An Essay on the Trial By Jury

Part 1 out of 6

Scanner's Note: I have made two changes in this text. First I have
removed the footnotes to the end of each chapter and I have placed
note 9 at the end of chapter 6 noting that because of the ratification
of the XIX amendment to the Constitution for the United States,
August 20, 1920, women were fully enfranchised with all rights of
voting and jury service in all states of the Union. Other than the lack
of italics and bold in this text and the typos (may they be few) this is
the complete first edition text. Let me know of any mistakes you have
caught! My email address's for now is haradda@aol.com and
davidr@inconnect.com.

David Reed

An Essay on the Trial By Jury
By LYSANDER SPOONER

Entered according to Act of Congress, in the year 1852, by
LYSANDER SPOONER

In the Clerk's Office of the District Court of Massachusetts.

NOTICE TO ENGLISH PUBLISHERS

The author claims the copyright of this book in England, on
Common Law principles, without regard to acts of parliament; and
if the main principle of the book itself be true, viz., that no
legislation, in conflict with the Common Law, is of any validity,
his claim is a legal one. He forbids any one to reprint the book
without his consent.

Stereotyped by HOBART & ROBBINS;
New England Type and Stereotype Foundery,BOSTON.

NOTE

This volume, it is presumed by the author, gives what will
generally be considered satisfactory evidence, though not all the
evidence, of what the Common Law trial by jury really is. In a
future volume, if it should be called for, it is designed to
corroborate the grounds taken in this; give a concise view of the
English constitution; show the unconstitutional character of the
existing government in England, and the unconstitutional means
by which the trial by jury has been broken down in practice; prove
that, neither in England nor the United States, have legislatures
ever been invested by the people with any authority to impair the
powers, change the oaths, or (with few exceptions) abridge the
jurisdiction, of juries, or select jurors on any other than Common
Law principles; and, consequently, that, in both countries,
legislation is still constitutionally subordinate to the discretion and
consciences of Common Law juries, in all cases, both civil and
criminal, in which juries sit. The same volume will probably also
discuss several political and legal questions, which will naturally
assume importance if the trial by jury should be reestablished.

CONTENTS

CHAPTER I. THE RIGHT OF JURIES TO JUDGE OF THE
JUSTICE OF LAWS
SECTION 1.
SECTION 2.

CHAPTER II. THE TRIAL BY JURY, AS DEFINED BY
MAGNA CARTA
SECTION 1. The History Of Magna Carta
SECTION 2. The Language Of Magna Carta

CHAPTER III. ADDITIONAL PROOFS OF THE RIGHTS AND
DUTIES OF JURORS.
SECTION 1. Weakness of the Regal Authority
SECTION 2. The Ancient Common Law Juries Were Mere Courts
Of Conscience
SECTION 3. The Oaths of Jurors
SECTION 4. The Right Of Jurors To Fix The Sentence
SECTION 5. The Oaths Of Judges
SECTION 6. The Coronation Oath

CHAPTER IV. THE RIGHTS AND DUTIES OF JURIES IN
CIVIL SUITS

CHAPTER V. OBJECTIONS ANSWERED

CHAPTER VI. JURIES OF THE PRESENT DAY ILLEGAL

CHAPTER VII. ILLEGAL JUDGES

CHAPTER VIII. THE FREE ADMINISTRATION OF JUSTICE

CHAPTER IX. THE CRIMINAL INTENT

CHAPTER X. MORAL CONSIDERATIONS FOR JURORS

CHAPTER XI. AUTHORITY OF MAGNA CARTA

CHAPTER XII. LIMITATIONS IMPOSED UPON THE
MAJORITY BY THE TRIAL BY JURY

APPENDIX TAXATION

TRIAL BY JURY

CHAPTER I

THE RIGHT OF JURIES TO JUDGE OF THE JUSTICE OF LAWS

SECTION I.

FOR more than six hundred years that is, since Magna Carta, in
1215 there has been no clearer principle of English or American
constitutional law, than that, in criminal cases, it is not only the
right and duty of juries to judge what are the facts, what is the law,
and what was the moral intent of the accused; but that it is also
their right, and their primary and paramount duty, to judge of the
justice of the law, and to hold all laws invalid, that are, in their
opinion, unjust or oppressive, and all persons guiltless in violating,
or resisting the execution of, such laws.

Unless such be the right and duty of jurors, it is plain that, instead
of juries being a "palladium of liberty" a barrier against the tyranny
and oppression of the government they are really mere tools in its
hands, for carrying into execution any injustice and oppression it
may desire to have executed.

But for their right to judge of the law, and the justice of the law,
juries would be no protection to an accused person, even as to
matters of fact; for, if the government can dictate to a jury any law
whatever, in a criminal case, it can certainly dictate to them the
laws of evidence. That is, it can dictate what evidence is
admissible, and what inadmissible, and also what force or weight
is to be given to the evidence admitted. And if the government can
thus dictate to a jury the laws of evidence, it can not only make it
necessary for them to convict on a partial exhibition of the
evidence rightfully pertaining to the case, but it can even require
them to convict on any evidence whatever that it pleases to offer
them.

That the rights and duties of jurors must necessarily be such as are
here claimed for them, will be evident when it is considered what
the trial by jury is, and what is its object.

"The trial by jury," then, is a "trial by the country" that is, by the
people as distinguished from a trial by the government.

It was anciently called "trial per pais" that is, "trial by the
country." And now, in every criminal trial, the jury are told that the
accused "has, for trial, put himself upon the country; which
country you (the jury) are."

The object of this trial "by the country," or by the people, in
preference to a trial by the government, is to guard against every
species of oppression by the government. In order to effect this
end, it is indispensable that the people, or "the country," judge of
and determine their own liberties against the government; instead
of the government's judging of and determining its own powers
over the people. How is it possible that juries can do anything to
protect the liberties of the people against the government, if they
are not allowed to determine what those liberties are?

Any government, that is its own judge of, and determines
authoritatively for the people, what are its own powers over the
people, is an absolute government of course. It has all the powers
that it chooses to exercise. There is no other or at least no more
accurate definition of a despotism than this.

On the other hand, any people, that judge of, and determine
authoritatively for the government, what are their own liberties
against the government, of course retain all the liberties they wish
to enjoy. And this is freedom. At least, it is freedom to them;
because, although it may be theoretically imperfect, it,
nevertheless, corresponds to their highest notions of freedom.

To secure this right of the people to judge of their own liberties
against the government, the jurors are taken, (or must be, to make
them lawful jurors,} from the body of the people, by lot, or by
some process that precludes any previos knowledge, choice, or
selection of them, on the part of the government.

This is done to prevent the government's constituting a jury of its
own partisans or friends; in other words, to prevent the
government's packing a jury, with a view to maintain its own laws,
and accomplish its own purposes.

It is supposed that, if twelve men be taken, by lot, from the mass of
the people, without the possibility of any previous knowledge,
choice, or selection of them, on the part of the government, the
jury will be a fair epitome of "the country" at large, and not merely
of the party or faction that sustain the measures of the government;
that substantially all classes of opinions, prevailing among the
people, will be represented in the jury; and especially that the
opponents of the government, (if the government have any
opponents,) will be represented there, as well as its friends; that
the classes, who are oppressed by the laws of the government, (if
any are thus oppressed,) will have their representatives in the jury,
as well as those classes, who take sides with the oppressor that is,
with the government.

It is fairly presumable that such a tribunal will agree to no
conviction except such as substantially the whole country would
agree to, if they were present, taking part in the trial. A trial by
such a tribunal is, therefore, in effect, "a trial by the country." In its
results it probably comes as near to a trial by the whole country, as
any trial that it is practicable to have, without too great
inconvenience and expense. And. as unanimity is required for a
conviction, it follows that no one can be convicted, except for the
violation of such laws as substantially the whole country wish to
have maintained. The government can enforce none of its laws,
(by punishing offenders, through the verdicts of juries,) except
such as substantially the whole people wish to have enforced. The
government, therefore, consistently with the trial by jury, can
exercise no powers over the people, (or, what is the same thing,
over the accused person, who represents the rights of the people,)
except such a substantially the whole people of the country
consent that it may exercise. In such a trial, therefore, "the
country," or the people, judge of and dtermine their own liberties
against the government, instead of thegovernment's judging of and
determining its own powers over the people.

But all this "trial by the country" would be no trial at all "by the
country," but only a trial by the government, if the government
'could either declare who may, and who may not, be jurors, or
could dictate to the jury anything whatever, either of law or
evidence, that is of the essence of the trial.

If the government may decide who may, and who may not, be
jurors, it will of course select only its partisans, and those friendly
to its measures. It may not only prescribe who may, and who may
not, be eligible to be drawn as jurors; but it may also question each
person drawn as a juror, as to his sentiments in regard to the
particular law involved in each trial, before suffering him to be
sworn on the panel; and exclude him if he be found unfavorable to
the maintenance of such a law. [1]

So, also, if the government may dictate to the jury what laws they
are to enforce, it is no longer a " trial by the country," but a trial by
the government; because the jury then try the accused, not by any
standard of their own not by their own judgments of their rightful
liberties but by a standard. dictated to them by the government.
And the standard, thus dictated by the government, becomes the
measure of the people's liberties. If the government dictate the
standard of trial, it of course dictates the results of the trial. And
such a trial is no trial by the country, but only a trial by the
government; and in it the government determines what are its own
powers over the people, instead of the people's determining what
are their own liberties against the government. In short, if the jury
have no right to judge of the justice of a law of the government,
they plainly can do nothing to protect the people against the
oppressions of the government; for there are no oppressions which
the government may not authorize by law.

