ingles- spooner the collected works of vol. 2 (1852-1855) [2010].pdf

7/27/2019 INGLES- SPOONER The Collected Works of vol. 2 (1852-1855) [2010].pdf

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THE ONLINE LIBRARY OF LIBERTY

A Project of Liberty Fund, Inc.

THE COLLECTED WORKS OF LYSANDERSPOONER (1834-1886), IN 5 VOLS.VOL. 2 (1852-1855)


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THE ONLINE LIBRARY OF LIBERTY COLLECTION

This facsimile PDF is published by Liberty Fund, Inc., a non-profit educational foundationestablished to encourage study of the ideal of a society of free and responsible individuals.

It is part of the Online Library of Liberty website which wasestablished in 2004 in order to further the educational goals of Liberty Fund, Inc. To find outmore about the author or title, and to see other titles in the Online Library of LibertyCollection, please visit the OLL website.

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Lysander Spooner (1808-1887)

Lysander Spooner (1808-1887) was a legal theorist,abolitionist, and radical individualist who started hisown mail company in order to challenge the monopolyheld by the US government. He wrote on theconstitutionality of slavery, natural law, trial by jury,intellectual property, paper currency, and banking.

To see other works by this author at the OnlineLibrary of Liberty website:.

ABOUT THE AUTHOR
http://oll.libertyfund.org/person/4664http://oll.libertyfund.org/person/4664


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Volume II (1852-1855) [463 pp.]

11.An Essay on the Trial by Jury (Boston: John P.Jewett and Co., 1852).

12.The Law of Intellectual Property; or An Essay onthe Right of Authors and Inventors to a PerpetualProperty in their Ideas, Vol. 1 (Boston: Bela Marsh,1855).

TABLE OF CONTENTS


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The Collected Works of Lysander Spooner (1834-1886), facsimile PDF in 5volumes in chronological order of year of publication (Indianapolis: LibertyFund, 2010).

Volume I (1834-1850) [473 pp.] Volume II (1852-1855) [463 pp.] Volume III (1858-1862) [ 488 pp.] Volume IV (1863-1873) [ 306 pp.] Volume V (1875-1886) [ 294 pp.]

Volume I (1834-1850) [473 pp.]1.The Deist's Immortality, and an Essay onMan's Accountability for his Belief(Boston, 1834).

2."To the Members of the Legislature ofMassachusetts." Worcester Republican. -Extra. August 26, 1835.

3.The Deist's Reply to the AllegedSupernatural Evidences of Christianity(Boston, 1836).

4.Supreme Court of United States, JanuaryTerm, 1839. Spooner vs. M'Connell, et al.

5.Constitutional Law, relative to Credit,Currency, and Banking (Worcester, Mass.: Jos. B. Ripley, 1843).

6. The Unconstitutionality of the Laws of Congress, Prohibiting Private Mails(New York: Tribune Printing Establishment, 1844).


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7. Poverty: its Illegal Causes and Legal Cure. Part First. (Boston: Bela Marsh,1846).

8. Who caused the Reduction of Postage? Ought he to be Paid? (Boston: Wright

and Hasty's Press, 1850).9. Illegality of the Trial of John W. Webster. (Boston: Bela Marsh, 1850).

10. A Defence for Fugitive Slaves (Boston: Bela Marsh, 1850).

Volume II (1852-1855) [463 pp.]

11.An Essay on the Trial by Jury (Boston:John P. Jewett and Co., 1852).

12.The Law of Intellectual Property; or AnEssay on the Right of Authors andInventors to a Perpetual Property in theirIdeas, Vol. 1 (Boston: Bela Marsh, 1855).


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Volume III (1858-1862) [488 pp.]

13.To the Non-Slaveholders of the South(1858).

14.Address of the Free Constitutionalists tothe People of the United States (Boston:Thayer & Eldridge, 1860).

15.The Unconstitutionality of Slavery(Boston: Bela Marsh, 1860).

16.The Unconstitutionality of Slavery: Part

Second (Boston: Bela Marsh, 1860).

17.A New System of Paper Currency.(Boston: Stacy and Richardson, 1861).

18.Our Mechanical Industry, as Affected byour Present Currency System: An Argument for the Authors New System ofPaper Currency (Boston: Stacy & Richardson, 1862).


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Volume IV (1863-1873) [306 pp.]

19.Articles of Association of the SpoonerCopyright Company for Massachusetts

(1863).20.Considerations for Bankers, andHolders of United States Bonds (Boston:A. Williams & Co., 1864).

21.A Letter to Charles Sumner (1864).

22.No Treason, No. 1 (Boston: Published by

the Author, 1867).

23.No Treason. No II.The Constitution(Boston: Published by the Author, 1867).

24.Senate-No. 824. Thomas Drew vs. JohnM. Clark (1869).

25. No Treason. No VI. The Constitution of No Authority (Boston: Published bythe Author, 1870).

26. A New Banking System: The Needful Capital for Rebuilding the Burnt District(Boston: A. Williams % Co., 1873).


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Volume V (1875-1886) [294 pp.]

27.Vices are Not Crimes: A Vindication ofMoral Liberty (1875).

28.Our Financiers: Their Ignorance,Usurpations, and Frauds. Reprinted fromThe Radical Review (Boston: A. Williams &Co., 1877).

29.The Law of Prices: A Demonstration ofthe Necessity for an Indefinite Increase of

Money. Reprinted from The RadicalReview (Boston: A. Williams & Co., 1877).

30.Gold and Silver as Standards of Value:The Flagrant Cheat in Regard to Them.Reprinted from The Radical

Review (Boston: A. Williams & Co., 1878).

