"But there is one species of courts constituted by act of Parliament, in the city of London, and other trading and populous districts, which, in their proceedings, so vary from the course of the common law, that they deserve a more particular consideration. I mean the court of requests,or courts of conscience, for the recovery of small debts. The first of these was established in London so early as the reign of Henry VIII., by an act of their common council; which, however, was certainly insufficient for that purpose, and illegal, till confirmed by statute 3 Jac. I., ch. 15, which has since been explained and amended by statute 14 Geo. II., ch. 10. The constitution is this: two aldermen and four commoners sit twice a week to hear all causes of debt not exceeding the value of forty shillings; which they examine in a summary way, by the oath of the parties or other witnesses,and make such order therein as is consonant to equity and good conscience.* * Divers trading towns and other districts have obtained acts of Parliament, for establishing in themcourts of conscienceupon nearly the same plan as that in the city of London."The anxious desire that has been shown to obtain these several acts, proves clearly that the nation, in general, is truly sensible of the great inconvenience arising from the disuse of the ancient county and hundred courts, wherein causes of this small value were always formerly decided with very little trouble and expense to the parties. But it is to be feared that the general remedy, which of late hath been principally applied to this inconvenience, (the erecting these new jurisdictions,) may itself be attended in time with very ill consequences; as the method of proceeding therein is entirely in derogation of the common law; and their large discretionary powers create a petty tyranny in a set of standing commissioners; and as the disuse of the trial by jury may tend to estrange the minds of the people from that valuable prerogative of Englishmen, which has already been more than sufficiently excluded in many instances.How much rather is it to be wished that the proceedings in the county and hundred courts could be again revived,without burdening the freeholders with too frequent and tedious attendances; and at the same time removing the delays that have insensibly crept into their proceedings, and the power that either party has of transferring at pleasure their suits to the courts at Westminster!And we may, with satisfaction, observe, that this experiment has been actually tried, and has succeeded in the populous county of Middlesex, which might serve as an example for others. For by statute 23 Geo. II., ch. 33, it is enacted:1. That a special county court shall be held at least once in a month, in every hundred of the county of Middlesex,by the county clerk.2.That twelve freeholders of that hundred, qualified to serve on juries, and struck by the sheriff, shall be summoned to appear at such court by rotation; so as none shall be summoned oftener than once a year.3. That in all causes not exceeding the value of forty shillings,the county clerk and twelve suitors (jurors) shall proceed in a summary way, examining the parties and witnesses on oath, without the formal process anciently used;and shall make such order therein as they shall judge agreeable to conscience."—3 Blackstone, 81-83.
"But there is one species of courts constituted by act of Parliament, in the city of London, and other trading and populous districts, which, in their proceedings, so vary from the course of the common law, that they deserve a more particular consideration. I mean the court of requests,or courts of conscience, for the recovery of small debts. The first of these was established in London so early as the reign of Henry VIII., by an act of their common council; which, however, was certainly insufficient for that purpose, and illegal, till confirmed by statute 3 Jac. I., ch. 15, which has since been explained and amended by statute 14 Geo. II., ch. 10. The constitution is this: two aldermen and four commoners sit twice a week to hear all causes of debt not exceeding the value of forty shillings; which they examine in a summary way, by the oath of the parties or other witnesses,and make such order therein as is consonant to equity and good conscience.* * Divers trading towns and other districts have obtained acts of Parliament, for establishing in themcourts of conscienceupon nearly the same plan as that in the city of London.
"The anxious desire that has been shown to obtain these several acts, proves clearly that the nation, in general, is truly sensible of the great inconvenience arising from the disuse of the ancient county and hundred courts, wherein causes of this small value were always formerly decided with very little trouble and expense to the parties. But it is to be feared that the general remedy, which of late hath been principally applied to this inconvenience, (the erecting these new jurisdictions,) may itself be attended in time with very ill consequences; as the method of proceeding therein is entirely in derogation of the common law; and their large discretionary powers create a petty tyranny in a set of standing commissioners; and as the disuse of the trial by jury may tend to estrange the minds of the people from that valuable prerogative of Englishmen, which has already been more than sufficiently excluded in many instances.How much rather is it to be wished that the proceedings in the county and hundred courts could be again revived,without burdening the freeholders with too frequent and tedious attendances; and at the same time removing the delays that have insensibly crept into their proceedings, and the power that either party has of transferring at pleasure their suits to the courts at Westminster!And we may, with satisfaction, observe, that this experiment has been actually tried, and has succeeded in the populous county of Middlesex, which might serve as an example for others. For by statute 23 Geo. II., ch. 33, it is enacted:
1. That a special county court shall be held at least once in a month, in every hundred of the county of Middlesex,by the county clerk.
2.That twelve freeholders of that hundred, qualified to serve on juries, and struck by the sheriff, shall be summoned to appear at such court by rotation; so as none shall be summoned oftener than once a year.
3. That in all causes not exceeding the value of forty shillings,the county clerk and twelve suitors (jurors) shall proceed in a summary way, examining the parties and witnesses on oath, without the formal process anciently used;and shall make such order therein as they shall judge agreeable to conscience."—3 Blackstone, 81-83.
What are these but courts of conscience? And yet Blackstone tells us they are arevival of the ancient hundred and county courts. And what does this fact prove, but that the ancient common law courts, in which juries sat, were mere courts of conscience?
It is perfectly evident that in all these courts the jurors were the judges, and determined all questions of law for themselves; because the only alternative to that supposition is,that the jurors took their law from sheriffs, bailiffs, and stewards, of which there is not the least evidence in history, nor the least probability in reason. It is evident, also, that they judged independently of the laws of the king, for the reasons before given, viz., that the authority of the king was held in very little esteem; and, secondly, that the laws of the king (not being printed, and the people being unable to read them if they had been printed) must have been in a great measure unknown to them, and could have been received by them only on the authority of the sheriff, bailiff, or steward. If laws were to be received by them on the authority of these officers,the latter would have imposed such laws upon the people as they pleased.
These courts, that have now been described, were continued in full power long after Magna Carta, no alteration being made in them by that instrument,nor in the mode of administering justice in them.
