An Essay on the Trial by Jury Part 4

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: c.o.ke 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 c.o.ke's Inst.i.tutes, 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 ent.i.tled 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 a.s.semblage, 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 pa.s.sion, 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 pa.s.s unpunished._ Then debating the matter with the cardinals, he, by a definitive sentence, d.a.m.ned and ca.s.sated 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 c.o.ke's Inst._, 46.]

[Footnote 16: Perhaps the a.s.sertion 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 a.s.sertion 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, p.r.o.nounced 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 inst.i.tuted 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 p.r.o.nounced 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 p.r.o.nounced 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 pa.s.sed 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 a.s.size," "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 p.r.o.nouncing of that punishment which is expressly ordained by law."--_Blackstone's a.n.a.lysis of the Laws of England, Book 4, Ch. 29, Sec. 1. Blackstone's Law Tracts_, 126.

c.o.ke 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 a.s.sess 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 c.o.ke, 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 G.o.d_, 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: c.o.ke 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 c.o.ke'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 c.o.ke, 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, pa.s.sed 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 trespa.s.s, is unjustly a.s.sessed by sheriffs and baretors in the shires, * * it is provided, and the king wills, that from henceforth such sums shall be a.s.sessed 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 pa.s.sed 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.)