31. Universal Wealth shown to be Easily Attainable (Boston: A. Williams & Co.,1879).

32. No. 1. Revolution: The only Remedy for the Oppressed Classes of Ireland,England, and Other Parts of the British Empire. A Reply toDunraven (Second Edition, 1880).

33. Natural Law; or the Science of Justice: A Treatise on Natural Law, NaturalJustice, Natural Rights, Natural Liberty, and Natural Society; showing that all

Legislation whatsoever is an Absurdity, a Usurpation, and a Crime. Part First.(Boston: A. Williams & Co., 1882).

34. A Letter to Thomas F. Bayard: Challenging his Right - and that of all the OtherSo-called Senators and Representatives in Congress - to Exercise any


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Legislative Power whatever over the People of the United States (Boston:Published by the Author, 1882).

35. A Letter to Scientist and Inventors, on the Science of Justice, and their Right

of Perpetual Property in their Discoveries and Inventions (Boston: Cupples,Upham & Co., 1884).

36. A Letter to Grover Cleveland, on his False Inaugural Address, the Usurpationsand Crimes of Lawmakers and Judges, and the Consequent Poverty,Ignorance, and Servitude of the People (Boston: Benj. R. Tucker, Publisher,1886).


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AN ESSAY

ON TUB

TRIAL BY JURY.

BY LYSANDER SPOONER.

BOSTON:JOHN P. JEWETT A.ND COMPA.NY.

CLEVELAND, OHIO:JEWE'IT, PROCTOR & WORTHINGTON .

1852.

The Online Library of Liberty Page 1


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Eotered accordIDg 10Act o r CoDgreas , Inth e year 1862, byLYSANDER SPOONER,

Inthe C le rk 's O lllA :e of th e D istric t C ou rt o f M assachuse tts .

N OTICE TO EN GLISH PUBLISHERS .The author claims the copyright of this book in England, on Commonlaw principles, without regard to acts of parliament; and if the main

principle of the book itself be true, viz., that no legislation, inconflict withthe Common Law, is of any validity, his claim is a legal one. He forbidsanyone to reprint the book without his consent.

8urool1Pld b1HOBART. ROBBtNS iH nIland T1P- and 8tert011P' Found.".,BOlTON.



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NOTB.This 'Volume. it is presumed by the author. giT. what will generally be

oonsidered I!&tisfactory evidence.- though not all the eTidence,- o C wh&t theCommon Law trial by jury really is. Ina future 'Volume. if it should be calledCOT.it is designed to oonoborate the grounds taken in this igive a ooncise Tieli'of the English constitution ishow the unoonstitutional character of the existinggonrnment in England. and the unoonstitutional means by which the trialby jury has been broken down in PTactice iprole that. neither in England northe United States. have legislatures ever been invested by the people with anyauthority to impair the powers. change the oaths. or (with few exceptions)abridge the jUTfsdiction. of juries. or select jurors on any o~er than CommonLaw principles iand. consequently. that. in both oountries. legislation is stilloonstitutionallY8ubordinate to the discretion and consciences of Common Lawjuries. in all CUllS. both civil and CTiminaI. in which juries sit. The sameTolume will probably also dfscnss several political and legal questions. whichwill naturally assume importance ifthe trial by jury should be reestablished.



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CONTENTS.uo.CHAPTER L THE R IGHT OF JUR IES TO JUDGE OF THE JUS -T ICE OF LAW S , 5

SECTION 1, .5~ON 2 , 11

CHAPTER IT . THE TRIALCARTA ,

SECTION 1.SECTION 2.

BY JURY , A S DEFIN ED BY MAGNA20

The Hiltory of Magna Carta, 20The Language of Magna Carta, 25

CHAPTER m ADD IT ION AL PROOFS OF THE R IGHTS AND DU.TIES OF JURORS , 51SECTION 1. Weaknell of the Regal .Il.uthority,. 51SECTION 2. The .Il.ncientCommon LaIDJurie weremert

Couru of ConlCience, 68SECTION 8. The Oath. of Jwror, 85SECTION 4. The Right of Juror to fi the Sentence, 91SEC'l'lON 5. The Oath. of Judgu, 98SEctION 6. The Coronation Oath, 102

CHAPTER IV. THE R IGHTS A ND DUTIES OF JURIES IN CIVILSUITS , 110

CHA PTER V . O BJE CT IO NS A N SW E RE D, .128CHA PTER VI. JUR IES OF THE PRE SEN T DAY ILLEGA L, 142CHAPTER VII. ILLE GA L JU DG ES , .157CHAPTER vnr, THE FREE ADMIN ISTRA T ION OF JUSTICE , 172CHAPTER IX. TH E CR IM IN AL IN TE NT ,. .178CHAPTER X. MORA L CON SIDERAT ION S FOR JURORS , . 189CHAPTER X I. AUTHOR ITY OF MAGNA CARTA , .192CHAPTER XII. LIM ITA T ION S IMPOSED UPON THE MA JOR ITYBY THE TR IA L BY JURY , 206APPENDIX- TJ.u.TlOll', .222



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TR IAL BY JUR Y .

CHAPTER I.THE RIGHT OF JURIES TO JUDGE OF THE JUSTICE OF LAWS.

