Essay on the Trial By Jury Part 14

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. [2]

Furthemore, 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 civilsuits, 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; * * Serio, 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."

8 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 jnsticiaries through every county four times a year; [3] 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.

[4]

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.[5]

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 na 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. 122 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.

[1] Marches, the limits, or boundaries, between England and Wales.

[2] 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.

Hallam says, that "For the first three reigns (of the Norman kings) * * the intolerable exactions of tribute, the rapine of purveyance, the iniquity of royal courts, are continually in the mouths of the historians. ' G.o.d sees the wretched people,' says the Saxon Chronicler, 'most unjustly oppressed; first they are despoiled of their possessions, and then butchered.' This was a grievous year (1124). Whoever had any property, lost it by heavy taxes and unjust decrees." 2 Middle Ages, 435-6.

"In the succeeding reign of John, all the rapacious exactions usual to these Norman kings were not only redoubled, but mingled with outrages of tyranny still more intolerable.

"In 1207 John took a seventh of the movables of lay and spiritual persons, all murmuring, but none daring to speak against it."

Ditto, 446.

In Hume's account of the extortions of those times, the following paragraph occurs:

"But the most barefaced acts of tyranny and oppression were practised against the Jews, who were entirely out of the protection of the law, and were abandoned to the immeasurable rapacity of the king and his ministers. Besides many other indignities, to which they were continually exposed, it appears that they were once all thrown into prison, and the sum of 66,000 marks exacted for their liberty. At another time, Isaac, the Jew, paid alone 5100 marks", Brun, 3000 marks; Jurnet, 2000; Bennet, 500. At another, Licorica, widow of David, the Jew of Oxford, was required to pay 6000 marks." Hume's Hist Eng., Appendix 2.

Further accounts of the extortions and oppressions of the kings may be found in Hume's History, Appendix 2, and in Hallam's Middle Ages, vol. 2, p. 435 to 446.

By Magna Carta John bound himself to make rest.i.tution for some of the spoliations he had committed upon individuals "without the legal judgment of their peers." See Magna Carta of John, ch.

60, 61, 65 and 66.