There is no evidence whatever, so far as I am aware, that the juries had anylesspower in the courts held by the king's justices, than in those held by sheriffs, bailiffs, and stewards; and there is no probability whatever that they had. All the difference between the former courts and the latter undoubtedly was, that, in the former, the juries had the benefit of the advice and assistance of the justices, which would, of course, be considered valuable in difficult cases, on account of the justices being regarded as more learned, not only in the laws of the king, but also in the common law, or "law of the land."
The conclusion, therefore, I think, inevitably must be, that neither the laws of the king, nor the instructions of his justices, had any authority over jurors beyond what the latter saw fit to accord to them. And this view is confirmed by this remark of Hallam, the truth of which all will acknowledge:
"The rules of legal decision, among a rude people, are always very simple; not serving much to guide, far less to control the feelings of natural equity."—2 Middle Ages, ch. 8, part 2, p. 465.
"The rules of legal decision, among a rude people, are always very simple; not serving much to guide, far less to control the feelings of natural equity."—2 Middle Ages, ch. 8, part 2, p. 465.
It is evident that it was in this way,by the free and concurrent judgments of juries, approving and enforcing certain laws and rules of conduct, corresponding to their notions of right and justice, that the laws and customs, which, for the most part, made up thecommon law, and were called, at that day, "the good laws, and good customs," and "the law of the land," were established. How otherwise could they ever have become established, as Blackstone says they were, "by long and immemorial usage, and by their universal reception throughout the kingdom,"[54]when, as the Mirror says,"justice was so done, that every one so judged his neighbor, by such judgment as a man could not elsewhere receive in the like cases, until such times as the customs of the realm were put in writing and certainly published?"
The fact that, in that dark age, so many of the principles of natural equity, as those then embraced in theCommon Law, should have been so uniformly recognized and enforced by juries, as to have become established by general consent as "the law of the land;" and the further fact that this "law of the land" was held so sacred that even the king could not lawfully infringe or alter it, but was required to swear to maintain it, are beautiful and impressive illustrations of the truth that men's minds, even in the comparative infancy of other knowledge, have clear and coincident ideas of the elementary principles, and the paramount obligation, of justice. The same facts also prove that the common mind, and the general, or, perhaps, rather, the universal conscience, as developed in the untrammelled judgments of juries, may be safely relied upon for the preservation of individual rights in civil society; and that there is no necessity or excuse for that deluge of arbitrary legislation, with which the present age is overwhelmed, under the pretext that unless laws bemade, the law will not be known; a pretext, by the way, almost universally used for overturning, instead of establishing, the principles of justice.
SECTION III.
The Oaths of Jurors.
The oaths that have been administered to jurors, in England, and which are theirlegalguide to their duty,all(so far as I have ascertained them) corroborate the idea that the jurors are to try all cases on their intrinsic merits, independently of any laws that they deem unjust or oppressive. It is probable that an oath was never administered to a jury in England, either in a civil or criminal case, to try itaccording to law.
The earliest oath that I have found prescribed by law to be administered to jurors is in the laws of Ethelred, (about the year 1015,) which require that the jurors"shall swear, with their hands upon a holy thing, that they will condemn no man that is innocent, nor acquit any that is guilty."—4 Blackstone, 302.2 Turner's History of the Anglo-Saxons, 155. Wilkins' Laws of the Anglo-Saxons, 117.Spelman's Glossary, wordJurata.
Blackstone assumes that this was the oath of thegrandjury (4 Blackstone, 302); but there was but one jury at the time this oath was ordained. The institution of two juries, grand and petit, took place after the Norman Conquest.
Hume, speaking of the administration of justice in the time of Alfred, says that, in every hundred,
"Twelve freeholders were chosen, who, having sworn, together with the hundreder, or presiding magistrate of that division,to administer impartial justice, proceeded to the examination of that cause which was submitted to their jurisdiction."—Hume, ch. 2.
"Twelve freeholders were chosen, who, having sworn, together with the hundreder, or presiding magistrate of that division,to administer impartial justice, proceeded to the examination of that cause which was submitted to their jurisdiction."—Hume, ch. 2.
By a law of Henry II., in 1164, it was directed that the sheriff "faciet jurare duodecim legales homines de vicineto seu de villa, quod inde veritatem secundum conscientiam suam manifestabunt," (shall make twelve legal men from the neighborhoodto swear that they will make known the truth according to their conscience.)—Crabbe's History of the English Law, 119.1 Reeves, 87.Wilkins, 321-323.
Glanville, who wrote within the half century previous to Magna Carta, says:
"Each of the knights summoned for this purpose (as jurors) ought to swear that he will neither utter that which is false, nor knowingly conceal the truth."—Beames' Glanville, 65.
"Each of the knights summoned for this purpose (as jurors) ought to swear that he will neither utter that which is false, nor knowingly conceal the truth."—Beames' Glanville, 65.
Reeve calls the trial by jury "the trial by twelve men sworn to speak the truth."—1 Reeve's History of the English Law, 87.
Henry says that the jurors "took a solemn oath, that they would faithfully discharge the duties of their office, and not suffer an innocent man to be condemned, nor any guilty person to be acquitted."—3 Henry's Hist. of Great Britain, 346.
TheMirror of Justices, (written within a century after Magna Carta,) in the chapter on the abuses of the Common Law, says:
"It is abuse to use the words,to their knowledge, in their oaths, to make the jurors speak upon thoughts,since the chief words of their oaths be that they speak the truth."—p. 249.
"It is abuse to use the words,to their knowledge, in their oaths, to make the jurors speak upon thoughts,since the chief words of their oaths be that they speak the truth."—p. 249.
Smith, writing in the time of Elizabeth, says that, incivilsuits, the jury "be sworn to declare the truth of that issue according to the evidence, and their conscience."—Smith's Commonwealth of England, edition of 1621, p. 73.
Incriminaltrials, he says:
"The clerk giveth the juror an oath to go uprightly betwixt the prince and the prisoner."—Ditto, p. 90.[55]
"The clerk giveth the juror an oath to go uprightly betwixt the prince and the prisoner."—Ditto, p. 90.[55]
Hale says:
"Then twelve, and no less, of such as are indifferent and are returned upon the principal panel, or thetales, are sworn to try the same according to the evidence."—2 Hale's History of the Common Law, 141.
"Then twelve, and no less, of such as are indifferent and are returned upon the principal panel, or thetales, are sworn to try the same according to the evidence."—2 Hale's History of the Common Law, 141.