The jury are also to judge whether the laws are rightly expounded
to them by the court. Unless they judge on this point, they do
nothing to protect their liberties against the oppressions that are
capable of being practiced under cover of a corrupt exposition of
the laws. If the judiciary can authoritatively dictate to a jury any
exposition of the law, they can dictate to them the law itself, and
such laws as they please; because laws are, in practice, one thing
or another, according as they are expounded.

The jury must also judge whether there really be any such law, (be
it good or bad,) as the accused is charged with having transgressed.
Unless they judge on this point, the people are liable to have their
liberties taken from them by brute force, without any law at all.

The jury must also judge of the laws of evidence. If the
government can dictate to a jury the laws of evidence, it can not
only shut out any evidence it pleases, tending to vindicate the
accused, but it can require that any evidence whatever, that it
pleases to offer, be held as conclusive proof of any offence
whatever which the government chooses to allege.

It is manifest, therefore, that the jury must judge of and try the
whole case, and every part and parcel of the case, free of any
dictation or authority on the part of the government. They must
judge of the existence of the law; of the true exposition of the law;
of the justice of the law; and of the admissibility and weight of all
the evidence offered; otherwise the government will have
everything its own way; the jury will be mere puppets in the hands
of the government: and the trial will be, in reality, a trial by the
government, and not a "trial by the country." By such trials the
government will determine its own powers over the people, instead
of the people's determining their own liberties against the
government; and it will be an entire delusion to talk, as for
centuries we have done, of the trial by jury, as a "palladium of
liberty," or as any protection to the people against the oppression
and tyranny of the government.

The question, then, between trial by jury, as thus described, and
trial by the government, is simply a question between liberty and
despotism. The authority to judge what are the powers of the
government, and what the liberties of the people, must necessarily
be vested in one or the other of the parties themselves the
government, or the people; because there is no third party to whom
it can be entrusted. If the authority be vested in the government,
the governmnt is absolute, and the people have no liberties except
such as the government sees fit to indulge them with. If, on the
other hand, that authority be vested in the people, then the people
have all liberties, (as against the government,) except suc as
substantially the whole people (through a jury) choose to disclaim;
and the government can exercise no power except such as
substantially the whole people (through a jury) consent that it may
exercise.

SECTION II.

The force and. justice of the preceding argument cannot be evaded
by saying that the government is chosen by the people; that, in
theory, it represents the people; that it is designed to do the will of
the people; that its members are all sworn to observe the
fundamental or constitutional law instituted by the people; that its
acts are therefore entitled to be considered the acts of the people;
and that to allow a jury, representing the people, to invalidate the
acts of the' government, would therefore be arraying the people
against themselves.

There are two answers to such an argument.

One answer is, that, in a representative government, there is no
absurdity or contradiction, nor any arraying of the people against
themselves, in requiring that the statutes or enactments of the
government shall pass the ordeal of any number of separate
tribunals, before it shall be determined that they are to have the
force of laws. Our American constitutions have provided five of
these separate tribunals, to wit, representatives, senate,
executive,[2] jury, and judges; and have made it necessary that
each enactment shall pass the ordeal of all these separate tribunals,
before its authority can be established by the punishment of those
who choose to transgress it. And there is no more absurdity or
inconsistency in making a jury one of these several tribunals, than
there is in making the representatives, or the senate, or the
executive, or the judges, one of them. There is no more absurdity
in giving a jury a veto upon the laws, than there is in giving a veto
to each of these other tribunals. The people are no more arrayed
against themselves, when a jury puts its veto upon a statute, which
the other tribunals have sanctioned, than they are when the same
veto is exercised by the representatives, the senate, the executive,
or the judges.

But another answer to the argument that the people are arrayed
against themselves, when a jury hold an enactment of the
government invalid, is, that the government, and all the
departments of the government, are merely the servants and agents
of the people; not invested with arbitrary or absolute authority to
bind the people, but required to submit all their enactments to the
judgment of a tribunal more fairly representing the whole people,
before they carry them into execution, by punishing any individual
for transgressing them. If the government were not thus required to
submit their enactments to the judgment of "the country," before
executing them upon individuals if, in other words, the people
had reserved to themselves no veto upon the acts of the
government, the government, instead of being a mere servant and
agent of the people, would be an absolute despot over the people.
It would have all power in its own hands; because the power to
punish carries all other powers with it. A power that can, of itself,
and by its own authority, punish disobedience, can compel
obedience and submission, and is above all responsibility for the
character of its laws. In short, it is a despotism.

And it is of no consequence to inquire how a government came by
this power to punish, whether by prescription, by inheritance, by
usurpation. or by delegation from the people's If it have now but
got it, the government is absolute.

It is plain, therefore, that if the people have invested the
government with power to make laws that absolutely bind the
people, and to punish the people for transgressing those laws, the
people have surrendered their liberties unreservedly into the hands
of the government.

It is of no avail to say, in answer to this view of the ease, that in
surrendering their liberties into the hands of the government, the
people took an oath from the government, that it would exercise its
power within certain constitutional limits; for when did oaths ever
restrain a government that was otherwise unrestrained? Orwhen
did a government fail to determine that all its acts were within the
constitutional and authorized limits of its power, if it were
permitted to determine that question for itself?

Neither is it of any avail to say, that, if the government abuse its
power, and enact unjust and oppressive laws, the government may
be changed by the influence of discussion, and the exercise of the
right of suffrage. Discussion can do nothing to prevent the
enactment, or procure the repeal, of unjust laws, unless it be
understood that, the discussion is to be followed by resistance.
Tyrants care nothing for discussions that are to end only in
discussion. Discussions, which do not interfere with the
enforcement of their laws, are but idle wind to them. Suffrage is
equally powerless and unreliable. It can be exercised only
periodically; and the tyranny must at least be borne until the time
for suffrage comes. Be sides, when the suffrage is exercised, it
gives no guaranty for the repeal of existing laws that are
oppressive, and no security against the enactment of new ones that
are equally so. The second body of legislators are liable and likely
to be just as tyrannical as the first. If it be said that the second
body may be chosen for their integrity, the answer is, that the first
were chosen for that very reason, and yet proved tyrants. The
second will be exposed to the same temptations as the first, and
will be just as likely to prove tyrannical. Who ever heard that
succeeding legislatures were, on the whole, more honest than those
that preceded them? What is there in the nature of men or things to
make them so? If it be said that the first body were chosen from
motives of injustice, that fact proves that there is a portion of
society who desire to establish injustice; and if they were powerful
or artful enough to procure the election of their instruments to
compose the first legislature, they will be likely to be powerful or
artful enough to procure the election of the same or similar
instruments to compose the second. The right of suffrage,
therefore, and even a change of legislators, guarantees no change
of legislation certainly no change for the better. Even if a change
for the better actually comes, t cmes too late, because it comes
only after more or less injustice has been irreparably done.

But, at best, the right of suffrage can be exercised only
periodically; and between the periods the legislators are wholly
irresponsible. No despot was ever more entirely irresponsible than
are republican legislators during the period for which they are
chosen. They can neither, be removed from their office, nor called
to account while in their office, nor punished after they leave their
office, be their tyranny what it may. Moreover, the judicial and
executive departments of the government are equally irresponsible
to the people, and are only responsible, (by impeachment, and
dependence for their salaries), to these irresponsible legislators.
This dependence of the judiciary and executive upon the
legislature is a guaranty that they will always sanction and execute
its laws, whether just or unjust. Thus the legislators hold the whole
power of the government in their hands, and are at the same time
utterly irresponsible for the manner in which they use it.

If, now, this government, (the three branches thus really united in
one), can determine the validity of, and enforce, its own laws, it is,
for the time being, entirely absolute, and wholly irresponsible to
the people.

But this is not all. These legislators, and this government, so
irresponsible while in power, can perpetuate their power at
pleasure, if they can determine what legislation is authoritative
upon the people, and can enforce obedience to it, for they can not
only declare their power perpetual, but they can enforce
submission to all legislation that is necessary to secure its
perpetuity. They can, for example, prohibit all discussion of the
rightfulness of their authority; forbid the use of the suffrage;
prevent the election of any successors; disarm, plunder, imprison,
and even kill all who refuse submission. If, therefore, the
government (all departments united) be absolute for a day that is,
if it can, for a day, enforce obedience to its own laws it can, in
that day, secure its power for all time like the queen, who wished
to reign but for a day, but in that day caused the king, her husband,
to be slain, and usurped his throne.

Nor will it avail to say that such acts would be unconstitutional,
and that unconstitutional acts may be lawfully resisted; for
everything a government pleases to do will, of course, be
determined to be constitutional, if the government itself be
permitted to determine the question of the constitutionality of its
own acts. Those who are capable of tyranny, are capable of perjury
to sustain it.

