An Essay on the Trial By Jury

Lysander Spooner
**The Project Gutenberg Etext of An Essay on the Trial By Jury** ! in our series by Lysander Spooner "opyright la#s are changing all o$er the #orld% be sure to chec& the copyright la#s for your country before posting these files'' Please ta&e a loo& at the i(portant infor(ation in this header) *e encourage you to &eep this file on your o#n dis&% &eeping an electronic path open for the next readers) +o not re(o$e this) ***elco(e To The *orld of ,ree Plain -anilla Electronic Texts** **Etexts .eadable By Both /u(ans and By "o(puters% Since !01!** *These Etexts Prepared By /undreds of -olunteers and +onations* 2nfor(ation on contacting Project Gutenberg to get Etexts% and further infor(ation is included belo#) *e need your donations) An Essay on the Trial By Jury By L3SA4+E. SP554E. ,ebruary% !006 7Etext !89!: **The Project Gutenberg Etext of An Essay on the Trial By Jury** ******This file should be na(ed tbjry!9)txt or tbjry!9);ip****** "orrected E+2T254S of our etexts get a ne# 4<=BE.% tbjry!!)txt -E.S254S based on separate sources get ne# LETTE.% tbjry!9a)txt Prepared by +a$id .eed haradda>aol)co( and da$idr>inconnect)co( Project Gutenberg Etexts are usually created fro( (ultiple editions% all of #hich are in the Public +o(ain in the <nited States% unless a copyright notice is included) Therefore% #e do 45T &eep these boo&s in co(pliance #ith any particular paper edition% usually other#ise) *e are no# trying to release all our boo&s one (onth in ad$ance of the official release dates% for ti(e for better editing) Please note? neither this list nor its contents are final till (idnight of the last day of the (onth of any such announce(ent)

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An Essay on the Trial By Jury By L3SA4+E. SP554E. Entered according to Act of "ongress% in the year !6J8% by L3SA4+E. SP554E. 2n the "ler&Rs 5ffice of the +istrict "ourt of =assachusetts) 45T2"E T5 E4GL2S/ P<BL2S/E.S The author clai(s the copyright of this boo& in England% on "o((on La# principles% #ithout regard to acts of parlia(entS and if the (ain principle of the boo& itself be true% $i;)% that no legislation% in conflict #ith the "o((on La#% is of any $alidity% his clai( is a legal one) /e forbids any one to reprint the boo& #ithout his consent) Stereotyped by /5BA.T X .5BB24SS 4e# England Type and Stereotype ,oundery%B5ST54) 45TE This $olu(e% it is presu(ed by the author% gi$es #hat #ill generally be considered satisfactory e$idence% though not all the e$idence% of #hat the "o((on La# trial by jury really is) 2n a future $olu(e% if it should be called for% it is designed to corroborate the grounds ta&en in thisS gi$e a concise $ie# of the English constitutionS sho# the unconstitutional character of the existing go$ern(ent in England% and the unconstitutional (eans by #hich the trial by jury has been bro&en do#n in practiceS pro$e that% neither in England nor the <nited States% ha$e legislatures e$er been in$ested by the people #ith any authority to i(pair the po#ers% change the oaths% or @#ith fe# exceptionsA abridge the jurisdiction% of juries% or select jurors on any other than "o((on La# principlesS and% conseIuently% that% in both countries% legislation is still constitutionally subordinate to the discretion and consciences of "o((on La# juries% in all cases% both ci$il and cri(inal% in #hich juries sit) The sa(e $olu(e #ill probably also discuss se$eral political and legal Iuestions% #hich #ill naturally assu(e i(portance if the trial by jury should be reestablished)

"54TE4TS "/APTE. 2) T/E .2G/T 5, J<.2ES T5 J<+GE 5, T/E J<ST2"E 5, LA*S SE"T254 !) SE"T254 8) "/APTE. 22) T/E T.2AL B3 J<.3% AS +E,24E+ B3

=AG4A "A.TA SE"T254 !) The /istory 5f =agna "arta SE"T254 8) The Language 5f =agna "arta "/APTE. 222) A++2T254AL P.55,S 5, T/E .2G/TS A4+ +<T2ES 5, J<.5.S) SE"T254 !) *ea&ness of the .egal Authority SE"T254 8) The Ancient "o((on La# Juries *ere =ere "ourts 5f "onscience SE"T254 D) The 5aths of Jurors SE"T254 E) The .ight 5f Jurors To ,ix The Sentence SE"T254 J) The 5aths 5f Judges SE"T254 M) The "oronation 5ath "/APTE. 2-) T/E .2G/TS A4+ +<T2ES 5, J<.2ES 24 "2-2L S<2TS "/APTE. -) 5BJE"T254S A4S*E.E+ "/APTE. -2) J<.2ES 5, T/E P.ESE4T +A3 2LLEGAL "/APTE. -22) 2LLEGAL J<+GES "/APTE. -222) T/E ,.EE A+=242ST.AT254 5, J<ST2"E "/APTE. 2P) T/E ".2=24AL 24TE4T "/APTE. P) =5.AL "54S2+E.AT254S ,5. J<.5.S "/APTE. P2) A<T/5.2T3 5, =AG4A "A.TA "/APTE. P22) L2=2TAT254S 2=P5SE+ <P54 T/E =AJ5.2T3 B3 T/E T.2AL B3 J<.3 APPE4+2P TAPAT254

T.2AL B3 J<.3 "/APTE. 2 T/E .2G/T 5, J<.2ES T5 J<+GE 5, T/E J<ST2"E 5, LA*S SE"T254 2) ,5. (ore than six hundred years that is% since =agna "arta% in !8!J there has been no clearer principle of English or A(erican constitutional la#% than that% in cri(inal cases% it is not only the right and duty of juries to judge #hat are the facts% #hat is the la#% and #hat #as the (oral intent of the accusedS but that it is also their right% and their pri(ary and para(ount duty% to judge of the justice of the la#% and to hold all la#s in$alid% that are% in their opinion% unjust or oppressi$e% and all persons guiltless in $iolating% or resisting the execution of% such la#s)

<nless such be the right and duty of jurors% it is plain that% instead of juries being a Kpalladiu( of libertyK a barrier against the tyranny and oppression of the go$ern(ent they are really (ere tools in its hands% for carrying into execution any injustice and oppression it (ay desire to ha$e executed) But for their right to judge of the la#% and the justice of the la#% juries #ould be no protection to an accused person% e$en as to (atters of factS for% if the go$ern(ent can dictate to a jury any la# #hate$er% in a cri(inal case% it can certainly dictate to the( the la#s of e$idence) That is% it can dictate #hat e$idence is ad(issible% and #hat inad(issible% and also #hat force or #eight is to be gi$en to the e$idence ad(itted) And if the go$ern(ent can thus dictate to a jury the la#s of e$idence% it can not only (a&e it necessary for the( to con$ict on a partial exhibition of the e$idence rightfully pertaining to the case% but it can e$en reIuire the( to con$ict on any e$idence #hate$er that it pleases to offer the() That the rights and duties of jurors (ust necessarily be such as are here clai(ed for the(% #ill be e$ident #hen it is considered #hat the trial by jury is% and #hat is its object) KThe trial by jury%K then% is a Ktrial by the countryK that is% by the people as distinguished fro( a trial by the go$ern(ent) 2t #as anciently called Ktrial per paisK that is% Ktrial by the country)K And no#% in e$ery cri(inal trial% the jury are told that the accused Khas% for trial% put hi(self upon the countryS #hich country you @the juryA are)K The object of this trial Kby the country%K or by the people% in preference to a trial by the go$ern(ent% is to guard against e$ery species of oppression by the go$ern(ent) 2n order to effect this end% it is indispensable that the people% or Kthe country%K judge of and deter(ine their o#n liberties against the go$ern(entS instead of the go$ern(entRs judging of and deter(ining its o#n po#ers o$er the people) /o# is it possible that juries can do anything to protect the liberties of the people against the go$ern(ent% if they are not allo#ed to deter(ine #hat those liberties areQ Any go$ern(ent% that is its o#n judge of% and deter(ines authoritati$ely for the people% #hat are its o#n po#ers o$er the people% is an absolute go$ern(ent of course) 2t has all the po#ers that it chooses to exercise) There is no other or at least no (ore accurate definition of a despotis( than this) 5n the other hand% any people% that judge of% and deter(ine authoritati$ely for the go$ern(ent% #hat are their o#n liberties against the go$ern(ent% of course retain all the liberties they #ish to enjoy) And this is freedo() At least% it is freedo( to the(S because% although it (ay be theoretically i(perfect% it% ne$ertheless% corresponds to their highest notions of freedo() To secure this right of the people to judge of their o#n liberties against the go$ern(ent% the jurors are ta&en% @or (ust be% to (a&e the( la#ful jurors%Y fro( the body of the people% by lot% or by

so(e process that precludes any pre$ios &no#ledge% choice% or selection of the(% on the part of the go$ern(ent) This is done to pre$ent the go$ern(entRs constituting a jury of its o#n partisans or friendsS in other #ords% to pre$ent the go$ern(entRs pac&ing a jury% #ith a $ie# to (aintain its o#n la#s% and acco(plish its o#n purposes) 2t is supposed that% if t#el$e (en be ta&en% by lot% fro( the (ass of the people% #ithout the possibility of any pre$ious &no#ledge% choice% or selection of the(% on the part of the go$ern(ent% the jury #ill be a fair epito(e of Kthe countryK at large% and not (erely of the party or faction that sustain the (easures of the go$ern(entS that substantially all classes of opinions% pre$ailing a(ong the people% #ill be represented in the juryS and especially that the opponents of the go$ern(ent% @if the go$ern(ent ha$e any opponents%A #ill be represented there% as #ell as its friendsS that the classes% #ho are oppressed by the la#s of the go$ern(ent% @if any are thus oppressed%A #ill ha$e their representati$es in the jury% as #ell as those classes% #ho ta&e sides #ith the oppressor that is% #ith the go$ern(ent) 2t is fairly presu(able that such a tribunal #ill agree to no con$iction except such as substantially the #hole country #ould agree to% if they #ere present% ta&ing part in the trial) A trial by such a tribunal is% therefore% in effect% Ka trial by the country)K 2n its results it probably co(es as near to a trial by the #hole country% as any trial that it is practicable to ha$e% #ithout too great incon$enience and expense) And) as unani(ity is reIuired for a con$iction% it follo#s that no one can be con$icted% except for the $iolation of such la#s as substantially the #hole country #ish to ha$e (aintained) The go$ern(ent can enforce none of its la#s% @by punishing offenders% through the $erdicts of juries%A except such as substantially the #hole people #ish to ha$e enforced) The go$ern(ent% therefore% consistently #ith the trial by jury% can exercise no po#ers o$er the people% @or% #hat is the sa(e thing% o$er the accused person% #ho represents the rights of the people%A except such a substantially the #hole people of the country consent that it (ay exercise) 2n such a trial% therefore% Kthe country%K or the people% judge of and dter(ine their o#n liberties against the go$ern(ent% instead of thego$ern(entRs judging of and deter(ining its o#n po#ers o$er the people) But all this Ktrial by the countryK #ould be no trial at all Kby the country%K but only a trial by the go$ern(ent% if the go$ern(ent Rcould either declare #ho (ay% and #ho (ay not% be jurors% or could dictate to the jury anything #hate$er% either of la# or e$idence% that is of the essence of the trial) 2f the go$ern(ent (ay decide #ho (ay% and #ho (ay not% be jurors% it #ill of course select only its partisans% and those friendly to its (easures) 2t (ay not only prescribe #ho (ay% and #ho (ay not% be eligible to be dra#n as jurorsS but it (ay also Iuestion each person dra#n as a juror% as to his senti(ents in regard to the particular la# in$ol$ed in each trial% before suffering hi( to be s#orn on the panelS and exclude hi( if he be found unfa$orable to the (aintenance of such a la#) 7!:

So% also% if the go$ern(ent (ay dictate to the jury #hat la#s they are to enforce% it is no longer a K trial by the country%K but a trial by the go$ern(entS because the jury then try the accused% not by any standard of their o#n not by their o#n judg(ents of their rightful liberties but by a standard) dictated to the( by the go$ern(ent) And the standard% thus dictated by the go$ern(ent% beco(es the (easure of the peopleRs liberties) 2f the go$ern(ent dictate the standard of trial% it of course dictates the results of the trial) And such a trial is no trial by the country% but only a trial by the go$ern(entS and in it the go$ern(ent deter(ines #hat are its o#n po#ers o$er the people% instead of the peopleRs deter(ining #hat are their o#n liberties against the go$ern(ent) 2n short% if the jury ha$e no right to judge of the justice of a la# of the go$ern(ent% they plainly can do nothing to protect the people against the oppressions of the go$ern(entS for there are no oppressions #hich the go$ern(ent (ay not authori;e by la#) The jury are also to judge #hether the la#s are rightly expounded to the( by the court) <nless they judge on this point% they do nothing to protect their liberties against the oppressions that are capable of being practiced under co$er of a corrupt exposition of the la#s) 2f the judiciary can authoritati$ely dictate to a jury any exposition of the la#% they can dictate to the( the la# itself% and such la#s as they pleaseS because la#s are% in practice% one thing or another% according as they are expounded) The jury (ust also judge #hether there really be any such la#% @be it good or bad%A as the accused is charged #ith ha$ing transgressed) <nless they judge on this point% the people are liable to ha$e their liberties ta&en fro( the( by brute force% #ithout any la# at all) The jury (ust also judge of the la#s of e$idence) 2f the go$ern(ent can dictate to a jury the la#s of e$idence% it can not only shut out any e$idence it pleases% tending to $indicate the accused% but it can reIuire that any e$idence #hate$er% that it pleases to offer% be held as conclusi$e proof of any offence #hate$er #hich the go$ern(ent chooses to allege) 2t is (anifest% therefore% that the jury (ust judge of and try the #hole case% and e$ery part and parcel of the case% free of any dictation or authority on the part of the go$ern(ent) They (ust judge of the existence of the la#S of the true exposition of the la#S of the justice of the la#S and of the ad(issibility and #eight of all the e$idence offeredS other#ise the go$ern(ent #ill ha$e e$erything its o#n #ayS the jury #ill be (ere puppets in the hands of the go$ern(ent? and the trial #ill be% in reality% a trial by the go$ern(ent% and not a Ktrial by the country)K By such trials the go$ern(ent #ill deter(ine its o#n po#ers o$er the people% instead of the peopleRs deter(ining their o#n liberties against the go$ern(entS and it #ill be an entire delusion to tal&% as for centuries #e ha$e done% of the trial by jury% as a Kpalladiu( of liberty%K or as any protection to the people against the oppression and tyranny of the go$ern(ent) The Iuestion% then% bet#een trial by jury% as thus described% and trial by the go$ern(ent% is si(ply a Iuestion bet#een liberty and

despotis() The authority to judge #hat are the po#ers of the go$ern(ent% and #hat the liberties of the people% (ust necessarily be $ested in one or the other of the parties the(sel$es the go$ern(ent% or the peopleS because there is no third party to #ho( it can be entrusted) 2f the authority be $ested in the go$ern(ent% the go$ern(nt is absolute% and the people ha$e no liberties except such as the go$ern(ent sees fit to indulge the( #ith) 2f% on the other hand% that authority be $ested in the people% then the people ha$e all liberties% @as against the go$ern(ent%A except suc as substantially the #hole people @through a juryA choose to disclai(S and the go$ern(ent can exercise no po#er except such as substantially the #hole people @through a juryA consent that it (ay exercise) SE"T254 22) The force and) justice of the preceding argu(ent cannot be e$aded by saying that the go$ern(ent is chosen by the peopleS that% in theory% it represents the peopleS that it is designed to do the #ill of the peopleS that its (e(bers are all s#orn to obser$e the funda(ental or constitutional la# instituted by the peopleS that its acts are therefore entitled to be considered the acts of the peopleS and that to allo# a jury% representing the people% to in$alidate the acts of theR go$ern(ent% #ould therefore be arraying the people against the(sel$es) There are t#o ans#ers to such an argu(ent) 5ne ans#er is% that% in a representati$e go$ern(ent% there is no absurdity or contradiction% nor any arraying of the people against the(sel$es% in reIuiring that the statutes or enact(ents of the go$ern(ent shall pass the ordeal of any nu(ber of separate tribunals% before it shall be deter(ined that they are to ha$e the force of la#s) 5ur A(erican constitutions ha$e pro$ided fi$e of these separate tribunals% to #it% representati$es% senate% executi$e%78: jury% and judgesS and ha$e (ade it necessary that each enact(ent shall pass the ordeal of all these separate tribunals% before its authority can be established by the punish(ent of those #ho choose to transgress it) And there is no (ore absurdity or inconsistency in (a&ing a jury one of these se$eral tribunals% than there is in (a&ing the representati$es% or the senate% or the executi$e% or the judges% one of the() There is no (ore absurdity in gi$ing a jury a $eto upon the la#s% than there is in gi$ing a $eto to each of these other tribunals) The people are no (ore arrayed against the(sel$es% #hen a jury puts its $eto upon a statute% #hich the other tribunals ha$e sanctioned% than they are #hen the sa(e $eto is exercised by the representati$es% the senate% the executi$e% or the judges) But another ans#er to the argu(ent that the people are arrayed against the(sel$es% #hen a jury hold an enact(ent of the go$ern(ent in$alid% is% that the go$ern(ent% and all the depart(ents of the go$ern(ent% are (erely the ser$ants and agents of the peopleS not in$ested #ith arbitrary or absolute authority to bind the people% but reIuired to sub(it all their enact(ents to the judg(ent of a tribunal (ore fairly representing the #hole people% before they carry the( into execution% by punishing any indi$idual

for transgressing the() 2f the go$ern(ent #ere not thus reIuired to sub(it their enact(ents to the judg(ent of Kthe country%K before executing the( upon indi$iduals if% in other #ords% the people had reser$ed to the(sel$es no $eto upon the acts of the go$ern(ent% the go$ern(ent% instead of being a (ere ser$ant and agent of the people% #ould be an absolute despot o$er the people) 2t #ould ha$e all po#er in its o#n handsS because the po#er to punish carries all other po#ers #ith it) A po#er that can% of itself% and by its o#n authority% punish disobedience% can co(pel obedience and sub(ission% and is abo$e all responsibility for the character of its la#s) 2n short% it is a despotis() And it is of no conseIuence to inIuire ho# a go$ern(ent ca(e by this po#er to punish% #hether by prescription% by inheritance% by usurpation) or by delegation fro( the peopleRs 2f it ha$e no# but got it% the go$ern(ent is absolute) 2t is plain% therefore% that if the people ha$e in$ested the go$ern(ent #ith po#er to (a&e la#s that absolutely bind the people% and to punish the people for transgressing those la#s% the people ha$e surrendered their liberties unreser$edly into the hands of the go$ern(ent) 2t is of no a$ail to say% in ans#er to this $ie# of the ease% that in surrendering their liberties into the hands of the go$ern(ent% the people too& an oath fro( the go$ern(ent% that it #ould exercise its po#er #ithin certain constitutional li(itsS for #hen did oaths e$er restrain a go$ern(ent that #as other#ise unrestrainedQ 5r#hen did a go$ern(ent fail to deter(ine that all its acts #ere #ithin the constitutional and authori;ed li(its of its po#er% if it #ere per(itted to deter(ine that Iuestion for itselfQ 4either is it of any a$ail to say% that% if the go$ern(ent abuse its po#er% and enact unjust and oppressi$e la#s% the go$ern(ent (ay be changed by the influence of discussion% and the exercise of the right of suffrage) +iscussion can do nothing to pre$ent the enact(ent% or procure the repeal% of unjust la#s% unless it be understood that% the discussion is to be follo#ed by resistance) Tyrants care nothing for discussions that are to end only in discussion) +iscussions% #hich do not interfere #ith the enforce(ent of their la#s% are but idle #ind to the() Suffrage is eIually po#erless and unreliable) 2t can be exercised only periodicallyS and the tyranny (ust at least be borne until the ti(e for suffrage co(es) Be sides% #hen the suffrage is exercised% it gi$es no guaranty for the repeal of existing la#s that are oppressi$e% and no security against the enact(ent of ne# ones that are eIually so) The second body of legislators are liable and li&ely to be just as tyrannical as the first) 2f it be said that the second body (ay be chosen for their integrity% the ans#er is% that the first #ere chosen for that $ery reason% and yet pro$ed tyrants) The second #ill be exposed to the sa(e te(ptations as the first% and #ill be just as li&ely to pro$e tyrannical) *ho e$er heard that succeeding legislatures #ere% on the #hole% (ore honest than those that preceded the(Q *hat is there in the nature of (en or things to (a&e the( soQ 2f it be said that the first body #ere chosen fro( (oti$es of injustice% that fact pro$es that there is a portion of society #ho desire to establish injusticeS and if they #ere po#erful

or artful enough to procure the election of their instru(ents to co(pose the first legislature% they #ill be li&ely to be po#erful or artful enough to procure the election of the sa(e or si(ilar instru(ents to co(pose the second) The right of suffrage% therefore% and e$en a change of legislators% guarantees no change of legislation certainly no change for the better) E$en if a change for the better actually co(es% t c(es too late% because it co(es only after (ore or less injustice has been irreparably done) But% at best% the right of suffrage can be exercised only periodicallyS and bet#een the periods the legislators are #holly irresponsible) 4o despot #as e$er (ore entirely irresponsible than are republican legislators during the period for #hich they are chosen) They can neither% be re(o$ed fro( their office% nor called to account #hile in their office% nor punished after they lea$e their office% be their tyranny #hat it (ay) =oreo$er% the judicial and executi$e depart(ents of the go$ern(ent are eIually irresponsible to the people% and are only responsible% @by i(peach(ent% and dependence for their salariesA% to these irresponsible legislators) This dependence of the judiciary and executi$e upon the legislature is a guaranty that they #ill al#ays sanction and execute its la#s% #hether just or unjust) Thus the legislators hold the #hole po#er of the go$ern(ent in their hands% and are at the sa(e ti(e utterly irresponsible for the (anner in #hich they use it) 2f% no#% this go$ern(ent% @the three branches thus really united in oneA% can deter(ine the $alidity of% and enforce% its o#n la#s% it is% for the ti(e being% entirely absolute% and #holly irresponsible to the people) But this is not all) These legislators% and this go$ern(ent% so irresponsible #hile in po#er% can perpetuate their po#er at pleasure% if they can deter(ine #hat legislation is authoritati$e upon the people% and can enforce obedience to it% for they can not only declare their po#er perpetual% but they can enforce sub(ission to all legislation that is necessary to secure its perpetuity) They can% for exa(ple% prohibit all discussion of the rightfulness of their authorityS forbid the use of the suffrageS pre$ent the election of any successorsS disar(% plunder% i(prison% and e$en &ill all #ho refuse sub(ission) 2f% therefore% the go$ern(ent @all depart(ents unitedA be absolute for a day that is% if it can% for a day% enforce obedience to its o#n la#s it can% in that day% secure its po#er for all ti(e li&e the Iueen% #ho #ished to reign but for a day% but in that day caused the &ing% her husband% to be slain% and usurped his throne) 4or #ill it a$ail to say that such acts #ould be unconstitutional% and that unconstitutional acts (ay be la#fully resistedS for e$erything a go$ern(ent pleases to do #ill% of course% be deter(ined to be constitutional% if the go$ern(ent itself be per(itted to deter(ine the Iuestion of the constitutionality of its o#n acts) Those #ho are capable of tyranny% are capable of perjury to sustain it) The conclusion% therefore% is% that any go$ern(ent% that can% for a day% enforce its o#n la#s% #ithout appealing to the people% @or to a tribunal fairly representing the people%A for their consent% is% in

theory% an absolute go$ern(ent% irresponsible to the people% and can perpetuate its po#er at pleasure) The trial by jury is based upon a recognition of this principle% and therefore forbids the go$ern(ent to execute any of its la#s% by punishing $iolators% in any case #hate$er% #ithout first getting the consent of Kthe country%K or the people% through a jury) 2n this #ay% the people% at all ti(es% hold their liberties in their o#n hands% and ne$er surrender the(% e$en for a (o(ent% into the hands of the go$ern(ent) The trial by jury% then% gi$es to any and e$ery indi$idual the liberty% at any ti(e% to disregard or resist any la# #hate$er of the go$ern(ent% if he be #illing to sub(it to the decision of a jury% the Iuestions% #hether the la# be intrinsically just and obligatoryQ and #hether his conduct% in disregarding or resisting it% #ere right in itselfQ And any la#% #hich does not% in such trial% obtain the unani(ous sanction of t#el$e (en% ta&en at rando( fro( the people% and judging according to the standard of justice in their o#n (inds% free fro( all dictation and authority of the go$ern(ent% (ay be transgressed and resisted #ith i(punity% by #ho(soe$er pleases to transgress or resist it)7D: The trial by jury authori;es all this% or it is a sha( and a hoax% utterly #orthless for protecting the people against oppression) 2f it do not authori;e an indi$idual to resist the first and least act of injustice or tyranny% on the part of the go$ern(ent% it does not authori;e hi( to resist the last and the greatest) 2f it do not authori;e indi$iduals to nip tyranny in the bud% it does not authori;e the( to cut it do#n #hen its branches are filled #ith the ripe fruits of plunder and oppression) Those #ho deny the right of a jury to protect an indi$idual in resisting an unjust la# of the go$ern(ent% deny hi( all defence #hatsoe$er against oppression) The right of re$olution% #hich tyrants% in (oc&ery% accord to (an&ind% is no legal right under a go$ern(entS it is only a natural right to o$erturn a go$ern(ent) The go$ern(ent itself ne$er ac&no#ledges this right) And the right is practically established only #hen and because the go$ern(ent% no longer exists to call it in Iuestion) The right% therefore% can be exercised #ith i(punity% only #hen it is exercised $ictoriously) All unsuccessful atte(pts at re$olution% ho#e$er justifiable in the(sel$es% are punished as treason% if the go$ern(ent be per(itted to judge of the treason) The go$ern(ent itself ne$er ad(its the injustice of its la#s% as a legal defence for those #ho ha$e atte(pted a re$olution% and failed) The right of re$olution% therefore% is right of no practical $alue% except for those #ho are stronger than the go$ern(ent) So long% therefore% as the oppressions of a go$ern(ent are &ept #ithin such li(its as si(ply not to exasperate against it a po#er greater than its o#n% the right of re$olution cannot be appealed to% and is therefore inapplicable to the case) This affords a #ide field for tyrannyS and% if a jury cannot here inter$ene% the oppressed are utterly defenceless) 2t is (anifest that the only security against the tyranny of the go$ern(ent lies in forcible resistance to the execution of the injusticeS because the injustice #ill certainly be executed% unless it

be forcibly resisted) And if it be but suffered to be executed% it (ust then be borneS for the go$ern(ent ne$er (a&es co(pensation for its o#n #rongs) Since% then% this forcible resistance to the injustice of the go$ern(ent is the only possible (eans of preser$ing liberty% it is indispensable to all legal liberty that this resistance should be legali;ed) 2t is perfectly selfCe$ident that #here there is no legal right to resist the oppression of the go$ern(ent% there can be no lgal liberty) And here it is allCi(portant to notice% that% practically spea&ing% there can be no legal right to resist the oppressions of the go$ern(ent% unless there be so(e legal tribunal% other than the go$ern(ent% and #holly independent of% and abo$e% the go$ern(ent% to judge bet#een the go$ern(ent and those #ho resist its oppressionsS in other #ords% to judge #hat la#s of the go$ern(ent are to be obeyed% and #hat (ay be resisted and held for nought) The only tribunal &no#n to our la#s% for this purpose% is a jury) 2f a jury ha$e not the right to judge bet#een the go$ern(ent and those #ho disobey its la#s% and resist its oppressions% the go$ern(ent is absolute% and the people% legally spea&ing are sla$es) Li&e (any other sla$es they (ay ha$e sufficient courage and strength to &eep their (asters so(e#hat in chec&S but they are ne$ertheless &no#n to the la# only as sla$es) That this right of resistance #as recogni;ed as a co((on la# right% #hen the ancient and genuine trial by jury #as in force% is not only pro$ed by the nature of the trial itself% but is ac&no#ledged by history) 7E: This right of resistance is recogni;ed by the constitution of the <nited States% as a strictly legal and constitutional right) 2t is so recogni;ed% first by the pro$ision that Kthe trial of all cri(es% except in cases of i(peach(ent% shall be by juryK that is% by the country and not by the go$ern(entS secondly% by the pro$ision that Kthe right of the people to &eep and bear ar(s shall not be infringed)K This constitutional security for Kthe right to &eep and bear ar(s%K i(plies the right to use the( as (uch as a constitutional security for the right to buy and &eep food #ould ha$e i(plied the right to eat it) The constitution% therefore% ta&es it for granted that the people #ill judge of the conduct of the go$ern(ent% and that% as they ha$e the right% they #ill also ha$e the sense% to use ar(s% #hene$er the necessity of the case justifies it) And it is a sufficient and legal defence for a person accused of using ar(s against the go$ern(ent% if he can sho#% to the satisfaction of a jury% or e$en any one of a jury% that the la# he resisted #as an unjust one) 2n the A(erican State constitutions also% this right of resistance to the oppressions of the go$ern(ent is recogni;ed% in $arious #ays% as a natural% legal% and constitutional right) 2n the first place% it is so recogni;ed by pro$isions establishing the trial by juryS thus reIuiring that accused persons shall be tried by Kthe country%K instead of the go$ern(ent) 2n the second place% it is recogni;ed by (any of the(% as% for exa(ple% those of =assachusetts% =aine% -er(ont% "onnecticut% Pennsyl$ania% 5hio% 2ndiana% =ichigan% Uentuc&y% Tennessee% Ar&ansas% =ississippi% Alaba(a% and

,lorida% by pro$isions expressly declaring that the people shall ha$e the right to bear ar(s) 2n (any of the( also% as% for exa(ple% those of =aine% 4e# /a(pshire% -er(ont% =assachusetts% 4e# Jersey% Pennsyl$ania% +ela#are% 5hio% 2ndiana% 2llinois% ,lorida% 2o#a% and Ar&ansas% by pro$isions% in their bills of rights% declaring that (en ha$e a natural% inherent% and inalienable right of Kdefending their li$es and liberties)K This% of course% (eans that they ha$e a right to defend the( against any injustice on the part of the go$ern(ent% and not (erely on the part of pri$ate indi$idualsS because the object of all bills of rights is to assert the rights of indi$iduals and the people% as against the go$ern(ent% and not as against pri$ate persons) 2t #ould be a (atter of ridiculous supererogation to assert% in a constitution of go$ern(ent% the natural right of (en to defend their li$es and liberties against pri$ate trespassers) =any of these bills of rights also assert the natural right of all (en to protect their property that is% to protect it against the go$ern(ent) 2t #ould be unnecessary and silly indeed to assert% in a constitution of go$ern(ent% the natural right of indi$iduals to protect their property against thie$es and robbers) The constitutions of 4e# /a(pshire and Tennessee also declare that KThe doctrine of nonCresistance against arbitrary po#er and oppression is absurd% sla$ish% and destructi$e of the good and happiness of (an&ind)K The legal effect of these constitutional recognitions of the right of indi$iduals to defend their property% liberties% and li$es% R against the go$ern(ent% is to legali;e resistance to all injustice and oppression% of e$ery na(e and nature #hatsoe$er% on the part of the go$ern(ent) But for this right of resistance% on the part of the people% all go$ern(ents #ould beco(e tyrannical to a degree of #hich fe# people are a#are) "onstitutions are utterly #orthless to restrain the tyranny of go$ern(ents% unless it be understood that the people #ill% by force% co(pel the go$ern(ent to &eep #ithin the constitutional li(its) Practically spea&ing% no go$ern(ent &no#s any li(its to its po#er% except the endurance of the people) But that the people are stronger than the go$ern(ent% and #ill resist in extre(e cases% our go$ern(ents #ould be little or nothing else than organi;ed syste(s of plunder and oppression) All% or nearly all% the ad$antage there is in fixing any constitutional li(its to the po#er of a go$ern(ent% is si(ply to gi$e notice to the go$ern(ent of the point at #hich it #ill (eet #ith resistance) 2f the people are then as good as their #ord% they (ay &eep the go$ern(ent #ithin the bounds they ha$e set for itS other#ise it #ill disregard the( as is pro$ed by the exa(ple of all our A(erican go$ern(ents% in #hich the constitutions ha$e all beco(e obsolete% at the (o(ent of their adoption% for nearly or Iuite all purposes except the appoint(ent of officers% #ho at once beco(e practically absolute% except so far as they are restrained by the fear of popular resistance) The bounds set to the po#er of the go$ern(ent% by the trial by jury% as #ill hereafter be sho#n% are these that the go$ern(ent

shall ne$er touch the property% person% or natural or ci$il rights of an indi$idual% against his consent% Zxcept for the purpose of bringing the( before a jury for trial%A unless in pursuance and execution of a judg(ent% or decree% rendered by a jury in each indi$idual case% upon such e$idence% nd such la#% as are satisfactory to their o#n understandings and consciences% irrespecti$e of all legislation of the go$ern(ent) 7!:To sho# that this supposition is not an extra$agant one% it (ay be (entioned that courts ha$e repeatedly Iuestioned jurors to ascertain #hether they #ere prejudiced against the go$ern(ent that is% #hether they #ere in fa$or of% or opposed to% such la#s of the go$ern(ent as #ere to be put in issue in the then pending trial) This #as done @in !6J!A in the <nited States +istrict "ourt for the +istrict of =assachusetts% by Peleg Sprague% the <nited States district judge% in e(panelling three se$eral juries for the trials of Scott% /ayden% and =orris% charged #ith ha$ing aided in the rescue of a fugiti$e sla$e fro( the custody of the <nited States deputy (arshal) This judge caused the follo#ing Iuestion to be propounded to all the jurors separatelyS and those #ho ans#ered unfa$orably for the purposes of the go$ern(ent% #ere excluded fro( the panel) K+o you hold any opinions upon the subject of the ,ugiti$e Sla$e La#% so called% #hich #ill induce you to refuse to con$ict a person indicted under it% if the facts set forth% in the indict(ent% and constituting the offence% are pro$ed against hi(% and the court direct you that the la# is constitutionalQK The reason of this Iuestion #as% that Kthe ,ugiti$e Sla$e La#% so called%K #as so obnoxious to a large portion of the people% as to render a con$iction under it hopeless% if the jurors #ere ta&en indiscri(inately fro( a(ong the people) A si(ilar Iuestion #as soon after#ards propounded to the persons dra#n as jurors in the <nited States "ircuit "ourt for the +istrict of =assachusetts% by Benja(in .) "urtis% one of the Justices of the Supre(e "ourt of the <nited States% in e(panelling a jury for the trial of the aforesaid =orris on the charge before (entionedS and those #ho did not ans#er the Iuestion fa$orably for the go$ern(ent #ere again excluded fro( the panel) 2t has also been an habitual practice #ith the Supre(e "ourt of =assachusetts% in e(panelling juries for the trial of capital offences% to inIuire of the persons dra#n as jurors #hether they had any conscientious scruples against finding $erdicts of guilty in such easesS that is% #hether they had any conscientious scruples against sustaining the la# prescribing death as the punish(ent of the cri(e to be tric&S and to exclude fro( the panel all #ho ans#ered in the affir(ati$e) The only principle upon #hich these Iuestions are as&ed% is this that no (an shall be allo#ed to ser$e as juror% unless he be ready to enforce any enact(ent of the go$ern(ent% ho#e$er cruel or tyrannical it (ay be) *hat is such a jury good for% as a protection against the tyranny of

the go$ern(entQ A jury li&e that is palpably nothing but% a (ere tool of oppression in the hands of the go$ern(ent) A trial by such a jury is really a trial by the go$ern(ent itself and not a trial by the country because it is a trial only by (en specially selected by the go$ern(ent for their readiness to enforce its o#n tyrannical (easures) 2f that be the true principle of the trial by jury% the trial is utterly #orthless as a security to liberty) The ";ar (ight% #ith perfect safety to his authority% introduce the trial by jury into .ussia% if he could but be per(itted to select his jurors fro( those #ho #ere ready to (aintain his la#s% #ithout regard to their injustice) This exa(ple is sufficient to sho# that the $ery pith of the trial by jury% as a safeguard to liberty% consists in the jurors being ta&en indiscri(inately fro( the #hole people% and in their right to hold in$alid all la#s #hich they thin& unjust) 78: The executi$e has a Iualified $eto upon the passage of la#s% in (ost of our go$ern(ents% and an absolute $eto% in all of the(% upon the execution of any la#s #hich he dee(s unconstitutionalS because his oath to support the constitution @as he understands itA forbids hi( to execute any la# that he dee(s unconstitutional) 7D: And if there be so (uch as a reasonable doubt of the justice of the la#s% the benefit of that doubt (ust be gi$en to the defendant% and not to the go$ern(ent) So that the go$ern(ent (ust &eep its la#s clearly #ithin the li(its of justice% if it #ould as& a jury to enforce the() 7E: /alla( says% KThe relation established bet#een a lord and his $assal by the feudal tenure% far fro( containing principles of any ser$ile and i(plicit obedience% per(itted the co(pact to be dissol$ed in case of its $iolation by either party) This extended as (uch to the so$ereign as to inferior lords) * * 2f a% $assal #as aggrie$ed% and if justice #as denied hi(% he sent a defiance% that is% a renunciation of fealty to the &ing% and #as entitled to enforce redress at the point of his s#ord) 2t then beca(e a contest of strength as bet#een t#o independent potentates% and #as ter(inated by treaty% ad$antageous or other#ise% according to the fortune of #ar) * * There re(ained the original principle% that allegiance depended conditionally upon good treat(ent% and that an appeal (ight be la#fully (ade to ar(s against an oppressi$e go$ern(ent) 4or #as this% #e (ay be sure% left for extre(e necessity% or thought to reIuire a longCenduring forbearance) 2n (odern ti(es% a &ing% co(pelled by his subjectsR s#ords to abandon any pretension% #ould be supposed to ha$e ceased to reignS and the express recognition of such a right as that of insurrection has been justly dee(ed inconsistent #ith the (ajesty of la#) But ruder ages had ruder senti(ents) ,orce #as necessary to repel forceS and (en accusto(ed to see the &ingRs authority defied by a pri$ate riot% #ere not (uch shoc&ed #hen it #as resisted in defence of public freedo()K D =iddle Age% 8E9C8) "/APTE. 22) T/E T.2AL B3 J<.3% AS +E,24E+ B3 =AG4A "A.TA

T/AT the trial by jury is all that has been clai(ed for it in the preceding chapter% is pro$ed both by the history and the language of the Great "harter of English Liberties% to #hich #e are to loo& for a true definition of the trial by jury% and of #hich the guaranty for that trial is the $ital% and (ost (e(orable% part) SE"T254 2 The /istory of =agna "arta) 2n order to judge of the object and (eaning of that chapter of =agna "arta #hich secures the trial by jury% it is to be borne in (ind that% at the ti(e of =agna "arta% the &ing @#ith exceptions i((aterial to this discussion% but #hich #ill appear hereafterA #as% constitutionally% the entire go$ern(entS the sole legislati$e% judicial% and executi$e po#er of the nation) The executi$e and judicial officers #ere (erely his ser$ants% appointed by hi(% and re(o$able at his pleasure) 2n addition to this% Kthe &ing hi(self often sat in his court% #hich al#ays attended his person) /e there heard causes% and pronounced judg(entS and though he #as assisted by the ad$ice of other (e(bers% it is not to be i(agined that a decision could be obtained contrary to his inclination or opinion)K7!: Judges #ere in those days% and after#ards% such abject ser$ants of the &ing% that K#e find that Uing Ed#ard 2) @!818 to !D91A fined and i(prisoned his judges% in the sa(e (anner as Alfred the Great% a(ong the Saxons% had done before hi(% by the sole exercise of his authority)K78: Parlia(ent% so far as there #as a parlia(ent% #as a (ere council of the &ing)7D: 2t asse(bled only at the pleasure of the &ingS sat only during his pleasureS and #hen sitting had no po#er% so far as general legislation #as concerned% beyond that of si(ply ad$ising the &ing) The only legislation to #hich their assent #as constitutionally necessary% #as de(ands for (oney and (ilitary ser$ices for extraordinary occasions) E$en =agna "arta itself (a&es no pro$isions #hate$er for any parlia(ents% except #hen the &ing should #ant (eans to carry on #ar% or to (eet so(e other extraordinary necessity)7E: /e had no need of parlia(ents to raise taxes for the ordinary purposes of go$ern(entS for his re$enues fro( the rents of the cro#n lands and other sources% #ere a(ple for all except extraordinary occasions) Parlia(ents% too% #hen asse(bled% consisted only of bishops% barons% and other great (en of the &ingdo(% unless the &ing chose to in$ite others)7J: There #as no /ouse of "o((ons at that ti(e% and the people had no right to be heard% unless as petitioners)7M: E$en #hen la#s #ere (ade at the ti(e of a parlia(ent% they #ere (ade in the na(e of the &ing alone) So(eti(es it #as inserted in the la#s% that they #ere (ade #ith the consent or ad$ice of the bishops% barons% and others asse(bledS but often this #as o(itted) Their consent or ad$ice #as e$idently a (atter of no legal i(portance to the enact(ent or $alidity of the la#s% but only inserted% #hen inserted at all% #ith a $ie# of obtaining a (ore #illing sub(ission to the( on the part of the people) The style of enact(ent generally #as% either KThe Uing #ills and co((ands%K or so(e other for( significant of the sole legislati$e authority of

the &ing) The &ing could pass la#s at any ti(e #hen it pleased hi() The presence of a parlia(ent #as #holly unnecessary) /u(e says% K2t is asserted by Sir /arry Spel(an% as an undoubted fact% that% during the reigns of the 4or(an princes% e$ery order of the &ing% issued #ith the consent of his pri$y council% had the full force of la#)K71: And other authorities abundantly corroborate this assertion)76:The &ing #as% therefore% constitutionally the go$ern(entS and the only legal li(itation upon his po#er see(s to ha$e been si(ply the "o((on La#% usually called Kthe la# of the land%K #hich he #as bound by oath to (aintainS @#hich oath had about the sa(e practical $alue as si(ilar oaths ha$e al#ays had)A This Kla# of the landK see(s not to ha$e been regarded at all by (any of the &ings% except so far as they found it con$enient to do so% or #ere constrained to obser$e it by the fear of arousing resistance) But as all people are slo# in (a&ing resistance% oppression and usurpation often reached a great heightS and% in the case of John% they had beco(e so intolerable as to enlist the nation al(ost uni$ersally against hi(S and he #as reduced to the necessity of co(plying #ith any ter(s the barons sa# fit to dictate to hi() 2t #as under these circu(stances% that the Great "harter of Englsh Liberties #as granted) The barons of England% sustained by the co((on people% ha$ing their &ing in their po#er% co(pelled hi(% as the price of his throne% to pledge hi(self that he #ould punish no free(an for a $iolation of any of his la#s% unless #ith the consent of the peers that is% the eIuals of the accused) The Iuestion here arises% *hether the barons and people intended that those peers @the juryA should be (ere puppets in the hands of the &ing% exercising no opinion of their o#n as to the intrinsic (erits of the accusations they should try% or the justice of the la#s they should be called on to enforceQ *hether those haughty and $ictorious barons% #hen they had their tyrant &ing at their feet% ga$e bac& to hi( his throne% #ith full po#er to enact any tyrannical la#s he (ight please% reser$ing only to a jury @K the countryKA the conte(ptible and ser$ile pri$ilege of ascertaining% @under the dictation of the &ing% or his judges% as to the la#s of e$idenceA% the si(ple fact #hether those la#s had been transgressedQ *as this the only restraint% #hich% #hen they had all po#er in their hands% they placed upon the tyranny of a &ing% #hose oppressions they had risen in ar(s to resistQ *as it to obtain such a charter as that% that the #hole nation had united% as it #ere% li&e one (an% against their &ingQ *as it on such a charter that they intended to rely% for all future ti(e% for the security of their libertiesQ 4o) They #ere engaged in no such senseless #or& as that) 5n the contrary% #hen they reIuired hi( to renounce fore$er the po#er to punish any free(an% unless by the consent of his peers% they intended those po#ers should judge of% and try% the #hole case on its (erits% independently of all arbitrary legislation% or judicial authority% on the part of the &ing) 2n this #ay they too& the liberties of each indi$idual and thus the liberties of the #hole people entirely out of the hands of the &ing% and out of the po#er of his la#s% and placed the( in the &eeping of the people the(sel$es) And this it#as that (ade the trial b jury the palladiu(

of their liberties) The trial by jury% be it obser$ed% #as the only real barrier interposed by the( against absolute despotis() "ould this trial% then% ha$e been such an entire farce as it necessarily (ust ha$e been% if the jury had had no po#er to judge of the justice of the la#s the people #ere reIuired to obeyQ +id it not rather i(ply that the jury #ere to judge independently and fearlessly as to e$erything in$ol$ed in the charge% and especially as to its intrinsic justice% and thereon gi$e their decision% @unbiased by any legislation of the &ing%A #hether the accused (ight be punishedQ The reason of the thing% no less than the historical celebrity of the e$ents% as securing the liberties of the people% and the $eneration #ith #hich the trial by jury has continued to be regarded% not#ithstanding its essence and $itality ha$e been al(ost entirely extracted fro( it in practice% #ould settle the Iuestion% if other e$idences had left the (atter in doubt) Besides% if his la#s #ere to be authoritati$e #ith the jury% #hy should John indignantly refuse% as at first he did% to grant the charter% @and finally grant it only #hen brought to the last extre(ity%A on the ground that it depri$ed hi( of all po#er% and left hi( only the na(e of a &ingQ /e e$idently understood that the juries #ere to $eto his la#s% and paraly;e his po#er% at discretion% by for(ing their o#n opinions as to the true character of the offences they #ere to try% and the la#s they #ere to be called on to enforceS and that Kthe &ing #ills and co((andsK #as to ha$e no #eight #ith the( contrary to their o#n judg(ents of #hat #as intrinsically right)70: The barons and people ha$ing obtained by the charter all the liberties they had de(anded of the &ing% it #as further pro$ided by the charter itself that t#entyCfie barons should be appointed by the barons% out of their nu(ber% to &eep special $igilance in the &ingdo( to see that the charter #as obser$ed% #ith authority to (a&e #ar upon the &ing in case of its $iolation) The &ing also% by the charter% so far absol$ed all the people of the &ingdo( fro( their allegiance to hi(% as to authori;e and reIuire the( to s#ear to obey the t#entyCfi$e barons% in case they should (a&e #ar upon the &ing for infringe(ent of the charter) 2t #as then thought by the barons and people% that so(ething substantial had been done for the security of their liberties) This charter% in its (ost essential features% and #ithout any abate(ent as to the trial by jury% has since been confir(ed (ore than thirty ti(esS and the people of England ha$e al#ays had a traditionary idea that it #as of so(e $alue as a guaranty against oppression) 3et that idea has been an entire delusion% unless the jury ha$e had the right to judge of the justice of the la#s they #ere called on to enforce) SE"T254 22) The Language of =agna "arta The language of the Great "harter establishes the sa(e point that is established by its history% $i;)% that it is the right and duty of the

jury to judge of the justice of the la#s) The chapter guaranteeing the trial by jury is in these #ords? K4ullus liber ho(o capiatur% $el i(prisonetur% aut disseisetur% aut utlagetor% aut exuletur% aut aliIuo (odo destruaturS nec super eu( ibi(us% nec super eu( (itte(us% nisi per legale judiciu( pariu( suoru(% $el per lege( terrae)K7!9: The corresponding chapter in the Great "harter% granted by /enry 222% @!88JA and confir(ed by Ed#ard 2% @!801%A @#hich charter is no# considered the basis of the English la#s and constitution%A is in nearly the sa(e #ords% as follo#s? K4ullus liber ho(o capiatur% $el i(prisonetur% aut disseisetur de libero tene(ento% $el libertatibus% $el liberis consuetudinibus suis% aut utlagetur% aut exuletur% aut aliIuo (odo destruatur% nec super eu( ibi(us% nec super eu( (itte(us% nisi per legale judiciu( pariu( suoru(% $el per lege( terrae)K The (ost co((on translation of these #ords% at the present day% is as follo#s? K4o free(an shall be arrested% or i(prisoned% or depri$ed of his freehold% or his liberties% or free custo(s% or outla#ed% or exiled% or in any (anner destroyed% nor #ill #e @the &ingA pass upon hi(% nor conde(n hi(% unless by the judg(ent of his peers% or the la# of the land)K K4ec super eu( ibi(us% nec super eu( (itte(us)K There has been (uch confusion and doubt as to the true (eaning of the #ords% Knec super eu( ibi(us% neo super eu( (itte(us)K The (ore co((on rendering has been% Knor #ilt #e pass upon hi(% nor conde(n hi()K But so(e ha$e translated the( to (ean% Knor #ill #e pass upon hi(% nor co((it hi( to prison)K "o&e gi$es still a different rendering% to the effect that K4o (an shall be conde(ned at the &ingRs suit% either before the &ing in his bench% nor before any other co((issioner or judge #hatsoe$er)K 7!!: But all these translations are clearly erroneous) 2n the first place% Knor #ill #e pass upon hi(%K (eaning thereby to decide upon his guilt or innocence judicially is not a correct rendering of the #ords% Knec super eu( ibi(us)K There is nothing #hate$er% in these latter #ords% that indicates judicial action or opinion at all) The #ords% in their co((on signification% describe physical action alone) And the true translation of the(% as #ill hereafter be seen% is% Knor #ill #e proceed against hi(%K executi$ely) 2n the second place% the rendering% Knor #ill #e conde(n hi(%K bears little or no analogy to any co((on% or e$en unco((on% signification of the #ords Knec super eu( (itte(us)K There is nothing in these latter #ords that indicates judicial action or decision) Their co((on signification% li&e that of the #ords nec super eu( ibi(us% describes physical action alone) K4or #ill #e send upon @or againstA hi(%K #ould be the (ost ob$ious translation% and% as #e shall hereafter see% such is the true translation)

But although these #ords describe physical action% on the part of the &ing% as distinguished fro( judicial% they ne$ertheless do not (ean% as one of the translations has it% Knor #ill #e co((it hi( to prisonSK for that #ould be a (ere repetition of #hat had been already declared by the #ords Knec i(prisonetur)K Besides% there is nothing about prisons in the #ords Knec super eu( (itte(usSK nothing about sending hi( any#hereS but only about sending @so(ething or so(ebodyA upon hi(% or against hi( that is% executi$ely) "o&eRs rendering is% if possible% the (ost absurd and gratuitous of all) *hat is there in the #ords% Knec super eu( (itte(us%K that can be (ade to (ean Knor shall he be conde(ned before any other co((issioner or judge #hatsoe$er)KQ "learly there is nothing) The #hole rendering is a sheer fabricatin) And the #hole object of it is to gi$e color for the exercise of a judicial po#er% by the &ing% or his judges% #hich is no#here gi$en the() 4either the #ords% K4ec super eu( ibi(us% nec super eu( (itte(us%K nor any other #ords in the #hole chapter% authori;e% pro$ide for% describe% or suggest% any judicial action #hate$er% on the part either of the &ing% or of his judges% or of anybody% except the peers% or jury) There is nothing about the &ingRs judges at all) And% there is nothing #hate$er% in the #hole chapter% so far as relates to the action of the &ing% that describes or suggests anything but executi$e action)7!8: But that all these translations are certainly erroneous% is pro$ed by a te(porary charter% granted by John a short ti(e pre$ious to the Great "harter% for the purpose of gi$ing an opportunity for conference% arbitration% and reconciliation) bet#een hi( and his barons) 2t #as to ha$e force until the (atters in contro$ersy bet#een the( could be sub(itted to the Pope% and to other persons to be chosen% so(e by the &ing% and so(e by the barons) The #ords of the charter are as follo#s? KSciatis nos concessisse baronibus nostris Iui contra nos sunt Iuod nec eos nec ho(ines suos capie(us% nec disseisie(us nec super eos per $i( $el per ar(a ibi(us nisi per lege( regni nostri $el per judiciu( pariu( suoru( in curia nostra donec consideratio facta fuerit%K XcS)% XcS) That is% KUno# that #e ha$e granted to our barons #ho are opposed to us% that #e #ill neither arrest the( nor their (en% nor dissei;e the(% nor #ill #e proceed against the( by force or by ar(s% unless by the la# of our &ingdo(% or by the judg(ent of their peers in our court% until consideration% shall be had%K XcS)% XcS) A copy of this charter is gi$en in a note in Blac&stoneRs 2ntroduction to the "harter)7!D: =r) "hristian spea&s of this charter as settling the true (eaning of the corresponding clause of =agna "arta% on the principle tat la#s and charters on the sa(e subject are to be construed #ith reference to each other) See D "hristinRs Blac&stone% E!% note)

The true (eaning of the #ords% nec super eu( ibi(us% nec super eu( (itte(us% is also pro$ed by the KArticles of the Great "harter of Liberties%K de(anded of the &ing by the barons% and agreed to by the &ing% under seal% a fe# days before the date of the "harter% and fro( #hich the "harter #as fra(ed) 7!E: /ere the #ords used are these? K4e corpus liberi ho(inis capiatur nec i(prisonetur nec disseisetur nec ut!agetur nec exuletur nec aliIuo (odo destruatur nec rex eat $el (ittat super eun $i nisi per judiciu( pariurn suoru( $el per lege( terrae)K That is% KThe body of a free(an shall not be arrested% nor i(prisoned% nor dissei;ed% nor outla#ed% nor exiled% nor in any (anner destroyed% nor shall the &ing proceed or send @any oneA against hi(% *2T/ ,5."E% unless by the judg(ent of his peers% or the la# of the land)K The true translation of the #ords nec super eu( ibi(us% nec super eu( (itte(us% in =agna "arta% is thus (ade certain% as follo#s% Knor #ill #e @the &ingA proceed against hi(% nor send @any oneA against hi(% *2T/ ,5."E 5. A.=S) 7!J: 2t is e$ident that the difference bet#een the true and false translations of the #ords% nec super eu( ibius% nec super eu( (itte(us% is of the highest legal i(portance% inas(uch as the true translation% nor #ill #e @the &ingA proceed against hi(% nor send @any oneA against hi( by force of ar(s% represents the &ing only in an executi$e character% carrying the judg(ent of the peers and Kthe la# of the landK into executionS #here as the false translation% nor #ill #e pass upon hi(% nor conde(n hi(% gi$es color for the exercise of a judicial po#er% on the part of the &ing% to #hich the &ing had no right% but #hich% according to the true translation% belongs #holly to th jury) KPer legale judiciu( pariu( suoru()K The foregoing interpretation is corroborated% @if it #ere not already too plain to be susceptible of corroboration%A by the true interpretation of the phrase Kper legale judiciu( pariu( suoru()K 2n gi$ing this interpretation% 2 lea$e out% for the present% the #ord legale% #hich #ill be defined after#ards) The true (eaning of the phrase% per judiciu( pariu( suoru(% is% according to the sentence of his eers) The #ord judiciu(% judg(ent% has a technical (eaning in the la#% signifying the decree rendered in the decision of a cause) 2n ci$il suits this decision is called a judg(entS in chancery proceedngs it is called a decreeS in cri(inal actions it is called a sentence% or judg(ent% indifferently) Thus% in a cri(inal suit% Ka (otion in arrest of judg(ent%K (eans a (otion in arrest of sentence) 7!M: 2n cases of sentence% therefore% in cri(inal suits% the #ords sentence and judg(ent are synony(ous ter(s) They are% to this day% co((only used in la# boo&s as synony(ous ter(s) And the phrase per jndiciu( pariu( suoru(% therefore% i(plies that the

jury are to fix the sentence) The #ord per (eans according to) 5ther#ise there is no sense in the phrase per judiciu( parui( suoru() There #ould be no sense in saying that a &ing (ight i(prison% dissei;e% outla#% exile% or other#ise punish a (an% or proceed against hi(% or send any one against hi(% by force or ar(s% by a judg(ent of his peersS but there is sense in saying that the &ing (ay i(prison% dissei;e% and punish a (an% or proceed against hi(% or send any one against hi(% by force or ar(s% according to a judg(ent% or sentence% of his peersS because in that case the &ing #ould be (erely carrying the sentence or judg(ent of the peers into execution) The #ord per% in the phrase Kper judiciu( pariu( suoru(%K of course (eans precisely #hat it does in the next phrase% Kper lege( terraeSK #here it ob$iously (eans according to% and not by% as it is usually translated) There #ould be no sense in saying that the &ing (ight proceed against a (an by force or ar(s% by the la# of the landS but there is sense in saying that he (ay proceed against hi(% by force or ar(s% according to the la# of the landS because the &ing #ould then be acting only as an executi$e officer% carrying the la# of the land into execution) 2ndeed% the true (eaning of the #ord by% as used in si(ilar cases no#% al#ays is according toS as% for exa(ple% #hen #e say a thing #as done by the go$ern(ent% or by the executi$e% by la#% #e (ean only that it #as done by the( according to la#S that is% that they (erely executed the la#) 5r% if #e say that the #ord by signifies by authority of% the result #ill still be the sa(eS for nothing can be done by authority of la#% except #hat the la# itself authori;es or directs to be doneS that is% nothing can be done by authority of la#% except si(ply to carry the la# itself into execution) So nothing could be done by authority of the sentence of the peers% or by authority of Kthe la# of the land%K except #hat the sentence of the peers% or the la# of the land% the(sel$es authori;ed or directed to be doneS nothing% in short% but to carry the setence of the peers% or the la# of the land% the(sel$es into execution) +oing a thing by la#% or according to la#% is only carrying the la# into execution) And punishing a (an by% or according to% the sentence or judg(ent of his peers% is only carrying that sentence or judg(ent into execution) 2f these reasons could lea$e any doubt that the #ord per is to be translated according to% that doubt #ould be re(o$ed by the ter(s of an antecedent guaranty for the trial by jury% granted by the E(peror "onrad% of Ger(any% 7!1: t#o hundred years before =agna "arta) Blac&stone cites it as follo#s? @D Blac&stone% DJ9)A K4e(o beneficiu( suu( perdat% nisi secundu( consuetuCdine( antecessoru( nostroru(% et judiciu( pariu( suoru()K That is% 4o one shall lose his estate% 7!6: unless according to @Ksecundu(KA the custo( @or la#A of our ancestors% and @according toA the sentence @or judg(entA of his peers) The e$idence is therefore conclusi$e that the phrase per judiciu( parian suoru( (eans according to the sentence of his peersS thus i(plying hat the jury% and not the go$ern(ent% are to fix the

sentence) 2f any additional proof #ere #anted that juries #ere to fix the sentence% it #ould be found in the follo#ing pro$isions of =agna "arta% $i;)? KA free(an shall not be a(erced for a s(all cri(e% @delicto%A but according to the degree of the cri(eS and for a great cri(e in proportion to the (agnitude of it% sa$ing to hi( his contene(entS 7!0: and after the sa(e (anner a (erchant% sa$ing to hi( his (erchandise) And a $illein shall be a(erced after the sa(e (anner% a$ing to hi( his #aynage% 789: if he fall under our (ercyS and none of the aforesaid a(erce(ents shall be i(posed% @or assessed% ponatur%A but by the oath of honest (en of the neighborhood) Earls and Barons shall not be a(erced but by their peers% and according to the degree of their cri(e)K 78!: Pecuniary punish(ents #ere the (ost co((on punish(ents at that day% and the foregoing pro$isions of =agna "arta sho# that the a(ount of those punish(ents #as to be fixed by the jury) ,ines #ent to the &ing% and #ere a source of re$enueS and if the a(ounts of the fines had been left to be fixed by the &ing% he #ould ha$e had a pecuniary te(ptation to i(pose unreasonable and oppressi$e ones) So% also% in regard to other punish(ents than fines) 2f it #ere left to the &ing to fix the punish(ent% he (ight often ha$e (oti$es to inflict cruel and oppressi$e ones) As it #as the object of the trial by jury to protect the people against all possible oppression fro( the &ing% it #as necessary that the jury% and not the &ing% should fix the punish(ents) 788: KLegale)K The #ord Klegale%K in the phrase Kper legale judiciu( pariu( suoru(%Kdoubtless (eans t#o things)!) That the sentence (ust be gi$en in a legal (annerS that is% by the legal nu(ber of jurors% legally e(panelled and s#orn to try the causeS and that they gi$e their judg(ent or sentence after a legal trial% both in for( and substance% has been had) 8) That the sentence shall be for a legal cause or offence) 2f% therefore% a jury should con$ict and sentence a (an% either #ithout gi$ing hi( a legal trial% or for an act that #as not really and legally cri(inal% the sentence itself #ould not be legalS and conseIuently this clause forbids the &ing to carry such a sentence into executionS for the clause guarantees that he #ill execute no judg(ent or sentence% except it be legale judiciu(%a legal sentence) *hether a sentence be a legal one% #ould ha$e to be ascertained by the &ing or his judges% on appeal% or (ight be judged of infor(ally by the &ing hi(self) The #ord KlegaleKclearly did not (ean that the judiciu( pariu( suoru( @judg(ent of his peersA should be a sentence #hich any la# @of the &ingA should reIuire the peers to pronounceS for in that case the sentence #ould not be the sentence of the peers% but only the sentence of the la#% @that is% of the &ingAS and the peers #ould be only a (outhpiece of the la#% @that is% of the &ing%A in uttering it) KPer lege( terrae)K

5ne other phrase re(ains to be explained% $i;)% Kper lege( terrae%K Kby the la# of the land)K All #riters agree that this (eans the co((on la#)Thus% Sir =atthe# /ale says? KThe co((on la# is so(eti(es called% by #ay of e(inence% lex terrae%as in the statute of =agna "arta%chap) 80% #here certainly the co((on la# is principally intended by those #ords% aut per lege( terraeSas appears by the exposition thereof in se$eral subseIuent statutesS and particularly in the statute of 86 Ed#ard 222)% chap) D% #hich is but an exposition and explanation of that statute) So(eti(es it is called lex Angliae%as in the statute of =erton% cap) 0% Kolurnus leIes Angliae (utari%KXcS)% @*e #ill that the la#s of England be not changedA) So(eti(es it is called lex et consuetudo regni@the la# and custo( of the &ingdo(AS as in all co((issions of oyer and ter(inerS and in the statutes of !6 Ed#ard 2)% cap) % and de Iuo #arranto%and di$ers others) But (ost co((only it is called the "o((on La#% or the "o((on La# of EnglandS as in the statute Articuli super "hartas%cap) !J% in the statute 8J Ed#ard 222)% cap) J% @E%A and infinite (ore records and statutes)K ! /aleRs /istory of the "o((on La#% !86) This co((on la#% or Kla# of the land%K the &ing #as s#orn to (aintain)This fact is recogni;ed by a statute (ade at *est(inster% in !DEM% by Ed#ard 222)% #hich co((ences in this (anner? KEd#ard% by the Grace of God% XcS)% XcS)% to the Sheriff of Stafford% Greeting? Because that by di$ers co(plaints (ade to us% #e ha$e percei$ed that the la# of the land% #hich #e by oath are bound fo (aintain%KXcS) St) 89 Ed#ard 222 The foregoing authorities are cited to sho# to the unprofessional reader% #hat is #ell &no#n to the profession% that lege( terrae% the la# of the land%(entioned in =agna "arta% #as the co((on% ancient% funda(ental la# of the land% #hich the &ings #ere bound by oath to obser$eS and that it did not include any statutes or la#s enacted by the &ing hi(self% the legislati$e po#er of the nation) 2f the ter( lege( terraehad included la#s enacted by the &ing hi(self% the #hole chapter of =agna "arta% no# under discussion% #ould ha$e a(ounted to nothing as a protection to libertyS because it #ould ha$e i(posed no restraint #hate$er upon the po#er of the &ing) The &ing could (a&e la#s at any ti(e% and such ones as he pleased) /e could% therefore% ha$e done anything he pleased% by the la# of the land%as #ell as in any other #ay% if his o#n la#s had been Kthe la# of the land)K2f his o#n la#s had been Kthe la# of the land%K #ithin the (eaning of that ter( as used in =agna "arta% this chapter of =agna "arta #oold ha$e been sheer nonsense% inas(uch as the #hole purpot of it #ould ha$e been si(ply that Kno (an shall be arrested% i(prisoned% or depri$ed of his freehold% or his liberties% or free custo(s% or outla#ed% or exiled% or in any (anner destroyed @by the &ingAS nor shall the &ing proceed against hi(% nor send any one againist hi( #ith force and ar(s% unless by the judg(ent of his peers% or uness the &ing shall please to do so)K