SECTION I.FOR more than six hundred years - that is, since MagnaCarta, in 1215 - there has been no clearer principle ofEnglish or American constitutional law, than that, in criminal

cases, it is not only the right and duty of juries to judge whatare the facts, what is the law, and what was the moral intentof the accused j but that it is also their right, and th~ir pri-mary and paramount duty, to judge of the justice of the law,and to hold all laws invalid, that are, in their opinion, unjustor oppressive, and all persons guiltless in violating, or resistingthe e.recution oj, such laws.Unless such be the right and duty of jurors, itis plain that,instead of juries being a IC palladium of liberty II - a barrieragainst the tyranny and oppression of the government - theyare really mere tools in its hands, for carrying into executionany injustice and oppression it may desire to have executed.But for their right to judge of the law, and the justice ofthe law, juries would be no protection to an accused person,even as to matters of fact; for, if the government can dictateto a jury any law whatever, in a criminal case, it cancertainly dictate to them the laws of evidence. 'I'hat is, itcan dictate what evidence is admissible, and what inadmis-sible, and also tohat force or weight is to be given to theevidence admitted. And if the government can thus dictateto a jury the laws of evidence, it can not only make it neces-sary for them to convict on a partial exhibition of the evidencerightfully pertaining to the case, but it can even require them

1*The Online Library of Liberty Page 5


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6 TRIAL BY JURY.to convict on any evidence whatever that it pleases to offerthem.That the rights and duties of jurors must necessarily besuch as are here claimed for them, will be evident when it isconsidered what the trial by jury is, and what is its object." The trial by jUri)," then, is a "trial by the country" -tllat is, by the people - as distinguished from a trial by thegovernment.It was anciently called" trial per pais" - that is, "trial bythe country." And now, in every criminal trial, the jury aretold that the accused "has, for trial, put himself upon thecountry j which country you (the jury) are."The object of this trial" by the country," or by the people,in preference to a trial by the government, is to guard againstevery species of oppression by the government. In order toeffect this end, it is indispensable that the people, or "thecountry," judge of and determine their own liberties againstthe government j instead of the government's judging of anddetermining its own powers over the people. Hoto is it possibleIItatjuries can do anything toprotect the liberties of the peopleagainst the government, if they are not allowed to determinetohat those liberties are?Any government, that is its own judge of, and determinesauthoritatively for the people, what are its own powers over thepeople, is an absolute government of course. It has all thepowers that itchooses to exercise. There is no other - or atleast no more accurate-definition of a despotism than this.On the other hand, any people, that judge of, and determineauthoritatively for the government, what are their own libertiesagainst the government, of course retain all the liberties theywish to enjoy. And this is freedom. At least, it is freedomto them; because, although it may be theoretically imper-fect, it, nevertheless, corresponds to their highest notions offreedom.To secure this right of the people to judge of their ownliberties against the government, the jurors are taken, (or mustbe, to make them lawful jurors,) from the body of the people, bylot, or by some process that precludes any previous knowledge,choice, or selection of them, on the part of the government.



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JURIES JUDG&SOF THE JUSTICE OF LAWS. 7This is done to prevent the government's constituting a juryof its own partisans or friends; in other words, to prevent thegovernment's packing a jury, with a view to maintain its ownlaws, and accomplish its own purposes.It is supposed that, if twelve men be taken, by lot, from the

mass of the people, without the possibility of any previousknowledge, choice, or selection of them, on the part of thegovernment, the jury will be a fair epitome of "the country IIat large, and not merely of the party or faction that sustainthe measures of the government; that substantially all classesof opinions, prevailing among the people, will be representedin the jury; and especially that the opponents of the gov-ernment, (if the government have any opponentsj will be repre-eented there, as well as its friends; that the classes, who areoppressed by the laws of the government, (if any are thusoppressed.') will have their representatives in the jury, as wellas those classes, who take sides with the oppressor - that is,with the government.It is fairly presumable that such a tribunal will agree to noconviction except such as substantially the whole countrywould agree to, if they were present, taking part in the trial.A trial by such a tribunal is, therefore, in effect, "a trial bythe country." In its results it probably comes as near to atrial by the whole country, as any trial that it is practicableto have, without too great inconvenience and expense. Andns unanimity is required for a conviction, it follows that noone can be convicted, except for the violation of such laws assubstantially the whole country wish to have maintained.The government can enforce none of its laws, (b y punishingoffenders, through the verdicts of juries,) except such as sub-stantially the whole people wish to have enforced. The gov-ernment, therefore, consistently with the trial by jury, canexercise no powers over the people, (or, what is the samething, over the accused person, who represents the rights ofthe people,) except such as substantially the whole peopleof the country consent that it may exercise. In such a trial,therefore, "the country," or the people, judge of and determinetheir own liberties against the government, instead of the



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8 TRIAL BY JURY.government's judging of and determining its own powers overthe people.But all this" trial by the country" would be no trial at all"by the country," but only a trial by the .government, if thegovernment could either declare who may, and who may not,be jurors, or could dictate to the jury anything whatever,either of law or evidence, that is of the essence of the trial.If the government may decide who may, and who may not,be jurors, it will of course select only its partisans, and thosefriendly to its measures. It may not only prescribe who may,and who may not, be eligible to be drawn as jurors j but it mayalso question each person drawn as a juror, as to his senti-ments in regard to the particular law involved in each trial,before suffering him to be sworn on the panel j and excludehim if he be found unfavorable to the maintenance of such alaw."*'So, also, if the government may dictate to the jury whatlaue they are to enforce, it is no longer a "trial by the country," To show that this supposition is not an extravagant one, it may he mentioned that