The conclusion, therefore, is, that any government, that can, for a
day, enforce its own laws, without appealing to the people, (or to a
tribunal fairly representing the people,) for their consent, is, in
theory, an absolute government, irresponsible to the people, and
can perpetuate its power at pleasure.

The trial by jury is based upon a recognition of this principle, and
therefore forbids the government to execute any of its laws, by
punishing violators, in any case whatever, without first getting the
consent of "the country," or the people, through a jury. In this way,
the people, at all times, hold their liberties in their own hands, and
never surrender them, even for a moment, into the hands of the
government.

The trial by jury, then, gives to any and every individual the
liberty, at any time, to disregard or resist any law whatever of the
government, if he be willing to submit to the decision of a jury, the
questions, whether the law be intrinsically just and obligatory? and
whether his conduct, in disregarding or resisting it, were right in
itself? And any law, which does not, in such trial, obtain the
unanimous sanction of twelve men, taken at random from the
people, and judging according to the standard of justice in their
own minds, free from all dictation and authority of the
government, may be transgressed and resisted with impunity, by
whomsoever pleases to transgress or resist it.[3]

The trial by jury authorizes all this, or it is a sham and a hoax,
utterly worthless for protecting the people against oppression. If it
do not authorize an individual to resist the first and least act of
injustice or tyranny, on the part of the government, it does not
authorize him to resist the last and the greatest. If it do not
authorize individuals to nip tyranny in the bud, it does not
authorize them to cut it down when its branches are filled with the
ripe fruits of plunder and oppression.

Those who deny the right of a jury to protect an individual in
resisting an unjust law of the government, deny him all defence
whatsoever against oppression. The right of revolution, which
tyrants, in mockery, accord to mankind, is no legal right under a
government; it is only a natural right to overturn a government.
The government itself never acknowledges this right. And the right
is practically established only when and because the government,
no longer exists to call it in question. The right, therefore, can be
exercised with impunity, only when it is exercised victoriously. All
unsuccessful attempts at revolution, however justifiable in
themselves, are punished as treason, if the government be
permitted to judge of the treason. The government itself never
admits the injustice of its laws, as a legal defence for those who
have attempted a revolution, and failed. The right of revolution,
therefore, is right of no practical value, except for those who are
stronger than the government. So long, therefore, as the
oppressions of a government are kept within such limits as simply
not to exasperate against it a power greater than its own, the right
of revolution cannot be appealed to, and is therefore inapplicable
to the case. This affords a wide field for tyranny; and, if a jury
cannot here intervene, the oppressed are utterly defenceless.

It is manifest that the only security against the tyranny of the
government lies in forcible resistance to the execution of the
injustice; because the injustice will certainly be executed, unless it
be forcibly resisted. And if it be but suffered to be executed, it
must then be borne; for the government never makes
compensation for its own wrongs.

Since, then, this forcible resistance to the injustice of the
government is the only possible means of preserving liberty, it is
indispensable to all legal liberty that this resistance should be
legalized. It is perfectly self-evident that where there is no legal
right to resist the oppression of the government, there can be no
lgal liberty. And here it is all-important to notice, that, practically
speaking, there can be no legal right to resist the oppressions of the
government, unless there be some legal tribunal, other than the
government, and wholly independent of, and above, the
government, to judge between the government and those who
resist its oppressions; in other words, to judge what laws of the
government are to be obeyed, and what may be resisted and held
for nought. The only tribunal known to our laws, for this purpose,
is a jury. If a jury have not the right to judge between the
government and those who disobey its laws, and resist its
oppressions, the government is absolute, and the people, legally
speaking are slaves. Like many other slaves they may have
sufficient courage and strength to keep their masters somewhat in
check; but they are nevertheless known to the law only as slaves.

That this right of resistance was recognized as a common law
right, when the ancient and genuine trial by jury was in force, is
not only proved by the nature of the trial itself, but is
acknowledged by history. [4]

This right of resistance is recognized by the constitution of the
United States, as a strictly legal and constitutional right. It is so
recognized, first by the provision that "the trial of all crimes,
except in cases of impeachment, shall be by jury" that is, by the
country and not by the government; secondly, by the provision
that "the right of the people to keep and bear arms shall not be
infringed." This constitutional security for "the right to keep and
bear arms," implies the right to use them as much as a
constitutional security for the right to buy and keep food would
have implied the right to eat it. The constitution, therefore, takes it
for granted that

the people will judge of the conduct of the government, and that,
as they have the right, they will also have the sense, to use arms,
whenever the necessity of the case justifies it. And it is a sufficient
and legal defence for a person accused of using arms against the
government, if he can show, to the satisfaction of a jury, or even
any one of a jury, that the law he resisted was an unjust one.

In the American State constitutions also, this right of resistance to
the oppressions of the government is recognized, in various ways,
as a natural, legal, and constitutional right. In the first place, it is
so recognized by provisions establishing the trial by jury; thus
requiring that accused persons shall be tried by "the country,"
instead of the government. In the second place, it is recognized by
many of them, as, for example, those of Massachusetts, Maine,
Vermont, Connecticut, Pennsylvania, Ohio, Indiana, Michigan,
Kentucky, Tennessee, Arkansas, Mississippi, Alabama, and
Florida, by provisions expressly declaring that the people shall
have the right to bear arms. In many of them also, as, for example,
those of Maine, New Hampshire, Vermont, Massachusetts, New
Jersey, Pennsylvania, Delaware, Ohio, Indiana, Illinois, Florida,
Iowa, and Arkansas, by provisions, in their bills of rights, declaring
that men have a natural, inherent, and inalienable right of
"defending their lives and liberties." This, of course, means that
they have a right to defend them against any injustice on the part
of the government, and not merely on the part of private
individuals; because the object of all bills of rights is to assert the
rights of individuals and the people, as against the government,
and not as against private persons. It would be a matter of
ridiculous supererogation to assert, in a constitution of
government, the natural right of men to defend their lives and
liberties against private trespassers.

Many of these bills of rights also assert the natural right of all men
to protect their property that is, to protect it against the
government. It would be unnecessary and silly indeed to assert, in
a constitution of government, the natural right of individuals to
protect their property against thieves and robbers.

The constitutions of New Hampshire and Tennessee also declare
that "The doctrine of non-resistance against arbitrary power and
oppression is absurd, slavish, and destructive of the good and
happiness of mankind."

The legal effect of these constitutional recognitions of the right of
individuals to defend their property, liberties, and lives, ' against
the government, is to legalize resistance to all injustice and
oppression, of every name and nature whatsoever, on the part of
the government.

But for this right of resistance, on the part of the people, all
governments would become tyrannical to a degree of which few
people are aware. Constitutions are utterly worthless to restrain the
tyranny of governments, unless it be understood that the people
will, by force, compel the government to keep within the
constitutional limits. Practically speaking, no government knows
any limits to its power, except the endurance of the people. But
that the people are stronger than the government, and will resist in
extreme cases, our governments would be little or nothing else
than organized systems of plunder and oppression. All, or nearly
all, the advantage there is in fixing any constitutional limits to the
power of a government, is simply to give notice to the government
of the point at which it will meet with resistance. If the people are
then as good as their word, they may keep the government within
the bounds they have set for it; otherwise it will disregard them as
is proved by the example of all our American governments, in
which the constitutions have all become obsolete, at the moment
of their adoption, for nearly or quite all purposes except the
appointment of officers, who at once become practically absolute,
except so far as they are restrained by the fear of popular
resistance.

The bounds set to the power of the government, by the trial by
jury, as will hereafter be shown, are these that the government
shall never touch the property, person, or natural or civil rights of
an individual, against his consent, {xcept for the purpose of
bringing them before a jury for trial,) unless in pursuance and
execution of a judgment, or decree, rendered by a jury in each
individual case, upon such evidence, nd such law, as are
satisfactory to their own understandings and consciences,
irrespective of all legislation of the government.

[1]To show that this supposition is not an extravagant one, it may
be mentioned that courts have repeatedly questioned jurors to
ascertain whether they were prejudiced against the government
that is, whether they were in favor of, or opposed to, such laws of
the government as were to be put in issue in the then pending trial.
This was done (in 1851) in the United States District Court for the
District of Massachusetts, by Peleg Sprague, the United States
district judge, in empanelling three several juries for the trials of
Scott, Hayden, and Morris, charged with having aided in the rescue
of a fugitive slave from the custody of the United States deputy
marshal. This judge caused the following question to be
propounded to all the jurors separately; and those who answered
unfavorably for the purposes of the government, were excluded
from the panel.

"Do you hold any opinions upon the subject of the Fugitive Slave
Law, so called, which will induce you to refuse to convict a person
indicted under it, if the facts set forth, in the indictment, and
constituting the offence, are proved against him, and the court
direct you that the law is constitutional?"

The reason of this question was, that "the Fugitive Slave Law, so
called," was so obnoxious to a large portion of the people, as to
render a conviction under it hopeless, if the jurors were taken
indiscriminately from among the people.