This chapter of =agna "arta #ould% therefore% ha$e i(posed not the slightest restraint upon the po#er of the &ing% or afforded the slightest protection to the liberties of the people% if the la#s of the &ing had been e(braced in theter( lege( terrae) But if lege( terrae #as the co((on la#% #hich the &ing #as s#orn to (aintain% then a real restriction #as laid upon his po#er% and a real guaranty gi$en to the people for their liberties) Such% then% being the (eaning of lege( terrae% the fact is established that =agna "arta too& an accused person entirely out of the hands of the legislati$e po#er% that is% of the &ingS and placed hi( in the po#er and under the protection of his peers% and the co((on la# aloneS that% in short% =agna "arta suffered no (an to be punished for $iolating any enact(ent of the legislati$e po#er% unless the peers or eIuals of the accused) freely consented to it% or the co((on la# authori;ed itS that the legislati$e po#er% of itself% #as #holly inco(petent to reIuire the con$iction or punish(ent of a (an for any offence #hate$er) *hether =agna "arta allo#ed of any other trial than by jury) The Iuestion here arises% #hether Klege( terrae did not allo# of so(e other (ode of trial than that by jury) The ans#er is% that% at the ti(e of =agna "arta% it is not probable% @for the reasons gi$en in the note%A that lege( terrae authori;ed% in cri(inal cases% any other trial than the trial by juryS but% if it did% it certainly authori;ed none but the trial by battle% the trial by ordeal% and the trial by co(purgators) These #ere the only (odes of trial% except by jury% that had been &no#nin England% in cri(inal cases% for so(e centuries pre$ious to =agna "arta) All of the( had beco(e nearly extinct at the ti(e of =agna "arta% and it is not probable that they #ere included in Klege( terrae%K as that ter( is used in that instru(ent) But if they #ere included in it% they ha$e no# been long obsolete% and #ere such as neither this nor any future age #ill e$er return to) 78D: ,or all practical puposes of the present day% therefore% it (ay be asserted that =agna "arta allo#s no trial #hate$er but trial by jury) *hether =agna "arta allo#ed sentence to be fixed other#ise than by the jury) Still another Iuestion arises on the #ords lege( terrae% $i;)% #hether% in cases #here the Iuestion of guilt #as deter(ined by the jury% the a(ount of punish(ent (ay not ha$e been fixed by lege( terrae% the "o((on La#% instead of its being fixed by the jury) 2 thin& #e ha$e no e$idence #hate$er that% at the ti(e of =agna "arta% or indeed at any other ti(e% lex terrae% the co((on la#% fixed the punish(ent in cases #here the Iuestion of guilt #as tried by a juryS or% indeed% that it did in any other case) +oubtless certain punish(ents #ere co((on and usual for certain offencesS but 2 do not thin& it can be sho#n that the co((on la#% the lex terrae% #hich the &ing #as s#orn to (aintain% reIuired any one specific

punish(ent% or any precise a(ount of punish(ent% for any one specific offence) 2f such a thing be clai(ed% it (ust be sho#n% for it cannot be presu(ed) 2n fact% the contrary (ust be presu(ed% because% in the nature of things% the a(ount of punish(ent proper to be inflicted on any particular case% is a (atter reIuiring the exercise of discretion at the ti(e% in order to adapt it to the (oral Iuality of the offence% #hich is different in each case% $arying #ith the (ental and (oral constitutions of the offenders% and the circu(stances of te(ptation or pro$ocation) And =agna "arta recogni;es this principle distinctly% as has before been sho#n% in pro$iding that free(en% (erchants% and $illeins% Kshall not be a(erced for a s(all cri(e% but according to the degree of the cri(eS and for a great cri(e in proportion to the (agnitude of it%K and that Knone of the aforesaid a(erce(ents shall be i(posed @or assessedA but by the oaths of honest (en of the neighborhoodSK and that Kearl and barons shall not be a(erced but by their peers% and according to the Iuality of the offence)K All this i(plies that the (oral Iuality of the offence #as to be judged of at the rial% and that the punish(ent #as to be fixed by the discretion of the peers% or jury% and not by any such un$arying rule as a co((on la# rule #ould be) 2 thin&% therefore% it (ust be conceded that% in all cases% tried by a jury% =agna "arta intended that the punish(ent should be fixed by the jury% and not by the co((on la#% for these se$eral reasons) !) 2t is uncertain #hether the co((on la# fixed the punish(ent of any offence #hate$er) 8) The #ords Kper judiciu( pariu( suoru(%K according to the sentence of his peers% i(ply that the jury fixed the sentence in so(e cases tried by the(S and if they fixed the sentence in so(e cases% it (ust be presu(ed they did in all% unless the contrary be clearly sho#n) D) The express pro$isions of =agna "arta% before ad$erted to% that no a(erce(ents% or fines% should be i(posed upon) free(en% (erchants% or $illeins% Kbut by the oath of honest (en of the neighborhood%K and Kaccording to the degree of the cri(e%K and that Kearls and barons shout not be a(erced but by their peers% and according to the Iuality of the offence%K pro$es that% at least% there #as no co((on la# fixing the a(ount of fines% or% if there #ere% that it #as to be no longer in force) And if there #as no co((on la# fixing the a(ount of fines% or if it #as to be no longer in force% it is reasonable to infer% @in the absence of all e$idence to the contrary%A either that the co((on la# did not fix the a(ount of any other punish(ent% or that it #as to be no longer in force for that purpose) 78J: <nder the Saxon la#s% fines% payable to the injured party% see( to ha$e been the co((on punish(ents for all offences) E$en (urder #as punishable by a fine payable to the relati$es of the deceased) The (urder of the &ing e$en #as punishable by fine) *hen a cri(inal #as unable to pay his 5ne% his relati$es often paid it for hi() But if it #ere not paid% he #as put out of the protection of the la#% and the injured parties% @or%in the case of (urder% the &indred

of the deceased%A#ere allo#ed to inflict such punish(ent as they pleased) And if the relati$es of the cri(inal protected hi(% it #as la#ful to ta&e $engeance on the( also) After#ards the custo( gre# up of exacting fines also to the &ing as a punish(ent for offences) 78M: And this latter #as% doubtless% the usual punish(ent at the ti(e of =agna "arta% as is e$idenced by the fact that for (any years i((ediately follo#ing =agna "arta% nearly or Iuite all statutes that prescribed any punish(ent at all% prescribed that the offender should Kbe grie$ously a(erced%K or Kpay a great fine to the &ing%K or a Kgrie$ous ranso(%K #ith the alternati$e in so(e cases @perhaps understood in allA of i(prison(ent% banish(ent% or outla#ry% in case of nonCpay(ent) 781: Judging% therefore% fro( the special pro$isions in =agna "arta% reIuiring fines% or a(erce(ents% to be i(posed only by juries% @#ithout (entioning any other punish(entsSA judging% also% fro( the statutes #hich i((ediately follo#ed =agna "arta% it is probable that% the Saxon custo( of punishing all% or nearly all% offences by fines% @#ith the alternati$e to the cri(inal of being i(prisoned% banished% or outla#ed% and exposed to pri$ate $engeance% in case of nonCpay(ent%A continued until the ti(e of =agna "artaS and that in pro$iding expressly that fines should be fixed by the juries% =agna "arta pro$ided for nearly or Iuite all the punish(ents that #ere expected to be inflictedS that if there #ere to be any others% they #ere to be fixed by the juriesS and conseIuently that nothing #as left to be fixed by Klege( terrae)K But #hether the co((on la# fixed the punish(ent of any offences% or not% is a (atter of little or no practical i(portance at this dayS because #e ha$e no idea of going bac& to any co((on la# punish(ents of six hundred years ago% if% indeed% there #ere any such at that ti(e) 2t is enough for us to &no# and this is #hat is (aterial for us &no# that the jury fixed the punish(ents% in all cases% unless they #ere fixed by the co((on la#S that =agna "arta allo#ed no punish(ents to be prescribed by statute that is% by the legislati$e po#er nor in any other (anner by the &ing% or his judges% in any case #hate$erS and% conseIuently% that all statutes prescribing particular punish(nts for particular offences% or gi$ing the &ingRs judges any authority to fix punish(ents% #ere $oid) 2f the po#er to fix punish(ents had been left in the hands of the &ing% it #ould ha$e gi$en hi( a po#er of oppression% #hich #as liable to be greatly abusedS #hich there #as no occasion to lea$e #ith hi(S and #hich #ould ha$e been incongruous #ith the #hole object of this chapter of =agna "artaS #hich object #as to ta&e all discretionary or arbitrary po#er o$er indi$iduals entirely out of the hands of the &ing% and his la#s% and entrust it only to the co((on la#% and the peers% or jury that is% the people) *hat lex terrae did authori;e) But here the Iuestion arises% *hat then did lege( terraeK authori;e the &ing% @that is% the go$ern(ent%A to do in the case of an accused person% if it neither authori;ed any other trial than that by jury% nor any other punish(ents than those fixed by juriesQ

The ans#er is% that% o#ing to the dar&ness of history on the point% it is probably #holly i(possible% at this day% to state% #ith any certainty or precision% anything #hate$er that the lege( terrae of =agna "arta did authori;e the &ing% @that is% the go$ern(ent%A to do% @if% indeed% it authori;ed hi( to do anything%A in the case of cri(inals% other than to ha$e the(% tried and sentenced by their peers% for co((on la# cri(esS and to carry that sentence into execution) The trial by jury #as a part of lege( terrae% and #e ha$e the (eans of &no#ing #hat the trial by jury #as) The fact that the jury #ere to fix the sentence% i(plies that they #ere to try the accusedS other#ise they could not &no# #hat sentence% or #hether any sentence% ought to be inflicted upon hi() /ence it follo#s that the jury #ere to judge of e$erything in$ol$ed in the trialS that is% they #ere to judge of the nature of the offence% of the ad(issibility and #eight of testi(ony% and of e$erything else #hatsoe$er that #as of the essence of the trial) 2f anything #hate$er could be dictated to the(% either of la# or e$idence% the sentence #ould not be theirs% but #ould be dictated to the( by the po#er that dictated to the( the la# or e$idence) The trial nd sentence% then% #ere #holly in the hands of the jury) *e also ha$e sufficient e$idence of the nature of the oath ad(inistered to jurors in cri(inal cases) 2t #as si(ply% that they #ould neither con$ict the innocent% nor acIuit the guilty) This #as the oath in the Saxon ti(es% and probably continued to be until =agna "arta) *e also &no# that% in case of con$iction% the sentence of the jury #as not necessarily finalS that the accused had the right of appeal to the &ing and his judges% and to de(and either a ne# trial% or an acIuittal% if the trial or con$iction had been against la#) So (uch% therefore% of the lege( terrae of =agna "arta% #e &no# #ith reasonable certainty) *e also &no# that =agna "arta pro$ides that K4o bailiff @bali$usA shall hereafter put any (an to his la#% @put hi( on trial%A on his single testi(ony% #ithout credible #itnesses brought to support it)K "o&e thin&s Kthat under this #ord bali$us% in this act% is co(prehended e$ery justice% (inister of the &ing% ste#ard of the &ing% ste#ard and bailiff)K @8 2nst) EE)A And in support of this idea he Iuotes fro( a $ery ancient la# boo&% called the =irror of Justices% #ritten in the ti(e of Ed#ard 2)% #ithin a century after =agna "arta) But #hether this #ere really a co((on la# principle% or #hether the pro$ision gre# out of that jealousy of the go$ern(ent #hich% at the ti(e of =agna "arta% had reached its height% cannot perhaps no# be deter(ined) *e also &no# that% by =agna "arta% a(erce(ents% or fines% could not be i(posed to the ruin of the cri(inalS that% in the case of a free(an% his contene(ent% or (eans of subsisting in the condition of a free(an% (ust be sa$ed to hi(S that% in the case of a (erchant% his (erchandise (ust be sparedS and in the case of a $illein% his #aynage% or ploughCtac&le and carts) This also is li&ely to ha$e been a principle of the co((on la#% inas(uch as% in that rude age% #hen the (eans of gettin e(ploy(ent as laborers #ere not #hat

they are no#% the (an and his fa(ily #ould probably ha$e been liable to star$ation% if these (eans of subsistence had been ta&en fro( hi() *e also &no#% generally% that% at the ti(e of =agna "arta% all acts intrinsically cri(inal% all trespasses against persons and property% #ere cri(es% according to lex terra% or the co((on la#) Beyond the points no# gi$en% #e hardly &no# anything% probably nothing #ith certainty% as to #hat the Klege( terranK of =agna "arta did authori;e% in regard to cri(es) There is hardly anything extant that can gi$e us any real light on the subject) 2t #ould see(% ho#e$er% that there #ere% e$en at that day% so(e co((on la# principles go$erning arrestsS and so(e co((on la# for(s and rules as to holding a (an for trial% @by bail or i(prison(entSA putting hi( on trial% such as by indict(ent or co(plaintS su((oning and e(panelling jurors% XcS)% XcS) *hate$er these co((on la# principles #ere% =agna "arta reIuires the( to be obser$edS for =agna "arta pro$ides for the #hole proceedings% co((encing #ith the arrest% @Kno free(an shall be arrested%K XcS)%A and ending #ith the execution of the sentence) And it pro$ides that nothing shall be done% by the go$ern(ent% fro( beginning to end% unless according to the sentence of the peers% or Klege( terrae%K the co((on la#) The trial by peers #as a part of lege( terrae% and #e ha$e seen that the peers (ust necessarily ha$e go$erned the #hole proceedings at the tria!) But all the proceedings for arresting the (an% and bringing hi( to trial% (ust ha$e been had before the case could co(e under the cogni;ance of the peers% and they (ust% therefore% ha$e been go$erned by other rules than the discretion of the peers) *e (ay conjecture% although #e cannot perhaps &no# #ith (uch certainty% that the lex terrae% or co((on la#% go$erning these other proceedings% #as so(e#hat si(ilar to the co((on la# principle% on the sa(e points% at the present day) Such see( to be the opinions of "o&e% #ho says that the phrase nisi per lege( terrae (eans unless by due process of la#) Thus% he says? K4isi per lege( terrae) But by the la# of the land) ,or the true sense and exposition of these #ords% see the statute f D1 Ed#) 222)% cap) 6% #here the #ords% by the la# of the land% are rendered #ithout due process of la#S for there it is said% though it be contained in the Great "harter% that no (an be ta&en% i(prisoned% or put out of his freehold% #ithout process of the la#S that is% by indict(ent or present(ent of good and la#ful (en% #here such deeds be done in due (anner% or by #rit original of the co((on la#) K*ithout being brought in to ans#er but by due process of the co((on la#)K K4o (an be put to ans#er #ithout present(ent before justices% or thing of record% or by due process% or by #rit original% according to the old la# of the land)K 8 2nst) J9) The foregoing interpretations of the #ords nisi per lege( terrae are corroborated by the follo#ing statutes% enacted in the next century after =agna "arta)

KThat no (an% fro( henceforthS shall be attached by any accusation% nor forejudged of life or li(b% nor his land% tene(ents% goods% nor chattels% sei;ed into the &ingRs hands% against the for( of the Great "harter% and the la# of the land)K St% J Ed#ard 222)% "h) 0) @!DD!)A K*hereas it is contained in the Great "harter of the franchises of England% that none shall be i(prisoned% nor put out of his freehold% nor of his franchises% nor free custo(s% unless it be by the la# of the landS it is accorded% assented% and established% that fro( henceforth none shall be ta&en by petition% or suggestion (ade to our lord the &ing% or to his council% unless it be by indict(ent or present(ent of good and la#ful people of the sa(e neighborhood #here such deeds be done in due (anner% or by process (ade by #rit original at the co((on la#S nor that none be put out of his franchises% nor of his freehold% unless he be duly brought into ans#er% and forejudged of the sa(e by the course of the La#S and if anything be done against the sa(e% it shall be redressed% and holden for none)K 6t) 0J Ed#ard 222)% "h) E) @!DJ9)A KThat no (an% of #hat estate or condition that he be% shall be put out of land or tene(ent% nor ta&en% nor i(prisond% nor disinherited% nor put to death% #ithout being brought in ans#er by due process of la#)K 6t) 86 Aboard 222)% "h) D) @!DJE)A KThat no (an be put to ans#er #ithout present(ent before justices% or (atter of record% or by due process and #rit original% according to the old la# of the land) And if anything fro( henceforth be done to the contrary% it shall be $oid in la#% and holden for error)K 6t) E8 Ed#ard 22L% "h) D) @!DM6)A The foregoing interpretation of the #ords nisi per lege( terrae that is% by due process of la# including indict(ent% XcS)% has been adopted) as the true one by (odern #riters and courtsS as% for exa(ple% by Uent% @8 "o(() !D%A Story% @D "o(() MM!%A and the Supre(e "ourt of 4e# 3or&% @!0 *endell% MTMS E /ill% !EM)A The fifth a(end(ent to the constitution of the <nited States see(s to ha$e been fra(ed on the sa(e idea% inas(uch as it pro$ides that Kno person shall be depri$ed of life% liberty% or property% #ithout due process of la#)K 786: *hether the #ord -EL should be rendered by 5.% or by A4+) /a$ing thus gi$en the (eanings% or rather the applications% #hich the #ords $el per lege( terrae #ill reasonably% and perhaps (ust necessarily% bear% it is proper to suggest% that it has been supposed by so(e that the #ord $el% instead of being rendered by or% as it usually is% ought to be rendered by and% inas(uch as the #ord $el is often used for et% and the #hole phrase nisi per judiciu( parian suorun% $el per lege( terrae% @#hich #ould then read% unless by the sentence of his peers% and the la# of the land%A #ould con$ey a (ore intelligible and har(onious (eaning than it other#ise does) Blac&stone suggests that this (ay be the true reading) @"harters% p) E!)A Also =r) /alla(% #ho says?K4isi per legale judiciu( pariu( suoru(% $el per lege( terraS) Se$eral explanations ha$e been offered of the alternati$e clauseS #hich so(e ha$e referred to

judg(ent by default% or de(urrerS others to the process of attach(ent for conte(pt) "ertainly there are (any legal procedures besides trial by jury% through #hich a partyRs goods or person (ay be ta&en) But one (ay doubt #hether these #ere in conte(plation of the fra(ers of =agna "arta) 2n an entry of the "harter of !8!1 by a conte(porary hand% preser$ed in the To#nCcler&Rs office in London% called Liber "ustu(aru( et .egu( antiIuaru(% a $arious reading% et per lege( terrae% occurs) Blac&stoneRs "harters% p) E8 @E!)A And the #ord $el is so freIuently used for et% that 2 a(not #holly free fro( a suspicion that it #as so intended in this place) The (eaning #ill be% that no person shall be dissei;ed% XcS)% except upon a la#ful cause of action% found by the $erdict of a jury) This really see(s as good as any of the disjuncti$e interpretatiosS but 2 do not offer it #ith (uch confidence)K 8 /alla(Rs =iddle Ages% "h) 6% Part 8% p) EE0% note)K 780: The idea that the #ord $el% should be rendered by and% is corroborated% if not absolutely confir(ed% by the follo#ing passage in Blac&stone% #hich has before been cited) Spea&ing of the trial by jury% as established by =agna "arta% he calls it% KA pri$ilege #hich is couched in al(ost the sa(e #ords #ith that of the E(peror "onrad t#o hundred years before? Rne(o beneficiu( suu( perdat% nisi secundu( consuetudine( antecessoru( nostroru(% et% judiciu( pariu( suoru() R @4o one shall lose his estate unless according to the custo( of our ancestors% and% the judg(ent of his peers)A D Blac&stone% DJ9)% 2f the #ord $el% be rendered by and%% @as 2 thin& it (ust be% at least in so(e cases%A this chapter of =agna "arta #ill then read that no free(an shall be arrested or punished% Kunless according to the sentence of his peers% and% the la# of the land)K The difference bet#een this reading and the other is i(portant) 2n the one case% there #ould be% at first $ie#% so(e color of ground for saying that a (an (ight be punished in either of t#o #ays% $i;)% according to the sentence of his peers% or according to the la# of the land) 2n the other case% it reIuires both the sentence of his peers and% the la# of the laud @co((on la#A to authori;e his punish(ent) 2f this latter reading be adopted% the pro$ision #ould see( to exclude all trials except trial by jury% and all causes of action except those of the co((on la#)% But 2 apprehend the #ord $el% (ust be rendered both by and%% and by orS% that in cases of a judg(ent%% it should be rendered by and%% so as to reIuire the concurrence both of Kthe judg(ent of the peers and% the la# of the land%K to authori;e the &ing to (a&e execution upon a partyRs goods or personS but that in cases of arrest and i(prison(ent% si(ply for the purpose of bringing a (an to trial% $el% should be rendered by or% % because there can ha$e been no judg(ent of a jury in such a case% and Kthe la# of the landK (ust therefore necessarily be the only guide to% and restraint upn% the &ing) 2f this guide and restraint #ere ta&en a#ay% the &ing #ould be in$ested #ith an arbitrary and (ost dangerous po#er in) (a&ing arrests% and confining in prison% under pretence of an

intention to bring to trial) /a$ing thus exa(ined the language of this chapter of =agna "art% so far as it relates to cri(inal cases% its legal i(port (ay be stated as follo#s% $i;)? 4o free(an shall be arrested% or i(prisoned% or depri$ed of his freehold% or his liberties% or free custo(s% or be outla#ed% or exiled% or in any (anner destroyed% @har(ed%A nor #ill #e @the &ingA proceed) against hi(% nor send any one against hi(% by force or ar(s% unless according to @that is% in execution) ofA the sentence of his peers% and @or or% as the case (ay reIuireA the "o((on La# of England% @as it #as at the ti(e of =agna "arta% in !8!J)A 7!: /u(e% Appendix 8% 78: "rabbeRs /istory of the English La#% 8DM) 7D: "o&e says% KThe &ing of England is ar(ed #ith di$ers councils% one #hereof is called co((une conciliu(% @the co((on council%A and that is the court of parlia(ent and so it is legally called in #rits and judicial proceedings co(anche conciliu( regni Anglicae% @the co((on council of the &ingdo( of England)A And another is called (agnu( conciliu(% @great councilSA this is so(eti(es applied to the upper house of parlia(ent% and so(eti(es% out of parlia(ent ti(e% to the peers of the real(% lords of parlia(ent% #ho are called (agnu( conciliu( regis% @the great council of the &ingSA 7E: Thirdly% @as e$ery (an &no#eth%A the &ing hath a pri$y council for (atters of state) * * The fourth council of the &ing are his judges for la# (atters)K ! "o&eRs 2nstitutes% !!9 a) 7E: The Great "harter of /enry 222)% @!8!M and !88J%A confir(ed by Ed#ard 2)% @!801%A (a&es no pro$ision #hate$er for% or (ention of% a parlia(ent% unless the pro$ision% @"h) D1%A that KEscuage% @a (ilitary contribution%A fro( henceforth shall be ta&en li&e as it #as #ont to be in the ti(e of Uing /enry our grandfather%K (ean that a parlia(ent shall be su((oned for that purpose) 7J:The =agna "arta of John% @"h) !1 and !6%A defines those #ho #ere entitled to be su((oned to parlia(ent% to #it% KThe Archbishops% Bishops% Abbots% Earls% and Great Barons of the .eal(% * * and all others #ho hold of us in chief)K Those #ho held land of the &ing in chief included none belo# the ran& of &nights) 7M: The parlia(ents of that ti(e #ere% doubtless% such as "arlyle describes the(% #hen he says% KThe parlia(ent #as at first a (ost si(ple asse(blage% Iuite cognate to the situationS that .ed *illia(% or #hoe$er had ta&en on hi( the terrible tas& of being Uing of England% #as #ont to in$ite% oftenest about "hrist(as ti(e% his subordinate Uinglets% Barons as he called the(% to gi$e hi( the pleasure of their co(pany for a #ee& or t#oS there% in earnest conference all (orning% in freer tal& o$er "hrist(as cheer all e$ening% in so(e big royal hall of *est(inster% *inchester% or #here$er it (ight be% #ith log fires% huge rounds of roast and boiled% not lac&ing (al(sey and other generous liIuor% they too& counsel concerning the arduous (atters of the &ingdo()K

71: /u(e% Appendix 8) 76: This point #ill be (ore fully established hereafter) 70: 2t is plain that the &ing and all his partisans loo&ed upon the charter as utterly prostrating the &ingRs legislati$e supre(acy before the discretion of juries) *hen the schedule of liberties de(anded by the barons #as sho#n to hi(% @of #hich the trial by jury #as the (ost i(portant% because it #as the only one that protected all the rest%A Kthe &ing% falling into a $iolent passion% as&ed% *hy the barons did not #ith these exactions de(and his &ingdo(Q * * and #ith a sole(n oath protested% that he #ould ne$er grant such liberties as #ould (a&e hi(self a sla$e)K * * But after#ards% Kseeing hi(self deserted% and fearing they #ould sei;e his castles% he sent the Earl of Pe(bro&e and other faithful (essengers to the(% to let the( &no# he #ould grant the( the la#s and liberties they desired)K * * But after the charter had been granted% Kthe &ingRs (ercenary soldiers% desiring #ar (ore than peace% #ere by their leaders continually #hispering in his ears% that he #as no# no longer &ing% but the scorn of other princesS and that it #as (ore eligible to be no &ing% than such a one as he)K * * /e applied to the Pope% that he (ight by his apostolic authority (a&e $oid #hat the barons had done)* * At .o(e he (et #ith #hat success he could desire% #here all the transactions #ith the barons #ere fully represented to the Pope% and the "harter of Liberties sho#n to hi(% in #ritingS #hich% #hen he had carefully perused% he% #ith a furious loo&% cried out% *hat' +o the barons of England endea$or to dethrone a &ing% #ho has ta&en upon hi( the /oly "ross% and is under the protection of the Apostolic See% and #ould they force hi( to transfer the do(inions of the .o(an "hurch to othersQ By St) Peter% this injury (ust not pass unpunished) Then debating the (atter #ith the cardinals% he% by a definiti$e sentence% da(ned and cassated fore$er the "harter of Liberties% and sent the &ing a bull containing that sentence at large)K EchardRs /istory of England% p) !9MC1 These things sho# that the nature and effect of the charter #ere #ell understood by the &ing and his friendsS that they all agreed that he #as effectually stripped of po#er) 3et the legislati$e po#er had not been ta&en fro( hi(S but only the po#er to enforce his la#s% unless juries should freely consent to their enforce(ent) 7!9: The la#s #ere% at that ti(e% all #ritten in Latin) 7!!:K4o (an shall be conde(ned at the &ingKs suit% either before the &ing in his bench% #here pleas are cora( rege% @before the &ing%A @and so are the #ords nec super eu( ibi(us% to be understood%A nor before any other co((issioner or judge #hatsoe$er% and so are the #ords nec super eu( (itte(us% to be understood% but by the judg(ent of his peers% that is% eIuals% or according to the la# of the land)K 8 "o&eRs 2nst)% EM) 7!8: Perhaps the assertion in the text should be (ade #ith this Iualification that the #ords Kper lege( terrae%K @according to the la# of the land%A and the #ords Kper legale judiciun pariu( suoru(%K @according to the legal judg(ent of his peers%A i(ply that the &ing% before proceeding to any executi$e action% #ill ta&e

notice of Kthe la# of the land%K and of the legality of the judg(ent of the peers% and #ill execute upon the prisoner nothing except #hat the la# of the land authori;es% and no judg(ents of the peers% except legal ones) *ith this Iualification% the assertion in the text is strictly correct that there is nothing in the #hole chapter that grants to the &ing% or his judges% any judicial po#er at all) The chapter only describes and li(its his executi$e po#er) 7!D: See Blac&stoneRa La# Tracts% page 80E% 5xford Edition 7!E: These Articles of the "harter are gi$en in Blac&stoneRs collection of "harters% and are also printed #ith the statutes of the .eal() Also in *il&insR La#s of the AngloC Saxons% p) DJ9) 7!J: Lingard says% K The #ords% R *e #ill not destroy hi( nor #ill #e go upon hi(% nor #ill #e send upon hi(%R ha$e been $ery differently expounded by different legal authorities) Their real (eaning (ay be learned fro( John hi(self% #ho the next year pro(ised by his letters patent%))) nec super eos per $i( $el per ar(a ibi(us% nisi per lege( regni nostri% $el per judiciu( pariu( suoru( in curia nostra% @nor #ill #e go upon the( by force or by ar(s% unless by the la# of our &ingdo(% or the judg(ent of their peers in our court)A Pat) !M Johan% apud +rad) !!% app) no) !8E) /e had hitherto been in the habit of going #ith an ar(ed force% or sending an ar(ed force on the lands% and against the castles% of all #ho( he &ne# or suspected to be his secret ene(ies% #ithout obser$ing any for( of la#)K D Lingard% E1 note) 7!M: KJudg(ent% judiciu() * * The sentence of the la#% pronounced by the court% upon the (atter contained in the record)K 6 Blac&stone% 60J) JacobRs La# +ictionary) ) To(linRs do) KJudg(ent is the decision or sentence of the la#% gi$en by a court of justice or other co(petent tribunal% as the result of the proceedings instituted therein% for the redress of an injury)K Bou$ierRs La# +ict) KJudg(ent% judiciu() * * Sentence of a judge against a cri(inal) * * +eter(ination% decision in general)K BaileyRs +ict) KJudg(ent) * * 2n a legal sense% a sentence or decision pronounced by authority of a &ing% or other po#er% either by their o#n (outh% or by that of their judges andofficers% #ho( they appoint% to ad(inister justice in their stead)K "ha(bersR +ict) KJudg(ent) * * 2n la#% the sentence or doo( pronounced in any case% ci$il orcri(inal% by the judge or court by #hich it is tried)K *ebsterRs +ict) So(eti(es the punish(ent itself is called judiciu(% judg(entS or% rather% it #as at the ti(e of =agna "arta) ,or exa(ple% in a statute passed fiftyCone years after =agna "arta% it #as said that a ba&er% for default in the #eight of his bread% K debeat a(erciari $el subire judiciu( pillorieSK that is% ought to be a(erced% or suffer the punish(ent% or judg(ent% of the pillory) Also that a bre#er% for Kselling ale contrary to the assi;e%K Kdebeat a(erciari% $el pati

judiciu( tu(brelli KS that is% ought to be a(erced% or suffer the punish(ent% or judg(ent% of the tu(brel) J! /enry D% St) M) @!8MM)A Also the KStatutes of uncertain date%K @but supposed to be prior to Ed#ard 222)% or !D8M%A pro$ide% in chapters M% 1% and !9% for Kjudg(ent of the pillory)K See ! .ugheadRs Statutes% !61% !66) ! Statutes of the .eal(% 89D) Blac&stone% in his chapter K5f Judg(ent% and its "onseIuences%K says% KJudg(ent @unless any (atter be offered in arrest thereofA follo#s upon con$iction f being the pronouncing of that punish(ent #hich is expressly ordained by la#)K Blac&stoneRs Analysis of the La#s of England% Boo& E% "h) 80% Sec) !) Blac&stoneRs La# Tracts% !8M) "o&e says% KJudiciu( )) the judg(ent is the guide and direction of the execution)K D 2nst) 8!9) 7!1: This precedent fro( Ger(any is good authority% because the trial by jury #as in use% in the northern nations of Europe generally% long before =agna "arta% and probably fro( ti(e i((e(orialS and the Saxons and 4or(ans #ere fa(iliar #ith it before they settled in England) 7!6: Beneficiu( #as the legal na(e of an estate held by a feudal tenure) See Spel(anRs Glossary) 7!0:: "ontene(ent of a free(an #as the (eans of li$ing in the condition of a free(an) 789: *aynage #as a $illeinRs ploughCtac&le and carts) 78!: To(lin says% KThe ancient practice #as% #hen any such fine #as i(posed% to inIuire by a jury Iuantu( inde regi dare $aleat per annu(% sal$a sustentatione sua et uxoris et libeC roru( suoru(% @ho# (uch is he able to gi$e to the &ing per annu(% sa$ing his o#n (aintenance% and that of his #ife and childrenA) And since the disuse of such inIuest% it is ne$er usual to assess a larger fine than a (an is able to pay% #ithout touching the i(ple(ents of his li$elihoodS but to inflict corporal punish(ent% or a li(ited i(prison(ent% instead of such a fine as (ight a(ount to i(prison(ent for life) And this is the reason #hy fines in the &ingRs courts are freIuently deno(inated ranso(s% because the penalty (ust other#ise fall upon a (anRs person% unless it be redee(ed or ranso(ed by a pecuniary fine)K To(linRs La# +ict)% #ord ,ine) 788: Because juries #ere to fix the sentence% it (ust not be supposed that the &ing #as obliged to carry the sentence into executionS but only that he could not go beyond the sentence) /e (ight pardon% or he (ight acIuit on grounds of la#% not #ithstanding the sentenceS but he could not punish beyond the extent of the sentence) =agna "arta does not prescribe that the &ing shall punish according to the sentence of the peersS but only that he shall not punish Kunless according toK that sentence) /e (ay acIuit or pardon% not#ithstanding their sentence or judg(entS but he cannot punish% except according to their judg(ent)

78D: The trial by battle #as one in #hich the accused challenged his accuser to single co(bat% and sta&ed tbe Iuestion of his guilt or innocence on the result of the duel) This trial #as introduced into England by the 4or(ans% #ithin one hundred and fifty years before =agna "arta) 2t #as not $ery often resorted to e$en by the 4or(ans the(sel$esS probably ne$er by the AngloCSaxons% unless in their contro$ersies #ith the 4or(ans) 2t #as strongly discouraged by so(e of the 4or(an princes% particularly by /enry 22)% by #ho( the trial by jury #as especially fa$ored) 2t is probable that the trial by battle% so far as it pre$ailed at all in England% #as rather tolerated as a (atter of chi$alry% than authori;ed as a (atter of la#) At any rate% it is not li&ely that it #as included in the Klege( terraeK of =agna "arta% although such duels ha$e occasionally occurred since that ti(e% and ha$e% by so(e% been supposed to be la#ful) 2 apprehend that nothing can be properly said to be a part of lex terrae% unless it can be sho#n either to ha$e been of Saxon origin% or to ha$e been recogni;ed by =agna "arta) The trial by ordeal #as of $arious &inds) 2n one ordeal the accused #as reIuired to ta&e hot iron in his handS in another to #al& blindfold a(ong redChot ploughsharesS in another to thrust his ar( into boiling #aterS in another to be thro#n% #ith his hands and feet bound% into cold #aterS in another to s#allo# the (orsel of execrationS in the confidence that his guilt or innocence #ould be (iraculously (ade &no#n) This (ode of trial #as nearly extinct at the ti(e of =agna "arta% and it is not li&ely that it #as included in Klege( terrae%K as that ter( is used in that instru(ent) This idea is corroborated by the fact that the trial by ordeal #as specially prohibited only four years after =agna "arta% Kby act of Parlia(ent in D /enry 222)% according to Sir Ed#ard "o&e% or rather by an order of the &ing in council)K D Blac&s%one DEJ% note) 2 apprehend that this trial #as ne$er forced upon accused persons% but #as only allo#ed to the(% as an appeal to God% fro( the judg(ent of a jury) 78E: The trial by co(purgators #as one in #hich% if the accused could bring t#el$e of his neighbors% #ho #ould (a&e oath that they belie$ed hi( innocent% he #as held to be so) 2t is probable that this trial #as really the trial by jury% or #as allo#ed as an appeal fro( a jury) 2t is #holly i(probable that t#o diferent (odes of trial% so nearly rese(bling each other as this and the trial by jury do% should pre$ail at the sa(e ti(e% and a(ong a rude people% #hose judicial proceedings #ould naturally be of the si(plest &ind) But if this trial really #ere any other than the trial by jury% it (ust ha$e been nearly or Iuite extinct at the ti(e of =agna "artaS and there is no probability that it #as included in Klege( terrae)K 78E: /alla( says% K2t appears as if the ordeal #ere per(itted to persons already con$icted by the $erdict of a jury)K 8 =iddle Ages% EEM% note) 78J: "o&e atte(pts to sho# that there is a distinction bet#een a(erce(ents and fines ad(itting that a(erce(ents (ust be fixed by oneRs peers% but% clai(ing that% fines (ay be fixed by the go$ern(ent) @8 2nst) 81% 6 "o&eRs .eports D6A But there see(s to

ha$e been no ground #hate$er for supposing that any such distinction existed at the ti(e of =agna "arta) 2f there #ere any such distinction in the ti(e of "o&e% it had doubtless gro#n up #ithin the four centuries that had elapsed since =agna "arta% and is to be set do#n as one of the nu(berless in$entions of go$ern(ent for getting rid of the restraints of =agna "arta% and for ta&ing (en out of the protection of their peers% and subjecting the( to such punish(ents as the go$ern(ent chooses to inflict) The first statute of *est(inster% passed sixty years after =agna "arta% treats the fine and a(erce(ent as synony(ous% as follo#s) K,oras(uch as the co((on fine and a(erce(ent of the #hole county in Eyre of the justices for false judg(ents% or for other trespass% is unjustly assessed by sheriffs and baretors in the shires% * * it is pro$ided% and the &ing #ills% that fro#n henceforth such su(s shall be assessed before the justices in Eyre% afore their departure% by the oath of &nights and other honest (en%K Xc) D Ed#ard 2)% "h) !6) @!81JA And in (any other statutes passed after =agna "arta% the ter(s fine and a(erce(ent see( to be used indifferently% in prescribing the punish(ents for offences) As late as !EM!% @8EM years after =agna "arta%A the statute ! Ed#ard 2-)% "h 8% spea&s of Kfines)% ranso(s% and a(ercia(entsK as being le$ied upon cri(inals% as if they #ere the co((on punish(ents of offences) St) 8 and D Philip and =ary% "h 6% uses the ter(s% Kfines% forfeitures% and a(ercia(entsK fi$e ti(es) @!JJJA St) J Eli;abeth% "h) !D% Sec) !9% uses the ter(s Kfines% forfeitures% and a(ercia(ents)K That a(erce(ents #ere fines% or pecuniary punish(ents% inflicted for offences% is pro$ed by the follo#ing statutes% @all supposed to ha$e been passed #ithin one hundred and fifteen years after =agna "art%A #hich spea& of a(erce(ents as a species of Kjudg(ent%K or punish(ent% and as being inflicted for the sa(e offences as other Kjudg(ents)K Thus one statute declares that a ba&er% for default in the #eight of his bread% Kought to be a(erced% or suffer the judg(ent of the pilloryS and that a bre#er% for Kselling ale contrary to the assi;e%K Kought to be a(erced% or suffer the judg(ent of the tu(brel%K CC J! /enry 222)% St) M) @!8MMA A(ong the KStatutes of <ncertain +ate%K but supposed to be prior to Ed#ard 222)% @!D8MA% are the follo#ing? "hap) M pro$ides that Kif a bre#er brea& the assi;e% @fixing the price of ale%A the first% second% and third ti(e% he shall be a(ercedS but the fourth ti(e he shall suffer judg(ent of the pillory #ithout rede(ption)K "hap) 1 pro$ides that Ka butcher that selleth s#ineRs flesh (easeled% or flesh dead of the (urrain% or that buyeth flesh of Je#s% and selleth the sa(e unto "hristians% after he shall be

con$ict thereof% for the first ti(e he shall be grie$ously a(ercedS the second ti(e he shall suffer judg(ent of the pilloryS and the third ti(e he shall be i(prisoned and (a&e fineS and the fourth ti(e he shall fors#ear the to#n)K "hap) !9% a statute against forestalling% pro$ides that% K/e that is con$ict thereof% the first ti(e shall be a(erced% and shall lose the thing so bought% and that according to the custo( of the to#nS he that is con$icted the second ti(e shall ha$e judg(ent of the pilloryS at the third ti(e he shall be i(prisoned and (a&e fineS the fourth ti(e he shall abjure the to#n) And this judg(ent shall be gi$en upon all (anner of forestallers% and li&e#ise upon the( that ha$e gi$en the( counsel% help% or fa$or)K ! .uffheads Statutes% !61% !66) ! Statutes of the .eal(% 89D) 78M: ! /u(e% Appendix% l) 781: Blac&stone says% K5ur ancient Saxon la#s no(inally punished theft #ith death% if abo$e the $alue of t#el$e penceS but the cri(inal #as per(itted to redee( his life by a pecuniary ranso(% as a(ong their ancestors% the Ger(ans% by a stated nu(ber of cattle) Bit in the ninth year of /enry the ,irst @!!90%A this po#er of rede(ption #as ta&en a#ay% and all persons guilty of larceny abo$e the $alue off t#el$e pence #ere directed to be hanged% #hich la# continues in force to this day)K E Blac&stone% 8D6 2 gi$e this state(ent of Blac&stone% because the latter clause (ay see( to (ilitate #ith the idea% #hich the for(er clause corroborates% $i;)% that at the ti(e of =agna "arta% fines #ere the usual punish(ent of offenses) But 2 thin& there is no probability that a la# so unreasonable in itself% @unreasonable e$en after (a&ing all allo#ance for the difference in the $alue of (oney%A and so contrary to i((e(orial custo(% could and did obtain any general or speedy acIuiescence a(ong a people #ho cared little for the authority of &ings) =addox% #riting of the period fro( *illia( the "onIueror to John% says? KThe a(erce(ent in cri(inal and co((on pleas% #hich #ere #ont to be i(posed during this first period and after#ards% #ere of so (any se$eral sorts% that it is not easy to place the( under distinct heads) Let the(% for (ethodsR sa&e% be reduced to the heads follo#ing? A(erce(ents for or by reason of (urders and (anslaughters% for (isde(eanors% for disseisins% for recreancy% for breach of assi;e% for defaults% for nonCappearance% for false judg(ent% and for not (a&ing suit% or hue and cry) To the( (ay be added (iscellaneous a(erce(ents% for trespasses of di$ers &inds)K ! =addoxR /istory of the ExcheIuer% JE8) 786: "o&e% in his exposition of the #ords lege( terrae% gi$es Iuite in detail the principles of the co((on la# go$erning arrests% and ta&es it for granted that the #ords Knisi per lege( terreK are applicable to arrests% as #ell as to the indict(ent% Xc) 8 inst)% J!% J8) 780: 2 cite the abo$e extract fro( =r) /alla( solely for the sa&e of his authority for rendering the #ord $el by andS and not by any (eans for the purpose of indorsing the opinion he suggests% that

lege( terrae authori;ed Kjudg(ents by default or de(urrer%*R #ithout the inter$ention of a jury) /e see(s to i(agine that lex terrae% the co((on la#% at the ti(e of =agna "arta% included e$erything% e$en to the practice of courts% that is% at this day% called by the na(e of "o((on La#S #hereas (uch of #hat is no# called "o((on La# has gro#n up% by usurpation% since the ti(e of =agna "arta% in palpable $iolation of the authority of that charter) /e says% K"ertainly there are (any legal procedures% besides trial by jury% through #hich a partyRs goods or person (ay be ta&en)K 5f course there are no# (any such #ays% in #hich a partyRs goods or person are ta&en% besides by the judg(ent of a juryS but the Iuestion is% #hether such ta&ings are not in $iolation of =agna "arta) /e see(s to thin& that% in cases of Kjudg(ent by default or de(urrer%K there is no need of a jury% and thence to infer that lege( terrae (ay not ha$e reIuired a jury in those cases) But this opinion is founded on the erroneous idea that juries are reIuired only for deter(ining contested facts% and not for judging of the la#) 2n case of default% the plaintif (ust present a pri(a facie case before he is entitled to a judg(entS and =agna "arta% @supposing it to reIuire a jury trial in ci$il cases% as =r) /alla( assu(es that it does%A as (uch reIuires that this pri(a facie case% both la# and fact% be (ade out to the satisfaction of a jury% as it does that a contested case shall be) As for a de(urrer% the jury (ust try a de(urrer @ha$ing the ad$ice and assistance of the court% of courseA as (uch as any other (atter of la# arising in a case) =r) /alla( e$idently thin&s there is no use for a jury% except #here there is a KtrialK (eaning thereby a contest on (atters of fact) /is language is% that Kthere are (any legal procedures% besides trial by jury% through #hich a partyRs goods or person (ay be ta&en)K 4o# =agna "arta says nothing of trial by juryS but only of the judg(ent% or sentence% of a jury) 2t is only by inference that #e co(e to the conclusion that there (ust be a trial by jury) Since the jury alone can gi$e the judg(ent% or sentence% #e infer that they (ust try the caseS because other#ise they #ould be inco(petent% and #ould ha$e no (oral right% to gi$e judg(ent) They (ust% therefore% exa(ine the grounds% @both of la# and fact%A or rather try the grounds% of e$ery action #hatsoe$er% #hether it be decided on Kdefault% de(urrer%K or other#ise% and render their judg(ent% or sentence% thereon% before any judg(ent can be a legal one% on #hich Kto ta&e a partyRs goods or person)K 2n short% the principle of =agna "arta is% that no judg(ent can be $alid against a partyRs goods or person% @not e$en a judg(ent for costs%A except a judg(ent rendered by a jury) 5f course a jury (ust try e$ery Iuestion% both of la# and fact% that is in$ol$ed in the rendering of that judg(ent) They are to ha$e the assistance and ad$ice of the judges% so far as they desire the(S but the judg(ent itself (ust be theirs% and not the judg(ent of the court) As to Kprocess of attach(ent for conte(pt%K it is of course la#ful for a judge% in his character of a peace officer% to issue a #arrant for the arrest of a (an guilty of a conte(pt% as he #ould for the arrest of any other offender% and hold hi( to bail% @or% in default of

bail% co((it hi( to prison%A to ans#er for his offence before a jury) 5r he (ay order hi( into custody #ithout a #arrant #hen the offence is co((itted in the judgeRs presence) But there is no reason #hy a judge should ha$e the po#er of punishing% for conte(pt% any (ore than for any other offence) And it is one of the (ost dangerous po#ers a judge can ha$e% because it gi$es hi( absolute authority in a court of justice% and enables hi( to tyranni;e as he pleases o$er parties% counsel% #itnesses% and jurors) 2f a judge ha$e po#er to punish for conte(pt% and to deter(ine for hi(self #hat is a conte(pt% the #hole ad(inistration of justice @or injustice% if he choose to (a&e it soA is in his hands) And all the rights of jurors% #itnesses% counsel% and parties% are held subject to his pleasure% and can be exercised only agreeably to his #ill) /e can of course control the entire proceedings in% and conseIuently the decision of% e$ery cause% by restraining and punishing e$ery one% #hether party% counsel% #itness% or juror% #ho presu(es to offer anything contrary to his pleasure) This arbitrary po#er% #hich has been usurped and exercised by judges to punish for conte(pt% has undoubtedly had (uch to do in subduing counsel into those ser$ile% obseIuious% and co#ardly habits% #hich so uni$ersally pre$ail a(ong the(% and #hich ha$e not only cost so (any clients their rights% but ha$e also cost the people so (any of their liberties) 2f any su((ary% punish(ent for conte(pt be e$er necessary% @as it probably is not%A beyond exclusion for the ti(e being fro( the courtCroo(% @#hich should be done% not as a punish(ent% but for selfCprotection% and the preser$ation of order%A the judg(ent for it should be gi$en by the jury% @#here the trial is before a jury%A and not by the court% for the jury% and not the court% are really the judges) ,or the sa(e reason% exclusion fro( the courtCroo( should be ordered only by the jury% in cases #hen the trial is before a jury% because they% being the real judges and triers of the cause% are entitled% if anybody% to the control of the courtCroo() 2n appeal courts% #here no juries sit% it (ay be necessary not as a punish(ent% but for selfCprotection% and the (aintenance of order that the court should exercise the po#er of excluding a person% for the ti(e being% fro( the courtCroo(S but there is no reason #hy they should proceed to sentence hi( as a cri(inal% #ithout his being tried by a jury) 2f the people #ish to ha$e their rights respected and protected in courts of justice% it is (anifestly of the last i(portance that they jealously guard the liberty of parties% counsel% #itnesses% and jurors% against all arbitrary po#er on the part of the court) "ertainly =r) /alla( (ay $ery #ell say that Kone (ay doubt #hether these @the se$eral eases he has (entionedA #ere in conte(plation of the fra(ers of =agna "arta K that is% as exceptions to the rule reIuiring that all judg(cnts% that are to be enforced Kagainst a partyRs goods or person%K% be rendered by a jury) Again% =r) /alla( says% if the #ord $el% be rendered by and%% Kthe (eaning #ill be% that no person shall be dissei;ed% Xc)% except upon a la#ful cause of action)K% This is trueS but it does not follo#

that any cause of action% founded on statute only%% is therefore a Kla#ful% cause of action%K #ithin the (eaning of lege( terrae% % or the "o((on La#)% *ithin the (eaning of the lege( terrae% of =agna "arta% nothing but a co((on la#% cause of action is a Kla#fulK% one) "/APTE. 222) A++2T254AL P.55,S 5, T/E .2G/TS A4+ +<T2ES 5, J<.5.S 2f any e$idence% extraneous to the history and language of =agna "arta% #ere needed) to pro$e that% by that chapter #hich guaranties the trial by jury% all #as (eant that has no# been ascribed to it% and that the legislation of the &ing #as to be of no authority #ith the jury beyond #hat they chose to allo# to it% and that the juries #ere to li(it the punish(ents to be inflicted% #e should find that e$idence in $arious sources% such as the la#s% custo(s% and characters of their ancestors on the continent% and of the northern Europeans generallyS in the legislation and custo(s that i((ediately succeeded =agna "artaS in the oaths that ha$e at different ti(es been ad(inistered to jurors% XcS)% XcS) This e$idence can be exhibited here but partially) To gi$e it all #ould reIuire too (uch space and labor SE"T254 2 *ea&ness of the .egal Authority) /ughes% in his preface to his translation of /orneRs K=irror of Justices%K @a boo& #ritten in the ti(e of Ed#ard 2% !818 to !D91%A gi$ing a concise $ie# of the la#s of England generally% says? KAlthough in the SaxonRs ti(e 2 find the usual #ords of the acts then to ha$e been edictu(% @edict%A constitutio% @statute%A little (ention being (ade of the co((ons% yet 2 further find that% tu( de(u( Leges $i( et $igore( habuerunt% cu( fuerunt non (odo institutae sed fir(atae approbatione co((unitatis)K @The la#s had force and $igor only #hen they #ere not only enacted% but confir(ed by the appro$al of the co((unity)A The =irror of Justices itself also says% @ch) !% sec) D%A in spea&ing K5f the first "onstitutions of the Ancient Uing)K K=any ordinances #ere (ade by (any &ings% until the ti(e of the &ing that no# is @Ed#ard 2)AS the #hich ordinances #ere abused% or not used by (any% nor $ery current% because they #ere not put in #riting% and certainly published)K =irror of Justices% p) M) /alla( says? KThe ,ran&s% Lo(bards% and Saxons see( ali&e to ha$e been jealous of judicial authorityS and a$erse to surrendering #hat concerned e$ery (anRs pri$ate right% out of the hands of his neighbors and eIuals)K ! =iddle Ages% 81!) The Kjudicial authority%K here spo&en of% #as the authority of

the &ings% @#ho at that ti(e united the office of both legislators and judges%A% and not of a separate depart(ent of go$ern(ent% called the judiciary% li&e #hat has existed in (ore (odern ti(es) 7!: /u(e says? KThe go$ern(ent of the Ger(ans% and that of all the northern nations% #ho established the(sel$es on the ruins of .o(e% #as al#ays extre(ely freeS and those fierce people% accusto(ed to independence and inured to ar(s% #ere (ore guided by persuasion% than authority% in the sub(ission #hich they paid to their princes) The (ilitary despotis(% #hich had ta&en place n the .o(an e(pire% and #hich% pre$iously to the irruption of those conIuerors% had sun& the genius of (en% and destroyed e$ery noble principle of science and $irtue% #as unable to resist the $igorous efforts of a free people% and Europe% as fro( a ne# epoch% re&indled her ancient spirit% and shoo& off the base ser$itude to arbitrary #ill and authority under #hich she had so long labored) The free constitutions then established% ho#e$er i(paired by the encroach(ents of succeeding princes% still preser$e an air of independence and legal ad(inistration% #hich distinguished the European nationsS and if that part of the globe (aintain senti(ents of liberty% honor% eIuity% and $alor% superior to the rest of (an&ind% it o#es these ad$antages chiefly to the seeds i(planted by those generous barbarians) KThe Saxons% #ho subdued Britain% as they enjoyed great liberty in their o#n country% obstinately retained that in$aluable possession in their ne# settle(entS and they i(ported into this island the sa(e principles of independence% #hich they had inherited fro( their ancestors) The chieftains% @ for such they #ere% (ore than &ings or princes%A #ho co((anded the( in those (ilitary expeditions% still possessed a $ery li(ited authorityS and as the Saxons exter(inated% rather than subdued the ancient inhabitants% they #ere% indeed% transplanted into a ne# territory% but preser$ed unaltered all their ci$il and (ilitary insfitutions) The language #as pure SaxonS e$en the na(es of places% #hich often re(ain #hile the tongue entirely changes% #ere al(ost all affixed by the conIuerorsS the (anners and custo(s #ere #holly Ger(anS and the sa(e picture of a fierce and bold liberty% #hich is dra#n by the (asterly pen of Tacitus% #ill suit those founders of the English go$ern(ent) The &ing% so far fro( being in$ested #ith arbitrary po#er% #as only considered as the first a(ong the citi;ensS his authority depended (ore on his personal Iualities than on his stationS he #as e$en so far on a le$el #ith the people% that a stated price #as fixed for his head% and a legal fine #as le$ied upon his (urderer% #hich though proportionate to his station% and superior to that paid for the life of a subject% #as a sensible (ar& of his subordination to the co((unity)K ! /u(e% Appendix% l) Stuart says? KThe Saxons brought along #ith the( into Britain their o#n custo(s% language% and ci$il institutions) ,ree in Ger(any% they renounced not their independence% #hen they had conIuered)

Proud fro( $ictory% and #ith their s#ords in their hands% #ould they surrender their liberties to a pri$ate (anQ *ould te(porary laders% li(ited in their po#ers% and unpro$ided in resources% e$er thin& to usurp an authority o$er #arriors% #ho considered the(sel$es as their eIuals% #ere i(patient of control% and attached #ith de$oted ;eal to their pri$ilegesQ 5r% #ould they find leisure to for( resolutions% or opportunities to put the( in practice% a(idst the tu(ult and confusion of those fierce and bloody #ars% #hich their nations first #aged #ith the Britons% and then engaged in a(ong the(sel$esQ Sufficiently flattered in leading the ar(ies of their country(en% the a(bition of co((anders could as little suggest such designs% as the liberty of the people could sub(it to the() The conIuerors of Britain retained their independenceS and this island sa# itself again in that free state in #hich the .o(an ar(s had disco$ered it) KThe sa(e fir(ness of character% and generosity of (anners% #hich% in general% distinguished the Ger(ans% #ere possessed in an e(inent degree by the SaxonsS and #hile #e endea$or to unfold their political institutions% #e (ust perpetually turn our obser$ation to that (asterly picture in #hich the .o(an historian has described these nations) 2n the #oods of Ger(any shall #e find the principles #hich directed the state of land% in the different &ingdo(s of EuropeS and there shall #e find the foundation of those ran&s of (en% and of those ci$il arrange(ents% #hich the barbarians e$ery#here establishedS and #hich the English alone ha$e had the good fortune% or the spirit% to preser$e)K Stuart on the "onstitution of england% p) J0 C M!) KUings they @the Ger(ansA respected as the first (agistrates of the stateS but the authority possessed by the( #as narro# and li(ited)K +itto% p) !DE) K+id he% @the &ing%A at any ti(e% relax his acti$ity and (artial ardor% did he e(ploy his abilities to the prejudice of his nation% or fancy he #as superior to the la#sS the sa(e po#er #hich raised hi( to honor% hu(bled and degraded hi() The custo(s and councils of his country pointed out to hi( his dutyS and if he infringed on the for(er% or disobeyed the latter% a fierce people set aside his authority) K/is long hair #as the only orna(ent he affected% and to be fore(ost to attac& an ene(y #as his chief distinction) Engaged in e$ery ha;ardous expedition% he #as a stranger to reposeS and% ri$alled by half the heroes of his tribe% he could obtain little po#er) Anxious and #atchful for the public interest% he felt e$ery (o(ent his dependence% and ga$e proofs of his suh(ission) K/e attended the general asse(bly of his nation% and #as allo#ed the pri$ilege to harangue it firstS but the arts of persuasion% though &no#n and respected by a rude people% #ere uneIually opposed to the prejudices and passions of (en)K +itto% p) !DJ C M) KThe authority of a Saxon (narch #as not (ore considerable) The Saxons sub(itted not to the arbitrary rule of princes) They ad(inistered an oath to their so$ereigns% #hich bound the( to

ae&no#ledge the la#s% and to defend the rights of the church and peopleS and if they forgot this obligation% they forfeited their office) 2n both countries% a price #as affixed on &ings% a fine expiated their (urder% as #ell as that of the (eanest citi;enS and the s(allest $iolation of ancient usage%or the least step to#ards tyranny% #as al#ays dangerous% and often fatal to the()K +itto% p) !60CE9) KThey #ere not allo#ed to i(pose taxes on the &ingdo()K +itto% p) !EM) KLi&e the Ger(an (onarchs% they deliberated in the general asse(bly of the nationS but their legislati$e authority #as not (uch respectedS and their assent #as considered in no better light than as a for() This% ho#e$er% #as their chief prerogati$eS and they e(ployed it to acIuire an ascendant in the state) To art and insinuation they turned% as their only resource% and flattered a people #ho( they could not a#eS but address% and the abilities to persuade% #ere a #ea& co(pensation for the absence of real po#er) KThey declared #ar% it is said% and (ade peace) 2n both cases% ho#e$er% they acted as the instru(ents of the state% and put in execution the resolutions #hich its councils had decreed) 2f% indeed% an ene(y had in$aded the &ingdo(s% and its glory and its safety #ere concerned% the great lords too& the field at the call of their so$ereign) But had a so$ereign declared #ar against a neighboring state% #ithout reIuiring their ad$ice% or if he (eant to re$enge by ar(s an insult offered to hi( by a subject% a haughty and independent nobility refused their assistance) These they considered as the Iuarrels of the &ing% and not of the nationS and in all such e(ergencies he could only be assisted by his retainers and dependents)K +itto% p) !E1 6) K4or (ust #e i(agine that the Saxon% any (ore than the Ger(an (onarchs% succeeded each other in a lineal descent% 78: or that they disposed of the cro#n at their pleasure) 2n both countries% the free election of the people filled the throneS and their choice #as the only rule by #hich princes reigned) The succession% accordingly% of their &ings #as often bro&en and interrupted% and their depositions #ere freIuent and groundless) The #ill of a prince #ho( they had long respected% and the fa$or they naturally transferred to his descendant% (ade the( often ad$ance hi( to the royal dignityS but the cro#n of his ancestor he cnsidered as the gift of the people% and neither expected nor clai(ed it as a right)K +itto% p) !J! D) 2n Ger(any K2t #as the business of the great to co((and in #ar% and in peace they distributed justice) KThe princes in Ger(any #ere earls in England) The great contended in both countries in the nu(ber of their retainers% and in that splendor and (agnificence #hich are so alluring to a rude peopleS and though they joined to set bounds to regal po#er% they #ere often ani(ated against each other #ith the fiercest hatred) To a proud and i(patient nobility it see(ed little and unsuiting to gi$e or accept co(positions for the injuries they co((itted or

recei$edS and their $assals adopting their resent(ent and passions% #ar and bloodshed alone could ter(inate their Iuarrels) *hat necessarily resulted fro( their situation in society% #as continued as a pri$ilegeS and the great% in both countries% (ade #ar% of their pri$ate authority% on their ene(ies) The Saxon earls e$en carried their ar(s against their so$ereignsS and% surrounded #ith retainers% or secure in fortresses and castles% they despised their resent(ent% and defied their po#er) KThe judges of the people% they presided in both countries in courts of la#) 7D: The particular districts o$er #hich they exerted their authority #ere (ar&ed out in Ger(any by the council of the stateS and in England their jurisdiction extended o$er the fiefs and other territories they possessed) All causes% both ci$il and cri(inal% #ere tried before the(S and they judged% except in cases of the ut(ost i(portance% #ithout appeal) They #ere e$en allo#ed to grant pardon to cri(inals% and to correct by their cle(ency the rigors of justice) 4or did the so$ereign exercise any authority in their lands) 2n these his officers for(ed no courts% and his #rit #as disregarded) KThey had officers% as #ell as the &ing% #ho collected their re$enues% and added to their greatnessS and the inhabitants of their lands they distinguished by the na(e of subjects) KBut to attend the general asse(bly of their nation #as the chief prerogati$e of the Ger(an and Saxon princesS and as they consulted the interest of their country% and eliberated concerning (atters of state% so in the &ingRs court% of #hich also they #ere (e(bers% they assisted to pronounce judg(ent in the co(plaints and appeals #hich #ere lodged in it)K +itto% p) !J6 to !MJ) /enry says? K4othing can be (ore e$ident than this i(portant truthS that our AngloCSaxon &ings #ere not absolute (onarchsS but that their po#ers and prerogati$es #ere li(ited by the la#s and custo(s of the country) 5ur Saxon ancestors had been go$erned by li(ited (onarchs in their nati$e seats on the continentS and there is not the least appearance or probability that they relinIuished their liberties% and sub(itted to absolute go$ern(ent in their ne# settle(ents in this island) 2t is not to be i(agined that (en% #hose reigning passion #as the lo$e of liberty% #ould #illingly resign itS and their ne# so$ereigns% #ho had been their fello#Csoldiers% had certainly no po#er to co(pel the( to such a resignation)K D /enryRs /istory of Great Britain% DJ6) =ac&intosh says?KThe Saxon chiefs% #ho #ere called) &ings% originally acIuired po#er by the sa(e natural causes #hich ha$e gradually% and e$ery#here% raised a fe# (en abo$e their fello#s) They #ere% doubtless% (ore experienced% (ore s&illful% (ore bra$e% or (ore beautiful% than those #ho follo#ed the() * * A &ing #as po#erful in #ar by the lustre of his ar(s% and the ob$ious necessity of obedience) /is influence in peace fluctuated #ith his personal character) 2n the progress of usage his po#er beca(e (ore fixed and (ore li(ited) * * 2t #ould be $ery

unreasonable to suppose that the northern Ger(ans #ho had conIuered England% had so far changed their characteristic habits fro( the age of Tacitus% that the $ictors beca(e sla$es% and that their generals #ere con$erted into tyrants)K =ac&intoshRs /ist) of England% "h) 8) EJ LardnerRs "ab) "yc)% 1DCE) .apin% in his discourse on the K5rigin and 4ature of the English "onstitution%K says? KThere are but t#o things the Saxons did not thin& proper to trust their &ings #ithS for being of li&e passions #ith other (en% they (ight $ery possibly abuse the(S na(ely% the po#er of changing the la#s enacted by consent of &ing and peopleS and the po#er of raising taxes at pleasure),ro( these t#o articles sprung nu(berless branches concerning the liberty and property of the subject% #hich the &ing cannot touch% #ithout brea&ing the constitution% and they are the distinguishing character of the English (onarchy) The prerogati$es of the cro#n% and the rights and pri$ileges of the people% flo#ing fro( the t#o foreC(entioned articles% are the ground of all the la#s that fro( ti(e to ti(e ha$e been (ade by unani(ous consent of &ing and people) The English go$ern(ent consists in the strict union of the &ingRs prerogati$es #ith the peopleRs liberties) * * But #hen &ings arose% as so(e there #ere% that ai(ed at absolute po#er% by changing the old% and (a&ing ne# la#s% at pleasureS by i(posing illegal taxes on the peopleS this excellent go$ern(ent being% in a (anner% dissol$ed by these destructi$e (easures% confusion and ci$il #ars ensued% #hich so(e $ery #rongfully ascribe to the fic&le and restless te(per of the English)K .apinRs Preface to his /istory of England) /alla( says that a(ong the Saxons% Kthe royal authority #as #ea&)K 8 =iddle Ages% E9D) But although the &ing hi(self had so little authority% that it cannot be supposed for a (o(ent that his la#s #ere regarded as i(perati$e by the people% it has ne$ertheless been clai(ed% in (odern ti(es% by so(e #ho see( deter(ined to find or (a&e a precedent for the present legislati$e authority of parlia(ent% that his la#s #ere authoritati$e% #hen assented to by the *itena C ge(ote% or asse(bly of #ise (en that is% the bishops and barons) But this asse(bly e$idently had no legislati$e po#er % #hate$er) The &ing #ould occasionally in$ite the bishops and barons to (eet hi( for consultation on public affairs% si(ply as a council% and not as a legislati$e body) Such as sa# fit to attend% did so) 2f they #ere agreed upon #hat ought to be done% the &ing #ould pass a la# accordingly% and the barons and bishops #ould then return and infor( the people orally #hat la#s had been passed% and use their influence #ith the( to induce the( to confor( to the la# of the &ing% and the reco((endation of the council) R And the people no doubt #ere (uch (ore li&ely to accept a la# of the &ing% if it had been appro$ed by this council% than if it had not) But it #as still only a la# of the &ing% #hich they obeyed or disregarded according to their o#n notions of expediency) The nu(bers #ho usually attended this council #ere too s(all to ad(it of the supposition that they had any legislati$e authority #hate$er% to i(pose la#s upon the

people against their #ill) Lingard says? K2t #as necessary that the &ing should obtain the assent of these @the (e(bers o the *itenaCge(otesA to all legislati$e enact(entsS because% #ithout their acIuiescence and support% it #as i(possible to carry the( into execution) To (any charters @la#sA #e ha$e the signatures of the *itan) They seldo( exceed thirty in nu(berS they ne$er a(ount to sixty)K ! LingardS E6M) 2t is ridiculous to suppose that the assent of such an asse(bly ga$e any authority to the la#s of the &ing% or had any influence in securing obedience to the(% other#ise than by #ay of persuasion) 2f this body had had any real legislati$e authority% such as is accorded to legislati$e bodies of the present day% they #ould ha$e (ade the(sel$es at once the (ost conspicuous portion of the go$ern(ent% and #ould ha$e left behind the( abundant e$idence of their po#er% instead of the e$idence si(ply of their assent to a fe# la#s passed by the &ing) =ore than this) 2f this body had had any real legislati$e authority% they #ould ha$e constituted an aristocracy% ha$ing% in conjunction #ith the &ing% absolute po#er o$er the people) Asse(bling $oluntarily% (erely on the in$itation of the &ingS deputed by nobody but the(sel$esS representing nobody but the(sel$esS responsible to nobody but the(sel$esS their legislati$e authority% if they had had any% #ould of necessity ha$e (ade the go$ern(ent the go$ern(ent of an aristocracy (erely% and the people sla$es% of course) And this #ould necessarily ha$e been the picture that history #ould ha$e gi$en us of the AngloCSaxon go$ern(ent% and of AngloCSaxon liberty) The fact that the people had no representation in this asse(bly% and the further fact that% through their juries alone% they ne$ertheless (aintained that noble freedo(% the $ery tradition of #hich @after the substance of the thing itself has ceased to existA has constituted the greatest pride and glory of the nation to this day% pro$e that this asse(bly exercised no authority #hich juries of the people ac&no#ledged% except at their o#n discretion) 7E: There is not a (ore palpable truth% in the history of the AngloCSaxon go$ern(ent% than that stated in the 2ntroduction to GilbertRs /istory of the "o((on Pleas% 7J: $i;)) Kthat the "ounty aud /undred "ourts%K @to #hich should ha$e been added the other courts in #hich juries sat% the courtsCbaron and courtCleet%A Kin those ti(es #ere the real and only Parlia(ents of the &ingdo()K And #hy #ere they the real and only parlia(ents of the &ingdo(Q Solely because% as #ill be hereafter sho#n% the juries in those courts tried causes on their intrinsic (erits% according to their o#n ideas of justice% irrespecti$e of the la#s agreed upon by &ings% priests% and baronsS and #hate$er principles they unifor(ly% or perhaps generally% enforced% and none others% beca(e practically the la# of the land as (atter of course) 7M:

,inally% on this point) "onclusi$e proof that the legislation of the &ing #as of little or no authority% is found in the fact that the &ings enacted so fe# la#s) 2f their la#s had been recei$ed as authoritati$e% in the (anner that legislati$e enact(ents are at this day% they #ould ha$e been (a&ing la#s continually) 3et the codes of the (ost celebrated &ings are $ery s(all% and #ere little (ore than co(pilations of i((e(orial custo(s) The code of Alfred #ould not fill t#el$e pages of the statute boo& of =assachusetts% and #as little or nothing else than a co(pilation of the la#s of =oses% and the Saxon custo(s% e$idently collected fro( considerations of con$enience% rather than enacted on the principle of authority) The code of Ed#ard the "onfessor #ould not fill t#enty pages of the statute boo& of =assachusetts% and% says Blac&stone% Ksee(s to ha$e been no (ore than a ne# edition% or fresh pro(ulgation of AlfredRs code% or do(eCboo&% #ith such additions and i(pro$e(ents as the experience of a century and a half suggested)K ! Blac&stone% MM) 71: The "ode of *iliia( the "onIueror 76: #ould fill less than se$en pages of the statute boo& of =assachusettsS and (ost of the la#s contained in it are ta&en fro( the la#s of the preceding &ings% and especially of Ed#ard the "onfessor @#hose la#s *illia( s#ore to obser$eAS but fe# of his o#n being added) The codes of the other Saxon and 4or(an &ings #ere% as a general rule% less $olu(inous e$en than these that ha$e been na(edS and probably did not exceed the( in originality) 70: The 4or(an princes% fro( *illia( the "onIueror to John% 2 thin& #ithout exception% bound the(sel$es% and% in order to (Iintain their thrones% #ere obliged to bind the(sel$es% to obser$e the ancient la#s and custo(s% in other #ordsS the Klex terrae%K or Kco((on la#K of the &ingdo() E$en =agna "arta contains hardly anything other than this sa(e Kco((on la#%K #ith so(e ne# securities for its obser$ance) /o# is this abstinence fro( legislation% on the part of the ancient &ings% to be accounted for% except on the supposition that the people #ould accept% and juries enforce% fe# or no ne# la#s enacted by their &ingsQ Plainly it can be accounted) for in no ether #ay) 2n fact% all history infor(s us that anciently the atte(pts of the &ings to introduce or establish ne# la#s% (et #ith deter(ined resistance fro( the people% and generally resulted in failure K4olu(us Leges Angliae (utariK @#e #ill that the la#s of England be not changed%A #as a deter(ined principle #ith the AngloCSaxons% fro( #hich they seldo( departed% up to the ti(e of =agna "arta% and indeed until long after) 7!9: SE"T254 22 The Ancient "o((on La# Juries #ere (ere "ourts of "onscience) But it is in the ad(inistration of justice% or of la#% that the freedo( or subjection of a people is tested) 2f this ad(inistration be in accordance #ith the arbitrary #ill of the legislator that is% if his #ill% as it appears in his statutes%

be the highest rule of decision &no#n to the judicial tribunals% the go$ern(ent is a despotis(% and the people are sla$es) 2f% on the other hand% the rule of decision be these principles of natural eIuity and justice% #hich constitute% or at least are e(bodied in% the general conscience of (an&ind% the people are free in just so far as that conscience is enlightened) That the authority of the &ing #as of little #eight #ith the judicial tribunals% (ust necessarily be inferred fro( the fact already stated% that his authority o$er the people #as but #ea&) 2f the authority of his la#s had been para(ount in the judicial tribunals% it #ould ha$e been para(ount #ith the people% of courseS because they #ould ha$e had no alternati$e but sub(ission) The fact% then% that his la#s #ere not authoritati$e #ith the people% is proof that they #ere not authoritati$e #ith the tribunals in other #ords% that they #ere not% as (atter of course% enforced by the tribunals) But #e ha$e additional e$idence that% up to the ti(e of =agna "arta% the la#s of the &ing #ere not binding upon the judicial tribunalsS and if they #ere not binding before that ti(e% they certainly #ere not after#ards% as has already been sho#n fro( =agna "arta itself) 2t is (anifest fro( all the accounts #e ha$e of the courts in #hich juries sat% prior to =agna "arta% such as the courtCbaron% the hundred court% the courtCleet% and the county court% that they #ere (ere courts of conscience% and that the juries #ere the judges% deciding causes according to their o#n notions of eIuity% and not according to any la#s of the &ing% unless they thought the( just) These courts% it (ust be considered% #ere $ery nu(erous% and held $ery freIuent sessions) There #ere probably se$en% eight% or nine hundred courts a (onth% in the &ingdo(S the object being% as Blac&stone says% KTo bring justice ho(e to e$ery (anRs door)K @D Blac&stone% 69)A The nu(ber of the county courts% of course% corresponded to the nu(ber of counties% @DM)A The courtCleet #as the cri(inal court for a district less than a county) The hundred court #as the court for one of those districts anciently called a hundred% because% at the ti(e of their first organi;ation for judicial purposes% they co(prised% @as is supposedA but a hundred fa(ilies) 7!!: The courtCbaron #as the court for a single (anor% and there #as a court for e$ery (anor in the &ingdo() All these courts #ere holden as often as once in three or fi$e #ee&sS the county court once a (onth) The &ingRs judges #ere present at none of these courtsS the only officers in attendance being sheriffs bailiffRs% and ste#ards% (erely (inisterial% and not judicial% officersS doubtless inco(petent% and% if not inco(petent% untrust#orthy% for gi$ing the juries any reliable infor(ation in (atters of la#% beyond #hat #as already &no#n to the jurors the(sel$es) And yet these #ere the courts% in #hich #as done all the judicial business% both ci$il and cri(inal% of the nation% except appeals% and so(e of the (ore i(portant and difficult cases) 7!8: 2t is plain that the juries% in these courts% (ust% of necessity% ha$e been the sole judges of all (atters of la# #hatsoe$erS because there #as no one present% but sheriffs% bailiffs% and ste#ards%

to gi$e the( any instructionsS and surely it #ill not be pretended that the jurors #ere bound to ta&e their la# fro( such sources as these) 2n the second place% it is (anifest that the principles of la#% by #hich the juries deter(ined causes% #ere% as a general rule% nothing else than their o#n ideas of natural eIuity% and not any la#s of the &ingS because but fe# la#s #ere enacted% and (any of those #ere not #ritten% but only agreed upon in council) 7!D: 5f those that #ere#ritten% fe# copies only #ere (ade% @printing being then un&no#n%A and not enough to supply a!!% or any considerable nu(ber% of these nu(erous courts) Beside and beyond all this% fe# or none of the jurors could ha$e read the la#s% if they had been #rittenS because fe# or none of the co((on people could% at thatti(e% read) 4ot only #ere the co((on people unable to read their o#n language% but% at the ti(e of =agna "arta% the la#s #ere #ritten in Latin% a language that could be read by fe# persons except the priests% #ho #ere also the la#yers of the nation) =ac&intosh says% Kthe first act of the /ouse of "o((ons co(posed and recorded in the English tongue%K #as in !E!J% t#o centuries after =agna "arta) 7!E:) <p to this ti(e% and for so(e se$enty years later% the la#s #ere generally #ritten either in Latin or ,renchS both languages incapable of being read by the co((on people% as #ell 4or(ans as SaxonsS and one of the(% the Latin% not only incapable of being read by the(% but of beinge$en understood #hen it #as heard by the() To suppose that the people #ere bound to obey% and juries to enforce% la#s% (any of #hich #ere un#ritten% none of #hich they could read% and the larger part of #hich @those #ritten in LatinA they could not translate% or understand #hen they heard the( read% is eIui$alent to supposing the nation sun& in the (ost degrading sla$ery% instead of enjoying a liberty of their o#n choosing) Their &no#ledge of the la#s passed by the &ing #as% of course% deri$ed only fro( oral infor(ationS and the good la#s%Kas so(e of the( #ere called% in contradistinction to others those #hich the people at large estee(ed to be good la#s #ere doubtless enforced by the juries% and the others% as a general thing% disregarded) 7!J: That such #as the nature of judicial proceedings% and of the po#er of juries% up to the ti(e of =agna "arta% is further sho#n by the follo#ing authorities) KThe sheriffRs and bailiffs caused the free tenants of their baili#ics to (eet at their counties and hundredsS at #hich justice #as so done% that e$ery one so judged his neighbor by such judg(ent as a (an could not else#here recei$e in the li&e cases% until such ti(es as the custo(s of the real( #ere put in #riting% and certainly published) KAnd although a free(an co((only #as not to ser$e @as a juror or judgeA #ithout his assent% ne$ertheless it #as assented unto that free tenants should (eet together in the counties and hundreds% and lords courts% if they #ere not specially exe(pted to do such

suits% and there judged their neighbors)K =irror of Justices% p) 1% 6) Gilbert% in his treatise on the "onstitution of England% says? K2n the county courts% if the debt #as abo$e forty shillings% there issued a justicies @a co((issionA to the sheriff% to enable hi( to hold such a plea% #here the suitors @jurorsA are judges of the la# and fact)K GilbertRs "ases in La# and EIuity% XcS)% XcS)% EJM) All the ancient #rits% gi$en in Glan$ille% for su((oning jurors% indicate that the jurors judged of e$erything% on their consciences only) The #rits are in this for(? KSu((on t#el$e free and legal (en @or so(eti(es t#el$e &nightsA to be in court% prepared upon their oaths to declare #hether A or B ha$e the greater right to the land Zor other thingA in Iuestion)K See *rits in Bea(esR Glan$ille% p) JE to 19% and 8DD D9M to 6D8) "rabbe% spea&ing of the ti(e of /enry 2)% @!!99 to !!DJ%A recogni;es the fact that the jurors #ere the judges) /e says? KBy one la#% e$ery one #as to be tried by his peers% #ho #ere of the sa(e neighborhood as hi(self) * *By another la#% the judges% for so the jury #ere called% #ere to be chosen by the party i(pleaded% after the (anner of the +anish ne(CbasS by #hich% probably% is to be understood that the defendant had the liberty of ta&ing exceptions to% or challenging the jury% as it #as after#ards called)K "rabbeRs /istory of the English La#% p) JJ) .ee$e says? KThe great court for ci$il business #as the county courtS held once e$ery four #ee&s) /ere the sheriff presidedS but the suitors of the court% as they #ere called% that is% the free(en or landholders of the county% #ere the judgesS and the sheriff #as to execute the judg(ent) KThe hundred court #as held before so(e bailiffS the leet before the lord of the (anorRs ste#ard)7!M: K5ut of the county court #as deri$ed an inferior court of ci$il jurisdiction% called the courtCbaron) This #as held fro( three #ee&s to three #ee&s% and #as in e$ery respect li&e the county courtSK @that is% the jurors #ere judges in itSA Konly the lord to #ho( this franchise #as granted% or his ste#ard presided instead of the sheriffSK ! .ee$eRs /istory of the English La#% p) T)% "hief Baron Gilbert says? KBesides the tenants of the &ing% #hich held per baronia(% @by the right of a baron%A and did suit and ser$ice @ser$ed as judgesA at his o#n courtS and the burghers and tenants in ancient

de(esne% that did suit and ser$ice @ser$ed as jurors or judgesA in their o#n court in personA% and in the &ingRs by proxy% there #as also a set of freeholders% that did suit aud ser$ice @ser$ed as jurorsA at the county court) These #ere such as anciently held of the lord of the county% and by the escheats of earldo(s had fallen to the &ingS or such as #ere granted out by ser$ice to hold of the &ing% but #ith particular reser$ation to do suit and ser$ice @ser$e as jurorsA before the &ngRs bailiffS because it #as necessary the sheriff% or bailiff of the &ing% should ha$e suitors @jurorsA at the county court% that the business (ight be despatched) These suitors are the pares @peersA of the county court% and indeed the judges of itS as the pares @peersA #ere the judges in e$ery courtCbaronS and therefore the &ingRs bailiff ha$ing a court before hi(% there (ust be pares or judges% for the sheriff hi(self is not a judgeS and though the style of the court is "uria pri(a "o(itatus E) ") =ilit)R $iceco(R "o(itatR praedR TentR apud B)% XcS) @,irst "ourt of the county% E) ") &night% sheriff of the aforesaid county% held at B)% XcS)AS by #hich it appears that the court #as the s!ieriffRsS yet% by the old feudal constititions% the lord #as not judge% but the pares @peersA onlyS so that% e$en in a justicies% #hich #as a co((ission to the sheriff to hold plea of (ore than #as allo#ed hy the natural jurisdiction of a county court% the pares @peers% jurorsA only #ere judges% and not the sheriffS because it #as to hold plea in the sa(e (anner as they used to do in that @the lordRsA court)K Gilbert on the "ourt of ExcheIuer% ch) J) M!C 8) K2t is a distinguishing feature of the feudal syste(% to (a&e ci$il jurisdiction necessarily% and cri(inal jurisdiction ordinarily% coextensi$e #ith tenureS and accordingly there is inseparably incident to e$ery (anor a courtCbaron @curia baronu(A% being a court in #hich the freeholders of the (anor are the sole judges% but in #hich the lord% by hi(self or (ore co((only by his ste#ard% presides)K Political +ictionary% #ord =anor) The sa(e #or&% spea&ing of the county court% says? KThe judges #ere the freeholders #ho did suit to the court)K See #ord "ourts) K2n the case of freeholders attending as suitors% the county court or courtCbaron)% @as in the case of the ancient tenants per baronia( attending Parlia(ent%A the suitors are the judges of the court% both for la# and for fact% and the sheriff or the under sheriff in the county court% and the lord or his ste#ard in the courtCbaron% are only presiding officers% #ith no judicial authority)K Political +ictionary% #ord Suit) K"ourt% @curtis% curia aulaAS the space enclosed by the #alls of a feudal residence% in #hich the follo#ers of a lord used to asse(ble in the (iddle ages% to ad(inister justice% and decide respecting affairs of co((on interest% XcS) 2t #as next used for those #ho stood in i((ediate connexion #ith the lord and (aster% the pares curiae% @peers of the court%A the li(ited portion of the general asse(bly% to #hich #as entrusted the pronouncing of judg(ent%K XcS) Encyclopedia A(ericana% #ord "ourt) K2n courtCbarons or county courts the ste#ard #as not judge% but

the pares @peers% jurorsAS nor #as the spea&er in the /ouse of Lords judge% but the barons only)K Gilbert on the "ourt of .xcheIuer% ch) D% p) E8) "rabbe% spea&ing of the Saxon ti(es% says? KThe sheriff presided at the hundred court% * * and so(eti(es sat in the place of the alder(an @earlA in the county court)K "rabbe% 8D) The sheriff after#ards beca(e the sole presiding officer of the county court) Sir Tho(as S(ith% Secretary of State to Iueen Eli;abeth% #riting (ore than three hundred years after =agna "arta% in describing the difference bet#een the "i$il La# and the English La#% says? KJudex is of us called Judge% but our fashion is so di$ers% that they #hich gi$e the deadly stro&e% and either conde(n or acIuit the (an for guilty or not guilty% are not called judges% but the t#ele (en) And the sa(e order as #ell in ci$il (atters and pecuniary% as in (atters cri(inal)K S(ithRs "o((on#ealth of England% ch) 0% p) JD% Edition of !M8!) "ourtCLeet) KThat the leet is the (ost ancient court in the land for cri(inal (atters% @the courtCbaron being of no less antiIuity in ci$il%A has been pronounced by the highest legal authority) * * Lord =ansfield states that this court #as coe$al #ith the establish(ent of the Saxons here% and its acti$ity (ar&ed $ery $isibly both a(ong the Saxons and +anes) * * The leet is a court of record for the cogni;ance of cri(inal (atters% or pleas of the cro#nS and necessarily belongs to the &ingS though a subject% usually the lord of the (anor% (ay be% and is% entitled to the profits% consisting of the essoign pence% fines% and a(ercia(ents K2t is held before the ste#ard% or #as% in ancient ti(es% before the bailiff% of the lord)K To(lineRs La# +ict)% #ord "ourtCLeet) 5f course the jury #ere the judges in this court% #here only a Kste#ardK or KbailiffK of a (anor presided) K4o cause of conseIuence #as deter(ined #ithout the &ingRs #ritS for e$en in the county courts% of the debts% #hich #ere abo$e forty shillings% there issued a Justicies @co((issionA to the sheriff% to enable hi( to hold such plea% #here the suitors are judges of the la# and fact)K GilbertRs /istory of the "o((on Pleas% 2ntroduction% p) !0) KThis positionK @that K the (atter of la# #as decided by the UingRs Justices% but the (atter of fact by the pares KA Kis #holly inco(patible #ith the co((on la#% for the Jurata @ juryA #ere the sole judges both of the la# and the fact)K GilbertRs /istory of the "o((on Pleas% p) 19% note) K*e co(e no# to the challenge? and of old the suitors in court% #ho #ere judge% could not he challengedS nor by the feudal la#

could the pares be e$en challenged) Pares Iui ordinaria( jurisdictione( habent recusari non possuntS @the peers #ho ha$e ordinary jurisdiction cannot be rejectedSA Kbut those suitors #ho are judges of the court% could not be challengedS and the reason is% that there are se$eral Iualifications reIuired by the #rit% $i;)% that they be liberos et legales ho(ines de $incineto @free and legal (en of the neighborhoodA of the place laid in the declaration%K XcS)% XcS) +itto% p)0D) KAd Iuestione( juris non respondent Juratores)K @To the Iuestion of la# the jurors do not ans#er)A KThe Annotist says% that this is indeed a (axi( in the "i$ilCLa# Jurisprudence% but it does not bind an English jury% for by the co((on la# of theland the jury are the judges as #ell of the (atter of la#% as of the fact% #ith this difference only% that the 7a Saxon #ord: or judge on the bench is to gi$e the( no assistance in deter(ining the (atter of fact% but if they ha$e any doubt a(ong the(sel$es relating to (atter of la#% they (ay then reIuest hi( to explain it to the(% #hich #hen he hath done% and they are thus beco(e #ell infor(ed% they% and they only% beco(e co(petent judges of the (atter of la#) And this is the pro$ince of the judge on the bench% na(ely% to sho#% or teach the la#% but not to ta&e upon hi( the trial of the delinIuent% either in (atter of fact or in (atter of la#)K @/ere $arious Saxon la#s are Iuoted)A K2n neither of these funda(ental la#s is there the least #ord% hint% or idea% that the earl or alder(an @that is to say% the Prepositus @presiding officerA of the court% #hich is tanta(ount to the judge on the benchA is to ta&e upon hi( to judge the delinIuent in any sense #hate$er% the sole purport of his office is to teach the secular or #orldly la#)K +itto% p) J1% note) KThe ad(inistration of justice #as carefully pro$ided forS it #as not the caprice of their lord% but the sentence of their peers% that they obeyed) Each #as the judge of his eIuals% and each by his eIuals #as judged)K 2ntrod) to Gilbert on Tenures% p) !8) /alla( says? KA respectable class of free socagers% ha$ing% in general% full rights of alienating their lands% and holding the( probably at a s(all certain rent fro( the lord of the (anor% freIuently occur in +o(esCday Boo&) * * They undoubtedly #ere suitors to the courtCbaron of the lord% to #hose soc% or right of justice% they belonged) They #here conseIuently judges in ci$il causes% deter(ined before the (anorial tribunal)K 8 =iddle Ages% E6!) Stephens adopts as correct the follo#ing Iuotations fro( Blac&stone? KThe "ourtCBaron is a court incident to e$ery (anor in the &ingdo(% to be holden by the ste#ard #ithin the said (anor)K * * 2t Kis a court of co((on la#% and it is the court before the freeholders #ho o#e suit and ser$ice to the (anor%K @are bound to ser$e as jurors in the courts of the (anor%A Kthe ste#ard being rather the registrar than the judge) * * The freeholdersR court #as co(posed of the lordRs tenants% #ho #ere the pares@eIualsA of each other% and #ere bound by their feudal tenure to assist their

lord in the dispensation of do(estic justice) This #as for(erly held e$ery three #ee&sS and its (ost i(portant business #as to eter(ine% by #rit of right% all contro$ersies relating to the right of lands #ithin the (anor)K D StephensR "o((entaries% D08 D) D Blac&stone% D8CDD) KA /undred "ourt is only a larger courtCbaron% being held for all the inhabitants of a particular hundred% instead of a (anor) The free suitors @ jurorsA are here also the judges% and the ste#ard the register)K D Stephens% D0E) D Blac&stone% DD) KThe "ounty "ourt is a court incident to the jurisdiction of the sheriff) * * The freeholders of the county are the real judges in this court% and the sheriff is the (inisterial officer)K D Stephens% D0J M) D Blac&stone% DJCM) Blac&stone describes these courts% as courts K#herein injuries #ere redressed in an easy and expeditious (anner% by the suffrage of neighbors and friends)K D Blac&stone% D9) K*hen #e read of a certain nu(ber of free(en chosen by the parties to decide in a dispute all bound by oath to $ote in foro conscientia and that their decision% not the #ill of the judge presiding% ended the suit% #e at once percei$e that a great i(pro$e(ent has been (ade in the old for( of co(purgation an i(pro$e(ent #hich i(partial obser$ation can ha$e no hesitation to pronounce as identical in its (ain features #ith the trial by jury)K +unha(Rs =iddle Ages% Sec) 8% B) 8% "h) !) J1 LardnerRs "ab) "yc)% M9) KThe bishop and the earl or% in his absence% the gerefa% @sheriff%A and so(eti(es both the earl and the gerefa% presided at the schyreC(ote @county courtAS the gerefa @sheriffA usually alone presided at the (ote @(eeting or courtA of the hundred) 2n the cities and to#ns #hich #ere not #ithin any peculiar jurisdiction% there #as held% at regular stated inter$als% a burgh (ote% @borough court%A for the ad(inistration of justice% at #hich a gerefa% or a (agistrate appointed by the &ing% presided)K SpenceRs 5rigin of the La#s and Political 2nstitutions of =odern Europe% p) EEE) KThe right of the plaintiff and defendant% and of the prosecutor and cri(inal% to challenge the judices% @judges)A or assessors% 7!1: appointed to try the cause in ci$il (atters% and to decide upon the guilt or innocence of the accused in cri(inal (atters% is recogni;ed in the treatise called the La#s of /enry the ,irstS but 2 cannot disco$er% fro( the AngloCSaxon la#s or histories% that before the "onIuest the parties had any general right of challegeS indeed% had such right existed% the injunctions to all persons standing in the situation of judges @jurorsA to do right according to their conscience% #ould scarcely ha$e been so freIuently and anxiously repeated)K Spence% EJM) /ale says? KThe ad(inistration of the co((on justice of the &ingdo( see(s to be #holly dispensed in the county courts% hundred courts% and

courtsCbaronS except so(e of the greater cri(es refor(ed by the la#s of Uing /enry 2)% and that part thereof #hich #as so(eti(es ta&en up by the Justitiarius Angliae) This doubtless bred great incon$enience% uncertainty% and $ariety in the la#s% $i;)? K,irst% by the ignorance of the judges% #hich #ere the freeholders of the county)* * KThirdly% a third incon$enience #as% that all the business of any (o(ent #as carried by parties and factions) ,or the freeholders being generally the judges% and con$ersing one a(ong another% and being as it #ere the chief judges% not only of the fact% but of the la#S e$ery (an that had a suit there% sped according as he could (a&e parties)K ! /aleRs /istory of the "o((on La#% p) 8EM) K2n all these tribunals%K @county court% hundred court% XcS))A Kthe judges #ere the free tenants% o#ing suit to the court% and after#ards called its peers)K ! LingardRs /istory of England% E66) /enry calls the t#el$e jurors Kassessors%K and says? KThese assessors% #ho #ere in reality judges% too& a sole(n oath% that they #ould faithfully discharge the duties of their office% and not suffer an innocent (an to be conde(ned% nor any guilty person to be acIuitted)K D /enryRs /istory of Great Britain% DEM) Tyrre!! says? KAlfred cantoned his &ingdo(% first into Trihings and Lathes% as they are still called in Uent and other places% consisting of three or four /undredsS in #hich% the freeholders being judges% such causes #ere brought as could not be deter(ined in the /undred court)K TyrrellRs 2ntroduction to the /istory of England% p) 69) 5f the /undred "ourt he says? K2n this court anciently% one of the principal inhabitants% called the alder(an% together #ith the barons of the /undred 7!6: id est the freeholders #as judge)K +itto% p) 69) Also he says? KBy a la# of Ed#ard the Elder% RE$ery sheriff shall con$ene the people once a (onth% and do eIual right to all% putting an end to contro$ersies at ti(es appointed)RK +itto% p) 6M) A statute% e(phatically ter(ed the R Grand Assi;e%R enabled the defendant% if he thought proper% to abide by the testi(ony of the t#el$e good and la#ful &nights% chosen by four others of the $icinage% and #hose oaths ga$e a final decision to the contested clai(%)K ! Palgra$eRs .ise and Progress of the English "o((on#ealth% 8M!)

K,ro( the (o(ent #hen the cro#n beca(e accusto(ed to the R2nIuest%R a restraint #as i(posed upon e$ery branch of the prerogati$e) The &ing could ne$er be infor(ed of his rights% but through the (ediu( of the people) E$ery RextentR by #hich he clai(ed the profits and ad$antages resulting fro( the casualties of tenure% e$ery process by #hich he repressed the usurpations of the baronage% depended upon the Rgood (en and trueR #ho #ere i(paneled to RpassR bet#een the subject and the so$ereignS and the thunder of the ExcheIuer at *est(inster (ight be silenced by the honesty% the fir(ness% or the obstinacy% of one sturdy &night or yeo(an in the distant shire) Taxation #as controlled in the sa(e (anner by the $oice of those #ho #ere (ost liable to oppression) * * A jury #as i(paneled to adjudge the proportion due to the so$ereignS and this course #as not essentially $aried% e$en after the right of granting aids to the cro#n #as fully ac&no#ledged to be $ested in the parlia(ent of the real() The people taxed the(sel$esS and the collection of the grants #as chec&ed and controlled% and% perhaps% in (any instances e$aded% by these $irtual representati$es of the co((unity) The principle of the jury #as% therefore% not confined to its (ere application as a (ode of trying contested facts% #hether in ci$il or cri(inal casesS and% both in its for( and in its conseIuences% it had a $ery (aterial influence upon the general constitution of the real() * *The (ainCspring of the (achinery of re(edial justice existed in the franchise of the lo#er and lo#est orders of the political hierarchy) *ithout the suffrage of the yeo(an% the burgess% and the churl% the so$ereign could not exercise the (ost i(portant and (ost essential function of royaltyS fro( the( he recei$ed the po#er of life and deathS he could not #ield the s#ord of justice until the hu(blest of his subjects placed the #eapon in his hand)K ! Palgra$eRs .ise and Progress of the English "onstitution% 81E 1) "o&e says% KThe court of the county is no court of record% 7!0: and the suitors are the judges thereof)K E 2nst)A 8MM) Also% KThe court of the /undred is no court of record% and the suitors be thereof judges)K E 2nst)% 8M1) Also% KThe courtCbaron is a court incident to e$ery (anor% and is not of record% and the suitors be thereof judges)K E 2nst)% 8M6) Also% KThe court of ancient de(esne is in the nature of a courtCbaron% #herein the suitors are judges% and is no court of record)K E 2nst)% 8M0) =illar says% KSo(e authors ha$e thought that jury(en #ere originally

co(purgators% called by a defendant to s#ear that they belie$ed hi( innocent of the facts #ith #hich he #as charged) ) ) But ) ) ) co(purgators #ere (erely #itnessesS jury(en #ere% in reality% judges) The for(er #ere called to confir( the oath of the party by s#earing% according to their belief% that he had told the truth% @in his oath of purgationSA the latter #ere appointed to try% by #itnesses% and by all other (eans of proof% #hether he #as innocent or guilty) Juries #ere accusto(ed to ascertain the truth of facts% by the defendantRs oath of purgation% together #ith that of his co(purgators) ) ) Both of the( @jury(en and co(purgatorsA #ere obliged to s#ear that they #ould tell truth) According to the si(ple idea of our forefathers% guilt or innocence #as regarded as a (ere (atter of factS and it #as thought that no (an% #ho &ne# the real circu(stances of a case% could be at a loss to deter(ine #hether the culprit ought to be conde(ned or acIuitted)K ! =illarRs /ist) -ie# of Eng) Go$)% ch) !8% p) DD8 C E) Also% KThe sa(e for( of procedure% #hich too& place in the ad(inistration of justice a(ong the $assals of a barony% #as gradually extended to the courts eld in the trading to#ns)K Sa(e% p) DDJ) Also% KThe sa(e regulation% concerning the distribution of justice by the inter$ention of juries% ) ) )#ere introduced into the baron courts of the &ing% as into those of the nobility% or such of his subjects as retained their allodial property)K Sa(e% p) DD1) Also% KThis tribunalK @the aula regis% or &ingRs court% after#ards di$ided into the courts of UingRs Bench% "o((on Pleas% and ExcheIuerA K#as properly the ordinary baronCcourt of the &ingS and% being in the sa(e circu(stances #ith the baron courts of the nobility% it #as under the sa(e necessity of trying causes by the inter$ention of a jury)K Sa(e% $ol) 8% p) 808) Spea&ing of the ti(es of Ed#ard the ,irst% @!818 to !D91%A =illar says? K*hat is called the petty jury #as therefore introduced into these tribunals% @the UingRs Bench% the "o((on Pleas% and the ExheIuer%A as #ell as into their anxiliary courts e(ployed to distribute justice in the circuitsS and #as thus rendered essentially necessary in deter(ining causes of e$ery sort% #hether ci$il% cri(inal% or fiscal)K Sa(e% $ol) 8% p) 80DCE) Also% KThat this for( of trial @by juryA obtained uni$ersally in all the feudal go$ern(ents% as #ell as in that of EngC!and% there can be no reason to doubt) 2n ,rance% in Ger(any% and in other European countries% #here #e ha$e any accounts of the constitution and procedure of the feudal courts% it appears that la#suits of e$ery sort concerning the free(en or $assals of a barony% #ere deter(ined by the pares curiae @peers of the courtSA and that the judge too& little (ore upon hi( than to regulate the (ethod of proceeding% or to declare the $erdict of the jury)K Sa(e% $ol) !% ch) !8% p) D80)

Also% KA(ong the Gothic nations of (odern Europe% the custo( of deciding la#suits by a jury see(s to ha$e pre$ailed uni$ersallyS first in the allodial courts of the county% or of the hundred% and after#ards in the baronCcourts of e$ery feudal superior)K Sa(e% $ol) 8% p) 80M) Palgra$e says that in Ger(any KThe Graff @gerefa% sheriffA placed hi(self in the seat of judg(ent% and ga$e the charge to the asse(bled free Eche$ins% #arning the( to pronounce judg(ent according to right and justice)K 8 Palgra$e% !E1) Also% that% in Ger(any% KThe Eche$ins #ere co(posed of the $illanage% so(e#hat obscured in their functions by the learning of the gra$e ci$ilian #ho #as associated to the(% and so(e#hat li(ited by the encroach(ents of (odern feudalityS but they #ere still substantially the judges of the court)K Sa(e% !E6) Palgra$e also says% KScotland% in li&e (anner% had the la#s of Burla#% or Birla#% #hich #ere (ade and deter(ined by the neighbors% elected by co((on consent% in the Burla# or Birla# courts% #herein &no#ledge #as ta&en of co(plaints bet#een neighbor and neighbor% #hich (en% so chosen% #ere judges and arbitrators% and called Birla# (en)K ! Palgra$eRs .ise% XcS)% p) 69) But% in order to understand the co((on la# trial by jury% as it existed prior to =agna "arta% and as it% #as guaranteed) by that instru(ent% it is perhaps indispensable to understand (ore fully the nature of the courts in #hich juries sat% and the extent of the po#ers exercised by juries in those courts) 2 therefore gi$e in a note extended extracts% on these points% fro( Stuart on the "onstitution of England% and fro( Blac&stoneRs "o((entaries) 789: That all these courts #ere (ere courts of conscience% in #hich the juries #ere sole judges% ad(inistering justice according to their o#n ideas of it% is not only sho#n by the extracts already gi$en% but is explicitly ac&no#ledged in the follo#ing one% in #hich the (odern Kcourts of conscienceK are co(pared #ith the ancient hundred and county courts% and the preference gi$en to the latter% on the ground that the duties of the jurors in the one case% and of the co((issioners in the other% are the sa(e% and that the consciences of a jury are a safer and purer tribunal than the consciences of indi$iduals specially appointed% and holding per(anent offices) KBut there is one species of courts constituted by act of Parlia(ent% in the city of London% and other trading and populous districts% #hich% in their proceedings% so $ary fro( the course of the co((on la#% that they deser$e a (ore particular consideration) 2 (ean the court of reIuests% or courts of conscience% for the reco$ery of s(all debts) The first of these #as established in London so early as the reign of /enry -222)% by an act of their co((on councilS #hich% ho#e$er% #as certainly insufficient for that purpose% and illegal% till confir(ed by statute D Jac) 2)% ch) !J% #hich has since been explained and

a(ended by statute !E Geo) 22)% ch) !9) The constitution is this? t#o alder(en and four co((oners sit t#ice a #ee& to hear all causes of debt not exceeding the $alue of forty shillingsS #hich they exa(ine in a su((ary #ay% by the oath of the parties or other #itnesses% and (a&e such order therein as is consonant to eIuity and good conscience)i * * * +i$ers trading to#ns and other districts ha$e obtained acts of Parlia(ent% for establishing in the( courts of conscience upon nearly the sa(e plan as that in the city of London) KThe anxious desire that has been sho#n to obtain these se$eral acts% pro$es clearly that the nation% ingeneral% is truly sensible of the great incon$enience arising fro( the disuse of the ancient county and hundred courts% #herein causes of this s(all $alue #ere al#ays for(erly decided #ith $ery little trouble and expense to the parties) But it is to be feared that the general re(edy% #hich of late hath been principally applied to this incon$enience% @the erecting these ne# jurisdictions%A (ay itself be attended in ti(e #ith $ery ill conseIuencesS as the (ethod of proceeding therein is entirely in derogation of the co((on la#S and their large discretionary po#ers create a petty tyranny in a set of standing co((issionersS and as the disuse of the trial by jury (ay tend to estrange the (inds of the people fro( that $aluable prerogati$e of English(en% #hich has already been (ore than sufficiently excluded in (any instances) /o# (uch rather is it to be #ished that the proceedings in the county and hundred courts could be again re$i$ed% #ithout burdening the freeholders #ith too freIuent and tedious attendancesS and at the sa(e ti(e re(o$ing the delays that ha$e insensibly crept into their proceedings% and the po#er that either party has of transferring at pleasure their suits to the courts at *est(inster' And #e (ay% #ith satisfaction% obser$e% that this experi(ent has been actually tried% and has succeeded in the populous county of =iddlesex% #hich (ight ser$e as an exa(ple for others) ,or by statute 8D Geo) 22)% ch) DD% it is enacted? !) That a special county court shall be held at least once in a (onth% in e$ery hundred of the county of =iddlesex% by the county cler&) 8) That t#el$e freeholders of that hundred% Iualified to ser$e on juries% and struc& by the sheriff% shall be su((oned to appear at such court by rotationS so as none shall be su((oned oftener than once a year) D) That in all causes not exceeding the $alue of forty shillings% the county cler& and t#el$e suitors @jurorsA shll proceed in a su((ary #ay% exa(ining the parties and #itnesses on oath% #ithout the for(al process anciently usedS and shall (a&e such order therein as they shall judge agreeable to conscience)K D Blac&stone% 6! 6D) *hat are these but courts of conscienceQ And yet Blac&stone tells us they are a re$i$al of the ancient hundred and county courts) And #hat does this fact pro$e% but that the ancient co((on la# courts% in #hich juries sat% #ere (ere courts of conscienceQ 2t is perfectly e$ident that in all these courts the jurors #ere

the judges% and deter(ined all Iuestions of la# for the(sel$esS because the only alternati$e to that supposition is% that the jurors too& their la# fro( sheriffs% bailiffs% and ste#ards% of #hich there is not the least e$idence in history% nor the least probability in reason) 2t is e$ident% also% that they judged independently of the la#s of the &ing% for the reasons before gi$en% $i;)% that the authority of the &ing #as held in $ery% little estee(S and% secondly% that the la#s of the &ing @not being printed% and the people being unable to read the( if they had been printedA (ust ha$e been in a great (easure un&no#n to the(% and could ha$e been recei$ed by the( only on the authority of the sheriff% bailiffS or ste#ard) 2f la#s #ere to be recei$ed by the( on the authority of these officers% the latter #ould ha$e i(posed such la#s upon the people as they pleased) These courts% that ha$e no# been described% #ere continued in full po#er long after =agna "arta% no alteration being (ade in the( by that instru(ent% nor in the (ode of ad(inistering justice in the() There is no e$idence #hate$er% so far as 2 a( a#are% that the juries had any less po#er in the courts held by the &ingRs justices% than in those held by sheriffs% bailiff% and ste#ardsS and there is no probability #hate$er that they had) All the difference bet#een the for(er courts and the latter undoubtedly #as% that% in the for(er% the juries had the benefit of the ad$ice and assistance of the justices% #hich #ould% of course% be considered $aluable in difficult cases% on account of the justices being regarded as (ore learned% not only in the la#s of the &ing% but also in the co((on la#% or Kla# of the land)K The conclusion% therefore% 2 thin&% ine$itably (ust be% that neither the la#s of the &ing% nor the instructions of his justices% had any authority o$er jurors beyond #hat the latter sa# fit to accord to the() And this $ie# is confir(ed by this re(ar& of /alla(% the truth of #hich all #ill ac&no#ledge? KThe rules of legal decision% a(ong a rude people% are al#ays $ery si(pleS not ser$ing (uch to guide% far less to control the feelings of natural eIuity)K 8 =iddle Ages% ch) 6% part 8% p) EMJ) 2t is e$ident that it #as in this #ay% by the free and concurrent judg(ents of juries% appro$ing and enforcing certain la#s and rules of conduct% corresponding to their notions of right and justice% that the la#s and custo(s% #hich% for the (ost part% (ade up the co((on la#% and #ere called% at that day% Kthe good la#s% and good custo(s%K and Kthe la# of the land%K #ere established) /o# other#ise could they e$er ha$e beco(e established% as Blac&stone says they #ere% Kby long and i((e(orial usage% and by their uni$ersal reception throughout the &ingdo(%KC ! Blac&stone%MDCM1)% #hen% as the =irror says% Kjustice #as so done% that e$ery one so judged his neighbor% by such judg(ent as a (an could not else#here recei$e in the li&e cases% until such ti(es as the custo(s of the real(% #ere put in #riting and certainly publishedQK

The fact that% in that dar& age% so (any of the principles of natural eIuity% as those then e(braced in the "o((on La#% should ha$e been so unifor(ly recogni;ed and enforced by juries% as to ha$e beco(e established by general consent as Kthe la# of the landSK and the further fact that this Kla# of the landK #as held so sacred that e$en the &ing could not la#fully infringe or alter it% but #as reIuired to s#ear to (aintain it% are beautiful and i(pressi$e illustrations of the troth that (enRs (inds% e$en in the co(parati$e infancy of other &no#ledge% ha$e clear and coincident ideas of the ele(entary principles% and the para(ount obligation% of justice) The sa(e facts also pro$e that the co((on (ind% and the general% or% perhaps% rather% the uni$ersal conscience% as de$eloped in the untra((eled judg(ents of juries% (ay be safely relied upon for the preser$ation of indi$idual rights in ci$il societyS and that there is no necessity or excuse for that deluge of arbitrary legislation% #ith #hich the present age is o$er#hel(ed% under the pretext that unless la#s be (ade% the la# #ill not be &no#nS a pretext% by the #ay% al(ost uni$ersally used for o$erturning% instead of establishing% the principles of justice) SE"T254 222) The 5aths of Jurors) The oaths that ha$e been ad(inistered to jurors% in England% and #hich are their legal guide to their duty% all @so far as 2 ha$e ascertained the(A corroborate the idea that the jurors are to try all cases on their intrinsic (erits% independently of any la#s that they dee( unjust or oppressi$e) 2t is probable that an oath #as ne$er ad(inistered to a jury in England% either in a ci$il or cri(inal case% to try it according to la#) The earliest oath that 2 ha$e found prescribed by la# to be ad(inistered to jurors is in the la#s of Ethelred% @about the year !9!J%A #hich reIuire that the jurors Kshall s#ear% #ith their hands upon a holy thing% that they #ill conde(n no (an that is innocent% nor acIuit any that is guilty)K E Blac&stone% D98) 8 TurnerRs /istory of the AngloCSaxons% !JJ *il&insR La#s of the AngloCSaxons% !!1) Spel(anRs Glossary% #ord Jurata) Blac&stone assu(es that this #as the oath of the grand jury E Blac&stone% D98AS but there #as but one jury at the ti(e this oath #as ordained) The institution of t#o juries% grand and petit% too& place after the 4or(an "onIuest) /u(e% spea&ing of the ad(inistration of justice in the ti(e of Alfred% says that% in e$ery hundred% KT#el$e freeholders #ere chosen% #ho% ha$ing s#orn% together #ith the hundreder% or presiding (agistrate of that di$ision% to ad(inister i(partial justice% proceeded to the exa(ination of that cause #hich #as sub(itted to their jurisdiction)K /u(e% ch) 8) By a la# of /enry 22)% in !!ME% it #as directed that the sheriff Kfaciet jurare duodeci( legales ho(ines de $icineto seu de $illa% Iuod inde $eritate( secundu( conscientia( sua( (anifestabunt%K @shall (a&e t#el$e% legal (en fro( the

neighborhood to s#ear that they #ill (a&e &no#n the truth according to their conscience)A "rabbeRs /istory of the English La#% !!0) ! .ee$es% 61) *il&ins% D8! D8D) Glan$ille% #ho #rote #ithin the half century pre$ious to =agna "arta% saysS KEach of the &nights su((oned far this purpose @as jurorsA ought to s#ear that he #ill neither utter that #hich is false% nor &no#ingly conceal the truth)K Bea(esR Glan$ille% MJ) .ee$e calls the trial by jury Kthe trial by t#el$e (en s#orn to spea& the truth)K ! .ee$eRs /istory of the English La#% 61) /enry says that the jurors Ktoo& a sole(n oath% that they #ould faithfully discharge the duties of their office% and not suffer an innocent (an to be conde(ned% nor any guilty person to be acIuitted)K D /enryRs /ist) of Great Britain% DEM) The =irror of Justices% @#ritten #ithin a century after =agna "arta%A in the chapter on the abuses of the "o((on la#% says?K2t is abuse to use the #ords% to their &no#ledge% in their oaths% to (a&e the jurors spea& upon thoughts% since the chief #ords of their oaths be that they spea& the truth)K p) 8E0) S(ith% #riting in the ti(e of Eli;abeth% says that% in ci$il suits% the jury Kbe s#orn to declare the truth of that issue according to the e$idence% and their conscience)K S(ithRs "o((on#ealth of England) edition of !M8!% p) 1D) 2n cri(inal trials% he says? KThe cler& gi$eth the juror an oath to go uprightly bet#ixt the prince and the prisoner)K +itto% p) 09) 78E: /ale says? KThen t#el$e% and no less% of such as are indifferent and are returned upon the principal panel% or the tales% are s#orn to try the sa(e according to the e$idence)K 8 /aleRs /istory of the "o((on La#% !E!) 2t appears fro( Blac&stone that% e$en at this day% neither in ci$il nor cri(inal cases% are jurors in England s#orn to try causes according to la#) /e says tht in ci$il suits the jury are KS#orn #ell and truly to try the issue bet#een the partiesS and a true $erdict to gi$e according to the e$idence)K D Blac&stone% DMJ) KThe issueK to be tried is #hether A o#es B anything and if so% ho# (uchQ or #hether A has in his possession anything that belongs to BS or #hether A has #ronged B% and ought to (a&e co(pensationS and if so% ho# (uchQ 4o statute passed by a legislature% si(ply as a legislature% can alter either of these KissuesK in hardly any concei$able case% perhaps in none) 4o unjust la# could e$er alter the( in any) They are all

(ere Iuestions of natural justice% #hich legislatures ha$e no po#er to alter% and #ith #hich they ha$e no right to interfere% further than to pro$ide for ha$ing the( settled by the (ost co(petent and i(partial tribunal that it is practicable to ha$e% and then for ha$ing all just decisions enforced) And any tribunal% #hether judge or jury% that atte(pts to try these issues% has no (ore (oral right to be s#er$ed fro( the line of justice% by the #ill of a legislature% than by the #ill of any other body of (en #hate$er) And this oath does not reIuire or per(it a jury to be so s#er$ed) 2n cri(inal cases% Blac&stone says the oath of the jury in England is? K*ell and truly to try% and true deli$erance (a&e% bet#een our so$ereign lord% the &ing% and the prisoner #ho( they ha$e in charge% and a true $erdict to gi$e according to the e$idence)K E Blac&stone% DJJ) KThe issueK to be tried% in a cri(inal case% is Kguilty%K or Knot guilty)K The la#s passed by a legislature can rarely% if e$er% ha$e anything to do #ith this issue) KGuiltK is an intrinsic Iuality of actions% and can neither be created% destroyed% nor changed by legislation) And no tribunal that atte(pts to try this issue can ha$e any (oral right to declare a (an guilty% for an act that is intrinsically innocent% at the bidding of a legislature% any (ore than at the bidding of anybody else) And this oath does not reIuire or per(it a jury to do so) The #ords% Kaccording to the e$idence%K ha$e doubtless been introduced into the abo$e oaths in (odern ti(es) They are unIuestionably in $iolation of the "o((on La#% and of =agna "arta% if by the( be (eant such e$idence only as the go$ern(ent sees fit ft allo# to go to the jury) 2f the go$ern(ent can dictate the e$idence% and reIuire the jury to decide according to that e$idence% it necessarily dictates the conclusion to #hich they (ust arri$e) 2n that case the trial is really a trial by the go$ern(ent% and not by the jury) The jury cannot try an issue% unless they deter(ine #hat e$idence shall be ad(itted) The ancient oaths% it #ill be obser$ed% say nothing about Kaccording to the e$idence)K They ob$iously ta&e it for granted that the jury try the #hole caseS and of course that they decide #hat e$idence shall be ad(itted) 2t #ould be intrinsically an i((oral and cri(inal act for a jury to declare a (an guilty% or to declare that one (an o#ed) (oney to another% unless all the e$idence #ere ad(itted% #hich they thought ought to be ad(itted% for ascertaining the truth) 78J: Grand Jury) 2f jurors are bound to enforce all la#s passed by the legislature% it is a $ery re(ar&able fact than the oath of grand juries does not reIuire the( to be go$erned by the la#s in finding indict(ents) There ha$e been $arious for(s of oath ad(inistered to grand jurorsS but by none of the( that 2 recollect e$er to ha$e seen% except those of the States of "onnecticut and -er(ont% are they s#orn to present (en according to la#) The English for(% as gi$en in the essay on Grand Juries% #ritten near t#o hundred years ago% and supposed to ha$e been #ritten by Lord So(ers% is as follo#s? K3ou shall diligently inIuire% and true present(ent (a&e% of all such articles% (atters% and things% as shall be gi$en you in charge%

and of all other (atters and things as shall co(e to your &no#ledge touching this present ser$ice) The &ingRs council% your fello#s% and your o#n% you shall &eep secret) 3ou shall present no person for hatred or (aliceS neither shall you lea$e any one unpresented for fa$or% or affection% for lo$e or gain% or any hopes thereofS but in all things you shall present the truth% the #hole truth% and nothing but the truth% to the best of your &no#ledge) So help you God)K This for( of oath is doubtless Iuite ancient% for the essay says Kour ancestors appointedK it) See Essay% p) DD DE) 5n the obligations of this oath% the essay says?K2f it be as&ed ho#% or in #hat (anner% the @grandA juries shall inIuire% the ans#er is ready% according to the best of their understandings) They only% not the judges% are s#orn to search diligently to find out all treasons% XcS)% #ithin their charge% and they (ust and ought to use their o#n discretion in the #ay and (anner of their inIuiry) 4o directions can legally be i(posed upon there by any court or judgesS an honest jury #ill than&fully accept good ad$ice fro( judges% as their assistantsS but they are bound by their oaths to present the truth% the #hole truth% and nothing but the truth% to the best of their o#n% not the judgeRs% &no#ledge) 4either can they% #ithout breach of that oath% resign their consciences% or blindly sub(it to the dictates of othersS and therefore ought to recei$e or reject such ad$ices% as they judge the( good or bad) * *4othing can be (ore plain and express than the #ords of the oath are to this purpose) The jurors need not search the la# boo&s% nor tu(ble o$er heaps of old records% for the explanation of the() 5ur greatest la#yers (ay fro( hence learn (ore certainly our ancient la# in this case% than fro( all the boo&s in their studies) The language #herein the oath is penned is &no#n and understood by e$ery (an% and the #ords in it ha$e the sa(e signification as they ha$e #heresoe$er else they are used) The judges% #ithout assu(ing to the(sel$es a legislati$e po#er% cannot put a ne# sense upon the(% other than according to their genuine% co((on (eaning) They cannot (agisterially i(pose their opinions upon the jury% and (a&e the( forsa&e the direct #ords of their oath% to pursue their glosses) The grand inIuest are bound to obser$e ali&e strictly e$ery part of their oath% and to use all just and proper #ays #hich (ay enable the( to perfor( itS other#ise it #ere to say% that after (en had s#orn to inIuire diligently after the truth% according to the best of their &no#ledge% they #ere bound to forsa&e all the natural and proper (eans #hich their understandings suggest for the disco$ery of it% if it be co((anded by the judges)K Lord So(ersR Essay on Grand Juries% p) 66) *hat is here said so plainly and forcibly of the oath and obligations of grand juries% is eIually applicable to the oath and obligations of petit juries) 2n both cases the si(ple oaths of the jurors% and not the instructions of the judges% nor the statutes of &ings nor legislatures% are their legal guides to their duties) 78M: SE"T254 2-) The .ight of Juries to fix the Sentence) The nature of the co((on la# courts existing prior to =agna "arta% such as the county courts% the hundred courts% the courtCleet% and the courtCbaron% all pro$e% #hat has already been pro$ed fro( =agna "arta% that% in jury trials% the juries fixed the sentenceS

because% in those courts% there #as no one but the jury #ho could fix it% unless it #ere the sheriff% bailiff% or ste#ardS and no one #ill pretend that it #as fixed by the() The juries unIuestionably ga$e the Kjudg(entK in both ci$il and cri(inal cases) That the juries #ere to fix the sentence under =agna "arta% is also sho#n by statutes subseIuent to =agna "arta) A statute passed fiftyCone years after =agna "arta% says that a ba&er% for default in the #eight of his bread% Kdebeat a(erciari $el subire judiciu( pilloae%K that is% Kought to be a(erced% or suffer the sentence of the pillory)K And that a bre#er% for Kselling ale% contrary to the assi;e%K Kdebeat a(erciari% $el pati judiciu( tu(brelliSK that is% Kought to be a(erced% or suffer judg(ent of the tu(brel)K J! /enry 222)% st) M) @!8MM)A 2f the &ing @the legislati$e po#erA had had authority to fix the punish(ents of these offences i(perati$ely% he #ould naturally ha$e said these offenders shall be a(erced% and shall suffer judg(ent of the pillory and tu(brel% instead of thus si(ply expressing the opinion that they ought to be punished in that (anner) The statute of *est(inster% passed sixty years after =agna "arta% pro$ides that%K4o city% borough% nor to#n% nor any (an% be a(erced% #ithout reasonable cause% and according to the Iuantity of the trespassS that is to say% e$ery free(an sa$ing his freehold% a (erchant sa$ing his (erchandise% a $illein his #aynage% and that by his or their peers)K D Ed#ard 2)% ch) M) @!81J)A The sa(e statute @ch) !6A pro$ides further% that%K,oras(uch as the co((on fine and a(erce(ent of the #hole county in Eyre of the justices for false judg(ents% or for other trespass% is unjustly assessed by sheriffRs and baretors in the shires% so that the su( is (any ti(es increased% and the parcels other#ise assessed than they ought to be% to the da(age of the people% #hich be (any ti(es paid to the sheriffs and baretors% #hich do not acIuit the payersS it is pro$ided% and the &ing #ills% that fro( henceforth such su(s shall be assessed before the justices in Eyre% afore their departure% by the oath of &nights and other honest (en% upon all such as ought to payS and the justices shall cause the parcels to be put into their estreats% #hich shall be deli$ered up unto the excheIuer% and not the #hole su()K St) D Ed#ard 2)% ch) !6% @!81J)A 781: The follo#ing statute% passed in !DE!% one hundred and t#entyCfi$e years after =agna "arta% pro$iding for the trial of peers of the real(% and the &ingRs (inisters% contains a recognition of the principle of =agna "arta% that the jury are to fix the sentence) K*hereas before this ti(e the peers of the land ha$e been arrested and i(prisoned% and their te(poralities% lands% and tenei(ents% goods and cattels% assei;ed in the &ingRs hands% and so(e put to death #ithout judg(ent of their peers? 2t is accorded and assented% that no peer of the land% officer% nor other% because of his office% nor of things touching his office% nor by other cause% shall be brought in judg(ent to lose his te(poralities% lands% tene(ents% goods and cattels% nor to be arrested% nor i(prisoned% outla#ed% exiled% nor forejudged% nor put to ans#er% nor be judged% but by a#ard @sentenceA of the said peers in Parlia(ent)K !J Ed#ard 222)%

st) !% sec) 8) Section E% of the sa(e statute pro$ides% KThat in e$ery Parlia(ent% at the third day of e$ery Parlia(ent) the &ing shall ta&e in his hands the offices of all the (inisters aforesaid%K @that is% Kthe chancellor% treasurer% barons% and chancellor of the excheIuer% the justices of the one bench and of the other% justices assigned in the country% ste#ard and cha(berlain of the &ingRs house% &eeper of the pri$y seal% treasurer of the #ardrobe% controllers% and they that be chief deputed to abide nigh the &ingRs son% +u&e of "orn#all%KA Kand so they shall abide four or fi$e daysS except the offices of justices of the one place or the other% justices assigned% barons of excheIuerS so al#ays that they and all other (inisters be put to ans#er to e$ery co(plaintS and if default be found in any of the said (inisters% by co(plaint or other (anner% and of that attainted in Parlia(ent% he shall be punished by judg(ent of the peers% and put out of his office% and another con$enient put in his place) And upon the sa(e our said so$ereign lord the &ing shall do @causeA to be pronounced and (ade execution #ithout delay% according to the judg(ent @sentenceA of the said peers in the Parlia(ent)K /ere is an ad(ission that the peers #ere to fix the sentence% or judg(ent% and the &ing pro(ises to (a&e execution Kaccording toK that sentence) And this appears to be the la#% under #hich peers of the real( and the great officers of the cro#n #ere tried and sentenced% for four hundred years after its passage% and% for aught 2 &no#% until this day) The first case gi$en in /argra$eRs collection of English State Trials% is that of Alexander 4e$il% Archbishop of 3or&% .obert -ere +u&e of 2relandS =ichael de la Pole% Earl of Suffol&% and .obert Tresilian% Lord "hief Justice of England% #ith se$eral others% con$icted of treason% before Kthe Lords of Parlia(ent%K in !D66) The sentences in these cases #ere adjudged by the KLords of Parlia(ent%K in the follo#ing ter(s% as they are reported) K*herefore the said Lords of Parlia(ent% there present% as judges in Parlia(ent% in this case% by assent of the &ing% pronounced their sentence% and did adjudge the said archbishop% du&e% and earl% #ith .obert Tresilian% so appealed% as aforesaid% to be guilty% and con$icted of treason% and to be dra#n and hanged% as traitors and ene(ies to the &ing and &ingdo(S and that their heirs should be disinherited fore$er% and their lands and tene(ents% goods and chattels% forfeited to the &ing% and that the te(poralities of the Archbishop of 3or& should be ta&en into the &ingRs hands)K Also% in the sa(e case% Sir John /olt% Sir *illia( Burgh% Sir John "ary% Sir .oger ,ulthorpe% and John Locton% K#ere by the lords te(poral% by the assent of the &ing% adjudged to be dra#n and hanged% as traitors% their heirs disinherited% and their lands and tene(ents% goods and chattels% to be forfeited to the &ing)K Also% in the sa(e case% John Bla&e% Kof council for the &ing%K and

Tho(as <s&e% under sheriff of =iddlesex% ha$ing been con$icted of treason% KThe lords a#arded% by assent of the &ing% that they should both be hanged and dra#n as traitors% as open ene(ies to the &ing and &ingdo(% and their heirs disinherited fore$er% and their lands and tene(ents% goods and chattels% forfeited to the &ing)K Also% KSi(on Burleigh% the &ingRs cha(berlain%K being con$icted of treason% Kby joint consent of the &ing and the lords% sentence #as pronounced against the said Si(on Burleigh% that he should be dra#n fro( the to#n to Tyburn% and there be hanged till he be dead% and then ha$e his head struc& fro( his body)K Also% KJohn Beaucha(p% ste#ard of the household to the &ing% Ja(es Bero$erse% and John SalisburyS &nights% gentle(en of the pri$y cha(ber% #ere in li&e (anner conde(ned)K ! /argra$eRs State Trials% first case) /ere the sentences #ere all fixed by the peers% #ith the assent of the &ing) But that the &ing should be consulted% and his assent obtained to the sentence pronounced by the peers% does not i(ply any deficiency of po#er on their part to fix the sentence independently of the &ing) There are ob$ious reasons #hy they (ight choose to consult the &ing% and obtain his approbation of the sentence they #ere about to i(pose% #ithout supposing any legal necessity for their so doing) So far as #e can gather fro( the reports of state trials% peers of the real( #ere usually sentenced by those #ho tried the(% #ith the assent of the &ing) But in so(e instances no (ention is (ade of the assent of the &ing% as in the case of KLionel% Earl of =iddlesex% Lord /igh Treasurer of England%K in !M8E% @four hundred years after =agna "arta%A #here the sentence #as as follo#s? KThis /igh "ourt of Parlia(ent doth adjudge% that Lionel% Earl of =iddlesex% no# Lord Treasurer of England% shall lose all his offices #hich he holds in this &ingdo(% and shall% hereafter% be (ade incapable of any office% place% or e(ploy(ent in the state and co((on#ealth) That he shall be i(prisoned in the to#er of London% during the &ingRs pleasure) That he shall pay unto our so$ereign lord the &ing a fine of J9%999 pounds) That he shall ne$er sit in Parlia(ent any (ore% and that he shall ne$er co(e #ithin the $erge of the court)K 8 /o#ellRs Stale Trials% !8J9) /ere #as a peer of the real(% and a (inister of the &ing% of the highest gradeS and if it #ere e$er necessary to obtain the assent of the &ing to sentences pronounced by the peers% it #ould unIuestionably ha$e been obtained in this instance% and his assent #ould ha$e appeared in the sentence) Lord Bacon #as sentenced by the /ouse of Lords% @lM89%A no (ention being (ade of the assent of the &ing) The sentence is in these #ords? KAnd% therefore% this /igh "ourt doth adjudge% That the Lord -iscount St) Albans% Lord "hancellor of England% shall undergo fine and ranso( of E9%999 pounds) That he shall be i(prisoned in the to#er during the &ingRs pleasure) That he shall fore$er be

incapable of any office% place% or e(ploy(ent in the state or co((on#ealth) That he shall ne$er sit in Parlia(ent% nor co(e #ithin the $erge of the court)K And #hen it #as de(anded of hi(% before sentence% #hether it #ere his hand that #as subscribed to his confession% and #hether he #ould stand to itS he (ade the follo#ing ans#er% #hich i(plies that the lords #ere the ones to deter(ine his sentence) K=y lords% it is (y act% (y hand% (y heart) 2 beseech your lordships to be (erciful to a bro&en reed)K ! /argra$eRs State Trials% 66M 1) The sentence against "harles the ,irst% @!ME6%A after reciting the grounds of his conde(nation% concludes in this for(? K,or all #hich treasons and cri(es% this court doth adjudge% that he% the said "harles Stuart% as a tyrant% traitor% (urderer% and public ene(y to the good people of this nation% shall be put to death by the se$ering his head fro( his body)K The report then adds? KThis sentence being read% the president @of the courtA spa&e as follo#eth? RThis sentence no# read and published% is the act% sentence% judg(ent and resolution of the #hole court)R ! /argra$eRs State Trials% !9D1) <nless it had been the recei$ed Kla# of the landK that those #ho tried a (an should fix his sentence% it #ould ha$e reIuired an act of Parlia(ent to fix the sentence of "harles% and his sentence #ould ha$e been declared to be Kthe sentence of the la#%K instead of Kthe act% sentence% judg(ent% and resolution of the court)K But the report of the proceedings in Kthe trial of Tho(as% Earl of =acclesfield% Lord /igh "hancellor of Great Britain% before the /ouse of Lords% for high cri(es and (isde(eanors in the execution of his office%K in !18J% is so full on this point% and sho#s so clearly that it rested #holly #ith the lords to fix the sentence% and that the assent of the &ing #as #holly unnecessary% that 2 gi$e the report so(e#hat at length) After being found guilty% the earl addressed the lords% for a (itigation of sentence% as follo#s? K2 a( no# to expect your lordshipsR judg(entS and 2 hope that you #ill be pleased to consider that 2 ha$e suffered no s(all (atter already in the trial% in the expense 2 ha$e been at% the fatigue% and #hat 2 ha$e suffered other#ays) * * 2 ha$e paid bac& !9%699 pounds of the (oney alreadyS 2 ha$e lost (y officeS 2 ha$e undergone the censure of both houses of Parlia(ent% #hich is in itself a se$ere punish(ent%R KXcS)% XcS) 5n being interrupted% he proceeded? K=y lords% 2 sub(it #hether this be not proper in (itigation of your lordshipsR sentenceS but #hether it be or not% 2 lea$e (yself to your lordshipsR justice and (ercyS 2 a( sure neither of the( #ill be #anting% and 2 entirely sub(it)R * * *

KThen the said earl% as also the (anagers% #ere directed to #ithdra#S and the /ouse @of LordsA ordered Tho(as% Earl of =acclesfield% to be co((itted to the custody of the gentle(an usher of the blac& rodS and then proceeded to the consideration of #hat judg(ent%K @that is% sentence% for he had already been found guilty%A Kto gi$e upon the i(peach(ent against the said earl)K KThe next day% the "o((ons% #ith their spea&er% being present at the bar of the /ouse @of LordsA% * * * the spea&er of the /ouse of "o((ons said as follo#s? K=y Lords% the &nights% citi;ens% and burgesses in Parlia(ent asse(bled% in the na(e of the(sel$es% and of all the co((ons of Great Britain% did at this bar i(peach Tho(as% Earl of =acclesfield% of high cri(es and (isde(eanors% and did exhibit articles of i(peach(ent against hi(% and ha$e (ade good their charge) 2 do% therefore% in the na(e of the &nights% citi;ens% and burgesses% in Parlia(ent asse(bled% and of all the co((ons of Great Britain% de(and judg(ent @sentenceA of your lordships against Tho(as% Earl of =acclesfield% for the said high cri(es and (isde(eanors)R KThen the Lord "hief Justice Uing% Spea&er of the /ouse of Lords% said? R=r) Spea&er% the Lords are no# ready to proceed to judg(ent in the case by you (entioned)R KTho(as% Earl of =acclesfielg% the Lords ha$e unani(ously found you guilty of high cri(es and (isde(eanors% charged on you by the i(peach(ent of the /ouse of "o((ons% and do no#% according to la#% proceed to judg(ent against you% #hich 2 a( ordered to pronounce) Their lordshipsR judg(ent is% and this high court doth adjudge% that you% Tho(as% Earl of =acclesfield% be fined in the su( of thirty thousand pounds unto our so$ereign lord the &ingS and that you shall be i(prisoned in the to#er of London% and there &ept in safe custody% until yon shall pay the said fine)RK M /argra$eRs State Trials% 1M8 D E) This case sho#s that the principle of =agna "arta% that a (an should be sentenced only by his peers% #as in force% and acted upon as la#% in England% so lately as !18J% @fi$e hundred years after =agna "arta%A so far as it applied to a peer of the real(% a se$ere punish(ent%K ect)% ect) But the sa(e principle% on this point% that applies to a peer of the real(% applies to e$ery free(an) The only difference bet#een the t#o is% that the peers of the real( ha$e had influence enough to preser$e their constitutional rightsS #hile the constitutional rights of the people ha$e been tra(pled upon and rendered obsolete by the usurpation and corruption of the go$ern(ent and the courts) SE"T254 -) The 5aths of Judges

