Essay on the Trial By Jury Part 24

c.o.ke says, " The common law is the most general and ancient law of the realm... The common law appeareth in the statute of Magna Carta, and other ancient statutes, (which for the most part are affirmations of the common law,) in the original writs, in judicial records, and in our books of terms and years." 1 Inst., 115 b.

c.o.ke also says, "It (Magna Carta) was for the most part declaratory of the princ.i.p.al grounds of the fundamental laws of England, and for the residue it was additional to supply some defects of the common law... They (Magna Carta and Carta de Foresta) were, for the most part, but declarations of the ancient common laws of England, to the observation and keeping whereof the king was bound and sworn." Preface to 2 Inst., p. 3 and 5.

Hume says, "We may now, from the tenor of this charter, (Magna Carta,) conjecture what those laws were of King Edward, (the Confessor,) which the English nation during so many generations still desired, with such an obstinate perseverance, to have recalled and established. They were chiefly these latter articles of Magna Carta; and the barons who, at the beginning of these commotions, demanded the revival of the Saxon laws, undoubtedly thought that they had sufficiently satisfied the people, by procuring them this concession, which comprehended the princ.i.p.al objects to which they had so long aspired." Hume, ch. 11.

Edward the First confessed that the Great Charter was substantially identical with the common law, as far as it went, when he commanded his justices to allow "the Great Charter as the Common Law," " in pleas before them, and in judgment," as has been already cited in this chapter. 25 Edward I., ch. 1, (1297.)

In conclusion of this chapter, it may be safely a.s.serted that the veneration, attachment, and pride, which the English nation, for more than six centuries, have felt towards Magna Carta, are in their nature among the most irrefragable of all proofs that it was the fundamental law of the land, and const.i.tutionally binding upon the government; for, otherwise, it would have been, in their eyes, an unimportant and worthless thing. What those sentiments were I will use the words of others to describe, the words, too, of men, who, like all modern authors who have written on the same topic, had utterly inadequate ideas of the true character of the instrument on which they lavished their eulogiums.

Hume, speaking of the Great Charter and the Charter of the Forest, as they were confirmed by Henry III., in 1217, says:"Thus these famous charters were brought nearly to the shape in which they have ever since stood; and they were, during many generations, the peculiar favorites of the English nation, and esteemed the most sacred rampart to national liberty and independence. As they secured the rights of all orders of men, they were anxiously defended by all, and became the basis, in a manner, of the English monarchy, and a kind of original contract, which both limited the authority of the king and ensured the conditional allegiance of his subjects. Though often violated, they were still claimed by the n.o.bility and people; and, as no precedents were supposed valid that infringed them, they rather acquired than lost authority, from the frequent attempts made against them in several ages, by regal and arbitrary power."

Hume, ch. 12.

Mackintosh says, "It was understood by the simplest of the unlettered age for whom it was intended. It was remembered by them... For almost five centuries it was appealed to as the decisive authority on behalf of the people... To have produced it, to have preserved it, to have matured it, const.i.tute the immortal claim of England on the esteem of mankind. Her Bacons arid Shakspeares, her Miltons and Newtons, with all the truth which they have revealed, and all the generous virtues which they have inspired, are of inferior value when compared with the subjection of men and their rulers to the principles of justice; if, indeed, it be not more true that these mighty spirits could not have been formed except under equal laws, nor roused to full activity without the influence of that spirit which the Great Charter breathed over their forefathers." Mackintosh's Hist. of Eng., ch. 3, [8]

Of the Great Charter, the trial by jury is the vital part, and the only part that places the liberties of the people in their own keeping. Of this Blackstone says:

"The trial by jury, or the country, per patriam, is also that trial by the peers of every Englishman, which, as the grand bulwark of his liberties, is secured to him by the Great Charter; nullus liber h.o.m.o capiatur, vel imprisonetur, aut exuletur, aut aliquo modo destruatur, nisi per legale judicial parium suorum, vel per legem terrae.

The liberties of England cannot but subsist so long as this palladium remains sacred and inviolate, not only from all open, attacks, which none will be so hardy as to make, but also from all secret machinations which may sap and undermine it." [9]

"The trial by jury ever has been, and I trust ever will be, looked upon as the glory of the English law... It is the most transcendent privilege which any subject can enjoy or wish for, that he cannot be affected in his property, his liberty, or his person, but by the unanimous consent of twelve of his neighbors and equals."[10]

Hume calls the Trial by Jury "An inst.i.tution admirable in itself, and the best calculated for the preservation of liberty and the administration of justice, that ever was devised by the wit of man." [11]

An old book, called "English Liberties," says:"English Parliaments have all along been most zealous for preserving this Great Jewel of Liberty, Trials by Juries having no less than fifty-eight several times, since the Norman Conquest, been established and confirmed by the legislative power, no one privilege besides having been ever so often remembered in parliament."{12]

[1] Mackintosh's Hist. of Eng., ch. 3. 45 Lardner's Cab. Cyc., 354.

