter, M. of Carlisle, W. of Bath, E. of Rochester, T. of Saint
+   David's, Bishops, apparelled in Pontificals, with tapers burning,
+   against the breakers of the Church's Liberties, and of the Liberties
+   or free customs of the Realm of England, and especially of those
+   which are contained in the Charter of the Common Liberties of the
+   Realm, and the Charter of the Forest, have solemnly denounced the
+   sentence of Excommunication in this form. By the authority of
+   Almighty God, the Father, the Son, and the Holy Ghost, and of the
+   glorious Mother of God, and perpetual Virgin Mary, of the blessed
+   Apostles Peter and Paul, and of all apostles, of the blessed Thomas,
+   Archbishop and Martyr, and of all martyrs, of blessed Edward of
+   England, and of all Confessors and virgins, and of all the saints of
+   heaven: We excommunicate, accurse, and from the thresholds
+   (liminibus) of our Holy Mother the Church, We sequester, all those
+   that hereafter willingly and maliciously deprive or spoil the Church
+   of her right: And all those that by any craft or wiliness do violate,
+   break, diminish, or change the Church's Liberties, or the ancient
+   approved customs of the Realm, and especially the Liberties and free
+   Customs contained in the Charters of the Common Liberties, and of the
+   Forest, conceded by our Lord the King, to Archbishops, Bishops, and
+   other Prelates of England; and likewise to the Earls, Barons,
+   Knights, and other Freeholders of the Realm: And all that secretly,
+   or openly, by deed, word, or counsel, _do make statutes, or observe
+   them being made_, and that bring in Customs, or keep them when they
+   be brought in, against the said Liberties, or any of them, the
+   Writers and Counsellors of said statutes, and the Executors of them,
+   and all those that shall presume to judge according to them. All and
+   every which persons before mentioned, that wittingly shall commit
+   anything of the premises, let them well know that they incur the
+   aforesaid sentence, _ipso facto_, (i.e., upon the deed being done.)
+   And those that ignorantly do so, and be admonished, except they
+   reform themselves within fifteen days after the time of the
+   admonition, and make full satisfaction for that they have done, at
+   the will of the ordinary, shall be from that time forth included in
+   the same sentence. And with the same sentence we burden all those
+   that presume to perturb the peace of our sovereign Lord the King, and
+   of the Realm. To the perpetual memory of which thing, We, the
+   aforesaid Prelates, have put our seals to these presents."--_Statutes
+   of the Realm_, vol. 1, p. 6. _Ruffhead's Statutes_, vol. 1, p. 20.
+
+One of the Confirmations of the Charters, by Edward I., was by statute,
+in the 25th year of his reign, (1297,) in the following terms. The
+statute is usually entitled "_Confirmatio Cartarum_," (Confirmation of
+the Charters.)
+
+   _Ch. 1._ "Edward, by the Grace of God, King of England, Lord of
+   Ireland, and Duke of Guyan, To all those that these presents shall
+   hear or see, Greeting. Know ye, that We, to the honor of God, and of
+   Holy Church, and to the profit of our Realm, have granted, for us and
+   our heirs, that the Charter of Liberties, and the Charter of the
+   Forest, which were made by common assent of all the Realm, in the
+   time of King Henry our Father, shall be kept in every point without
+   breach. And we will that the same Charters shall be sent under our
+   seal, as well to our justices of the Forest, as to others, and to all
+   Sheriffs of shires, and to all our other officers, and to all our
+   cities throughout the Realm, together with our writs, in the which it
+   shall be contained, that they cause the aforesaid Charters to be
+   published, and to declare to the people that We have confirmed them
+   at all points; and to our Justices, Sheriffs, Mayors, and other
+   ministers, which under us have the Laws of our Land to guide, that
+   they allow the same Charters, in all their points, in pleas before
+   them, and in judgment; that is, to wit, the Great Charter as the
+   Common Law, and the Charter of the Forest for the wealth of our
+   Realm.
+
+   _Ch. 2._ "And we will that if any judgment be given from henceforth
+   contrary to the points of the charters aforesaid by the justices, or
+   by any others our ministers that hold plea before them, against the
+   points of the Charters, it shall be undone and holden for naught.
+
+   _Ch. 3._ "And we will, that the same Charters shall be sent, under
+   our seal, to Cathedral Churches throughout our Realm, there to
+   remain, and shall be read before the people two times in the year.
+
+   _Ch. 4._ "And that all Archbishops and Bishops shall pronounce the
+   sentence of excommunication against all those that by word, deed, or
+   counsel, do contrary to the foresaid charters, or that in any point
+   break or undo them. And that the said Curses be twice a year
+   denounced and published by the prelates aforesaid. And if the same
+   prelates, or any of them, be remiss in the denunciation of the said
+   sentences, the Archbishops of Canterbury and York, for the time
+   being, shall compel and distrain them to make the denunciation in the
+   form aforesaid."--_St. 25 Edward I._, (1297.) _Statutes of the
+   Realm_, vol. 1, p. 123.
+
+It is unnecessary to repeat the terms of the various confirmations, most
+of which were less formal than those that have been given, though of
+course equally authoritative. Most of them are brief, and in the form of
+a simple statute, or promise, to the effect that "The Great Charter, and
+the Charter of the Forest, shall be firmly kept and maintained in all
+points." They are to be found printed with the other statutes of the
+realm. One of them, after having "again granted, renewed and confirmed"
+the charters, requires as follows:
+
+   "That the Charters be delivered to every sheriff of England under the
+   king's seal, to be read four times in the year before the people in
+   the full county," (that is, at the county court,) "that is, to wit,
+   the next county (court) after the feast of Saint Michael, and the
+   next county (court) after Christmas, and at the next county (court)
+   after Easter, and at the next county (court) after the feast of Saint
+   John."--_28 Edward I._, ch. 1, (1300.)
+
+   Lingard says, "The Charter was ratified four times by Henry III.,
+   twice by Edward I., fifteen times by Edward III., seven times by
+   Richard II., six times by Henry IV., and once by Henry V.;" making
+   thirty-five times in all.--_3 Lingard_, 50, note, Philad. ed.
+
+Coke says Magna Carta was confirmed thirty-two times.--Preface_ to_ 2
+_Inst_., p. 6.
+
+   Lingard calls these "thirty-five successive ratifications" of the
+   charter, "a sufficient proof how much its provisions were abhorred
+   by the sovereign, and how highly they were prized by the nation."--_3
+   Lingard_, 50.
+
+   Mackintosh says, "For almost five centuries (that is, until 1688) it
+   (Magna Carta) was appealed to as the decisive authority on behalf of
+   the people, though commonly so far only as the necessities of each
+   case demanded."--_Mackintosh's Hist. of Eng._ ch. 3. _45 Lardner's
+   Cab. Cyc._, 221.