As further proof that the legislation of the &ing% #hether enacted #ith or #ithout the assent and ad$ice of his parlia(ents% #as of no authority unless it #ere consistent #ith the co((on la#% and unless juries and judges sa# fit to enforce it% it (ay be (entioned that it is probable that no judge in England #as e$er s#orn to obser$e the la#s enacted either by the &ing alone% or by the &ing #ith the ad$ice and assent of parlia(ent) The judges #ere s#orn to Kdo eIual la#% and execution of right% to all the &ingRs subjects% rich and poor% #ithout ha$ing regard to any personSK and that they #ill Kdeny no (an co((on rightSK 786: but they #ere not s#orn to obey or execute any statutes of the &ing% or of the &ing and parlia(ent) 2ndeed% they are $irtually s#orn not to obey any statutes that are against Kco((on right%K or contrary to Kthe co((on la#%K or Kla# of the landSK but to Kcertify the &ing thereofK that is% notify hi( that his statutes are against the co((on la#S and then proceed to execute the co((on la#% not#ithstanding such legislation to the contrary) The #ords of the oath on this point are these? KThat ye deny no (an co((on right by @$irtue ofA the &ingRs letters% nor none other (anRs% nor for none other causeS and in case any letters co(e to you contrary to the la#% @that is% the co((on la#% as #ill be seen on reference to the entire oath gi$en in the note%A that ye do nothing by such letters% but certify the &ing thereof% and proceed to execute the la#% @that is% the co((on la#%A not#ithstanding the sa(e letters)K *here it is considered that the &ing #as the sole legislati$e po#er% and that he exercised this po#er% to a great extent% by orders in council% and by #rits and KlettersK addressed oftenti(es to so(e sheriff% or other person% and that his co((ands% #hen co((unicated to his justices% or any other person% Kby letters%K or #rits% under seal% had as (uch legal authority as la#s pro(ulgated in any other for( #hate$er% it #ill be seen that this oath of the justices absolutely reIuired that they disregard any legislation that #as contrary to Kco((on right%K or Kthe co((on la#%K and notify the &ing that it #as contrary to co((on right% or the co((on la#% and then proceed to execute the co((on la#% not#ithstanding such legislation) 780: 2f there could be any doubt that such #as the (eaning of this oath% that doubt #ould be re(o$ed by a statute passed by the &ing t#o years after#ards% #hich fully explains this oath% as follo#s? KEd#ard% by the Grace of God% ect)% to the Sheriff of Stafford% greeting? Because that by di$ers co(plaints (ade to us% #e ha$e percei$ed that the La# of the Land% #hich #e by our oath are bound to (aintain% is the less #ell &ept% and the execution of the sa(e disturbed (any ti(es by (aintenance and procure(ent% as #ell in the court as in the countryS #e greatly (o$ed of conscience in this (atter% and for this cause desiring as (uch for

the pleasure of God% and ease and Iuietness of our subjects% as to sa$e our conscience% and for to sa$e and &eep our said oath% by the assent of the great (en and other #ise (en of our council% #e ha$e ordained these things follo#ing? K,irst% #e ha$e co((anded all our justices% that they shall fro( henceforth do eIual la# and execution of right to all our subjects% rich and poor% #ithout ha$ing regard to any person% and #ithout o(itting to do right for any letters or co((and(ent #hich (ay co(e to the( fro( us% or fro( any other% or by any other cause) And if that any letters% #rits% or co((and(ents co(e to the justices% or to other deputed to do la# and right according to the usage of the real(% in disturbance of the la#% or of the execution of the sa(e% or of right to the parties% the justices and other aforesaid shall proceed and hold their courts and processes% #here the pleas and (atters be depending before the(% as if no such letters% #rits% or co((and(ents #ere co(e to the(S and they shall certify us and our council of such co((and(ents #hich be contrary to the la#% @that is% Kthe la# of the land%K or co((on la#%A as afore is said)K 7D9: And to the intent that our justices% shall do e$en right to all people in the (anner aforesaid% #ithout (ore fa$or sho#ing to one than to another% #e ha$e ordained and caused our said justices to be s#orn% that they shall not fro( henceforth% as long as they shall be in the office of justice% ta&e fee nor robe of any (an% but of ourself% and that they shall ta&e no gift nor re#ard by the(sel$es% nor by other% pri$ily nor apertly% of any (an that hath to do before the( by any #ay% except (eat and drin&% and that of s(all $alue? and that they shall gi$e no counsel to great (en or s(all% in case #here #e be party% or #hich do or (ay touch us in any point% upon pain to be at our #ill% body% lands% and goods% to do thereof as shall please us% in case they do contrary) And for this cause #e ha$e increased the fees of the sa(e% our justices% in such (anner as it ought reasonably to suffice the()K 89 Ed#ard 222)% ch) l) @!DEM)A 5ther statutes of si(ilar tenor ha$e been enacted as follo#s? K2t is accorded and established% that it shall not be co((anded by the great seal% nor the little seal% to disturb or delay co((on rightS and though such co((and(ents do co(e% the justices shall not therefore lea$e @o(itA to do right in any point)K St) 8 Ed#ard 222)% ch) 6) @!D86)A KThat by co((and(ent of the great seal% or pri$y seal% no point of this statute shall be put in delayS nor that the justices of #hatsoe$er place it be shall

let @o(itA to do the co((on la#% by co((and(ent% #hich shall co(e to the( under the great seal% or the pri$y seal)K !E Ed#ard 222% st) !% ch) !E) @!DE9)A K2t is ordained and established% that neither letters of the signet% nor of the &ingRs pri$y seal% shall be fro( henceforth sent in da(age or prejudice of the real(% nor in disturbance of the la#K @the co((on la#A) !! .ichard 22)% ch) !9) @!D61)A 2t is perfectly apparent fro( these statutes% and fro( the oath ad(inistered to the justices% that it #as a (atter freely confessed by the &ing hi(self% that his statutes #ere of no $alidity% if contrary to the co((on la#% or Kco((on right)K The oath of the justices% before gi$en% is% 2 presu(e% the sa(e that has been ad(inistered to judges in England fro( the day #hen it #as first prescribed to the(% @!DEE%A until no#) 2 do not find fro( the English statutes that the oath has e$er been changed) The Essay on Grand Juries% before referred to% and supposed to ha$e been #ritten by Lord So(ers% (entions this oath @page 1DA as being still ad(inistered to judges% that is% in the ti(e of "harles 22)% (ore than three hundred years after the oath #as first ordained) 2f the oath has ne$er been changed% it follo#s that judges ha$e not only ne$er been s#orn to support any statutes #hate$er of the &ing% or of parlia(ent% but that% for fi$e hundred years past% they actually ha$e been s#orn to treat as in$alid all statutes that #ere contrary to the co((on la#) SE"T254 -2) The "oronation 5ath) That the legislation of the &ing #as of no authority o$er a jury% is further pro$ed by the oath ta&en by the &ings at their coronation) This oath see(s to ha$e been substantially the sa(e% fro( the ti(e of the Saxon &ings% do#n to the se$enteenth century% as #ill be seen fro( the authorities hereafter gi$en) The purport of the oath is% that the &ing s#ears to (aintain the la# of the land that is% the co((on la#) 2n other #ords% he s#ears Kto concede and preser$e to the English people the la#s and custo(s conceded to the( by the ancient% just% and pious English &ings% * * and especially the la#s% custo(s% and liberties conceded to the clergy and people by the illustrious &ing Ed#ardSK * * and Kthe just la#s and custo(s #hich the co((on people ha$e chosen% @Iuas $ulgus elegitA)K These are the sa(e la#s and custo(s #hich #ere called by the general na(e of Kthe la# of the land%K or Kthe co((on la#%K and% #ith so(e slight additions% #ere

e(bodied in =agna "arta) This oath not only forbids the &ing to enact any statutes contrary to the co((on la#% but it pro$es that his statutes could be of no authority o$er the consciences of a juryS since% as has already been sufficiently sho#n% it #as one part of this $ery co((on la# itself% that is% of the ancient Kla#s% custo(s% and liberties%K (entioned in the oath% that juries should judge of all Iuestions that ca(e before the(% according to their o#n consciences% independently of the legislation of the &ing) 2t #as i(possible that this right of the jury could subsist consistently #ith any right% on the part of the &ing% to i(pose any authoritati$e legislation upon the() /is oath% therefore% to (aintain the la# of the land% or the ancient Kla#s% custo(s% and liberties%K #as eIui$alent to an oath that he #ould ne$er assu(e to i(pose la#s upon juries% as i(perati$e rules of decision% or ta&e fro( the( the right to try all cases according to their o#n consciences) 2t is also an ad(ission that he had no constitutional po#er to do so% if he should e$er desire it) This oath% then% is conclusi$e proof that his legislation #as of no authority #ith a jury% and that they #ere under no obligation #hate$er to enforce it% unless it coincided #ith their o#n ideas of justice) The ancient coronation oath is printed #ith the Statutes of the .eal(% $ol) i)% p) !M6% and is as follo#s? 7D!: T.A4SLAT254) K,or( of the 5ath of the Uing of England% on his "oronation) @The Archbishop of "anterbury% to #ho(% of right and custo( of the "hurch of "anterbury% ancient and appro$ed% it pertains to anoint and cro#n the &ings of England% on the day of the coronation of the &ing% and before the &ing is cro#ned% shall propound the under#ritten Iuestions to the &ing)A The la#s and custo(s% conceded to the English people by the ancient% just% and pious English &ings% #ill you concede and preser$e to the sa(e people% #ith the confir(ation of an oathQ and especially the la#s% custo(s% and liberties conceded to the clergy and people by the illustrious &ing Ed#ardQ @And the &ing shall ans#er%A 2 do concede% and #ill preser$e the(% and confir( the( by (y oath) *ill yon preser$e to the church of God% the clergy% and the people% entire peace and har(ony in God% according to your po#ersQ @And the &ing shall ans#er%A 2 #ill)

2n all your judg(ents% #ill you cause eIual and right justice and discretion to be done% in (ercy and truth% according to your po#ersQ @And the &ing shall ans#er%A 2 #ill) +o you concede that the just la#s and custo(s% #hich the co((on people ha$e chosen% shall be preser$edS and do you pro(ise that they shall be protected by you% and strengthened to the honor of God% according to your po#ersQ @And the &ing shall ans#er%A 2 concede and pro(ise)K The language used in the last of these Iuestions% K+o you concede that the just la#s and custo(s% #hich the co((on people ha$e chosen% @Iuas $ulgus elegit%A shall be preser$edQK ect)% is #orthy of especial notice% as sho#ing that the la#s% #hich #ere to be preser$ed% #ere not necessarily all the la#s #hich the &ings enacted% but only such of the( as the co((on people had selected or appro$ed) And ho# had the co((on people (ade &no#n their approbation or selection of these la#sQ Plainly% in no other #ay than this that the juries co(posed of the co((on people had $oluntarily enforced the() The co((on people had no other legal for( of (a&ing &no#n their approbation of particular la#s) The #ord Kconcede%K too% is an i(portant #ord) 2n the English statutes it is usually translated grant as if #ith an intention to indicate that Kthe la#s% custo(s% and libertiesK of the English people #ere (ere pri$ileges% granted to the( by the &ingS #hereas it should be translated concede% to indicate si(ply an ac&no#ledg(ent% on the part of the &ing% that such #ere the la#s% custo(s% and liberties% #hich had been chosen and established by the people the(sel$es% and of right belonged to the(% and #hich he #as bound to respect) 2 #ill no# gi$e so(e authorities to sho# that the foregoing oath has% in substance% been the coronation oath fro( the ti(es of *illia( the "onIueror% @!9MM%A do#n to the ti(e of Ja(es the ,irst% and probably until !M66) 2t #ill be noticed% in the Iuotation fro( Uelha(% that he says this oath @or the oath of *illia( the "onIuerorA is Kin sense and substance the $ery sa(e #ith that #hich the Saxon &ings used to ta&e at their coronations)K /ale says? K3et the English #ere $ery ;ealous for the(%K @that is% for the la#s of Ed#ard the "onfessor%A Kno less or other#ise than they are at this ti(e for the Great "harterS inso(uch

that they #ere ne$er satisfied till the said la#s #ere reenforced% and (ingled% for the (ost part% #ith the coronation oath of &ing *illia( 2)% and so(e of his successors)K ! /aleRs /istory of "o((on La#% !J1) Also% K*illia(% on his coronation% had s#orn to go$ern by the la#s of Ed#ard the "onfessor% so(e of #hich had been reduced into #riting% but the greater part consisted of the i((e(orial custo(s of the real()K +itto% p) 898% note L) Uelha( says? KThus stood the la#s of England at the entry of *illia( 2)% and it see(s plain that the la#s% co((only called the la#s of Ed#ard the "onfessor% #ere at that ti(e the standing la#s of the &ingdo(% and considered the great rule of their rights and libertiesS and that the Eriglish #ere so ;ealous for the(% Rthat they #ere ne$er satisfied till the said la#s #ere reenforced% and (ingled% for the (ost part% #ith the coronation oath)R Accordingly% #e find that this great conIueror% at his coronation on the "hrist(as day succeeding his $ictory% too& an oath at the altar of St) Peter% *est(inster% in sense and substance the $ery sa(e #ith that #hich the Saxon &ings used to ta&e at their coronations) * * And at Bar&ha(stead% in the fourth year of his reign% in the presence of Lanfranc% Archbishop of "anterbury% for the Iuieting of the people% he s#ore that he #ould in$iolably obser$e the good and appro$ed ancient la#s #hich had been (ade by the de$out and pious &ings of England% his ancestors% and chiefly by Uing Ed#ardS and #e are told that the people then departed in good hu(or)K Uelha(Rs Preli(inary +iscourse to the La#s of *illia( the "onIueror) See% also% ! /aleRs /istory of the "o((on La#% !6M) "rabbe says that *illia( the "onIueror Ksole(nly s#ore that he #ould obser$e the good and appro$ed la#s of Ed#ard the "onfessor)K "rabbeRs /istory of the English La#% p) ED) The successors of *illia(% up to the ti(e of =agna "arta% probably all too& the sa(e oath% according to the custo( of the &ingdo(S although there (ay be no historical accounts extant of the oath of each separate &ing) But history tells us specially that /enry 2)% Stephen% and /enry 22)% confir(ed these ancient la#s and custo(s) 2t appears% also% that the barons desired of John @#hat he after#ards granted by =agna "artaA Kthat the la#s and liberties of Uing Ed#ard% #ith other pri$ileges granted to the &ingdo( and church of England% (ight be confir(ed% as they #ere contained in the charters of /enry the ,irstS further alleging% that at the ti(e of his absolution% he pro(ised by his oath to obser$e these $ery la#s and liberties)K EchardRs /istory of England% p) !9J M) 2t #ould appear% fro( the follo#ing authorities% that since =agna "arta the for( of the coronation oath has been Kto (aintain the la# of the land%K (eaning that la# as e(bodied in =agna "arta) 5r perhaps it is (ore probable that

the ancient for( has been still obser$ed% but that% as its substance and purport #ere Kto (aintain the la# of the land%K this latter for( of expression has been used% in the instances here cited% fro( (oti$es of bre$ity and con$enience) This supposition is the (ore probable% fro( the fact that 2 find no statute prescribing a change in the for( of the oath until !M66) That =agna "arta #as considered as e(bodying Kthe la# of the land%K or Kco((on la#%K is sho#n by a statute passed by Ed#ard 2)% #herein he Kgrants%K or concedes% KThat the "harter of Liberties and the "harter of the ,orest * * shall be &ept in e$ery point% #ithout breach% * * and that our justices% sheriffs% (ayors% and other (inisters% #hich% under us% ha$e the la#s of our land 7D8: to guide% shall allo# the said charters pleaded before the( in judg(ent% in all their points% that is% to #it% the Great "harter as the "o((on La#% and the "harter of the ,orest for the #ealth of the real() KAnd #e #ill% that if any judg(ent be gi$en fro( henceforth% contrary to the points of the charters aforesaid% by the justices% or by any other our (inisters that hold plea before the( against the points of the charters% it shall be undone% and holden for naught)K 8J Ed#ard 2)% ch) ! and 8) @!801)A Blac&stone also says? K2t is agreed by all our historians that the Great "harter of Uing John #as% for the (ost part% co(piled fro( the ancient custo(s of the real(% or the la#s of Ed#ard the "onfessorS by #hich they usually (ean the old co((on la# #hich #as established under our Saxon princes)K Blac&stoneRs 2ntroduction to the "harters) See Blac&stoneRs La# Tracts% 860) "rabbe says? K2t is ad(itted% on all hands% that it @=agna "artaA contains nothing but #hat #as confir(atory of the co((on la#% and the ancient usages of the real(% and is% properly spea&ing% only an enlarge(ent of the charter of /enry 2)% and his successors)K "rabbeRs /istory of the English La#% p) !81) That the coronation oath of the &ings subseIuent to =agna "arta #as% in substance% if not in for(% Kto (aintain this la# of the land% or co((on la#%K is sho#n by a statute of Ed#ard Third% co((encing as follo#s? KEd#ard% by the Grace of God% ect)% ect)% to the Sheriff of Stafford% Greeting? Because that by di$ers co(plaints (ade to us% #e ha$e percei$ed that the la# of the land% #hich #e by oath are bound to (aintain%K ect) St) 89 Ed#ard 222) @!DEM)A The follo#ing extract fro( Lord So(ersR tract on Grand Juries sho#s that the coronation oath continued the sa(e as late as !M!M% @four hundred years after =agna "arta)A /e says? KUing Ja(es% in his speech to the judges% in the Star "ha(ber%

Anno !M!M% told the(% RThat he had% after (any years% resol$ed to rene# his oath% (ade at his coronation% concerning justice% and the pro(ise therein contained for (aintaining the la# of the land)R And% in the next page sa$e one% says% R2 #as s#orn to (aintain the la# of the land% and therefore had been perjured if 2 had bro&en it) God is (y judge% 2 ne$er intended it)R KSo(ers on Grand Juries% p) 68) 2n !M66% the coronation oath #as changed by act of Parlia(ent% and the &ing #as (ade to s#ear? KTo go$ern the people of this &ingdo( of England% and the do(inions thereto belonging% according to the statutes in Parlia(ent agreed on% and the la#s and custo(s of the sa(e)K St) ! *illia( and =ary% ch) M) @!M66)A The effect and legality of this oath #ill hereafter be considered) ,or the present it is sufficient to sho#% as has been already sufficiently done% that fro( the Saxon ti(es until at least as lately as !M!M% the coronation oath has been% in substance% to (aintain the la# of the land% or the co((on la#% (eaning thereby the ancient Saxon custo(s% as e(bodied in the la#s of Alfred% of Ed#ard the "onfessor% and finally in =agna "arta) 2t (ay here be repeated that this oath plainly pro$es that the statutes of the &ing #ere of no authority o$er juries% if inconsistent #ith their ideas of rightS because it #as one part of the co((on la# that juries should try all causes according to their o#n consciences% any legislation of the &ing to the contrary not#ithstanding)7DD: 7!: /ale says?KThe trial by jury of t#el$e (en #as the usual trial a(ong the 4or(ans% in (ost suitsS especially in assi;es% et juris utru()K ! /aleRs /istory of the "o((on La#% 8!0 This #as in 4or(andy% before the conIuest of England by the 4or(ans) See +itto% p) 8!6) "rabbe says?K2t cannot be denied that the practice of sub(itting causes to the decision of t#el$e (en #as uni$ersal a(ong all the northern tribes @of EuropeA fro( the $ery re(otest antiIuity)K "rabbeRs /istory of the English La#% p) D8) 78: KThe people% #ho in e$ery general council or asse(bly could oppose and dethrone their so$ereigns% #ere in little dread of their encroach(ents on their libertiesS and &ings% #ho found sufficient e(ploy(ent in &eeping possession of their cro#ns% #ould not li&ely attac& the (ore i(portant pri$ileges of their subjects)K 7D: This office #as after#ards co((itted to sheriffs) But e$en #hile the court #as held by the lord% Kthe Lord #as not judge% but the Pares @peersA only)K Gilbert on the "ourt of ExcheIuer% M!C8) 7E: The opinion expressed in the text% that the *itan had no

legislati$e authority% is corroborated by the follo#ing authorities? K,ro( the fact that the ne# la#s passed by the &ing and the *itan #ere laid before the shireC(ote% @county court%A #e should be al(ost justified in the inference that a second sanction #as necessary before they could ha$e the effect of la# in that particular county)K +urha(Rs =iddle Ages% Sec) 8% B) 8% "h) l) J1 LardnerRs "ab) "yc)% JD) The Ksecond sanctionK reIuired to gi$e the legislation of the &ing and *itan the effect of la#% #as undoubtedly% 2 thin&% as a general thing% the sanction of a jury) 2 &no# of no e$idence #hate$er that la#s #ere e$er sub(itted to popular $ote in the county courts% as this author see(s to suppose possible) Another (ode% so(eti(es resorted to for obtaining the sanction of the people to the la#s of the *itan% #as% it see(s% to persuade the people the(sel$es to s#ear to obser$e the() =ac&intoshsays? KThe prea(bles of the la#s @of the *itanA spea& of the infinite nu(ber of liege(en #ho attended% as only applauding the (easures of the asse(bly) But this applause #as neither so uni(portant to the success of the (easures% nor so precisely distinguished fro( a share in legislation% as those #ho read history #ith a (odern eye (ight i(agine) 2t appears that under Athelstan expedients #ere resorted to% to obtain a consent to the la# fro( great bodies of the people in their districts% #hich their nu(bers rendered i(possible in a national asse(bly) That (onarch appears to ha$e sent co((issioners to hold shireCge(otes or county (eetings% #here they proclai(ed the la#s (ade by the &ing and his counsellors% #hich% being ac&no#ledged and s#orn to at these fol&C(otes @(eetings of the peopleA beca(e% by their assent% co(pletely binding on the #hole nation)K =ac&intoshRs /ist) of England% "h) 8) EJ LardnerRs "ab) "c)% 1J) 7J: Page D!) 7M: /alla( says% K2t #as% ho#e$er% to the county court that an English free(an chiefly loo&ed for the (aintenance of his ci$il rights)K 8 =iddle Ages% D08) Also% KThis @the county courtA #as the great constitutional judicature in all IuesC tions of ci$il right)K +itto% D0J) Also% KThe liberties of these AngloCSaxon thanes #ere chiefly secured% next to their s#ords and their free spirits% by the inesti(able right of deciding ci$il and cri(inal suits in their o#n county courts)K +itto% 600) 71: KAlfred (ay% in one sense% be called the founder of these la#s% @the Saxon%A for until his ti(e they #ere an un#rittencode% but he expressly says% Rthat 2% Alfred% collected the good la#s of our forefathers into one code% and also 2 #rote the( do#nR CC #hich is a decisi$e fact in the history of our la#s #ell #orth noting)K 2ntroduction to GilbertRs /istory of the "o((on Pleas% p) 8% note) Uelha( says% KLet us consult our o#n la#yers and historians% and

they #ill tell as that Alfred% Edgar% and Ed#ard the "onfessor% #ere the great co(pilers and restorers of the English La#s)K Uelha(Rs Preli(inary +iscourse to the La#s of *illia( the "onIueror% p) !8) Appendix to Uelha(Rs +ictionary of the 4or(an Language) K/e @AlfredA also% li&e another Theodosius% collected the $arious custo(s that he found dispersed in the &ingdo(% and reduced and digested the( into one unifor( syste(% or code of la#s% in his so(Cbec% or liber judicialis @judicial boo&A) This he co(piled for the use of the court baron% hundred and county court% the courtCleet and sheriffRs toarn% tribunals #hich he established for the trial of all causes% ci$il and cri(inal% in the $ery districts #herein the co(plaints arose)K E Blac&stone% E!!) Alfred hi(self says% K/ence 2% Uing Alfred% gathered these together% and co((anded (any of those to be #ritten do#n #hich our forefathers obser$ed those #hich 2 li&ed and those #hich 2 did not li&e% by the ad$ice of (y *itan% 2 thre# aside) ,or 2 durst not $enture to set do#n in #riting o$er (any of (y o#n% since 2 &ne# not #hat a(ong the( #ould please those that should co(e after us) But those #hich 2 (et #ith either of the days of (e% (y &ins(an% or of 5ffa% Uing of =ercia% or of Aethelbert% #ho #as the first of the English #ho recei$ed baptis( thse #hich appeared to (e the justest 2 ha$e here collected% and abandoned the others) Then 2% Alfred% Uing of the *est Saxons% sho#ed these to all (y *itan% and they then said that they #ere all #illing to obser$e the()K La#s of Alfred% translated by .) Price% prefixed to =ac&intoshRs /istory of England% $ol) l) EJ LardnerRs "ab) "yc) KUing Ed#ard * * projected and begun #hat his grandson% Uing Ed#ard the "onfessor% after#ards co(pleted% $i;)% one unifor( digest or body of la#s to be obser$ed throughout the #hole &ingdo(% being probably no (ore than a re$i$al of Uing AlfredRs code% #ith so(e i(pro$e(ents suggested by necessity and experience% particularly the incorporating so(e of the British% or% rather% =ercian custo(s% and also such of the +anish @custo(sA as #ere reasonable and appro$ed% into the *est Saxon Lage% #hich #as still the groundC#or& of the #hole) And this appears to be the best supported and (ost plausible conjecture% @for certainty is not to be expected%A of the rise and original of that ad(irable syste( of (axi(s and un#ritten custo(s #hich is no# &no#n by the na(e of the co((on la#% as extending its authority uni$ersally o$er all the real(% and #hich is doubtless of Saxon parentage)K E Blac&stone% E!8) KBy the Lex Terrae and Lex .egni is understood the la#s of Ed#ard the "onfessor% confir(ed and enlarged as they #ere by *illia( the "onIuerorS and this "onstitution or "ode of La#s is #hat e$en to this day are called RThe "o((on La# of the Land)RK 2ntroduction to GilbertRs /istory of the "o((on Pleas% p) 88% note) 76: 4ot the conIueror of the English people% @as the friends of liberty (aintain%A but only of /arold the usurper) See /aleRs /istory of the "o((on% La#% ch) J)

70: ,or all these codes see *il&insR La#s of the AngloCSaxons) KBeing regulations adapted to existing institutions% the AngloCSaxon statutes are concise and technical% alluding to the la# #hich #as then li$ing and in $igor% rather than defining it) The sa(e clauses and chapters are often repeated #ord% for #ord% in the statutes of subseIuent &ings% sho#ing that enact(ents #hich bear the appearance of no$elty are (erely declaratory) "onseIuently the appearance of a la#% see(ingly for the first ti(e% is by no (eans to be considered as a proof that the (atter #hich it contains is ne#S nor can #e trace the progress of the AngloCSaxon institutions #ith any degree of certainty% by follo#ing the dates of the statutes in #hich #e find the( first noticed) All argu(ents founded on the apparent chronology of the subjects included in the la#s% are liable to great fallacies) ,urther(ore% a considerable portion of the AngloCSaxon la# #as ne$er recorded in #riting) There can be no doubt but that the rules of inheritance #ere #ell established and% definedS yet #e ha$e not a single la#% and hardly a single docu(ent fro( #hich the course of the descent of land can be inferred) * * Positi$e proof cannot be obtained of the co((ence(ent of any institution% because the first #ritten la# relating to it (ay possibly be (erely confir(atory or declaratoryS neither can the nonCexistence of any institution be inferred fro( the absence of direct e$idence) *ritten la#s #ere (odified and controlled by custo(s of #hich no trace can be disco$ered until after the lapse of centuries% although those usages (ust ha$e been in constant $igor during the long inter$al of silence)K ! Palgra$eRs .ise and Progress of the English "o((on#ealth% J6C0) 7!9: .apin says% KThe custo(s no# practised in England are% for the (ost part% the sa(e as the AngloCSaxons brought #ith the( fro( Ger(any)K .apinRs +issertation on the Go$ern(ent of the AngloCSaxons% $ol) 8% 5ct Ed)% p) !D6) See Uelha(Rs +iscourse before na(ed) 7!!: /alla( says% KThe county of Sussex contains sixtyCfi$e @RhundredsRAS that of +orset fortyCthreeS #hile 3or&shire has only t#entyCsixS and Lancashire but six)K 8 =iddle Ages% D0!) 7!8: Excepting also (atters pertaining to the collection of the re$enue% #hich #ere deter(ined in the &ingRs court of excheIuer) But e$en in this court it #as the la# Kthat none be a(erced but by his peers)K =irror of Justices% E0) 7!D: K,or the English la#s% although not #ritten% (ay% as it should see(% and that #ithout any absurdity% be ter(ed la#s% @since this itself is la# that #hich pleases the prince has the force of la#%A 2 (ean those la#s #hich it is e$ident #ere pro(uulgated by the ad$ice of the nobles and the authority of the prince% concerning doubts to be settled in their asse(bly) ,or if fro( the (ere #ant of #riting only% they should not be considered la#s% then% unIuestionably% #riting #ould see( to confer (ore authority upon la#s the(sel$es% than either the eIuity of the persons constituting% or the reason of those fra(ing the()K Glan$illeRs Preface% p) D6) @Glan$ille #as chief justice of /enry 22)% !!69)A 8 TurnerRs /istory of the AngloCSaxons% 869)

7!E: =ac&intoshRs /istory of England% ch) D) LardnerRs "abinet "yclopedia% 86M) 7!J: 2f the la#s of the &ing #ere recei$ed as authoritati$e by the juries% #hat occasion #as there for his appointing special co((issioners for the trial of offences% #ithout the inter$ention of a jury% as he freIuently did% in (anifest and ac&no#ledged $iolation of =agna "arta% and Kthe la# of the landQK These appoint(ents #ere undoubtedly (ade for no other reason than that the juries #ere not sufficiently subser$ient% but judged according to their o#n notions of right% instead of the #ill of the &ing #hether the latter #ere expressed in his statutes% or by his judges) 7!M: 5f course% =r) .ee$e (eans to be understood that% in the hundred court% and courtCleet% the jurors #ere the judges% as he declares the( to ha$e been in the county courtS other#ise the KbailiffK or Kste#ardK (ust ha$e been judge) 7!1: The jurors #ere so(eti(es called K assessors%K because they assessed% or deter(ined the a(ount of fines and a(erce(ents to be i(posed) 7!6: KThe barons of the /undredK #ere the freeholders) /alla( says? KThe #ord baro% originally (eaning only a (an% #as of $ery large significance% and is not unfreIuently applied to co((on freeholders% as in the phrase courtCbaron)K D =iddle Ages% !EC!J) Blac&stone says? KThe courtCbaron * * is a court of co((on la#% and it is the court of the barons% by #hich na(e the freeholders #ere so(eti(es anciently calledS for that it is held before the freeholders #ho o#e suit and ser$ice to the (anor)K D Blac&stone% DD) 7!0: The ancient jury courts &ept no records% because those #ho co(posed the courts could neither (a&e nor read records) Their decisions #ere preser$ed by the (e(ories of the jurors and other persons present) 789: Stuart says? KThe courts% or ci$il arrange(ents% #hich #ere (odelled in Ger(any% preser$ed the independence of the peopleS aud ha$ing follo#ed the Saxons into England% and continuing their i(portance% they supported the en$ied liberty #e boast of) KAs a chieftain led out his retainers to the field% and go$erned the( during #arS so in peace he su((oned the( together% and exerted a ci$il jurisdiction) /e #as at once their captain and their judge) They constituted his courtS and ha$ing inIuired #ith hi( into the guilt of those of their order #ho( justice had accused% they assisted hi( to enforce his decrees) KThis court @the courtCbaronA #as i(ported into EnglandS but the inno$ation #hich conIuest introduced into the fashion of the

ti(es altered so(e#hat its appearance) KThe head or lord of the (anor called forth his attendants to his hall) * * /e inIuired into the breaches of custo(% and of justice% #hich #ere co((itted #ithin the precincts of his territory% and #ith his follo#ers% #ho sat #ith hi( as judges% he deter(ined in all (atters of debt% and of trespass to a certain a(ount) /e possessed a si(ilar jurisdiction #ith the chieftain in Ger(any% and his tenants enjoyed an eIual authority #ith the Ger(an retainers) KBut a (ode of ad(inistration #hich intrusted so (uch po#er to the great could not long be exercised #ithout bla(e or injustice) The Ger(an% guided by the candor of his (ind% and entering into all his engage(ents #ith the greatest ardor% percei$ed not% at first% that the chieftain to #ho( he sub(itted his disputes (ight be s#ayed% in the judg(ents he pronounced% by partiality% prejudice% or interestS and that the influence he (aintained #ith his follo#ers #as too strong to be restrained by justice) Experience instructed hi( of his errorK% he ac&no#ledged the necessity of appealing fro( his lordS and the court of the /undred #as erected) KThis establish(ent #as for(ed both in Ger(any and England% by the inhabitants of a certain di$ision% #ho extened their jurisdiction o$er the territory they occupied) 78!: They bound the(sel$es under a penalty to asse(ble at stated ti(esS and ha$ing elected the #isest to preside o$er the(% they judged% not only all ci$il and cri(inal (atters% but of those also #hich regarded religion and the priesthood) The judicial po#er thus in$ested in the people #as extensi$eS they #ere able to preser$e their rights% and attended this court in ar(s) 78!: K2t #as the free(en in Ger(any% and the possessors of land in England% #ho #ere suitors @jurorsA in the hundred court) These ran&s of (en #ere the sa(e) The alteration #hich had happened in relation to property had in$ested the Ger(an free(en #ith land or territory)K KAs the co((unication% ho#e$er% and intercourse% of the indi$iduals of a Ger(an co((unity began to be #ider% and (ore general% as their dealings enlarged% and as disputes arose a(ong the (e(bers of different hundreds% the insufficiency of these courts for the preser$ation of order #as gradually percei$ed) The shyre (ote% therefore% or county court% #as institutedS and it for(ed the chief source of justice both in Ger(any and England) KThe po#ers% accordingly% #hich had been enjoyed by the court of the hundred% #ere considerably i(paired) 2t decided no longer concerning capital offencesS it decided not concerning (atters of liberty% and the property of estates% or of sla$esS its judg(ents% in e$ery case% beca(e subject to re$ie#S and it lost entirely the decision of causes% #hen it delayed too long to consider the() KE$ery subject of clai( or contention #as brought% in the first instance% or by appeal% to the county courtS and the earl% or

eorldor(an% #ho presided there% #as acti$e to put the la#s in execution) /e repressed the disorders #hich fell out #ithin the circuit of his authorityS and the least re(ission in hi duty% or the least fraud he co((itted% #as co(plained of and punished) /e #as elected fro( a(ong the great% and #as abo$e the te(ptation of a bribeS but% to encourage his acti$ity% he #as presented #ith a share of the territory he go$erned% or #as entitled to a proportion of the fines and profits of justice) E$ery (an% in his district% #as bound to infor( hi( concerning cri(inals% and to assist hi( to bring the( to trialS and% as in rude and $iolent ti(es the poor and helpless #ere ready to be oppressed by the strong% he #as instructed particularly to defend the() K/is court #as a(bulatory% and asse(bled only t#ice a year% unless the distribution of justice reIuired that its (eetings should be oftener) E$ery freeholder in the county #as obliged to attend itS and should he refuse this ser$ice% his possessions #ere sei;ed% and he #as forced to find surety for his appearance) The neighboring earls held not their courts on the sa(e dayS and% #hat see(s $ery singular% no judge #as allo#ed% after (eals% to exercise his office) KThe druids also% or priests% in Ger(any% as #e had for(erly occasion to re(ar&% and the clergy in England% exercised a jurisdiction in the hundred and county courts) They instructed the people in religious duties% and in (atters regarding the priesthoodS and the princes% earls% or eorldor(en% related to the( the la#s and custo(s of the co((unity) These judges #ere (utually a chec& to each otherS but it #as expected that they should agree in their judg(ents% and should #illingly unite their efforts for the public interest) 788: KThe (eeting @the county courtA #as opened #ith a discourse by the bishop% explaining% out of the Scriptures and ecclesiastical canons% their se$eral duties as good "hristians and (e(bers of the church) After this% the alder(an% or one of his assessors% (ade a discourse on the la#s of the land% and the duties of good subjects and good citi;ens) *hen these preli(inaries #ere o$er% they proceede to try and deter(ine% first the causes of the church% next the pleas of the cro#n% and last of all the contro$ersies of pri$ate parties)K 6 /enryRs /istory of Great Britain% DE6) This $ie# is corroborated by TyrrellRs 2ntroduction to the /istory of EnglandS p) 6DC6E% and by SpenceRs 5rigin of the La#s and Political 2nstitutions of =odern Europe% p) EE1% and the note on the sa(e page) Also by a la# of "anute to this effect% 2n e$ery county let there be t#ice a year an asse(bly% #hereat the bishop and the earl shall be present% the one to instruct the people in di$ine% the other in hu(an% la#s) *il&ins% p) !DM) KBut the prince or earl perfor(ed not% at all ti(es% in person% the obligations of his office) The enjoy(ent of ease and of pleasure% to #hich in Ger(any he had deli$ered hi(self o$er% #hen disengaged fro( #ar% and the (ean idea he concei$ed of the drudgery of ci$il affairs% (ade hi( often delegate to an

inferior person the distribution of justice in his district) The sa(e senti(ents #ere experienced by the Saxon nobilityS and the ser$ice #hich they o#ed by their tenures% and the high e(ploy(ents they sustained% called the( often fro( the (anage(ent of their counties) The progress% too% of co((erce% gi$ing an intricacy to cases% and s#elling the ci$il code% added to the difficulty of their office% and (ade the( a$erse to its duties) Sheriffs% therefore% or deputies% #ere freIuently appointed to transact their businessS and though these #ere at first under so(e subordination to the earls% they gre# at length to be entirely independent of the() The connection of jurisdiction and territory ceasing to pre$ail% and the ci$il being separated fro( the ecclesiastical po#er% they beca(e the sole and proper officers for the direction of justice in the counties) KThe hundred% ho#e$er% and county courts #ere not eIual of the(sel$es for the purposes of jurisdiction and order) 2t #as necessary that a court should be erected% of supre(e authority% #here the disputes of the great should be decided% #here the disagreeing senti(ents of judges should be reconciled% and #here protection should be gi$en to the people against their fraud and injustice) KThe princes accordingly% or chief nobility% in the Ger(an co((unities% asse(bled together to judge of such (atters) The Saxon nobles continued this prerogati$eS and the &ing% or% in his absence% the chief justiciary% #atched o$er their deliberations) But it #as not on e$ery tri$ial occasion that this court interested itself) 2n s(aller concerns% justice #as refused during three sessions of the hundred% and clai(ed #ithout effect% at four courts of the county% before there could lie an appeal to it) KSo gradually #ere these arrange(ents established% and so naturally did the $arying circu(stances in the situation of the Ger(ans and AngloCSaxons direct those successi$e i(pro$e(ents #hich the preser$ation of order% and the ad$antage of society% called the( to adopt) The ad(ission of the people into the courts of justice preser$ed% a(ong the for(er% that eIuality of ran&s for #hich they #ere re(ar&ableS and it helped to o$erturn% a(ong the latter% those en$ious distinctions #hich the feudal syste( tended to introduce% and pre$ented that $enality in judges% and those arbitrary proceedings% #hich the gro#ing attach(ent to interest% and the influence of the cro#n% (ight other#ise ha$e occasioned)K Stuart on the "onstitution of England% p) 888 to 8EJ) K2n the AngloCSaxon period% accordingly% t#el$e only #ere electedS and these% together #ith the judge% or presiding officer of the district% being s#orn to regard justice% and the $oice of reason% or conscience% all causes #ere sub(itted to the()K +itto% p) 8M9) KBefore the orders of (en #ere $ery nicely disinguished% the jurors #ere elected fro( the sa(e ran&) *hen% ho#e$er% a regular subordination of orders #as established% and #hen a &no#ledge of property had inspired the necessitous #ith en$y% and the rich

#ith conte(pt% e$ery (an #as tried by his eIuals) The sa(e spirit of liberty #hich ga$e rise to this regulation attended its progress) 4or could (onarchs assu(e a (ore arbitrary (ethod of proceeding) R2 #ill notR @said the Earl of "orn#all to his so$ereignA Rrender up (y castles% nor depart the &ingdo(% but by judg(ent of (y peers)R 5f this institution% so #isely calculated for the preser$ation of liberty% all our% historians ha$e pronounced the eulogiu()K CC +itto% p) 8M8CD) Blac&stone says? KThe policy of our ancient constitution% as regulated and established by the great Alfred% #as to bring justice ho(e to e$ery (anRs door% by constituting as (any courts of judicature as there are (anors and to#ns in the &ingdo(S #herein injuries #ere redressed in an easy and expeditious (anner% by the suffrage of neighbors and friends) These little courts% ho#e$er% co((unicated #ith others of a larger jurisdiction% and those #ith others of a still greater po#erS ascending gradually fro( the lo#est to the supre(e courts% #hich #ere respecti$ely constituted to correct the errors of the inferior ones% and to deter(ine such causes as% by reason of their #eight and difficulty% de(anded a (ore sole(n discussion) The course of justice flo#ing in large strea(s fro( the &ing% as the fountain% to his superior courts of recordS and being then subdi$ided into s(aller channels% till the #hole and e$ery part of the &ingdo( #ere plentifully #atered and refreshed) An institution that see(s highly agreeable to the dictates of natural reason% as #ell as of (ore enlightened policy) KThese inferior courts% at least the na(e and for( of the(% still cntinue in our legal constitutionS but as the superior courts of record ha$e% in practice% obtained a concurrent original jurisdiction% and as there is% besides% a po#er of re(o$ing plaints or actions thither fro( all the inferior jurisdictionsS upon these accounts @a(ong othersA it has happened that these petty tribunals ha$e fallen into decay% and al(ost into obli$ionS #hether for the better or the #orse (ay be (atter of so(e speculation% #hen #e consider% on the one hand% the increase of expense and delay% and% on the other% the (ore able and i(partial decisions that follo# fro( this change of jurisdiction) KThe order 2 shall obser$e in discoursing on these se$eral courts% constituted for the redress of ci$il injuries% @for #ith those of a jurisdiction (erely cri(inal 2 shall not at present concern (yself% 78D:A #ill be by beginning #ith the lo#est% and those #hose jurisdiction% though public and generally dispersed through the &ingdo(% is yet @#ith regard to each particular courtA confined to $ery narro# li(itsS and so ascending gradually to those of the (ost extensi$e and transcendent po#er)K CC D Blac&stone% D9 to D8) KThe courtCbaron is a court incident to e$ery (anor in the &ingdo(% to beholden by the ste#ard #ithin the said (anor) This courtCbaron is of t#o naturesS the one is a custo(ary court% of #hich #e for(erly spo&e% appertaining entirely to the copyCholders% in #hich their estates are transferred by surrender

and ad(ittance% and other (atters transacted relati$e to their tenures only) The other% of #hich #e no# spea&% is a court of co((on la#% and it is a court of the barons% by #hich na(e the freeholders #ere so(eti(es anciently calledS for that it is held by the freeholders #ho o#e suit and ser$ice to th (anor% the ste#ard being rather the registrar than the judge) These courts% though in their nature distinct% are freIuently confounded together) The court #e are no# considering% $i;)% the freeholders court% #as co(posed of the lordRs tenants% #ho #ere the pares @eIualsA of each other% and #ere bound by their feudal tenure to assist their lord in the dispensation of do(estic justice) This #as for(erly held e$ery three #ee&sS and its (ost i(portant business is to deter(ine% by #rit of right% all contro$ersies relating to the right of lands #ithin the (anor) 2t (ay also hold plea of any personal actions% of debt% trespass in the case% or the li&e% #here the debt or da(ages do not a(ount to forty shillingsS #hich is the sa(e su(% or three (ar&s% that bounded the jurisdiction of the ancient Gothic courts in their lo#est instance% or fierding courts% so called because four #ere institute #ithin e$ery superior district or hundred)K 6 Blac&stone% D6% DE) KA hundred court is only a larger courtCbaron% being held for all the inhabitants of a particular hundred% instead of a (anor) The free suitors are here also the judges% and the ste#ard the registrar% as in the case of a courtCbaron) 2t is li&e#ise no court of record% rese(bling the for(er at all points% except that in point of territory it is of greater jurisdiction) This is said by Sir Ed#ard "o&e to ha$e been deri$ed out of the county court for the ease of the people% that they (ight ha$e justice done to the( at their o#n doors% #ithout any charge or loss of ti(eS but its institution #as probably coe$al #ith that of hundreds the(sel$es% #hich #ere for(erly obser$ed to ha$e been introduced% though not in$ented% by Alfred% being deri$ed fro( the polity of the ancient Ger(ans) The centeni% #e (ay re(e(ber% #ere the principal inhabitants of a district co(posed of different $illages% oriinally in nu(ber a hundred% but after#ard only called by that na(e% and #ho probably ga$e the sa(e deno(ination to the district out of #hich they #ere chosen) "aesar spea&s positi$ely of the judicial po#er exercised in their hundred courts and courtsCbaron) RPrinceps regioru( atIue pagoru(R @#hich #e (ay fairly construe the lords of hundreds and (anorsA Rinter suos jus dicunt% contro$ersias Iue (inuunt)R @The chiefs of the country and the $illages declare the la# a(ong the(% and abate contro$ersies)A And Tacitus% #ho had exa(ined their constitution still (ore attenti$ely% infor(s us not only of the authority of the lords% but that of the centeni% the hundreders% or jury% #ho #ere ta&en out of the co((on freeholders% and had the(sel$es a share in the deter(ination) R Eliguntur in conciliis et principes% Iui jura per pagos $icosIue reddunt% centenii singulis% ex plebe co(ites co(ciliu( si(ul et auctoritas adsunt) @The princes are chosen in the asse(blies% #ho ad(inister the la#s throughout the to#ns and $illages% and #ith each one are associated an hundred co(panions% ta&en fro( the people% for purposes both of counsel and authority)A This hundred court #as deno(inated haereda in the Gothic constitution) But this court% as causes are eIually liable to re(o$al fro( hence as fro( the

co((on courtCbaron% and by the sa(e #rits% and (ay also be re$ie#ed by #rit of false judg(ent% is therefore fallen into eIual disuse #ith regard to the trial of actions)K 6 Blac&stone% DE% 6J) KThe county court is a court incident to the jurisdiction of the sheriff) 2t is not a court of record% but (ay hold pleas of debt% or da(ages% under the $alue of forty shillingsS o$er so(e of #hich causes these inferior courts ha$e% by the express #ords of the statute of Gloucester% @M Ed#ard 2)% eh) 6%A a jurisdicton totally exclusi$e of the &ingRs superior courts) * * The county court (ay also hold plea of (any real actions% and of all personal actions to any a(ount% by $irtue of a special #rit% called a justicies% #hich is a #rit e(po#ering the sheriff% for the sa&e of despatch% to do the sa(ee justice in his county court as (ight other#ise be had at *est(inster) The freeholders of the county court are the real judges in this court% and the sheriff is the (inisterial ofhcer) * * 2n (odern ti(es% as proceedings are re(o$able fro( hence into the &ingRs superior courts% by #rit of pone or recordari% in the sa(e (anner as fro( hundred courts and courtsCbaron% and as the sa(e #rit of false judg(ent (ay be had in nature of a #rit of error% this has occasioned the sa(e disuse of bringing actions therein)K D Blac&stone% DM% D1) K<pon the #hole% #e cannot but ad(ire the #ise econo(y and ad(irable pro$ision of our ancestors in settling the distribution of justice in a (ethod so #ell calculated for cheapness% expedition% and ease) By the constitution #hich they established% all tri$ial debts% and injuries of s(all conseIuence% #ere to be reco$ered or redressed in e$ery (anRs o#n county% hundred% or perhaps parish)K D Blac&stone% J0) 788: 2t #ould be #holly erroneous% 2 thin&% to infer fro( this state(ent of Stuart% that either the Kpriests% princes% earls% or eorldor(enK exercised any authority o$er the jury in the trial of causes% in the #ay of dictating the la# to the() /enryRs account of this (atter doubtless gi$es a (uch (ore accurate representation of the truth) /e says that anciently 78D: There #as no distinction bet#een the ci$il and cri(inal courts% as to the rights or po#ers of juries) 78E: This Iuaint and curious boo&S @S(ithRs "o((on#ealth of EnglandA describes the (inutiae of trials% gi$ing in detail the (ode of i(paneling the jury and then the conduct of the la#yers% #itnesses% and court 2 gi$e the follo#ing extracts% tending to sho# that the judges i(pose no la# upon the juries% in either ci$il or cri(inal cases but only reIuire the( to deter(ine the causes according to their consciences) 2n ci$il causes he says? K*hen it is thought that it is enough pleaded before the(% and the #itnesses ha$e said #hat they can% one of the judges% #ith a brief and pithy recapitulation% reciteth to the t#el$e in su( the argu(ents of the sergeants of either side% that #hich the #itnesses ha$e declared% and the chief points of the

e$idence sho#ed in #riting% and once again putteth the( in (ind of the issue% and so(eti(e gi$eth it the( in #riting% deli$ering to the( the e$idence #hich is sho#ed on either part% if any be% @e$idence here is called #ritings of contracts% authentical after the (anner of England% that is to say% #ritten% sealed% and deli$ered%A and biddeth the( go together)K p) 1E) This is the #hole account gi$en of the charge to the jury) 2n cri(inal eases% after the #itnesses ha$e been heard% and the prisoner has said #hat he pleases in his defence% the boo& proceeds? K*hen the judge hath heard the( say enough% he as&eth if they can say any (ore) 2f they say no% then he turneth his speech to the inIuest) RGood (en% @saith he%A ye of the inIuest% ye ha$e heard #hat these (en say against the prisoner) 3ou ha$e also heard #hat the prisoner can say for hi(self) /a$e an eye to your oath% and to your duty% and do that #hich God shall put in your (inds to the discharge of your consciences% and (ar& #ell #hat is said)R K p) 08) This is the #hole account gi$en of the charge in a cri(inal ease) The follo#ing state(ent goes to confir( the sa(e idea% that jurors in England ha$e for(erly understood it to be their right and duty to judge only according to their consciences% and not to sub(it to any dictation fro( the court% either as to la# or fact) K2f ha$ing pregnant e$idence% ne$ertheless% the t#el$e do acIuit the (alefactor #hich they #ill do so(eti(e% especially if they percei$e either one of the justices or of the judges% or so(e other (an% to pursue too (uch and too (aliciously the death of the prisoner% * * the prisoner escapethS but the t#el$e @areA not only rebu&ed by the judges% but also threatened of punish(entS and (any ti(es co((anded to appear in the StarC"ha(ber% or before the Pri$y "ouncil for the (atter) But this threatening chanceth oftener than the execution thereofS and the t#el$e ans#er #ith (ost gentle #ords% they did it according to their consciences% and pray the judges to be good unto the(% they did as they thought right% and as they accorded all% and so it passeth a#ay for the (ost part)K p) !99) The account gi$en of the trial of a peer of the real( corroborates the sa(e point? K2f any du&e% (arIuis% or any other of the degrees of a baron% or abo$e% lord of the Parlia(ent% be appeached of treason% or any other capital cri(e% he is judged by his peers and eIualsS that% is% the yeo(anry doth not go upon hi(% but an inIuest of the Lords of Parlia(ent% and they gi$e their $oice not one for all% but each se$erally as they do in Parlia(ent being @beginningA at the youngest lord) And for judge one lord sitteth% #ho is constable of England for that day) The judg(ent once gi$en% he brea&eth his staff% and abdicateth his office) 2n the rest there is no difference fro( that abo$e #ritten%K @that is% in the case of a free(an)A p) 06)

78J: KThe present for( of the jurorsR oath is that they shall Rgi$e a true $erdict according to the e$idence)R At #hat ti(e this for( #as introduced is uncertainS but for se$eral centuries after the "onIuest% the jurors% both in ci$il and cri(inal cases% #ere s#orn (erely to spea& the truth) @Glan$ille% lib) 8% cap) !1S Bracton% lib) D% cap) 88S lib) E% p) 861% 80!S Britton% p) !DJ)A /ence their decision #as accurately ter(ed $eredictu(% or $erdict% that is% R a thing truly saidRS #hereas the phrase Rtrue $erdictR in the (odern oath is not an accurate expression)K Political +ictionary% #ord Jury) 78M: 5f course% there can be no legal trial by jury% in either ci$il or cri(inal cases% #here the jury are s#orn to try the cases Kaccording to la#)K 781: "o&e% as late as !J66% ad(its that a(erce(ents (ust be fixed by the peers @6 "o&eRs .ep) 66% 8 2nst) 81AS but he atte(pts% #holly #ithout success% as it see(s to (e% to sho# a difference bet#een fines and a(erce(ents) The statutes are $ery nu(erous% running through the three or four hundred years i((ediately succeeding =agna "arta% in #hich fines% ranso(s% and a(erce(ents are spo&en of as if they #ere the co((on punish(ents of offences% and as if they all (eant the sa(e thing) 2f% ho#e$er% any technical difference could be (ade out bet#een the(% there is clearly none in principleS and the #ord a(erce(ent% as used in =agna "arta% (ust be ta&en in its (ost co(prehensi$e sense) 786: K"o((on rightK #as the co((on la#) ! "o&eRs 2nst) !E8 a) 8 do) JJ% M) 780: The oath of the justices is in these #ords?K3e shall s#ear% that #ell and la#fully ye shall ser$e our lord the &ing and his people% in the office of justice% and that la#fully ye shall counsel the &ing in his business% and that ye shall not counsel nor assent to anything #hich (ay turn hi( in da(age or disherison in any (anner% #ay% or color) And that ye shall not &no# the da(age or disherison of hi(% #hereof ye shall not cause hi( to be #arned by yourself% or by otherS and that ye shall do eIual la# and execution of right to all his subjects% rich and poor% #ithout ha$ing regard to any person) And that ye ta&e not by yourself% or by other% pri$ily nor apertly% gift nor re#ard of gold nor sil$er% nor of any other thing that (ay turn to your profit% unless it be (eat or drin&% and that of s(all $alue% of any (an that shall ha$e any plea or process hanging before you% as long as the sa(e process shall be so hanging% nor after for the sa(e cause) And that ye ta&e no fee% as long as ye shall be justice% nor robe of any (an great or s(all% but of the &ing hi(self) And that ye gi$e none ad$ice or counsel to no (an great or s(all% in no case #here the &ing is party) And in case that any% of #hat estate or condition they be% co(e before you in your sessions #ith force and ar(s% or other#ise against the peace% or against the for( of the statute thereof (ade% to disturb execution of the co((on la#%K 7(ar& the ter(% Kco((on la#%KA Kor to (enace the people that they (ay not pursue the la#% that ye shalt cause their bodies to be arrested and

put in prisonS and in case they be such that ye cannot arrest the(% that ye certify the &ing of their na(es% and of their (isprision% hastily% so that he (ay thereof ordain a con$enable re(edy) And that ye by yourself% nor by other% pri$ily nor apertly% (aintain any plea or Iuarrel hanging in the &ingRs court% or else#here in the country) And that ye deny no (an co((on right by the &ingRs letters% nor none other (anRs% nor for none other cause% and in case any letters co(e to you contrary to the la#%RK @that is% the Kco((on la# K before (entioned%A Kthat ye do nothing by such letters% but certify the &ing thereof% and proceed to execute the la#%K @the Kco((on la#K before (entioned%A Knot#ithstanding the sa(e letters) And that ye shall do and procure the profit of the &ing and of his cro#n% #ith all things #here ye (ay reasonably do the sa(e) And in case ye be fro( henceforth found in default in any of the points aforesaid% ye shall be at the &ingRs #ill of body% lands% and goods% thereof to be done as shall please hi(% as God you help and all saints)K !6 Ed#ard 222)% st) E) @!DEE)A 7D9: That the ter(s KLa#K and K.ight%K as used in this statute% (ean the co((on la#% is sho#n by the prea(ble% #hich declares the (oti$e of the statute to be that Kthe La# of the Land% @the co((on la#%A #hich #e @the &ingA by our oath are bound to (aintain%K (ay be the better &ept% X) 7D!: The follo#ing is a copy of the original? K,or(a Jura(enti .egis Anglicae in "oronacione sua? @Archiepiscopus "antuariae% ad Iuo de jure et consuetudine Ecclesiae "antuariae% antiIua et approbata% pertinet .eges Angliae inungere et coronare% die coronacionis .egis% anteIue .ex coronetur% faciet .egi 2nterrogationes subscriptas)A Si leges et consuetudines ab antiIuis justis et +eo de$otis .egibus plebi Anglicano concessas% cu( sacra(enti confir(acione eide( plebi concedere et ser$are @$olueris?A Et praeserti( leges et consuetudines et libertates a glorioso .ege Ed#ardo clero populoIue concessas Q @Et respondeat .ex%A "oncedo et ser$are $olo% et sacra(ento confir(are) Ser$abis Ecclesiae +ei% "leroIue% et Populo% pace( ex integro et concordia( in +eo secundu( $ires tuas Q @Et respondeat .ex%A Ser$abo) ,acies fieri in o(nibus Judieiis tuis eIua( et recta( justioia(% et discreeione(% in (isericordia et $eritate%

secundu( $ires tuasQ @Et respondeat .ex%A ,acia() "oncedis justas% leges et consuetudines esse tenendas% et pro(ittis per te eas esse protegendas% et ad honore( +ei corroborandas% Iuas $ulgus elegit% secundu( $ires tuas Q @Et respondeat .ex%A "oncedo et pro(itto)K 7D8: 2t #ould appear% fro( the text% that the "harter of Liberties and the "harter of the ,orest #ere so(eti(es called Kla#s of the land)K 7DD: As the ancient coronation oath% gi$en in the text% has co(e do#n fro( the Saxonti(es% the follo#ing re(ar&s of Palgra$e #ill be pertinent% in connection #ith the oath% as illustrating the fact that% in those ti(es% no special authority attached to the la#s of the &ing? KThe 2(perial *itenage(ot #as not a legislati$e asse(bly% in the strict sense of the ter(% for the #hole AngloCSaxon e(pire) Pro(ulgating his edicts a(idst his peers and prelates% the &ing uses the language of co((andS but the theoretical prerogati$e #as (odified by usage% and the practice of the constitution reIuired that the la# should be accepted by the legislatures @courtsA of the se$eral &ingdo(s) * * The RBasileusR spea&s in the tone of prerogati$e? Edgar does not (erely reco((end% he co((ands that the la# shall be adopted by all the people% #hether English% +anes% or Britons% in e$ery part of his e(pire) Let this statute be obser$ed% he continues% by Earl 5slac% and all the host #ho d#ell under his go$ern(ent% and let it be trans(itted by #rit to the ealdor(en of the other subordinate states) And yet% in defiance of this positi$e iujunction% the la#s of Edgar #ere not accepted in =ercia until the reign of "anute the +ane) 2t (ight be said that the course so adopted (ay ha$e been an exception to the general ruleS but in the scanty and i(perfect annals of AngloCSaxon legislation% #e shall be able to find so (any exa(ples of si(ilar proceedings% that this (ode of enact(ent (ust be considered as dictated by the constitution of the e(pire) Ed#ard #as the supre(e lord of the 4orthu(brians% but (ore than a century elapsed before they obeyed his decrees) The la#s of the glorious Athelstane had no effect in Uent% @county%A the dependent appanage of his cro#n% until sanctioned by the *itan of the shire @county courtA) And the po#er of "anute hi(self% the RUing of all England%R does not see( to ha$e co(pelled the 4orthu(brians to recei$e his code% until the reign of the "onfessor% #hen such acceptance beca(e a part of the co(pact upon the accession of a ne# earl) Legislation constituted but a s(all portion of the

ordinary business transacted by the 2(perial *itenage(ot) The #isdo( of the asse(bly #as sho#n in a$oiding unnecessary change) "onsisting principally of traditionary usages and ancestorial custo(s% the la# #as upheld by opinion) The people considered their jurisprudence as a part of their inheritance) Their pri$ileges and their duties #ere closely conjoinedS (ost freIuently% the statutes the(sel$es #ere only affir(ances of ancient custo(s% or declaratory enact(ents) 2n the AngloCSaxon co((on#ealth% therefore% the legislati$e functions of the *itenage(ot #ere of far less i(portance than the other branches of its authority) * * The (e(bers of the *itenage(ot #ere the R Pares "uriae R @Peers of "ourtA of the &ingdo() /o# far% on these occasions% their opinion or their eIuity controlled the po#er of the cro#n% cannot be ascertained) But the for( of inserting their na(es in the RTesting "lauseR #as retained under the AngloC4or(an reignsS and the so$ereign% #ho sub(itted his "harter to the judg(ent of the Proceres% professed to be guided by the opinion #hich they ga$e) As the RParesR of the e(pire% the *itenage(ot decidedR the disputes bet#een the great $assals of the cro#n) * * The jurisdiction exercised in the Parlia(ent of Ed#ard 2)% #hen the barony of a LordC=archer beca(e the subject of litigation% is entirely analogous to the proceedings thus adopted by the great council of Ed#ard% the son of Alfred% the AngloCSaxon &ing) 2n this asse(bly% the &ing% the prelates% the du&es% the ealdor(en% and the opti(ates passed judg(ent upon all great offenders)* * The so$ereign could not co(pel the obedience of the different nations co(posing the AngloCSaxon e(pire) /ence% it beca(e (ore necessary for hi( to conciliate their opinions% if he solicited any ser$ice fro( a $assal prince or a $assal state beyond the ordinary ter(s of the co(pactS still (ore so% #hen he needed the support of a free burgh or city) And #e (ay $ie# the asse(bly @the *itenage(otA as parta&ing of the character of a political congress% in #hich the liege(en of the cro#n% or the co((unities protected by the R Basileus%R @so$ereign%A #ere as&ed or persuaded to relie$e the exigences of the state% or to consider those (easures #hich (ight be reIuired for the co((on #eal) The so$ereign #as co(pelled to parley #ith his dependents% 2t (ay be doubted #hether any one (e(ber of the e(pire had po#er to legislate for any other (e(ber) The .egulus of "u(bria #as unaffected by the $ote of the Earl of East Angliae% if he chose to stand out against it) These dignitaries constituted a congress% in #hich the so$ereign could treat (ore con$eniently and effectually #ith his $assals than by separate negotiations) * * But the deter(inations of the *itan bound those only #ho #ere present% or #ho concurred in the propositionS and a $assal denying his assent to the grant% (ight assert that the engage(ent #hich he had contracted #ith his superior did not in$ol$e any

pecuniary subsidy% but only rendered hi( liable to perfor( ser$ice in the field)K ! Palgra$eRs .ise and Progress of the English "o((on#ealth% MD1 to ME8) "/APTE. 2-) T/E .2G/TS A4+ +<T2ES 5, J<.2ES 24 "2-2L S<2TS) The e$idence already gi$en in the preceding chapters pro$es that the rights and duties of jurors% in ci$il suits% #ere anciently the sa(e as in cri(inal onesS that the la#s of the &ing #ere of no obligation upon the consciences of the jurors% any further than the la#s #ere seen by the( to be justS that $ery fe# la#s #ere enacted applicable to ci$il suitsS that #hen a ne# la# #as enacted% the nature of it could ha$e been &no#n to the jurors only by report% and #as $ery li&ely not to be &no#n to the( at allS that nearly all the la# in$ol$ed in ci$il suits #as un#rittenS that there #as usually no one in attendance upon juries #ho could possibly enlighten the(% unless it #ere sheriffs% ste#ards% and bailiffs% #ho #ere unIuestionably too ignorant and untrust#orthy to instruct the( authoritati$elyS that the jurors (ust therefore necessarily ha$e judged for the(sel$es of the #hole caseS and that% as a general rule% they could judge of it by no la# but the la# of nature% or the) principles of justice as they existed in their o#n (inds) The ancient oath of jurors in ci$il suits% $i;)% that Kthey #ould (a&e &no#n the truth according to their consciences%K i(plies that the jurors #ere abo$e the authority of all legislation) The (odern oath% in England% $i;)% that they K#ill #ell and truly try the issue bet#een the parties% and a true $erdict gi$e% according to the e$idence%K i(plies the sa(e thing) 2f the la#s of the &ing had been binding upon a jury% they #ould ha$e been s#orn to try the cases according to la#% or according to the la#s) The ancient #rits% in ci$il suits% as gi$en in Glan$ille% @#ithin the half century before =agna "arta%A to #it% KSu((on t#el$e free and legal (en% @or so(eti(es t#el$e &nights%A to be in court% prepared upon their oaths to declare #hether A or B ha$e the greater right to the land in Iuestion%K indicate that the jurors judged of the #hole (atter on their consciences only) The language of =agna "arta% already discussed% establishes the sa(e pointS for% although so(e of the #ords% such as Koutla#ed%K and Kexiled%K #ould apply only to cri(inal cases% nearly the #hole chapter applies as #ell to ci$il as to cri(inal suits) ,or exa(ple% ho# could the pay(ent of a debt e$er be enforced against an un#illing debtor% if he could neither be Karrested% i(prisoned% nor depri$ed of his freehold%K and if the &ing could neither Kproceed against hi(% nor send any one against hi(% by force or ar(sK Q 3et =agna "arta as (uch forbids that any of these things shall be done against a debtor% as against a cri(inal% except according to% or in execution of% K a judg(ent of his peers% or the la# of the land%K a pro$ision #hich% it has been sho#n% ga$e the jury the free and absolute right to gi$e or #ithhold Kjudg(entK according to their consciences% irrespecti$e of all legislation)

