An Essay on the Trial by Jury Part 23

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 ent.i.tled 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 ent.i.tled 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 const.i.tutional authority of Magna Carta had rested solely upon the compact of John with his people, that authority would have been ent.i.tled 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 ma.s.s of the people, had been entered into, by the king, the n.o.bility, and the "_forty shilling freeholders_," (a cla.s.s 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 repet.i.tion 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 a.s.sembled.

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 h.e.l.l!_ The king bore a part in this ceremony, and subjoined, 'So help me G.o.d! 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 a.s.sent, of the Lord Henry, by the Grace of G.o.d 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 G.o.d 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 G.o.d, the Father, the Son, and the Holy Ghost, and of the glorious Mother of G.o.d, 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 ent.i.tled "_Confirmatio Cartarum_," (Confirmation of the Charters.)

_Ch. 1._ "Edward, by the Grace of G.o.d, 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 G.o.d, 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 a.s.sent 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 p.r.o.nounce 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.

c.o.ke 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.

c.o.ke, 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 quant.i.ty, for there be many voluminous charters commonly pa.s.sed, 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 princ.i.p.al grounds of the fundamental laws of England, and for the residue it is additional to supply some defects of the common law....