It appears from Blackstone that, evenat this day, neither in civil nor criminal cases, are jurors in England sworn to try causesaccording to law. He says that in civil suits the jury are
"Sworn well and truly totry the issuebetween the parties, and a true verdict to give according to the evidence."—3 Blackstone, 365.
"Sworn well and truly totry the issuebetween the parties, and a true verdict to give according to the evidence."—3 Blackstone, 365.
"The issue" to be tried is whether A owes B anything; and if so, how much? or whether A has in his possession anything that belongs to B; or whether A has wronged B, and ought to make compensation; and if so, how much?
No statute passed by a legislature, simply as a legislature, can alter either of these "issues" in hardly any conceivable case, perhaps in none. Nounjustlaw could ever alter them in any. They are all mere questions of natural justice, which legislatures have no power to alter, and with which they have no right to interfere, further than to provide for having them settled by the most competent and impartial tribunal that it is practicable to have, and then for having all just decisions enforced. And any tribunal, whether judge or jury, that attempts to try these issues, has no more moral right to be swerved from the line of justice, by the will of a legislature, than by the will of any other body of men whatever. And this oath does not require or permit a jury to be so swerved.
In criminal cases, Blackstone says the oath of the jury in England is:
"Well and truly to try, and true deliverance make, between our sovereign lord, the king, and the prisoner whom they have in charge, and a true verdict to give according to the evidence."—4 Blackstone, 355.
"Well and truly to try, and true deliverance make, between our sovereign lord, the king, and the prisoner whom they have in charge, and a true verdict to give according to the evidence."—4 Blackstone, 355.
"The issue" to be tried, in a criminal case, is "guilty," or "not guilty." The laws passed by a legislature can rarely, if ever, have anything to do with this issue. "Guilt" is anintrinsicquality of actions, and can neither be created, destroyed, nor changed by legislation. And no tribunal that attempts to try this issue can have any moral right to declare a manguilty, for an act that is intrinsically innocent, at the bidding of a legislature, any more than at the bidding of anybody else. And this oath does not require or permit a jury to do so.
The words, "according to the evidence," have doubtless been introduced into the above oaths in modern times. They are unquestionably in violation of the Common Law, and of Magna Carta, if by them be meant such evidence only as the government sees fit to allow to go to the jury. If the government can dictate the evidence, and require the jury to decide according to that evidence, it necessarily dictates the conclusion to which they must arrive. In that case the trial is really a trial by the government, and not by the jury.The jurycannottry an issue, unlesstheydetermine what evidence shall be admitted. The ancient oaths, it will be observed, say nothing about "according to the evidence." They obviously take it for granted that the jury try the whole case; and of course thattheydecide what evidence shall be admitted. It would be intrinsically an immoral and criminal act for a jury to declare a man guilty, or to declare that one man owed money to another, unless all the evidence were admitted, whichtheythought ought to be admitted, for ascertaining the truth.[56]
Grand Jury.—If jurors are bound to enforce all laws passed by the legislature, it is a very remarkable fact that the oath of grand juries does not require them to be governed by the laws in finding indictments. There have been various forms of oath administered to grand jurors; but by none of them that I recollect ever to have seen, except those of the Statesof Connecticut and Vermont, are they sworn to present menaccording to law. The English form, as given in the essay on Grand Juries, written near two hundred years ago, and supposed to have been written byLord Somers, is as follows:
"You shall diligently inquire, and true presentment make, of all such articles, matters, and things, as shall be given you in charge, and of all other matters and things as shall come to your knowledge touching this present service. The king's council, your fellows, and your own, you shall keep secret. You shall present no person for hatred or malice; neither shall you leave any one unpresented for favor, or affection, for love or gain, or any hopes thereof; but in all things you shall present the truth, the whole truth, and nothing but the truth, to the best of your knowledge. So help you God."
"You shall diligently inquire, and true presentment make, of all such articles, matters, and things, as shall be given you in charge, and of all other matters and things as shall come to your knowledge touching this present service. The king's council, your fellows, and your own, you shall keep secret. You shall present no person for hatred or malice; neither shall you leave any one unpresented for favor, or affection, for love or gain, or any hopes thereof; but in all things you shall present the truth, the whole truth, and nothing but the truth, to the best of your knowledge. So help you God."
This form of oath is doubtless quite ancient, for the essay says "our ancestors appointed" it.—See Essay, p. 33-34.
On the obligations of this oath, the essay says:
"If it be asked how, or in what manner, the (grand) juries shall inquire, the answer is ready,according to the best of their understandings. They only, not the judges, are sworn to search diligently to find out all treasons, &c., within their charge, and they must and ought to use their own discretion in the way and manner of their inquiry.No directions can legally be imposed upon them by any court or judges; an honest jury will thankfully accept good advice from judges, as their assistants; but they are bound by their oaths to present the truth, the whole truth, and nothing but the truth, to the best of their own, not the judge's, knowledge. Neither can they, without breach of that oath, resign their consciences, or blindly submit to the dictates of others; and therefore ought to receive or reject such advices, as they judge them good or bad. * * Nothing can be more plain and express than the words of the oath are to this purpose. The jurors need not search the law books, nor tumble over heaps of old records, for the explanation of them. Our greatest lawyers may from hence learn more certainly our ancient law in this case, than from all the books in their studies. The language wherein the oath is penned is known and understood by every man, and the words in it have the same signification as they have wheresoever else they are used. The judges, without assuming to themselves a legislative power, cannot put a new sense upon them, other than according to their genuine, common meaning. They cannot magisterially impose their opinions upon the jury, and make them forsake the directwords of their oath, to pursue their glosses. The grand inquest are bound to observe alike strictly every part of their oath, and to use all just and proper ways which may enable them to perform it; otherwise it were to say, that after men had sworn to inquire diligently after the truth, according to the best of their knowledge, they were bound to forsake all the natural and proper means which their understandings suggest for the discovery of it, if it be commanded by the judges."—Lord Somers' Essay on Grand Juries, p. 38.