A similar question was soon afterwards propounded to the persons
drawn as jurors in the United States Circuit Court for the District
of Massachusetts, by Benjamin R. Curtis, one of the Justices of the
Supreme Court of the United States, in empanelling a jury for the
trial of the aforesaid Morris on the charge before mentioned; and
those who did not answer the question favorably for the
government were again excluded from the panel.

It has also been an habitual practice with the Supreme Court of
Massachusetts, in empanelling juries for the trial of capital
offences, to inquire of the persons drawn as jurors whether they
had any conscientious scruples against finding verdicts of guilty in
such eases; that is, whether they had any conscientious scruples
against sustaining the law prescribing death as the punishment of
the crime to be trick; and to exclude from the panel all who
answered in the affirmative.

The only principle upon which these questions are asked, is this
that no man shall be allowed to serve as juror, unless he be ready
to enforce any enactment of the government, however cruel or
tyrannical it may be.

What is such a jury good for, as a protection against the tyranny of
the government? A jury like that is palpably nothing but, a mere
tool of oppression in the hands of the government. A trial by such
a jury is really a trial by the government itself and not a trial by
the country because it is a trial only by men specially selected by
the government for their readiness to enforce its own tyrannical
measures.

If that be the true principle of the trial by jury, the trial is utterly
worthless as a security to liberty. The Czar might, with perfect
safety to his authority, introduce the trial by jury into Russia, if he
could but be permitted to select his jurors from those who were
ready to maintain his laws, without regard to their injustice.

This example is sufficient to show that the very pith of the trial by
jury, as a safeguard to liberty, consists in the jurors being taken
indiscriminately from the whole people, and in their right to hold
invalid all laws which they think unjust.

[2] The executive has a qualified veto upon the passage of laws, in
most of our governments, and an absolute veto, in all of them,
upon the execution of any laws which he deems unconstitutional;
because his oath to support the constitution (as he understands it)
forbids him to execute any law that he deems unconstitutional.

[3] And if there be so much as a reasonable doubt of the justice of
the laws, the benefit of that doubt must be given to the defendant,
and not to the government. So that the government must keep its
laws clearly within the limits of justice, if it would ask a jury to
enforce them.

[4] Hallam says, "The relation established between a lord and his
vassal by the feudal tenure, far from containing principles of any
servile and implicit obedience, permitted the compact to be
dissolved in case of its violation by either party. This extended as
much to the sovereign as to inferior lords. * * If a, vassal was
aggrieved, and if justice was denied him, he sent a defiance, that
is, a renunciation of fealty to the king, and was entitled to enforce
redress at the point of his sword. It then became a contest of
strength as between two independent potentates, and was
terminated by treaty, advantageous or otherwise, according to the
fortune of war. * * There remained the original principle, that
allegiance depended conditionally upon good treatment, and that
an appeal might be lawfully made to arms against an oppressive
government. Nor was this, we may be sure, left for extreme
necessity, or thought to require a long-enduring forbearance. In
modern times, a king, compelled by his subjects' swords to
abandon any pretension, would be supposed to have ceased to
reign; and the express recognition of such a right as that of
insurrection has been justly deemed inconsistent with the majesty
of law. But ruder ages had ruder sentiments. Force was necessary
to repel force; and men accustomed to see the king's authority
defied by a private riot, were not much shocked when it was
resisted in defence of public freedom." 3 Middle Age, 240-2.

CHAPTER II. THE TRIAL BY JURY, AS DEFINED BY
MAGNA CARTA

THAT the trial by jury is all that has been claimed for it in the
preceding chapter, is proved both by the history and the language
of the Great Charter of English Liberties, to which we are to look
for a true definition of the trial by jury, and of which the guaranty
for that trial is the vital, and most memorable, part.

SECTION I

The History of Magna Carta.

In order to judge of the object and meaning of that chapter of
Magna Carta which secures the trial by jury, it is to be borne in
mind that, at the time of Magna Carta, the king (with exceptions
immaterial to this discussion, but which will appear hereafter)
was, constitutionally, the entire government; the sole legislative,
judicial, and executive power of the nation. The executive and
judicial officers were merely his servants, appointed by him, and
removable at his pleasure. In addition to this, "the king himself
often sat in his court, which always attended his person. He there
heard causes, and pronounced judgment; and though he was
assisted by the advice of other members, it is not to be imagined
that a decision could be obtained contrary to his inclination or
opinion."[1] Judges were in those days, and afterwards, such abject
servants of the king, that "we find that King Edward I. (1272 to
1307) fined and imprisoned his judges, in the same manner as
Alfred the Great, among the Saxons, had done before him, by the
sole exercise of his authority."[2]

Parliament, so far as there was a parliament, was a mere council of
the king.[3] It assembled only at the pleasure of the king; sat only
during his pleasure; and when sitting had no power, so far as
general legislation was concerned, beyond that of simply advising
the king. The only legislation to which their assent was
constitutionally necessary, was demands for money and military
services for extraordinary occasions. Even Magna Carta itself
makes no provisions whatever for any parliaments, except when
the king should want means to carry on war, or to meet some other
extraordinary necessity.[4] He had no need of parliaments to raise
taxes for the ordinary purposes of government; for his revenues
from the rents of the crown lands and other sources, were ample
for all except extraordinary occasions. Parliaments, too, when
assembled, consisted only of bishops, barons, and other great men
of the kingdom, unless the king chose to invite others.[5] There
was no House of Commons at that time, and the people had no
right to be heard, unless as petitioners.[6]

Even when laws were made at the time of a parliament, they were
made in the name of the king alone. Sometimes it was inserted in
the laws, that they were made with the consent or advice of the
bishops, barons, and others assembled; but often this was omitted.
Their consent or advice was evidently a matter of no legal
importance to the enactment or validity of the laws, but only
inserted, when inserted at all, with a view of obtaining a more
willing submission to them on the part of the people. The style of
enactment generally was, either "The King wills and commands,"
or some other form significant of the sole legislative authority of
the king. The king could pass laws at any time when it pleased
him. The presence of a parliament was wholly unnecessary. Hume
says, "It is asserted by Sir Harry Spelman, as an undoubted fact,
that, during the reigns of the Norman princes, every order of the
king, issued with the consent of his privy council, had the full
force of law."[7] And other authorities abundantly corroborate this
assertion.[8]The king was, therefore, constitutionally the
government; and the only legal limitation upon his power seems to
have been simply the Common Law, usually called "the law of the
land," which he was bound by oath to maintain; (which oath had
about the same practical value as similar oaths have always had.)
This "law of the land" seems not to have been regarded at all by
many of the kings, except so far as they found it convenient to do
so, or were constrained to observe it by the fear of arousing
resistance. But as all people are slow in making resistance,
oppression and usurpation often reached a great height; and, in the
case of John, they had become so intolerable as to enlist the nation
almost universally against him; and he was reduced to the
necessity of complying with any terms the barons saw fit to dictate
to him.

It was under these circumstances, that the Great Charter of Englsh
Liberties was granted.

The barons of England, sustained by the common people, having
their king in their power, compelled him, as the price of his throne,
to pledge himself that he would punish no freeman for a violation
of any of his laws, unless with the consent of the peers that is, the
equals of the accused.

The question here arises, Whether the barons and people intended
that those peers (the jury) should be mere puppets in the hands of
the king, exercising no opinion of their own as to the intrinsic
merits of the accusations they should try, or the justice of the laws
they should be called on to enforce? Whether those haughty and
victorious barons, when they had their tyrant king at their feet,
gave back to him his throne, with full power to enact any
tyrannical laws he might please, reserving only to a jury (" the
country") the contemptible and servile privilege of ascertaining,
(under the dictation of the king, or his judges, as to the laws of
evidence), the simple fact whether those laws had been
transgressed? Was this the only restraint, which, when they had all
power in their hands, they placed upon the tyranny of a king,
whose oppressions they had risen in arms to resist? Was it to
obtain such a charter as that, that the whole nation had united, as it
were, like one man, against their king? Was it on such a charter
that they intended to rely, for all future time, for the security of
their liberties? No. They were engaged in no such senseless work
as that. On the contrary, when they required him to renounce
forever the power to punish any freeman, unless by the consent of
his peers, they intended those powers should judge of, and try, the
whole case on its merits, independently of all arbitrary legislation,
or judicial authority, on the part of the king. In this way they took
the liberties of each individual and thus the liberties of the whole
people entirely out of the hands of the king, and out of the power
of his laws, and placed them in the keeping of the people
themselves. And this itwas that made the trial b jury the palladium
of their liberties.

The trial by jury, be it observed, was the only real barrier
interposed by them against absolute despotism. Could this trial,
then, have been such an entire farce as it necessarily must have
been, if the jury had had no power to judge of the justice of the
laws the people were required to obey? Did it not rather imply that
the jury were to judge independently and fearlessly as to
everything involved in the charge, and especially as to its intrinsic
justice, and thereon give their decision, (unbiased by any
legislation of the king,) whether the accused might be punished?
The reason of the thing, no less than the historical celebrity of the
events, as securing the liberties of the people, and the veneration
with which the trial by jury has continued to be regarded,
notwithstanding its essence and vitality have been almost entirely
extracted from it in practice, would settle the question, if other
evidences had left the matter in doubt.