The follo#ing pro$isions% in the =agna "arta of John% illustrate the custo( of referring the (ost i(portant (atters of a ci$il nature% e$en #here the &ing #as a party% to the deter(ination of the peers% or of t#el$e (en% acting by no rules but their o#n consciences) These exa(ples at least sho# that there is nothing i(probable or unnatural in the idea that juries should try all ci$il suits according to their o#n judg(ents% independently of all la#s of the &ing) "hap) MJ) K2f #e ha$e dissei;ed or dispossessed the *elsh of any lands% liberties% or other things% #ithout the legal judg(ent of their peers% they shall be i((ediately restored to the() And if any dispute arises upon this head% the (atter shall be deter(ined in the =arches% 7!: by the judg(ent of their peers%K XcS) "hap) M6) K *e shall treat #ith Alexander% &ing of Scots% concerning the restoring of his sisters% and hostages% and rights and liberties% in the sa(e for( and (anner as #e shall do to the rest of our barons of EnglandS unless by the engage(ents% #hich his father *illia(% late &ing of Scots% hath entered into #ith us% it ought to be other#iseS and this shall be left to the deter(ination of his peers in our court)K "hap) JM) KAll e$il custo(s concerning forests% #arrens% and foresters% #arreners% sheriffs% and their officers% ri$ers and their &eepers% shall forth#ith be inIuired into in each county% by t#el$e &nights of the sa(e shire% chosen by the (ost creditable persons in the sa(e county% and upon oathS and #ithin forty days after the said inIuest% be utterly abolished% so as ne$er to be restored)K There is substantially the sa(e reason #hy a jury ought to judge of the justice of la#s% and hold all unjust la#s in$alid% in ci$il suits% as in cri(inal ones) That reason is the necessity of guarding against the tyranny of the go$ern(ent) 4early the sa(e oppressions can be practised in ci$il suits as in cri(inal ones) ,or exa(ple% indi$iduals (ay be depri$ed% of their liberty% and robbed of their property% by judg(ents rendered in ci$il suits% as #ell as in cri(inal ones) 2f the la#s of the &ing #ere i(perati$e upon a jury in ci$il suits% the &ing (ight enact la#s gi$ing one (anRs property to another% or confiscating it to the &ing hi(self% and authori;ing ci$il suits to obtain possession of it) Thus a (an (ight be robbed of his property at the arbitrary pleasure of the &ing) 2n fact% all the property of the &ingdo( #ould be placed% at the arbitrary disposal of the &ing% through the judg(ents of juries in ci$il suits% if the la#s of the &ing #ere i(perati$e upon a jury in such suits) 78: ,urthe(ore% it #ould be absurd and inconsistent to (a&e a jury para(ount to legislation in cri(inal suits% and subordinate to it in ci$il suitsS because an indi$idual% by resisting the execution of a ci$il judg(ent% founded upon an unjust la#% could gi$e rise to a cri(inal suit% in #hich the jury #ould be bound to hold the sa(e la# in$alid) So that% if an unjust la# #ere binding upon a jury in ci$il suits% a defendant% by resisting the execution of the judg(ent% could% in effect%

con$ert the ci$il action into a cri(inal one% in #hich the jury #ould be para(ount to the sa(e legislation% to #hich% in the ci$il suit% they #ere subordinate) 2n other #ords% in the cri(inal suit% the jury #ould be obliged to justify the defendant in resisting a la#% #hich% in the ci$il suit% they had said he #as bound to sub(it to) To (a&e this point plain to the (ost co((on (ind suppose a la# be enacted that the property of A shall be gi$en to B) B brings a ci$il action to obtain possession of it) 2f the jury% in this ci$il suit% are bound to hold the la# obligatory% they render a judg(ent in fa$or of B% that he be put in possession of the propertyS thereby declaring that A is bound to sub(it to a la# depri$ing hi( of his property) But #hen the execution of that judg(ent co(es to be atte(pted that is% #hen the sheriff co(es to ta&e the property for the purpose of deli$ering it to B A acting% as he has a natural right to do% in defence of his property% resists and &ills the sheriff) /e is thereupon indicted for (urder) 5n this trial his plea is% that in &illing the sheriff% he #as si(ply exercising his natural right of defending his property against an unjust la#) The jury% not being bound% in a cri(inal case% by the authority of an unjust la#% judge the act on its (erits% and acIuit the defendant thus declaring that he #as not bound to sub(it to the sa(e la# #hich the jury% in the ci$il suit% had% by their judg(ent% declared that he #as bound to sub(it to) /ere is a contradiction bet#een the t#o judg(ents) 2n the ci$il suit% the la# is declared to be obligatory upon AS in the cri(inal suit% the sa(e la# is declared to be of no obligation) 2t #ould be a solecis( and absurdity in go$ern(ent to allo# such conseIuences as these) Besides% it #ould be practically i(possible to (aintain go$ern(ent on such principlesS for no go$ern(ent could enforce its ci$il judg(ents% unless it could support the( by cri(inal ones% in case of resistance) A jury (ust therefore be para(ount to legislation in both ci$il and cri(inal cases% or in neither) 2f they are para(ount in neither% they are no protection to liberty) 2f they are para(ount in both% then all legislation goes only for #hat it (ay chance to be #orth in the esti(ation of a jury) Another reason #hy =agna "arta (a&es the discretion and consciences of juries para(ount to all legislation in ci$ilsuits% is% that if legislation #ere binding upon a jury% the jurors @by reason of their being unable to read% as jurors in those days #ere% and also by reason of (any of the statutes being un#ritten% or at least not so (any copies #ritten as that juries could be supplied #ith the(A #ould ha$e been necessitated at least in those courts in #hich the &ingRs justices sat to ta&e the #ord of those justices as to #hat the la#s of the &ing really #ere) 2n other #ords% they #ould ha$e been necessitated to ta&e the la# fro( the court% as jurors do no#) 4o# there #ere t#o reasons #hy% as #e (ay rationally suppose% the people did not #ish juries to ta&e their la# fro( the &ingRs judges) 5ne #as% that% at that day% the people probably had sense enough to see% @#hat #e% at this day% ha$e not sense enough to

see% although #e ha$e the e$idence of it e$ery day before our eyes%A that those judges% being dependent upon the legislati$e po#er% @the &ing%A being appointed by it% paid by it% and re(o$able by it at pleasure% #ould be (ere tools of that po#er% and #ould hold all its legislation obligatory% #hether it #ere just or unjust) This #as one reason% doubtless% #hy =agna "arta (ade juries% in ci$il suits% para(ount to all instructions of the &ingRs judges) The reason #as precisely the sa(e as that for (a&ing the( para(ount to all instructions of judges in cri(inal suits% $i;)% that the people did not choose to subject their rights of property% and all other rights in$ol$ed in ci$il suits% to the operation of such la#s as the &ing (ight please to enact) 2t #as seen that to allo# the &ingRs judges to dictate the la# to the jury #ould be eIui$alent to (a&ing the legislation of the &ing i(perati$e upon the jury) Another reason #hy the people did not #ish juries% in ci$il suits% to ta&e their la# fro( the &ingRs judges% doubtless #as% that% &no#ing the dependence of the judges upon the &ing% and &no#ing that the &ing #ould% of course% tolerate no judges #ho #ere not subser$ient to his #ill% they necessarily inferredS that the &ingRs judges #ould be as corrupt% in the ad(inistration of justice% as #as the &ing hi(self% or as he #ished the( to be) And ho# corrupt that #as% (ay be inferred fro( the follo#ing historical facts) /u(e says? K2t appears that the ancient &ings of England put the(sel$es entirely upon the footing of the barbarous Eastern princes% #ho( no (an (ust approach #ithout a present% #ho sell all their good offices% and #ho intrude the(sel$es into e$ery business that they (ay ha$e a pretence for extorting (oney) E$en justice #as a$o#edly bought and soldS the &ingRs court itself% though the supre(e judicature of the &ingdo(% #as open to none that brought not presents to the &ingS the bribes gi$en for expedition% delay% suspension% and doubtless for the per$ersion of justice% #ere entered in the public registers of the royal re$enue% and re(ain as (onu(ents of the perpetual iniIuity and tyranny of the ti(es) The barons of the excheIuer% for instance% the first nobility of the &ingdo(% #ere not asha(ed to insert% as an article in their records% that the county of 4orfol& paid a su( that they (ight be fairly dealt #ithS the borough of 3ar(outh% that the &ingRs charters% #hich they ha$e for their liberties% (ight not be $iolatedS .ichard% son of Gilbert% for the &ingRs helping hi( to reco$er his debt fro( the Je#sS * * Serio% son of Terla$aston% that he (ight be per(itted to (a&e his defence% in case he #ere accused of a certain ho(icideS *alter de Burton% for free la#% if accused of #ounding anotherS .obert de Essart% for ha$ing an inIuest to find #hether .oger% the butcher% and *ace and /u(phrey% accused hi( of robbery and theft out of en$y and illC#ill% or notS *illia( Buhurst% for ha$ing an inIuest to find #hether he #ere accused of the death of one God#in% out of illC#ill% or for just cause) 2 ha$e selected these fe# instances fro( a great nu(ber of the li&e &ind% #hich =adox had selected fro( a still greater nu(ber% preser$ed in the ancient rolls of the excheIuer)

So(eti(es a party litigant offered the &ing a certain portion% a half% a third% a fourth% payable out of the debts #hich he% as the executor of justice% should assist in reco$ering) Theophania de *estland agreed to pay the half of t#o hundred and t#el$e (ar&s% that she (ight reco$er that su( against Ja(es de ,ughlestonS Solo(on% the Je#% engaged to pay one (ar& out of e$ery se$en that he should reco$er against /ugh de la /oseS 4icholas =orrel pro(ised to pay sixty pounds% that the Earl of ,landers (ight be distrained to pay hi( three hundred and fortyCthree pounds% #hich the earl had ta&en fro( hi(S and these sixty pounds #ere to be paid out of the first (oney that 4icholas should reco$er fro( the earl)K /u(e% Appendix 8) K2n the reign of /enry 22%% the best and (ost just of these @the 4or(anA princes% * *Peter% of Blois% a judicious and e$en elegant #riter% of that age% gi$es a pathetic description of the $enality of justice% and the oppressions of the poor% * * and he scruples not to co(plain to the &ing hi(self of these abuses) *e (ay judge #hat the case #ould be under the go$ern(ent of #orse princes)K /u(e% Appendix 8) "arte says? KThe cro#n exercised in those days an exorbitant and incon$enient po#er% ordering the justices of the &ingRs court% in suits about lands% to turn out% put% and &eep in possession% #hich of the litigants they pleasedS to send contradictory ordersS and ta&e large su(s of (oney fro( eachS to respite proceedingsS to direct sentencesS and the judges% acting by their co((ission% concei$ed the(sel$es bound to obser$e such orders% to the great delay% interruption% and pre$enting of justiceS at least% this #as JohnRs practice%K "arteRs /istory of England% $ol) !% p) 6D8) /alla( says? KBut of all the abuses that defor(ed the AngloCSaxon go$ern(ent% none #as so flagitious as the sale of judicial redress% The &ing% #e are often told% is the fountain of justiceS but in those ages it #as one #hich gold alone could unseal) =en fined @paid finesA to ha$e right done the(S to sue in a certain courtS to i(plead a certain personS to ha$e restitution of land #hich they had reco$ered at la#) ,ro( the sale of that justice #hich e$ery citi;en has a right to de(and% it #as an easy transition to #ithhold or deny it) ,ines #ere recei$ed for the &ingRs help against the ad$erse suitorS that is% for per$ersion of justice% or for delay) So(eti(es they #ere paid by opposite parties% and% of course% for opposite ends)K 8 =iddle Ages% ED6) 2n allusion to the pro$ision of =agna "arta on this subject% /alla( says? KA la# #hich enacts that justice shall neither be sold% denied% nor delayed% sta(ps #ith infa(y that go$ern(ent under #hich it had beco(e necessary)K 8 =iddle Ages% EJ!)

Lingard% spea&ing of the ti(es of /enry 22)% @say !!6E%A says? K2t #as uni$ersally understood that (oney possessed greater influence than justice in the royal courts% and instances are on record% in #hich one party has (ade the &ing a present to accelerate% and the other by a (ore $aluable offer has succeeded in retarding a decision) * * But besides the fines paid to the so$ereigns% the judges often exacted presents for the(sel$es% and loud co(plaints existed against their $enality and injustice)K 6 Lingard% 8D!) 2n the narrati$e of KThe costs and charges #hich 2% .ichard de Anesty% besto#ed in reco$ering the land of *illia(% (y uncle%K @so(e fifty years before =agna "arta%A are the follo#ing ite(s? KTo .alph% the &ingRs physician% 2 ga$e thirtyCsix (ar&s and one halfS to the &ing an hundred (ar&sS and to the Iueen one (ar& of gold)K The result is thus stated) KAt last% than&s to our lord the &ing% and by judg(ent of his court% (y uncleRs land #as adjudged to (e)K 8 Palgra$eRs .ise and Progress of the English "o((on#ealth% p) 0 and 8E) Palgra$e also says? KThe precious ore #as cast into the scales of justice% e$en #hen held by the (ost conscientious of our AngloCSaxon &ings) A single case #ill exe(plify the practices #hich pre$ailed) Alfric% the heir of RAyl#in% the blac&%R see&s to set aside the deathCbed beIuest% by #hich his &ins(an besto#ed four rich and fertile (anors upon St) Benedict) Alfric% the clai(ant% #as supported by extensi$e and po#erful connexionsS and Abbot Alf#ine% the defendant% #as #ell a#are that there #ould be danger in the discussion of the dispute in public% or before the ,ol&(oot% @peopleRs (eeting% or county courtAS or% in other #ords% that the Thanes of the shire #ould do their best to gi$e a judg(ent in fa$or of their co(peer) The plea being re(o$ed into the .oyal "ourt% the abbot acted #ith that prudence #hich so often calls forth the praises of the (onastic scribe) /e gladly e(ptied t#enty (ar&s of gold into the slee$e of the "onfessor% @Ed#ard%A and fi$e (ar&s of gold presented to Edith% the ,air% encouraged her to aid the bishop% and to exercise her gentle influence in his fa$or) Alfric% #ith eIual #isdo(% #ithdre# fro( prosecuting the hopeless cause% in #hich his opponent (ight possess an ad$ocate in the royal judge% and a friend in the &ingRs consort) Both parties) therefore% found it desirable to co(e to an agree(ent)K ! Palgra$eRs .ise and Progress% XcS)% p) MJ9) But =agna "arta has another pro$ision for the trial of ci$il suits% that ob$iously had its origin in the corruption of the &ingRs judges) The pro$ision is% that four &nights% to be chosen in e$ery county% by the people of the county% shall sit #ith the &ingRs judges% in the "o((on Pleas% in jury trials% @assi;es%A on the trial of three certain &inds of suits% that #ere a(ong the (ost i(portant that #ere tried at all) The reason for this pro$ision undoubtedly #as% that the corruption and subser$iency of the &ingRs judges #ere so #ell &no#n% that the people #ould not e$en trust the( to sit alone in a jury trial of any

considerable i(portance) The pro$ision is this? "hap) 88% @of JohnRs "harter)A K"o((on Pleas shall not follo# our court% but shall be holden in so(e certain place) Trials upon the #rit of no$el disseisin% and of =ort dRAncester% and of +arrein Present(ent% shall be ta&en but in their proper counties% and after this (anner? *e% or% if #e should be out of our real(% our chief justiciary% shall send t#o jnsticiaries through e$ery county four ti(es a yearS 7D: #ho% #ith four &nights chosen out of e$ery shire% by the people% shall hold the assi;es @juriesA in the county% on the day and at the place appointed)K 2t #ould be $ery unreasonable to suppose that the &ingRs judges #ere allo#ed to dictate the la# to the juries% #hen the people #ould not e$en suffer the( to sit alone in jury trials% but the(sel$es chose four (en to sit #ith the(% to &eep the( honest) 7E: This practice of sending the &ingRs judges into the counties to preside at jury trials% #as introduced by the 4or(an &ings <nder the Saxons it #as not so) 4o officer of the &ing #as allo#ed to preside at a jury trialS but only (agistrates chosen by the people)7J: But the follo#ing chapter of JohnRs charter% #hich i((ediately succeeds the one just Iuoted% and refers to the sa(e suits% affords $ery strong% not to say conclusi$e% proof% that juries judged of the la# in ci$il suits that is% (ade the la#% so far as their deciding according to their o#n notions of justice could (a&e the la#) "hap) 8D) KAnd if% on the county day% the aforesaid assi;es cannot be ta&en% so (any &nights and freeholders shall re(ain% of those #ho shall ha$e been present on said day% as that the judg(ents (ay be rendered by the(% #hether the business be (ore or less)K The (eaning of this chapter is% that so (any of the ci$il suits% as could not be tried on the day #hen the &ingRs justices #ere present% should be tried after#ards% by the four &nights before (entioned% and the freeholders% that is% the jury) 2t (ust be ad(itted% of course% that the juries% in these cases% judged the (atters of la#% as #ell as fact% unless it be presu(ed that the &nights dictated the la# to the jury na thing of #hich there is no e$idence at all) As a final proof on this point% there is a statute enacted se$enty years after =agna "arta% #hich% although it is contrary to the co((on la#% and therefore $oid% is ne$ertheless good e$idence% inas(uch as it contains an ac&no#ledg(ent% on the part of the &ing hi(self% that juries had a right to judge of the #hole (atter% la# and fact% in ci$il suits) The pro$ision is this? K2t is ordained% that the justices assigned to ta&e the assi;es% shall not co(pel the jurors to say precisely #hether it be disseisin% or not% so that they do sho# the truth of the deed%

and see& aid of the justices) But if they #ill% of their o#n accord% say that it is disseisin% or not% their $erdict shall be ad(itted at their o#n peril)K !D Ed#ard 2)% st) !% ch) D% sec) 8) @!86J)A The Iuestion of Kdisseisin% or not%K #as a Iuestion of la#% as #ell as fact) This statute% therefore% ad(its that the la#% as #ell as the fact% #as in the hands of the jury) The statute is ne$ertheless $oid% because the &ing had no authority to gi$e jurors a dispensation fro( the obligation i(posed upon the( by their oaths and the Kla# of the land%K that they should K(a&e &no#n the truth according their @o#nA consciences)K This they #ere bound to do% and there #as no po#er in the &ing to absol$e the( fro( the duty) And the atte(pt of the &ing thus to absol$e the(% and authori;e the( to thro# the case into the hands of the judges for decision% #as si(ply an illegal and unconstitutional atte(pt to o$erturn the Kla# of the land%K #hich he #as s#orn to (aintain% and gather po#er into his o#n hands% through his judges) /e had just as (uch constitutional po#er to enact that the jurors should not be co(pelled to declare the facts% but that they (ight lea$e the( to be deter(ined by the &ingRs judges% as he had to enact that they should not be co(pelled to declare the la#% but (ight lea$e it to be decided by the &ingRs judges) !88 2t #as as (uch the legal duty of the jury to decide the la# as to decide the factS and no la# of the &ing could affect their obligation to do either) And this statute is only one exa(ple of the nu(berless contri$ances and usurpations #hich ha$e been resorted to% for the purpose of destroying the original and genuine trial by jury) 7!: =arches% the li(its% or boundaries% bet#een England and *ales) 78: That the &ings #ould ha$e had no scruples to enact la#s for the special purpose of plundering the people% by (eans of the judg(ents of juries% if they could ha$e got juries to ac&no#ledge the authority of their la#s% is e$ident fro( the audacity #ith #hich they plundered the(% #ithout any judg(ents of juries to authori;e the() 2t is not necessary to occupy space here to gi$e details as to these robberiesS but only so(e e$idence of the general fact) /alla( says% that K,or the first three reigns @of the 4or(an &ingsA * * the intolerable exactions of tribute% the rapine of pur$eyance% the iniIuity of royal courts% are continually in the (ouths of the historians) R God sees the #retched people%R says the Saxon "hronicler% R(ost unjustly oppressedS first they are despoiled of their possessions% and then butchered)R This #as a grie$ous year @!!8EA) *hoe$er had any property% lost it by hea$y taxes and unjust decrees)K 8 =iddle Ages% EDJCM) K2n the succeeding reign of John% all the rapacious exactions usual to these 4or(an &ings #ere not only redoubled% but (ingled #ith outrages of tyranny still (ore intolerable) K2n !891 John too& a se$enth of the (o$ables of lay and spiritual

persons% all (ur(uring% but none daring to spea& against it)K +itto% EEM) 2n /u(eRs account of the extortions of those ti(es% the follo#ing paragraph occurs? KBut the (ost barefaced acts of tyranny and oppression #ere practised against the Je#s% #ho #ere entirely out of the protection of the la#% and #ere abandoned to the i((easurable rapacity of the &ing and his (inisters) Besides (any other indignities% to #hich they #ere continually exposed% it appears that they #ere once all thro#n into prison% and the su( of MM%999 (ar&s exacted for their liberty) At another ti(e% 2saac% the Je#% paid alone J!99 (ar&sK% Brun% D999 (ar&sS Jurnet% 8999S Bennet% J99) At another% Licorica% #ido# of +a$id% the Je# of 5xford% #as reIuired to pay M999 (ar&s)K /u(eRs /ist Eng)% Appendix 8) ,urther accounts of the extortions and oppressions of the &ings (ay be found in /u(eRs /istory% Appendix 8% and in /alla(Rs =iddle Ages% $ol) 8% p) EDJ to EEM) By =agna "arta John bound hi(self to (a&e restitution for so(e of the spoliations he had co((itted upon indi$iduals K#ithout the legal judg(ent of their peers)K See =agna "arta of John% ch) M9% M!% MJ and MM) 5ne of the great charges% on account of #hich the nation rose against John% #as% that he plundered indi$iduals of their property% K#ithout legal judg(ent of their peers)K 4o# it #as e$idently $ery #ea& and short sighted in John to expose hi(self to such charges% if his la#s #ere really obligatory upon the peersS because% in that case% he could ha$e enacted any la#s that #ere necessary for his purpose% and then% by ci$il suits% ha$e brought the cases before juries for their Kjudg(ent%K and thus ha$e acco(plished all his robberies in a perfectly legal (anner) There #ould e$idently ha$e been no sense in these co(plaints% that he depri$ed (en of their property K#ithout legal judg(ent of their peers%K if his la#s had been binding upon the peersS because he could then ha$e (ade the sa(e spoliations as #ell #ith the judg(ent of the peers as #ithout it) Ta&ing the judg(ent of the peers in the (atter% #ould ha$e been only a ridiculous and useless for(ality% if they #ere to exercise no discretion or conscience of their o#n% independently of the la#s of the &ing) 2t (ay here be (entioned% in passing% that the sa(e #ould be true in cri(inal (ature% if the &ingRs La#s #ere obligatory upon juries) As an illustration of #hat tyranny the &ings #ould so(eti(es practise% /u(e says? K2t appears fro( the Great "harter itself% that not only John% a tyrannical prince% and .ichard% a $iolent one% but their father /enry% under #hose reign the pre$alence of gross abuses is the least to be suspected% #ere accusto(ed% fro( their sole authority% #ithout process of la#% to i(prison% banish% and

attaint the free(en of their &ingdo()K /u(e% Appendix 8) The pro$ision% also% in the MEth chapter of =agna "arta% that K all unjust and illegal fines% and all a(erce(ents% i(posed unjustly% and contrary to the La# of the Land% shall be entirely forgi$en%K XcS)S and the pro$ision% in chapter M!% that the &ing K#ill cause full justice to be ad(inisteredK in regard to Kall those things% of #hich any person has% #ithout legal judg(ent of his peers% been dispossessed or depri$ed% either by Uing /enry% our father)% or our brother% Uing .ichard%K indicate the tyrannical practices that pre$ailed) *e are told also that John hi(self Khad dispossessed se$eral great (en #ithout any judg(ent of their peers% conde(ned others to cruel deaths% * * inso(uch that his tyrannical #ill stood instead of a la#)K EchardRs /istory of England% !9M) 4o# all these things #ere $ery unnecessary and foolish% if his la#s #ere binding upon juriesS because% in that ease% he could ha$e procured the con$iction of these (en in a legal (anner% and thus ha$e sa$ed the necessity of such usurpation) 2n short% if the la#s of the &ing had been binding upon juries% there is no robbery% $engeance% or oppression% #hich he could not ha$e acco(plished through the judg(ents of juries) This consideration is sufficient% of itself% to pro$e that the la#s of the &ing #ere of no authority o$er a jury% in either ci$il or cri(inal cases% unless the juries regarded the la#s as just in the(sel$es) 7D: By the =agna "arta of /enry 222)% this is changed to once a year) 7E: ,ro( the pro$ision of =agna "arta% cited in the text% it (ust be inferred that there can be no legal trial by jury% in ci$il eases% if only the &ingRs justices presideS that% to (a&e the trial legal% there (ust be other persons% chosen by the people% to sit #ith the(S the object being to pre$ent the juryRs being decei$ed by the justices) 2 thin& #e (ust also infer that the &ingRs justices could sit only in the three actions specially (entioned) *e cannot go beyond the letter of =agria "arta% in (a&ing inno$ations upon the co((on la#% #hich reIuired all presiding officers in jury trials to be elected by the people) 7J: 7KThe earls% sheriffs% and headCboroughs #ere annually elected in the full folc(ote% @peopleRs (eetingA)K 2ntroduction to GilbertRs /istory of the "o((on Pleas% p) 8% note) K2t #as the especial pro$ince of the earldo(en or earl to attend the shyreC(eeting% @the county court%A t#ice a year% and there officiate as the county judge in expounding the secular la#s% as appears by the fifth of EdgarRs la#s)K Sa(e% p) 8% note) KE$ery #ard had its proper alder(an% #ho #as chosen% and not i(posed by the prince)K Sa(e% p) E% text) KAs the alder(en% or earls% #ere al#ays chosenK @by the peopleA Kfro( a(ong the greatest thanes% #ho in those ti(es #ere generally (ore addicted to ar(s than to letters% they #ere but illCIualified for the ad(inistration of justice% and perfor(ing

the ci$il duties of their office)K D /enryRs /istory of Great Britain% DED) KBut none of these thanes #ere annually elected in the full folc(ote% @peopleRs (eeting%A as the earls% sheriffs% and headCboroughs #ereS nor did Uing Alfred @as this author suggestsA depri$e the people of the election of those last (entioned (agistrates and nobles% (uch less did he appoint the( hi(self)K 2ntrod) to GilbertRs /ist) "o() Pleas% p) 8% note) KThe sheriff #as usually not appointed by the lord% but elected by the freeholders of the district)K Political +ictionary% #ord Sheriff) KA(ong the (ost re(ar&able of the Saxon la#s #e (ay rec&on * * the election of their (agistrates by the people% originally e$en that of their &ings% till dearCbought experience e$inced the con$enience and necessity of establishing an hereditary succession to the cro#n) But that @the electionA of all subordinate (agistrates% their (ilitary officers or heretochs% their sheriffs% their conser$ators of the peace% their coroners% their portree$es% @since changed into (ayors and bailiffs%A and e$en their tithingC(en and borsholders at the last% continued% so(e% till the 4or(an conIuest% others for t#o centuries after% and so(e re(ain to this day)K E Blac&stone% E!6) KThe election of sheriffs #as left to the people% according to ancient usage)K St) *est) !% c) 81) "rabbeRs /istory of English La#% !6!)

"/APTE. -) 5BJE"T254S A4S*E.E+ The follo#ing objections #ill be (ade to the doctrines and the e$idence presented in the preceding chapters) !) That it is a (axi( of the la#% that the judges respond to the Iuestion of la#% and juries only to the Iuestion of fact) The ans#er to this objection is% that% since =agna "arta% judges ha$e had (ore than six centuries in #hich to in$ent and pro(ulgate pretended (axi(s to suit the(sel$esS and this is one of the() 2nstead of expressing the la#% it expresses nothing but the a(bitious and la#less #ill of the judges the(sel$es% and of those #hose instru(ents they are)7!: 8) 2t #ill be as&ed% 5f #hat use are the justices% if the jurors judge both of la# and factQ The ans#er is% that they are of use% !) To assist and enlighten the jurors% if they can% by their ad$ice and infor(ationS such ad$ice and infor(ation to be recei$ed only for #hat they (ay chance to be #orth in the esti(ation of the jurors) 8) To do anything that (ay be necessary in regard% to granting appeals and ne# trials) D) 2t is said that it #ould be absurd that t#el$e ignorant (en

should ha$e po#er to judge of the la#% #hile justices learned in the la# should be co(pelledto sit by and see the la# decided erroneously) 5ne ans#er to this objection is% that the po#ers of juries are not granted to the( on the supposition that they &no# the la# better than the justicesS but on the ground that the justices are untrust#orthy% that they are exposed to bribes% are the(sel$es fond of po#er and authority% and are also the dependent and subser$ient creatures of the legislatureS and that to allo# the( to dictate the la#% #ould not only expose the rights of parties to be sold for (oney% but #ould be eIui$alent to surrendering all the property% liberty% and rights of the people% unreser$edly into the hands of arbitrary po#er% @the legislature%A to be disposed of at its pleasure) The po#ers of juries% therefore% not only place a curb upon the po#ers of legislators and judges% but i(ply also an i(putation upon their integrity and trust#orthiness? and these are the reasons #hy legislators and judges ha$e for(erly entertained the intensest hatred of juries% and% so fast as they could do it #ithout alar(ing the people for their liberties% ha$e% by indirection% denied% under(ined% and practically destroyed their po#er) And it is only since all the real po#er of juries has been destroyed% and they ha$e beco(e (ere tools in the hands of legislators and judges% that they ha$e beco(e fa$orites #ith the() Legislators and judges are necessarily exposed to all the te(ptations of (oney% fa(e% and po#er% to induce the( to disregard justice bet#een parties% and sell the rights% and $iolate the liberties of the people) Jurors% on the other hand% are exposed to none of these te(ptations) They are not liable to bribery% for they are un&no#n to the parties until they co(e into the juryCbox) They can rarely gain either fa(e% po#er% or (oney% by gi$ing erroneous decisions) Their offices are te(porary% and they &no# that #hen they shall ha$e executed the(% they (ust return to the people% to hold all their o#n rights in life subject to the liability of such judg(ents% by their successors% as they the(sel$es ha$e gi$en an exa(ple for) The la#s of hu(an nature do not per(it the supposition that t#el$e (en% ta&en by lot fro( the (ass of the people% and acting under such circu(stances% #ill all pro$e dishonest) 2t is a supposable case that they (ay not be sufficiently enlightened to &no# and do their #hole duty% in all cases #hatsoe$erS but that they should all pro$e dishonest% is not #ithin the range of probability) A jury% therefore% insures to us #hat no other court does that first and indispensable reIuisite in a judicial tribunal% integrity) E) 2t is alleged that if juries are allo#ed to judge of the la#% they decide the la# absolutelyS that their decision (ust necessarily stand% be it right or #rongS and that this po#er of absolute decision #ould be dangerous in their hands% by reason of their ignorance of the la#) 5ne ans#er is% that this po#er% #hich juries ha$e of judging of the la#% is not a po#er of absolute decision in all cases) ,or exa(ple% it is a po#er to declare i(perati$ely that a (anRs property% liberty% or life% shall not be ta&en fro( hi(S but it is not a po#er to declare i(perati$ely that they shall be ta&en fro(

hi() =agna "arta does not pro$ide that the judg(ents of the peers shall be executedS but only that no other than their judg(ents shall e$er be executed% so far as to ta&e a partyRs goods% rights% or person% thereon) A judg(ent of the peers (ay be re$ie#ed% and in$alidated% and a ne# trial granted) So that practically a jury has no absolute po#er to ta&e a partyRs goods% rights% or person) They ha$e only an absolute $eto upon their being ta&en by the go$ern(ent) The go$ern(ent is not bound to do e$erything that a jury (ay adjudge) 2t is only prohibited fro( doing anything @that is% fro( ta&ing a partyRs goods% rights% or personA unless a jury ha$e first adjudged it to be done) But it #ill% perhaps% be said% that if an erroneous judg(ent of one jury should be reaffir(ed by another% on a ne# trial% it (ust then be executed) But =agna "arta does not co((and e$en this although it (ight% perhaps% ha$e been reasonably safe for it to ha$e done so for if t#o juries unani(ously affir( the sa(e thing% after all the light and aid that judges and la#yers can afford the(% that fact probably furnishes as strong a presu(ption in fa$or of the correctness of their opinion% as can ordinarily be obtained in fa$or of a judg(ent% by any (easures of a practical character for the ad(inistration of justice) Still% there is nothing in =agna "arta that co(pels the execution of e$en a second judg(ent of a jury) The only injunction of =agna "arta upon the go$ern(ent% as to #hat it shall do% on this point% is that it shall Kdo justice and right%K #ithout sale% denial% or delay) But this lea$es the go$ern(ent all po#er of deter(ining #hat is justice and right% except that it shall not consider anything as justice and right so far as to carry it into execution against the goods% rights% or person of a party unless it be so(ething #hich a jury ha$e sanctioned) 2f the go$ern(ent had no alternati$e but to execute all judg(ents of a jury indiscri(inately% the po#er of juries #ould unIuestionably be dangerousS for there is no doubt that they (ay so(eti(es gi$e hasty and erroneous judg(ents) But #hen it is considered that their judg(ents can be re$ie#ed% and ne# trials granted% this danger is% for all practical purposes% ob$iated) 2f it be said that juries (ay successi$ely gi$e erroneous judg(ents% and that ne# trials cannot be granted indefinitely% the ans#er is% that so far as =agna "arta is concerned% there is nothing to pre$ent the granting of ne# trials indefinitely% if the judg(ents of juries are contrary to Kjustice and right)K So that =agna "arta does not reIuire any judg(ent #hate$er to be executed so far as to ta&e a partyRs goods% rights% or person% thereon unless it be concurred in by both court and jury) 4e$ertheless% #e (ay% for the sa&e of the argu(ent% suppose the existence of a practical% if not legal% necessity% for executing so(e judg(ent or other% in cases #here juries persist in disagreeing #ith the courts) 2n such cases% the principle of =agna "arta unIuestionably is% that the unifor( judg(ents of

successi$ejuries shall pre$ail o$er the opinion of the court) And the reason of this principle is ob$ious% $i;)% that it is the #ill of the country% and not the #ill of the court% or the go$ern(ent% that (ust deter(ine #hat la#s shall be established and enforcedS that the concurrent judg(ents of successi$e juries% gi$en in opposition to all the reasoning #hich judges and la#yers can offer to the contrary% (ust necessarily be presu(ed to be a truer exposition of the #ill of the country% than are the opinions of the judges) But it (ay be said that% unless jurors sub(it to the control of the court% in (atters of la#% they (ay disagree a(ongthe(sel$es% and ne$er co(e to any judg(entS and thus justice fail to be done) Such a case is perhaps possibleS but% if possible% it can occur but rarelyS because% although one jury (ay disagree% a succession of juries are not li&ely to disagree that is% on (atters of natural la#% or abstract justice) 78: 2f such a thing should occur% it #ould al(ost certainly be o#ing to the atte(pt of the court to (islead the() 2t is hardly possible that any other cause should be adeIuate to produce such an effectS because justice co(es $ery near to being a selfCe$ident principle) The (ind percei$es it al(ost intuiti$ely) 2f% in addition to this% the court be unifor(ly on the side of justice% it is not a reasonable supposition that a succession of juries should disagree about it) 2f% therefore% a succession of juries do disagree on the la# of any case% the presu(ption is% not that justice fails of being done% but that injustice is pre$ented that injustice% #hich #ould be done% if the opinion of the court #ere suffered to control the jury) ,or the sa&e of the argu(ent% ho#e$er% it (ay be ad(itted to be possible that justice should so(eti(es fail of being done through the disagree(ents of jurors% not#ithstanding all the light #hich judges and la#yers can thro# upon the Iuestion in issue) 2f it be as&ed #hat pro$ision the trial by jury (a&es for such cases% the ans#er is% it (a&es noneS and justice (ust fail of being done% fro( the #ant of its being (ade sufficiently intelligible) <nder the trial by jury% justice can ne$er be done that is% by a judg(ent that shall ta&e a partyRs goods% rights% or person until that justice can be (ade intelligible or perceptible to the (inds of all the jurorsS or% at least% until it obtain the $oluntary assent of all an assent% #hich ought not to be gi$en until the justice itself shall ha$e beco(e perceptible to all) The principles of the trial by jury% then% are these? !) That% in cri(inal cases% the accused is presu(ed innocent) 8) That% in ci$il cases% possession is presu(pti$e proof of propertyS or% in other #ords% e$ery (an is presu(ed to be the rightful proprietor of #hate$er he has in his possession) D) That these presu(ptions shall be o$erco(e% in a court of justice% only by e$idence% the sufficiency of #hich% and by la#% the justice of #hich% are satisfactory to the underC standing and consciences of all the jurors)

These are the bases on #hich the trial by jury places the property% liberty% and rights of e$ery indi$idual) But so(e one #ill say% if these are the principles of the trial by jury% then it is plain that justice (ust often fail to be done) Ad(itting% for the sa&e of the argu(ent% that this (ay be true% the co(pensation for it is% that positi$e injustice #ill also often fail to be doneS #hereas other#ise it #ould be done freIuently) The $ery precautions used to pre$ent injustice being done% (ay often ha$e the effect to pre$ent justice being done) Bu are #e% therefore% to ta&e no precautions against injusticeQ By no (eans% all #ill agree) The Iuestion then arises +oes the trial by jury% as here explained% in$ol$e such extre(e and unnecessary precautions against injustice% as to interpose unnecessary obstacles to the doing of justiceQ =en of different (inds (ay $ery li&ely ans#er this Iuestion differently% according as they ha$e (ore or less confidence in the #isdo( and justice of legislators% the integrity and independence of judges% and the intelligence of jurors) This (uch% ho#e$er% (ay be said in fa$or of these precautions% $i;)% that the history of the past% as #ell as our constant present experience% pro$e ho# (uch injustice (ay% and certainly #ill% be done% syste(atically and continually% for the #ant of these precautions that is% #hile the la# is authoritati$ely (ade and expounded by legislators and judges) 5n the other hand% #e ha$e no such e$idence of ho# (uch justice (ay fail to be done% by reason of these precautions that is% by reason of the la# being left to the judg(ents and consciences of jurors) *e can deter(ine the for(er point that is% ho# (uch positi$e injustice is done under the first of these t#o syste(s because the syste( is in full operationS but #e cannot deter(ine ho# (uch justice #ould fail to be done under the latter syste(% because #e ha$e% in (odern ti(es% had no experience of the use of the precautions the(sel$es) 2n ancient ti(es% #hen these precautions #ere no(inally in force% such #as the tyranny of &ings% and such the po$erty% ignorance% and the inability of concert and resistance% on the part of the people% that the syste( had no full or fair operation) 2t% ne$ertheless% under all these disad$antages% i(pressed itself upon the understandings% and i(bedded itself in the hearts% of the people% so as no other syste( of ci$il liberty has e$er done) But this $ie# of the t#o syste(s co(pares only the injustice done% and the justice o(itted to be done% in the indi$idual cases adjudged% #ithout loo&ing beyond the() And so(e persons (ight% on first thought% argue that% if justice failed of being done under the one syste(% oftener than positi$e injustice #ere done under the other% the balance #as in fa$or of the latter syste() But such a #eighing of the t#o syste(s against each other gi$es no true idea of their co(parati$e (erits or de(eritsS for% possibly% in this $ie# alone% the balance #ould not be $ery great in fa$or of either) To co(pare% or rather to contrast% the t#o% #e (ust consider that% under the jury syste(% the failures to do justice #ould be only rare and exceptional casesS and #ould be o#ing either to the intrinsic difficulty of the Iuestions% or to the fact that the parties had) transacted their business in a (anner unintelligible to the jury% and the effects #ould be confined to

the indi$idual or indi$iduals interested in the particular suits) 4o per(anent la# #ould be established thereby destructi$e of the rights of the people in other li&e cases) And the people at large #ould continue to enjoy all their natural rights as before) But under the other syste(% #hene$er an unjust la# is enacted by the legislature% and the judge i(poses it upon the jury as authoritati$e% and they gi$e a judg(ent in accordance there#ith% the authority of the la# is thereby established% and the #hole people are thus brought under the yo&e of that la#S because they then understand that the la# #ill be enforced against the( in future% if they presu(e to exercise their rights% or refuse to co(ply #ith the exactions of the la#) 2n this (anner all unjust la#s are established% and (ade operati$e against the rights of the people) The difference% then% bet#een the t#o syste(s is this? <nder the one syste(% a jury% at distant inter$als% #ould @not enforce any positi$e injustice% but onlyA fail of enforcing justice% in a dar& and difficult case% or in conseIuence of the parties not ha$ing transacted their business in a (anner intelligible to a juryS and the plaintiff #ould thus fail of obtaining #hat #as rightfully due hi() And there the (atter #ould end% for e$il% though not for goodS for thenceforth parties% #arned% of the danger of losing their rights% #ould be careful to transact their business in a (ore clear and intelligible (anner) <nder the other syste( the syste( of legislati$e and judicial authority positi$e injustice is not only done in e$ery suit arising under unjust la#s% that is% (enRs property% liberty% or li$es are not only unjustly ta&en on those particular judg(ents% but the rights of the #hole people are struc& do#n by the authority of the la#s thus enforced% and a #ideCs#eeping tyranny at once put in operation) But there is another a(ple and conclusi$e ans#er to the argu(ent that justice #ould often fail to be done% if jurors #ere allo#ed to be go$erned by their o#n consciences% instead of the direction of the justices% in (atters of la#) That ans#er is this? Legiti(ate go$ern(ent can be for(ed only by the $oluntary association of all #ho contribute to its support) As a $oluntary association% it can ha$e for its objects only those things in #hich the (e(bers of the association are all agreed) 2f% therefore% there be any justice% in regard to #hich all the parties to the go$ern(ent are not agreed% the objects of the association do not extend to it) 7D: 2f any of the (e(bers #ish (ore than this% if they clai( to ha$e acIuired a (ore extended &no#ledge of justice than is co((on to all% and #ish to ha$e their pretended disco$eries carried into effect% in reference to the(sel$es% they (ust either for( a separate association for that purpose% or be content to #ait until they can (a&e their $ie#s intelligible to the people at large) They cannot clai( or expect that the #hole people shall practise the folly of ta&ing on trust their pretended superior &no#ledge% and of co((itting blindly into their hands all their o#n interests% liberties% and rights% to be disposed of on principles% the justness of #hich the people the(sel$es cannot co(prehend)

A go$ern(ent of the #hole% therefore% (ust necessarily confine itself to the ad(inistration of such principles of la# as all the people% #ho contribute to the support of the go$ern(ent% can co(prehend and see the justice of) And it can be confined #ithin those li(its only by allo#ing the jurors% #ho represent all the parties to the co(pact% to judge of the la#% and the justice of the la#% in all cases #hatsoe$er) And if any justice be left undone% under these circu(stances% it is a justice for #hich the nature of the association does not pro$ide% #hich the association does not underta&e to do% and #hich% as an association% it is under no obligation to do) The people at large% the unlearned and co((on people% ha$e certainly an indisputable right to associate for the establish(ent and (aintenance of such a go$ern(ent as they the(sel$es see the justice of% and feel the need of% for the pro(otion of their o#n interests% and the safety of their o#n rights% #ithout at the sa(e ti(e surrendering all their property% liberty% and rights into the hands of (en% #ho% under the pretence of a superior and inco(prehensible &no#ledge of justice% (ay dispose of such property% liberties% and rights% in a (anner to suit their o#n selfish and dishonest purposes) 2f a go$ern(ent #ere to be established and supported solely by that portion of the people #ho lay clai( to superior &no#ledge% there #ould be so(e consistency in their saying that the co((on people should not be recei$ed as jurors% #ith po#er to judge of the justice of the la#s) But so long as the #hole people @or all the (ale adultsA are presu(ed to be $oluntary parties to the go$ern(ent% and $oluntary contributors to it support% there is no consistency in refusing to any one of the( (ore than to another the right to sit as juror% #ith full po#er to decide for hi(self #hether any la# that is proposed to be enforced in any particular case% be #ithin the objects of the association) The conclusion% therefore% is% that% in a go$ern(ent for(ed by $oluntary association% or on the theory of $oluntary association% and $oluntary support% @as all the 4orth A(erican go$ern(ents are%A no la# can rightfully be enforced by the association in its corporate capacity% against the goods% rights% or person of any indi$idual% except it be such as all the (e(bers of the association agree that it (ay enforce) To enforce any other la#% to the extent of ta&ing a (anRs goods% rights% or person% #ould be (a&ing so(e of the parties to the association acco(plices in #hat they regard as acts of injustice) 2t #ould also be (a&ing the( consent to #hat they regard as the destruction of their o#n rights) These are things #hich no legiti(ate syste( or theory of go$ern(ent can reIuire of any of the parties to it) The (ode adopted% by the trial by jury% for ascertaining #hether all the parties to the go$ern(ent do appro$e of a particular la#% is to ta&e t#el$e (en at rando( fro( the #hole people% and accept their unani(ous decision as representing the opinions of the #hole) E$en this (ode is not theoretically accurateS for theoretical accuracy #ould reIuire that e$ery (an% #ho #as a party to the go$ern(ent% should indi$idually gi$e his consent to the enforce(ent of e$ery la# in e$ery separate case) But such a thing

#ould be i(possible in practice) The consent of t#el$e (en is therefore ta&en insteadS #ithCthe pri$ilege of appeal% and @in case of error found by the appeal courtA a ne# trial% to guard against possible (ista&es) This syste(% it is assu(ed% #ill ascertain the sense of the #hole people Kthe countryK #ith sufficient accuracy for all practical purposes% and #ith as (uch accuracy as is practicable #ithout too great incon$enience and expense) J) Another objection that #ill perhaps be (ade to allo#ing jurors to judge of the la#% and the justice of the la#% is% that the la# #ould be uncertain) 2f% by this objection% it be (eant that the la# #ould be uncertain to the (inds of the people at large% so that they #ould not &no# #hat the juries #ould sanction and #hat conde(n% and #ould not therefore &no# practically #hat their o#n rights and liberties #ere under the la#% the objection is thoroughly baseless and false) 4o syste( of la# that #as e$er de$ised could be so entirely intelligible and certain to the (inds of the people at large as this) "o(pared #ith it% the co(plicated syste(s of la# that are co(pounded of the la# of nature% of constitutional grants% of innu(erable and incessantly changing legislati$e enact(ents% and of countless and contradictory judicial decisions% #ith no unifor( principle of reason or justice running through the(% are a(ong the blindest of all the (a;es in #hich unsophisticated (inds #ere e$er be#ildered and lost) The uncertainty of the la# under these syste(s has beco(e a pro$erb) So great is this uncertainty% that nearly all (en% learned as #ell as unlearned% shun the la# as their ene(y% instead of resorting to it for protection) They usually go into courts of justice% so called% only as (en go into battle #hen there is no alternati$e left for the() And e$en then they go into the( as (en go into dar& labyrinths and ca$erns #ith no &no#ledge of their o#n% but trusting #holly to their guides) 3et% less fortunate than other ad$enturers% they can ha$e little confidence e$en in their guides% for the reason that the guides the(sel$es &no# little of the (a;es they are threading) They &no# the (ode and place of entranceS but #hat they #ill (eet #ith on their #ay% and #hat #ill be the ti(e% (ode% place% or condition of their exitS #hether they #ill e(erge into a prison% or notS #hether #holly na&ed and destitute% or notS #hether #ith their reputations left to the(% or notS and #hether in ti(e or eternityS experienced and honest guides rarely $enture to predict) *as there e$er such fatuity as that of a nation of (en (adly bent on building up such labyrinhs as these% for no other purpose than that of exposing all their rights of reputation% property% liberty% and life% to the ha;ards of being lost in the(% instead of being content to li$e in the light of the open day of their o#n understandingsQ *hat honest% unsophisticated (an e$er found hi(self in$ol$ed in a la#suit% that he did not desire% of all things% that his cause (ight be judged of on principles of natural justice% as those principles #ere understood by plain (en li&e hi(selfQ /e #ould then feel that he could foresee the result) These plain (en are the (en #ho pay the taxes% and support the go$ern(ent) *hy should they not ha$e such an ad(inistration of justice as they

desire% and can understandQ 2f the jurors #ere to judge of the la#% and the justice of the la#% there #ould be so(ething li&e certainty in the ad(inistration of justice% and in the popular &no#ledge of the la#% and (en #ould go$ern the(sel$es accordingly) There #ould be so(ething li&e certainty% because e$ery (an has hi(self so(ething li&e definite and clear opinions% and also &no#s so(ething of the opinions of his neighbors% on (atters of justice) And he #ould &no# that no statute% unless it #ere so clearly just as to co((and the unani(ous assent of t#el$e (en% #ho should be ta&en at rando( fro( the #hole co((unity% could be enforced so as to ta&e fro( hi( his reputation% property% liberty% or life) *hat greater certainty can (en reIuire or need% as to the la#s under #hich they are to li$eQ 2f a statute #ere enacted by a legislature% a (an% in order to &no# #hat #as its true interpretation% #hether it #ere constitutional% and #hether it #ould be enforced% #ould not be under the necessity of #aiting for years until so(e suit had arisen and been carried through all the stages of judicial proceeding% to a final decision) /e #ould need only to use his o#n reason as to its (eaning and its justice% and then tal& #ith his neighbors on the sa(e points) <nless he found the( nearly unani(ous in their interpretation and approbation of it% he #ould conclude that juries #ould not unite in enforcing it% and that it #ould conseIuently be a dead letter) And he #ould be safe in co(ing to this conclusion) There #ould be so(ething li&e certainty in the ad(inistration of justice% and in the popular &no#ledge of the la#% for the further reason that there #ould be little legislation% and (enRs rights #ould be left to stand al(ost solely upon the la# of nature% or #hat #as once called in England Kthe co((on la#%K @before so (uch legislation and usurpation had beco(e incorporated into the co((on la#%A in other #ords% upon the principles of natural justice) 5f the certainty of this la# of nature% or the ancient English co((on la#% 2 (ay be excused for repeating here #hat% 2 ha$e said on another occasion) K4atural la#% so far fro( being uncertain% #hen co(pared #ith statutory and constitutional la#% is the only thing that gi$es any certainty at all to a $ery large portion of our statutory and constitutional la#) The reason is this) The #ords in #hich statutes and constitutions are #ritten are susceptible of so (any different (eanings% (eanings #idely different fro(% often directly opposite to% each other% in their bearing upon (enRs rights% that% unless there #ere so(e rule of interpretation for deter(ining #hich of these $arious and opposite (eanings are the true ones% there could be no certainty at all as to the (eaning of the statutes and constitutions the(sel$es) Judges could (a&e al(ost anything they should please out of the() /ence the necessity of a rule of interpretation) And this rule is% that the language of statutes and constitutions shall be construed% as nearly as possible% consistently #ith natural la#) The rule assu(es% #hat is true% that natural la# is a thing certain in itselfS also that it is capable of being learned) 2t assu(es% further(ore% that it actually is understood by the legislators and judges #ho (a&e and interpret the #ritten la#)

5f necessity% therefore% it assu(es further% that they @the legislators and judgesA are inco(petent to (a&e and interpret the #ritten la#% unless they pre$iously understand the natural la# applicable to the sa(e subject) 2t also assu(es that the people (ust understand the natural la#% before they can understated the #ritten la#) 2t is a principle perfectly fa(iliar to la#yers% and one that (ust be perfectly ob$ious to e$ery other (an that #ill reflect a (o(ent% that% as a general rule% no one can &no# #hat the #ritten la# is% until he &no#s #hat it ought to beS that (en are liable to be constantly (isled by the $arious and conflicting senses of the sa(e #ords% unless they percei$e the true legal sense in #hich the #ords ought to be ta&en) And this true legal sense is the sense that is (ost nearly consistent #ith natural la# of any that the #ords can be (ade to bear% consistently #ith the la#s of language% and appropriately to the subjects to #hich they are applied) Though the #ords contain the la#% the #ords the(sel$es are not the la#) *ere the #ords the(sel$es the la#% each single #ritten la# #ould be liable to e(brace (any different la#s% to #it% as (any different la#s as there #ere different senses% and different co(binations of senses% in #hich each and all the #ords #ere capable of being ta&en) Ta&e% for exa(ple% the "onstitution of the <nited States) By adopting one or another sense of the single #ord Kfree%K the #hole instru(ent is changed) 3et the #ord free is capable of so(e ten or t#enty different senses) So that% by changing the sense of that single #ord% so(e ten or t#enty different constitutions could be (ade out of the sa(e #ritten instru(ent) But there are% #e #ill suppose% a thousand other #ords in the constitution% each of #hich is capable of fro( t#o to ten different senses) So that% by changing the sense of only a single #ord at a ti(e% se$eral thousands of different constitutions #ould be (ade) But this is not all) -ariations could also be (ade by changing the senses of t#o or (ore #ords at a ti(e% and these $ariations could be run through all the changes and co(binations of senses that these thousand #ords are capable of) *e see% then% that it is no (ore than a literal truth% that out of that single instru(ent% as it no# stands% #ithout altering the location of a single #ord% (ight be for(ed% by construction and interpretation% (ore different constitutions than figures can #ell esti(ate) But each #ritten la#% in order to be a la#% (ust be ta&en only in so(e one definite and distinct senseS and that definite and distinct sense (ust be selected fro( the al(ost infinite $ariety of senses #hich its #ords are capable of) /o# is this selection to be (adeQ 2t can be only by the aid of that perception of natural la#% or natural justice% #hich (en naturally possess) Such% then% is the co(parati$e certainty of the natural and the #ritten la#) 4early all the certainty there is in the latter% so far as it relates to principles% is based upon% and deri$ed fro(% the still greater certainty of the for(er) 2n fact% nearly all the uncertainty of the la#s under #hich #e li$e% #hich are a (ixture of natural and #ritten la#s% arises fro( the difficulty of construing% or% rather% fro( the facility of (isconstruing% the

#ritten la#S #hile natural la# has nearly or Iuite the sa(e certainty as (athe(atics) 5n this point% Sir *illia( Jones% one of the (ost learned judges that ha$e e$er li$ed% learned in Asiatic as #ell as European la#% says% and the fact should be &ept fore$er in (ind% as one of the (ost i(portant of all truths? K2t is pleasing to re(ar&% the si(ilarity% or% rather% the identity of those conclusions #hich pure% unbiased reason% in all agesS and nations% seldo( fails to dra#% in such juridical inIuiries as are not fettered and (anacled by positi$e institutions)K 7E: 2n short% the si(ple fact that the #ritten la# (ust be interpreted by the natural% is% of itself% a sufficient confession of the superior certainty of the latter) The #ritten la#% then% e$en #here it can be construed consistently #ith the natural% introduces labor and obscurity% instead of shutting the( out) And this (ust al#ays be the case% because #ords do not create ideas% but only recall the(S and the sa(e #ord (ay recall (any different ideas) ,or this reason% nearly all abstract principles can be seen by the single (ind (ore clearly than they can be expressed by #ords to another) This is o#ing to the i(perfection of language% and the different senses% (eanings% and shades of (eaning% #hich different indi$iduals attach to the sa(e #ords% in the sa(e circu(stances) 7J: *here the #ritten la# cannot be construed consistently #ith the natural% there is no reason #hy it should e$er be enacted at all) 2t (ay% indeed% be sufficiently plain and certain to be easily understoodS but its certainty and plainness are but a poor co(pensation for its injustice) +oubtless a la# forbidding (en to drin& #ater% on pain of death% (ight be (ade so intelligible as to cut off all discussion as to its (eaningS but #ould the intelligibleness of such a la# be any eIui$alent for the right to drin& #aterQ The principle is the sa(e in regard to all unjust la#s) ,e# persons could reasonably feel co(pensated for the arbitrary destruction of their rights% by ha$ing the order for their destruction (ade &no#n beforehand% in ter(s so distinct and uneIui$ocal as to ad(it of neither (ista&e nor e$asion) 3et this is all the co(pensation that such la#s offer) *hether% therefore% #ritten la#s correspond #ith% or differ fro(% the natural% they are to be conde(ned) 2n the first case% they are useless repetitions% introducing labor and obscurity) 2n the latter case% they are positi$e $iolations of (enRs rights) There #ould be substantially the sa(e reason in enacting (athe(atics by statute% that there is in enacting natural la#) *hene$er the natural la# is sufficiently certain to all (enRs (inds to justify its being enacted% it is sufficiently certain to need no enact(ent) 5n the other hand% until it be thus certain% there is danger of doing injustice by enacting itS it should% therefore% be left open to be discussed by anybody #ho (ay be disposed to Iuestion it% and to be judged of by the proper tribunal% the judiciary) 7M: 2t is not necessary that legislators should enact natural la# in order that it (ay be &no#n to the people% because that #ould be

presu(ing that the legislators already understand it better than the people% a fact of #hich 2 a( not a#are that they ha$e e$er heretofore gi$en any $ery satisfactory e$idence) The sa(e sources of &no#ledge on the subject are open to the people that are open to the legislators% and the people (ust be presu(ed to &no# it as #ell as they) The objections (ade to natural la#% on the ground of obscurity% are #holly unfounded) 2t is true% it (ust be learned% li&e any other scienceS but it is eIually true that it is $ery easily learned) Although as illi(itable in its applications as the infinite relations of (en to each other% it is% ne$ertheless% (ade up of si(ple ele(entary principles% of the truth and justice of #hich e$ery ordinary (ind has an al(ost intuiti$e perception) 2t is the science of justice% and al(ost all (en ha$e the sa(e perceptions of #hat constitutes justice% or of #hat justice reIuires% #hen they understand ali&e the facts fro( #hich their inferences are to be dra#n) =en li$ing in contact #ith each other% and ha$ing intercourse together% cannot a$oid learning natural la#% to a $ery great extent% e$en if they #ould) The dealings of (en #ith (en% their separate possessions% and their indi$idual #ants% are continually forcing upon their (inds the Iuestions% 2s this act justQ or is it unjustQ 2s this thing (ineQ or is it hisQ And these are Iuestions of natural la#S Iuestions% #hich% in regard to the great (ass of cases% are ans#ered ali&e by the hu(an (ind e$ery#here) "hildren learn (any principles of natural la# at a $ery early age) ,or exa(ple? they learn that #hen one child has pic&ed up an apple or a flo#er% it is his% and that his associates (ust not ta&e it fro( hi( against his #ill) They also learn that if he $oluntarily exchange his apple or flo#er #ith a play(ate% for so(e other article of desire% he has thereby surrendered his right to it% and (ust not reclai( it) These are funda(ental principles of natural la#% #hich go$ern (ost of the greatest interests of indi$iduals and societyS yet children learn the( earlier than they learn that three and three are six% or fi$e and fi$e% ten) Tal& of enacting natural la# by statute% that it (ay be &no#n' 2t #ould hardly be extra$agant to say% that% in nine cases in ten% (en learn it before they ha$e learned the language by #hich #e describe it) 4e$ertheless% nu(erous treatises are #ritten on it% as on other sciences) The decisions of courts% containing their opinions upon the al(ost endless $ariety of cases that ha$e co(e before the(% are reportedS and these reports are condensed% codified% and digested% so as to gi$e% in a s(all co(pass% the facts% and the opinions of the courts as to the la# resulting fro( the() And these treatises% codes% and digests are open to be read of all (en) And a (an has the sa(e excuse for being ignorant of arith(etic% or any other science% that he has for being ignorant of natural la#) /e can learn it as #ell% if he #ill% #ithout its being enacted% as he could if it #ere) 2f our go$ern(ents #ould but the(sel$es adhere to natural la#% there #ould be little occasion to co(plain of the ignorance of the people in regard to it) The popular ignorance of la# is attributable (ainly to the inno$ations that ha$e been (ade upon natural la# by legislationS #hereby our syste( has beco(e an

incongruous (ixture of natural and statute la#% #ith no unifor( principle per$ading it) To learn such a syste(% if syste( it can be called% and if learned it can be% is a (atter of $ery si(ilar difficulty to #hat it #ould be to learn a syste( of (athe(atics% #hich should consist of the (athe(atics of nature% interspersed #ith such other (athe(atics as (ight be created by legislation% in $iolation of all the natural principles of nu(bers and Iuantities) But #hether the difficulties of learning natural la# be greater or less than here represented% they exist in the nature of things% and cannot be re(o$ed) Legislation% instead of re(o$ing% only increases the(S This it does by inno$ating upon natural truths and principles% and introducing jargon and contradiction% in the place of order% analogy% consistency% and unifor(ity) ,urther than thisS legislation does not e$en profess to re(o$e the obscurity of natural la#) That is no part of its object) 2t only professes to substitute so(ething arbitrary in the place of natural la#) Legislators generally ha$e the sense to see that legislation #ill not (a&e natural la# any clearer than it is) 4either is it the object of legislation to establish the authority of natural la#) Legislators ha$e the sense to see that they can add nothing to the authority of natural la#% and that it #ill stand on its o#n authority% unless they o$erturn it) The #hole object of legislation% excepting that legislation #hich (erely (a&es regulations% and pro$ides instru(entalities for carrying other la#s into effect% is to o$erturn natural la#% and substitute for it the arbitrary #ill of po#er) 2n other #ords% the #hole object of it is to destroy (enRs rights) At least% such is its only effectS and its designs (ust be inferred fro( its effect) Ta&ing all the statutes in the country% there probably is not one in a hundred% except the auxiliary ones just (entioned% that does not $iolate natural la#S that does not in$ade so(e right or other) 3et the ad$ocates of arbitrary legislation are continually practising the fraud of pretending that unless the legislature (a&e the la#s% the la#s #ill not be &no#n) The #hole object of the fraud is to secure to the go$ern(ent the authority of (a&ing la#sthat ne$er ought to be &no#n)K 2n addition to the authority already cited% of Sir *illia( Jones% as to the certainty of natural la#% and the unifor(ity of (enRs opinions in regard to it% 2 (ay add the follo#ing? KThere is that great si(plicity and plainness in the "o((on La#% that Lord "o&e has gone so far as to assert% @and Lord Bacon nearly seconds hi( in obser$ing%A that Rhe ne$er &ne# t#o Iuestions arise (erely upon co((on la#S but that they #ere (ostly o#ing to statutes illCpenned and o$erladen #ith pro$isos)R K D Euno(us% !J1 6) 2f it still be said that juries #ould disagree% as to #hat #as natural justice% and that one jury #ould decide one #ay% and another jury anotherS the ans#er is% that such a thing is hardly credible% as that t#el$e (en% ta&en at rando( fro( the people at large% should unani(ously decide a Iuestion of natural justice one