"If it be asked how, or in what manner, the (grand) juries shall inquire, the answer is ready,according to the best of their understandings. They only, not the judges, are sworn to search diligently to find out all treasons, &c., within their charge, and they must and ought to use their own discretion in the way and manner of their inquiry.No directions can legally be imposed upon them by any court or judges; an honest jury will thankfully accept good advice from judges, as their assistants; but they are bound by their oaths to present the truth, the whole truth, and nothing but the truth, to the best of their own, not the judge's, knowledge. Neither can they, without breach of that oath, resign their consciences, or blindly submit to the dictates of others; and therefore ought to receive or reject such advices, as they judge them good or bad. * * Nothing can be more plain and express than the words of the oath are to this purpose. The jurors need not search the law books, nor tumble over heaps of old records, for the explanation of them. Our greatest lawyers may from hence learn more certainly our ancient law in this case, than from all the books in their studies. The language wherein the oath is penned is known and understood by every man, and the words in it have the same signification as they have wheresoever else they are used. The judges, without assuming to themselves a legislative power, cannot put a new sense upon them, other than according to their genuine, common meaning. They cannot magisterially impose their opinions upon the jury, and make them forsake the directwords of their oath, to pursue their glosses. The grand inquest are bound to observe alike strictly every part of their oath, and to use all just and proper ways which may enable them to perform it; otherwise it were to say, that after men had sworn to inquire diligently after the truth, according to the best of their knowledge, they were bound to forsake all the natural and proper means which their understandings suggest for the discovery of it, if it be commanded by the judges."—Lord Somers' Essay on Grand Juries, p. 38.
What is here said so plainly and forcibly of the oath and obligations of grand juries, is equally applicable to the oath and obligations of petit juries. In both cases the simple oaths of the jurors, and not the instructions of the judges, nor the statutes of kings nor legislatures, are their legal guides to their duties.[57]
SECTION IV.
The Right of Juries to fix the Sentence.
The nature of the common law courts existing prior to Magna Carta, such as the county courts, the hundred courts, the court-leet, and the court-baron, all prove, what has already been proved from Magna Carta, that, in jury trials, the juries fixed the sentence; because, in those courts, there was no one but the jury who could fix it, unless it were the sheriff, bailiff, or steward; and no one will pretend that it was fixed by them. The juries unquestionably gave the "judgment" in both civil and criminal cases.
That the juries were to fix the sentence under Magna Carta, is also shown by statutes subsequent to Magna Carta.
A statute passed fifty-one years after Magna Carta, says that a baker, for default in the weight of his bread, "debeatamerciari vel subire judicium pilloræ,"—that is, "oughtto be amerced, or suffer the sentence of the pillory." And that a brewer, for "selling ale, contrary to the assize," "debeatamerciari, vel pati judicium tumbrelli;" that is, "oughtto beamerced, or suffer judgment of the tumbrel."—51 Henry III., st. 6. (1266.)
If the king (the legislative power) had had authority to fix the punishments of these offences imperatively, he would naturally have said these offendersshallbe amerced, andshallsuffer judgment of the pillory and tumbrel, instead of thus simply expressing the opinion that theyoughtto be punished in that manner.
The statute of Westminster, passed sixty years after Magna Carta, provides that,
"No city, borough, nor town,nor any man, be amerced, without reasonable cause, and according to the quantity of the trespass; that is to say, every freeman saving his freehold, a merchant saving his merchandise, a villein his waynage,and that by his or their peers."—3 Edward I., ch. 6. (1275.)
"No city, borough, nor town,nor any man, be amerced, without reasonable cause, and according to the quantity of the trespass; that is to say, every freeman saving his freehold, a merchant saving his merchandise, a villein his waynage,and that by his or their peers."—3 Edward I., ch. 6. (1275.)
The same statute (ch. 18) provides further, that,
"Forasmuch as thecommon fine and amercementof the whole county in Eyre of the justices for false judgments, or for other trespass, is unjustly assessed by sheriffs and baretors in the shires, so that the sum is many times increased, and the parcels otherwise assessed than they ought to be, to the damage of the people, which be many times paid to the sheriffs and baretors, which do not acquit the payers; it is provided, and the king wills, that from henceforth such sums shall be assessed before the justices in Eyre, afore their departure,by the oath of knights and other honest men, upon all such as ought to pay; and the justices shall cause the parcels to be put into their estreats, which shall be delivered up unto the exchequer, and not the whole sum."—St. 3 Edward I., ch. 18, (1275.)[58]
"Forasmuch as thecommon fine and amercementof the whole county in Eyre of the justices for false judgments, or for other trespass, is unjustly assessed by sheriffs and baretors in the shires, so that the sum is many times increased, and the parcels otherwise assessed than they ought to be, to the damage of the people, which be many times paid to the sheriffs and baretors, which do not acquit the payers; it is provided, and the king wills, that from henceforth such sums shall be assessed before the justices in Eyre, afore their departure,by the oath of knights and other honest men, upon all such as ought to pay; and the justices shall cause the parcels to be put into their estreats, which shall be delivered up unto the exchequer, and not the whole sum."—St. 3 Edward I., ch. 18, (1275.)[58]
The following statute, passed in 1341, one hundred and twenty-five years after Magna Carta, providing for the trial of peers of the realm, and the king's ministers, contains a recognition of the principle of Magna Carta, that the jury are to fix the sentence.
"Whereas before this time the peers of the land have been arrested and imprisoned, and their temporalities, lands, and tenements, goods and cattels, asseized in the king's hands, and some put to death without judgment of their peers: It 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 judgment to lose his temporalities, lands, tenements, goods and cattels, nor to be arrested, nor imprisoned, outlawed, exiled, nor forejudged, nor put to answer, nor be judged, but byaward(sentence) of the said peers in Parliament."—15 Edward III., st. 1, sec. 2.
"Whereas before this time the peers of the land have been arrested and imprisoned, and their temporalities, lands, and tenements, goods and cattels, asseized in the king's hands, and some put to death without judgment of their peers: It 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 judgment to lose his temporalities, lands, tenements, goods and cattels, nor to be arrested, nor imprisoned, outlawed, exiled, nor forejudged, nor put to answer, nor be judged, but byaward(sentence) of the said peers in Parliament."—15 Edward III., st. 1, sec. 2.