courts have repeatedly questioned jurors to ascertain whether they were prejudicedagainst tht govemmeni - that is, whether they were in favor of, or opposed to, such lawsof the government 11$ were to be put in issue in the then pending trial. This was done(in ISSI) in the United States District Court for the District of Massachnse.tts, by PelegSprague, the United States district judge, in empanelling three several juries forthe trials of Scott, Hayden, and lIIorris, charged with having aided in the rescue of afugitive slave from the custody of the United States deputy marshal. This judgeeause-I the following question to he propounded to al\ the jurors separately; and tbosewho answered unfavorably for the purposes of the government, were excluded from thepanel.IID" you hold a.ny opinions upon the snbject of the Fugitive Slave Law, so called,which Ivill induce you to refuse to convict a persou indicted under it, if the facts Betforth in the Indictment, and constituting tM offen", are proved against him, and thecourt direct you tbat the law is constitutional1"Tho reason of this question was, that IIthe Fugitive Slave Law, so eallcd;" was 80

obnoxious to a large portion of the people, as to render a conviction nuder it hopeless,if the jurors were taken indiscriminately from among the people.A similar question was soon afterwards propounded to the persons drawn as jurors in

the United States Circuit Court for the District of Massachusetts, by llenjamin R.Curti', one of the Justices of the Supreme Court of the United States, in empanelllaga j.r y for the trial of tho aforesald lIIorris on the charge before mentioned; and thosewho .lid not answer the question favorably for tho government were again excludedfrom the panel.It has also been an habitual practice with the Supreme Court of lIfo.ssnchusetts, in

empaaelllng; juries for tho trial of capital offences, to inquire of the persons drawn asJurors whether they had any conscientious scruples against finding verdicts of guilty



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JUltlES JUDGES OF THE lUSTICE OF LAWS. 9but a trial by the government j because the jury then try theaccused, not by any standard of their own-not by theirown judgments of their rightful liberties - but by a standarddictated to them by the government. And the standard, thusdictated by the government, becomes the measure of the peo-ple's liberties. If the government dictate the standard of trial,it of course dictates the results of the trial. And such a trialis no trial by the country, but only a trial by the government jand in it the government determines what are its own poweraover the people, instead of the people's determining what an:their own liberties against the government. In short, if thejury have no right to judge of the justice of a law of the gov-ernment, they plainly can do nothing to protect the peopleagainst the oppressions of the government j for there are nooppressions which the government may not authorize by law.'I'he jury are also to judge whether the laws are rightly ex-pounded to them by the court. Unless they judge on thispoint, they do nothing to protect their liberties against theoppressions that are capable of being practised under cover ofa corrupt exposition of the laws. Ifthe judiciary can authori-tatively dictate to a jury any exposition of the law, they candictate to them the law itself, and such laws as they pleaseibecause laws are, in practice, one thing or another, accordingas they are expounded.in such cases; that is, whether they had any conscientious ICrUplesa.ga.Inst8 U 1 1 t . a i n i n gthe I&wprescribing death II.'! the punishment of the crime to be tried; and to exoludefrom the panel &IIwho answered in the affirmative.The only principle upon which these questions are asked, is this-that no man Ihall

be allowed to serve II.'! juror, unless he be ready to enforce any enactment of the goT.ernment, however cruel or tyrannical it may be.What is such a jury good for, &8 a protection against the tyranny of the goTern,

ment 1 A jury like that is p&Ipably nothing but a mere Wol of oppresaion in thehands of the government. A trial by such a jury is really & tri&lby the governmentitself-and not a trial by the country - because it is a tri&l only hy men speci&llTselected by the government for their readiness to enforce its own tyrannic&l measures.Ithat be the true principle of the trial by jury, the trW ill utterly worthless as asecurity to liberty. The Czar might, with perfect safety to his authority, introduce theirial by jury into Rusaia, ifhe could but be permitted to seleot his juron from thOlewho were ready to maint&ln hill I&W8,without regard to their injustice.This example ill sufficient to show that the very pith of the tri&I by jury, &8 a .fe-

U & r d to liberty, consists in the joron being taken indiaoriminately from the wholepeople, and in their right to hold invalid aUI&W8which theT think unjust.



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10 TRIAL BY JURY.The jury must also "judge whether there really be any such

law, (be it good or bad,) as the accused is charged withhaving transgressed. Unless they judge on this point, thepeople are liable to have their liberties taken from them bybrnte force, without any law at all.The jury must also judge of the laws of evidence. If thegovernment can dictate to a jury the laws of evidence, it cannot only shut out any evidence itpleases, tending to vindicatethe accused, but it can require that any evidence whatever,that it pleases to offer, be held as conclusive proof of anyoffence whatever which the government chooses to allege.It is manifest, therefore, that the jury must judge of and trythe whole case, and every part and parcel of the case, freeof any dictation or authority on the part of the government.They must judge of the existence of the law; of the trueexposition of the law j of the justice of the law j and of theadmissibility and weight of all the evidence offered j otherwisethe government will have everything its own way; the jurywill be mere puppets in the hands of the government; and thetrial will be, in reality, a trial by the government, and not a"trial by the country." By such trials the government willdetermine its own powers over the people, instead of the peo-ple's determining their own liberties against the government;and it will be an entire delusion to talk, as for centuries wehave done, of the trial by jury, as a "palladium of liberty,"or as any protection to the people against the oppression andtyranny of the government.The question, then, between trial by jury, as thus described,and trial by the government, is simply a question betweenliberty and despotism. The authority to judge what are thepowers of the government, and what the liberties of the people,must necessarily be vested in one or the other of the partiesthemselves - the government, or the people j because there isno third party to whom it can be entrusted. If the authoritybe vested in the government, the government is absolute, andthe people have no liberties except such as the governmentsees fit to indulge them with. If, on the other hand, thatauthority be vested in the people, then the people have allliberties, (as against the government.) except such a&substan-



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JURIES JUDGES OF THE JUSTICE OF LAWS. 11tially the whole people (through a jury) choose to disclaimiand the government can exercise no power except such assubstantially the whole people (through a jury) consent thatit may exercise.