+
+Coke, who has labored so hard to overthrow the most vital principles of
+Magna Carta, and who, therefore, ought to be considered good authority
+when he speaks in its favor,[108] says:
+
+   "It is called Magna Carta, not that it is great in quantity, for
+   there be many voluminous charters commonly passed, specially in these
+   later times, longer than this is; nor comparatively in respect that
+   it is greater than _Charta de Foresta_, but in respect of the great
+   importance and weightiness of the matter, as hereafter shall appear;
+   and likewise for the same cause _Charta de Foresta_; and both of them
+   are called _Magnae Chartae 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.[109]
+
+To give all the evidence of the authority of Magna Carta, it would be
+necessary to give the constitutional history of England since the year
+1215. This history would show that Magna Carta, although continually
+violated and evaded, was still acknowledged as law by the government,
+and was held up by the people as the great standard and proof of their
+rights and liberties. It would show also that the judicial tribunals,
+_whenever it suited their purposes to do so_, were in the habit of
+referring to Magna Carta as authority, in the same manner, and with the
+same real or pretended veneration, with which American courts now refer
+to the constitution of the United States, or the constitutions of the
+states. And, what is equally to the point, it would show that these same
+tribunals, the mere tools of kings and parliaments, would resort to the
+same artifices of assumption, _precedent_, construction, and false
+interpretation, to evade the requirements of Magna Carta, and to
+emasculate it of all its power for the preservation of liberty, that are
+resorted to by American courts to accomplish the same work on our
+American constitutions.
+
+I take it for granted, therefore, that if the authority of Magna Carta
+had rested simply upon its character as a _compact_ between the king and
+the people, it would have been forever binding upon the king, (that is,
+upon the government, for the king was the government,) in his
+legislative, judicial, and executive character; and that there was no
+_constitutional_ possibility of his escaping from its restraints, unless
+the people themselves should freely discharge him from them.
+
+But the authority of Magna Carta does not rest, either wholly or mainly,
+upon its character as a compact. For centuries before the charter was
+granted, its main principles constituted "the Law of the Land,"--the
+fundamental and constitutional law of the realm, which the kings were
+sworn to maintain. And the principal benefit of the charter was, that it
+contained a _written_ description and acknowledgment, by the king
+himself, of what the constitutional law of the kingdom was, which his
+coronation oath bound him to observe. Previous to Magna Carta, this
+constitutional law rested mainly in precedents, customs, and the
+memories of the people. And if the king could but make one innovation
+upon this law, without arousing resistance, and being compelled to
+retreat from his usurpation, he would cite that innovation as a
+precedent for another act of the same kind; next, assert a custom; and,
+finally, raise a controversy as to what the Law of the Land really was.
+The great object of the barons and people, in demanding from the king a
+written description and acknowledgment of the Law of the Land, was to
+put an end to all disputes of this kind, and to put it out of the power
+of the king to plead any misunderstanding of the constitutional law of
+the kingdom. And the charter, no doubt, accomplished very much in this
+way. After Magna Carta, it required much more audacity, cunning, or
+strength, on the part of the king, than it had before, to invade the
+people's liberties with impunity. Still, Magna Carta, like all other
+written constitutions, proved inadequate to the full accomplishment of
+its purpose; for when did a parchment ever have power adequately to
+restrain a government, that had either cunning to evade its
+requirements, or strength to overcome those who attempted its defence?
+The work of usurpation, therefore, though seriously checked, still went
+on, to a great extent, after Magna Carta. Innovations upon the Law of
+the Land are still made by the government. One innovation was cited as a
+precedent; precedents made customs; and customs became laws, so far as
+practice was concerned; until the government, composed of the king, the
+high functionaries of the church, the nobility, a House of Commons
+representing the "forty shilling freeholders," and a dependent and
+servile judiciary, all acting in conspiracy against the mass of the
+people, became practically absolute, as it is at this day.
+
+As proof that Magna Carta embraced little else than what was previously
+recognized as the common law, or Law of the Land, I repeat some
+authorities that have been already cited.
+
+   Crabbe says, "It is admitted on all hands that it (Magna Carta)
+   contains nothing but what was confirmatory of the common law and the
+   ancient usages of the realm; and is, properly speaking, only an
+   enlargement of the charter of Henry I. and his
+   successors."--_Crabbe's Hist. of the Eng. Law_, p. 127.
+
+   Blackstone says, "It is agreed by all our historians that the Great
+   Charter of King John was, for the most part, compiled from the
+   ancient customs of the realm, or the laws of Edward the Confessor; by
+   which they mean the old common law which was established under our
+   Saxon princes."--_Blackstone's Introd. to the Charters._ See
+   _Blackstone's Law Tracts_, Oxford ed., p. 289.
+
+   Coke says, "The common law is the most general and ancient law of
+   the realm.... The common law appeareth in the statute of _Magna
+   Carta_, and other ancient statutes, (which for the most part are
+   affirmations of the common law,) in the original writs, in judicial
+   records, and in our books of terms and years."--_1 Inst._, 115 b.
+
+   Coke also says, "It (Magna Carta) was for the most part declaratory
+   of the principal grounds of the fundamental laws of England, and for
+   the residue it was additional to supply some defects of the common
+   law.... They (Magna Carta and Carta de Foresta) were, for the most
+   part, but declarations of the ancient common laws of England, _to the
+   observation and keeping whereof the king was bound and
+   sworn_."--_Preface to 2 Inst._, p. 3 and 5.
+
+   Hume says, "We may now, from the tenor of this charter, (Magna
+   Carta,) conjecture what those laws were of King Edward, (the
+   Confessor,) which the English nation during so many generations still
+   desired, with such an obstinate perseverance, to have recalled and
+   established. They were chiefly these latter articles of Magna Carta;
+   and the barons who, at the beginning of these commotions, demanded
+   the revival of the Saxon laws, undoubtedly thought that they had
+   sufficiently satisfied the people, by procuring them this concession,
+   which comprehended the principal objects to which they had so long
+   aspired."--_Hume_, ch. 11.
+
+Edward the First confessed that the Great Charter was substantially
+identical with the common law, as far as it went, when he commanded his
+justices to allow "the Great Charter as the Common Law," "in pleas
+before them, and in judgment," as has been already cited in this
+chapter.--_25 Edward_ I., ch. 1, (1297.)
+
+In conclusion of this chapter, it may be safely asserted that the
+veneration, attachment, and pride, which the English nation, for more
+than six centuries, have felt towards Magna Carta, are in their nature
+among the most irrefragable of all proofs that it was the fundamental
+law of the land, and constitutionally binding upon the government; for,
+otherwise, it would have been, in their eyes, an unimportant and
+worthless thing. What those sentiments were I will use the words of
+others to describe,--the words, too, of men, who, like all modern
+authors who have written on the same topic, had utterly inadequate ideas
+of the true character of the instrument on which they lavished their
+eulogiums.
+
+Hume, speaking of the Great Charter and the Charter of the Forest, as
+they were confirmed by Henry III., in 1217, says:
+
+   "Thus these famous charters were brought nearly to the shape in which
+   they have ever since stood; and they were, during many generations,
+   the peculiar favorites of the English nation, and esteemed the most
+   sacred rampart to national liberty and independence. As they secured
+   the rights of all orders of men, they were anxiously defended by all,
+   and became the basis, in a manner, of the English monarchy, and a
+   kind of original contract, which both limited the authority of the
+   king and ensured the conditional allegiance of his subjects. Though
+   often violated, they were still claimed by the nobility and people;
+   and, as no precedents were supposed valid that infringed them, they
+   rather acquired than lost authority, from the frequent attempts made
+   against them in several ages, by regal and arbitrary power."--_Hume_,
+   ch. 12.