Section 4, of the same statute provides,
"That in every Parliament, at the third day of every Parliament, the king shall take in his hands the offices of all the ministers aforesaid," (that is, "the chancellor, treasurer, barons, and chancellor of the exchequer, the justices of the one bench and of the other, justices assigned in the country, steward and chamberlain of the king's house, keeper of the privy seal, treasurer of the wardrobe, controllers, and they that be chief deputed to abide nigh the king's son, Duke of Cornwall,") "and so they shall abide four or five days; except the offices of justices of the one place or the other, justices assigned, barons of exchequer; so always that they and all other ministers be put to answer to every complaint; and if default be found in any of the said ministers, by complaint or other manner, and of that attainted in Parliament, he shall be punished by judgment of the peers, and put out of his office, and another convenient put in his place. And upon the same our said sovereign lord the king shall do (cause) to be pronounced and made execution without delay,according to the judgment(sentence) of the said peers in the Parliament."
"That in every Parliament, at the third day of every Parliament, the king shall take in his hands the offices of all the ministers aforesaid," (that is, "the chancellor, treasurer, barons, and chancellor of the exchequer, the justices of the one bench and of the other, justices assigned in the country, steward and chamberlain of the king's house, keeper of the privy seal, treasurer of the wardrobe, controllers, and they that be chief deputed to abide nigh the king's son, Duke of Cornwall,") "and so they shall abide four or five days; except the offices of justices of the one place or the other, justices assigned, barons of exchequer; so always that they and all other ministers be put to answer to every complaint; and if default be found in any of the said ministers, by complaint or other manner, and of that attainted in Parliament, he shall be punished by judgment of the peers, and put out of his office, and another convenient put in his place. And upon the same our said sovereign lord the king shall do (cause) to be pronounced and made execution without delay,according to the judgment(sentence) of the said peers in the Parliament."
Here is an admission that the peers were to fix the sentence, or judgment, and the king promises to make execution "according to" that sentence.
And this appears to be the law, under which peers of the realm and the great officers of the crown were tried and sentenced, for four hundred years after its passage, and, for aught I know, until this day.
The first case given in Hargrave's collection of English State Trials, is that ofAlexander Nevil, Archbishop of York,Robert Vere, Duke of Ireland,Michael de la Pole, Earl of Suffolk, andRobert Tresilian, Lord Chief Justice of England, with several others, convicted of treason, before "the Lords of Parliament," in 1388. The sentences in these cases were adjudged by the "Lords of Parliament," in the following terms, as they are reported.
"Wherefore the saidLords of Parliament, there present, as judges in Parliament, in this case,by assent of the king, pronounced their sentence, and did adjudge the said archbishop, duke, and earl, with Robert Tresilian, so appealed, as aforesaid, to be guilty, and convicted of treason, and to be drawn and hanged, as traitors and enemies to the king and kingdom; and that their heirs should be disinherited forever, and their lands and tenements, goods and chattels, forfeited to the king, and that the temporalities of the Archbishop of York should be taken into the king's hands."Also, in the same case, SirJohn Holt, SirWilliam Burgh, SirJohn Cary, SirRoger Fulthorpe, andJohn Locton, "were by the lords temporal, by the assent of the king, adjudged to be drawn and hanged, as traitors, their heirs disinherited, and their lands and tenements, goods and chattels, to be forfeited to the king."Also, in the same case,John Blake, "of council for the king," andThomas Uske, under sheriff of Middlesex, having been convicted of treason,"The lords awarded, by assent of the king, that they should both be hanged and drawn as traitors, as open enemies to the king and kingdom, and their heirs disinherited forever, and their lands and tenements, goods and chattels, forfeited to the king."Also, "Simon Burleigh, the king's chamberlain," being convicted of treason, "by joint consent of the king and the lords, sentence was pronounced against the said Simon Burleigh, that he should be drawn from the town to Tyburn, and there be hanged till he be dead, and then have his head struck from his body."Also, "John Beauchamp, steward of the household to the king,James Beroverse, andJohn Salisbury, knights, gentlemen of the privy chamber,were in like manner condemned."—1 Hargrave's State Trials, first case.
"Wherefore the saidLords of Parliament, there present, as judges in Parliament, in this case,by assent of the king, pronounced their sentence, and did adjudge the said archbishop, duke, and earl, with Robert Tresilian, so appealed, as aforesaid, to be guilty, and convicted of treason, and to be drawn and hanged, as traitors and enemies to the king and kingdom; and that their heirs should be disinherited forever, and their lands and tenements, goods and chattels, forfeited to the king, and that the temporalities of the Archbishop of York should be taken into the king's hands."
Also, in the same case, SirJohn Holt, SirWilliam Burgh, SirJohn Cary, SirRoger Fulthorpe, andJohn Locton, "were by the lords temporal, by the assent of the king, adjudged to be drawn and hanged, as traitors, their heirs disinherited, and their lands and tenements, goods and chattels, to be forfeited to the king."
Also, in the same case,John Blake, "of council for the king," andThomas Uske, under sheriff of Middlesex, having been convicted of treason,
"The lords awarded, by assent of the king, that they should both be hanged and drawn as traitors, as open enemies to the king and kingdom, and their heirs disinherited forever, and their lands and tenements, goods and chattels, forfeited to the king."
Also, "Simon Burleigh, the king's chamberlain," being convicted of treason, "by joint consent of the king and the lords, sentence was pronounced against the said Simon Burleigh, that he should be drawn from the town to Tyburn, and there be hanged till he be dead, and then have his head struck from his body."
Also, "John Beauchamp, steward of the household to the king,James Beroverse, andJohn Salisbury, knights, gentlemen of the privy chamber,were in like manner condemned."—1 Hargrave's State Trials, first case.
Here the sentences were all fixed by the peers,with the assent of the king. But that the king should be consulted, and his assent obtained to the sentence pronounced by the peers,does not imply any deficiency of power on their part to fix the sentence independently of the king. There are obvious reasons why they might choose to consult the king, and obtain his approbation of the sentence they were about to impose, without supposing any legal necessity for their so doing.
So far as we can gather from the reports of state trials, peers of the realm were usually sentenced by those who tried them,with the assent of the king. But in some instances no mention is made of the assent of the king, as in the case of "Lionel, Earl of Middlesex, Lord High Treasurer of England," in 1624, (four hundred years after Magna Carta,) where the sentence was as follows:
"This High Court of Parliament doth adjudge, that Lionel, Earl of Middlesex, now Lord Treasurer of England, shall lose all his offices which he holds in this kingdom, and shall, hereafter, be made incapable of any office, place, or employment in the state and commonwealth. That he shall be imprisoned in the tower of London, during the king's pleasure. That he shall pay unto our sovereign lord the king a fine of 50,000 pounds. That he shall never sit in Parliament any more, and that he shall never come within the verge of the court."—2 Howell's State Trials, 1250.