SECTION II.The force and justice of the preceding argument cannot beevaded by saying that the government is chosen by the people jthat, in theory, it represents the peopleithat it is designed to

do the will of the people j that its members are all sworn toobserve the fundamental or constitutional law instituted bythe peopleithat its acts are therefore entitled to be consideredthe acts of the people j and that to allow a jury, representingthe people, to invalidate the acts of the government, wouldtherefore be arraying the people against themselves.There are two answers to such an argument.One answer is, that, in a representative government, thereis ~o absurdity or contradiction, nor any arraying of the peopleagainst themselves, in requiring that the statutes or enactmentsof the government shall pass the ordeal of auy number of sep-arate tribunals, before it shall be determined that they are tohave the force of laws. Our American constitutions haveprovided five of these separate tribunals, towit, representatives,senate, executive, jury, and judges iand have made it neces-sary that each enactment shall pass the ordeal of all theseseparate tribunals, before its authority can be established bythe punishment of those who choose to transgress it. Andthere is no more absurdity or inconsistency in making a juryone of these several tribunals, than there is in making the rep-resentatives, or the senate, or the executive, or the judges, oneof them. There is no more absurdity in giving a jury a vetoupon the laws, than there is in giving a veto to each of theseother tribunals. The people are no more arrayed againstthemselves, when a jury puts its veto upon a statute, whichthe other tribunals have sanctioned, than they are when the The executive has a qualilled veto upon the p a . s s & g e of laws, In most o r our govern-

meny, and an absolute veto, in al1 of them, upon the execution of any lawl which hedeems unconstitutional; because his oath to support the constitution ( 1 1 0 8 he understana.it) forbids him to execute any law that he deems unoonltitutionaL



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12 TRIAL BY JURY.same veto is exercised by the representatives, the senate, theexecutive, or the judges.J ~dt another answer to the argument that the people arearrayed against themselves, when a jury hold an enactmentof the government invalid, is, that the government, and all thedepartments of the government, are merely the servants anaagents of the people; not invested with arbitrary or absoluteauthority to bind the people, but required to submit all theirenactments to the judgment of a tribunal more fairly repre-senting the whole people, before they carry them into exe-cution, by punishing any individual for transgressing them.If the government were not thus required to submit theirenactments to the judgment of "the country," before exe-cuting them upon individuals-if, in other words, the peoplehad reserved to themselves no veto upon the acts of the gov-ernment, the government, instead of being a mere servantand agent of the people, would be an absolute despot over thepeople. Itwould have all power in its own hands; becausethe power to punish carries all other powers with it. Apower that can, of itself, and by its own authority, punishdisobedience, can compel obedience and submission, and isabove all responsibility for the character of its laws. Inshort, it is a despotism.And it is of no consequence to inquire how a governmentcame by this power to punish, whether by prescription, byinheritance, by usurpation, or by delegation from the people'!1f it have 1l0W but got it, the government is absolute.It is plain, therefore, that if the people have invested thegovernment with power to make laws that absolutely bindthe people, and to punish the people for transgressing thoselaws, the people have surrendered their liberties unreservedlyinto the hands of the government.It is of no avail to say, in answer to this view of the case,that in surrendering their liberties into the hands of the gov-ernment, the people took an oath from the government, that itwould exercise its power within certain constitutional limitsiorwhen did oaths ever restrain a government that was otherwiseunrestrained? Or when did a government fail to determinethat all its acts were within the constitutional and authorized



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JURIES JUDGES OF THE JUSTICE OF LAWS. 13limits of its power, if it were permitted to determine thatquestion for itself"!Neither is it of any avail to say, that, if the governmentabuse its power, and enact unjust and oppressive laws, thegovernment may be changed by the influence of discussion,and the exercise of the right of suffrage. Discussion can donothing to prevent the enactment, or procure the repeal, ofunjust laws, unless it be understood that the discussion is tobe followed by resistance. Tyrants care nothing for discus-sions that are to end ouly in discussion. Discussions, whichdo not interfere with the enforcement of their laws, are butidle wind to them. Suffrage is equally powerless and unre-liable. It can be exercised only periodically j and the tyrannymust at least be borne until the time for suffrage comes. Be-sides, when the suffrage is exercised, it gives no guaranty forthe repeal of existing laws that are oppressive, and no securityagainst the enactment of new ones that are equally so. Thesecond body of legislators are liable and likely to be just astyrannical as the first. If it be said that the second bodymay be chosen for their integrity, the answer is, that the firstwere chosen for that very reason, and yet proved tyrants.The second wiII be exposed to the same temptations as thefirst, and will be just as likely to prove tyrannical. Whoever heard that succeeding legislatures were, on the whole,more honest than those that preceded them 1 What is therein the nature of men or things to make them so1 Ifitbe saidthat the first body were chosen from motives of injustice, thatfact proves that there is a portion of society who desire toestablish injustice j and if they were powerful or artful enoughto procure the election of their instruments to compose thefirst legislature, they will be likely to be powerful or artfulenough to procure the election of the same or similar instru-ments to compose the second. The right of suffrage, therefore,and even a change of legislators, guarantees no change of legis-lation - certainly no change for the better. Even if a changefor the better actually comes, it comes too late, because it comesonly after more or less injustice has been irreparably done.But, at best, the right of suffrage can be exercised only pe-riodically j and between the periods the legislators are wholly2



