An Essay on the Trial by Jury Part 14

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, ill.u.s.trate 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 n.o.bility 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 G.o.dwin, 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 a.s.sist 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 rest.i.tution 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 r.e.t.a.r.ding 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, (a.s.sizes,) 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 a.s.sizes_ (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 a.s.sizes 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 a.s.signed to take the a.s.sizes, 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 unconst.i.tutional 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 const.i.tutional 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 s.p.a.ce here to give details as to these robberies; but only some evidence of the general fact.