Besides, if his laws were to be authoritative with the jury, why
should John indignantly refuse, as at first he did, to grant the
charter, (and finally grant it only when brought to the last
extremity,) on the ground that it deprived him of all power, and
left him only the name of a king? He evidently understood that the
juries were to veto his laws, and paralyze his power, at discretion,
by forming their own opinions as to the true character of the
offences they were to try, and the laws they were to be called on to
enforce; and that "the king wills and commands" was to have no
weight with them contrary to their own judgments of what was
intrinsically right.[9]

The barons and people having obtained by the charter all the
liberties they had demanded of the king, it was further provided by
the charter itself that twenty-fie barons should be appointed by the
barons, out of their number, to keep special vigilance in the
kingdom to see that the charter was observed, with authority to
make war upon the king in case of its violation. The king also, by
the charter, so far absolved all the people of the kingdom from
their allegiance to him, as to authorize and require them to swear
to obey the twenty-five barons, in case they should make war upon
the king for infringement of the charter. It was then thought by the
barons and people, that something substantial had been done for
the security of their liberties.

This charter, in its most essential features, and without any
abatement as to the trial by jury, has since been confirmed more
than thirty times; and the people of England have always had a
traditionary idea that it was of some value as a guaranty against
oppression. Yet that idea has been an entire delusion, unless the
jury have had the right to judge of the justice of the laws they were
called on to enforce.

SECTION II.

The Language of Magna Carta

The language of the Great Charter establishes the same point that
is established by its history, viz., that it is the right and duty of the
jury to judge of the justice of the laws.

The chapter guaranteeing the trial by jury is in these words:
"Nullus liber homo capiatur, vel imprisonetur, aut disseisetur, aut
utlagetor, aut exuletur, aut aliquo modo destruatur; nec super eum
ibimus, nec super eum mittemus, nisi per legale judicium parium
suorum, vel per legem terrae."[10]

The corresponding chapter in the Great Charter, granted by Henry
III, (1225) and confirmed by Edward I, (1297,) (which charter is
now considered the basis of the English laws and constitution,) is
in nearly the same words, as follows:

"Nullus liber homo capiatur, vel imprisonetur, aut disseisetur de
libero tenemento, vel libertatibus, vel liberis consuetudinibus suis,
aut utlagetur, aut exuletur, aut aliquo modo destruatur, nec super
eum ibimus, nec super eum mittemus, nisi per legale judicium
parium suorum, vel per legem terrae."

The most common translation of these words, at the present day, is
as follows:

"No freeman shall be arrested, or imprisoned, or deprived of his
freehold, or his liberties, or free customs, or outlawed, or exiled, or
in any manner destroyed, nor will we (the king) pass upon him, nor
condemn him, unless by the judgment of his peers, or the law of
the land."

"Nec super eum ibimus, nec super eum mittemus."

There has been much confusion and doubt as to the true meaning
of the words, "nec super eum ibimus, neo super eum mittemus."
The more common rendering has been, "nor wilt we pass upon
him, nor condemn him." But some have translated them to mean,
"nor will we pass upon him, nor commit him to prison." Coke
gives still a different rendering, to the effect that "No man shall be
condemned at the king's suit, either before the king in his bench,
nor before any other commissioner or judge whatsoever." [11]

But all these translations are clearly erroneous. In the first place,
"nor will we pass upon him," meaning thereby to decide upon his
guilt or innocence judicially is not a correct rendering of the
words, "nec super eum ibimus." There is nothing whatever, in
these latter words, that indicates judicial action or opinion at all.
The words, in their common signification, describe physical action
alone. And the true translation of them, as will hereafter be seen,
is, "nor will we proceed against him," executively.

In the second place, the rendering, "nor will we condemn him,"
bears little or no analogy to any common, or even uncommon,
signification of the words "nec super eum mittemus." There is
nothing in these latter words that indicates judicial action or
decision. Their common signification, like that of the words nec
super eum ibimus, describes physical action alone. "Nor will we
send upon (or against) him," would be the most obvious
translation, and, as we shall hereafter see, such is the true
translation.

But although these words describe physical action, on the part of
the king, as distinguished from judicial, they nevertheless do not
mean, as one of the translations has it, "nor will we commit him to
prison;" for that would be a mere repetition of what had been
already declared by the words "nec imprisonetur." Besides, there is
nothing about prisons in the words "nec super eum mittemus;"
nothing about sending him anywhere; but only about sending
(something or somebody) upon him, or against him that is,
executively.

Coke's rendering is, if possible, the most absurd and gratuitous of
all. What is there in the words, "nec super eum mittemus," that can
be made to mean "nor shall he be condemned before any other
commissioner or judge whatsoever."? Clearly there is nothing. The
whole rendering is a sheer fabricatin. And the whole object of it is
to give color for the exercise of a judicial power, by the king, or
his judges, which is nowhere given them.

Neither the words, "Nec super eum ibimus, nec super eum
mittemus," nor any other words in the whole chapter, authorize,
provide for, describe, or suggest, any judicial action whatever, on
the part either of the king, or of his judges, or of anybody, except
the peers, or jury. There is nothing about the king's judges at all.
And, there is nothing whatever, in the whole chapter, so far as
relates to the action of the king, that describes or suggests anything
but executive action.[12]

But that all these translations are certainly erroneous, is proved by
a temporary charter, granted by John a short time previous to the
Great Charter, for the purpose of giving an opportunity for
conference, arbitration, and reconciliation. between him and his
barons. It was to have force until the matters in controversy
between them could be submitted to the Pope, and to other persons
to be chosen, some by the king, and some by the barons. The
words of the charter are as follows:

"Sciatis nos concessisse baronibus nostris qui contra nos sunt quod
nec eos nec homines suos capiemus, nec disseisiemus nec super
eos per vim vel per arma ibimus nisi per legem regni nostri vel per
judicium parium suorum in curia nostra donec consideratio facta
fuerit," &c;., &c;.

That is, "Know that we have granted to our barons who are
opposed to us, that we will neither arrest them nor their men, nor
disseize them, nor will we proceed against them by force or by
arms, unless by the law of our kingdom, or by the judgment of
their peers in our court, until consideration, shall be had," &c;.,
&c;.

A copy of this charter is given in a note in Blackstone's
Introduction to the Charter.[13]

Mr. Christian speaks of this charter as settling the true meaning of
the corresponding clause of Magna Carta, on the principle tat laws
and charters on the same subject are to be construed with reference
to each other. See 3 Christin's Blackstone, 41, note.

The true meaning of the words, nec super eum ibimus, nec super
eum mittemus, is also proved by the "Articles of the Great Charter
of Liberties," demanded of the king by the barons, and agreed to by
the king, under seal, a few days before the date of the Charter, and
from which the Charter was framed. [14]
Here the words used are these:

"Ne corpus liberi hominis capiatur nec imprisonetur nec
disseisetur nec ut1agetur nec exuletur nec aliquo modo destruatur
nec rex eat vel mittat super eun vi nisi per judicium pariurn
suorum vel per legem terrae."

That is, "The body of a freeman shall not be arrested, nor
imprisoned, nor disseized, nor outlawed, nor exiled, nor in any
manner destroyed, nor shall the king proceed or send (any one)
against him, WITH FORCE, unless by the judgment of his peers,
or the law of the land."

The true translation of the words nec super eum ibimus, nec super
eum mittemus, in Magna Carta, is thus made certain, as follows,
"nor will we (the king) proceed against him, nor send (any one)
against him, WITH FORCE OR ARMS. [15]

It is evident that the difference between the true and false
translations of the words, nec super eum ibius, nec super eum
mittemus, is of the highest legal importance, inasmuch as the true
translation, nor will we (the king) proceed against him, nor send
(any one) against him by force of arms, represents the king only in
an executive character, carrying the judgment of the peers and "the
law of the land" into execution; where as the false translation, nor
will we pass upon him, nor condemn him, gives color for the
exercise of a judicial power, on the part of the king, to which the
king had no right, but which, according to the true translation,
belongs wholly to th jury.

"Per legale judicium parium suorum."

The foregoing interpretation is corroborated, (if it were not already
too plain to be susceptible of corroboration,) by the true
interpretation of the phrase "per legale judicium parium suorum."

In giving this interpretation, I leave out, for the present, the word
legale, which will be defined afterwards.

The true meaning of the phrase, per judicium parium suorum, is,
according to the sentence of his eers. The word judicium,
judgment, has a technical meaning in the law, signifying the
decree rendered in the decision of a cause. In civil suits this
decision is called a judgment; in chancery proceedngs it is called a
decree; in criminal actions it is called a sentence, or judgment,
indifferently. Thus, in a criminal suit, "a motion in arrest of
judgment," means a motion in arrest of sentence. [16]
In cases of sentence, therefore, in criminal suits, the words
sentence and judgment are synonymous terms. They are, to this
day, commonly used in law books as synonymous terms. And the
phrase per jndicium parium suorum, therefore, implies that the
jury are to fix the sentence.