[2] "Forty shilling freeholders" were those "people dwelling and resident in the same counties, whereof every one of them shall have free land or tenement to the value of forty shillings by the year at the least above all charges." By statute 8 Henry 6, ch.

7, (1429,) these freeholders only were allowed to vote for members of Parliament from the counties.

[3] He probably speaks in its favor only to blind the eyes of the people to the frauds he has attempted upon its true meaning.

[4] It will be noticed that c.o.ke calls these confirmations of the charter "acts of parliament," instead of acts of the king alone.

This needs explanation.

It was one of c.o.ke's ridiculous pretences, that laws anciently enacted by the king, at the request, or with the consent, or by the advice, of his parliament, was "an act of parliament,"

instead of the act of the king. And in the extracts cited, he carries this idea so far as to pretend that the various confirmations of the Great Charter were "acts of parliament,"

instead of the acts of the kings. He might as well have pretended that the original grant of the Charter was an "act of parliament; "because it was not only granted at the request, and with the consent, and by the advice, but on the compulsion even, of those who commonly const.i.tuted his parliaments. Yet this did not make the grant of the charter "an act of parliament." It was simply an act of the king.

The object of c.o.ke, in this pretence, was to furnish some color for the palpable false- hood that the legislative authority, which parliament was trying to a.s.sume in his own day, and which it finally succeeded in obtaining, had a precedent in the ancient const.i.tution of the kingdom.

There would be as much reason in saying that, because the ancient kings were in the habit of pa.s.sing laws in special answer to the pet.i.tions of their subjects, therefore those pet.i.tioners were a part of the legislative power of the kingdom.

One great objection to this argument of c.o.ke, for the legislative authority of the ancient parliaments, is that a very large probably much the larger number of legislative acts were done without the advice, consent, request, or even presence, of a parliament. Not only were many formal statutes pa.s.sed without any mention of the consent or advice of parliament, but a simple order of the king in council, or a simple proclamation, writ, or letter under seal, issued by his command, had the same force as what c.o.ke calls "an act of parliament." And this practice continued, to a considerable extent at least, down to c.o.ke's own time.

The kings were always in the habit of consulting their parliaments, more or less, in regard to matters of legislation, not because their consent was const.i.tutionally necessary, but in order to make influence in favor of their laws, and thus induce the people to observe them, and the juries to enforce them.

The general duties of the ancient parliaments were not legislative, but judicial, as will be shown more fully hereafter.

The people were not represented in the parliaments at the time of Magna Carta, but only the archbishops, bishops, earls, barons, and knights; so that little or nothing would have been gained for liberty by c.o.ke's idea that parliament had a legislative power.

He would only have subst.i.tuted an aristocracy for a king. Even after the Commons were represented in parliament, they for some centuries appeared only as pet.i.tioners, except in the matter of taxation, when their consent was asked. And almost the only source of their influence on legislation was this: that they would sometimes refuse their consent to the taxation, unless the king would pa.s.s such laws as they pet.i.tioned for; or, as would seem to have been much more frequently the case, unless he would abolish such laws and practices as they remonstrated against.

The influence, or power of parliament, and especially of the Commons, in the general legislation of the country, was a thing of slow growth, having its origin in a device of the king to get money contrary to law, (as will be seen in the next volume,) and not at all a part of the const.i.tution of the kingdom, nor having its foundation in the consent of the people. The power, as at present exercised, was not fully established until 1688, (near five hundred years after Magna Carta,) when the House of Commons (falsely so called) had acquired such influence as the representative, not of the people, but of the wealth, of the nation, that they compelled, the king to discard the oath fixed by the const.i.tution of the kingdom; (which oath has been already given in a former chapter, [5] and was, in substance, to preserve and execute the Common Law, the Law of the Land, or, in the words of the oath, "the just laws and customs which the common people had chosen;") and to swear that he would "govern the people of this kingdom of England, and the dominions thereto belonging, accordingto the statutes in parliament agreed on, and the laws and customs of the same." [6]

The pa.s.sage and enforcement of this statute, and the a.s.sumption of this oath by the king, were plain violations of the English const.i.tution, inasmuch as they abolished, so far as such an oath could abolish, the legislative power of the king, and also "those just laws and customs which the common people (through their juries) had chosen," and subst.i.tuted the will of parliament in their stead.

c.o.ke was a great advocate for the legislative power of parliament, as a means of restraining the power of the king. As he denied all power to juries to decide upon the obligation of laws, and as he held that the legislative power was "so transcendent and absolute as (that) it cannot be confined, either for causes or persons, within any bounds," [7] he was perhaps honest in holding that it was safer to trust this terrific power in the hands of parliament, than in the hands of the king. His error consisted in holding that either the king or parliament had any such power, or that they had any power at all to pa.s.s laws that should be binding upon a jury.