"This High Court of Parliament doth adjudge, that Lionel, Earl of Middlesex, now Lord Treasurer of England, shall lose all his offices which he holds in this kingdom, and shall, hereafter, be made incapable of any office, place, or employment in the state and commonwealth. That he shall be imprisoned in the tower of London, during the king's pleasure. That he shall pay unto our sovereign lord the king a fine of 50,000 pounds. That he shall never sit in Parliament any more, and that he shall never come within the verge of the court."—2 Howell's State Trials, 1250.
Here was a peer of the realm, and a minister of the king, of the highest grade; and if it were evernecessaryto obtain the assent of the king to sentences pronounced by the peers, it would unquestionably have been obtained in this instance, and his assent would have appeared in the sentence.
Lord Baconwas sentenced by the House of Lords, (1620,)no mention being made of the assent of the king. The sentence is in these words:
"And, therefore, this High Court doth adjudge, That the Lord Viscount St. Albans, Lord Chancellor of England, shall undergo fine and ransom of 40,000 pounds. That he shall be imprisoned in the tower during the king's pleasure. That he shall forever be incapable of any office, place, or employment in the state or commonwealth. That he shall never sit in Parliament, nor come within the verge of the court."
"And, therefore, this High Court doth adjudge, That the Lord Viscount St. Albans, Lord Chancellor of England, shall undergo fine and ransom of 40,000 pounds. That he shall be imprisoned in the tower during the king's pleasure. That he shall forever be incapable of any office, place, or employment in the state or commonwealth. That he shall never sit in Parliament, nor come within the verge of the court."
And when it was demanded of him, before sentence, whether it were his hand that was subscribed to his confession, andwhether he would stand to it; he made the following answer, which implies that the lords were the ones to determine his sentence.
"My lords, it is my act, my hand, my heart.I beseech your lordships to be merciful to a broken reed."—1 Hargrave's State Trials, 386-7.
"My lords, it is my act, my hand, my heart.I beseech your lordships to be merciful to a broken reed."—1 Hargrave's State Trials, 386-7.
The sentence against Charles the First, (1648,) after reciting the grounds of his condemnation, concludes in this form:
"For all which treasons and crimes,this court doth adjudge, that he, the said Charles Stuart, as a tyrant, traitor, murderer, and public enemy to the good people of this nation, shall be put to death by the severing his head from his body."
"For all which treasons and crimes,this court doth adjudge, that he, the said Charles Stuart, as a tyrant, traitor, murderer, and public enemy to the good people of this nation, shall be put to death by the severing his head from his body."
The report then adds:
"This sentence being read, the president (of the court) spake as followeth: 'This sentence now read and published, is the act, sentence, judgment and resolution of the whole court.'"—1 Hargrave's State Trials, 1037.
"This sentence being read, the president (of the court) spake as followeth: 'This sentence now read and published, is the act, sentence, judgment and resolution of the whole court.'"—1 Hargrave's State Trials, 1037.
Unless it had been the received "law of the land" that those who tried a man should fix his sentence, it would have required an act of Parliament to fix the sentence of Charles, and his sentence would have been declared to be "the sentence of the law," instead of "the act, sentence, judgment, and resolution of the court."
But the report of the proceedings in "the trial of Thomas, Earl of Macclesfield, Lord High Chancellor of Great Britain, before the House of Lords, for high crimes and misdemeanors in the execution of his office," in 1725, is so full on this point, and shows so clearly that it rested wholly with the lords to fix the sentence, and that the assent of the king was wholly unnecessary, that I give the report somewhat at length.
After being found guilty, the earl addressed thelords, for amitigation of sentence, as follows:
"'I am now to expect your lordships' judgment; and I hope that you will be pleased to consider that I have suffered no small matter already in the trial, in the expense I have been at, the fatigue, and what I have suffered otherways. * * I have paid back 10,800 pounds of the money already; I have lost my office; I have undergone the censure of both houses of Parliament, which is in itself a severe punishment,'" &c., &c.
"'I am now to expect your lordships' judgment; and I hope that you will be pleased to consider that I have suffered no small matter already in the trial, in the expense I have been at, the fatigue, and what I have suffered otherways. * * I have paid back 10,800 pounds of the money already; I have lost my office; I have undergone the censure of both houses of Parliament, which is in itself a severe punishment,'" &c., &c.
On being interrupted, he proceeded:
"'My lords, I submit whether this be not proper inmitigation of your lordships' sentence; but whether it be or not, I leave myself to your lordships' justice and mercy; I am sure neither of them will be wanting, and I entirely submit.' * *"Then the said earl, as also the managers, were directed to withdraw; and the House (of Lords) ordered Thomas, Earl of Macclesfield, to be committed to the custody of the gentleman usher of the black rod; and then proceeded to the consideration of whatjudgment," (that is,sentence, for he had already been foundguilty,) "to give upon the impeachment against the said earl." * *"The next day, the Commons, with their speaker, being present at the bar of the House (of Lords), * * the speaker of the House of Commons said as follows:"'My Lords, the knights, citizens, and burgesses in Parliament assembled, in the name of themselves, and of all the commons of Great Britain, did at this bar impeach Thomas, Earl of Macclesfield, of high crimes and misdemeanors, and did exhibit articles of impeachment against him, and have made good their charge. I do, therefore, in the name of the knights, citizens, and burgesses, in Parliament assembled, and of all the commons of Great Britain, demandjudgment(sentence) of your lordships against Thomas, Earl of Macclesfield, for the said high crimes and misdemeanors.'"Then the Lord Chief Justice King, Speaker of the House of Lords, said: 'Mr. Speaker, the Lords are now ready to proceed to judgment in the case by you mentioned."'Thomas, Earl of Macclesfield, the Lords have unanimously found you guilty of high crimes and misdemeanors, charged on you by the impeachment of the House of Commons, and do now, according to law, proceed tojudgmentagainst you, which I am ordered to pronounce. Their lordships'judgmentis, and this high court doth adjudge, that you, Thomas, Earl of Macclesfield, be fined in the sum of thirty thousand pounds unto our sovereign lord the king; and that you shall be imprisoned in the tower of London, and there kept in safe custody, until you shall pay the said fine.'"—6 Hargrave's State Trials, 762-3-4.