+
+   Mackintosh says, "It was understood by the simplest of the unlettered
+   age for whom it was intended. It was remembered by them.... For
+   almost five centuries it was appealed to as the decisive authority on
+   behalf of the people.... To have produced it, to have preserved it,
+   to have matured it, constitute the immortal claim of England on the
+   esteem of mankind. Her Bacons and Shakspeares, her Miltons and
+   Newtons, with all the truth which they have revealed, and all the
+   generous virtues which they have inspired, are of inferior value when
+   compared with the subjection of men and their rulers to the
+   principles of justice; if, indeed, it be not more true that these
+   mighty spirits could not have been formed except under equal laws,
+   nor roused to full activity without the influence of that spirit
+   which the Great Charter breathed over their
+   forefathers."--_Mackintosh's Hist. of Eng._, ch. 3.[110]
+
+Of the Great Charter, the trial by jury is the vital part, and the only
+part that places the liberties of the people in their own keeping. Of
+this Blackstone says:
+
+   "The trial by jury, or the country, _per patriam_, is also that trial
+   by the peers of every Englishman, which, as the grand bulwark of his
+   liberties, is secured to him by the Great Charter; _nullus liber homo
+   capiatur, vel imprisonetur, aut exuletur, aut aliquo modo destruatur,
+   nisi per legale judicium parium suorum, vel per legem terrae...._
+
+   The liberties of England cannot but subsist so long as this palladium
+   remains sacred and inviolate, not only from all open attacks, which
+   none will be so hardy as to make, but also from all secret
+   machinations which may sap and undermine it."[111]
+
+   "The trial by jury ever has been, and I trust ever will be, looked
+   upon as the glory of the English law.... It is the most transcendent
+   privilege which any subject can enjoy or wish for, that he cannot be
+   affected in his property, his liberty, or his person, but by the
+   unanimous consent of twelve of his neighbors and equals."[112]
+
+   Hume calls the trial by jury "An institution admirable in itself, and
+   the best calculated for the preservation of liberty and the
+   administration of justice, that ever was devised by the wit of
+   man."[113]
+
+An old book, called "English Liberties," says:
+
+   "English Parliaments have all along been most zealous for preserving
+   this great Jewel of Liberty, trials by juries having no less than
+   fifty-eight several times, since the Norman Conquest, been
+   established and confirmed by the legislative power, no one privilege
+   besides having been ever so often remembered in parliament."[114]
+
+[Footnote 106: _Mackintosh's Hist. of Eng._, ch. 3. _45 Lardner's Cab.
+Cyc._, 354.]
+
+[Footnote 107: "_Forty shilling freeholders_" were those "people
+dwelling and resident in the same counties, whereof every one of them
+shall have free land or tenement to the value of forty shillings by the
+year at the least above all charges." By statute _8 Henry_ 6, ch. 7,
+(1429,) these freeholders only were allowed to vote for members of
+Parliament from the _counties_.]
+
+[Footnote 108: He probably speaks in its favor only to blind the eyes of
+the people to the frauds he has attempted upon its true meaning.]
+
+[Footnote 109: It will be noticed that Coke calls these confirmations of
+the charter "acts of parliament," instead of acts of the king alone.
+This needs explanation.
+
+It was one of Coke's ridiculous pretences, that laws anciently enacted
+by the king, at the request, or with the consent, or by the advice, of
+his parliament, was "an act of parliament," instead of the act of the
+king. And in the extracts cited, he carries this idea so far as to
+pretend that the various confirmations of the Great Charter were "acts
+of parliament," instead of the acts of the kings. He might as well have
+pretended that the original grant of the Charter was an "act of
+parliament;" because it was not only granted at the request, and with
+the consent, and by the advice, but on the compulsion even, of those who
+commonly constituted his parliaments. Yet this did not make the grant of
+the charter "an act of parliament." It was simply an act of the king.
+
+The object of Coke, in this pretence, was to furnish some color for the
+palpable falsehood that the legislative authority, which parliament was
+trying to assume in his own day, and which it finally succeeded in
+obtaining, had a precedent in the ancient constitution of the kingdom.
+
+There would be as much reason in saying that, because the ancient kings
+were in the habit of passing laws in special answer to the _petitions_
+of their subjects, therefore those _petitioners_ were a part of the
+legislative power of the kingdom.
+
+One great objection to this argument of Coke, for the legislative
+authority of the ancient parliaments, is that a very large--probably
+much the larger--number of legislative acts were done _without_ the
+advice, consent, request, or even presence, of a parliament. Not only
+were many formal statutes passed without any mention of the consent or
+advice of parliament, but a simple order of the king in council, or a
+simple proclamation, writ, or letter under seal, issued by his command,
+had the same force as what Coke calls "an act of parliament." And this
+practice continued, to a considerable extent at least, down to Coke's
+own time.
+
+The kings were always in the habit of consulting their parliaments, more
+or less, in regard to matters of legislation,--not because their consent
+was constitutionally necessary, but in order to make influence in favor
+of their laws, and thus induce the people to observe them, and the
+juries to enforce them.
+
+The general duties of the ancient parliaments were not legislative, but
+judicial, as will be shown more fully hereafter. The _people_ were not
+represented in the parliaments at the time of Magna Carta, but only the
+archbishops, bishops, earls, barons, and knights; so that little or
+nothing would have been gained for liberty by Coke's idea that
+parliament had a legislative power. He would only have substituted an
+aristocracy for a king. Even after the Commons were represented in
+parliament, they for some centuries appeared only as _petitioners_,
+except in the matter of taxation, when their _consent_ was asked. And
+almost the only source of their influence on legislation was this: that
+they would sometimes refuse their consent to the taxation, unless the
+king would pass such laws as they petitioned for; or, as would seem to
+have been much more frequently the case, unless he would abolish such
+laws and practices as they remonstrated against.
+
+The _influence_ or power of parliament, and especially of the Commons,
+in the general legislation of the country, was a thing of slow growth,
+having its origin in a device of the king to get money contrary to law,
+(as will be seen in the next volume,) and not at all a part of the
+constitution of the kingdom, nor having its foundation in the consent of
+the people. The power, _as at present exercised_, was not fully
+established until 1688, (near five hundred years after Magna Carta,)
+when the House of Commons (falsely so called) had acquired such
+influence as the representative, _not of the people, but of the wealth,
+of the nation_, that they compelled the king to discard the oath fixed
+by the constitution of the kingdom; (which oath has been already given
+in a former chapter,(page 101) and was, in substance, to preserve and
+execute the Common Law, the Law of the Land,--or, in the words of the
+oath, "_the just laws and customs which the common people had chosen_;")
+and to swear that he would "govern the people of this kingdom of
+England, and the dominions thereto belonging, _according to the statutes
+in parliament agreed on_, and the laws and customs of the same."[115]
+
+The passage and enforcement of this statute, and the assumption of this
+oath by the king, were plain violations of the English constitution,
+inasmuch as they abolished, so far as such an oath could abolish, the
+legislative power of the king, and also "those just laws and customs
+which the common people (through their juries) had chosen," and
+substituted the will of parliament in their stead.
+
+Coke was a great advocate for the legislative power of parliament, as a
+means of restraining the power of the king. As he denied all power to
+_juries_ to decide upon the obligation of laws, and as he held that the
+legislative power was "_so transcendent and absolute as (that) it cannot
+be confined, either for causes or persons, within any bounds_,"[116] he
+was perhaps honest in holding that it was safer to trust this terrific
+power in the hands of parliament, than in the hands of the king. His
+error consisted in holding that either the king or parliament had any
+such power, or that they had any power at all to pass laws that should
+be binding upon a jury.