#ay% and that t#el$e other (en% selected in the sa(e (anner% should unani(ously decide the sa(e Iuestion the other #ay% unless they #ere (isled by the justices) 2f% ho#e$er% such things should so(eti(es happen% fro( any cause #hate$er% the re(edy is by appeal% and ne# trial) 7!: Judges do not e$en li$e up to that part of their o#n (axi(% #hich reIuires jurors to try the (atter of fact) By dictating to the( the la#s of e$idence% that is% by dictating #hat e$idence they (ay hear% and #hat they (ay not hear% and also by dictating to the( rules for #eighing such e$idence as they per(it the( to hear% they of necessity dictate the conclusion to #hich they shall arri$e) And thus the court really tries the Iuestion of fact% as #ell as the Iuestion of la#% in e$ery cause) 2t is clearly i(possible% in the nature of things% for a jury to try% a Iuestion of fact% #ithout trying e$ery Iuestion of la# on #hich the fact depends) 78: =ost disagree(ents of juries are on (atters of fact% #hich are ad(itted to be #ithin their pro$ince) *e ha$e little or no e$idence of their disagree(ents on (atters of natural justice) The disagree(ents of courts on (atters of la#% afford little or no e$idence that juries #ould also disagree on (atters of la# that is% of justice% because the disagree(ents of courts are generally on (atters of legislation% and not on those principles of abstract justice% by #hich juries #ould be go$erned% and in regard to #hich the (inds of (en are nearly unani(ous) 7D: This is the principle of all $oluntary associations #hatsoe$er) 4o $oluntary association #as e$er for(ed% and in the nature of things there ne$er can be one for(ed% for the acco(plish(ent of any objects except those in #hich all the parties to the association are agreed) Go$ern(ent% therefore% (ust be &ept #ithin these li(its% or it is no longer a $oluntary association of all #ho contribute to its support% but a (ere tyrant established by a part o$er the rest) All% or nearly all% $oluntary associations gi$e to a (ajority% or to so(e other portion of the (e(bers less than the #hole% the right to use so(e li(ited discretion as to the(eans to be used to acco(plish the ends in $ie#S but the end the(sel$es to be acco(plished are al#ays precisely defined% and are such as e$ery (e(ber necessarily agrees to% else he #ould not $oluntarily join the association) Justice is the object of go$ern(ent% and those #ho support the go$ern(ent% (ust be agreed as to the justice to be executed by it% or they cannot rightfully unite in (aintaining the go$ern(ent itself) 7E: Jones on Bail(ents% 7J: Uent% describing the difficulty of construing the #ritten la#% says? KSuch is the i(perfection of language% and the #ant of technical s&ill in the (a&ers of the la#% that statutes often gi$e occasion

to the (ost perplexing and distressing doubts and discussions% arising fro( the a(biguity that attends the() 2t reIuires great experience% as #ell as the co((and of a perspicuous diction% to fra(e a la# in such clear and precise ter(s% as to secure it fro( a(biguous expressions% and fro( all doubts and criticis(s upon its (eaning K Uent% EM9) The follo#ing extract fro( a speech of Lord Brougha(% in the /ouse of Lords% confesses the sa(e difficulty? There #as another subject% #ell #orthy of the consideration of go$ern(ent during the recess% the expediency% or rather the absolute necessity% of so(e arrange(ent for the preparation of bills% not (erely pri$ate% but public bills% in order that legislation (ight be consistent and syste(atic% and that the courts (ight not ha$e so large a portion of their ti(e occupied in endea$oring to construe acts of Parlia(ent% in (any cases unconstruable% and in (ost cases difficult to be construed)K La# .eporter% !6E6% p) J8J) 7M: This conde(nation of #ritten la#s (ust% of course% be understood as applying only to cases #here principles and rights are in$ol$ed% and not as conde(ning any go$ern(ental arrange(ents% or instru(entalities% that are consistent #ith natural right% and #hich (ust be agreed upon for the purpose of carrying natural la# into effect) These things (ay be $aried% as expediency (ay dictate% so only that they be allo#ed to infringe no principle of justice) And they (ust% of course% be #ritten% because they do not exist as fixed principles% or la#s in nature) "/APTE. -2) J<.2ES 5, T/E P.ESE4T +A3 2LLEGAL 2t (ay probably be safely asserted that there are% at this day% no legal juries% either in England or A(erica) And if there are no legal juries% there is% of course% no legal trial% nor Kjudg(ent%K by jury) 2n saying that there are probably no legal juries% 2 (ean that there are probably no juries appointed in confor(ity #ith the principles of the co((on la#) The ter( jury is a technical one% deri$ed fro( the co((on la#S and #hen the A(erican constitutions pro$ide for the trial by jury% they pro$ide for the co((on la# trial by juryS and not (erely for any trial by jury that the go$ern(ent itself (ay chance to in$ent% and call by that na(e) 2t is the thing% and not (erely the na(e% that is guarantied) Any legislation% therefore% that infringes any essential principle of the co((on la#% in the selection of jurors% is unconstitutionalS and the juries selected in accordance #ith such legislation are% of course% illegal% and their judg(ents $oid) 2t #ill also be sho#n% in a subseIuent chapter% 7!: that since =agna "arta% the legislati$e po#er in England @#hether &ing or parlia(entA has ne$er had any constitutional authority to infringe% by legislation% any essential principle of the co((on

la# in the selection of jurors) All such legislation is as (uch unconstitutional and $oid% as though it abolished the trial by jury altogether) 2n reality it does abolish it) *hat% then% are the essential principles of the co((on la#% controlling the selection of jurorsQ They are t#o) !) That all the free(en% or adult (ale (e(bers of the state% shall be eligible as jurors) 78: Any legislation #hich reIuires the selection of jurors to be (ade fro( a less nu(ber of free(en than the #hole% (a&es the jury selected an illegal one) 2f a part only of the free(en% or (e(bers of the state% are eligible as jurors% the jury no longer represent Kthe country%K but only a part of Kthe country)K 2f the selection of jurors can be restricted to any less nu(ber of free(en than the #hole% it can be restricted to a $ery s(all proportion of the #holeS and thus the go$ern(ent be ta&en out of the hands of K the country%K or the #hole people% and be thro#n into the hands of a fe#) That% at co((on la#% the #hole body of free(en #ere eligible as jurors% is sufficiently pro$ed% not only by the reason of the thing% but by the follo#ing e$idence? !) E$erybody (ust be presu(ed eligible% until the contrary be sho#n) *e ha$e no e$idence% that 2 a( a#are of% of a prior date to =agna "arta% to dispro$e that all free(en #ere eligible as jurors% unless it be the la# of Ethelred% #hich reIuires that they be elderly 7D: (en) Since no specific age is gi$en% it is probable% 2 thin&% that this statute (eant nothing (ore than that they be (ore than t#entyCone years old) 2f it (eant anything (ore% it #as probably contrary to the co((on la#% and therefore $oid) 8) Since =agna "arta% #e ha$e e$idence sho#ing Iuite conclusi$ely that all free(en% abo$e the age of t#entyCone years% #ere eligible as jurors) The =irror of Justices% @#ritten #ithin a century after =agna "arta%A in the section K 5f JudgesK that is% jurors says? KAll those #ho are not forbidden by la# (ay be judges @jurorsA) To #o(en it is forbidden by la# that they be judgesS and thence it is% that fe(e co$erts are exe(pted to do suit in inferior courts) 5n the other part% a $illein cannot be a judge% by reason of the t#o estates% #hich are repugnantsS persons attainted of false judg(ents cannot be judges% nor infants% nor any under the age of t#entyCone years% nor infected persons% nor idiots% nor (ad(en%

nor deaf% nor du(b% nor parties in the pleas% nor (en exco((unicated by the bishop% nor cri(inal persons) * * And those #ho are not of the "hristian faith cannot be judges% nor those #ho are out of the &ingRs allegiance)K =irror of Justices% J0 M9) 2n the section K 5f 2nferior "ourts%K it is said? K,ro( the first asse(blies ca(e consistories% #hich #e no# call courts% and that in di$ers places% and in di$ers (anners? #hereof the sheriffs held one (onthly% or e$ery fi$e #ee&s according to the greatness or largeness of the shires) And these courts are called county courts% #here the judg(ent is by the suitors% if there be no #rit% and is by #arrant of jurisdiction ordinary) The other inferior courts are the courts of e$ery lord of the fee% to the li&eness of the hundred courts) There are other inferior courts #hich the bailiffs hold in e$ery hundred% fro( three #ee&s to three #ee&s% by the suitors of the freeholders of the hundred) All the tenants #ithin the fees are bounden to do their suit there% and that not for the ser$ice of their persons% but for the ser$ice of their fees) But #o(en% infants #ithin the age of t#entyCone years% deaf% du(b% idiots% those #ho are indicted or appealed of (ortal felony% before they be acIuitted% diseased persons% and exco((unicated persons are exe(pted fro( doing suit)K =irror of Justices% J9 J!) 2n the section K5f the SheriffRs Turns%K it is said? KThe sheriffRs by ancient ordinances hold se$eral (eetings t#ice in the year in e$ery hundredS #here all the freeholders #ithin the hundred are bound to appear for the ser$ice of their fees)K =irror of Justices% J9) The follo#ing statute #as passed by Ed#ard 2)% se$enty years after =agna "arta? K,oras(uch also as sheriffs% hundreders% and bailiffs of liberties% ha$e used to grie$e those #hich be placed under the(% putting in assi;es and juries (en diseased and decrepit% and ha$ing continual or sudden diseaseS and (en also that d#elled not in the country at the ti(e of the su((onsS and su((on also an unreasonable nu(ber of jurors% for to extort (oney fro( so(e of the(% for letting the( go in peace% and so the assi;es and juries pass (any ti(es by poor (en% and the rich abide at ho(e by reason of their bribesS it is ordained that fro( henceforth in one assi;e no (ore shall be su((oned than four and t#entyS and old (en abo$e three score and ten years% being continually sic&% or being diseased at the ti(e of the su((ons% or not d#elling in that country% shall not be put in juries of petit assi;es)K St) !D Ed#ard 2)% ch) D6) @!86J)A Although this co((and to the sheriffRs and other officers% not to su((on% as jurors% those #ho% fro( age and disease% #ere physically incapable of perfor(ing the duties% (ay not% of itself% afford any absolute or legal i(plication% by #hich #e can deter(ine precisely #ho #ere% and #ho #ere not% eligible as jurors at co((on la#% yet the exceptions here (ade ne$ertheless carry a see(ing confession #ith the( that% at co((on la#% all (ale

adults #ere eligible as jurors) But the (ain principle of the feudal syste( itself% sho#s that all the full and free adult (ale (e(bers of the state that is% all #ho #ere free born% and had not lost their ci$il rights by cri(e% or other#ise (ust% at co((on la#% ha$e been eligible as jurors) *hat #as that principleQ 2t #as% that the state rested for support upon the land% and not upon taxation le$ied upon the people personally) The lands of the country #ere considered the property of the state% and #ere (ade to support the state in this #ay? A portion of the( #as set apart to the &ing% the rents of #hich #ent to pay his personal and official expenditures% not including the (aintenance of ar(ies% or the ad(inistration of justice) *ar and the ad(inistration of justice #ere pro$ided for in the follo#ing (anner) The free(en% or the freeCborn adult (ale (e(bers of the state #ho had not forfeited their political rights #ere entitled to land of right% @until all the land #as ta&en up%A on condition of their rendering certain (ilitary and ci$il ser$ices% to the state) The (ilitary ser$ices consisted in ser$ing personally as soldiers% or contributing an eIui$alent in horses% pro$isions% or other (ilitary supplies) The ci$il ser$ices consisted% a(ong other things% in ser$ing as jurors @and% it #ould appear% as #itnessesA in the courts of justice) ,or these ser$ices they recei$ed no co(pensation other than the use of their lands) 2n this #ay the state #as sustainedS and the &ing had no po#er to le$y additional burdens or taxes upon the people) The persons holding lands on these ter(s #ere called freeholders in later ti(es free(en (eaning free and full (e(bers of the state) 4o#% as the principle of the syste( #as that the freeholders held their lands of the state% on the condition of rendering these (ilitary and ci$il ser$ices as rents for their lands% the principle i(plies that all the freeholders #ere liable to these rents% and #ere therefore eligible as jurors) 2ndeed% 2 do not &no# that it has e$er been doubted that% at co((on la#% all the freeholders #ere eligible as jurors) 2f all had not been eligible% #e unIuestionably should ha$e had abundant e$idence of the exceptions) And if anybody% at this day% allege any exceptions% the burden #ill be on hi( to pro$e the() The presu(ption clearly is that all #ere eligible) The first in$asion #hich 2 find (ade% by the English statutes% upon this co((on la# principle% #as (ade in 286J% se$enty years after =agna "arta) 2t #as then enacted as follo#s? K4or shall% any be put in assi;es or juries% though they ought to be ta&en in their o#n shire% that hold a tene(ent of less than the $alue of t#enty shillings yearly) And if such assi;es and juries be ta&en out of the shire% no one shall be placed in the( #ho holds a tene(ent of less $alue than forty shillings yearly at the least% except such as be #itnesses in deeds or other #ritings% #hose presence is necessary% so that they be able to tra$el)K St) !D )Ed#ard 2)% ch) D6) @!86J)A The next in$asion of the co((on la#% in this particular% #as (ade in !E!E% about t#o hundred years after =agna "arta% #hen it #as enacted?

KThat no person shall be ad(itted to pass in any inIuest upon trial of the death of a (an% nor in any inIuest bet#ixt party and party in plea real% nor in plea personal% #hereof the debt or the da(age declared a(ount to forty (ar&s% if the sa(e person ha$e not lands or tene(ents of the yearly $alue of forty shillings abo$e all charges of the sa(e)K 8 /enry -)% st) 8% ch) D) @!E!E)A 5ther statutes on this subject of the property Iualifications of jurors% are gi$en in the note) 7E: ,ro( these statutes it #ill be seen that% since !86J% se$enty years after =agna "arta% the co((on la# right of all free British subjects to eligibility as jurors has been abolished% and the Iualifications of jurors ha$e been (ade a subject of arbitrary legislation) 2n other #ords% the go$ern(ent has usurped the authority of selecting the jurors that #ere to sit in judg(ent upon its o#n acts) This is destroying the $ital principle of the trial by jury itself% #hich is that the legislation of the go$ern(ent shall be subjected to the judg(ent of a tribunal% ta&en indiscri(inately fro( the #hole people% #ithout any choice by the go$ern(ent% and o$er #hich the go$ern(ent can exercise no control) 2f the go$ern(ent can select the jurors% it #ill% of course% select those #ho( it supposes #ill be fa$orable to its enact(ents) And an exclusion of any of the free(en fro( eligibility is a selection of those not excluded) 2t #ill be seen% fro( the statutes cited% that the (ost absolute authority o$er the jury box that is% o$er the right of the people to sit in juries has been usurped by the go$ern(entS that the Iualifications of jurors ha$e been repeatedly changed% and (ade to $ary fro( a freehold of ten shillings yearly% to one of Kt#enty pounds by the year at least abo$e reprises)K They ha$e also been (ade different% in the counties of Southa(pton% Surrey% and Sussex% fro( #hat they #ere in the other countiesS different in *ales fro( #hat they #ere in EnglandS and different in the city of London% and in the county of =iddlesex% fro( #hat they #ere in any other part of the &ingdo() But this is not all) The go$ern(ent has not only assu(ed arbitrarily to classify the people% on the basis of property% but it has e$en assu(ed to gi$e to so(e of its judges entire and absolute personal discretion in the selection of the jurors to be i(paneled in cri(inal cases% as the follo#ing statutes sho#) KBe it also ordained and enacted by the sa(e authority% that all panels hereafter to be returned% #hich be not at the suit of any party% that shall be (ade and put in afore any justice of gaol deli$ery or justices of peace in their open sessions to inIuire for the &ing% shall hereafter be refor(ed by additions and ta&ing out of na(es of persons by discretion of the sa(e justices before #ho( such panel shall be returnedS and the sa(e justices shall hereafter co((and the sheriff% or his (inisters in his absence% to put other persons in the sa(e panel by their discretionsS and that panel so hereafter to be (ade% to be goodand la#ful) This act to endure only to the next Parlia(ent K !! /enry -22)% ch) 8E% sec) M) @!E0J)A

This act #as continued in force by ! /enry -222% ch) !!% @!J90%A to the end of the then next Parlia(ent) 2t #as reenacted% and (ade perpetual% by D /enry -222)% ch) !8) @!J!!)A These acts ga$e unli(ited authority to the &ingRsR justices to pac& juries at their discretionS and abolished the last $estige of the co((on la# right of the people to sit as jurors% and judge of their o#n liberties% in the courts to #hich the acts applied) 3et% as (atters of la#% these statutes #ere no (ore clear $iolations of the co((on la#% the funda(ental and para(ount Kla# of the land%K than #ere those statutes #hich affixed the property Iualifications before na(edS because% if the &ing% or the go$ern(ent% can select the jurors on the ground of property% it can select the( on any other ground #hate$er) Any infringe(ent or restriction of the co((on la# right of the #hole body of the free(en of the &ingdo( to eligibility as jurors% #as legally an abolition of the trial by jury itself) The juries no longer represented Kthe country%K but only a part of the countryS that part% too% on #hose fa$or the go$ern(ent chose to rely for the (aintenance of its po#er% and #hich it therefore sa# fit to select as being the (ost reliable instru(ents for its purposes of oppression to#ards the rest) And the selection #as (ade on the sa(e principle% on #hich tyrannical go$ern(ents generally select their supporters% $i;)% that of conciliating those #ho #ould be (ost dangerous as ene(ies% and (ost po#erful as friends that is% the #ealthy) 7M: These restrictions% or indeed any one of the(% of the right of eligibility as jurors% #as% in principle% a co(plete abolition of the English constitutionS or% at least% of its (ost $ital and $aluable part) 2t #as% in principle% an assertion of a right% on the part of the go$ern(ent% to select the indi$iduals #ho #ere to deter(ine the authority of its o#n la#s% and the extent of its o#n po#ers) 2t #as% therefore% in effect% the assertion of a right% on the part of the go$ern(ent itself% to deter(ine its o#n po#ers% and the authority of its o#n legislation% o$er the peopleS and a denial of all right% on the part of the people% to judge of or deter(ine their o#n liberties against the go$ern(ent) 2t #as% therefore% in reality% a declaration of entire absolutis( on the part of the go$ern(ent) 2t #as an act as purely despotic% in principle% as #ould ha$e been the express abolition of all juries #hatsoe$er) By Kthe la# of the land%K #hich the &ings #ere s#orn to (aintain% e$ery free adult (ale British subject #as eligible to the jury box% #ith full po#er to exercise his o#n judg(ent as to the authority and obligation of e$ery statute of the &ing% #hich (ight co(e before hi() But the principle of these statutes @fixing the Iualifications of jurorsA is% that nobody is to sit in judg(ent upon the acts or legislation of the &ing% or the go$ern(ent% except those #ho( the go$ern(ent itself shall select for that purpose) A (ore co(plete sub$ersion of the essential principles of the English constitution could not be de$ised)

The juries of England are illegal for another reason% $i;)% that the statutes cited reIuire the jurors @except in London and a fe# other placesA to be freeholders) All the other free British subjects are excludedS #hereas% at co((on la#% all such subjects are eligible to sit in juries% #hether they be freeholders or not) 2t is true% the ancient co((on la# reIuired the jurors to be freeholdersS but the ter( freeholder no longer expresses the sa(e idea that it did in the ancient co((on la#S because no land is no# holden in England on the sa(e principle% or by the sa(e tenure% as that on #hich all the land #as held in the early ti(es of the co((on la#) As has heretofore been (entioned% in the early ti(es of the co((on la# the land #as considered the property of the stateS and #as all holden by the tenants% so called% @that is% holders%A on the condition of their rendering certain (ilitary and ci$il ser$ices to the state% @or to the &ing as the representati$e of the state%A under the na(e of rents) Those #ho held lands on these ter(s #ere called free tenants% that is% free holders (eaning free persons% or (e(bers of the state% holding lands to distinguish the( fro( $illeins% or serfs% #ho #ere not (e(bers of the state% but held their lands by a (ore ser$ile tenure% and also to distinguish the( fro( persons of foreign birth% outla#s% and all other persons% #ho #ere not (e(bers of the state) E$ery freeborn adult (ale English(an @#ho had not lost his ci$il rightK by cri(e or other#iseA #as entitled to land of rightS that is% by $irtue of his ci$il freedo(% or (e(bership of the body politic) E$ery (e(ber of the state #as therefore a freeholderS and e$ery freeholder #as a (e(ber of the state) And the (e(bers of the state #ere therefore called freeholders) But #hat is (aterial to be obser$ed% is% that a (anRs right to land #as an incident to his ci$il freedo(S not his ci$il freedo( an incident to his right to land) /e #as a freeholder because he #as a freeborn (e(ber of the stateS and not a freeborn (e(ber of the state because he #as a freeholderS for this last #ould be an absurdity) As the tenures of lands changed% the ter( freeholder lost its original significance% and no longer described a (an #ho held land of the state by $irtue of his ci$il freedo(% but only one #ho held it in feeCsi(ple that is% free of any liability to (ilitary or ci$il ser$ices) But the go$ern(ent% in fixing the Iualifications of jurors% has adhered to the ter( freeholder after that ter( has ceased to express the thing originally designated by it) The principle% then% of the co((on la#% #as% that e$ery free(an% or freeborn (ale English(an% of adult age% XcS)% #as eligible to sit in juries% by $irtue of his ci$il freedo(% or his being a (e(ber of the state% or body politic) .ut the principle of the present English statutes is% that a (an shall ha$e a right to sit in juries because he o#ns lands in feeCsi(ple) At the co((on la# a (an #as born to the right to sit in juries) By the present statutes he buys that right #hen he buys his land) And thus this% the greatest of all the political rights of an English(an% has beco(e a (ere article of (erchandiseS a thing that is bought and sold in the (ar&et for #hat it #ill bring)

5f course% there can be no legality in such juries as theseS but only in juries to #hich e$ery free or natural born adult (ale English(an is eligible) The second essential principle of the co((on la#% controlling the selection of jurors% is% that #hen the selection of the actual jurors co(es to be (ade% @fro( the #hole body of (ale adults%A that selection shall be (ade in so(e (ode that excludes the possibility of choice on the part of the go$ern(ent) 5f course% this principle forbids the selection to be (ade by any officer of the go$ern(ent) There see( to ha$e been at least three (odes of selecting the jurors% at the co((on la#) !) By lot) 71: 8) T#o &nights% or other freeholders% #ere appointed% @probably by the sheriff%A to select the jurors) D) By the sheriff% bailiff% or other person% #ho held the court% or rather acted as its (inisterial officer) Probably the latter (ode (ay ha$e been the (ost co((on% although there (ay be so(e doubt on this point) At the co((on la# the sheriffRs% bailiffs% and other officers #ere chosen by the people% instead of being appointed by the &ing) @E Blac&stone% E!D) 2ntroduction to GilbertRs /istory of the "o((on Pleas% p) 8S note% and p) E)A This has been sho#n in a for(er chapter) 76: At co((on la#% therefore% jurors selected by these officers #ere legally selected% so far as the principle no# under discussion is concernedS that is% they #ere not selected by any officer #ho #as dependent on the go$ern(ent) But in the year !D!J% one hundred years after =agna "arta% the choice of sheriffRs #as ta&en fro( the people% and it #as enacted? KThat the sheriffs shall henceforth be assigned by the chancellor% treasurer% barons of the excheIuer% and by the justices) And in the absence of the chancellor% by the treasurer% barons and justices)K 0 Ed#ard 22)% st) 8) @!D!J)A These officers% #ho appointed the sheriffs% #ere the(sel$es appointed by the &ing% and held their offices during his pleasure) Their appoint(ent of sheriffs #as% therefore% eIui$alent to an appoint(ent by the &ing hi(self) And the sheriffs% thus appointed% held their offices only during the pleasure of the &ing% and #ere of course (ere tools of the &ingS and their selection of jurors #as really a selection by the &ing hi(self) 2n this (anner the &ing usurped the selection of the jurors #ho #ere to sit in judg(ent upon his o#n la#s) /ere% then% #as another usurpation% by #hich the co((on la# trial by jury #as destroyed% so far as related to the county courts% in #hich the sheriffRs presided% and #hich #ere the (ost i(portant courts of the &ingdo() ,ro( this cause alone% if there #ere no other% there has not been a legal jury in a county court in England% for (ore than fi$e hundred years) 2n nearly or Iuite all the States of the <nited States the juries

are illegal% for one or the other of the sa(e reasons that (a&e the juries in England illegal) 2n order that the juries in the <nited States (ay be legal that is% in accordance #ith the principles of the co((on la# it is necessary that e$ery adult (ale (e(ber of the state should ha$e his na(e in the jury box% or be eligible as a juror) 3et this is the case in hardly a single state) 2n 4e# Jersey% =aryland% 4orth "arolina% Tennessee% and =ississippi% the jurors are reIuired to be freeholders) But this reIuire(ent is illegal% for the reason that the ter( freeholder% in this country% has no (eaning analogous to the (eaning it had in the ancient co((on la#) 2n Ar&ansas% =issouri% 2ndiana% and Alaba(a% jurors are reIuired to be Kfreeholders or householders)K Each of these reIuire(ents is illegal) 2n ,lorida% they are reIuired to be Khouseholders)K 2n "onnecticut% =aine% 5hio% and Georgia% jurors are reIuired to ha$e the Iualifications of Kelectors)K 2n -irginia% they are reIuired to ha$e a property Iualification of one hundred dollars) 2n =aine% =assachusetts% -er(ont% "onnecticut% 4e# 3or&% 5hio% 2ndiana% =ichigan% and *isconsin% certain ci$il authorities of the to#ns% cities% and counties are authori;ed to select% once in one% t#o% or three years% a certain nu(ber of the people a s(all nu(ber co(pared #ith the #hole fro( #ho( jurors are to be ta&en #hen #antedS thus disfranchising all except% the fe# thus selected) 2n =aine and -er(ont% the inhabitants% by $ote in to#n (eeting% ha$e a $eto upon the jurors selected by the authorities of the to#n) 2n =assachusetts% the inhabitants% by $ote in to#n (eeting% can stri&e out any na(es inserted by the authorities% and insert othersS thus (a&ing jurors electi$e by the people% and% of course% representati$es only of a (ajority of the people) 2n 2llinois% the jurors are selected% for each ter( of court% by the county co((issioners) 2n 4orth "arolina% Kthe courts of pleas and Iuarter sessions shall select the na(es of such persons only as are freeholders% and as are #ell Iualified to act as jurors% XcS)S thus gi$ing the courts po#er to pac& the juries)K @.e$ised Statutes% !E1)A 2n Ar&ansas% too% K2t shall be the duty of the county court of each county * to (a&e out and cause to be deli$ered to the sheriff a list of not less than sixteen% nor (ore than t#entyCthree persons% Iualified to ser$e as grand jurorsSK and the sheriff is

to su((on such persons to ser$e as grand jurors) 2n Tennessee% also% the jurors are to be selected by the county courts) 2n Georgia% the jurors are to be selected by Kthe justices of the inferior courts of each county% together #ith the sheriff and cler&% or a (ajority of the()K 2n Alaba(a% Kthe sheriffS judge of the county court% and cler&s of the circuit and county courts%K or Ka (ajority ofK the(% select the jurors) 2n -irginia% the jurors are selected by the sheriffsS but the sheriffRs are appointed by the go$ernor of the state% and that is enough to (a&e the juries illegal) Probably the sa(e objection lies against the legality of the juries in so(e other states) /o# jurors are appointed% and #hat are their Iualifications% in 4e# /a(pshire% .hode 2sland% Pennsyl$ania% +ela#are% South "arolina% Uentuc&y% 2o#a% Texas% and "alifornia% 2 &no# not) There is little doubt that there is so(e $alid objection to the(% of the &inds already suggested% in all these states) 2n regard to jurors in the courts of the <nited States% it is enacted% by act of "ongress? KThat jurors to ser$e in the courts of the <nited States% in each state respecti$ely% shall ha$e the li&e Iualifications and be entitled to the li&e exe(ptions% as jurors of the highest court of la# of such state no# ha$e and are entitled to% and shall hereafter% fro( ti(e to ti(e% ha$e and be entitled to% and shall be designated by ballot% lot% or other#ise% according to the (ode of for(ing such juries no# practised and hereafter to be practised therein% in so far as such (ode (ay be practicable by the courts of the <nited States% or the officers thereofS and for this purpose% the said courts shall ha$e po#er to (a&e all necessary rules and regulations for confor(ing the designation and e(panelling of jurors% in substance% to the la#s and usages no# in force in such stateS and% further% shall ha$e po#er% by role or order% fro( ti(e to ti(e% to confor( the sa(e to any change in these respects #hich (ay be hereafter adopted by the legislatures of the respecti$e states for the state courts)K St) !6E9% ch) E1% Statutes at Large% $ol) J% p) D0E) 2n this corrupt and la#less (anner% "ongress% instead of ta&ing care to preser$e the trial by jury% so far as they (ight% by pro$iding for the appoint(ent of legal juries inco(parably the (ost i(portant of all our judicial tribunals% and the only ones on #hich the least reliance can be placed for the preser$ation of liberty ha$e gi$en the selection of the( o$er entirely to the control of an indefinite nu(ber of state legislatures% and thus authori;ed each state legislature to adapt the juries of the <nited States to the (aintenance of any and e$ery syste( of tyranny that (ay pre$ail in such state)

"ongress ha$e as (uch constitutional right to gi$e o$er all the functions of the <nited States go$ern(ent into the hand of the state legislatures% to be exercised #ithin each state in such (anner as the legislature of such state shall please to exercise the(% as they ha$e to thus gi$e up to these legislatures the selection of juries for the courts of the <nited States) There has% probably% ne$er been a legal jury% nor a legal trial by jury% in a single court of the <nited States% since the adoption of the constitution) These facts sho# ho# (uch reliance can be placed in #ritten constitutions% to control the action of the go$ern(ent% and preser$e the liberties of the people) 2f the real trial by jury had been preser$ed in the courts of the <nited States that is% if #e had had legal juries% and the jurors had &no#n their rights it is hardly probable that one tenth of the past legislation of "ongress #ould e$er ha$e been enacted% or% at least% that% if enacted% it could ha$e been enforced) Probably the best (ode of appointing jurors #ould be this? Let the na(es of all the adult 7(ale: 70: (e(bers of the state% in each to#nship% be &ept in a jury box% by the officers of the to#nshipS and #hen a court is to be held for a county or other district% let the officers of a sufficient nu(ber of to#nships be reIuired @#ithout seeing the na(esA to dra# out a na(e fro( their boxes respecti$ely% to be returned to the court as a juror) This (ode of appoint(ent #ould guard against collusion and selectionS and juries so appointed #ould be li&ely to be a fair epito(e of Kthe country)K 7!:5n the English "onstitution) 78: Although all the free(en are legally eligible as jurors% any one (ay ne$ertheless be challenged and set aside% at the trial% for any special personal disIualificationS such as (ental or physical inability to perfor( the dutiesS ha$ing been con$icted% or being under charge% of cri(eS interest% bias% XcS) But it is clear that the co((on la# allo#s none of these points to be deter(ined by the court% but only by Ktriers)K 7D: *hat #as the precise (eaning of the Saxon #ord% #hich 2 ha$e here called elderly% 2 do not &no#) 2n the Latin translations it is rendered by seniores% #hich (ay perhaps (ean si(ply those #ho ha$e attained their (ajority) 7E: 2n !E6J it #as enacted% by a statute entitled K 5f #hat credit and estate those jurors (ust be #hich shall be i(paneled in the SheriffRs Turn)K KThat no bailiff nor other officer fro( henceforth return or i(panel any such person in any shire of England% to be ta&en or put in or upon any inIuiry in any of the said Turns% but such as be of good na(e and fa(e% and ha$ing lands and tene(ents of freehold #ithin the sa(e shires% to the yearly $alue of t#enty

shillings at the least% or else lands and tene(ents holden by custo( of (anor% co((only called copyChold% #ithin the said shires% to the yearly $alue of t#entyCsix shillings eight pence o$er all charges at the least)K ! .ichard 222)% ch) E) @!E6D A 2n !E6M it #as enacted% K That the justices of the peace of e$ery shire of this real( for the ti(e being (ay ta&e% by their discretion% an inIuest% #hereof e$ery (an shall ha$e lands and tene(ents to the yearly $alue of forty shillings at the least% to inIuire of the conceal(ents of others%K XcS)% XcS) D /enry -22% ch) !) @!E6M)A A statute passed in !E0E% in regard to jurors in the city of London% enacts? KThat no person nor persons hereafter be i(paneled% su((oned% or s#orn in any jury or inIuest in courts #ithin the sa(e city% @of London%A except he be of lands% tene(ents% or goods and chattels% to the $alue of forty (ar&sS 7J: and that no person or persons hereafter be i(paneled% su((oned% nor s#orn in any jury or inIuest in any court #ithin the said city% for lands or tene(ents% or action personal% #herein the debt or da(age a(ounteth to the su( of forty (ar&s% or abo$e% except he be in lands tene(ents% goods% or chattels% to the $alue of one hundred (ar&s)K !! /enry -22) ch) 8!) @!E0E)A The statute E /enry -222% ch) D% sec) E% @!J!8A reIuires jurors in London to ha$e Kgoods to the $alue of one hundred (ar&s)K 2n !E0E it #as enacted that K2t shall be la#ful to e$ery sheriff of the counties of Southa(pton% Surrey)% and Sussex% to i(panel and su((ons t#entyCfour la#ful (en of such% inhabiting #ithin the precinct of his or their turns% as o#e suit% to the sa(e turn% #hereof e$ery one hath lands or freehold to the yearly $alue of ten shillings% or copyhold lands to the yearly $alue of thirteen shillings four pence% abo$e all charges #ithin any of the said counties% or (en of less li$elihood% if there be not so (any there% not #ithstanding the statute of ! .ichard 222)% ch) E) To endure to the next parlia(ent)K !! /enry -22)% ch) 8E) @!E0E)A This statute #as continued in force by !0 /enry -22)% ch) !M @!J9D)A 2n !JD! it #as enacted% KThat e$ery person or person being the &ingRs natural subject born% #hich either by the na(e of citi;en% or of a free(an% or any other na(e% doth enjoy and use the liberties and pri$ileges of any city% borough% or to#n corporate% #here he d#elleth and (a&eth his abode% being #orth in (o$eable goods and substance to the clear $alue of forty pounds% be henceforth ad(itted in trials of (urders and felonies in e$ery sessions and gaol deli$ery% to be &ept and holden in and for the liberty of such cities% boroughs% and to#ns corporate% albeit they ha$e no freeholdS any act% statute% use% custo(% or ordinance to the contrary hereof not#ithstanding)K 8D /enry -222)% ch) !D) @!JD!)A 2n !J6J it #as enacted% KThat in all cases #here any jurors to be returned for trial of any issue or issues joined in any of the

TueenRs (ajestyRs courts of UingRs Bench% "o((on Pleas% and the ExcheIuer% or before judices of assi;e% by the la#s of this real( no# in force% ought to ha$e estate of freehold in lands% tene(ents% or heredita(ents% of the clear yearly $alue of forty shillings% that in e$ery such case the jurors that shall be returned fro( and after the end of this present session of parlia(ent% shall e$ery of the( ha$e estate of freehold in lands% tene(ents% or heredita(ents% to the clear yearly $alue of four pounds at the least)K 81 Eli;abeth% ch) M) @!J6J)A 2n !MMECJ it #as enacted KThat all jurors @other than strangers upon trials per (edietate( linIuaeA #ho are to be returned for the trials of issues joined in any of @hisA (ajestyRs courts of &ingRs bench% co((on pleas% or the excheIuer% or before justices of assi;e% nisi prius% oyer and ter(iner% gaol deli$ery% or general or Iuarter sessions of the peace fro( and after the t#entieth day of April% #hich shall be in the year of our Lord one thousand six hundred and sixtyCfi$e% in any county of this real( of England% shall e$ery of the( then ha$e% in their o#n na(e% or in trust for the(% #ithin the sa(e county% t#enty pounds% by the year% at least% abo$e reprises% in their o#n or their #i$es right% of freehold lands% or of ancient de(esne% or of rents in fee% feeCtail% or for life) And that in e$ery county #ithin the do(inion of *ales e$ery such juror shall then ha$e% #ithin the so(e% eight pounds by the year% at the least% abo$e reprises% in (anner aforesaid) All #hich persons ha$ing such estate as aforesaid are hereby enabled and (ade liable to be returned and ser$e as jurors for the trial of issues before the justices aforesaid% any la# or statute to the contrary in any #ise not#ithstanding%K !M and !1 "harles 22)% ch) J) @!MMECJ%A By a statute passed in !M08% jurors in England are to ha$e landed estates of the $alue of ten pounds a year% and jurors in *ales to ha$e si(ilar estates of the real( of six pounds a year) E and J *illia( and =ary% ch) 8E% sec) !E% @!M08%A By the sa(e statute% @sec) !6%A persons (ay be returned to ser$e upon the tales in any county of England% #ho shall ha$e #ithin the sa(e county% fi$e pounds by the year% abo$e reprises% in the (anner aforesaid) By St) D George 22)% ch) 8J% sec) !9% 89% no one is to be a juror in London% #ho shall not be Kan householder #ithin the said city% and ha$e lands% tene(ents% or personal estate% to the $alue of one hundred pounds)K By another statute% applicable only to the county of =iddlesex% it is enacted% KThat all leaseholders% upon leases #here the i(pro$ed rents or $alue shall a(ount to fifty pounds or up#ards per annu(% o$er and abo$e all ground rents or other reser$ations payable by $irtue of the said leases% shall be liable and obliged to ser$e upon juries #hen they shall be legally su((oned for that purpose)%K E George 22)% ch) 1% sec% D) @!1D!)A 7J: A (ar& #as thirteen shillings and four pence) 7M: Suppose these statutes% instead of disfranchising all #hose

freeholds #ere of less than the standard $alue fixed by the statutes% had disfranchised all #hose freeholds #ere of greater $alue than the sa(e standard #ould anybody e$er ha$e doubted that such legislation #as inconsistent #ith the English constitutionS or that it a(ounted to an entire abolition of the trial by juryQ "ertainly not) 3et it #as as clearly inconsistent #ith the co((on la#% or the English constitution% to disfranchise those #hose freeholds fell belo# any arbitrary standard fixed by the go$ern(ent% as it #ould ha$e been to disfranchise all #hose freeholds rose abo$e that standard) 71: Lingard says? KThese co(purgators or jurors * * #ere so(eti(es * * dra#n by lot)K ! LingardRs /istory of England% p) D99) 76: "hapter E% p) !89% note) 70: EditorRs 4ote? @The follo#ing #as not in SpoonerRs additionA *ith the ratification of Article P2P of a(end(ent to the "onstitution for the <nited States% August 89% !089% #o(en #ere fully enfranchised #ith all rights of $oting and jury ser$ice in all states of the <nion) "/APTE. -22) 2LLEGAL J<+GES 2T is a principle of =agna "arta% and therefore of the trial by jury% @for all parts of =agna "arta (ust be construed together%A that no judge or other officer appointed by the &ing% shall preside in jury trials% in cri(inal cases% or Kpleas of the cro#n)K This pro$ision is contained in the great charters of both John and /enry% and is second in i(portance only to the pro$ision guaranteeing the trial by jury% of #hich it is really a part) "onseIuently% #ithout the obser$ance of this prohibition% there can be no genuine or legal that is% co((on la# trial by jury) At the co((on la#% all officers #ho held jury trials% #hether in ci$il or cri(inal cases% #ere chosen by the people) 7!: But pre$ious to =agna "arta% the &ings had adapted the practice of sending officers of their o#n appoint(ent% called justices% into the counties% to hold jury trials in so(e casesS and =agna "arta authori;es this practice to be continued so far as it relates to three &inds of ci$il actions% to #it? Kno$el disseisin% (ort de ancestor% and darrein present(entSK 78: but specially forbids its being extended to cri(inal cases% or pleas of the cro#n) This prohibition is in these #ords? K4ullus $iceco(es% constabularius% coronator% $el alii bali$i nostri% teneant placita coronae nostrae)K @4o sheriff% constable% coroner% or other our bailiffs% shall hold pleas of our cro#n)A JohnRs "harter% ch) JD% /enryRs ditto% ch) !1) So(e persons see( to ha$e supposed that this #as a prohibition

(erely upon officers bearing the specific na(es of Ksheriffs% constables% coroners and bailiffs%K to hold cri(inal trials) But such is not the (eaning) 2f it #ere% the na(e could be changed% and the thing retainedS and thus the prohibition be e$aded) The prohibition applies @as #ill presently be seenA to all officers of the &ing #hatsoe$erS and it sets up a distinction bet#een officers of the &ing% @Kour bailiffs%KA and officers chosen by the people) The prohibition upon the &ingRs justices sitting in cri(inal trials% is included in the #ords K$el alii bali$i nostri%K @or other our bailiffs)A The #ord bailif #as anciently a sort of general na(e for judicial officers and persons e(ployed in and about the ad(inistration of justice) 2n (odern ti(es its use% as applied to the higher grades of judicial officers% has been superseded by other #ordsS and it therefore no#% (ore generally% if not uni$ersally% signifies an executi$e or police officer% a ser$ant of courts% rather than one #hose functions are purely judicial) The #ord is a ,rench #ord% brought into England by the 4or(ans) "o&e says% KBaylife is a ,rench #ord% and signifies an officer concerned in the ad(inistration of justice of a certain pro$inceS and because a sheriff hath an office concerning the ad(inistration of justice #ithin his county% or baili#ic&% therefore be called his county bali$a sua% @his baili#ic&)A K2 ha$e heard great Iuestion (ade #hat the true exposition of this #ord bali$us is) 2n the statute of =agna "arta% cap) 86% the letter of that statute is% nullus bali$us de eaetero ponat aliIne( ad lege( (anifesta( nec ad jura(entu( si(plici loIuela sua sine testibus fidelibus ad hoc inductis)K @4o bailiff fro( henceforth shall put any one to his open la#% nor to an oath Zof selfCexculpationA upon his o#n si(ple accusation% or co(plaint% #ithout faithful #itnesses brought in for the sa(e)A KAnd so(e ha$e said that bali$us in this statute signifieth any judgeS for the la# (ust be #aged and (ade before the judge) And this statute @say theyA extends to the courts of co((on pleas% &ingRs bench% XcS)% for they (ust bring #ith the( fideles testes% @faithful #itnesses%A XcS)% and so hath been the usage to this day)K ! "o&eRs 2nst)% !M6 b) "o&e (a&es $arious references% in his (argin to Bracton% ,leta% and other authorities% #hich 2 ha$e not exa(ined% but #hich% 2 presu(e% support the opinion expressed in this Iuotation) "o&e also% in another place% under the head of the chapter just cited fro( =agna "arta% that Kno bailiff shall put any (an to his open la#%K XcS)% gi$es the follo#ing co((entary upon it% fro( the =irror of Justices% fro( #hich it appears that in the ti(e of Ed#ard 2)% @!818 to !D91%A this #ord bali$us #as understood to include all judicial% as #ell as all other% officers of the &ing) The =irror says? KThe point #hich forbiddeth that no bailiff put a free(an to his oath #ithout suit% is to be understood in this (anner% that no justice% no (inister of the &ing% nor other

ste#ard% nor bailiff% ha$e po#er to (a&e a free(an (a&e oath% @of selfCexculpation%A #ithout the &ingRs co((and% 7D: nor recei$e any plaint% #ithout #itnesses present #ho testify the plaint to be true)K =irror of Justices% ch) J% sec) 8% p) 8J1) "o&e Iuotes this co((entary% @in the original ,rench%A and then endorses it in these #ords? KBy this it appeareth% that under this #ord bali$us% in this act% is co(prehended e$ery justice% (inister of the &ing% ste#ard% and bailiff)K 8 2nst)% EE) "o&e also% in his co((entary upon this $ery chapter of =agna "arta% that pro$ides that Kno sheriffS constableS coroner% or other our bailiffs% shall hold pleas of our cro#n%K expresses the opinion that it Kis a general la#%K @that is% applicable to all officers of the &ing%A K by reason of the #ords $el alii bali$i nostri% @or other our bailiffs%A under #hich #ords are co(prehended all judges or justices of any courts of justice) KAnd he cites a decision in the &ingRs bench% in the !1th year of Ed#ard 2)% @!860%A as authorityS #hich decision he calls Ka notable and leading judg(ent)K 8 2nst)% D9 !) And yet "o&e% in flat contradiction of this decision% #hich he Iuotes #ith such e(phasis and approbation% and in flat contradiction also of the definition he repeatedly gi$es of the #ord bali$us sho#ing that it e(braced all (inisters of the &ing #hatsoe$er% #hether high or lo#% judicial or executi$e% fabricates an entirely gratuitous interpretation of this chapter of =agna "arta% and pretends that after all it only reIuired that felonies should he tried before the &ingRs justices% on account of their superior 2earningS and that it per(itted all lesser offenses to be tried before inferior officers% @(eaning of course the &ingRs inferior officers)A 8 2nst)% D9) And thus this chapter of =agna "arta% #hich% according to his o#n definition of the #ord bali$us% applies to all officers of the &ingS and #hich% according to the co((on and true definition of the ter( Kpleas of the cro#n%K applies to all cri(inal cases #ithout distinction% and #hich% therefore% forbids any officer or (inister of the &ing to preside in a jury trial in any cri(inal case #hatsoe$er% he coolly and gratuitously interprets into a (ere senseless pro$ision for si(ply restricting the discretion of the &ing in gi$ing na(es to his o#n officers #ho should preside at the trials of particular offencesS as if the &ing% #ho (ade and un(ade all his officers by a #ord% could not defeat the #hole object of the prohibition% by appointing such indi$iduals as he pleased% to try such causes as he pleased% and calling the( by such na(es as he pleased% if he #ere but per(itted to appoint and na(e such officers at allS and as if it #ere of the least i(portance #hat na(e an officer bore% #ho( the &ing (ight appoint to a particular duty) 7E: "o&e e$idently gi$es this interpretation solely because% as he #as gi$ing a general co((entary on =agna "arta% he #as bound to gi$e so(e interpretation or other to e$ery chapter of itS and for

this chapter he could in$ent% or fabricate% @for it is a sheer fabrication%A no interpretation better suited to his purpose than this) 2t see(s ne$er to ha$e entered his (ind% @or if it did% he intended that it should ne$er enter the (ind of anybody else%A that the object of the chapter could be to depri$e the &ing of the po#er of putting his creatures into cri(inal courts% to pac&% cheat% and bro#beat juries% and thus (aintain his authority by procuring the con$iction of those #ho should transgress his la#s% or incur his displeasure) This exa(ple of "o&e tends to sho# ho# utterly blind% or ho# utterly corrupt% English judges% @dependent upon the cro#n and the legislatureA% ha$e been in regard to e$erything in =agna "arta% that #ent to secure the liberties of the people% or li(it the po#er of the go$ern(ent) "o&eRs interpretation of this chapter of =agna "arta is of a piece #ith his absurd and gratuitous interpretation of the #ords Knec super eu( ibi(us% nec super eu( (itte(us%K #hich #as pointed out in a for(er article% and by #hich he atte(pted to gi$e a judicial po#er to the &ing and his judges% #here =agna "arta had gi$en it only to a jury) 2t is also of a piece #ith his pretence that there #as a difference bet#een fine and a(erce(ent% and that fines (ight be i(posed by the &ing% and that juries #ere reIuired only for fixing a(erce(ents) These are so(e of the innu(erable frauds by #hich the English people ha$e been cheated out of the trial by jury) Ex uno disce o(nes) ,ro( one judge learn the characters of all) 7M: 2 gi$e in the note additional and abundant authorities for the (eaning ascribed to the #ord bailiff) The i(portance of the principle in$ol$ed #ill be a sufficient excuse for such an accu(ulation of authorities as #ould other#ise be tedious and perhaps unnecessary) 71: The foregoing interpretation of the chapter of =agna "arta no# under discussion% is corroborated by another chapter of =agna "arta% #hich specially pro$ides that the &ingRs justices shall Kgo through e$ery countyK to Kta&e the assi;esK @hold jury trialsA in three &inds of ci$il actions% to #it% Kno$el disseisin% (ort de ancestor% and darrein present(entSK but (a&es no (ention #hate$er of their holding jury trials in cri(inal cases% an o(ission #holly unli&ely to be (ade% if it #ere designed they should attend the trial of such causes) Besides% the here spo&en of @in JohnRs charterA does not allo# these justices to sit alone in jury trials% e$en in ci$ilactionsS but pro$ides that four &nights% chosen by the county% shall sit #ith the( to &eep the( honest) *hen the &ingRs justices #ere &no#n to be so corrupt and ser$ile that the people #ould not e$en trust the( to sit alone% in jury trials% in ci$il actions% ho# preposterous is it to suppose that they #ould not only suffer the( to sit% but to sit alone% in cri(inal ones)

2t is entirely incredible that =agna "arta% #hich (a&es such careful pro$ision in regard to the &ingRs justices sitting in ci$il actions% should (a&e no pro$ision #hate$er as to their sitting in cri(inal trials% if they #ere to be allo#ed to sit in the( at all) 3et =agna "arta has no pro$ision #hate$er on the subject) 7!9: But #hat #ould appear to (a&e this (atter ahsolute!y certain is% that unless the prohibition that Kno bailiff% XcS)% of ours shall hold pleas of our cro#n%K apply to all officers of the &ing% justices as #ell as others% it #ould be #holly nugatory for any practical or useful purpose% because the prohibition could be e$aded by the &ing% at any ti(e% by si(ply changing the titles of his officers) 2nstead of calling the( Ksheriffs% coroners% constables and bailiffs%K he could call the( Kjustices%K or anything else he pleasedS and this prohibition% so i(portant to the liberty of the people% #ould then be entirely defeated) The &ing also could (a&e and un(a&e KjusticesK at his pleasureS and if he could appoint any officers #hate$er to preside o$er juries in cri(inal trials% he could appoint any tool that he (ight at any ti(e find adapted to his purpose) 2t #as as easy to (a&e justices of Jeffreys and Scroggs% as of any other (aterialS and to ha$e prohibited all the &ingRs officers% except his justices% fro( presiding in cri(inal trials% #ould therefore ha$e been (ere foolRs play) *e can all perhaps for( so(e idea% though fe# of us #ill be li&ely to for( any adeIuate idea% of #hat a different thing the trial by jury #ould ha$e been in practice% and of #hat #ould ha$e been the difference to the liberties of England% for fi$e hundred years last past% had this prohibition of =agna "arta% upon the &ingRs officers sitting in the trial of cri(inal cases% been obser$ed) The principle of this chapter of =agna "arta% as applicable to the go$ern(ents of the <nited States of A(erica% forbids that any officer appointed either by the executi$e or legislati$e po#er% or dependent upon the( for their salaries% or responsible to the( by i(peach(ent% should preside o$er a jury in cri(inal trials) To ha$e the trial a legal @that is% a co((on la#A and true trial by jury% the presiding officers (ust be chosen by the people% and be entirely free fro( all dependence upon% and all accountability to% the executi$e and legislati$e branches of the go$ern(ent) 7!8: 7!: The proofs of this principle of the co((on la# ha$e already been gi$en on page !89% note) There is (uch confusion and contradiction a(ong authors as to the (anner in #hich sheriffs and other officers #ere appointedS so(e (aintaining that they #ere appointed by the &ing% others that they #ere elected by the people) 2 i(agine that both these opinions are correct% and that se$eral of the &ingRs officers bore the sa(e official na(es as those chosen by the peopleS and that this is the cause of the confusion that has arisen on the subject)

2t see(s to be a perfectly #ell established fact that% at co((on la#% se$eral (agistrates% bearing the na(es of alder(en% sheriff% ste#ards% coroners and bailiffs% #ere chosen by the peopleS and yet it appears% fro( =agna "arta itself% that so(e of the &ingRs officers @of #ho( he (ust ha$e had (anyA #ere also called Ksheriffs% constables% coroners% and bailiffs)K But =agna "arta% in $arious instances% spea&s of sheriffs and bailiffs as Kour sheriffRs and bailiffsSK thus apparently intending to recogni;e the distinction bet#een officers of the &ing% bearing those na(es% and other officers% bearing the sa(e official na(es% but chosen by the people) Thus it says that Kno sheriff or bailiff of ours% or any other @officerA% shall ta&e horses or carts of any free(an for carriage% unless #ith the consent of the free(an hi(self)K JohnRs "harter% ch) DM) 2n a &ingdo( subdi$ided into so (any counties% hundreds% tithings% (anors% cities and boroughs% each ha$ing a judicial or police organi;ation of its o#n% it is e$ident that (any of the officers (ust ha$e been chosen by the people% else the go$ern(ent could not ha$e (ainlined its popular character) 5n the other hand% it is e$ident that the &ing% the executi$e po#er of the nation% (ust ha$e had large nu(bers of officers of his o#n in e$ery part of the &ingdo() And it is perfectly natural that these different sets of officers should% in (any instances% bear the sa(e official na(esS and% conseIuently that the &ing% #hen spea&ing of his o#n officers% as distinguished% fro( those chosen by the people% should call the( Kour sheriffs% bailiffs%K XcS% as he does in =agna "arta) 2 apprehend that inattention to these considerations has been the cause of all the confusion of ideas that has arisen on this subject% a confusion $ery e$ident in the follo#ing paragraph fro( +unha(% #hich (ay be gi$en as an illustration of that #hich is exhibited by others on the sa(e points) KSubordinate to the ealdor(en #ere the gerefas% the sheriffs% or ree$es% of #ho( there #ere se$eral in e$ery shire% or county) There #as one in e$ery borough% as a judge) There #as one at e$ery gate% #ho #itnessed purchases outside the #allsS and there #as one% higher than either% the high sheriff% #ho #as probably the ree$e of the shire) This last appears to ha$e been appointed by the &ing) Their functions #ere to execute the decrees of the &ing% or ealdor(en% to arrest prisoners% to reIuire bail for their appearance at the sessions% to collect fines or penalties le$ied by the court of the shire% to preser$e the public peace% and to preside in a subordinate tribunal of their o#n)K +urha(Rs =iddle Ages% sec) 8% B) 8% ch) !) C J1 LardnerRs "ab) "yc)% p E!) The confusion of duties attributed to these officers indicates clearly enough that different officers% bearing the sa(e official na(es% (ust ha$e had different duties% and ha$e deri$ed their authority fro( different sources% to #it% the &ing% and the people) 78: +arrein presente(ent #as an inIuest to disco$er #ho

presented the last person to a churchS (ort de ancestor% #hether the last possessor #as sei;ed of land in de(esne of his o#n feeS and no$el disseisin% #hether the clai(ant had been unjustly dissei;ed of his freehold) 7D: /e has no po#er to do it% either #ith% or #ithout% the &ingRs co((and) The prohibition is absolute% containing no such Iualification as is here interpolated% $i;)% K#ithout the &ingRs co((and)K 2f it could be done #ith the &ingRs co((and% the &ing #ould be in$ested #ith arbitrary po#er in the (atter) 7E: The absurdity of this doctrine of "o&e is (ade (ore apparent by the fact that% at that ti(e% the KjusticesK and other persons appointed by the &ing to hold courts #ere not only dependent upon the &ing for their offices% and re(o$able at his pleasure% but that the usual custo( #as% not to appoint the( #ith any $ie# to per(anency% but only to gi$e the( special co((issions for trying a single cause% or for holding a single ter( of a court% or for (a&ing a single circuitS #hich% being done% their co((issions expired) The &ing% therefore% could% and undoubtedly did% appoint any indi$idual he pleased% to try any cause he pleased% #ith a special $ie# to the $erdicts he desired to obtain in the particular cases) This custo( of co((issioning particular persons to hold jury trials% in cri(inal cases% @and probably also in ci$il ones%A #as of course a usurpation upon the co((on la#% but had been practised (ore or less fro( the ti(e of *illia( the "onIueror) Palgra$e says? KThe freIuent absence of *illia( fro( his insular do(inions occasioned another (ode of ad(inistration% #hich ulti(ately produced still greater changes in the la#) 2t #as the practice of appointing justiciars to represent the &ingRs person% to hold his court% to decide his pleas% to dispense justice on his behalf% to co((and the (ilitary le$ies% and to act as conser$ators of the peace in the &ingRs na(e) 7J: )) The justices #ho #ere assigned in the na(e of the so$ereign% and #hose po#ers #ere re$ocable at his pleasure% deri$ed their authority (erely fro( their grant))) So(e of those judges #ere usually deputed for the purpose of relie$ing the &ing fro( the burden of his judicial functions))) The nu(ber as #ell as the $ariety of na(es of the justices appearing in the early chirographs of R"oncords%R lea$e reason for doubting #hether% anterior to the reign of /enry 222)% @!8!M to !818%A a court% #hose (e(bers #ere changing at al(ost e$ery session% can be said to ha$e been per(anently constituted) 2t see(s (ore probable that the indi$iduals #ho co(posed the tribunal #ere selected as suited the pleasure of the so$ereign% and the con$enience of the cler&s and baronsS and the history of our legal ad(inistration #ill be (uch si(plified% if #e consider all those courts #hich #ere after#ards deno(inated the ExcheIuer% the UingRs Bench% the "o((on Pleas% and the "hancery% as being originally co((ittees% selected by the &ing #hen occasion reIuired% out of a large body% for the despatch of peculiar branches of business% and #hich co((ittees% by degrees% assu(ed an independent and per(anent existence))) Justices itinerant% #ho% despatched throughout the land% decided the R Pleas of the

"ro#n%R (ay be obscurely traced in the reign of the "onIuerorS not% perhaps% appointed #ith (uch regularity% but despatched upon peculiar occasions and e(ergencies)K ! Palgra$eRs .ise and Progress% XcS)% p) 860 to 80D) The follo#ing statute% passed in !DJE% @!D0 years after =agna "arta%A sho#s that e$en after this usurpation of appointing Kjustices K of his o#n% to try cri(inal cases% had probably beco(e so(e#hat established in practice% in defiance of =agna "arta% the &ing #as in the habit of granting special co((issions to still other persons% @especially to sheriffs% his sheriffs% no doubt%A to try particular cases? KBecause that the people of the real( ha$e suffered (any e$ils and (ischiefs% for that sheriffs of di$ers counties% by $irtue of co((issions and general #rits granted to the( at their o#n suit% for their singular profit to gain of the people% ha$e (ade and ta&en di$ers inIuests to cause to indict the people at their #ill% and ha$e ta&en fine and ranso( of the( to their o#n use% and ha$e deli$ered the(S #hereas such persons indicted #ere not brought before the &ingRs justices to ha$e their deli$erance% it is accorded and established% for to esche# all such e$ils and (ischiefs% that such co((issions and #rits before this ti(e (ade shall be utterly repealed% and that fro( henceforth no such co((issions shall be granted)K St) 86 Ed#ard 222)% ch) 0% @!DJE)A /o# silly to suppose that the illegality of these co((issions to try cri(inal eases% could ha$e been a$oided by si(ply granting the( to persons under the title of Kjustices%K instead of granting the( to Ksheriffs)K The statute #as e$idently a cheat% or at least designed as such% inas(uch as it $irtually asserts the right of the &ing to appoint his tools% under the na(e of Kjustices%K to try cri(inal cases% #hile it disa$o#s his right to appoint the( under the na(e of Ksheriffs)K =illar says? K*hen the &ingRs bench ca(e to ha$e its usual residence at *est(inster% the so$ereign #as induced to grant special co((issions% for trying particular cri(es% in such parts of the country as #ere found (ost con$enientS and this practice #as gradually (odeled into a regular appoint(ent of certain co((issioners% e(po#ered% at stated seasons% to perfor( circuits o$er the &ingdo(% and to hold courts in particular to#ns% for the trial of all sorts of cri(es) These judges of the circuit% ho#e$er% ne$er obtained an ordinary jurisdiction% but continued% on e$ery occasion% to deri$e their authority fro( t#o special co((issions? that of oyer and ter(iner% by #hich they #ere appointed to hear and deter(ine all treasons% felonies and (isde(eanors% #ithin certain districtsS and that of gaol deli$ery% by #hich they #ere directed to try e$ery prisoner confined in the gaols of the se$eral to#ns falling under their inspection)K =illarRs /ist) -ie# of Eng) Go$)% $ol) 8% ch) 1% p) 868) The follo#ing extract fro( Gilbert sho#s to #hat lengths of usurpation the &ings #ould so(eti(es go% in their atte(pts to get the judicial po#er out of the hands of the people% and entrust it

to instru(ents of their o#n choosing? K,ro( the ti(e of the Saxons%K @that is% fro( the co((ence(ent of the reign of *illia( the "onIueror%A Ktill the reign of Ed#ard the first% @!818 to !D91%A the se$eral county courts and sheriffs courts did decline in their interest and authority) The (ethods by #hich they #ere bro&en #ere t#oCfold) ,irst% by granting co((issions to the sheriffs by #rit of J<ST2"2ES% #hereby the sheriff had a particular jurisdiction granted hi( to be judge of a particular cause% independent of the suitors of the county court%K @that is% #ithout a jurySA Kand these co((issions #ere after the 4or(an for(% by #hich @according to #hichA all po#er of judicature #as i((ediately deri$ed fro( the &ing)K Gilbert on the "ourt of "hancery% p) l) The se$eral authorities no# gi$en sho# that it #as the custo( of the 4or(an &ings% not only to appoint persons to sit as judges in jury trials% in cri(inal cases% but that they also co((issioned indi$iduals to sit in singular and particular eases% as occasion reIuiredS and that they therefore readily could% and naturally #ould% and therefore undoubtedly did% co((ission indi$iduals #ith a special $ie# to their adaptation or capacity to procure such judg(ents as the &ings desired) The extract fro( Gilbert suggests also the usurpation of the 4or(an &ings% in their assu(ption that they% @and not the people% as by the co((on la#%A #ere the fountains of justice) 2t #as only by $irtue of this illegal assu(ption that they could clai( to appoint their tools to hold courts) All these things sho# ho# perfectly la#less and arbitrary the &ings #ere% both before and after =agna "arta% and ho# necessary to liberty #as the principle of =agna "arta and the co((on la#% that no person appointed by the &ing should hold jury trials in cri(inal cases) 7J: 2n this extract% Palgra$e see(s to assu(e that the &ing hi(self had a right to sit as judge% in jury trials% in the county courts% in both ci$il and cri(inal cases) 2 apprehend he had no such po#er at the co((on la#% but only to sit in the trial of appeals% and in the trial of peers% and of ci$il suits in #hich peers #ere parties% and possibly in the courts of ancient de(esne) 7M: The opinions and decisions of judges and courts are undeser$ing of the least reliance% @beyond the intrinsic (erit of the argu(ents offered to sustain the(%A and are un#orthy e$en to be Iuoted as e$idence of the la#% #hen those opinions or decisions are fa$orable to the po#er of the go$ern(ent% or unfa$orable to the liberties of the people) The only reasons that their opinions% #hen in fa$or of liberty% are entitled to any confidence% are% first% that all presu(ptions of la# are in fa$or of libertyS and% second% that the ad(issions of all (en% the innocent and the cri(inal ali&e% #hen (ade against their o#n interests% are entitled to be recei$ed as true% because it is contrary to hu(an nature for a (an to confess anything but truth against hi(self)

=ore sole(n farces% or (ore gross i(postures% #ere ne$er practised upon (an&ind% than are all% or $ery nearly all% those oracular responses by #hich courts assu(e to deter(ine that certain statutes% in restraint of indi$idual liberty% are #ithin the constitutional po#er of the go$ern(ent% and are therefore $alid and binding upon the people) The reason #hy these courts are so intensely ser$ile and corrupt% is% that they are not only parts of% but the $eriest creatures of% the $ery go$ern(ents #hose oppressions they are thus see&ing to uphold) They recei$e their offices and salaries fro(% and are i(peachable and re(o$able by% the $ery go$ern(ents upon #hose acts they affect to sit in judg(ent) 5f course% no one #ith his eyes open e$er places hi(self in a position so inco(patible #ith the liberty of declaring his honest opinion% unless he do it #ith the intention of beco(ing a (ere instru(ent in the hands of the go$ern(ent for the execution of all its oppressions) As proof of this% loo& at the judicial history of England for the last fi$e hundred years% and of A(erica fro( its settle(ent) 2n all that ti(e @so far as 2 &no#% or presu(eA no bench of judges% @probably not e$en any single judge%A dependent upon the legislature that passed the statute% has e$er declared a single penal statute in$alid% on account of its being in conflict either #ith the co((on la#% #hich the judges in England ha$e been s#orn to preser$e% or #ith the #ritten constitutions% @recogni;ing (enRs natural rights%A #hich the A(erican judges #ere under oath to (aintain) E$ery oppression% e$ery atrocity e$en% that has e$er been enacted in either country% by the legislati$e po#er% in the shape of a cri(inal la#% @or% indeed% in al(ost any other shape%A has been as sure of a sanction fro( the judiciary that #as dependent upon% and i(peachable by% the legislature that enacted the la#% as if there #ere a physical necessity that the legislati$e enact(ent and the judicial sanction should go together) Practically spea&ing% the su( of their decisions% all and singular% has been% that there are no li(its to the po#er of the go$ern(ent% and that the people ha$e no rights except #hat the go$ern(ent pleases to allo# to the() 2t is extre(e folly for a people to allo# such dependent% ser$ile% and perjured creatures to sit either in ci$il or cri(inal trialsS but to allo# the( to sit in cri(inal trials% and judge of the peopleRs liberties% is not (erely fatuity% it is suicide) 71: "o&e% spea&ing of the #ord bailiffs% as used in the statute of ! *est(inster% ch) DJ% @!81J%A says? K/ere bailiffs are ta&en for the judges of the court% as (anifestly appeareth hereby)K 8 2nst)% 880) "o&e also says% R 2t is a (axi( in la#% aliguis non debet esse judex in propria causa% @no one ought to be judge in his o#n causeSA and therefore a fine le$ied before the baylifes of Salop#as re$ersed% because one of the baylifes #as party to the fine% Iuia non potest esse judex et pars%K @because one cannot be judge

and party)A ! 2nst)% !E! a) 2n the statute of Gloucester% ch) !! and !8% @!816%A Kthe (ayor and bailiffs of London @undoubtedly chosen by the people% or at any rate not appointed by the &ingA are (anifestly spo&en of as judges% or (agistrates% holding jury trials% as follo#s? "h) 22) K2t is pro$ided% also% that if any (an lease his tene(ent in the city of London% for a ter( of years% and he to #ho( the freehold belongeth causeth hi(self to be i(pleaded by collusion% and (a&eth default after default% or co(eth into court and gi$eth it up% for to (a&e the ter(or @lesseeA lose his ter(% @lease%A and the de(andant hath his suit% so that the ter(or (ay reco$er by #rit of co$enantS the (ayor and bailiffs (ay inIuire by a good inIuest% @jury%A in the presence of the ter(or and the de(andant% #hether the de(andant (o$ed his plea upon good right that he had% or by collusion% or fraud% to (a&e the ter(or lose his ter(S and if it be found by the inIuest @juryA that the de(andant (o$ed his plea upon good right that he had% the judg(ent shall be gi$en forth#ithS and if it be found by the inIuest @juryA that he i(pleaded hi( @self A by fraud% to put the ter(or fro( his ter(% then shall the ter(or enjoy his ter(% and the execution of judg(ent for the de(andant shall be suspended until the ter( be expired)K E Ed#ard 2)% ch) !!% @!816)A "o&e% in his co((entary on this chapter% calls this court of Kthe (ayor and bailiffsK of London% K the court of the hustings% the greatest and highest court in LondonSK and adds% Kother cities ha$e the li&e court% and so called% as 3or&% Lincoln% *inchester% XeS) /ere the city of London is na(edS but it appeareth by that #hich hath been said out of ,leta% that this act extends to such cities and boroughs pri$ileged% that is% such as ha$e such pri$ilege to hold plea as London hath)K 8 2nst)% D88) The !8th chapter of the sa(e statute is in the follo#ing #ords% #hich plainly recogni;e the fact that K the (ayor and bailiffs of LondonK are judicial officers holding courts in London) K2t is pro$ided% also% that if a (an% i(pleaded for a tene(ent in the sa(e city% @London%A doth $ouch a foreigner to #arranty% that he shall co(e into the chancery% and ha$e a #rit to su((on his #arrantor at a certain day before the justices of the beach% and another #rit to the (ayor and bailiff of London% that they shall surcease @suspend proceedingsA in the (atter that is before the( by #rit% until the plea of the #arrantee be deter(ined before the justices of the benchS and #hen the plea at the bench shall be deter(ined% then shall he that is $ouched be co((anded to go into the city%K @that is% before Kthe (ayor and bailiffs K court%A Kto ans#er unto the chief pleaS and a #rit shall be a#arded at the suit of the de(andant by the justices unto the (ayor and bailiffs% that they shall proceed in the plea%K XcS) M Ed#ard 2)% ch) !8% @!816)A "o&e% in his co((entary on this chapter% also spea&s repeatedly of Kthe (ayor and bailiffsK as judges holding courts% and also spea&s of this chapter as applicable not only to Kthe citie of