"'My lords, I submit whether this be not proper inmitigation of your lordships' sentence; but whether it be or not, I leave myself to your lordships' justice and mercy; I am sure neither of them will be wanting, and I entirely submit.' * *
"Then the said earl, as also the managers, were directed to withdraw; and the House (of Lords) ordered Thomas, Earl of Macclesfield, to be committed to the custody of the gentleman usher of the black rod; and then proceeded to the consideration of whatjudgment," (that is,sentence, for he had already been foundguilty,) "to give upon the impeachment against the said earl." * *
"The next day, the Commons, with their speaker, being present at the bar of the House (of Lords), * * the speaker of the House of Commons said as follows:
"'My Lords, the knights, citizens, and burgesses in Parliament assembled, in the name of themselves, and of all the commons of Great Britain, did at this bar impeach Thomas, Earl of Macclesfield, of high crimes and misdemeanors, and did exhibit articles of impeachment against him, and have made good their charge. I do, therefore, in the name of the knights, citizens, and burgesses, in Parliament assembled, and of all the commons of Great Britain, demandjudgment(sentence) of your lordships against Thomas, Earl of Macclesfield, for the said high crimes and misdemeanors.'
"Then the Lord Chief Justice King, Speaker of the House of Lords, said: 'Mr. Speaker, the Lords are now ready to proceed to judgment in the case by you mentioned.
"'Thomas, Earl of Macclesfield, the Lords have unanimously found you guilty of high crimes and misdemeanors, charged on you by the impeachment of the House of Commons, and do now, according to law, proceed tojudgmentagainst you, which I am ordered to pronounce. Their lordships'judgmentis, and this high court doth adjudge, that you, Thomas, Earl of Macclesfield, be fined in the sum of thirty thousand pounds unto our sovereign lord the king; and that you shall be imprisoned in the tower of London, and there kept in safe custody, until you shall pay the said fine.'"—6 Hargrave's State Trials, 762-3-4.
This case shows that the principle of Magna Carta, that a man should besentenced onlyby his peers, was in force, and acted upon as law, in England, so lately as 1725, (five hundred years after Magna Carta,) so far as it applied to apeer of the realm.
But the same principle, on this point, that applies to a peer of the realm, applies to every freeman. The only difference between the two is, that the peers of the realm have had influence enough to preserve their constitutional rights; while the constitutional rights of the people have been trampled upon and rendered obsolete by the usurpation and corruption of the government and the courts.
SECTION V.
The Oaths of Judges.
As further proof that the legislation of the king, whether enacted with or without the assent and advice of his parliaments, was of no authority unless it were consistent with thecommon law, and unless juries and judges saw fit to enforce it, it may be mentioned that it is probable that no judge in England was ever sworn to observe the laws enacted either by the king alone, or by the king with the advice and assent of parliament.
The judges were sworn to "do equal law, and execution of right, to all the king's subjects, rich and poor, without having regard to any person;" and that they will "deny no man common right;"[59]but they werenotsworn to obey or execute any statutes of the king, or of the king and parliament. Indeed, they are virtually swornnotto obey any statutes that are against "common right," or contrary to "the common law," or "law of the land;" but to "certify the king thereof"—that is, notify him that his statutes are against the common law;—and then proceed to execute thecommon law, notwithstanding such legislation to the contrary. The words of the oath on this point are these:
"That ye deny no man common right by (virtue of) the king's letters, nor none other man's, nor for none other cause; and in case any letters come to you contrary to the law, (that is, the common law, as will be seen on reference to the entire oath given in the note,)that ye do nothing by such letters, but certify the king thereof and proceed to execute the law,(that is, the common law,)notwithstanding the same letters."
"That ye deny no man common right by (virtue of) the king's letters, nor none other man's, nor for none other cause; and in case any letters come to you contrary to the law, (that is, the common law, as will be seen on reference to the entire oath given in the note,)that ye do nothing by such letters, but certify the king thereof and proceed to execute the law,(that is, the common law,)notwithstanding the same letters."
When it is considered that the king was the sole legislative power, and that he exercised this power, to a great extent, by orders in council, and by writs and "letters" addressed often-times to some sheriff, or other person, and that his commands, when communicated to his justices, or any other person, "by letters," or writs,under seal, had as much legal authority as laws promulgated in any other form whatever, it will be seen that this oath of the justicesabsolutely requiredthat they disregard any legislation that was contrary to "common right," or "the common law," and notify the king that it was contrary to common right, or the common law, and then proceed to execute the common law, notwithstanding such legislation.[60]
If there could be any doubt that such was the meaning of this oath, that doubt would be removed by a statute passed by the king two years afterwards, which fully explains this oath, as follows:
"Edward, by the Grace of God, &c., to the Sheriff ofStafford, greeting: Because that by divers complaints made to us, we have perceived thatthe Law of the Land, which we by our oath are bound to maintain, is the less well kept, and the execution of the same disturbed many times by maintenance and procurement, as well in the court as in the country; wegreatly moved of conscience in this matter, and for this cause desiring as much for the pleasure of God, and ease and quietness of our subjects, as to save our conscience, and for to save and keep our said oath, by the assent of the great men and other wise men of our council, we have ordained these things following:"First, we have commanded all our justices, that they shall from henceforthdo equal law and execution of rightto all our subjects, rich and poor, without having regard to any person,and without omitting to do right for any letters or commandment which may come to them from us, or from any other, or by any other cause. And if that any letters, writs, or commandments come to the justices, or to other deputed to do law and right according to the usage of the realm, in disturbance of the law, or of the execution of the same, or of right to the parties, the justices and other aforesaid shall proceed and hold their courts and processes, where the pleas and matters be depending before them, as if no such letters, writs, or commandments were come to them; and they shall certify us and our council of such commandments which be contrary to the law, (that is, "the law of the land," or common law,)as afore is said.[61]And to the intent that our justices shall do even right to all people in the manner aforesaid, without more favor showing to one than to another, we have ordained and caused our said justices to be sworn, that they shall not from henceforth, as long as they shall be in the office of justice, take fee nor robe of any man, but of ourself, and that they shall take no gift nor reward by themselves, nor by other, privily norapertly, of any man that hath to do before them by any way, except meat and drink, and that of small value; and that they shall give no counsel to great men or small, in case where we be party, or which do or may touch us in any point, upon pain to be at our will, body, lands, and goods, to do thereof as shall please us, in case they do contrary. And for this cause we have increased the fees of the same, our justices, in such manner as it ought reasonably to suffice them."—20 Edward III., ch. 1. (1346.)