These declarations of c.o.ke, that the charter was confirmed by thirty-two "acts of parliament," have a mischievous bearing in another respect. They tend to weaken the authority of the charter, by conveying the impression that the charter itself might be abolished by "act of parliament." c.o.ke himself admits that it could not be revoked or rescinded by the king; for he says, "All pretence of prerogative against Magna Carta is taken away." (2 Inst., 36.)

He knew perfectly well, and the whole English nation knew, that the king could not lawfully infringe Magna Carta. Magna Carta, therefore, made it impossible that absolute power could ever be practically established in England, in the hands of the king.

Hence, as c.o.ke was an advocate for absolute power, that is, for a legislative power "so transcendent and absolute as (that) it cannot, be confined, either for causes or persons, within any bounds," there was no alternative for him but to vest this absolute power in parliament. Had he not vested it in parliament, he would have been obliged to abjure it altogether, and to confess that the people, through their juries, had the right to judge of the obligation of all legislation whatsoever; in other words, that they had the right to confine the government within the limits of "those just laws and customs which the common people (acting as jurors) had chosen." True to his instincts, as a judge, and as a tyrant, he a.s.sumed that this absolute power was vested in the hands of parliament.

But the truth was that, as by the English const.i.tution parliament had no authority at all for general legislation, it could no more confirm, than it could abolish, Magna Carta.

These thirty-two confirmations of Magna Carta, which c.o.ke speaks of as "acts of parliament," were merely acts of the king. The parliaments, indeed, by refusing to grant him money, except, on that condition, and otherwise, had contributed to oblige him to make the confirmations; just as they had helped to oblige him by arms to grant the charter in the first place. But the confirmations themselves were nevertheless const.i.tutionally, as well as formally, the acts of the king alone.

[5] See page 103.

[6]St. 1.William and Mary, ch. 6, (1688)

[7]4. Inst., 36.

[8] Under the head of "John."

[9] 4 Blackstone, 849-50.

[10] 3 Blackstone, 379.

[11] Hume, ch. 2.

[12] Page 203, 5th edition, 1721.

CHAPTER XII. Limitations Imposed Upon The Majority By The Trial By Jury

The princ.i.p.al objection, that will be made to the doctrine of this essay, is, that under it, a jury would paralyze the power of the majority, and veto all legislation that was not in accordance with the will of the whole, or nearly the whole, people.

The answer to this objection is, that the limitation, which would be thus imposed upon the legislative power, (whether that power be vested in the majority, or minority, of the people,) is the crowning merit of the trial by jury. It has other merits; but, though important in themselves, they are utterly insignificant and worthless in comparison with this.

It is this power of vetoing all partial and oppressive legislation, and of restricting the government to the maintenance of such laws as the whole, or substantially the whole, people are agreed in, that makes the trial by jury "the palladium of liberty." Without this power it would never have deserved that name.

The will, or the pretended will, of the majority, is the last lurking place of tyranny at the present day. The dogma, that certain individuals and families have a divine appointment to govern the rest of mankind, is fast giving place to the one that the larger number have a right to govern the smaller; a dogma, which may, or may not, be less oppressive in its practical operation, but which certainly is no less false or tyrannical in principle, than the one it is so rapidly supplanting. Obviously there is nothing in the nature of majorities, that insures justice at their hands. They have the same pa.s.sions as minorities, and they have no qualities whatever that should be expected to prevent them from practising the same tyranny as minorities, if they think it will be for their interest to do so.

There is no particle of truth in the notion that the majority have a right to rule, or to exercise arbitrary power over, the minority, simply because the former are more numerous than the latter. Two men have no more natural right to rule one, than one has to rule two. Any single man, or any body of men, many or few, have a natural right to maintain justice for themselves, and for any others who may need their a.s.sistance against the injustice of any and all other men, without regard to their numbers; and majorities have no right to do any more than this. The relative numbers of the opposing parties have nothing to do with the question of right. And no more tyrannical principle was ever avowed, than that the will of the majority ought to have the force of law, without regard to its justice; or, what is the same thing, that the will of the majority ought always to be presumed to be in accordance with justice. Such a doctrine is only another form of the doctrine that might makes right.

When two men meet one upon the highway, or in the wilderness, have they a right to dispose of his life, liberty, or property at their pleasure, simply because they are the more numerous party?

Or is he bound to submit to lose his life, liberty, or property, if they demand it, merely because he is the less numerous party?

Or, because they are more numerous than he, is he bound to presume that they are governed only by superior wisdom, and the principles of justice, and by no selfish pa.s.sion that can lead them to do him a wrong? Yet this is the principle, which it is claimed should govern men in all their civil relations to each other. Mankind fall in company with each other on the highway or in the wilderness of life, and it is claimed that the more numerous party, simply by virtue of their superior numbers, have the right arbitrarily to dispose of the life, liberty, and property of the minority; and that the minority are bound, by reason of their inferior numbers, to practise abject submission, and consent to hold their natural rights, any, all, or none, as the case may be, at the mere will and pleasure of the majority; as if all a man's natural rights expired, or were suspended by the operation of a paramount law, the moment he came into the presence of superior numbers.