+
+These declarations of Coke, that the charter was confirmed by thirty-two
+"acts of parliament," have a mischievous bearing in another respect.
+They tend to weaken the authority of the charter, by conveying the
+impression that the charter itself might be _abolished_ by "act of
+parliament." Coke himself admits that it could not be revoked or
+rescinded by the _king_; for he says, "All pretence of prerogative
+against Magna Carta is taken away." (_2 Inst._, 36.)
+
+He knew perfectly well, and the whole English nation knew, that the
+_king_ could not lawfully infringe Magna Carta. Magna Carta, therefore,
+made it impossible that absolute power could ever be practically
+established in England, _in the hands of the king_. Hence, as Coke was
+an advocate for absolute power,--that is, for a legislative power "so
+transcendent and absolute as (that) it cannot be confined, either for
+causes or persons, within any bounds,"--there was no alternative for him
+but to vest this absolute power in parliament. Had he not vested it in
+parliament, he would have been obliged to abjure it altogether, and to
+confess that the people, _through their juries_, had the right to judge
+of the obligation of all legislation whatsoever; in other words, that
+they had the right to confine the government within the limits of "those
+just laws and customs which the common people (acting as jurors) had
+chosen." True to his instincts, as a judge, and as a tyrant, he assumed
+that this absolute power was vested in the hands of parliament.
+
+But the truth was that, as by the English constitution parliament had no
+authority at all for _general_ legislation, it could no more confirm,
+than it could abolish, Magna Carta.
+
+These thirty-two confirmations of Magna Carta, which Coke speaks of as
+"acts of parliament," were merely acts of the king. The parliaments,
+indeed, by refusing to grant him money, except on that condition, and
+otherwise, had contributed to oblige him to make the confirmations; just
+as they had helped to oblige him by arms to grant the charter in the
+first place. But the confirmations themselves were nevertheless
+constitutionally, as well as formally, the acts of the king alone.]
+
+[Footnote 110: Under the head of "_John._"]
+
+[Footnote 111: _4 Blackstone_, 349-50.]
+
+[Footnote 112: _3 Blackstone_, 379.]
+
+[Footnote 113: _Hume_, ch. 2.]
+
+[Footnote 114: Page 203, 5th edition, 1721.]
+
+[Footnote 115: St. 1 _William and Mary_, ch. 6, (1688.)]
+
+[Footnote 116: 4 _Inst._, 36.]
+
+
+
+
+CHAPTER XII.
+
+LIMITATIONS IMPOSED UPON THE MAJORITY BY THE TRIAL BY JURY.
+
+
+The principal objection, that will be made to the doctrine of this
+essay, is, that under it, a jury would paralyze the power of the
+majority, and veto all legislation that was not in accordance with the
+will of the whole, or nearly the whole, people.
+
+The answer to this objection is, that the limitation, which would be
+thus imposed upon the legislative power, (whether that power be vested
+in the majority, or minority, of the people,) is the crowning merit of
+the trial by jury. It has other merits; but, though important in
+themselves, they are utterly insignificant and worthless in comparison
+with this.
+
+It is this power of vetoing all partial and oppressive legislation, and
+of restricting the government to the maintenance of such laws as the
+_whole_, or substantially the whole, people _are agreed in_, that makes
+the trial by jury "the palladium of liberty." Without this power it
+would never have deserved that name.
+
+The will, or the pretended will, of the majority, is the last lurking
+place of tyranny at the present day. The dogma, that certain individuals
+and families have a divine appointment to govern the rest of mankind, is
+fast giving place to the one that the larger number have a right to
+govern the smaller; a dogma, which may, or may not, be less oppressive
+in its practical operation, but which certainly is no less false or
+tyrannical in principle, than the one it is so rapidly supplanting.
+Obviously there is nothing in the nature of majorities, that insures
+justice at their hands. They have the same passions as minorities, and
+they have no qualities whatever that should be expected to prevent them
+from practising the same tyranny as minorities, if they think it will
+be for their interest to do so.
+
+There is no particle of truth in the notion that the majority have a
+_right_ to rule, or to exercise arbitrary power over, the minority,
+simply because the former are more numerous than the latter. Two men
+have no more natural right to rule one, than one has to rule two. Any
+single man, or any body of men, many or few, have a natural right to
+maintain justice for themselves, and for any others who may need their
+assistance, against the injustice of any and all other men, without
+regard to their numbers; and majorities have no right to do any more
+than this. The relative numbers of the opposing parties have nothing to
+do with the question of right. And no more tyrannical principle was ever
+avowed, than that the will of the majority ought to have the force of
+law, without regard to its justice; or, what is the same thing, that the
+will of the majority ought always to be presumed to be in accordance
+with justice. Such a doctrine is only another form of the doctrine that
+might makes right.
+
+When _two_ men meet _one_ upon the highway, or in the wilderness, have
+they a right to dispose of his life, liberty, or property at their
+pleasure, simply because they are the more numerous party? Or is he
+bound to submit to lose his life, liberty, or property, if they demand
+it, merely because he is the less numerous party? Or, because they are
+more numerous than he, is he bound to presume that they are governed
+only by superior wisdom, and the principles of justice, and by no
+selfish passion that can lead them to do him a wrong? Yet this is the
+principle, which it is claimed should govern men in all their civil
+relations to each other. Mankind fall in company with each other on the
+highway or in the wilderness of life, and it is claimed that the more
+numerous party, simply by virtue of their superior numbers, have the
+right arbitrarily to dispose of the life, liberty, and property of the
+minority; and that the minority are bound, by reason of their inferior
+numbers, to practise abject submission, and consent to hold their
+natural rights,--any, all, or none, as the case may be,--at the mere
+will and pleasure of the majority; as if all a man's natural rights
+expired, or were suspended by the operation of a paramount law, the
+moment he came into the presence of superior numbers.
+
+If such be the true nature of the relations men hold to each other in
+this world, it puts an end to all such things as crimes, unless they be
+perpetrated upon those who are equal or superior, in number, to the
+actors. All acts committed against persons _inferior_ in number to the
+aggressors, become but the exercise of rightful authority. And
+consistency with their own principles requires that all governments,
+founded on the will of the majority, should recognize this plea as a
+sufficient justification for all crimes whatsoever.
+
+If it be said that the majority should be allowed to rule, not because
+they are stronger than the minority, but because their superior numbers
+furnish a _probability_ that they are in the right; one answer is, that
+the lives, liberties, and properties of men are too valuable to them,
+and the natural presumptions are too strong in their favor, to justify
+the destruction of them by their fellow-men on a mere balancing of
+probabilities, _or on any ground whatever short of certainty beyond a
+reasonable doubt_. This last is the moral rule universally recognized to
+be binding upon single individuals. And in the forum of conscience the
+same rule is equally binding upon governments, for governments are mere
+associations of individuals. This is the rule on which the trial by jury
+is based. And it is plainly the only rule that ought to induce a man to
+submit his rights to the adjudication of his fellow-men, or dissuade him
+from a forcible defence of them.