London% specially na(ed for the cause aforesaid% but extended by eIuity to all other pri$ileged places%K @that is% pri$ileged to ha$e a court of K(ayor and bailiffs%KA K#here foreign $oucher is (ade% as to "hester% +urha(% Salop%K XeS) 8 2nst)% D8J 1) BA2L2E) 2n Scotch la#% a (unicipal (agistrate% corresponding #ith the English alder(an)76: BurrillRs La# +ictionary) BA2LL2,,E Baillif) ,r) A bailiff? a (inisterial officer #ith duties si(ilar to those of a sheriff) * * The judge of a court) A (unicipal (agistrate% XcS) BurrillRs La# +ict) BA2L2,, C The #ord bailiff is of 4or(an origin% and #as applied in England% at an early period% @after the exa(ple% it is said% of the ,rench%A to the chief (agistrates of counties% or shires% such as the alder(an% the ree$e% or sheriff% and also of inferior jurisdictions% such as hundreds and #apenta&es) Spel(an% $oc) Bali$usS ! Bl) "o()%DEE) See Bailli% Balli$us) The Latin balli$us occurs% indeed% in the la#s of Ed#ard the "onfessor% but Spel(an thin&s it #as introduced by a later hand) Balli$a @baili#ic&A #as the #ord for(ed fro( balli$us% to denote the extent of territory co(prised #ithin a bailiffRs jurisdictionS and baili#ic& is still retained in #rits and other proceedings% as the na(e of a sheriffRs county) ! Bl) "o()% DEE) See Balli$a) The office of bailiff #as at first strictly% though not exclusi$ely% a judicial one) 2n ,rance% the #ord had the sense of #hat Spel(an calls justitia tutelaris) Balli$us occurs freIuently in the .egia( =ajestate(% in the sense of a judge) Spel(an) 2n its sense of a deputy% it #as for(erly applied% in England% to those officers #ho% by $irtue of a deputation% either fro( the sheriff or the lords of pri$ate jurisdictions% exercised #ithin the hundred% or #hate$er (ight be the li(its of their baili#ic&% certain judicial and (inisterial functions) *ith the disuse of pri$ate and local jurisdictions% the (eaning of the ter( beca(e co((only restricted to such persons as #ere deputed by the sheriff to assist hi( in the (erely (inisterial portion of his dutyS such as the su((oning of juries% and the execution of #rits) Brande)) The #ord bailiff is also applied in England to the chief (agistrates of certain to#ns and jurisdictions% to the &eepers of castles% forests and other places% and to the ste#ards or agents of lords of (anors) BurrillRs La# +ict) KBA2L2,,% @fro( the Lat) balli$usS ,r) baillif% i) e)% Praefectus pro$inciae%A signifies an officer appointed for the ad(inistration of justice #ithin a certain district) The office% as #ell as the na(e% appears to ha$e been deri$ed fro( the ,rench%K XcS) Bre#sterRs Encyclopedia) =illar says% KThe ,rench (onarchs% about this period% #ere not content #ith the po#er of recei$ing appeals fro( the se$eral courts of their barons) An expedient #as de$ised of sending royal bailiffs into different parts of the &ingdo(% #ith a co((ission to ta&e cogni;ance of all those causes in #hich the so$ereign #as interested% and in reality for the purpose of abridging and li(iting the subordinate jurisdiction of the neighboring feudal superiors) By an edict of Phillip Augustus% in the year !!09% those bailiffs #ere appointed in all the principal to#ns of the

&ingdo()K =illarRs /ist) -ie# of the Eng) Go$)% $ol) ii)% ch) 6% p) !8M) KBA2L2,,C office) =agistrates #ho for(erly ad(inistered justice in the parlia(ents or courts of ,rance% ans#ering to the English sheriffs% as (entioned by Bracton)K Bou$ierRs La# +ict) KThere be se$eral officers called bailiffs% #hose offices and e(ploy(ents see( Iuite different fro( each other))) The chief (agistrate% in di$ers ancient corporations% are called bailiffs% as in 2ps#ich% 3ar(outh% "olchester% XcS) There are% li&e#ise% officers of the forest% #ho are ter(ed bailiffs)K ! BaconRs Abridg(ent% E06 0) K BA2L2,, signifies a &eeper or superintendent% and is directly deri$ed fro( the ,rench #ord bailli% #hich appears to co(e fro( the #ord bali$us% and that fro( bagalus% a Latin #ord signifying generally a go$ernor% tutor% or superintendent))) The ,rench #ord bailli is thus explained by .ichelet% @+ictionaire% XeS)?A Bailli) /e #ho in a pro$ince has the superintendence of justice% #ho is the ordinary judge of the nobles% #ho is their head for the ban and arriere ban% 70: and #ho (aintains the right and property of others against those #ho attac& the())) All the $arious officers #ho are called by this na(e% though differing as to the nature of their e(ploy(ents% see( to ha$e so(e &ind of superintendence intrusted to the( by their superior)K Political +ictionary) K BA2L2,,% bali$us) ,ro( the ,rench #ord bayliff% that is% praefectus pro$inciae% and as the na(e% so the office itself #as ans#erable to that of ,rance% #here there #ere eight parlia(ents% #hich #ere high courts fro( #hence there lay no appeal% and #ithin the precincts of the se$eral parts of that &ingdo( #hich belonged to each parlia(ent% there #ere se$eral pro$inces to #hich justice #as ad(inistered by certain officers called bailiffsS and in England #e ha$e se$eral counties in #hich justice hath been% and still is% in s(all suits% ad(inistered to the inhabitants by the officer #ho( #e no# call sheriff% or $iscountS @one of #hich na(es descends fro( the Saxons% the other fro( the 4or(ans)A And% though the sheriff is not called bailiff% yet it #as probable that #as one of his na(es also% because the county is often called balli$aS as in the return of a #rit% #here the person is not arrested% the sheriff saith% infraCno(inatus% A) B) non est in$entus in balli$a (ea% XcS)S @the #ithin na(ed A) B) is not found in (y baili#ic&% XcS)A And in the statute of =agna "arta% ch) 86% and !E Ed) 6% ch) 0% the #ord bailiff see(s to co(prise as #ell sheriffs% as bailiffs of hundreds) BA2L2ES% in Scotland% are (agistrates of burghs% possessed of certain jurisdictions% ha$ing the sa(e po#er #ithin their territory as sheriffs in the county) As England is di$ided into counties% so e$ery county is di$ided into hundredsS #ithin #hich% in ancient ti(es% the people had justice ad(inistered to the( by the se$eral officers of e$ery hundred% #hich #ere the bailiffs) And it appears by Bracton% @lib) D% tract) 8% ch) DE%A that bailiffs of hundreds (ight

anciently hold plea of appeal and appro$ersS but since that ti(e the hundred courts% except certain franchises% are s#allo#ed in the county courtsS and no# the bailiffRs na(e and office is gro#n into conte(pt% they being generally officers to ser$e #rits% XcS)% #ithin their libertiesS though% in other respects% the na(e is still in good estee(% for the chief (agistrates in di$ers to#ns are called bailiffsS and so(eti(es the persons to #ho( the &ingRs castles are co((itted are ter(ed bailiffs% as the bailiffof +o$er "astle% XcS)% K5f the ordinary bailiffs there are se$eral sorts% $i;)% bailiffsof libertiesS sheriffsR bailiffsS bailiffs of lords of (anorsS bailiffs of husbandry% XcS) KBailiffs of liberties or franchises are to be s#orn to ta&e distresses% truly i(panel jurors% (a&e returns by indenture bet#een the( and sheriffs% XcS) KBailiffs of courts baron su((on those courts% and execute the process thereof) K Besides these% there are also bailiffs of the forest))) K JacobRs La# +ict) To(linRs do) KBA2L2*2"U% balli$a% is not only ta&en for the county% but signifies generally that liberty #hich is exe(pted fro( the sheriff of the county% o$er #hich the lord of the liberty appointeth a bailiff% #ith such po#ers #ithin his precinct as an underCsheriff exerciseth under the sheriff of the countyS such as the bailiff of *est(inster)K JacobRs La# +ict) To(linRs do) KA bailiff of a Leet% "ourtCbaron% =anor% Bali$us Letae% Baronis% =anerii) /e is one that is appointed by the lord% or his ste#ard% #ithin e$ery (anor% to do such offices as appertain thereunto% as to su((on the court% #arn the tenants and resiantsS also% to su((on the Leet and /o(age% le$y fines% and (a&e distresses% XcS)% of #hich you (ay read at large in UitchenRs "ourtCleet and "ourtCbaron)K A La# +ictionary% anony(ous% @in Suffol& La# Library)A KBailliff 2n England an officer appointed by the sheriff) BailiffRs are either special% and appointed% for their adroitness% to arrest personsS or bailiffs of hundreds% #ho collect fines% su((on juries% attend the assi;es% and execute #rits and processes% The sheriff in England is the &ingRs bailiff) KThe office of bailiff for(erly #as high and honorable in England% and officers under that title on the continent are still in$ested #ith i(portant functions)K *ebster) KBA2LL2% @Scotland)A An alder(anS a (agistrate #ho is second in ran& in a royal burgh)K *orcester) KBaili% or Bailiff) @Sorte dRofficier de justice)A A bailiffS a sort of (agistrate)K BoyerRs ,rench +ict) KBy so(e opinions% a bailiff% in =agna "arta% ch) 86% signifies any judge)K "unningha(Rs La# +ict)

KBA2L2,,) 2n the court of the Gree& e(perors there #as a grand bajulos% first tutor of the e(perorRs children) The superintendent of foreign (erchants see(s also to ha$e been called bajulosS and% as he #as appointed by the -enetians% this title @balioA #as transferred to the -enetian a(bassador) ,ro( Greece% the official bajulos @balli$us% bailli% in ,ranceS bailiff% in England%A #as introduced into the south of Europe% and denoted a superintendentS hence the eight balli$i of the &nights of St) John% #hich constitute its supre(e council) 2n ,rance% the royal bailiffs #ere co((anders of the (ilitia% ad(inistrators or ste#ards of the do(ains% and judges of their districts) 2n the course of ti(e% only the first duty re(ained to the bailiffS hence he #as bailli dRepee% and la#s #ere ad(inistered in his na(e by a la#yer% as his deputy% lieutenant de robe) The seigniories% #ith #hich high courts #ere connected% e(ployed bailiffs% #ho thus constituted% al(ost e$ery#here% the lo#est order of judges) ,ro( the courts of the nobility% the appellation passed to the royal courtsS fro( thence to the parlia(ents) 2n the greater baili#ic&s of cities of i(portance% /enry 22) established a collegial constitution under the na(e of presidial courts))) The na(e of bailiff #as introduced into England #ith *illia( 2) The counties #ere also called baili#ic&s% @baili$ae%A #hile the subdi$isions #ere called hundreds% but% as the courts of the hundreds ha$e long since ceased% the English bailiffs are only a &ind of subordinate officers of justice% li&e the ,rench huissiers) These correspond $ery nearly to the officers called constables in the <nited States) E$ery sheriff has so(eof the( under hi(% for #ho( he is ans#erable) 2n so(e cities the highest (unicipal officer yet bears this na(e% as the high bailiff of *est(inster) 2n London% the Lord =ayor is at the sa(e ti(e bailiffS @#hich title he bore before the present beca(e usual%A and ad(inisters% in this Iuality% the cri(inal jurisdiction of the city% in the court of old Bailey% #here there are% annually% eight sittings of the court% for the city of London and the county of =iddlesex) <sually% the recorder of London supplies his place as judge) 2n so(e instances the ter( bailiff% in England% is applied to the chief (agistrates of to#ns% or to the co((anders of particular castles% as that of +o$er) The ter( baillie% in Scotland% is applied to a judicial policeCofficer% ha$ing po#ers $ery si(ilar to those of justices of peace in the <nited States)K Encyclopaedia A(ericana) 76: Alder(an #as a title anciently gi$en to $arious judicial officers% as the Alder(an of all England% Alder(an of the Uing% Alder(an of the "ounty% Alder(an of the "ity or Borough% alder(an of the /undred or *apenta&e) These #ere all judicial officers) See La# +ictionaries) 70: KBan and arriere ban% a procla(ation% #hereby all that hold lands of the cro#n% @except so(e pri$ileged officers and citi;ens%A are su((oned to (eet at a certain place in order to ser$e the &ing in his #ars% either personally% or by proxy)K Boyer) 7!9: Perhaps it (ay be said @and such% it has already been seen% is the opinion of "o&e and othersA that the chapter of =agna

"arta% that Kno bailiff fro( henceforth shall put any (an to his open la#% @put hi( on trial%A nor to an oath @that is% an oath of selfC exculpationA upon his @the bailiffRsA o#n accusation or testi(ony% #ithout credible #itnesses brought in to pro$e the charge%K is itself a K pro$ision in regard to the &ingRs justices sitting in cri(inal trials%K and therefore i(plies that they areto sit in such trials) But% although the #ord bailiff includes all judicial% as #ell as other% officers% and #ould therefore in this case apply to the &ingRs justices% if they #ere to sit in cri(inal trialsS yet this particular chapter of =agna "arta e$idently does not conte(plate KbailiffsK #hile acting in their judicial capacity% @for they #ere not allo#ed to sit in cri(inal trials at all%A but only in the character of #itnesses% and that the (eaning of the chapter is% that the si(ple testi(ony @si(plici loIuelaA of Kno bailiff%K @of #hate$er &ind%A unsupported by other and Kcredible #itnesses%K shall be sufficient to put any (an on trial% or to his oath of selfCexculpation)K 7!!: 2t #ill be noticed that the #ords of this chapter are not% Kno bailiff of ours%K that is% of the &ing% as in so(e other chapters of =agna "artaS but si(ply Kno bailiff%KXcS) The prohibition% therefore% applied to all Kbailiffs%K to those chosen by the people% as #ell as those appointed by the &ing) And the prohibition is ob$iously founded upon the idea @a $ery sound one in that age certainly% and probably also in thisA that public officers @#hether appointed by &ing or peopleA ha$e generally% or at least freIuently% too (any interests and ani(osities against accused persons% to (a&e it% safe to con$ict any (an on their testi(ony alone) The idea of "o&e and others% that the object of this chapter #as si(ply to forbid (agistrates to put a (an on trial% #hen there #ere no #itnesses against hi(% but only the si(ple accusation or testi(ony of the (agistrates the(sel$es% before #ho( he #as to be tried% is preposterousS for that #ould be eIui$alent to supposing that (agistrates acted in the triple character of judge% jury and #itnesses% in the sa(e trialS and that% therefore% in such case% they needed to be prohibited fro( conde(ning a (an on their o#n accusation or testi(ony alone) But such a pro$ision #ould ha$e been unnecessary and senseless% for t#o reasonsS first% because the bailiffs or (agistrates had no po#er to Khold pleas of the cro#n%K still less to try or conde(n a (anS that po#er resting #holly #ith the juriesS second% because if bailiffs or (agistrates could try and conde(n a (an% #ithout a jury% the prohibition upon their doing so upon their o#n accusation or testi(ony alone% #ould gi$e no additional protection to the accused% so long as these sa(e bailiffs or (agistrates #ere allo#ed to decide #hat #eight should be gi$en% both to their o#n testi(ony and that of other #itnesses% for% if they #ished to con$ict% they #ould of course decide that any testi(ony% ho#e$er fri$olous or irrele$ant% in addition to their o#n% #as sufficient) "ertainly a (agistrate could al#ays procure #itnesses enough to testify to so(ething or other% #hich he hi(self could decide to be corroborati$e of his o#n testi(ony) And thus the prohibition #ould be defeated in fact% though obser$ed in for()

7!!: At the co((on la#% parties% in both ci$il and cri(inal cases% #ere allo#ed to s#ear in their o#n behalfS and it #ill be so again% if the true trial by jury should be reestablished) 7!8: 2n this chapter 2 ha$e called the justices Kpresiding officers%K solely for the #ant of a better ter() They are not Kpresiding officers%K in the sense of ha$ing any authority o$er the juryS but are only assistants to% and teachers and ser$ants of% the jury) The fore(an of the jury is properly the KPresiding 5fficer%K so far as there is such an officer at all) The sheriff has no authority except o$er other persons than the jury) "/APTE. -222) T/E ,.EE A+=242ST.AT254 5, J<ST2"E The free ad(inistration of justice #as a principle of the co((on la#S and it (ust necessarily be a part of e$ery syste( of go$ern(ent #hich is not designed to be an engine in the hands of the rich for the oppression of the poor) 2n saying that the free ad(inistration of justice #as a principle of the co((on la#% 2 (ean only that parties #ere subjected to no costs for jurors% #itnesses% #rits% or other necessaries for the trial% preli(inary to the trial itself) "onseIuently% no one could lose the benefit of a trial% for the #ant of (eans to defray expenses) But after the trial% the plaintiff or defendant #as liable to be a(erced% @by the jury% of course%A for ha$ing troubled the court #ith the prosecution or defence of an unjust suit) 7!: But it is not li&ely that the losing party #as subjected to an a(erce(ent as a (atter of course% but only in those cases #here the injustice of his cause #as so e$ident as to (a&e hi( inexcusable in bringing it before the courts) All the freeholders #ere reIuired to attend the courts% that they (ight ser$e as jurors and #itnesses% and do any other ser$ice that could legally be reIuired of the(S and their attendance #as paid for by the state) 2n other #ords% their attendance and ser$ice at the courts #ere part of the rents #hich they paid the state for their lands) The freeholders% #ho #ere thus reIuired al#ays to attendthe courts% #ere doubtless the only #itnesses #ho #ere usually reIuired in ci$il causes) This #as o#ing to the fact that% in those days% #hen the people at large could neither #rite nor read% fe# contracts #ere put in #riting) The expedient adopted for pro$ing contracts% #as that of (a&ing the( in the presence of #itnesses% #ho could after#ards testify to the transactions) =ost contracts in regard to lands #ere (ade at the courts% in the presence of the freeholders there asse(bled) 78: 2n the &ingRs courts it #as specially pro$ided by =agna "arta that Kjustice and rightK should not be KsoldSK that is% that the &ing should ta&e nothing fro( the parties for ad(inistering justice)

The oath of a party to the justice of his cause #as all that #as necessary to entitle hi( to the benefit of the courts free of all expenseS @except the ris& of being a(erced after the trial% in case the jury should thin& he deser$ed it) 7D:A This principle of the free ad(inistration of justice connects itself necessarily #ith the trial by jury% because a jury could not rightfully gi$e judg(ent against any (an% in either a ci$il or cri(inal case% if they had any reason to suppose he had been unable to procure his #itnesses) The true trial by jury #ould also co(pel the free ad(inistration of justice fro( another necessity% $i;)% that of pre$enting pri$ate IuarrelsS because% unless the go$ern(ent enforced a (anRs rights and redressed his #rongs% free of expense to hi(% a jury #ould be bound to protect hi( in ta&ing the la# into his o#n hands) A (an has a natural right to enforce his o#n rights and redress his o#n #rongs) 2f one (an o#e another a debt% and refuse to pay it% the creditor has a natural right to sei;e sufficient property of the debtor% #here$er he can find it% to satisfy the debt) 2f one (an co((it a trespass upon the person% property or character of another% the injured party has a natural right% either to chastise the aggressor% or to ta&e co(pensation for the injury out of his property) But as the go$ern(ent is an i(partial party as bet#een these indi$iduals% it is (ore li&ely to do exactjustice bet#een the( than the injured indi$idual hi(self #ould do) The go$ern(ent% also% ha$ing (ore po#er at its co((and% is li&ely to right a (anRs #rongs (ore peacefully than the injured party hi(self could do it) 2f% therefore% the go$ern(ent #ill do the #or& of enforcing a (anRs rights% and redressing his #rongs% pro(ptly% and free of expense to hi(% he is under a (oral obligation to lea$e the #or& in the hands of the go$ern(entS but not other#ise) *hen the go$ern(ent forbids hi( to enforce his o#n rights or redress his o#n #rongs% and depri$es hi( of all (eans of obtaining justice% except on the condition of his e(ploying the go$ern(ent to obtain it for hi(% and of paying the go$ern(ent for doing it% the go$ern(ent beco(es itself the protector and acco(plice of the #rongCdoer) 2f the go$ern(ent #ill forbid a (an to protect his o#n rights% it is bound% to do it for hi(% free of expense to hi() And so long as go$ern(ent refuses to do this% juries% if hey &ne# their duties% #ould protect a (an in defending his o#n rights) <nder the pre$ailing syste(% probably one half of the co((unity are $irtually depri$ed of all protection for their rights% except #hat the cri(inal la# affords the() "ourts of justice% for all ci$il suits% are as effectually shut against the(% as though it #ere done by bolts and bars) Being forbidden to (aintain their o#n rights by force% as% for instance% to co(pel the pay(ent of debts% and being unable to pay the expenses of ci$il suits% they ha$e no alternati$e but sub(ission to (any acts of injustice% against #hich the go$ern(ent is bound either to protect the(% free of expense% or allo# the( to protect the(sel$es) There #ould be the sa(e reason in co(pelling a party to pay the

judge and jury for their ser$ices% that there is in co(pelling hi( to pay the #itnesses% or any other necessary charges) 7E: This co(pelling parties to pay the expenses of ci$il suits is one of the (any cases in #hich go$ern(ent is false to the funda(ental principles on #hich free go$ern(ent is based) *hat is the object of go$ern(ent% but to protect (enRs rightsQ 5n #hat principle does a (an pay his taxes to the go$ern(ent% except on that of contributing his proportion to#ards the necessary cost of protecting the rights of allQ 3et% #hen his o#n rights are actually in$aded% the go$ern(ent% #hich he contributes to support% instead of fulfilling its i(plied contract% beco(es his ene(y% and not only refuses to protect his rights% @except at his o#n cost%A but e$en forbids hi( to do it hi(self) All free go$ern(ent is founded on the theory of $oluntary associationS and on the theory that all the parties to it $oluntarily pay their taxes for its support% on the condition of recei$ing protection in return) But the idea that any poor (an #ould $oluntarily pay taxes to build up a go$ern(ent% #hich #ill neither protect his rights% @except at a cost #hich he cannot (eet%A nor suffer hi(self to protect the( by such (eans as (ay be in his po#er% is absurd) <nder the pre$ailing syste(% a large portion of the la#suits deter(ined in courts% are (ere contests of purses rather than of rights) And a jury% s#orn to decide causes Kaccording to the e$idenceK produced% are Iuite li&ely% for aught they the(sel$es can &no#% to be deciding (erely the co(parati$e length of the partiesR purses% rather than the intrinsic strength of their respecti$e rights) Jurors ought to refuse to decide a cause at all% except upon the assurance that all the e$idence% necessary to a full &no#ledge of the cause% is produced) This assurance they can seldo( ha$e% unless the go$ern(ent itself produces all the #itnesses the parties desire) 2n cri(inal cases% the atrocity of accusing a (an of cri(e% and then conde(ning hi( unless he pro$e his innocence at his o#n charges% is so e$ident that a jury could rarely% if e$er% be justified in con$icting a (an under such circu(stances) But the free ad(inistration of justice is not only indispensable to the (aintenance of right bet#een (an and (anS it #ould also pro(ote si(plicity and stability in the la#s) The (ania for legislation #ould be% in an i(portant degree% restrained% if the go$ern(ent #ere co(pelled to pay the expenses of all the suits that gre# out of it) The free ad(inistration of justice #ould di(inish and nearly extinguish another great e$il% that of (alicious ci$il suits 2t is an old saying% that K(ulti litigant in foro% non ut aliIuid lucentur% sed ut $exant alios)K @=any litigate in court% not that they (ay gain anything% but that they (ay harass others)A =any (en% fro( (oti$es of re$enge and oppression% are #illing to spend their o#n (oney in prosecuting a groundless suit% if they can thereby co(pel their $icti(s% #ho are less able than the(sel$es to bear the loss% to spend (oney in the defence) <nder the

pre$ailing syste(% in #hich the parties pay the expenses of their suits% nothing but (oney is necessary to enable any (alicious (an to co((ence and prosecute a groundless suit% to the terror% injury% and perhaps ruin% of another (an) 2n this #ay% a court of justice% into #hich none but a conscientious plaintiff certainly should e$er be allo#ed to enter% beco(es an arena into #hich any rich and re$engeful oppressor (ay drag any (an poorer than hi(self% and harass% terrify% and i(po$erish hi(% to al(ost any extent) 2t is a scandal and an outrage% that go$ern(ent should suffer itself to be (ade an instru(ent% in this #ay% for the gratification of pri$ate (alice) *e (ight nearly as #ell ha$e no courts of justice% as to thro# the( open% as #e do% for such flagitious uses) 3et the e$il probably ad(its of no re(edy except a free ad(inistration of justice) <nder a free syste(% plaintiffs could rarely be influenced by (oti$es of this &indS because they could put their $icti( to little or no expense% neither pending the suit% @#hich it is the object of the oppressor to do%A nor at its ter(ination) Besides% if the ancient co((on la# practice should be adopted% of a(ercing a party for troubling the courts #ith groundless suits% the prosecutor hi(self #ould% in the end% be li&ely to be a(erced by the jury% in such a (anner as to (a&e courts of justice a $ery unproitable place for a (an to go to see& re$enge) 2n esti(ating the e$ils of this &ind% resulting fro( the present syste(% #e are to consider that they are not% by any (eans% confined to the actual suits in #hich this &ind of oppression is practisedS but #e are to include all those cases in #hich the fear of such oppression is used as a #eapon to co(pel (en into a surrender of their rights) 7!: 8 Sulli$an Lectures% 8DECJ) D Blac&stone% 81ECJ% D1M) Sulli$an says that both plaintiffRs and defendants #ere liable to a(erce(ent) Blac&stone spea&s of plaintiffs being liable% #ithout saying #hether defendants #ere so or not) *hat the rule really #as 2 do not &no#) There #ould see( to be so(e reason in allo#ing defendants to defend the(sel$es% at their o#n charges% #ithout exposing the(sel$es to a(erce(ent in case of failure) 78: *hen any other #itnesses than freeholders #ere reIuired in a ci$il suit% 2 a( not a#are of the (anner in #hich their attendance #as procuredS but it #as doubtless done at the expense either of the state or of the #itnesses the(sel$es) And it #as doubt less the sa(e in cri(inal cases) 7D: KAll clai(s #ere established in the first stage by the oath of the plaintiff% except #hen other#ise specially directed by the la#) The oath% by #hich any clai( #as supported% #as called the foreCoath% or R Praejura(entu(%R and it #as the foundation of his suit) 5ne of the cases #hich did not reIuire this initiatory confir(ation% #as #hen cattle could be trac&ed into another (anRs land% and then the footC(ar& stood for the foreCoath)K 8 Palgra$eRs .ise and Progress% XcS)% !!E) 7E: A(ong the necessary expenses of suits% should be rec&oned reasonable co(pensation to counsel% for they are nearly or Iuite as i(portant to the ad(inistration of justice% as are judges%

jurors% or #itnessesS and the uni$ersal practice of e(ploying the(% both on the part of go$ern(ents and of pri$ate persons% sho#s that their i(portance is generally understood) As a (ere (atter of econo(y% too% it #ould be #ise for the go$ern(ent to pay the(% rather than they should not be e(ployedS because they collect and arrange the testi(ony and the la# beforehand% so as to be able to present the #hole case to the court and jury intelligibly% and in a short space of ti(e) *hereas% if they #ere not e(ployed% the court and jury #ould be under the necessity either of spending (uch (ore ti(e than no# in the in$estigation of causes% or of despatching the( in haste% and #ith little regard to justice) They #ould be $ery li&ely to do the latter% thus defeating the #hole object of the people in establishing courts) To pre$ent the abuse of this right% it should perhaps be left discretionary #ith the jury in each case to deter(ine #hether the counsel should recei$e any pay and% if any% ho# (uch fro( the go$ern(ent) "/APTE. 2P) T/E ".2=24AL 24TE4T 2t is a (axi( of the co((on la# that there can be no cri(e #ithout a cri(inal intent) And it is a perfectly clear principle% although one #hich judges ha$e in a great (easure o$erthro#n in practice% that jurors are to judge of the (oral intent of an accused person% and hold hi( guiltless% #hate$er his act% unless they find hi( to ha$e acted #ith a cri(inal intentS that is% #ith a design to do #hat he &ne# to be cri(inal) This principle is clear% because the Iuestion for a jury to deter(ine is% #hether the accused be guilty% or not guilty) Guiltis a personal Iuality of the actor% not necessarily in$ol$ed in the act% but depending also upon the intent or (oti$e #ith #hich the act #as done) "onseIuently% the jury (ust find that he acted fro( a cri(inal (oti$e% before they can declare hi( guilty) There is no (oral justice in% nor any political necessity for% punishing a (an for any act #hate$er that he (ay ha$e co((itted% if he ha$e done it #ithout any cri(inal intent) There can be no (oral justice in punishing for such an act% because% there ha$ing been no cri(inal (oti$e% there can ha$e been no other (oti$e #hich justice can ta&e cogni;ance of% as de(anding or justifying punish(ent) There can be no political necessity for punishing% to #arn against si(ilar acts in future% because% if one (an ha$e injured another% ho#e$er unintentionally% he is liable% and justly liable% to a ci$il suit for da(agesS and in this suit he #ill be co(pelled to (a&e co(pensation for the injury% not#ithstanding his innocence of any intention to injure) /e (ust bear the conseIuences of his o#n act% instead of thro#ing the( upon another% ho#e$er innocent he (ay ha$e been of any intention to do #rong) And the da(ages he #ill ha$e to pay #ill be a sufficient #arning to hi( not to do the li&e act again) 2f it be alleged that there are cri(es against the public% @as treason% for exa(ple% or any other resistance to go$ern(ent%A for

#hich pri$ate persons can reco$er no da(ages% and that there is a political necessity for punishing for such offences% e$en though the party acted conscientiously% the ans#er is% the go$ern(ent (ust bear #ith all resistance that is not so clearly #rong as to gi$e e$idence of cri(inal intent) 2n other #ords% the go$ern(ent% in all its acts% (ust &eep itself so clearly #ithin the li(its of justice% as that t#el$e (en% ta&en at rando(% #ill all agree that it is in the right% or it (ust incur the ris& of resistance% #ithout any po#er to punish it) This is the (ode in #hich the trial by jury operates to pre$ent the go$ern(ent fro( falling into the hands of a party% or a faction% and to &eep it #ithin such li(its as all% or substantially all% the people are agreed that it (ay occupy) This necessity for a cri(inal intent% to justify con$iction% is pro$ed by the issue #hich the jury are to try% and the $erdict they are to pronounce) The KissueK they are to try is% Kguilty%Kor Knot guilty)K And those are the ter(s they are reIuired to use in rendering their $erdicts) But it is a plain falsehood to say that a (an is Kguilty%K unless he ha$e done an act #hich he &ne# to be cri(inal) This necessity for a cri(inal intent in other #ords% for guilt as a preli(inary to con$iction% (a&es it i(possible that a (an can be rightfully con$icted for an act that is intrinsically innocent% though forbidden by the go$ern(entS because guilt is an intrinsic Iuality of actions and (oti$es% and not one that can be i(parted to the( by arbitrary legislation) All the efforts of the go$ern(ent% therefore% to K(a&e offences by statute%K out of acts that are not cri(inal by nature% (ust necessarily be ineffectual% unless a jury #ill declare a (an KguiltyK for an act that is really innocent) The corruption of judges% in their atte(pts to uphold the arbitrary authority of the go$ern(ent% by procuring the con$iction of indi$iduals for acts innocent in the(sel$es% and forbidden only by so(e tyrannical statute% and the co((ission of #hich therefore indicates no cri(inal intent% is $ery apparent) To acco(plish this object% they ha$e in (odern ti(es held it to be unnecessary that indict(ents should charge% as by the co((on la# they #ere reIuired to do% that an act #as done K#ic&edly%K Kfeloniously%K K#ith (alice aforethought%K or in any other (anner that i(plied a cri(inal intent% #ithout #hich there can be no cri(inalityS but that it is sufficient to charge si(ply that it #as done K contrary to the for( of the statute in such case (ade and pro$ided)K This for( of indict(ent proceeds plainly upon the assu(ption that the go$ern(ent is absolute% and that it has authority to prohibit any act it pleases% ho#e$er innocent in its nature the act (ay be) Judges ha$e been dri$en to the alternati$e of either sanctioning this ne# for( of indict(ent% @#hich they ne$er had any constitutional right to sanction%A or of seeing the authority of (any of the statutes of the go$ern(ent fall to the groundS because the acts forbidden by the statutes #ere so plainly innocent in their nature% that e$en the go$ern(ent itself had not the face to allege that the co((ission of the( i(plied or indicated any cri(inal intent)

To get rid of the necessity of sho#ing a cri(inal intent% and thereby further to ensla$e the people% by reducing the( to the necessity of a blind% unreasoning sub(ission to the arbitrary #ill of the go$ern(ent% and of a surrender of all right% on their o#n part% to judge #hat are their constitutional and natural rights and liberties% courts ha$e in$ented another idea% #hich they ha$e incorporated a(ong the pretended (axi(s% upon #hich they act in cri(inal trials% $i;)% that Kignorance of the la# excuses no one)K As if it #ere in the nature of things possible that there could be an excuse (ore absolute and co(plete) *hat else than ignorance of the la# is it that excuses persons under the years of discretion% and (en of i(becile (indsQ *hat else than ignorance of the la# is it that excuses judges the(sel$es for all their erroneous decisionsQ 4othing) They are e$ery day co((itting errors% #hich #ould be cri(es% but for their ignorance of the la#) And yet these sa(e judges% #ho clai( to be learned in the la#% and #ho yet could not hold their offices for a day% but for the allo#ance #hich the la# (a&es for their ignorance% are continually asserting it to be a K(axi(K that Kignorance of the la# excuses no oneSK @by #hich% of course% they really (ean that it excuses no one but the(sel$esS and especially that it excuses no unlearned (an% #ho co(es before the( charged #ith cri(e)A This preposterous doctrine% that Kignorance of the la# excuses no one%K is asserted by courts because it is an indispensable one to the (aintenance of absolute po#er in the go$ern(ent) 2t is indispensable for this purpose% because% if it be once ad(itted that the people ha$e any rights and liberties #hich the go$ern(ent cannot la#fully ta&e fro( the(% then the Iuestion arises in regard to e$ery statute of the go$ern(ent% #hether it be la#% or notS that is% #hether it infringe% or not% the rights and liberties of the people) 5f this Iuestion e$ery (an (ust of course judge according to the light in his o#n (ind) And no (an can be con$icted unless the jury find% not only that the statute is la#% that it does not infringe the rights and liberties of the people% but also that it #as so clearly la#% so clearly consistent #ith the rights and liberties of the people% as that the indi$idual hi(self% #ho transgressed it% &ne# it to be so% and therefore had no (oral excuse for transgressing it) Go$ern(ents see that if ignorance of the la# #ere allo#ed to excuse a (an for any act #hate$er% it (ust excuse hi( for transgressing all statutes #hatsoe$er% #hich he hi(self thin&s inconsistent #ith his rights and liberties) But such a doctrine #ould of course be inconsistent #ith the (aintenance of arbitrary po#er by the go$ern(entS and hence go$ern(ents #ill not allo# the plea% although they #ill not confess their true reasons for disallo#ing it) The only reasons% @if they deser$e the na(e of reasonsA% that 2 e$er &ne# gi$en for the doctrine that ignorance of the la# excuses no one% are these? !) KThe reason for the (axi( is that of necessity) 2t pre$ails% Rnot that all (en &no# the la#% but because it is an excuse #hich e$ery (an #ill (a&e% and no (an can tell ho# to confute hi()R Selden% @as Iuoted in the 8d edition of Star&ie on Slander%

Preli() +isc)% p) !E9% note)AK La# =aga;ine% @London%A $ol) 81% p) 01) This reason i(pliedly ad(its that ignorance of the La# is% intrinsically% an a(ple and sufficient excuse for a cri(eS and that the excuse ought to be allo#ed% if the fact of ignorance could but be ascertained) But it asserts that this fact is incapable of being ascertained% and that therefore there is a necessity for punishing the ignorant and the &no#ing that is% the innocent and the guilty #ithout discri(ination) This reason is #orthy of the doctrine it is used to upholdS as if a plea of ignorance% any (ore than any other plea% (ust necessarily be belie$ed si(ply because it is urgedS and as if it #ere not a co((on and e$eryCday practice of courts and juries% in both ci$il and cri(inal cases% to deter(ine the (ental capacity of indi$idualsS as% for exa(ple% to deter(ine #hether they are of sufficient (ental capacity to (a&e reasonable contractsS #hether they are lunaticS #hether they are co(potes (entis% Kof sound (ind and (e(ory%K X) X) And there is ob$iously no (ore difficulty in a juryRs deter(ining #hether an accused person &ne# the la# in a cri(inal case% than there is in deter(ining any of these other Iuestions that are continually deter(ined in regard to a (anRs (ental capacity) ,or the Iuestion to be settled by the jury is not #hether the accused person &ne# the particular penalty attached to his act% @for at co((on la# no one &ne# #hat penalty a jury #ould attach to an offence%A but #hether he &ne# that his act #as intrinsically cri(inal) 2f it #ere intrinsically cri(inal% it #as cri(inal at co((on la#) 2f it #as not intrinsically cri(inal% it #as not cri(inal at co((on la#) @At least% such #as the general principle of the co((on la#) There (ay ha$e been exceptions in practice% o#ing to the fact that the opinions of (en% as to #hat #as intrinsically) cri(inal% (ay not ha$e been in all cases correct)A A jury% then% in judging #hether an accused person &ne# his act to be illegal% #ere bound first to use their o#n judg(ents% as to #hether the act #ere intrinsically cri(inal) 2f their o#n judg(ents told the( the act #as intrinsically and clearlycri(inal% they #ould naturally and reasonably infer that the accused also understood that it #as intrinsically cri(inal% @and conseIuently illegal%A unless it should appear that he #as either belo# the(sel$es in the scale of intellect% or had had less opportunities of &no#ing #hat acts #ere cri(inal) 2n short% they #ould judge% fro( any and e$ery (eans they (ight ha$e of judgingS and if they had any reasonable doubt that he &ne# his act to be cri(inal in itself% they #ould be bound to acIuit hi() The second reason that has been offered for the doctrine that ignorance of the la# excuses no one% is this? K2gnorance of the (unicipal la# of the &ingdo(% or of the penalty thereby inflicted on offenders% doth not excuse any that is of the age of discretion and co(pos (entis% fro( the penalty of the breach of itS because e$ery person% of the age of discretion and co(pos (entis% is bound to &no# the la#% and presu(ed to do so) K2gnorantia eoru(%% Iuae Iuis scire tenetur non excusat)K @2gnorance of those things #hich e$ery one is bound to &no#% does not excuse)A ! /aleRs Pleas of the "ro#n% E8) +octor and

Student% +ialog) 8% ch) EM) La# =aga;ine% @London%A $ol) 81% p) 01) The su( of this reason is% that ignorance of the la# excuses no one% @#ho is of the age of discretion and is co(pos (entis%A because e$ery such person Kis bound to &no# the la#)K But this is gi$ing no reason at all for the doctrine% since saying that a (an Kis bound to &no# the la#%K is only saying% in another for(% that Kignorance of the la# does not excuse hi()K There is no difference at all in the t#o ideas) To say% therefore% that Kignorance of the la# excuses no one% because e$ery one is bound to &no# the la#%K is only eIui$alent to saying that Kignorance of the la# excuses no one% because ignorance of the la# excuses no one)K 2t is (erely reasserting the doctrine% #ithout gi$ing any reason at all) And yet these reasons% #hich are really no reasons at all% are the only ones% so far as 2 &no#% that ha$e e$er been offered for this absurd and brutal doctrine) The idea suggested% that K the age of discretionK deter(ines the guilt of a person% that there is a particular age% prior to #hich all persons ali&e should be held incapable of &no#ing any cri(e% and subseIuent to #hich all persons ali&e should be held capable of &no#ing all cri(es% is another of this (ost ridiculous nest of ideas) All (an&ind acIuire their &no#ledge of cri(es% as they do of other things% gradually) So(e they learn at an early ageS others not till a later one) 5ne indi$idual acIuires a &no#ledge of cri(es% as he does of arith(etic% at an earlier age than others do) And to apply the sa(e presu(ption to all% on the ground of age alone% is not only gross injustice% but gross folly) A uni$ersal presu(ption (ight% #ith nearly or Iuite as (uch reason% be founded upon #eight% or height% as upon age) 7!: This doctrine% that Kignorance of the la# excuses no one%K is constantly repeated in the for( that Ke$ery one is bound to &no# the la#)K The doctrine is true in ci$il (atters% especially in contracts% so far as this? that no (an% #ho has the ordinary capacity to (a&e reasonable contracts% can escape the conseIuences of his o#n agree(ent% on the ground that he did not &no# the la# applicable to it) *hen a (an (a&es a contract% he gi$es the other party rightsS and he (ust of necessity judge for hi(self% and ta&e his o#n ris&% as to #hat those rights are% other#ise the contract #ould not be binding% and (en could not (a&e contracts that #ould con$ey rights to each other) Besides% the capacity to (a&e reasonable contracts% i(plies and includes a capacity to for( a reasonable judg(ent as to the la# applicable to the() But in cri(inal (atters% #here the Iuestion is one of punish(ent% or notS #here no second party has acIuired any right to ha$e the cri(e punished% unless it #ere co((itted #ith cri(inal intent% @but only to ha$e it co(pensated for by da(ages in a ci$il suit%KA and #hen the cri(inal intent is the only (oral justification for the punish(ent% the principle does not apply% and a (an is bound to &no# the la# only as #ell as he reasonably (ay) The cri(inal la# reIuires neither

i(possibilities nor extraordinaries of any one) 2t reIuires only thoughtfulness and a good conscience) 2t reIuires only that a (an fairly and properly use the judg(ent he possesses% and the (eans he has of learning his duty) 2t reIuires of hi( only the sa(e care to &no# his duty in regard to the la#% that he is (orally bound to use in other (atters of eIual i(portance) And this care it does reIuire of hi() Any ignorance of the la#% therefore% that is unnecessary% or that arises fro( indifference or disregard of oneRs duty% is no excuse) An accused person% therefore% (ay be rightfully held responsible for such a &no#ledge of the la# as is co((on to (en in general% ha$ing no greater natural capacities than hi(self% and no greater opportunities for learning the la#) And he can rightfully be held to no greater &no#ledge of the la# than this) To hold hi( responsible for a greater &no#ledge of the la# than is co((on to (an&ind% #hen other things are eIual% #ould be gross injustice and cruelty) The (ass of (an&ind can gi$e but little of their attention to acIuiring a &no#ledge of the la#) Their other duties in life forbid it) 5f course% they cannot in$estigate abstruse or difficult Iuestions) All that can rightfully be reIuired of each of the(% then% is that he exercise such a candid and conscientious judg(ent as it is co((on for(an&ind generally to exercise in such (atters) 2f he ha$e done this% it #ould be (onstrous to punish hi( cri(inally for his errorsS errors not of conscience% but only of judg(ent) 2t #ould also be contrary to the first principles of a free go$ern(ent @that is% a go$ern(ent for(ed by $oluntary associationA to punish (en in such cases% because it #ould be absurd to suppose that any (an #ould $oluntarily assist to establish or support a go$ern(ent that #ould punish hi(self for acts #hich he hi(self did not &no# to be cri(es) But a (an (ay reasonably unite #ith his fello#C(en to (aintain a go$ern(ent to punish those acts #hich he hi(self considers cri(inal% and (ay reasonably acIuiesce in his o#n liability to be punished for such acts) As those are the only grounds on #hich any one can be supposed to render any $oluntary support to a go$ern(ent% it follo#s that a go$ern(ent for(ed by $oluntary association% and of course ha$ing no po#ers except such as all the associates ha$e consented that it (ay ha$e% can ha$e no po#er to punish a (an for acts #hich he did not hi(self &no# to be cri(inal) The safety of society% #hich is the only object of the cri(inal la#% reIuires only that those acts #hich are understood by (an&ind at large to be intrinsically cri(inal% should he punished as cri(es) The re(aining fe# @if there are anyA (ay safely be left to go unpunished) 4or does the safety of society reIuire that any indi$iduals% other than those #ho ha$e sufficient (ental capacity to understand that their acts are cri(inal% should be cri(inally punished) All others (ay safely be left to their liability% under the ci$il la#% to co(pensate for their unintentional #rongs) The only real object of this absurd and atrocious doctrine% that Kignorance of the la# @that is% of cri(eA excuses no one%K and that Ke$eryone is bound to &no# the cri(inal la#%K @that is% bound to &no# #hat is a cri(e%A is to (aintain an entirely arbitrary authority on the part of the go$ern(ent% and to deny to the people all right to judge for the(sel$es #hat their o#n

rights and liberties are) 2n other #ords% the #hole object of the doctrine is to deny to the people the(sel$es all right to judge #hat statutes and other acts of the go$ern(ent are consistent or inconsistent #ith their o#n rights and libertiesS and thus to reduce the people to the condition of (ere sla$es to a despotic po#er% such as the people the(sel$es #ould ne$er ha$e $oluntarily established% and the justice of #hose la#s the people the(sel$es cannot understand) <nder the true trial by jury all tyranny of this &ind #ould be abolished) A jury #ould not only judge #hat acts #ere really cri(inal% but they #ould judge of the (ental capacity of an accused person% and of his opportunities for understandC ing the true character of his conduct) 2n short% they #ould judge of his (oral intent fro( all the circu(stances of the case% and acIuit hi(% if they had any reasonable doubt that he &ne# that he #as co((itting a cri(e) 78: 7!: This presu(ption% founded upon age alone% is as absurd in ci$il (atters as in cri(inal) *hat can be (ore entirely ludicrous than the idea that all (en @not (anifestly i(becileA beco(e (entally co(petent to (a&e all contracts #hatsoe$er on the day they beco(e t#entyCone years of ageQ and that% pre$ious to that day% no (an beco(es co(petent to (a&e any contract #hate$er% except for the present supply of the (ost ob$ious #ants of natureQ 2n reason% a (anRs legal co(petency to (a&e binding contracts% in any and e$ery case #hate$er% depends #holly upon his (ental capacity to (a&e reasonable contracts in each particular case) 2t of course reIuires (ore capacity to (a&e a reasonable contract in so(e cases than in others) 2t reIuires% for exa(ple% (ore capacity to (a&e a reasonable contract in the purchase of a large estate% than in the purchase of a pair of shoes) But the (ental capacity to (a&e a reasonable contract% in any particular case% is% in reason% the only legal criterion of the legal co(petency to (a&e a binding contract in that case) The age% #hether (ore or less than t#entyCone years% is of no legal conseIuence #hate$er% except that it is entitled to so(e consideration as e$idence of capacity) 2t (ay be (entioned% in this connection% that the rules that pre$ail% that e$ery (an is entitled to freedo( fro( parental authority at t#entyCone years of age% and no one before that age% are of the sa(e class of absurdities #ith those that ha$e been (entioned) The only ground on #hich a parent is e$er entitled to exercise authority o$er his child% is that the child is incapable of ta&ing reasonable care of hi(self) The child #ould be entitled to his freedo( fro( his birth% if he #ere at that ti(e capable of ta&ing reasonable care of hi(self) So(e beco(e capable of ta&ing care of the(sel$es at an earlier age than others) And #hene$er any one beco(es capable of ta&ing reasonable care of hi(self% and not until then% he is entitled to his freedo(% be his age (ore or less) These principles #ould pre$ail under the true trial by jury% the jury being the judges of the capacity of e$ery indi$idual #hose capacity should be called in Iuestion)

78: 2n contrast to the doctrines of the text% it (ay be proper to present (ore distinctly the doctrines that are (aintained by judges% and that pre$ail in courts of justice) 5f course% no judge% either of the present day% or perhaps #ithin the last fi$e hundred years% has ad(itted the right of a jury to judge of the justice of a la#% or to hold any la# in$alid for its injustice) E$ery judge asserts the po#er of the go$ern(ent to punish for acts that are intrinsically innocent% and #hich therefore in$ol$e or e$ince no cri(inal intent) To acco((odate the ad(inistration of la# to this principle% all judges% so far as 2 a( a#are% hold it to be unnecessary that an indict(ent should charge% or that a jury should find% that an act #as done #ith a cri(inal intent% except in those cases #here the act is (alu( in se% cri(inal in itself) 2n all other cases% so far as 2 a( a#are% they hold it sufficient that the indict(ent charge% and conseIuently that the jury find% si(ply that the act #as done K contrary to the for( of the statute in such case (ade and pro$idedSK in other #ords% contrary to the orders of the go$ern(ent) All these doctrines pre$ail uni$ersally a(ong judges% and are% 2 thin&% unifor(ly practised upon in courts of justiceS and they plainly in$ol$e the (ost absolute despotis( on the part of the go$ern(ent) But there is still another doctrine that extensi$ely% and perhaps (ost generally% pre$ails in practice% although judges are not agreed in regard to its soundness) 2t is this? that it is not e$en necessary that the jury should see or &no#% for the(sel$es% #hat the la# is that is charged to ha$e been $iolatedS nor to see or &no#% for the(sel$es% that the act charged #as in $iolation of any la# #hate$erS but that it is sufficient that they be si(ply told by the judge that any act #hate$er% charged in an indict(ent% is in $iolation of la#% and that they are then bound blindly to recei$e the declaration as true% and con$ict a (an accordingly% if they find that he has done the act charged) This doctrine is adopted by (any a(ong the (ost e(inent judges% and the reasons for it are thus gi$en by Lord =ansfield? KThey @the juryA do not &no#% and are not presu(ed to &no#% the la#) They are not s#orn to decide the la#SK 7D: they are not reIuired to do it))) The jury ought not to assu(e the jurisdiction of la#) They do not &no#% and are not presu(ed to &no#% anything of the (atter) They do not understand the language in #hich it is concei$ed% or the (eaning of the ter(s) They ha$e no rule to go by but their passions and #ishes)K 6 Ter( .ep)% E86% note) *hat is this but saying that the people% #ho are supposed to be represented in juries% and #ho institute and support the go$ern(ent% @of course for the protection of their o#n rights and liberties% as they understand the(% for plainly no other (oti$e can be attributed to the(%A are really the sla$es of a despotic po#er% #hose arbitrary co((ands e$en they are not supposed co(petent to understand% but for the transgression of #hich they are ne$ertheless to be punished as cri(inals

This is plainly the su( of the doctrine% because the jury are the peers @eIualsA of the accused% and are therefore supposed to &no# the la# as #ell as he does% and as #ell as it is &no#n by the people at large) 2f they @the juryA are not presu(ed to &no# the la#% neither the accused nor the people at large can be presu(ed to &no# it) /ence% it follo#s that one principle of the truetrial by jury is% that no accused person shall be held responsible for any other or greater &no#ledge of the la# than is co((on to his political eIuals% #ho #ill generally be (en of nearly si(ilar condition in life) But the doctrine of =ansfield is% that the body of the people% fro( #ho( jurors are ta&en% are responsible to a la#% #hich it is agreed they cannot understand) *hat is this but despotis(Q and not (erely despotis(% but insult and oppression of the intensest &indQ 7D: This declaration of =ansfield% that juries in England Kare not s#orn to decide the la#K in cri(inal cases% is a plain falsehood) They are s#orn to try the #hole case at issue bet#een the &ing and the prisoner% and that includes the la# as #ell as the fact) See Jurors 5ath% page 6J) This doctrine of =ansfield is the doctrine of all #ho deny the right of juries to judge of the la#% although all (ay not choose to express it in so blunt and una(biguous ter(s) But the doctrine e$idently ad(its of no other interpretation or defence) "/APTE. P) =5.AL "54S2+E.AT254S ,5. J<.5.S T/E trial by jury (ust% if possible% be construed to be such that a (an can rightfully sit in a jury% and unite #ith his fello#s in gi$ing judg(ent) But no (an can rightfully do this% unless he hold in his o#n hand alone a $eto upon any judg(ent or sentence #hate$er to be rendered by the jury against a defendant% #hich $eto he (ust be per(itted to use according to his o#n discretion and conscience% and not bound to use according to the dictation of either legislatures or judges) The pre$alent idea% that a juror (ay% at the (ere dictation of a legislature or a judge% and #ithout the concurrence of his o#n conscience or understanding% declare a (an Kguilty%K and thus in effect license the go$ern(ent to punish hi(S and that the legislature or the judge% and not hi(self% has in that case all the (oral responsibility for the correctness of the principles on #hich the judg(ent #as rendered% is one of the (any gross i(postures by #hich it could hardly ha$e been supposed that any sane (an could e$er ha$e been deluded% but #hich go$ern(ents ha$e ne$ertheless succeeded in inducing the people at large to recei$e and act upon) As a (oral proposition% it is perfectly selfCe$ident that% unless juries ha$e all the legal rights that ha$e been clai(ed for the( in the preceding chapters% that is% the rights of judging #hat the la# is% #hether the la# be a just one% #hat e$idence is ad(issible% #hat #eight the e$idence is entitled to% #hether an act #ere done #ith a cri(inal intent% and the right also to li(it the sentence% free of all dictation fro( any Iuarter% they ha$e

no (oral right to sit in the trial at all% and cannot do so #ithout (a&ing the(sel$es acco(plices in any injustice that they (ay ha$e reason to belie$e (ay result fro( their $erdict) 2t is absurd to say that they ha$e no (oral responsibility for the use that (ay be (ade of their $erdict by the go$ern(ent% #hen they ha$e reason to suppose it #ill be used for purposes of injustice) 2t is% for instance% (anifestly absurd to say that jurors ha$e no (oral responsibility for the enforce(ent of an unjust la#% #hen they consent to render a $erdict of guilty for the transgression of itS #hich $erdict they &no#% or ha$e good reason to belie$e% #ill be used by the go$ern(ent as a justification for inflicting a penalty) 2t is absurd% also% to say that jurors ha$e no (oral responsibility for a punish(ent indicted upon a (an against la#% #hen% at the dictation of a judge as to #hat the la# is% they ha$e consented to render a $erdict against their o#n opinions of the la#) 2t is absurd% too% to say that jurors ha$e no (oral responsibility for the con$iction and punish(ent of an innocent (an% #hen they consent to render a $erdict against hi( on the strength of e$idence% or la#s of e$idence% dictated to the( by the court% if any e$idence or la#s of e$idence ha$e been excluded% #hich they @the jurorsA thin& ought to ha$e been ad(itted in his defence) 2t is absurd to say that jurors ha$e no (oral responsibility for rendering a $erdict of KguiltyK against a (an% for an act #hich he did not &no# to be a cri(e% and in the co((ission of #hich% therefore% he could ha$e had no cri(inal intent% in obedience to the instructions of courts that Kignorance of the la# @that is% of cri(eA excuses no one)K 2t is absurd% also% to say that jurors ha$e no (oral responsibility for any cruel or unreasonable sentence that (ay be inflicted e$en upon a guilty (an% #hen they consent to render a $erdict #hich they ha$e reason to belie$e #ill be used by the go$ern(ent as a justification for the infliction of such sentence) The conseIuence is% that jurors (ust ha$e the #hole case in their hands% and judge of la#% e$idence% and sentence% or they incur the (oral responsibility of acco(plices in any injustice #hich they ha$e reason to belie$e #ill be done by the go$ern(ent on the authority of their $erdict) The sa(e principles apply to ci$il cases as to cri(inal) 2f a jury consent% at the dictation of the court% as to either la# or e$idence% to render a $erdict% on the strength of #hich they ha$e reason to belie$e that a (anRs property #ill be ta&en fro( hi( and gi$en to another% against their o#n notions of justice% they (a&e the(sel$es (orally responsible for the #rong) E$ery (an% therefore% ought to refuse to sit in a jury% and to ta&e the oath of a juror% unless the for( of the oath be such as

to allo# hi( to use his o#n judg(ent% on e$ery part of the case% free of all dictation #hatsoe$er% and to hold in his o#n hand a $eto upon any $erdict that can be rendered against a defendant% and any sentence that can be inflicted upon hi(% e$en if he be guilty) 5f course% no (an can rightfully ta&e an oath as juror% to try a case Kaccording to la#%K @if by la# be (eant anything other than his o#n ideas of justice%A nor Kaccording to the la# and the e$idence% as they shall be gi$en hi()K 4or can he rightfully ta&e an oath e$en to try a case Kaccording to the e$idence%K because in all cases he (ay ha$e good reason to belie$e that a party has been unable to produce all the e$idence legiti(ately entitled to be recei$ed) The only oath #hich it #ould see( that a (an can rightfully ta&e as juror% in either a ci$il or cri(inal case% is% that he K#ill try the case according to his conscience)K 5f course% the for( (ay ad(it of $ariation% but this should be the substance) Such% #e ha$e seen% #ere the ancient co((on la# oaths) "/APTE. P2) A<T/5.2T3 5, =AG4A "A.TA P.5BABL3 no political co(pact bet#een &ing and people #as e$er entered into in a (anner to settle (ore authoritati$ely the funda(ental la# of a nation% than #as =agna "arta) Probably no people #ere e$er (ore united and resolute in de(anding fro( their &ing a definite and una(biguous ac&no#ledg(ent of their rights and liberties% than #ere the English at that ti(e) Probably no &ing #as e$er (ore co(pletely stripped of all po#er to (aintain his throne% and at the sa(e ti(e resist the de(ands of his people% than #as John on the !Jth day of June% !8!J) Probably no &ing e$ery consented% (ore deliberately or explicitly% to hold his throne subject to specific and enu(erated li(itations upon his po#er% than did John #hen he put his seal to the Great "harter of the Liberties of England) And if any political co(pact bet#een &ing and people #as e$er $alid to settle the liberties of the people% or to li(it the po#er of the cro#n% that co(pact is no# to be found in =agna "arta) 2f% therefore% the constitutional authority of =agna "arta had rested solely upon the co(pact of John #ith his people% that authority #ould ha$e been entitled to stand fore$er as the supre(e la# of the land% unless re$o&ed by the #ill of the people the(sel$es) But the authority of =agna "arta does not rest alone upon the co(pact #ith John) *hen% in the next year% @!8!M%A his son% /enry 222)% ca(e to the throne% the charter #as ratified by hi(% and again in !8!1% and again in !88J% in substantially the sa(e for(% and especially #ithout allo#ing any ne# po#ers% legislati$e% judicial% or executi$e% to the &ing or his judges% and #ithout detracting in the least fro( the po#ers of the jury) And fro( the latter date to this% the charter has re(ained unchanged) 2n the course of t#o hundred years the charter #as confir(ed by /enry and his successors (ore than thirty ti(es) And although

they #ere guilty of nu(erous and al(ost continual breaches of it% and #ere constantly see&ing to e$ade it% yet such #ere the spirit% $igilance and courage of the nation% that the &ings held their thrones only on the condition of their rene#ed and sole(n pro(ises of obser$ance) And it #as not until !E80% @as #ill be (ore fully sho#n hereafter%A #hen a truce bet#een the(sel$es% and a for(al co(bination against the (ass of the people% had been entered into% by the &ing% the nobility% and the Kforty shilling freeholders%K @a class #ho( =ac&intosh designates as Ka fe# freeholders then accounted #ealthy%K 7!:A by the exclusion of all others than such freeholders fro( all $oice in the election of &nights to represent the counties in the /ouse of "o((ons% that a repetition of these confir(ations of =agna "arta ceased to be de(anded) and obtained) 78: The ter(s and the for(alities of so(e of these Kconfir(ationsK (a&e the( #orthy of insertion at length) /u(e thus describes one #hich too& place in the D6th year of /enry 222) @!8JDA? K But as they @the baronsA had experienced his @the &ingRsA freIuent breach of pro(ise% they reIuired that he should ratify the Great "harter in a (anner still (ore authentic and sole(n than any #hich he had hitherto e(ployed) All the prelates and abbots #ere asse(bled) They held burning tapers in their hands) The Great "harter #as read before the() They denounced the sentence of exco((unication against e$ery one #ho should thenceforth $iolate that funda(ental la#) They thre# their tapers on the ground% and exclai(ed% =ay the soul of e$ery one #ho incurs this sentence so stin& and corrupt in hell' The &ing bore a part in this cere(ony% and subjoined% R So help (e God' 2 #ill &eep all these articles in$iolate% as 2 a( a (an% as 2 a( a "hristian% as 2 a( a &night% and as 2 a( a &ing cro#ned and anointed)R K /u(e% ch) !8) See also Blac&stoneRs 2ntrod) to the "harters) Blac&) La# Tracts% 5xford ed)% p) DD8) =a&intoshRs /ist) of Eng)% ch) D) LardnerRs "ab) "yc)% $ol) EJ% p) 8DD E) The follo#ing is the for( of Kthe sentence of exco((unicationK referred to by /u(e? KThe Sentence of "urse% Gi$en by the Bishops% against the Brea&ers of the "harters) KThe year of our Lord a thousand t#o hundred and fiftyCthree% the third day of =ay% in the great /all of the Uing at *est(inster% in the presence% and by the assent% of the Lord /enry% by the Grace of God Uing of England% and the Lords .ichard% Earl of "orn#all% his brother% .oger @BigotA Earl of 4orfol& and Suffol&S% (arshal of England% /u(phrey% Earl of /ereford% /enry% Earl of 5xford% John% Earl of *ar#ic&% and other estates of the .eal( of England? *e% Boniface% by the (ercy of God Archbishop of "anterbury% Pri(ate of all England% ,) of London% /) of Ely% S) of *orcester% ,) of Lincoln% *) of 4or#ich% P) of /ereford% *) of Salisbury% *) of +urha(% .) of Exeter% =) of "arlisle% *) of