The word per means according to. Otherwise there is no sense in
the phrase per judicium paruim suorum. There would be no sense
in saying that a king might imprison, disseize, outlaw, exile, or
otherwise punish a man, or proceed against him, or send any one
against him, by force or arms, by a judgment of his peers; but there
is sense in saying that the king may imprison, disseize, and punish
a man, or proceed against him, or send any one against him, by
force or arms, according to a judgment, or sentence, of his peers;
because in that case the king would be merely carrying the
sentence or judgment of the peers into execution.

The word per, in the phrase "per judicium parium suorum," of
course means precisely what it does in the next phrase, "per legem
terrae;" where it obviously means according to, and not by, as it is
usually translated. There would be no sense in saying that the king
might proceed against a man by force or arms, by the law of the
land; but there is sense in saying that he may proceed against him,
by force or arms, according to the law of the land; because the
king would then be acting only as an executive officer, carrying
the law of the land into execution. Indeed, the true meaning of the
word by, as used in similar cases now, always is according to; as,
for example, when we say a thing was done by the government, or
by the executive, by law, we mean only that it was done by them
according to law; that is, that they merely executed the law.

Or, if we say that the word by signifies by authority of, the result
will still be the same; for nothing can be done by authority of law,
except what the law itself authorizes or directs to be done; that is,
nothing can be done by authority of law, except simply to carry the
law itself into execution. So nothing could be done by authority of
the sentence of the peers, or by authority of "the law of the land,"
except what the sentence of the peers, or the law of the land,
themselves authorized or directed to be done; nothing, in short, but
to carry the setence of the peers, or the law of the land, themselves
into execution.

Doing a thing by law, or according to law, is only carrying the law
into execution. And punishing a man by, or according to, the
sentence or judgment of his peers, is only carrying that sentence or
judgment into execution.

If these reasons could leave any doubt that the word per is to be
translated according to, that doubt would be removed by the terms
of an antecedent guaranty for the trial by jury, granted by the
Emperor Conrad, of Germany, [17] two hundred years before
Magna Carta. Blackstone cites it as follows: (3 Blackstone, 350.)
"Nemo beneficium suum perdat, nisi secundum consuetu-dinem
antecessorum nostrorum, et judicium parium suorum." That is, No
one shall lose his estate, [18] unless according to ("secundum")
the custom (or law) of our ancestors, and (according to) the
sentence (or judgment) of his peers.

The evidence is therefore conclusive that the phrase per judicium
parian suorum means according to the sentence of his peers; thus
implying hat the jury, and not the government, are to fix the
sentence.

If any additional proof were wanted that juries were to fix the
sentence, it would be found in the following provisions of Magna
Carta, viz.:

"A freeman shall not be amerced for a small crime, (delicto,) but
according to the degree of the crime; and for a great crime in
proportion to the magnitude of it, saving to him his contenement;
[19] and after the same manner a merchant, saving to him his
merchandise. And a villein shall be amerced after the same
manner, aving to him his waynage, [20] if he fall under our mercy;
and none of the aforesaid amercements shall be imposed, (or
assessed, ponatur,) but by the oath of honest men of the
neighborhood. Earls and Barons shall not be amerced but by their
peers, and according to the degree of their crime." [21]

Pecuniary punishments were the most common punishments at
that day, and the foregoing provisions of Magna Carta show that
the amount of those punishments was to be fixed by the jury.
Fines went to the king, and were a source of revenue; and if the
amounts of the fines had been left to be fixed by the king, he
would have had a pecuniary temptation to impose unreasonable
and oppressive ones. So, also, in regard to other punishments than
fines. If it were left to the king to fix the punishment, he might
often have motives to inflict cruel and oppressive ones. As it was
the object of the trial by jury to protect the people against all
possible oppression from the king, it was necessary that the jury,
and not the king, should fix the punishments. [22]

"Legale."

The word "legale," in the phrase "per legale judicium parium
suorum,"doubtless means two things.1. That the sentence must be
given in a legal manner; that is, by the legal number of jurors,
legally empanelled and sworn to try the cause; and that they give
their judgment or sentence after a legal trial, both in form and
substance, has been had. 2. That the sentence shall be for a legal
cause or offence. If, therefore, a jury should convict and sentence a
man, either without giving him a legal trial, or for an act that was
not really and legally criminal, the sentence itself would not be
legal; and consequently this clause forbids the king to carry such a
sentence into execution; for the clause guarantees that he will
execute no judgment or sentence, except it be legale judicium,a
legal sentence. Whether a sentence be a legal one, would have to
be ascertained by the king or his judges, on appeal, or might be
judged of informally by the king himself.

The word "legale"clearly did not mean that the judicium parium
suorum (judgment of his peers) should be a sentence which any
law (of the king) should require the peers to pronounce; for in that
case the sentence would not be the sentence of the peers, but only
the sentence of the law, (that is, of the king); and the peers would
be only a mouthpiece of the law, (that is, of the king,) in uttering
it.

"Per legem terrae."

One other phrase remains to be explained, viz., "per legem terrae,"
"by the law of the land."

All writers agree that this means the common law.Thus, Sir
Matthew Hale says:

"The common law is sometimes called, by way of eminence, lex
terrae,as in the statute of Magna Carta,chap. 29, where certainly
the common law is principally intended by those words, aut per
legem terrae;as appears by the exposition thereof in several
subsequent statutes; and particularly in the statute of 28 Edward
III., chap. 3, which is but an exposition and explanation of that
statute. Sometimes it is called lex Angliae,as in the statute of
Merton, cap. 9, "olurnus leqes Angliae mutari,"&c;., (We will that
the laws of England be not changed). Sometimes it is called lex et
consuetudo regni(the law and custom of the kingdom); as in all
commissions of oyer and terminer; and in the statutes of 18
Edward I., cap. , and de quo warranto,and divers others. But most
commonly it is called the Common Law, or the Common Law of
England; as in the statute Articuli super Chartas,cap. 15, in the
statute 25 Edward III., cap. 5, (4,) and infinite more records and
statutes." 1 Hale's History of the Common Law, 128.

This common law, or "law of the land," the king was sworn to
maintain.This fact is recognized by a statute made at Westminster,
in 1346, by Edward III., which commences in this manner:

"Edward, by the Grace of God, &c;., &c;., to the Sheriff of
Stafford, Greeting: Because that by divers complaints made to us,
we have perceived that the law of the land, which we by oath are
bound fo maintain,"&c;. St. 20 Edward III

The foregoing authorities are cited to show to the unprofessional
reader, what is well known to the profession, that legem terrae, the
law of the land,mentioned in Magna Carta, was the common,
ancient, fundamental law of the land, which the kings were bound
by oath to observe; and that it did not include any statutes or laws
enacted by the king himself, the legislative power of the nation.

If the term legem terraehad included laws enacted by the king
himself, the whole chapter of Magna Carta, now under discussion,
would have amounted to nothing as a protection to liberty; because
it would have imposed no restraint whatever upon the power of the
king. The king could make laws at any time, and such ones as he
pleased. He could, therefore, have done anything he pleased, by
the law of the land,as well as in any other way, if his own laws had
been "the law of the land."If his own laws had been "the law of the
land," within the meaning of that term as used in Magna Carta, this
chapter of Magna Carta woold have been sheer nonsense,
inasmuch as the whole purpot of it would have been simply that
"no man shall be arrested, imprisoned, or deprived of his freehold,
or his liberties, or free customs, or outlawed, or exiled, or in any
manner destroyed (by the king); nor shall the king proceed against
him, nor send any one againist him with force and arms, unless by
the judgment of his peers, or uness the king shall please to do so."

This chapter of Magna Carta would, therefore, have imposed not
the slightest restraint upon the power of the king, or afforded the
slightest protection to the liberties of the people, if the laws of the
king had been embraced in theterm legem terrae. But if legem
terrae was the common law, which the king was sworn to
maintain, then a real restriction was laid upon his power, and a real
guaranty given to the people for their liberties.

Such, then, being the meaning of legem terrae, the fact is
established that Magna Carta took an accused person entirely out
of the hands of the legislative power, that is, of the king; and
placed him in the power and under the protection of his peers, and
the common law alone; that, in short, Magna Carta suffered no
man to be punished for violating any enactment of the legislative
power, unless the peers or equals of the accused. freely consented
to it, or the common law authorized it; that the legislative power,
of itself, was wholly incompetent to require the conviction or
punishment of a man for any offence whatever.

Whether Magna Carta allowed of any other trial than by jury.

The question here arises, whether "legem terrae did not allow of
some other mode of trial than that by jury.

The answer is, that, at the time of Magna Carta, it is not probable,
(for the reasons given in the note,) that legem terrae authorized, in
criminal cases, any other trial than the trial by jury; but, if it did, it
certainly authorized none but the trial by battle, the trial by ordeal,
and the trial by compurgators. These were the only modes of trial,
except by jury, that had been knownin England, in criminal cases,
for some centuries previous to Magna Carta. All of them had
become nearly extinct at the time of Magna Carta, and it is not
probable that they were included in "legem terrae," as that term is
used in that instrument. But if they were included in it, they have
now been long obsolete, and were such as neither this nor any
future age will ever return to. [23]

For all practical puposes of the present day, therefore, it may be
asserted that Magna Carta allows no trial whatever but trial by
jury.