+
+Another answer is, that if two opposing parties could be supposed to
+have no personal interests or passions involved, to warp their
+judgments, or corrupt their motives, the fact that one of the parties
+was more numerous than the other, (a fact that leaves the comparative
+intellectual competency of the two parties entirely out of
+consideration,) might, perhaps, furnish a slight, but at best only a
+very slight, probability that such party was on the side of justice. But
+when it is considered that the parties are liable to differ in their
+intellectual capacities, and that one, or the other, or both, are
+undoubtedly under the influence of such passions as rivalry, hatred,
+avarice, and ambition,--passions that are nearly certain to pervert
+their judgments, and very likely to corrupt their motives,--all
+probabilities founded upon a mere numerical majority, in one party, or
+the other, vanish at once; and the decision of the majority becomes, to
+all practical purposes, a mere decision of chance. And to dispose of
+men's properties, liberties, and lives, by the mere process of
+enumerating such parties, is not only as palpable gambling as was ever
+practised, but it is also the most atrocious that was ever practised,
+except in matters of government. And where government is instituted on
+this principle, (as in the United States, for example,) the nation is at
+once converted into one great gambling establishment; where all the
+rights of men are the stakes; a few bold bad men throw the dice--(dice
+loaded with all the hopes, fears, interests, and passions which rage in
+the breasts of ambitious and desperate men,)--and all the people, from
+the interests they have depending, become enlisted, excited, agitated,
+and generally corrupted, by the hazards of the game.
+
+The trial by jury disavows the majority principle altogether; and
+proceeds upon the ground that every man should be presumed to be
+entitled to life, liberty, and such property as he has in his
+possession; and that the government should lay its hand upon none of
+them, (except for the purpose of bringing them before a tribunal for
+adjudication,) unless it be first ascertained, _beyond a reasonable
+doubt_, in every individual case, that justice requires it.
+
+To ascertain whether there be such reasonable doubt, it takes twelve men
+_by lot_ from the whole body of mature men. If any of these twelve are
+proved to be under the influence of any _special_ interest or passion,
+that may either pervert their judgments, or corrupt their motives, they
+are set aside as unsuitable for the performance of a duty requiring such
+absolute impartiality and integrity; and others substituted in their
+stead. When the utmost practicable impartiality is attained on the part
+of the whole twelve, they are sworn to the observance of justice; and
+their unanimous concurrence is then held to be necessary to remove that
+reasonable doubt, which, unremoved, would forbid the government to lay
+its hand on its victim.
+
+Such is the caution which the trial by jury both practises and
+inculcates, against the violation of justice, on the part of the
+government, towards the humblest individual, in the smallest matter
+affecting his civil rights, his property, liberty, or life. And such is
+the contrast, which the trial by jury presents, to that gambler's and
+robber's rule, that the majority have a right, by virtue of their
+superior numbers, and without regard to justice, to dispose at pleasure
+of the property and persons of all bodies of men less numerous than
+themselves.
+
+The difference, in short, between the two systems, is this. The trial by
+jury protects person and property, inviolate to their possessors, from
+the hand of the law, unless _justice, beyond a reasonable doubt_,
+require them to be taken. The majority principle takes person and
+property from their possessors, at the mere arbitrary will of a
+majority, who are liable and likely to be influenced, in taking them, by
+motives of oppression, avarice, and ambition.
+
+If the relative numbers of opposing parties afforded sufficient evidence
+of the comparative justice of their claims, the government should carry
+the principle into its courts of justice; and instead of referring
+controversies to impartial and disinterested men,--to judges and jurors,
+sworn to do justice, and bound patiently to hear and weigh all the
+evidence and arguments that can be offered on either side,--it should
+simply _count_ the plaintiffs and defendants in each case, (where there
+were more than one of either,) and then give the case to the majority;
+after ample opportunity had been given to the plaintiffs and defendants
+to reason with, flatter, cheat, threaten, and bribe each other, by way
+of inducing them to change sides. Such a process would be just as
+rational in courts of justice, as in halls of legislation; for it is of
+no importance to a man, who has his rights taken from him, whether it be
+done by a legislative enactment, or a judicial decision.
+
+In legislation, the people are all arranged as plaintiffs and defendants
+in their own causes; (those who are in favor of a particular law,
+standing as plaintiffs, and those who are opposed to the same law,
+standing as defendants); and to allow these causes to be decided by
+majorities, is plainly as absurd as it would be to allow judicial
+decisions to be determined by the relative number of plaintiffs and
+defendants.
+
+If this mode of decision were introduced into courts of justice, we
+should see a parallel, and only a parallel, to that system of
+legislation which we witness daily. We should see large bodies of men
+conspiring to bring perfectly groundless suits, against other bodies of
+men, for large sums of money, and to carry them by sheer force of
+numbers; just as we now continually see large bodies of men conspiring
+to carry, by mere force of numbers, some scheme of legislation that
+will, directly or indirectly, take money out of other men's pockets, and
+put it into their own. And we should also see distinct bodies of men,
+parties in separate suits, combining and agreeing all to appear and be
+counted as plaintiffs or defendants in each other's suits, for the
+purpose of ekeing out the necessary majority; just as we now see
+distinct bodies of men, interested in separate schemes of ambition or
+plunder, conspiring to carry through a batch of legislative enactments,
+that shall accomplish their several purposes.
+
+This system of combination and conspiracy would go on, until at length
+whole states and a whole nation would become divided into two great
+litigating parties, each party composed of several smaller bodies,
+having their separate suits, but all confederating for the purpose of
+making up the necessary majority in each case. The individuals composing
+each of these two great parties, would at length become so accustomed to
+acting together, and so well acquainted with each others' schemes, and
+so mutually dependent upon each others' fidelity for success, that they
+would become organized as permanent associations; bound together by that
+kind of honor that prevails among thieves; and pledged by all their
+interests, sympathies, and animosities, to mutual fidelity, and to
+unceasing hostility to their opponents; and exerting all their arts and
+all their resources of threats, injuries, promises, and bribes, to drive
+or seduce from the other party enough to enable their own to retain or
+acquire such a majority as would be necessary to gain their own suits,
+and defeat the suits of their opponents. All the wealth and talent of
+the country would become enlisted in the service of these rival
+associations; and both would at length become so compact, so well
+organized, so powerful, and yet always so much in need of recruits,
+that a private person would be nearly or quite unable to obtain justice
+in the most paltry suit with his neighbor, except on the condition of
+joining one of these great litigating associations, who would agree to
+carry through his cause, on condition of his assisting them to carry
+through all the others, good and bad, which they had already undertaken.
+If he refused this, they would threaten to make a similar offer to his
+antagonist, and suffer their whole numbers to be counted against him.
+
+Now this picture is no caricature, but a true and honest likeness. And
+such a system of administering justice, would be no more false, absurd,
+or atrocious, than that system of working by majorities, which seeks to
+accomplish, by legislation, the same ends which, in the case supposed,
+would be accomplished by judicial decisions.
+
+Again, the doctrine that the minority ought to submit to the will of the
+majority, proceeds, not upon the principle that government is formed by
+voluntary association, and for an _agreed purpose_, on the part of all
+who contribute to its support, but upon the presumption that all
+government must be practically a state of war and plunder between
+opposing parties; and that, in order to save blood, and prevent mutual
+extermination, the parties come to an agreement that they will count
+their respective numbers periodically, and the one party shall then be
+permitted quietly to rule and plunder, (restrained only by their own
+discretion,) and the other submit quietly to be ruled and plundered,
+until the time of the next enumeration.