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14 TRIAL BY JURY.irresponsible. No despot was ever more entirely irresponsiblethan are republican legislators during the period for whichthey are chosen. They can neither be removed from theiroffice, nor called to account while in their office, nor punishedafter they leave their office, be their tyranny what it may.Moreover, the judicial and executive departments of the gov-ernment are equally irresponsible to the people, and are onlyresponsible, (by impeachment, and dependence for their sala-ries), to these irresponsible legislators. This dependence ofthe judiciary and executive upon the legislature is a guarantythat they will always sanction and execute its laws, whetherjust or unjust. Thus the legislators hold the whole powerof the government in their hands, and are at the same timeutterly irresponsible for the manner in which they use it.If, now, this government, (the three branches thus reallyunited in one), can determine the validity of, and enforce, itsown laws, it is, for the time being, entirely absolute, andwholly irresponsible to the people.But this is not all. These legislators, and this government,so irresponsible while in power, can perpetuate their powerat pleasure, if they can determine what legislation is author-itati ve upon the people, and can enforce obedience to it j forthey can not only declare their power perpetual, but they canenforce submission to all legislation that is necessary to secureits perpetuity. They can, for example, prohibit all discussionof the rightfulness of their authority j forbid the nse of the suf-

frage j prevent the election of any successors j disarm, plunder,imprison, and even kill all who refuse submission. If, there-fore, the government (all departments united) be absolute for aday- that is, if it can, for a day, enforce obedience to its ownlaws-it can, in that day, secure its power for all time-likethe queen, who wished to reign but for a day, but in that daycaused the king, her husband, to be slain, and usnrped his throne.Nor will it avail to say that such acts would be unconstitu-tional, and that unconstitutional acts may be lawfully resisted;for everything a government pleases to do will, of course, bedetermined to be constitutional, if the government itself be per-mitted to determine the question of the constitutionality of itsown acts. Those who are capable of tyranny, are capable ofperjury to sustain it.



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.JURtES JUDGES OF THE JUSTICE OF LAWS. 15The conclusion, therefore, is, that any government, that call,

for a day, enforce its own laws, without appealing to the peo-ple, (or to a tribunal fairly representing the people,) for theirconsent, is, in theory, an absolute government, irresponsible tothe people, and. can perpetuate its power at pleasure.The trial by jury is based. upon a recognition of this prin-ciple, and therefore forbids the government to execute any ofits laws, by punishing violators, in any case whatever, with-out first getting the consent of "the country," or the people,through a jury. In this way, the people, at all times, holdtheir liberties in their own hands, and. never surrender them,evcn for a moment, into the hands of the government.The trial by jury, then, gives to any and every individualthe liberty, at any time, to disregard. or resist any law' what-ever of the government, if he be willing to submit to thedecision of a jury, the questions, whether the law be intrin-sically just and obligatory ~ and whether his conduct, in disre-garding or resisting it, were right in itself'] And. any law,which does not, in such trial, obtain the unanimous sanctionof twelve men, taken at random from the people, and judgingaccording to the standard of justice in their own minds, freefrom aU dictation and authority of the government, maybe transgressed and resisted with impunity, by whomsoeverpleases to transgress or resist it.'*'The trial by jury authorizes all this, or it is a sham anda hoax, utterly worthless for protecting the people againstoppression. If itdo not authorize an individual to resist thefirst and least act of injustice or tyranny, on the part of thegovernment, it does not authorize him to resist the last and thegreatest. If it do not authorize individuals to nip tyranny inthe bud, itdoes not authorize them to cut it down when itsbranches are filled with the ripe fruits of plunder andoppression.Those who deny the right of a jury to protect an individualin resisting an unjust law of the government, deny him all And if there be 60 much as a. reaaon&ble d c I C U o r the justiee o r the la.ws, the

benefit of tha.t doubt must be given to the defenda.nt, a.nd not to the government. Sotha.t the government must keep its laws dearly wUhin the limits of justice, if itwouldask 8. jUl')' to enrolee them.



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16 TRIAL BY JURY.legal defence whatsoever against oppression. The right ofrevolution, which tyrants, in mockery, accord to mankind, isno legal right under a government j it is only a natural rightto overturn a government. The government itself neveracknowledges this right. And the right is practically estab-lished only when and because the government no longer existsto call it ill question. The right, therefore, can he exercisedwith impunity, only when it is exercised victoriously. Allunsuccessful attempts at revolution, however justifiable inthemselves, are pnuished as treason, if the government bepermitted to judge of the treason. The government itselfnever admits the injustice of its laws, as a legal defence forthose who have attempted a revolution, and failed. The rightof revolution, therefore, is a right of no practical value, exceptfor those who are stronger than the government. So long,therefore, as the oppressions of a government are kept withinsuch limits as simply not to exasperate against it a power. greater than its own, the right of revolution cannot beappealed to, and is therefore inapplicable to the case". Thisaffords a wide field for tyranny iand if a jury cannot !tcreintervene, the oppressed are utterly defenceless., It is manifest that the only security against the tyranny ofthe government lies in forcible resistance to the execution ofthe injustice j because the injustice will certainly be executed,unless it be jarcibly resisted. And if it be hut suffered to beexecuted, it must then be borne j for the government nevermakes compensation for its own wrongs.Since, then, this forcible resistance 10 the injustice of thegovernment is the only possible means of preserving liberty,it is indispensable to all legal liberty that this resistanceshould be legalized. It is perfectly self-evident that wherethere is no legal right to resist the oppression of the govern-ment, there can be no legal liberty. And here it is all-impor-tant to notice, that, practically speaking, there can be no legalright to resist the oppressions of the government, unless therebe some legal tribunal, other than the government, and whollyindependent of, and above, the government, to judge betweenthe government and those who resist its oppressions j in otherwords, to judge what laws of the government are to be