Bath% E) of .ochester% T) of Saint +a$idRs% Bishops% appareled in Pontificals% #ith tapers burning% against the brea&ers of the "hurchRs Liberties% and of the Liberties or free custo(s of the .eal( of England% and especially of those #hich are contained in the "harter of the "o((on Liberties of the .eal(% and the "harter of the ,orest% ha$e sole(nly denounced the sentence of Exco((unication in this for() By the authority of Al(ighty God% the ,ather% the Son% and the /oly Ghost% and of the glorious =other of God% and perpetual -irgin =ary% of the blessed Apostles Peter and Paul% and of all apostles% of the blessed Tho(as% Archbishop and =artyr% and of all (artyrs% of blessed Ed#ard of England% and of all "onfessors and $irgins% and of all the saints of hea$en? *e exco((unicate% accurse% and fro( the thresholds @li(inibusA of our /oly =other the "hurch% *e seIuester% all those that hereafter #illingly and (aliciously depri$e or spoil the "hurch of her right? And all those that by any craft or #iliness do $iolate% brea&% di(inish% or change the "hurchRs Liberties% or the ancient appro$ed custo(s of the .eal(% and especially the Liberties and free "usto(s contained in the "harters of the "o((on Liberties% and of the ,orest% conceded by our Lord the Uing% to Archbishops% Bishops% and other Prelates of England and li&e#ise to the Earls% Barons% Unights% and other ,reeholders of the .eal(? And all that secretly% or openly% by deed% #ord% or counsel% do (a&e statutes% or obser$e the( being (ade% and that bring in "usto(s% or &eep the( #hen they be brought in% against the said Liberties% or any of the(% the *riters and "ounselors of said statutes% and the Executors of the(% and a!! those that shall presu(e to judge according to the() All and e$ery #hich persons before (entioned% that #ittingly shall co((it anything of the pre(ises% let the( #ell &no# that they incur the aforesaid sentence% ipso facto% @i) e)) upon the deed being done)A And those that ignorantly do so% and be ad(onished% except they refor( the(sel$es #ithin fifteen days after the ti(e of the ad(onition% and (a&e full satisfaction for that they ha$e done% at the #ill of the ordinary% shall be fro( that ti(e forth included in the sa(e sentence) And #ith the sa(e sentence #e burden all those that presu(e to perturb the peace of our so$ereign Lord the Uing% and of the .eal() To the perpetual (e(ory of #hich thing% *e% the aforesaid Prelates% ha$e put our seals to these presents)K Statutes of the .eal(% $ol) !% p) M) .uffheadRs Statutes% $ol) !% p) 89) 5ne of the "onfir(ations of the "harters% by Ed#ard 2)% #as by statute% in the 8Jth year of his reign% @!801%A in the follo#ing ter(s) The statute is usually entitled) K"onfir(atio "artaru(%K@"onfir(ation of the "harters)A "h) !) KEd#ard% by the Grace of God% Uing of England% Lord of 2reland% and +u&e of Guyan% To all those that these presents shall hear or see% Greeting) Uno# ye% that *e% to the honor of "od% and of /oly "hurch% and to the profit of our .eal(% ha$e granted% for us and our heirs% that the "harter of Liberties% and the "harter of the ,orest% #hich #ere (ade by co((on assent of all the .eal(% in the ti(e of Uing /enry our ,ather% shall be &ept in e$ery point #ithout breach) And #e #ill that the sa(e "harters shall be sent under our seal% as #ell to our justices of

the ,orest% as to others% and to all SheriffRs of shires% and to all our other officers% and to all our cities throughout the .eal(% together #ith our #rits% in the #hich it shall he contained% that they cause the aforesaid "harters to be published% and to declare to the people that *e ha$e confir(ed the( at all pointsS and to our Justices% Sheriffs% (ayors% and other (inisters% #hich under us ha$e the La#s of our Land to guide% that they allo# the sa(e "harters% in all their points% in pleas before the(% and in judg(entS that is% to #it% the Great "harter as the "o((on La#% and the "harter of the ,orest for the #ealth of our .eal() "h) 8) KAnd #e #ill that if any judg(ent be gi$en fro( henceforth contrary to the points of the charters aforesaid by the justices% or by any others our (inisters that hold plea before the(% against the points of the "harters% it shall be undone and holden for naught) "h) D) KAnd #e #ill% that the sa(e "harters shall be sent% under our seal% to "athedral "hurches throughout our .eal(s there to re(ain% and shall be read before the people t#o ti(es in the year) "h) E) KAnd that all Archbishops and Bishops shall pronounce the sentence of exco((unication against all those that by #ord% deed% or counsel% do contrary to the foresaid charters% or that in any point brea& or undo the() And that the said "urses be t#ice a year denounced and published by the prelates aforesaid) And if the sa(e prelates% or any of the(% be re(iss in the denunciation of the said sentences% the Archbishops of "anterbury and 3or&C% for the ti(e being% shall co(pel and distrain the( to (a&e the denunciation in the for( aforesaid)K St) 8J Ed#ard 2)% @!801)A) Statutes of the .eal(% $ol) l% p) !8D) 2t is unnecessary to repeat the ter(s of the $arious confir(ations% (ost of #hich #ere less for(al than those that ha$e been gi$en% though of course eIually authoritati$e) =ost of the( are brief% and in the for( of a si(ple statute% or pro(ise% to the effect that KThe Great "harter% and the "harter of the ,orest% shall be fir(ly &ept and (aintained in all points)K They are to be found printed #ith the other statutes of the real() 5ne of the(% after ha$ing Kagain granted% rene#ed and confir(edK the charters% reIuires as follo#s? KThat the "harters be deli$ered to e$ery sheriff of England under the &ingRs seal% to be read four ti(es in the year before the people in the full county%K @that is% at the county court%A Kthat is% to #it% the next county @courtA after the feast of Saint =ichael% and the next county @courtA after "hrist(as% and at the next county @courtA after Easter% and at the next county @courtA after the feast of Saint John K 86 Ed#ard 2)% ch) !% @!D99)A $ Lingard says% KThe "harter #as ratified four ti(es by /enry 222)% t#ice by Ed#ard 2)% fifteen ti(es by Ed#ard 222)% se$en ti(es by .ichard 22)% six ti(es by /enry 2-)% and once by /enry -)SK (a&ing thirtyCfi$e ti(es in all) D Lingard% J9% note% Philad) ed)

"o&e says =agna "arta #as confir(ed thirtyCt#o ti(es) Preface to 8 2nst)% p) M) Lingard calls these KthirtyCfi$e successi$e ratificationsK of the charter% Ka sufficient proof ho# (uch its pro$isions #ere abhorred by the so$ereign% and ho# highly they #ere pri;ed by the nation)K D Lingard% J9) =ac&intosh says% K,or al(ost fi$e centuries @that is% until !M66A it @=agna "artaA #as appealed to as the decisi$e authority on behalf of the people% though co((only so far only as the necessities of each case de(anded)K =ac&intoshRs /ist) of Eng) ch) D) EJ LardnerRs "ab) "yc)% 88!) "o&e% #ho has labored so hard to o$erthro# the (ost $ital principles of =agna "arta% and #ho% therefore% ought to be considered good authority #hen he spea&s in its fa$or% 7D: says? K2t is called =agna "arta% not that it is great in Iuantity% for there be (any $olu(inous charters co((only passed% specially in these later ti(es% longer than this isS nor co(parati$ely in respect that it is greater than "harta de ,oresta% but in respect of the great i(portance and #eightiness of the (atter% as hereafter shall appearS and li&e#ise for the sa(e cause "harta de ,orestaS and both of the( are called =agnae "harC tae Libertatu( Angliae% @The Great "harters of the Liberties of England)A KAnd it is also called "harta Libertatu( regni% @"harter of the liberties of the &ingdo(SA and upon great reason it is so called of the effect% Iuia liberos facit% @because it (a&es (en free)A So(eti(e for the sa(e cause @it is calledA co((unis libertas% @co((on liberty%A and le chartre des franchises% @the charter of franchises)A K2t #as for the (ost part declaratory of the principal grounds of the funda(ental la#s of England% and for the residue it is additional to supply so(e defects of the co((on la#) KAlso% by the said act of 8J Ed#ard 2)% @called "onfir(atio "hartaru(%A it is adjudged in parlia(ent that the Great "harter and the "harter of the ,orest shall be ta&en as the co((on la#) KThey @=agna "arta and "arta de ,orestaA #ere% for the (ost part% but declarations of the ancient co((on la#s of England% to the obser$ation and &eeping #hereof% the &ing #as bound and s#orn) KAfter the (a&ing of =agna "harta% and "harta de ,oresta% di$ers learned (en in the la#s% that 2 (ay use the #ords of the record% &ept schools of the la# in the city of London% and taught such as resorted to the( the la#s of the real(% ta&ing their foundation of =agna "harta and "harta de ,oresta) KAnd the said t#o charters ha$e been confir(ed% established% and co((anded to be put in execution by thirtyCt#o se$eral acts of parlia(ent in all)

KThis appeareth partly by that #hich hath been said% for that it hath so often been confir(ed by the #ise pro$idence of so (any acts of parlia(ent) KAnd albeit judg(ents in the &ingRs courts are of high regard in la#% and judicia @judg(entsA are accounted as jurisdicta% @the speech of the la# itself%A yet it is pro$ided by act of parlia(ent% that if any judg(ent be gi$en contrary to any of the points of the Great "harter and "harta de ,oresta% by the justices% or by any other of the &ingRs (inisters% XcS)% it shall be undone% and holden for naught) KAnd that both the said charters shall be sent under the great seal to all cathedral churches throughout the real(% there to re(ain% and shall be read to the people t#ice e$ery year) KThe highest and (ost binding la#s are the statutes #hich are established by parlia(entS and by authority of that highest court it is enacted @only to sho# their tender care of =agna "arta and "arta de ,orestaA that if any statute be (ade contrary to the Great "harter% or the "harter of the ,orest% that shall be holden for noneS by #hich #ords all for(er statutes (ade against either of those charters are no# repealedS and the nobles and great officers #ere to be s#orn to the obser$ation of =agna "harta and "harta de ,oresta) K=agna fuit Iuonda( (agnae re$erentia chartae)K @Great #as for(erly the re$erence for =agna "arta)A "o&eRs Proe( to 8 2nst)% p) ! to 1) "o&e also says% KAll pretence of prerogati$e against =agna "harta is ta&en a#ay)K 8 2nst)% DM) /e also says% KThat after this parlia(ent @J8 /enry 222)% in !8M1A neither =agna "arta nor "arta de ,oresta #as e$er atte(pted to be i(pugned or Iuestioned)K 8 2nst)% !98) 7E: To gi$e all the e$idence of the authority of =agna "arta% it #ould be necessary to gi$e the constitutional history of England since the year !8!J) This history #ould sho# that =agna "arta% although continually $iolated and e$aded% #as still ac&no#ledged as la# by the go$ern(ent% and #as held up by the people as the great standard and proof of their rights and liberties) 2t #ould sho# also that the judicial tribunals% #hene$er it suited their purposes to do so% #ere in the habit of referring to =agna "arta as authority% in the sa(e (anner% and #ith the sa(e real or pretended $eneration% #ith #hich A(erican courts no# refer to the constitution of the <nited States% or the constitutions of the states) And% #hat is eIually to the point% it #ould sho# that these sa(e tribunals% the (ere tools of &ings and parlia(ents% #ould resort to the sa(e artifices of assu(ption% precedent% construction% and false interpretation% to e$ade the reIuire(ents of =agna "arta% and to e(asculate it of all its po#er for the preser$ation of liberty% that are resorted to by A(erican courts to acco(plish the sa(e #or& on our A(erican constitutions)

2 ta&e it for granted% therefore% that if the authority of =agna "arta had rested si(ply upon its character as a co(pact bet#een the &ing and the people% it #ould ha$e been fore$er binding upon the &ing% @that is% upon the go$ern(ent% for the &ing #as the go$ern(ent%A in his legislati$e% judicial% and executi$e characterS and that there #as no constitutional possibility of his escaping fro( its restraints% unless the people the(sel$es should freely discharge hi( fro( the() But the authority of =agna "arta does not rest% either #holly or (ainly% upon its character as a co(pact) ,or centuries before the charter #as granted% its (ain principles constituted Kthe La# of the Land%K the funda(ental and constitutional la# of the real(% #hich the &ings #ere s#orn to (aintain) And the principal benefit of the charter #as% that it contained a #ritten description and ac&no#ledg(ent% by the &ing hi(self% of #hat the constitutional la# of the &ingdo( #as% #hich his coronation oath bound hi( to obser$e) Pre$ious to =agna "arta% this constitutional la# rested (ainly in precedents% custo(s% and the (e(ories of the people) And if the &ing could but (a&e one inno$ation upon this la#% #ithout arousing resistance% and being co(pelled to retreat fro( his usurpation% he #ould cite that inno$ation as a precedent for another act of the sa(e &indS next% assert a custo(S and% finally% raise a contro$ersy as to #hat the La# of the Land really #as) The great object of the barons and people% in de(anding fro( the &ing a #ritten description and ac&no#ledg(ent of the La# of the Land% #as to put an end to all disputes of this &ind% and to put it out of the po#er of the &ing to plead any (isunderstanding of the constitutional la# of the &ingdo() And the charter% no doubt% acco(plished $ery (uch in this #ay) After =agna "arta% it reIuired (uch (ore audacity% cunning% or strength% on the part of the &ing% than it had before% to in$ade the peopleRs liberties #ith i(punity) Still% =agna "arta% li&e all other #ritten constitutions% pro$ed inadeIuate to the full acco(plish(ent of its purposeS for #hen did a parch(ent e$er ha$e po#er adeIuately to restrain a go$ern(ent% that had either cunning to e$ade its reIuire(ents% or strength to o$erco(e those #ho atte(pted its defenceQ The #or& of usurpation% therefore% though seriously chec&ed% still #ent on% to a great extent% after =agna "arta) 2nno$ations upon the La# of the Land are still (ade by the go$ern(ent) 5ne inno$ation #as cited as a precedentS precedents (ade custo(sS and custo(s beca(e la#s% so far as practice #as concernedS until the go$ern(ent% co(posed of the &ing% the high functionaries of the church% the nobility% a /ouse of "o((ons representing the Kforty shilling freeholders%K and a dependent and ser$ile judiciary% all acting in conspiracy against the (ass of the people% beca(e practically absolute% as it is at this day) As proof that =agna "arta e(braced little else than #hat #as pre$iously recogni;ed as the co((on la#% or La# of the Land% 2 repeat so(e authorities that ha$e been already cited) "rabbe says% K2t is ad(itted on all hands that it @=agna "artaA contains nothing but #hat #as confir(atory of the co((on la# and

the ancient usages of the real(S and is% properly spea&ing% only an enlarge(ent of the charter of /enry 2) and his successors)K "rabbeRs /ist) of the Eng) La#% p) !81) Blac&stone says% K2t is agreed by all our historians that the Great "harter of Uing John #as% for the (ost part% co(piled fro( the ancient custo(s of the real(% or the la#s of Ed#ard the "onfessorS by #hich they (ean the old co((on la# #hich #as established under our Saxon princes)K Blac&stoneRs 2ntrod) to the "harters) See Blac&stoneRs La# Tracts% 5xford ed)% p) 860) "o&e says% K The co((on la# is the (ost general and ancient la# of the real())) The co((on la# appeareth in the statute of =agna "arta% and other ancient statutes% @#hich for the (ost part are affir(ations of the co((on la#%A in the original #rits% in judicial records% and in our boo&s of ter(s and years)K ! 2nst)% !!J b) "o&e also says% K2t @=agna "artaA #as for the (ost part declaratory of the principal grounds of the funda(ental la#s of England% and for the residue it #as additional to supply so(e defects of the co((on la#))) They @=agna "arta and "arta de ,orestaA #ere% for the (ost part% but declarations of the ancient co((on la#s of England% to the obser$ation and &eeping #hereof the &ing #as bound and s#orn)K Preface to 8 2nst)% p) D and J) /u(e says% K*e (ay no#% fro( the tenor of this charter% @=agna "arta%A conjecture #hat those la#s #ere of Uing Ed#ard% @the "onfessor%A #hich the English nation during so (any generations still desired% #ith such an obstinate perse$erance% to ha$e recalled and established) They #ere chiefly these latter articles of =agna "artaS and the barons #ho% at the beginning of these co((otions% de(anded the re$i$al of the Saxon la#s% undoubtedly thought that they had sufficiently satisfied the people% by procuring the( this concession% #hich co(prehended the principal objects to #hich they had so long aspired)K /u(e% ch) !!) Ed#ard the ,irst confessed that the Great "harter #as substantially identical #ith the co((on la#% as far as it #ent% #hen he co((anded his justices to allo# Kthe Great "harter as the "o((on La#%K K in pleas before the(% and in judg(ent%K as has been already cited in this chapter) 8J Ed#ard 2)% ch) !% @!801)A 2n conclusion of this chapter% it (ay be safely asserted that the $eneration% attach(ent% and pride% #hich the English nation% for (ore than six centuries% ha$e felt to#ards =agna "arta% are in their nature a(ong the (ost irrefragable of all proofs that it #as the funda(ental la# of the land% and constitutionally binding upon the go$ern(entS for% other#ise% it #ould ha$e been% in their eyes% an uni(portant and #orthless thing) *hat those senti(ents #ere 2 #ill use the #ords of others to describe% the #ords% too% of (en% #ho% li&e all (odern authors #ho ha$e #ritten on the sa(e topic% had utterly inadeIuate ideas of the true character of the instru(ent on #hich they la$ished their eulogiu(s)

/u(e% spea&ing of the Great "harter and the "harter of the ,orest% as they #ere confir(ed by /enry 222)% in !8!1% says?KThus these fa(ous charters #ere brought nearly to the shape in #hich they ha$e e$er since stoodS and they #ere% during (any generations% the peculiar fa$orites of the English nation% and estee(ed the (ost sacred ra(part to national liberty and independence) As they secured the rights of all orders of (en% they #ere anxiously defended by all% and beca(e the basis% in a (anner% of the English (onarchy% and a &ind of original contract% #hich both li(ited the authority of the &ing and ensured the conditional allegiance of his subjects) Though often $iolated% they #ere still clai(ed by the nobility and peopleS and% as no precedents #ere supposed $alid that infringed the(% they rather acIuired than lost authority% fro( the freIuent atte(pts (ade against the( in se$eral ages% by regal and arbitrary po#er)K /u(e% ch) !8) =ac&intosh says% K2t #as understood by the si(plest of the unlettered age for #ho( it #as intended) 2t #as re(e(bered by the())) ,or al(ost fi$e centuries it #as appealed to as the decisi$e authority on behalf of the people))) To ha$e produced it% to ha$e preser$ed it% to ha$e (atured it% constitute the i((ortal clai( of England on the estee( of (an&ind) /er Bacons arid Sha&speares% her =iltons and 4e#tons% #ith all the truth #hich they ha$e re$ealed% and all the generous $irtues #hich they ha$e inspired% are of inferior $alue #hen co(pared #ith the subjection of (en and their rulers to the principles of justiceS if% indeed% it be not (ore true that these (ighty spirits could not ha$e been for(ed except under eIual la#s% nor roused to full acti$ity #ithout the influence of that spirit #hich the Great "harter breathed o$er their forefathers)K =ac&intoshRs /ist) of Eng)% ch) D% 76: 5f the Great "harter% the trial by jury is the $ital part% and the only part that places the liberties of the people in their o#n &eeping) 5f this Blac&stone says? KThe trial by jury% or the country% per patria(% is also that trial by the peers of e$ery English(an% #hich% as the grand bul#ar& of his liberties% is secured to hi( by the Great "harterS nullus liber ho(o capiatur% $el i(prisonetur% aut exuletur% aut aliIuo (odo destruatur% nisi per legale judicial pariu( suoru(% $el per lege( terrae) The liberties of England cannot but subsist so long as this palladiu( re(ains sacred and in$iolate% not only fro( all open% attac&s% #hich none #ill be so hardy as to (a&e% but also fro( all secret (achinations #hich (ay sap and under(ine it)K 70: KThe trial by jury e$er has been% and 2 trust e$er #ill be% loo&ed upon as the glory of the English la#))) 2t is the (ost transcendent pri$ilege #hich any subject can enjoy or #ish for% that he cannot be affected in his property% his liberty% or his person% but by the unani(ous consent of t#el$e of his neighbors and eIuals)K7!9: /u(e calls the Trial by Jury KAn institution ad(irable in itself%

and the best calculated for the preser$ation of liberty and the ad(inistration of justice% that e$er #as de$ised by the #it of (an)K 7!!: An old boo&% called KEnglish Liberties%K says?KEnglish Parlia(ents ha$e all along been (ost ;ealous for preser$ing this Great Je#el of Liberty% Trials by Juries ha$ing no less than fiftyCeight se$eral ti(es% since the 4or(an "onIuest% been established and confir(ed by the legislati$e po#er% no one pri$ilege besides ha$ing been e$er so often re(e(bered in parlia(ent)KZ!8: 7!: =ac&intoshRs /ist) of Eng)% ch) D) EJ LardnerRs "ab) "yc)% DJE) 78: K,orty shilling freeholdersK #ere those Kpeople d#elling and resident in the sa(e counties% #hereof e$ery one of the( shall ha$e free land or tene(ent to the $alue of forty shillings by the year at the least abo$e all charges)K By statute 6 /enry M% ch) 1% @!E80%A these freeholders only #ere allo#ed to $ote for (e(bers of Parlia(ent fro( the counties) 7D: /e probably spea&s in its fa$or only to blind the eyes of the people to the frauds he has atte(pted upon its true (eaning) 7E: 2t #ill be noticed that "o&e calls these confir(ations of the charter Kacts of parlia(ent%K instead of acts of the &ing alone) This needs explanation) 2t #as one of "o&eRs ridiculous pretences% that la#s anciently enacted by the &ing% at the reIuest% or #ith the consent% or by the ad$ice% of his parlia(ent% #as Kan act of parlia(ent%K instead of the act of the &ing) And in the extracts cited% he carries this idea so far as to pretend that the $arious confir(ations of the Great "harter #ere Kacts of parlia(ent%K instead of the acts of the &ings) /e (ight as #ell ha$e pretended that the original grant of the "harter #as an Kact of parlia(entS Kbecause it #as not only granted at the reIuest% and #ith the consent% and by the ad$ice% but on the co(pulsion e$en% of those #ho co((only constituted his parlia(ents) 3et this did not (a&e the grant of the charter Kan act of parlia(ent)K 2t #as si(ply an act of the &ing) The object of "o&e% in this pretence% #as to furnish so(e color for the palpable falseC hood that the legislati$e authority% #hich parlia(ent #as trying to assu(e in his o#n day% and #hich it finally succeeded in obtaining% had a precedent in the ancient constitution of the &ingdo() There #ould be as (uch reason in saying that% because the ancient &ings #ere in the habit of passing la#s in special ans#er to the petitions of their subjects% therefore those petitioners #ere a part of the legislati$e po#er of the &ingdo() 5ne great objection to this argu(ent of "o&e% for the legislati$e authority of the ancient parlia(ents% is that a $ery large probably (uch the larger nu(ber of legislati$e acts #ere done

#ithout the ad$ice% consent% reIuest% or e$en presence% of a parlia(ent) 4ot only #ere (any for(al statutes passed #ithout any (ention of the consent or ad$ice of parlia(ent% but a si(ple order of the &ing in council% or a si(ple procla(ation% #rit% or letter under seal% issued by his co((and% had the sa(e force as #hat "o&e calls Kan act of parlia(ent)K And this practice continued% to a considerable extent at least% do#n to "o&eRs o#n ti(e) The &ings #ere al#ays in the habit of consulting their parlia(ents% (ore or less% in regard to (atters of legislation% not because their consent #as constitutionally necessary% but in order to (a&e influence in fa$or of their la#s% and thus induce the people to obser$e the(% and the juries to enforce the() The general duties of the ancient parlia(ents #ere not legislati$e% but judicial% as #ill be sho#n (ore fully hereafter) The people #ere not represented in the parlia(ents at the ti(e of =agna "arta% but only the archbishops% bishops% earls% barons% and &nightsS so that little or nothing #ould ha$e been gained for liberty by "o&eRs idea that parlia(ent had a legislati$e po#er) /e #ould only ha$e substituted an aristocracy for a &ing) E$en after the "o((ons #ere represented in parlia(ent% they for so(e centuries appeared only as petitioners% except in the (atter of taxation% #hen their consent #as as&ed) And al(ost the only source of their influence on legislation #as this? that they #ould so(eti(es refuse their consent to the taxation% unless the &ing #ould pass such la#s as they petitioned forS or% as #ould see( to ha$e been (uch (ore freIuently the case% unless he #ould abolish such la#s and practices as they re(onstrated against) The influence% or po#er of parlia(ent% and especially of the "o((ons% in the general legislation of the country% #as a thing of slo# gro#th% ha$ing its origin in a de$ice of the &ing to get (oney contrary to la#% @as #ill be seen in the next $olu(e%A and not at all a part of the constitution of the &ingdo(% nor ha$ing its foundation in the consent of the people) The po#er% as at present exercised% #as not fully established until !M66% @near fi$e hundred years after =agna "arta%A #hen the /ouse of "o((ons @falsely so calledA had acIuired such influence as the representati$e% not of the people% but of the #ealth% of the nation% that they co(pelled% the &ing to discard the oath fixed by the constitution of the &ingdo(S @#hich oath has been already gi$en in a for(er chapter% 7J: and #as% in substance% to preser$e and execute the "o((on La#% the La# of the Land% or% in the #ords of the oath% Kthe just la#s and custo(s #hich the co((on people had chosenSKA and to s#ear that he #ould Kgo$ern the people of this &ingdo( of England% and the do(inions thereto belonging% accordingto the statutes in parlia(ent agreed on% and the la#s and custo(s of the sa(e)K 7M: The passage and enforce(ent of this statute% and the assu(ption of this oath by the &ing% #ere plain $iolations of the English constitution% inas(uch as they abolished% so far as such an oath could abolish% the legislati$e po#er of the &ing% and also Kthose just la#s and custo(s #hich the co((on people @through their juriesA had chosen%K and substituted the #ill of parlia(ent in their stead)

"o&e #as a great ad$ocate for the legislati$e po#er of parlia(ent% as a (eans of restraining the po#er of the &ing) As he denied all po#er to juries to decide upon the obligation of la#s% and as he held that the legislati$e po#er #as Kso transcendent and absolute as @thatA it cannot be confined% either for causes or persons% #ithin any bounds%K 71: he #as perhaps honest in holding that it #as safer to trust this terrific po#er in the hands of parlia(ent% than in the hands of the &ing) /is error consisted in holding that either the &ing or parlia(ent had any such po#er% or that they had any po#er at all to pass la#s that should be binding upon a jury) These declarations of "o&e% that the charter #as confir(ed by thirtyCt#o Kacts of parlia(ent%K ha$e a (ischie$ous bearing in another respect) They tend to #ea&en the authority of the charter% by con$eying the i(pression that the charter itself (ight be abolished by Kact of parlia(ent)K "o&e hi(self ad(its that it could not be re$o&ed or rescinded by the &ingS for he says% KAll pretence of prerogati$e against =agna "arta is ta&en a#ay)K @8 2nst)% DM)A /e &ne# perfectly #ell% and the #hole English nation &ne#% that the &ing could not la#fully infringe =agna "arta) =agna "arta% therefore% (ade it i(possible that absolute po#er could e$er be practically established in England% in the hands of the &ing) /ence% as "o&e #as an ad$ocate for absolute po#er% that is% for a legislati$e po#er Kso transcendent and absolute as @thatA it cannot% be confined% either for causes or persons% #ithin any bounds%K there #as no alternati$e for hi( but to $est this absolute po#er in parlia(ent) /ad he not $ested it in parlia(ent% he #ould ha$e been obliged to abjure it altogether% and to confess that the people% through their juries% had the right to judge of the obligation of all legislation #hatsoe$erS in other #ords% that they had the right to confine the go$ern(ent #ithin the li(its of Kthose just la#s and custo(s #hich the co((on people @acting as jurorsA had chosen)K True to his instincts% as a judge% and as a tyrant% he assu(ed that this absolute po#er #as $ested in the hands of parlia(ent) But the truth #as that% as by the English constitution parlia(ent had no authority at all for general legislation% it could no (ore confir(% than it could abolish% =agna "arta) These thirtyCt#o confir(ations of =agna "arta% #hich "o&e spea&s of as Kacts of parlia(ent%K #ere (erely acts of the &ing) The parlia(ents% indeed% by refusing to grant hi( (oney% except% on that condition% and other#ise% had contributed to oblige hi( to (a&e the confir(ationsS just as they had helped to oblige hi( by ar(s to grant the charter in the first place) But the confir(ations the(sel$es #ere ne$ertheless constitutionally% as #ell as for(ally% the acts of the &ing alone) 7J: See page !9D) 7M:St) !)*illia( and =ary% ch) M% @!M66A 71:E) 2nst)% DM)

76: <nder the head of KJohn)K 70: E Blac&stone% 6E0CJ9) 7!9: D Blac&stone% D10) 7!!: /u(e% ch) 8) 7!8: Page 89D% Jth edition% !18!) "/APTE. P22) Li(itations 2(posed <pon The =ajority By The Trial By Jury The principal objection% that #ill be (ade to the doctrine of this essay% is% that under it% a jury #ould paraly;e the po#er of the (ajority% and $eto all legislation that #as not in accordance #ith the #ill of the #hole% or nearly the #hole% people) The ans#er to this objection is% that the li(itation% #hich #ould be thus i(posed upon the legislati$e po#er% @#hether that po#er be $ested in the (ajority% or (inority% of the people%A is the cro#ning (erit of the trial by jury) 2t has other (eritsS but% though i(portant in the(sel$es% they are utterly insignificant and #orthless in co(parison #ith this) 2t is this po#er of $etoing all partial and oppressi$e legislation% and of restricting the go$ern(ent to the (aintenance of such la#s as the #hole% or substantially the #hole% people are agreed in% that (a&es the trial by jury Kthe palladiu( of liberty)K *ithout this po#er it #ould ne$er ha$e deser$ed that na(e) The #ill% or the pretended #ill% of the (ajority% is the last lur&ing place of tyranny at the present day) The dog(a% that certain indi$iduals and fa(ilies ha$e a di$ine appoint(ent to go$ern the rest of (an&ind% is fast gi$ing place to the one that the larger nu(ber ha$e a right to go$ern the s(allerS a dog(a% #hich (ay% or (ay not% be less oppressi$e in its practical operation% but #hich certainly is no less false or tyrannical in principle% than the one it is so rapidly supplanting) 5b$iously there is nothing in the nature of (ajorities% that insures justice at their hands) They ha$e the sa(e passions as (inorities% and they ha$e no Iualities #hate$er that should be expected to pre$ent the( fro( practising the sa(e tyranny as (inorities% if they thin& it #ill be for their interest to do so) There is no particle of truth in the notion that the (ajority ha$e a right to rule% or to exercise arbitrary po#er o$er% the (inority% si(ply because the for(er are (ore nu(erous than the latter) T#o (en ha$e no (ore natural right to rule one% than one has to rule t#o) Any single (an% or any body of (en% (any or fe#% ha$e a natural right to (aintain justice for the(sel$es% and for any others #ho (ay need their assistance against the injustice of any and all other (en% #ithout regard to their nu(bersS and (ajorities ha$e no right to do any (ore than this) The relati$e

nu(bers of the opposing parties ha$e nothing to do #ith the Iuestion of right) And no (ore tyrannical principle #as e$er a$o#ed% than that the #ill of the (ajority ought to ha$e the force of la#% #ithout regard to its justiceS or% #hat is the sa(e thing% that the #ill of the (ajority ought al#ays to be presu(ed to be in accordance #ith justice) Such a doctrine is only another for( of the doctrine that (ight (a&es right) *hen t#o (en (eet one upon the high#ay% or in the #ilderness% ha$e they a right to dispose of his life% liberty% or property at their pleasure% si(ply because they are the (ore nu(erous partyQ 5r is he bound to sub(it to lose his life% liberty% or property% if they de(and it% (erely because he is the less nu(erous partyQ 5r% because they are (ore nu(erous than he% is he bound to presu(e that they are go$erned only by superior #isdo(% and the principles of justice% and by no selfish passion that can lead the( to do hi( a #rongQ 3et this is the principle% #hich it is clai(ed should go$ern (en in all their ci$il relations to each other) =an&ind fall in co(pany #ith each other on the high#ay or in the #ilderness of life% and it is clai(ed that the (ore nu(erous party% si(ply by $irtue of their superior nu(bers% ha$e the right arbitrarily to dispose of the life% liberty% and property of the (inorityS and that the (inority are bound% by reason of their inferior nu(bers% to practise abject sub(ission% and consent to hold their natural rights% any% all% or none% as the case (ay be% at the (ere #ill and pleasure of the (ajorityS as if all a (anRs natural rights expired% or #ere suspended by the operation of a para(ount la#% the (o(ent he ca(e into the presence of superior nu(bers) 2f such be the true nature of the relations (en hold to each other in this #orld% it puts an end to all such things as cri(es% unless they be perpetrated upon those #ho are eIual or superior% in nu(ber% to the actors) All acts co((itted against persons inferior in nu(ber to the aggressors% beco(e but the exercise at rightful authority) And consistency #ith their o#n principles reIuires that all go$ern(ents% founded on the #ill of the (ajority% should recogni;e this plea as a sufficient justification for all cri(es #hatsoe$er) 2f it be said that the (ajority should be allo#ed to rule% not because they are stronger than the (inority% but because their superior nu(bers furnish a probability that they are in the rightS one ans#er is% that the li$es% liberties% and properties of (en are too $aluable to the(% and the natural presu(ptions are too strong in their fa$or% to justify the destruction of the( by their fello#C(en on a (ere balancing of probabilities% or on any ground #hate$er short of certainty beyond a reasonable doubt) This last is the (oral rule uni$ersally recogni;ed to be binding upon single indi$iduals) And in the foru( of conscience the sa(e rule is eIually binding upon go$ern(ents% for go$ern(ents are (ere associations of indi$iduals) This is the rule on #hich the trial by jury is based) And it is plainly the only rule that ought to induce a (an to sub(it his rights to the adjudication of his fello#C(en% or dissuade hi( fro( a forcible defence of the() Another ans#er is% that if t#o opposing parties could be supposed

to ha$e no personal interests or passions in$ol$ed% to #arp their judg(ents% or corrupt their (oti$es% the fact that one of the parties #as (ore nu(erous than the other% @a fact that lea$es the co(parati$e intellectual co(petency of the t#o parties entirely out of consideration%A (ight% perhaps% furnish a slight% but at best only a $ery slight% probability that such party #as on the side of justice) But #hen it is considered that the parties are liable to differ in their intellectual capacities% and that one% or the other% or both% are undoubtedly under the influence of such passions as ri$alry% hatred% a$arice% and a(bition) passions that are nearly certain to per$ert their judg(ents% and $ery li&ely to corrupt their (oti$es% all probabilities founded upon a (ere nu(erical (ajority% in one party% or the other% $anish at onceS and the decision of the (ajority beco(es% to all practical purposes% a (ere decision of chance) And to dispose of (enRs properties% liberties% and li$es% by the (ere process of enu(erating such parties% is not only as palpable ga(bling as #as e$er practised% but it is also the (ost atrocious that #as e$er practised% except in (atters of go$ern(ent) And #here go$ern(ent is instituted on this principle% @as in the <nited States% for exa(ple%A the nation is at once con$erted into one great ga(bling establish(entS #here all the rights of (en are the sta&esS a fe# bold bad (en thro# the dice @dice loaded #ith all the hopes% fears% interests% and passions #hich rage in the breasts of a(bitious and desperate (en%A and all the people% fro( the interests they ha$e depending% beco(e enlisted% excited% agitated% and generally corrupted% by the ha;ards of the ga(e) The trial by jury disa$o#s the (ajority principle altogetherS and proceeds upon the ground that e$ery (an should be presu(ed to be entitled to life% liberty% and such property as he has in his possessionS and that the go$ern(ent should lay its hand upon none of the(% @except for the purpose of bringing the( before a tribunal for adjudication%A unless it be first ascertained)% beyond a reasonable doubt% in e$ery indi$idual case% that justice reIuires it) To ascertain #hether there be such reasonable doubt% it ta&es t#el$e (en by lot fro( the #hole body of (ature (en) 2f any of these t#el$e are pro$ed to be under the influence of any special interest or passion% that (ay either per$ert their judg(ents% or corrupt their (oti$es% they are set aside as unsuitable for the perfor(ance of a duty reIuiring such absolute i(partiality and integrityS and others substituted in their stead) *hen the ut(ost practicable i(partiality is attained on the part of the #hole t#el$e% they are s#orn to the obser$ance of justiceS and their unani(ous concurrence is then held to be necessary to re(o$e that reasonable doubt% #hich% unre(o$ed% #ould forbid the go$ern(ent to lay its hand on its $icti() Such is the caution #hich the trial by jury both practises and inculcates% against the $iolation of justice% on the part of the go$ern(ent% to#ards the hu(blest indi$idual% in the s(allest (atter affecting his ci$il rights% his property% liberty% or life) And such is the contrast% #hich the trial by jury presents% to that ga(blerRs and robberRs rule% that the (ajority ha$e a right% by $irtue of their superior nu(bers% and #ithout regard to

justice% to dispose at pleasure of the property and persons of all bodies of (en less nu(erous than the(sel$es) The difference% in short% bet#een the t#o syste(s% is this) The trial by jury protects person and property% in$iolate to their possessors% fro( the hand of the la#% unless justice% beyond a reasonable doubt% reIuire the( to be ta&en) The (ajority principle ta&es person and property fro( their possessors% at the (ere arbitrary #ill of a (ajority% #ho are liable and li&ely to be influenced% in ta&ing the(% by (oti$es of oppression% a$arice% and a(bition) 2f the relati$e nu(bers of opposing parties afforded sufficient e$idence of the co(parati$e justice of their clai(s the go$ern(ent should carry the principle into its courts of justiceS and instead of referring contro$ersies to i(partial and disinterested (en% to judges and jurors% s#orn to do justice% and bound patiently to hear and #eigh all the e$idence and argu(ents that can be offered on either side% it should si(ply count the plaintiffRs and defendants in each case% @#here there #ere (ore than one of either%A and then gi$e the case to the (ajorityS after a(ple opportunity had been gi$en to the plaintiffs and defendants to reason #ith% flatter% cheat% threaten% and bribe each other% by #ay of inducing the( to change sides) Such a) process #ould be just as rational in courts of justice% as in halls of legislationS for it is of no i(portance to a (an% #ho has his rights ta&en fro( hi(% #hether it be done by a legislati$e enact(ent% or a judicial decision) 2n legislation% the people are all arranged as plaintiffRs and defendants in their o#n causesS @those #ho are in fa$or of a particular la#% standing as plaintiffRs% and those #ho are opposed to the sa(e la#% standing as defendantsAS and to allo# these causes to be decided by (ajorities% is plainly as absurd as it #ould be to allo# judicial decisions to be deter(ined by the relati$e nu(ber of plaintiffs and defendants) 2f this (ode of decision #ere introduced into courts of justice% #e should see a parallel% and only a parallel% to that syste( of legislation #hich #e #itness daily) *e should see large bodies of (en conspiring to bring perfectly groundless suits% against other bodies of (en% for large su(s of (oney% and to carry the( by sheer force of nu(bersS just as #e no# continually see large bodies of (en conspiring to carry% by (ere force of nu(bers% so(e sche(e of legislation that #ill% directly or indirectly% ta&e (oney out of other (enRs poc&ets% and put it into their o#n) And #e should also see distinct bodies of (en% parties in separate suits% co(bining and agreeing all to appear and be counted as plaintiffs or defendants in each otherRs suits% for the purpose of e&eing out the necessary (ajorityS just as #e no# see distinct bodies of (en% interested in separate sche(es of a(bition or plunder% conspiring to carry through a batch of legislati$e enact(ents% that shall acco(plish their se$eral purposes) This syste( of co(bination and conspiracy #ould go on% until at length #hole states and a #hole nation #ould beco(e di$ided into t#o great litigating parties% each party co(posed of se$eral

s(aller bodies% ha$ing their separate suits% but all confederating for the purpose of (a&ing up the necessary (ajority in each case) The indi$iduals co(posing each of these t#o great parties% #ould at length beco(e so accusto(ed to acting together% and so #ell acIuainted #ith each othersR sche(es% and so (utually dependent upon each othersR fidelity for success% that they #ould beco(e organi;ed as per(anent associationsS bound together by that &ind of honor that pre$ails a(ong thie$esS and pledged by all their interests% sy(pathies% and ani(osities% to (utual fidelity% and to unceasing hostility to their opponentsS and exerting all their arts and all their resources of threats% injuries% pro(ises% and bribes% to dri$e or seduce fro( the other party enough to enable their o#n to retain or acIuire such a (ajority as #ould be necessary to gain their o#n suits% and defeat the suits of their opponents) All the #ealth and talent of the country #ould beco(e enlisted in the ser$ice of these ri$al associationsS and both #ould at length beco(e so co(pact% so #ell organi;ed% so po#erful% and yet al#ays so (uch in need of recruits% that a pri$ate person #ould be nearly or Iuite unable to obtain justice in the (ost paltry suit #ith his neighbor% except on the condition of joining one of these great litigating associations% #ho #ould agree to carry through his cause% on condition of his assisting the( to carry through all the others% good and bad% #hich they had already underta&en) 2f he refused this% they #ould threaten to (a&e a si(ilar offer to his antagonist% and suffer their #hole nu(bers to be counted against hi() 4o# this picture is no caricature% but a true and honest li&eness) And such a syste( of ad(inistering justice% #ould be no (ore false% absurd% or atrocious% than that syste( of #or&ing by (ajorities% #hich see&s to acco(plish% by legislation% the sa(e ends #hich% in the case supposed% #ould be acco(plished by judicial decisions) Again% the doctrine that the (inority ought to sub(it to the #ill of the (ajority% proceeds% not upon the principle that go$ern(ent is for(ed by $oluntary association% and for an agreed purpose% on the part of all #ho contribute to its support% but upon the presu(ption that all go$ern(ent (ust be practically a state of #ar and plunder bet#een opposing partiesS and that in order to sa$e blood% and pre$ent (utual exter(ination% the parties co(e to an agree(ent that they #ill count their respecti$e nu(bers periodically% and the one party shall then be per(itted Iuietly to rule and plunder% @restrained only by their o#n discretion%A and the other sub(it Iuietly to be ruled and plundered% until the ti(e of the next enu(eration) Such an agree(ent (ay possibly be #iser than unceasing and deadly conflictS it ne$ertheless parta&es too (uch of the ludicrous to deser$e to be seriously considered as an expedient for the (aintenance of ci$il society) 2t #ould certainly see( that (an&ind (ight agree upon a cessation of hostilities% upon (ore rational and eIuitable ter(s than that of unconditional sub(ission on the part of the less nu(erous body) <nconditional sub(ission is usually the last act of one #ho confesses hi(self subdued and ensla$ed) /o# any one e$er ca(e to i(agine that

condition to be one of freedo(% has ne$er been explained) And as for the syste( being adapted to the (aintenance of justice a(ong (en% it is a (ystery that any hu(an (ind could e$er ha$e been $isited #ith an insanity #ild enough to originate the idea) 2f it be said that other corporations% than go$ern(ents% surrender their affairs into the hands of the (ajority% the ans#er is% that they allo# (ajorities to deter(ine only trifling (atters% that are in their nature (ere Iuestions of discretion% and #here there is no natural presu(ption of justice or right on one side rather than the other) They ne$er surrender to the (ajority the po#er to dispose ofS or% #hat is practically the sa(e thing% to deter(ine% the rights of any indi$idual (e(ber) The rights of e$ery (e(ber are deter(ined by the #ritten co(pact% to #hich all the (e(bers ha$e $oluntarily agreed) ,or exa(ple) A ban&ing corporation allo#s a (ajority to deter(ine such Iuestions of discretion as #hether the note of A or of B shall be discountedS #hether notes shall be discounted on one% t#o% or six days in the #ee&S ho# (any hours in a day their ban&ingChouse shall be &ept openS ho# (any cler&s shall be e(ployedS #hat salaries they shall recei$e% and such li&e (atters% #hich are in their nature (ere subjects of discretion% and #here there are no natural presu(ptions of justice or right in fa$or of one course o$er the other) But no ban&ing corporation allo#s a (ajority% or any other nu(ber of its (e(bers less than the #hole% to di$ert the funds of the corporation to any other purpose than the one to #hich e$ery (e(ber of the corporation has legally agreed that they (ay be de$otedS nor to ta&e the stoc& of one (e(ber and gi$e it to anotherS nor to distribute the di$idends a(ong the stoc&holders other#ise than to each one the proportion #hich he has agreed to accept% and all the others ha$e agreed that he shall recei$e) 4or does any ban&ing corporation allo# a (ajority to i(pose taxes upon the (e(bers for the pay(ent of the corporate expenses% except in such proportions as e$ery (e(ber has consented that they (ay be i(posed) All these Iuestions% in$ol$ing the rights of the (e(bers as against each other% are fixed by the articles of the association% that is% by the agree(ent to #hich e$ery (e(ber has personally assented) *hat is also specially to be noticed% and #hat constitutes a $ital difference bet#een the ban&ing corporation and the political corporation% or go$ern(ent% is% that in case of contro$ersy a(ong the (e(bers of the ban&ing corporation% as to the rights of any (e(ber% the Iuestion is deter(ined% not by any nu(ber% either (ajority% or (inority% of the corporation itself% but by persons out of the corporationS by t#el$e (en acting as jurors% or by other tribunals of justice% of #hich no (e(ber of the corporation is allo#ed to be a part) But in the case of the political corporation% contro$ersies a(ong the parties to it% as to the rights of indi$idual (e(bers% (ust of necessity be settled by (e(bers of the corporation itself% because there are no persons out of the corporation to #ho( the Iuestion can be referred) Since% then% all Iuestions as to the rights of the (e(bers of the political corporation% (ust be deter(ined by (e(bers of the

corporation itself% the trial by jury says that no (anRs rights% neither his right to his life% his liberty% nor his property% shall be deter(ined by any such standard as the (ere #ill and pleasure of (ajoritiesS but only by the unani(ous $erdict of a tribunal fairly representing the #hole people% that is% a tribunal of t#el$e (en% ta&en at rando( fro( the #hole body% and ascertained to be as i(partial as the nature of the case #ill ad(it% and s#orn to the obser$ance of justice) Such is the difference in the t#o &inds of corporationsS and the custo( of (anaging by (ajorities the (ere discretionary (atters of business corporations% @the (ajority ha$ing no po#er to deter(ine the rights of any (e(ber%A furnishes no analogy to the practice% adopted by political corporations% of disposing of all the rightsof their (e(bers by the arbitrary #ill of (ajorities) But further) The doctrine that the (ajority ha$e a right to rule% proceeds upon the principle that (inorities ha$e no rights in the go$ern(entS for certainly the (inority cannot be said to ha$e any rights in a go$ern(ent% so long as the (ajority alone deter(ine #hat their rights shall be) They hold e$erything% or nothing% as the case (ay be% at the (ere #ill of the (ajority) 2t is indispensable to a Kfree go$ern(ent%K @in the political sense of that ter(%A that the (inority% the #ea&er party% ha$e a $eto upon the acts of the (ajority) Political liberty is liberty for the #ea&er party in a nation) 2t is only the #ea&er party that lose their liberties% #hen a go$ern(ent beco(es oppressi$e) The stronger party% in all go$ern(ents% are free by $irtue of their superior strength) They ne$er oppress the(sel$es) Legislation is the #or& of this stronger partyS and if% in addition to the sole po#er of legislating% they ha$e the sole po#er of deter(ining #hat legislation shall be enforced% they ha$e all po#er in their hands% and the #ea&er party are the subjects of an absolute go$ern(ent) <nless the #ea&er party ha$e a $eto% either upon the (a&ing% or the enforce(ent of la#s% they ha$e no po#er #hate$er in the go$ern(ent% and can of course ha$e no liberties except such as the stronger party% in their arbitrary discretion% see fit to per(it the( to enjoy) 2n England and the <nited States% the trial by jury is the only institution that gi$es the #ea&er party any $eto upon the po#er of the stronger) "onseIuently it is the only institution% that gi$es the( any effecti$e $oice in the go$ern(ent% or any guaranty against oppression) Suffrage% ho#e$er free% is of no a$ail for this purposeS because the suffrage of the (inority is o$erborne by the suffrage of the (ajority% and is thus rendered po#erless for purposes of legislation) The responsibility of officers can be (ade of no a$ail% because they are responsible only to the (ajority) The (inority% therefore% are #holly #ithout rights in the go$ern(ent% #holly at the (ercy of the (ajority% unless% through the trial by jury% they ha$e a $eto upon such legislation as they thin& unjust)

Go$ern(ent is established for the protection of the #ea& against the strong) This is the principal% if not the sole% (oti$e for the establish(ent of all legiti(ate go$ern(ent) La#s% that are sufficient for the protection of the #ea&er party% are of course sufficient for the protection of the stronger partyS because the strong can certainly need no (ore protection than the #ea&) 2t is% therefore% right that the #ea&er party should be represented in the tribunal #hich is finally to deter(ine #hat legislation (ay be enforcedS and that no legislation shall be enforced against their consent) They being presu(ed to be co(petent judges of #hat &ind of legislation (a&es for their safety% and #hat for their injury% it (ust be presu(ed that any legislation% #hich they object to enforcing% tends to their oppression% and not to their security) There is still another reason #hy the #ea&er party% or the (inority% should ha$e a $eto upon all legislation #hich they disappro$e) That reason is% that that is the only (eans by #hich the go$ern(ent can be &ept #ithin the li(its of the contract% co(pact% or constitution% by #hich the #hole people agree to establish go$ern(ent) 2f the (ajority #ere allo#ed to interpret the co(pact for the(sel$es% and enforce it according to their o#n interpretation% they #ould% of course% (a&e it authori;e the( to do #hate$er they #ish to do) The theory of free go$ern(ent is that it is for(ed by the $oluntary contract of the people indi$idually #ith each other) This is the theory% @although it is not% as it ought to be% the fact%A in all the go$ern(ents in the <nited States% as also in the go$ern(ent of England) The theory assu(es that each (an% #ho is a party to the go$ern(ent% and contributes to its support% has indi$idually and freely consented to it) 5ther#ise the go$ern(ent #ould ha$e no right to tax hi( for its support% for taxation #ithout consent is robbery) This theory% then% necessarily supposes that this go$ern(ent% #hich is for(ed by the free consent of all% has no po#ers except such as all the parties to it ha$e indi$idually agreed that it shall ha$e? and especially that it has no po#er to pass any la#s% except such as all the parties ha$e agreed that it (ay pass) This theory supposes that there (ay be certain la#s that #ill be beneficial to all% so beneficial that all consent to be taxed for their (aintenance) ,or the (aintenance of these specific la#s% in #hich all are interested% all associate) And they associate for the (aintenance of those la#s only% in #hich allare interested) 2t #ould be absurd to suppose that all #ould associate% and consent to be taxed% for purposes #hich #ere beneficial only to a partS and especially for purposes that #ere injurious to any) A go$ern(ent of the #hole% therefore% can ha$e no po#ers except such as all the parties consent that it (ay ha$e) 2t can do nothing except #hat all ha$e consented that it (ay do) And if any portion of the people% no (atter ho# large their nu(ber% if it be less than the #hole% desire a go$ern(ent for any purposes other than those that are co((on to all% and desired by all% they (ust for( a separate association for those purposes) They ha$e no right% by per$erting this go$ern(ent of

the #hole% to the acco(plish(ent of purposes desired only by a part% to co(pel any one to contribute to purposes that are either useless or injurious to hi(self) Such being the principles on #hich the go$ern(ent is for(ed% the Iuestion arises% ho# shall this go$ern(ent% #here for(ed% be &ept #ithin the li(its of the contract by #hich it #as establishedQ /o# shall this go$ern(ent% instituted by the #hole people% agreed to by the #hole people% supported by the contributions of the #hole people% be confined to the acco(plish(ent of those purposes alone% #hich the #hole people desireQ /o# shall it be preser$ed fro( degeneration into a (ere go$ern(ent for the benefit of a part only of those #ho established% and #ho support itQ /o# shall it be pre$ented fro( e$en injuring a part of its o#n (e(bers% for the aggrandi;e(ent of the restQ 2ts la#s (ust be% @or at least no# are%A passed% and (ost of its other acts perfor(ed% by (ere agents% agents chosen by a part of the people% and not by the #hole) /o# can these agents be restrained fro( see&ing their o#n interests% and the interests of those #ho elected the(% at the expense of the rights of the re(ainder of the people% by the passage and enforce(ent of la#s that shall be partial% uneIual% and unjust in their operationQ That is the great Iuestion) And the trial by jury ans#ers it) And ho# does the trial by jury ans#er itQ 2t ans#ers it% as has already been sho#n throughout this $olu(e% by saying that these (ere agents and attorneys% #ho are chosen by a part only of the people% and are liable to be influenced by partial and uneIual purposes% shall not ha$e unli(ited authority in the enact(ent and enforce(ent of la#sS that they shall not exercise all the functions of go$ern(ent) 2t says that they shall ne$er exercise that ulti(ate po#er of co(pelling obedience to the la#s by punishing for disobedience% or of executing the la#s against the person or property of any (an% #ithout first getting the consent of the people% through a tribunal that (ay fairly be presu(ed to represent the #hole% or substantially the #hole% people) 2t says that if the po#er to (a&e la#s% and the po#er also to enforce the(% #ere co((itted to these agents% they #ould ha$e all po#er% #ould be absolute (asters of the people% and could depri$e the( of their rights at pleasure) 2t says% therefore% that the people the(sel$es #ill hold a $eto upon the enforce(ent of any and e$ery la#% #hich these agents (ay enact% and that #hene$er the occasion arises for the( to gi$e or #ithhold their consent% inas(uch as the #hole people cannot asse(ble% or de$ote the ti(e and attention necessary to the in$estigation of each case% t#el$e of their nu(ber shall be ta&en by lot% or other#ise at rando(% fro( the #hole bodyS that they shall not be chosen by (ajorities% @the sa(e (ajorities that elected the agents #ho enacted the la#s to be put in issue%A nor by any interested or suspected partyS that they shall not be appointed by% or be in any #ay dependent upon% those #ho enacted the la#S that their opinions% #hether for or against the la# that is in issue% shall not be inIuired of beforehandS and that if these t#el$e (en gi$e their consent to the enforce(ent of the la#% their consent shall stand for the consent of the #hole) This is the (ode% #hich the trial by jury pro$ides% for &eeping the go$ern(ent #ithin the li(its designed by the #hole people%

#ho ha$e associated for its establish(ent) And it is the only (ode% pro$ided either by the English or A(erican constitutions% for the acco(plish(ent of that object) But it #ill% perhaps% be said that if the (inority can defeat the #ill of the (ajority% then the (inority rule the (ajority) But this is not true in any unjust sense) The (inority enact no la#s of their o#n) They si(ply refuse their assent to such la#s of the (ajority as they do not appro$e) The (inority assu(e no authority o$er the (ajorityS they si(ply defend the(sel$es) They do not interfere #ith the right of the (ajority to see& their o#n happiness in their o#n #ay% so long as they @the (ajorityA do not interfere #ith the (inority) They clai( si(ply not to be oppressed% and not to be co(pelled to assist in doing anything #hich they do not appro$e) They say to the (ajority% K *e #ill unite #ith you% if you desire it% for the acco(plish(ent of all those purposes% in #hich #e ha$e a co((on interest #ith you) 3ou can certainly expect us to do nothing (ore) 2f you do not choose to associate #ith us on those ter(s% there (ust be t#o separate associations) 3ou (ust associate for the acco(plish(ent of your purposesS #e for the acco(plish(ent of ours)K 2n this case% the (inority assu(e no authority o$er the (ajorityS they si(ply refuse to surrender their o#n liberties into the hands of the (ajority) They propose a unionS but decline sub(ission) The (ajority are still at liberty to refuse the connection% and to see& their o#n happiness in their o#n #ay% except that they cannot be gratified in their desire to beco(e absolute (asters of the (inority) But% it (ay be as&ed% ho# can the (inority be trusted to enforce e$en such legislation as is eIual and justQ The ans#er is% that they are as reliable for that purpose as are the (ajorityS they are as (uch presu(ed to ha$e associated% and are as li&ely to ha$e associated% for that object% as are the (ajorityS and they ha$e as (uch interest in such legislation as ha$e the (ajority) They ha$e e$en (ore interest in itS for% being the #ea&er party% they (ust rely on it for their security% ha$ing no other security on #hich they can rely) /ence their consent to the establish(ent of go$ern(ent% and to the taxation reIuired for its support% is presu(ed% @although it ought not to be presu(ed%A #ithout any express consent being gi$en) This presu(ption of their consent to be taxed for the (aintenance of la#s% #ould be absurd% if they could not the(sel$es be trusted to act in good faith in enforcing those la#s) And hence they cannot be presu(ed to ha$e consented to be taxed for the (aintenance of any la#s% except such as they are the(sel$es ready to aid in enforcing) 2t is therefore unjust to tax the(% unless they are eligible to seats in a jury% #ith po#er to judge of the justice of the la#s) Taxing the( for the support of the la#s% on the assu(ption that they are in fa$or of the la#s% and at the sa(e ti(e refusing the( the right% as jurors% to judge of the justice of the la#s% on the assu(ption that they are opposed to the la#s% are flat contradictions) But% it #ill be as&ed% #hat (oti$e ha$e the (ajority% #hen they ha$e all po#er in their o#n hands% to sub(it their #ill to the

$eto of the (inorityQ 5ne ans#er is% that they ha$e the (oti$e of justice) 2t #ould be unjust to co(pel the (inority to contribute% by taxation% to the support of any la#s #hich they did not appro$e) Another ans#er is% that if the stronger party #ish to use their po#er only for purposes of justice% they ha$e no occasion to fear the $eto of the #ea&er partyS for the latter ha$e as strong (oti$es for the (aintenance of just go$ern(ent% as ha$e the for(er) Another ans#er is% that if the stronger party use their po#er unjustly% they #ill hold it by an uncertain tenure% especially in a co((unity #here &no#ledge is diffusedS for &no#ledge #ill enable the #ea&er party to (a&e itself in ti(e the stronger party) 2t also enables the #ea&er party% e$en #hile it re(ains the #ea&er party% perpetually to annoy% alar(% and injure their oppressors) <njust po#er% or rather po#er that is grossly unjust% and that is &no#n to be so by the (inority% can be sustained only at the expense of standing ar(ies% and all the other (achinery of forceS for the oppressed party are al#ays ready to ris& their li$es for purposes of $engeance% and the acIuisition of their rights% #hene$er there is any tolerable chance of success) Peace% safety% and Iuiet for all% can be enjoyed only under la#s that obtain the consent of all) /ence tyrants freIuently yield to the de(ands of justice fro( those #ea&er than the(sel$es% as a (eans of buying peace and safety) Still another ans#er is% that those #ho are in the (ajority on one la#% #ill be in the (inority on another) All% therefore% need the benefit of the $eto% at so(e ti(e or other% to protect the(sel$es fro( injustice) That the li(its% #ithin #hich legislation #ould% by this process% be confined% #ould be exceedingly narro#% in co(parison #ith those it at present occupies% there can be no doubt) All (onopolies% all special pri$ileges% all su(ptuary la#s% all restraints upon any traffic% bargain% or contract% that #as naturally la#ful% 7!: all restraints upon (enRs natural rights% the #hole catalogue of (ala prohibita% and all taxation to #hich the taxed parties had not indi$idually% se$erally% and freely consented% #ould be at an endS because all such legislation i(plies a $iolation of the rights of a greater or less (inority) This (inority #ould disregard% tra(ple upon% or resist% the execution of such legislation% and then thro# the(sel$es upon a jury of the #hole people for justification and protection) 2n this #ay all legislation #ould be nullified% except the legislation of that general nature #hich i(partially protected the rights% and subser$ed the interests% of all) The only legislation that could be sustained% #ould probably be such as tended directly to the (aintenance of justice and libertyS such% for exa(ple% as should contribute to the enforce(ent of contracts% the protection of property% and the pre$ention and punish(ent of acts intrinsically cri(inal) 2n short% go$ern(ent in practice #ould be brought to the necessity of a strict adherence to natural la#% and natural justice% instead of being%

as it no# is% a great battle% in #hich a$arice and a(bition are constantly fighting for and obtaining ad$antages o$er the natural rights of (an&ind) 7!: Such as restraints upon ban&ing% upon the rates of interest% upon traffic #ith foreigners% XeS)% XcS) APPE4+2P TAPAT254 2t #as a principle of the "o((on La#% as it is of the la# of nature% and of co((on sense% that no (an can be taxed #ithout his personal consent) The "o((on La# &ne# nothing of that syste(% #hich no# pre$ails in England% of assu(ing a (anRs o#n consent to be taxed% because so(e pretended representati$e% #ho( he ne$er authori;ed to act for hi(% has ta&en it upon hi(self to consent that he (ay be taxed) That is one of the (any frauds on the "o((on La#% and the English constitution% #hich ha$e been introduced since =agna "arta) /a$ing finally established itself in England% it has been stupidly and ser$ilely copied and sub(itted to in the <nited States) 2f the trial by jury #ere reestablished% the "o((on La# principle of taxation #ould be reestablished #ith itS for it is not to be supposed that juries #ould enforce a tax upon an indi$idual #hich he had ne$er agreed to pay) Taxation #ithout consent is as plainly robbery% #hen enforcers against one (an% as #hen enforced against (illionsS and it is not to be i(agined that juries could be blind to so selfCe$ident a principle) Ta&ing a (anRs (oney #ithout his consent% is also as (uch robbery% #hen it is done by (illions of (en% acting in concert% and calling the(sel$es a go$ern(ent% as #hen it is done by a single indi$idual% acting on his o#n responsibility% and calling hi(self a high#ay(an) 4either the nu(bers engaged in the act% nor the different characters they assu(e as a co$er for the act% alter the nature of the act itself) 2f the go$ern(ent can ta&e a (anRs (oney #ithout his consent% there is no li(it to the additional tyranny it (ay practise upon hi(S for% #ith his (oney% it can hire soldiers to stand o$er hi(% &eep hi( in subjection% plunder hi( at discretion% and &ill hi( if he resists) And go$ern(ents al#ays #ill do this% as they e$ery#here and al#ays ha$e done it% except #here the "o((on La# principle has been established) 2t is therefore a first principle% a $ery sine Iua non of political freedo(% that a (an can be taxed only by his personal consent) And the establish(ent of this principle% #ith trial by jury% insures freedo( of courseS because?!) 4o (an #ould pay his (oney unless he had first contracted for such a go$ern(ent as he #as #illing to supportS and%8) <nless the go$ern(ent then &ept itself #ithin the ter(s of its contract% juries #ould not enforce the pay(ent of the tax) Besides% the agree(ent to be taxed #ould probably be entered into but for a year at a ti(e) 2f% in that year% the go$ern(ent pro$ed itself either inefficient or tyrannical% to any serious degree% the contract #ould not be rene#ed) The dissatisfied parties% if

sufficiently nu(erous for a ne# organi;ation% #ould for( the(sel$es into a separate association for (utual protection) 2f not sufficiently nu(erous for that purpose% those #ho #ere conscientious #ould forego all go$ern(ental protection% rather than contribute to the support of a go$ern(ent #hich they dee(ed unjust) All legiti(ate go$ern(ent is a (utual insurance co(pany% $oluntarily agreed upon by the parties to it% for the protection of their rights against #rongCdoers) 2n its $oluntary character it is precisely si(ilar to an association for (utual protection against fire or ship#rec&) Before a (an #ill join an association for these latter purposes% and pay the pre(iu( for being insured% he #ill% if he be a (an of sense% loo& at the articles of the associationS see #hat the co(pany pro(ises to doS #hat it is li&ely to doS and #hat are the rates of insurance) 2f he be satisfied on all these points% he #ill beco(e a (e(ber% pay his pre(iu( for a year% and then hold the co(pany to its contract) 2f the conduct of the co(pany pro$e unsatisfactory% he #ill let his policy expire at the end of the year for #hich he has paidS #ill decline to pay any further pre(iu(s% and either see& insurance else#here% or ta&e his o#n ris& #ithout any insurance) And as (en act in the insurance of their ships and d#ellings% they #ould act in the insurance of their properties% liberties and li$es% in the political association% or go$ern(ent) The political insurance co(pany% or go$ern(ent% ha$e no (ore right% in nature or reason% to assu(e a (anRs consent to be protected by the(% and to be taxed for that protection% #hen he has gi$en no actual consent% than a fire or (arine insurance co(pany ha$e to assu(e a (anRs consent to be protected by the(% and to pay the pre(iu(% #hen his actual consent has ne$er been gi$en) To ta&e a (anRs property #ithout his consent is robberyS and to assu(e his consent% #here no actual consent is gi$en% (a&es the ta&ing none the less robbery) 2f it did% the high#ay(an has the sa(e right to assu(e a (anRs consent to part #ith his purse% that any other (an% or body of (en% can ha$e) And his assu(ption #ould afford as (uch (oral justification for his robbery as does a li&e assu(ption% on the part of the go$ern(ent% for ta&ing a (anRs property #ithout his consent) The go$ern(entRs pretence of protecting hi(% as an eIui$alent for the taxation% affords no justification) 2t is for hi(self to decide #hether he desires such protection as the go$ern(ent offers hi() 2f he do not desire it% or do not bargain for it% the go$ern(ent has no (ore right than any other insurance co(pany to i(pose it upon hi(% or (a&e hi( pay for it) Trial by the country% and no taxation #ithout consent% #ere the t#o pillars of English liberty% @#hen England had any liberty%A and the first principles of the "o((on La#) They (utually sustain each otherS and neither can stand #ithout the other) *ithout both% no people ha$e any guaranty for their freedo(S #ith both% no people can be other#ise than free) 7!: 7!: Trial by the country% and no taxation #ithout consent% (utually sustain each other% and can be sustained only by each other% for these reasons? !) Juries #ould refuse to enforce a tax against a (an #ho had ne$er agreed to pay it) They #ould also

protect (en in forcibly resisting the collection of taxes to #hich they had ne$er consented) 5ther#ise the jurors #ould authori;e the go$ern(ent to tax the(sel$es #ithout their consent% a thing #hich no jury #ould be li&ely to do) 2n these t#o #ays% then% trial by the country #ould sustain the principle of no taxation #ithout consent) 8) 5n the other hand% the principle of no taxation #ithout consent #ould sustain the trial by the country% because (en in general #ould not consent to be taxed for the support of a go$ern(ent under #hich trial by the country #as not secured) Thus these t#o principles (utually sustain each other) But% if either of these principles #ere bro&en do#n% the other #ould fall #ith it% and for these reasons?2f trial by the country #ere bro&en do#n% the principle of no taxation #ithout consent #ould fall #ith it% because the go$ern(ent #ould then be able totax the people #ithout their consent% inas(uch as the legal tribunals #ould be (ere tools of the go$ern(ent% and #ould enforce such taxation% and punish (en for resisting such taxation% as the go$ern(ent ordered) 5n the other hand% if the principle of no taxation #ithout consent #ere bro&en do#n% trial by the country #ould fall #ith it% because the go$ern(ent% if it could tax people #ithout their consent% #ould% of course% ta&e enough of their (oney to enable it to e(ploy all the force necessary for sustaining its o#n tribunals% @in the place of juries%A and carrying their decrees into execution) By #hat force% fraud% and conspiracy% on the part of &ings% nobles% and Ka fe# #ealthy freeholders%K these pillars ha$e been prostrated in England% it is desired to sho# (ore fully in the next $olu(e% if it should be necessary)

End of The Project Gutenberg Etext of An Essay on the Trial By Jury