+
+Such an agreement may possibly be wiser than unceasing and deadly
+conflict; it nevertheless partakes too much of the ludicrous to deserve
+to be seriously considered as an expedient for the maintenance of civil
+society. It would certainly seem that mankind might agree upon a
+cessation of hostilities, upon more rational and equitable terms than
+that of unconditional submission on the part of the less numerous body.
+Unconditional submission is usually the last act of one who confesses
+himself subdued and enslaved. How any one ever came to imagine that
+condition to be one of freedom, has never been explained. And as for the
+system being adapted to the maintenance of justice among men, it is a
+mystery that any human mind could ever have been visited with an
+insanity wild enough to originate the idea.
+
+If it be said that other corporations, than governments, surrender their
+affairs into the hands of the majority, the answer is, that they allow
+majorities to determine only trifling matters, that are in their nature
+mere questions of discretion, and where there is no natural presumption
+of justice or right on one side rather than the other. They _never_
+surrender to the majority the power to dispose of, or, what is
+practically the same thing, to _determine_, the _rights_ of any
+individual member. The _rights_ of every member are determined by the
+written compact, to which all the members have voluntarily agreed.
+
+For example. A banking corporation allows a majority to determine such
+questions of discretion as whether the note of A or of B shall be
+discounted; whether notes shall be discounted on one, two, or six days
+in the week; how many hours in a day their banking-house shall be kept
+open; how many clerks shall be employed; what salaries they shall
+receive, and such like matters, which are in their nature mere subjects
+of discretion, and where there are no natural presumptions of justice or
+right in favor of one course over the other. But no banking corporation
+allows a majority, or any other number of its members less than the
+whole, to divert the funds of the corporation to any other purpose than
+the one to which _every member_ of the corporation has legally agreed
+that they may be devoted; nor to take the stock of one member and give
+it to another; nor to distribute the dividends among the stockholders
+otherwise than to each one the proportion which he has agreed to accept,
+and all the others have agreed that he shall receive. Nor does any
+banking corporation allow a majority to impose taxes upon the members
+for the payment of the corporate expenses, except in such proportions as
+_every member_ has consented that they may be imposed. All these
+questions, involving the _rights_ of the members as against each other,
+are fixed by the articles of the association,--that is, by the agreement
+to which _every member_ has personally assented.
+
+What is also specially to be noticed, and what constitutes a vital
+difference between the banking corporation and the political
+corporation, or government, is, that in case of controversy among the
+members of the banking corporation, as to the _rights_ of any member,
+the question is determined, not by any number, either majority, or
+minority, of the corporation itself, _but by persons out of the
+corporation_; by twelve men acting as jurors, or by other tribunals of
+justice, of which no member of the corporation is allowed to be a part.
+But in the case of the political corporation, controversies among the
+parties to it, as to the rights of individual members, must of necessity
+be settled by members of the corporation itself, because there are no
+persons out of the corporation to whom the question can be referred.
+
+Since, then, all questions as to the _rights_ of the members of the
+political corporation, must be determined by members of the corporation
+itself, the trial by jury says that no man's _rights_,--neither his
+right to his life, his liberty, nor his property,--shall be determined
+by any such standard as the mere will and pleasure of majorities; but
+only by the unanimous verdict of a tribunal fairly representing the
+whole people,--that is, a tribunal of twelve men, taken, at random from
+the whole body, and ascertained to be as impartial as the nature of the
+case will admit, _and sworn to the observance of justice_. Such is the
+difference in the two kinds of corporations; and the custom of managing
+by majorities the mere discretionary matters of business corporations,
+(the majority having no power to determine the _rights_ of any member,)
+furnishes no analogy to the practice, adopted by political corporations,
+of disposing of all the _rights_ of their members by the arbitrary will
+of majorities.
+
+But further. The doctrine that the majority have a _right_ to rule,
+proceeds upon the principle that minorities have no _rights_ in the
+government; for certainly the minority cannot be said to have any
+_rights_ in a government, so long as the majority alone determine what
+their rights shall be. They hold everything, or nothing, as the case may
+be, at the mere will of the majority.
+
+It is indispensable to a "_free_ government," (in the political sense of
+that term,) that the minority, the weaker party, have a veto upon the
+acts of the majority. Political liberty is liberty for the _weaker
+party_ in a nation. It is only the weaker party that lose their
+liberties, when a government becomes oppressive. The stronger party, in
+all governments, are free by virtue of their superior strength. They
+never oppress themselves.
+
+Legislation is the work of this stronger party; and if, in addition to
+the sole power of legislating, they have the sole power of determining
+what legislation shall be enforced, they have all power in their hands,
+and the weaker party are the subjects of an absolute government.
+
+Unless the weaker party have a veto, either upon the making, or the
+enforcement of laws, they have no power whatever in the government, and
+can of course have no liberties except such as the stronger party, in
+their arbitrary discretion, see fit to permit them to enjoy.
+
+In England and the United States, the trial by jury is the only
+institution that gives the weaker party any veto upon the power of the
+stronger. Consequently it is the only institution, that gives them any
+effective voice in the government, or any guaranty against oppression.
+
+Suffrage, however free, is of no avail for this purpose; because the
+suffrage of the minority is overborne by the suffrage of the majority,
+and is thus rendered powerless for purposes of legislation. The
+responsibility of officers can be made of no avail, because they are
+responsible only to the majority. The minority, therefore, are wholly
+without rights in the government, wholly at the mercy of the majority,
+unless, through the trial by jury, they have a veto upon such
+legislation as they think unjust.
+
+Government is established for the protection of the weak against the
+strong. This is the principal, if not the sole, motive for the
+establishment of all legitimate government. Laws, that are sufficient
+for the protection of the weaker party, are of course sufficient for the
+protection of the stronger party; because the strong can certainly need
+no more protection than the weak. It is, therefore, right that the
+weaker party should be represented in the tribunal which is finally to
+determine what legislation may be enforced; and that no legislation
+shall be enforced against their consent. They being presumed to be
+competent judges of what kind of legislation makes for their safety, and
+what for their injury, it must be presumed that any legislation, which
+_they_ object to enforcing, tends to their oppression, and not to their
+security.
+
+There is still another reason why the weaker party, or the minority,
+should have a veto upon all legislation which they disapprove. _That
+reason is, that that is the only means by which the government can be
+kept within the limits of the contract, compact, or constitution, by
+which the whole people agree to establish government._ If the majority
+were allowed to interpret the compact for themselves, and enforce it
+according to their own interpretation, they would, of course, make it
+authorize them to do whatever they wish to do.
+
+The theory of free government is that it is formed by the voluntary
+contract of the people individually with each other. This is the theory,
+(although it is not, as it ought to be, the fact,) in all the
+governments in the United States, as also in the government of England.
+The theory assumes that each man, who is a party to the government, and
+contributes to its support, has individually and freely consented to it.
+Otherwise the government would have no right to tax him for its
+support,--for taxation without consent is robbery. This theory, then,
+necessarily supposes that this government, which is formed by the free
+consent of all, has no powers except such as _all_ the parties to it
+have individually agreed that it shall have; and especially that it has
+no power to pass any _laws_, except such as _all_ the parties have
+agreed that it may pass.