"Edward, by the Grace of God, &c., to the Sheriff ofStafford, greeting: Because that by divers complaints made to us, we have perceived thatthe Law of the Land, which we by our oath are bound to maintain, is the less well kept, and the execution of the same disturbed many times by maintenance and procurement, as well in the court as in the country; wegreatly moved of conscience in this matter, and for this cause desiring as much for the pleasure of God, and ease and quietness of our subjects, as to save our conscience, and for to save and keep our said oath, by the assent of the great men and other wise men of our council, we have ordained these things following:
"First, we have commanded all our justices, that they shall from henceforthdo equal law and execution of rightto all our subjects, rich and poor, without having regard to any person,and without omitting to do right for any letters or commandment which may come to them from us, or from any other, or by any other cause. And if that any letters, writs, or commandments come to the justices, or to other deputed to do law and right according to the usage of the realm, in disturbance of the law, or of the execution of the same, or of right to the parties, the justices and other aforesaid shall proceed and hold their courts and processes, where the pleas and matters be depending before them, as if no such letters, writs, or commandments were come to them; and they shall certify us and our council of such commandments which be contrary to the law, (that is, "the law of the land," or common law,)as afore is said.[61]And to the intent that our justices shall do even right to all people in the manner aforesaid, without more favor showing to one than to another, we have ordained and caused our said justices to be sworn, that they shall not from henceforth, as long as they shall be in the office of justice, take fee nor robe of any man, but of ourself, and that they shall take no gift nor reward by themselves, nor by other, privily norapertly, of any man that hath to do before them by any way, except meat and drink, and that of small value; and that they shall give no counsel to great men or small, in case where we be party, or which do or may touch us in any point, upon pain to be at our will, body, lands, and goods, to do thereof as shall please us, in case they do contrary. And for this cause we have increased the fees of the same, our justices, in such manner as it ought reasonably to suffice them."—20 Edward III., ch. 1. (1346.)
Other statutes of similar tenor have been enacted, as follows:
"It is accorded and established, that it shall not be commanded by the great seal, nor the little seal, to disturb or delaycommon right; and though such commandments do come, the justices shall not therefore leave (omit) to do right in any point."—St. 2 Edward III., ch. 8. (1328.)
"It is accorded and established, that it shall not be commanded by the great seal, nor the little seal, to disturb or delaycommon right; and though such commandments do come, the justices shall not therefore leave (omit) to do right in any point."—St. 2 Edward III., ch. 8. (1328.)
"That by commandment of the great seal, or privy seal, no point of this statute shall be put in delay; nor that the justices of whatsoever place it be shall let (omit) to do thecommon law, by commandment, which shall come to them under the great seal, or the privy seal."—14 Edward III., st. 1, ch. 14. (1340.)
"That by commandment of the great seal, or privy seal, no point of this statute shall be put in delay; nor that the justices of whatsoever place it be shall let (omit) to do thecommon law, by commandment, which shall come to them under the great seal, or the privy seal."—14 Edward III., st. 1, ch. 14. (1340.)
"It is ordained and established, that neither letters of the signet, nor of the king's privy seal, shall be from henceforth sent in damage or prejudice of the realm, nor in disturbance of the law" (the common law).—11 Richard II., ch. 10. (1387.)
"It is ordained and established, that neither letters of the signet, nor of the king's privy seal, shall be from henceforth sent in damage or prejudice of the realm, nor in disturbance of the law" (the common law).—11 Richard II., ch. 10. (1387.)
It is perfectly apparent from these statutes, and from the oath administered to the justices, that it was a matter freely confessed by the king himself, that his statutes were of no validity, if contrary to the common law, or "common right."
The oath of the justices, before given, is, I presume, the same that has been administered to judges in England from the day when it was first prescribed to them, (1344,) until now. I do not find from the English statutes that the oath has ever been changed. The Essay on Grand Juries, before referred to, and supposed to have been written byLord Somers, mentions this oath (page 73) as being still administered to judges, that is, in the time of Charles II., more than three hundred years after the oath was first ordained. If the oath has never been changed, it follows that judges have not only never been sworn to support any statutes whatever ofthe king, or of parliament, but that, for five hundred years past, they actually have been sworn to treat as invalid all statutes that were contrary to the common law.
SECTION VI.
The Coronation Oath.
That the legislation of the king was of no authority over a jury, is further proved by the oath taken by the kings at their coronation. This oath seems to have been substantially the same, from the time of theSaxonkings, down to the seventeenth century, as will be seen from the authorities hereafter given.
The purport of the oath is, that the king swearsto maintain the law of the land—that is,the common law. In other words, he swears "to concede and preserve to the English people the laws and customs conceded to them by the ancient, just, and pious English kings, * * and especially the laws, customs, and liberties conceded to the clergy and people by the illustrious king Edward;" * * and "the just laws and customs which the common people have chosen, (quas vulgus elegit)."
These are the same laws and customs which were called by the general name of "the law of the land," or "the common law," and, with some slight additions, were embodied inMagna Carta.
This oath not only forbids the king to enact any statutes contrary to the common law, but it proves that his statutes could be of no authority over the consciences of a jury; since, as has already been sufficiently shown, it was one part of this very common law itself,—that is, of the ancient "laws, customs, and liberties," mentioned in the oath,—that juries should judge of all questions that came before them, according to their own consciences, independently of the legislation of the king.
It was impossible that this right of the jury could subsist consistently with any right, on the part of the king, to impose any authoritative legislation upon them. His oath, therefore,to maintain the law of the land, or the ancient "laws, customs, and liberties," was equivalent to an oath that he would neverassumeto impose laws upon juries, as imperative rules of decision, or take from them the right to try all cases according to their own consciences. It is also an admission that he had no constitutional power to do so, if he should ever desire it. This oath, then, is conclusive proof that his legislation was of no authority with a jury, and that they were under no obligation whatever to enforce it, unless it coincided with their own ideas of justice.
The ancient coronation oath is printed with the Statutes of the Realm, vol. i., p. 168, and is as follows:[62]
TRANSLATION.