An Essay on the Trial by Jury Part 5

_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 pa.s.sed 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 a.s.size," "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 a.s.size, (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 a.s.size, 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 trespa.s.ses of divers kinds."--_1 Maddox' History of the Exchequer_, 542.]

[Footnote 31: c.o.ke, 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 ent.i.tled to a judgment; and Magna Carta, (supposing it to require a jury trial in civil cases, as Mr. Hallam a.s.sumes 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 a.s.sistance 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 a.s.sistance 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 ent.i.tled, 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 s.p.a.ce 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,) _const.i.tutio_, (statute,) little mention being made of the commons, yet I further find that, _tum demum leges vim et vigerem habuerunt, c.u.m fuerunt non modo inst.i.tutae 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 Const.i.tutions 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 n.o.ble 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 const.i.tutions 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 inst.i.tutions_. 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 inst.i.tutions. 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 b.l.o.o.d.y 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 inst.i.tutions, 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 Const.i.tution 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.