+
+This theory supposes that there may be certain laws that will be
+beneficial to _all_,--so beneficial that _all_ consent to be taxed for
+their maintenance. For the maintenance of these specific laws, in which
+all are interested, all associate. And they associate for the
+maintenance of those laws _only_, in which _all_ are interested. It
+would be absurd to suppose that all would associate, and consent to be
+taxed, for purposes which were beneficial only to a part; and especially
+for purposes that were injurious to any. A government of the whole,
+therefore, can have no powers except such as _all_ the parties consent
+that it may have. It can do nothing except what _all_ have consented
+that it may do. And if any portion of the people,--no matter how large
+their number, if it be less than the whole,--desire a government for any
+purposes other than those that are common to all, and desired by all,
+they must form a separate association for those purposes. They have no
+right,--by perverting this government of the whole, to the
+accomplishment of purposes desired only by a part,--to compel any one to
+contribute to purposes that are either useless or injurious to himself.
+
+Such being the principles on which the government is formed, the
+question arises, how shall this government, when formed, be kept within
+the limits of the contract by which it was established? How shall this
+government, instituted by the whole people, agreed to by the whole
+people, supported by the contributions of the whole people, be confined
+to the accomplishment of those purposes alone, which the whole people
+desire? How shall it be preserved from degenerating into a mere
+government for the benefit of a part only of those who established, and
+who support it? How shall it be prevented from even injuring a part of
+its own members, for the aggrandizement of the rest? Its laws must be,
+(or at least now are,) passed, and most of its other acts performed, by
+mere agents,--agents chosen by a part of the people, and not by the
+whole. How can these agents be restrained from seeking their own
+interests, and the interests of those who elected them, at the expense
+of the rights of the remainder of the people, by the passage and
+enforcement of laws that shall be partial, unequal, and unjust in their
+operation? That is the great question. And the trial by jury answers it.
+And how does the trial by jury answer it? It answers it, as has already
+been shown throughout this volume, by saying that these mere agents and
+attorneys, who are chosen by a part only of the people, and are liable
+to be influenced by partial and unequal purposes, shall not have
+unlimited authority in the enactment and enforcement of laws; that they
+shall not exercise _all_ the functions of government. It says that they
+shall never exercise that ultimate power of compelling obedience to the
+laws by punishing for disobedience, or of executing the laws against the
+person or property of any man, without first getting the consent of the
+people, through a tribunal that may fairly be presumed to represent the
+whole, or substantially the whole, people. It says that if the power to
+make laws, and the power also to enforce them, were committed to these
+agents, they would have all power,--would be absolute masters of the
+people, and could deprive them of their rights at pleasure. It says,
+therefore, that the people themselves will hold a veto upon the
+enforcement of any and every law, which these agents may enact, and that
+whenever the occasion arises for them to give or withhold their
+consent,--inasmuch as the whole people cannot assemble, or devote the
+time and attention necessary to the investigation of each case,--twelve
+of their number shall be taken by lot, or otherwise at random, from the
+whole body; that they shall not be chosen by majorities, (the same
+majorities that elected the agents who enacted the laws to be put in
+issue,) nor by any interested or suspected party; that they shall not be
+appointed by, or be in any way dependent upon, those who enacted the
+law; that their opinions, whether for or against the law that is in
+issue, shall not be inquired of beforehand; and that if these twelve men
+give their consent to the enforcement of the law, their consent shall
+stand for the consent of the whole.
+
+This is the mode, which the trial by jury provides, for keeping the
+government within the limits designed by the whole people, who have
+associated for its establishment. And it is the only mode, provided
+either by the English or American constitutions, for the accomplishment
+of that object.
+
+But it will, perhaps, be said that if the minority can defeat the will
+of the majority, then the minority _rule_ the majority. But this is not
+true in any unjust sense. The minority enact no laws of their own. They
+simply refuse their assent to such laws of the majority as they do not
+approve. The minority assume no authority over the majority; they simply
+defend themselves. They do not interfere with the right of the majority
+to seek their own happiness in their own way, so long as they (the
+majority) do not interfere with the minority. They claim simply not to
+be oppressed, and not to be compelled to assist in doing anything which
+they do not approve. They say to the majority, "We will unite with you,
+if you desire it, for the accomplishment of all those purposes, in
+which we have a common interest with you. You can certainly expect us to
+do nothing more. If you do not choose to associate with us on those
+terms, there must be two separate associations. You must associate for
+the accomplishment of your purposes; we for the accomplishment of ours."
+
+In this case, the minority assume no authority over the majority; they
+simply refuse to surrender their own liberties into the hands of the
+majority. They propose a union; but decline submission. The majority are
+still at liberty to refuse the connection, and to seek their own
+happiness in their own way, except that they cannot be gratified in
+their desire to become absolute masters of the minority.
+
+But, it may be asked, how can the minority be trusted to enforce even
+such legislation as is equal and just? The answer is, that they are as
+reliable for that purpose as are the majority; they are as much presumed
+to have associated, and are as likely to have associated, for that
+object, as are the majority; and they have as much interest in such
+legislation as have the majority. They have even more interest in it;
+for, being the weaker party, they must rely on it for their
+security,--having no other security on which they can rely. Hence their
+consent to the establishment of government, and to the _taxation_
+required for its support, is _presumed_, (although it ought not to be
+presumed,) without any express consent being given. This presumption of
+their consent to be taxed for the maintenance of laws, would be absurd,
+if they could not themselves be trusted to act in good faith in
+enforcing those laws. And hence they cannot be presumed to have
+consented to be taxed for the maintenance of any laws, except such as
+they are themselves ready to aid in enforcing. It is therefore unjust to
+tax them, unless they are eligible to seats in a jury, with power to
+judge of the justice of the laws. Taxing them for the support of the
+laws, on the assumption that they are in favor of the laws, and at the
+same time refusing them the right, as jurors, to judge of the justice of
+the laws, on the assumption that they are opposed to the laws, are flat
+contradictions.
+
+But, it will be asked, what motive have the majority, when they have
+all power in their own hands, to submit their will to the veto of the
+minority?
+
+One answer is, that they have the motive of justice. It would be
+_unjust_ to compel the minority to contribute, by taxation, to the
+support of any laws which they did not approve.
+
+Another answer is, that if the stronger party wish to use their power
+only for purposes of justice, they have no occasion to fear the veto of
+the weaker party; for the latter have as strong motives for the
+maintenance of _just_ government, as have the former.
+
+Another answer is, that if the stronger party use their power
+_unjustly_, they will hold it by an uncertain tenure, especially in a
+community where knowledge is diffused; for knowledge will enable the
+weaker party to make itself in time the stronger party. It also enables
+the weaker party, even while it remains the weaker party, perpetually to
+annoy, alarm, and injure their oppressors. Unjust power,--or rather
+power that is _grossly_ unjust, and that is known to be so by the
+minority,--can be sustained only at the expense of standing armies, and
+all the other machinery of force; for the oppressed party are always
+ready to risk their lives for purposes of vengeance, and the acquisition
+of their rights, whenever there is any tolerable chance of success.
+Peace, safety, and quiet for all, can be enjoyed only under laws that
+obtain the consent of all. Hence tyrants frequently yield to the demands
+of justice from those weaker than themselves, as a means of buying peace
+and safety.
+
+Still another answer is, that those who are in the majority on one law,
+will be in the minority on another. All, therefore, need the benefit of
+the veto, at some time or other, to protect themselves from injustice.