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JURIES JUDGES OF THE .JUSTICE OF LA.WS. 17obeyed, and what may be resisted and held for nought. Theonly tribunal known to our laws, for this purpose, is a j l 1 1 ' Y ,Ifa jury have not the right to judge between the governmentand those who disobey its laws, and resist its oppressions, thegovernment [s absolute, and the people, legally speaking, areslaves. Like many other slaves they may have sufficientcourage and strength to keep their masters somewhat incheck; but they are nevertheless launon. to the law only asslaves.That this right of resistance was recognized as a commonlaw right, when the ancient and genuine trial by jury was inforce, is not only proved by the nature of the trial itself, butis acknowledged by history.'*'This right of resistance is recognized by the constitution ofthe United States, as a strictly legal and constitutional right.

It is so recognized, first by the provision that" the trial of allcrimes, except in cases of impeachment, shall be by jury"-that is, by the country'-and not by the government; sec-ondly, by the provision that" the right of the people to keepand bear arms shall not be infringed." This constitutionalsecurity for" the right to keep and bear arms," implies theright to use them-as much as a constitutional security forthe right to buy and keep food would have implied the rightto eat it. The constitution, therefore, takes it for granted that Hallam says, "The relation established between a lord and hls vassal by the feudaltenure, far from containing principles of any fervilo and implicit obedience, permitted

the compact to be dissolved in ease of its viola.tion by either party. This extended asmuch to the sovereign as to inferior lords. * Ifa vassal WIlSaggrieved, and ifjustice was deUied him, he sent a defiance, that is, a . renunciation of fealty to the king,And was entitled to enforce redress at the point of his sword. Ithen became a contestof strength as between two independent potentates, and was terminated by treaty,advantageous or otherwise, a.ccording to the fortune of war. * Thero remainedthe original principle, that allegiance depended eonditionally upon good treatment, andthat an appeal might be lawfully made to arms against an oppressive govemment. Norwas this. we may be lure. left for extreme necessity, or thought to require a long-enduring forbearance. In modem times, a king, compelled by his subjects' swords toabandon any pretension, would be supposed to have ceased to reign; and the expressrecognition of such a right as that of insurrection hIlSbeen justly deemed inconsistentwith the majesty of law. But ruder ages had ruder sentiments, Foreo was necessaryto repel force; and men aceustomed to see the kiDg'S authority defied by a privato riot,were not much shocked when it was resisted in defence of publlo freedom," -3li.ddl.Ap, 240-2.



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18 TRIAL BY JURY.the people will judge of the conduct of the government, and'that, as they have the right, they will also have the sense, touse arms, whenever the necessity of the case justifiea it. Andit is a sufficient and legal defence for a person accused ofusing arms against the government, if he can show, to thesatisfaction of a jury, or even anyone of a jury, that the lawhe resisted was an unjust one.In the American State constitutions also, this right of resist-ance to the oppressions of the government is recognized, in

various ways, as a natural, legal, and constitutional right. Inthe first place, it is so recognized by provisions establishingthe trial by jury ithus requiring that accused persons shall betried by IIthe country," instead of the government. In thesecond place, it is recognized by many of them, as, forexample, those of Massachusetts, Maine, Vermont, Connect-icut, Pennsylvania, Ohio, Indiana, Michigan, Kentucky, Ten-nessee, Arkansas, Mississippi, Alabama, and Florida, byprovisions expressly declaring that the people shall have theright to bear arms. In many of them also, as, for example,those of Maine, New Hampshire, Vermont, Massachusetts,New Jersey, Pennsylvania, Delaware, Ohio, Indiana, Illinois,Florida, Iowa, and Arkansas, by provisions, in their bills ofrights, declaring that men have a natural, inherent, andinalienable right of IIdefending their lives and liberties."This, of course, means that they have a right to defend themagainst any injustice on the part of the government, and notmerely on the part of private individuals ibecause the objectof all bills of rights is to assert the rights of individuals andthe people, as against the government, and not as againstprivate persons. It would be a matter of ridiculous superero-gation to assert, in a constitution of government, the naturalright of men to defend their lives and liberties against privatetrespassers.Many of these bills of rights also assert the natural rightof all men to protect their property - that is, to protect itagainst the government. It would be unnecessary and sillyindeed to assert, in a constitution of government, the naturalright of individuals to protect their property against thievesand robbers. .



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JURIES JUDGES OF THE JUSTICE OF LAWS. 19The constitutions of New Hampshire and Tennessee alsodeclare that" The doctrine of non-resistance against arbitrarypower and oppression is absurd, slavish, and destructive ofthe good and happiness of mankind."The legal effect of these constitutional recognitions of theright of individuals to defend their property, liberties, and lives,against the government, is to legalize resistance to all injusticeand oppression, of every name and nature whatsoever, on thepart of the government.But for this right of resistance, on the part of the people,all governments would become tyrannical to a degree of whichfew people are aware. Constitutions are utterly worthless torestrain the tyranny of governments, unless it be understoodthat the people will, by force, compel the government to keepwithin the constitutional limits. Practically speaking, nogovernment knows any limits to its power, except theendurance of the people. But that the people are stronger

