An Essay on the Trial by Jury Part 2

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) pa.s.s 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 pa.s.s upon him, nor condemn him_." But some have translated them to mean, "_nor will we pa.s.s upon him, nor commit him to prison_." c.o.ke 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 pa.s.s 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 a.n.a.logy 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 repet.i.tion 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_.

c.o.ke'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 pa.s.s 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 a.s.sessed, 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 p.r.o.nounce; 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 princ.i.p.ally 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 G.o.d, &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_."