Whether Magna Carta allowed sentence to be fixed otherwise than
by the jury.

Still another question arises on the words legem terrae, viz.,
whether, in cases where the question of guilt was determined by
the jury, the amount of punishment may not have been fixed by
legem terrae, the Common Law, instead of its being fixed by the
jury.

I think we have no evidence whatever that, at the time of Magna
Carta, or indeed at any other time, lex terrae, the common law,
fixed the punishment in cases where the question of guilt was tried
by a jury; or, indeed, that it did in any other case. Doubtless certain
punishments were common and usual for certain offences; but I do
not think it can be shown that the common law, the lex terrae,
which the king was sworn to maintain, required any one specific
punishment, or any precise amount of punishment, for any one
specific offence. If such a thing be claimed, it must be shown, for
it cannot be presumed. In fact, the contrary must be presumed,
because, in the nature of things, the amount of punishment proper
to be inflicted on any particular case, is a matter requiring the
exercise of discretion at the time, in order to adapt it to the moral
quality of the offence, which is different in each case, varying with
the mental and moral constitutions of the offenders, and the
circumstances of temptation or provocation. And Magna Carta
recognizes this principle distinctly, as has before been shown, in
providing that freemen, merchants, and villeins, "shall not be
amerced for a small crime, but according to the degree of the
crime; and for a great crime in proportion to the magnitude of it,"
and that "none of the aforesaid amercements shall be imposed (or
assessed) but by the oaths of honest men of the neighborhood;"
and that "earl and barons shall not be amerced but by their peers,
and according to the quality of the offence."

All this implies that the moral quality of the offence was to be
judged of at the rial, and that the punishment was to be fixed by
the discretion of the peers, or jury, and not by any such unvarying
rule as a common law rule would be.

I think, therefore, it must be conceded that, in all cases, tried by a
jury, Magna Carta intended that the punishment should be fixed by
the jury, and not by the common law, for these several reasons.

1. It is uncertain whether the common law fixed the punishment of
any offence whatever.

2. The words "per judicium parium suorum," according to the
sentence of his peers, imply that the jury fixed the sentence in
some cases tried by them; and if they fixed the sentence in some
cases, it must be presumed they did in all, unless the contrary be
clearly shown.

3. The express provisions of Magna Carta, before adverted to, that
no amercements, or fines, should be imposed upon. freemen,
merchants, or villeins, "but by the oath of honest men of the
neighborhood," and "according to the degree of the crime," and
that "earls and barons shout not be amerced but by their peers, and
according to the quality of the offence," proves that, at least, there
was no common law fixing the amount of fines, or, if there were,
that it was to be no longer in force. And if there was no common
law fixing the amount of fines, or if it was to be no longer in force,
it is reasonable to infer, (in the absence of all evidence to the
contrary,) either that the common law did not fix the amount of
any other punishment, or that it was to be no longer in force for
that purpose. [25]

Under the Saxon laws, fines, payable to the injured party, seem to
have been the common punishments for all offences. Even murder
was punishable by a fine payable to the relatives of the deceased.
The murder of the king even was punishable by fine. When a
criminal was unable to pay his One, his relatives often paid it for
him. But if it were not paid, he was put out of the protection of the
law, and the injured parties, (or,in the case of murder, the kindred
of the deceased,)were allowed to inflict such punishment as they
pleased. And if the relatives of the criminal protected him, it was
lawful to take vengeance on them also. Afterwards the custom
grew up of exacting fines also to the king as a punishment for
offences. [26]

And this latter was, doubtless, the usual punishment at the time of
Magna Carta, as is evidenced by the fact that for many years
immediately following Magna Carta, nearly or quite all statutes
that prescribed any punishment at all, prescribed that the offender
should "be grievously amerced," or "pay a great fine to the king,"
or a "grievous ransom," with the alternative in some cases
(perhaps understood in all) of imprisonment, banishment, or
outlawry, in case of non-payment. [27]

Judging, therefore, from the special provisions in Magna Carta,
requiring fines, or amercements, to be imposed only by juries,
(without mentioning any other punishments;) judging, also, from
the statutes which immediately followed Magna Carta, it is
probable that, the Saxon custom of punishing all, or nearly all,
offences by fines, (with the alternative to the criminal of being
imprisoned, banished, or outlawed, and exposed to private
vengeance, in case of non-payment,) continued until the time of
Magna Carta; and that in providing expressly that fines should be
fixed by the juries, Magna Carta provided for nearly or quite all
the punishments that were expected to be inflicted; that if there
were to be any others, they were to be fixed by the juries; and
consequently that nothing was left to be fixed by "legem terrae."
But whether the common law fixed the punishment of any
offences, or not, is a matter of little or no practical importance at
this day; because we have no idea of going back to any common
law punishments of six hundred years ago, if, indeed, there were
any such at that time. It is enough for us to know and this is what
is material for us know that the jury fixed the punishments, in all
cases, unless they were fixed by the common law; that Magna
Carta allowed no punishments to be prescribed by statute that is,
by the legislative power nor in any other manner by the king, or
his judges, in any case whatever; and, consequently, that all
statutes prescribing particular punishmnts for particular offences,
or giving the king's judges any authority to fix punishments, were
void.

If the power to fix punishments had been left in the hands of the
king, it would have given him a power of oppression, which was
liable to be greatly abused; which there was no occasion to leave
with him; and which would have been incongruous with the whole
object of this chapter of Magna Carta; which object was to take all
discretionary or arbitrary power over individuals entirely out of the
hands of the king, and his laws, and entrust it only to the common
law, and the peers, or jury that is, the people. What lex terrae
did authorize.

But here the question arises, What then did legem terrae" authorize
the king, (that is, the government,) to do in the case of an accused
person, if it neither authorized any other trial than that by jury, nor
any other punishments than those fixed by juries?

The answer is, that, owing to the darkness of history on the point,
it is probably wholly impossible, at this day, to state, with any
certainty or precision, anything whatever that the legem terrae of
Magna Carta did authorize the king, (that is, the government,) to
do, (if, indeed, it authorized him to do anything,) in the case of
criminals, other than to have them, tried and sentenced by their
peers, for common law crimes; and to carry that sentence into
execution.

The trial by jury was a part of legem terrae, and we have the means
of knowing what the trial by jury was. The fact that the jury were
to fix the sentence, implies that they were to try the accused;
otherwise they could not know what sentence, or whether any
sentence, ought to be inflicted upon him. Hence it follows that the
jury were to judge of everything involved in the trial; that is, they
were to judge of the nature of the offence, of the admissibility and
weight of testimony, and of everything else whatsoever that was of
the essence of the trial. If anything whatever could be dictated to
them, either of law or evidence, the sentence would not be theirs,
but would be dictated to them by the power that dictated to them
the law or evidence. The trial nd sentence, then, were wholly in the
hands of the jury.

We also have sufficient evidence of the nature of the oath
administered to jurors in criminal cases. It was simply, that they
would neither convict the innocent, nor acquit the guilty. This was
the oath in the Saxon times, and probably continued to be until
Magna Carta.

We also know that, in case of conviction, the sentence of the jury
was not necessarily final; that the accused had the right of appeal
to the king and his judges, and to demand either a new trial, or an
acquittal, if the trial or conviction had been against law. So much,
therefore, of the legem terrae of Magna Carta, we know with
reasonable certainty.

We also know that Magna Carta provides that "No bailiff (balivus)
shall hereafter put any man to his law, (put him on trial,) on his
single testimony, without credible witnesses brought to support it."
Coke thinks "that under this word balivus, in this act, is
comprehended every justice, minister of the king, steward of the
king, steward and bailiff." (2 Inst. 44.) And in support of this idea
he quotes from a very ancient law book, called the Mirror of
Justices, written in the time of Edward I., within a century after
Magna Carta. But whether this were really a common law
principle, or whether the provision grew out of that jealousy of the
government which, at the time of Magna Carta, had reached its
height, cannot perhaps now be determined.

We also know that, by Magna Carta, amercements, or fines, could
not be imposed to the ruin of the criminal; that, in the case of a
freeman, his contenement, or means of subsisting in the condition
of a freeman, must be saved to him; that, in the case of a merchant,
his merchandise must be spared; and in the case of a villein, his
waynage, or plough-tackle and carts. This also is likely to have
been a principle of the common law, inasmuch as, in that rude age,
when the means of gettin employment as laborers were not what
they are now, the man and his family would probably have been
liable to starvation, if these means of subsistence had been taken
from him.