+
+That the limits, within which legislation would, by this process, be
+confined, would be exceedingly narrow, in comparison with those it at
+present occupies, there can be no doubt. All monopolies, all special
+privileges, all sumptuary laws, all restraints upon any traffic,
+bargain, or contract, that was naturally lawful,[117] all restraints
+upon men's natural rights, the whole catalogue of _mala prohibita_, and
+all taxation to which the taxed parties had not individually, severally,
+and freely consented, would be at an end; because all such legislation
+implies a violation of the rights of a greater or less minority. This
+minority would disregard, trample upon, or resist, the execution of such
+legislation, and then throw themselves upon a jury of the whole people
+for justification and protection. In this way all legislation would be
+nullified, except the legislation of that general nature which
+impartially protected the rights, and subserved the interests, of all.
+The only legislation that could be sustained, would probably be such as
+tended directly to the maintenance of justice and liberty; such, for
+example, as should contribute to the enforcement of contracts, the
+protection of property, and the prevention and punishment of acts
+intrinsically criminal. In short, government in practice would be
+brought to the necessity of a strict adherence to natural law, and
+natural justice, instead of being, as it now is, a great battle, in
+which avarice and ambition are constantly fighting for and obtaining
+advantages over the natural rights of mankind.
+
+[Footnote 117: Such as restraints upon banking, upon the rates of
+interest, upon traffic with foreigners, &c., &c.]
+
+
+
+
+APPENDIX.
+
+TAXATION.
+
+
+It was a principle of the Common Law, as it is of the law of nature, and
+of common sense, that no man can be taxed without his personal consent.
+The Common Law knew nothing of that system, which now prevails in
+England, of _assuming_ a man's own consent to be taxed, because some
+pretended representative, whom he never authorized to act for him, has
+taken it upon himself to consent that he may be taxed. That is one of
+the many frauds on the Common Law, and the English constitution, which
+have been introduced since Magna Carta. Having finally established
+itself in England, it has been stupidly and servilely copied and
+submitted to in the United States.
+
+If the trial by jury were 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
+enforced against one man, as when enforced against millions; and it is
+not to be imagined that juries could be blind to so self-evident a
+principle. Taking a man's money without his consent, is also as much
+robbery, when it is done by millions of men, acting in concert, and
+calling themselves a government, as when it is done by a single
+individual, acting on his own responsibility, and calling himself a
+highwayman. Neither the numbers engaged in the act, nor the different
+characters they assume as a cover for the act, alter the nature of the
+act itself.
+
+If the government can take a man's money without his consent, there is
+no limit to the additional tyranny it may practise upon him; for, with
+his money, it can hire soldiers to stand over him, keep him in
+subjection, plunder him at discretion, and kill him if he resists. And
+governments always will do this, as they everywhere and always have done
+it, except where the Common Law principle has been established. It is
+therefore a first principle, a very _sine qua non_ of political freedom,
+that a man can be taxed only by his personal consent. And the
+establishment of this principle, with _trial by jury_, insures freedom
+of course; because: 1. No man would pay his money unless he had first
+contracted for such a government as he was willing to support; and, 2.
+Unless the government then kept itself within the terms of its contract,
+juries would not enforce the payment of the tax. Besides, the agreement
+to be taxed would probably be entered into but for a year at a time. If,
+in that year, the government proved itself either inefficient or
+tyrannical, to any serious degree, the contract would not be renewed.
+The dissatisfied parties, if sufficiently numerous for a new
+organization, would form themselves into a separate association for
+mutual protection. If not sufficiently numerous for that purpose, those
+who were conscientious would forego all governmental protection, rather
+than contribute to the support of a government which they deemed unjust.
+
+All legitimate government is a mutual insurance company, voluntarily
+agreed upon by the parties to it, for the protection of their rights
+against wrong-doers. In its voluntary character it is precisely similar
+to an association for mutual protection against fire or shipwreck.
+Before a man will join an association for these latter purposes, and pay
+the premium for being insured, he will, if he be a man of sense, look at
+the articles of the association; see what the company promises to do;
+what it is likely to do; and what are the rates of insurance. If he be
+satisfied on all these points, he will become a member, pay his premium
+for a year, and then hold the company to its contract. If the conduct of
+the company prove unsatisfactory, he will let his policy expire at the
+end of the year for which he has paid; will decline to pay any further
+premiums, and either seek insurance elsewhere, or take his own risk
+without any insurance. And as men act in the insurance of their ships
+and dwellings, they would act in the insurance of their properties,
+liberties and lives, in the political association, or government.
+
+The political insurance company, or government, have no more right, in
+nature or reason, to _assume_ a man's consent to be protected by them,
+and to be taxed for that protection, when he has given no actual
+consent, than a fire or marine insurance company have to assume a man's
+consent to be protected by them, and to pay the premium, when his actual
+consent has never been given. To take a man's property without his
+consent is robbery; and to assume his consent, where no actual consent
+is given, makes the taking none the less robbery. If it did, the
+highwayman has the same right to assume a man's consent to part with his
+purse, that any other man, or body of men, can have. And his assumption
+would afford as much moral justification for his robbery as does a like
+assumption, on the part of the government, for taking a man's property
+without his consent. The government's pretence of protecting him, as an
+equivalent for the taxation, affords no justification. It is for himself
+to decide whether he desires such protection as the government offers
+him. If he do not desire it, or do not bargain for it, the government
+has no more right than any other insurance company to impose it upon
+him, or make him pay for it.
+
+Trial by the country, and no taxation without consent, were the two
+pillars of English liberty, (when England had any liberty,) and the
+first principles of the Common Law. They mutually sustain each other;
+and neither can stand without the other. Without both, no people have
+any guaranty for their freedom; with both, no people can be otherwise
+than free.[118]
+
+By what force, fraud, and conspiracy, on the part of kings, nobles, and
+"a few wealthy freeholders," these pillars have been prostrated in
+England, it is designed to show more fully in the next volume, if it
+should be necessary.
+
+[Footnote 118: Trial by the country, and no taxation without consent,
+mutually sustain each other, and can be sustained only by each other,
+for these reasons: 1. Juries would refuse to enforce a tax against a man
+who had never agreed to pay it. They would also protect men in forcibly
+resisting the collection of taxes to which they had never consented.
+Otherwise the jurors would authorize the government to tax themselves
+without their consent,--a thing which no jury would be likely to do. In
+these two ways, then, trial by the country would sustain the principle
+of no taxation without consent. 2. On the other hand, the principle of
+no taxation without consent would sustain the trial by the country,
+because men in general would not consent to be taxed for the support of
+a government under which trial by the country was not secured. Thus
+these two principles mutually sustain each other.
+
+But, if either of these principles were broken down, the other would
+fall with it, and for these reasons: 1. If trial by the country were
+broken down, the principle of no taxation without consent would fall
+with it, because the government would then be _able_ to tax the people
+without their consent, inasmuch as the legal tribunals would be mere
+tools of the government, and would enforce such taxation, and punish men
+for resisting such taxation, as the government ordered. 2. On the other
+hand, if the principle of no taxation without consent were broken down,
+trial by the country would fall with it, because the government, if it
+could tax people without their consent, would, of course, take enough of
+their money to enable it to employ all the force necessary for
+sustaining its own tribunals, (in the place of juries,) and carrying
+their decrees into execution.]
+
+
+
+
+
+End of Project Gutenberg's An Essay on the Trial by Jury, by Lysander Spooner
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