We also know, generally, that, at the time of Magna Carta, all acts
intrinsically criminal, all trespasses against persons and property,
were crimes, according to lex terra, or the common law.
Beyond the points now given, we hardly know anything, probably
nothing with certainty, as to what the "legem terran" of Magna
Carta did authorize, in regard to crimes. There is hardly anything
extant that can give us any real light on the subject.
It would seem, however, that there were, even at that day, some
common law principles governing arrests; and some common law
forms and rules as to holding a man for trial, (by bail or
imprisonment;) putting him on trial, such as by indictment or
complaint; summoning and empanelling jurors, &c;., &c;.
Whatever these common law principles were, Magna Carta
requires them to be observed; for Magna Carta provides for the
whole proceedings, commencing with the arrest, ("no freeman
shall be arrested," &c;.,) and ending with the execution of the
sentence. And it provides that nothing shall be done, by the
government, from beginning to end, unless according to the
sentence of the peers, or "legem terrae," the common law. The trial
by peers was a part of legem terrae, and we have seen that the
peers must necessarily have governed the whole proceedings at the
tria1. But all the proceedings for arresting the man, and bringing
him to trial, must have been had before the case could come under
the cognizance of the peers, and they must, therefore, have been
governed by other rules than the discretion of the peers. We may
conjecture, although we cannot perhaps know with much certainty,
that the lex terrae, or common law, governing these other
proceedings, was somewhat similar to the common law principle,
on the same points, at the present day. Such seem to be the
opinions of Coke, who says that the phrase nisi per legem terrae
means unless by due process of law. Thus, he says: "Nisi per legem
terrae. But by the law of the land.

For the true sense and exposition of these words, see the statute f
37 Edw. III., cap. 8, where the words, by the law of the land, are
rendered without due process of law; for there it is said, though it
be contained in the Great Charter, that no man be taken,
imprisoned, or put out of his freehold, without process of the law;
that is, by indictment or presentment of good and lawful men,
where such deeds be done in due manner, or by writ original of the
common law.

"Without being brought in to answer but by due process of the
common law."

"No man be put to answer without presentment before justices, or
thing of record, or by due process, or by writ original, according to
the old law of the land." 2 Inst. 50.

The foregoing interpretations of the words nisi per legem terrae
are corroborated by the following statutes, enacted in the next
century after Magna Carta.

"That no man, from henceforth; shall be attached by any
accusation, nor forejudged of life or limb, nor his land, tenements,
goods, nor chattels, seized into the king's hands, against the form
of the Great Charter, and the law of the land." St, 5 Edward III.,
Ch. 9. (1331.)

"Whereas it is contained in the Great Charter of the franchises of
England, that none shall be imprisoned, nor put out of his freehold,
nor of his franchises, nor free customs, unless it be by the law of
the land; it is accorded, assented, and established, that from
henceforth none shall be taken by petition, or suggestion made to
our lord the king, or to his council, unless it be by indictment or
presentment of good and lawful people of the same neighborhood
where such deeds be done in due manner, or by process made by
writ original at the common law; nor that none be put out of his
franchises, nor of his freehold, unless he be duly brought into
answer, and forejudged of the same by the course of the Law; and
if anything be done against the same, it shall be redressed, and
holden for none." 8t. 95 Edward III., Ch. 4. (1350.)

"That no man, of what estate or condition that he be, shall be put
out of land or tenement, nor taken, nor imprisond, nor disinherited,
nor put to death, without being brought in answer by due process
of law." 8t. 28 Aboard III., Ch. 3. (1354.)

"That no man be put to answer without presentment before
justices, or matter of record, or by due process and writ original,
according to the old law of the land. And if anything from
henceforth be done to the contrary, it shall be void in law, and
holden for error." 8t. 42 Edward IIL, Ch. 3. (1368.)

The foregoing interpretation of the words nisi per legem terrae
that is, by due process of law including indictment, &c;., has
been adopted. as the true one by modern writers and courts; as, for
example, by Kent, (2 Comm. 13,) Story, (3 Comm. 661,) and the
Supreme Court of New York, (19 Wendell, 6T6; 4 Hill, 146.)
The fifth amendment to the constitution of the United States seems
to have been framed on the same idea, inasmuch as it provides that
"no person shall be deprived of life, liberty, or property, without
due process of law." [28]

Whether the word VEL should be rendered by OR, or by AND.

Having thus given the meanings, or rather the applications, which
the words vel per legem terrae will reasonably, and perhaps must
necessarily, bear, it is proper to suggest, that it has been supposed
by some that the word vel, instead of being rendered by or, as it
usually is, ought to be rendered by and, inasmuch as the word vel
is often used for et, and the whole phrase nisi per judicium parian
suorun, vel per legem terrae, (which would then read, unless by the
sentence of his peers, and the law of the land,) would convey a
more intelligible and harmonious meaning than it otherwise does.

Blackstone suggests that this may be the true reading. (Charters, p.
41.) Also Mr. Hallam, who says:"Nisi per legale judicium parium
suorum, vel per legem terra;. Several explanations have been
offered of the alternative clause; which some have referred to
judgment by default, or demurrer; others to the process of
attachment for contempt. Certainly there are many legal
procedures besides trial by jury, through which a party's goods or
person may be taken. But one may doubt whether these were in
contemplation of the framers of Magna Carta. In an entry of the
Charter of 1217 by a contemporary hand, preserved in the
Town-clerk's office in London, called Liber Custumarum et
Regum antiquarum, a various reading, et per legem terrae, occurs.
Blackstone's Charters, p. 42 (41.) And the word vel is so frequently
used for et, that I amnot wholly free from a suspicion that it was
so intended in this place. The meaning will be, that no person shall
be disseized, &c;., except upon a lawful cause of action, found by
the verdict of a jury. This really seems as good as any of the
disjunctive interpretatios; but I do not offer it with much
confidence." 2 Hallam's Middle Ages, Ch. 8, Part 2, p. 449,
note." [29]

The idea that the word vel, should be rendered by and, is
corroborated, if not absolutely confirmed, by the following passage
in Blackstone, which has before been cited. Speaking of the trial
by jury, as established by Magna Carta, he calls it, "A privilege
which is couched in almost the same words with that of the
Emperor Conrad two hundred years before: 'nemo beneficium
suum perdat, nisi secundum consuetudinem antecessorum
nostrorum, et, judicium parium suorum. ' (No one shall lose his
estate unless according to the custom of our ancestors, and, the
judgment of his peers.) 3 Blackstone, 350.,

If the word vel, be rendered by and,, (as I think it must be, at least
in some cases,) this chapter of Magna Carta will then read that no
freeman shall be arrested or punished, "unless according to the
sentence of his peers, and, the law of the land."

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 laud (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 upn, 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 Cart,
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.)

[1] Hume, Appendix 2,

[2] Crabbe's History of the English Law, 236.

[3] Coke 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 comanche concilium regni
Anglicae, (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;) [4] 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 Coke's Institutes, 110 a.

[4] 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.

[5]The Magna Carta of John, (Ch. 17 and 18,) defines those who
were entitled 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.

[6] The parliaments of that time were, doubtless, such as Carlyle
describes them, when he says, "The parliament was at first a most
simple assemblage, 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."

[7] Hume, Appendix 2.

[8] This point will be more fully established hereafter.

[9] 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 passion,
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 pass unpunished. Then
debating the matter with the cardinals, he, by a definitive sentence,
damned and cassated 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.

[10] The laws were, at that time, all written in Latin.

[11]"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 Coke's Inst., 46.

[12] Perhaps the assertion 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 judiciun 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 assertion 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.

[13] See Blackstone'a Law Tracts, page 294, Oxford Edition

[14] 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. 350.

[15] 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.

[16] "Judgment, judicium. * * The sentence of the law,
pronounced by the court, upon the matter contained in the record."
8 Blackstone, 895. 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 instituted 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 pronounced
by authority of a king, or other power, either by their own mouth,
or by that of their judges andofficers, whom they appoint, to
administer justice in their stead." Chambers' Dict.

"Judgment. * * In law, the sentence or doom pronounced in any
case, civil orcriminal, 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
passed 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 assize," "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 Rughead'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 f being the pronouncing of that punishment which
is expressly ordained by law." Blackstone's Analysis of the Laws
of England, Book 4, Ch. 29, Sec. 1. Blackstone's Law Tracts, 126.

Coke says, "Judicium .. the judgment is the guide and direction of
the execution." 3 Inst. 210.

[17] 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.

[18] Beneficium was the legal name of an estate held by a feudal
tenure. See Spelman's Glossary.

[19]] Contenement of a freeman was the means of living in the
condition of a freeman.

[20] Waynage was a villein's plough-tackle and carts.

[21] 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 libe- rorum 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 assess 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.

[22] 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, not
withstanding 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.

[23] The trial by battle was one in which the accused challenged
his accuser to single combat, and staked tbe 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 Coke, or rather by an
order of the king in council." 3 Blacks,one 345, note.

I apprehend that this trial was never forced upon accused persons,
but was only allowed to them, as an appeal to God, from the
judgment of a jury. [24]

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 diferent 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."

[24] Hallam says, "It appears as if the ordeal were permitted to
persons already convicted by the verdict of a jury." 2 Middle
Ages, 446, note.

[25] Coke 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 Coke'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 Coke, 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, passed 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
trespass, is unjustly assessed by sheriffs and baretors in the shires,
* * it is provided, and the king wills, that frown henceforth such
sums shall be assessed 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 passed after Magna Carta, the terms
fine and amercement seem to be used indifferently, in prescribing
the punishments 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)

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 passed within one hundred and fifteen years after
Magna Cart,) 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 assize,"

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