than the government, and will resist in extreme cases, our gov-ernments would be little or nothing else than organized systemsof plunder and oppression. All, or nearly all, the advantagethere is in fixing any constitutional limits to the power of agovernment, is simply to give notice to the government of thepoint at which itwill meet with resistance. If the people arethen as good as their word, they may keep the governmentwithin the bounds they have set for itj otherwise it will disre-gard them - as is proved by the example of all our Americangovernments, in which the constitutions have all become obso-lete, at the moment of their adoption, for nearly or quite allpurposes' except the appointment of officers, who at oncebecome practically absolute, except so far as they are restrainedby the fear of popular resistance.'I'he bounds set to the power of the government, by the trialby jury, as will hereafter be shown, are these- that the gov-ernment shall never touch the property, person, or natural orcivil rights of an individual, against his consent, (except forthe purpose of bringing them before a jury for trial.) unless inpursuance and execution of a judgment, or decree, renderedby a jury in each individual case, upon such evidence, andsuch law, as are satisfactory to their own understandings andconsciences, irrespective of all legislation of the government.



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

THATthe trial by jury is all that has been claimed for it inthe preceding chapter, is proved both by the history and thelanguage of the Great Charter of English Liberties, to whichwe are to look for a true definition of the trial by jury, andof which the guaranty for that trial is the vital, and mostmemorable, part.SECTION I.

The History of Magna Carta.In order to judge of the object and meaning of that chapterof l\Iagna Carta which secures the trial by jury, it is to beborne in mind that, at the time of Magna Carta, the king (withexceptions immaterial to this discussion, but which will appearhereafter) was, constitutionally, the entire government j thesole legislaiice, judicial, and executive power of the nation.The executive and judicial officers were merely his servants,appointed by him, and removable at his pleasure. In additionto this, " the king himself often sat in his court, which alwaysattended his person. He there heard causes, and pronouncedjudgment j and though he was assisted by the advice of othermembers, it is not to be imagined that a decision could beobtained contrary to his inclination or opinion."* Judgeswere in those days, and afterwards, such abject servants ofthe king, that 1\we find that King Edward I. (1272 to 1307)fined and imprisoned his judges, in the same manner as Alfredthe Great, among the Saxons, had done before him, by the ~sole exercise of his authority."t

1 Bame, A ppendix 2. t Crabbe'.lIiItory of the Engliah Law, 236.



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HISTORY OF lIUGNA CARTA. 21Parliament, so far as there was a parliament, was a mere

council of the king.* Itassembled only at the pleasure of theking ; sat only during his pleasure; and when sitting had nopower, so far as general legislation was concerned, beyondthat of simply advising the king. The only legislation towhich their assent was constitutionally necessary, was demandsfor money and military services for extraordinary occasions.Even Magna Carta itself makes no provisions whatever forany parliaments, except when the king should want means-tocarryon war, or to meet some other extraordinary necesslty.jHe had no need of parliaments to raise taxes for the ordinarypurposes of government; for his revenues from the rents of thecrown lands and other sources, were ample for all exceptextraordinary occasions. Parliaments, too, when assembled,consisted only of bishops, barons, and other great men of thekingdom, unless the king chose to invite others.L There wasno Honse of Commons at that time, and the people had noright to be heard, unless as petitioners.S

Coke says," The king of Eng\a.nd is armed with divers councils, one whereof isco.l1edcommunt concilium, (the common council,) and that 1 a the court of par1iament,and so it 1 a ltgally called in writs and judicial prooeedings commune """cilium rtpl.Anglia, (the common council of the kingdom of England.) And another 1 a calledmagnum concilium, (great council;) this is sometimea applied to the upper house ofparliament, and sometimes, out of parliament time, to the peers of the realm, lords ofpar1iament, who lorecalled magnum concilium regil, (the great council of the king;) Thirdly, (& 8 every man knoweth,) the king hath a.privy council for matters ofstate. The fourth council of the king are his judges for law matters."1 Coh'. l""tilult., 110 II.tThe Grea.t Chmer of Henry m., (1216 and 1225,) confirmed hy Edward I., (l297,)makes no proMon wha.tever for, or mention of, a par1iament, unless the provlaion.(Ch. 37,) that .. Escuage, (a.military contributiou,) from henceforth shall be ta.ken likeloS it was wont to be in the time of King Henry our gre.ndfather," mean that a.parlia-ment shall be summoned for that purpose.

:j : The Magna. Carta. of John, (l:h. 17 and 18,) defines those who were entitled to be8UIDIDonedo parliament, to wit, .. The .Archhishops, Bishops, Abbots, Ea.rls, and Greatlla.rons of the Realm, and aU others who hold of us in chiif." Those who heldland of the king in cAiifincluded none below the rank of knights.The pa.rliaments of that time were, doubtless, suoh 1'8 Carlyle dcecribes them, when

he -ys, .. The par1iament was at first a most simple IWemblage, quite cognate to theaitua.tion; that Red William, or whoever had taken on him the terrible task of beingKing of England, was wont to invite, ollenest about Christmas time, his snbordina.teKinglets, Barons as he called them, to give him the pleasure of their compa.ny for aweek or two j there, in earneat conference a.ll morning, in reer talk over CbrIItmai



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22 TRIAL BY JURY.Even when laws were made at the time of a parliament,

they were made in the name of the king alone. Sometimesit was inserted in the laws, that they were made with theconsent or advice of the bishops, barons, and others assem-bled; but often this was omitted. Their consent or advicewas evidently a matter of no legal importance to the enact-ment or validity of the laws, but only inserted, when insertedat all, with a view of obtaining a more willing submissionto them on the part of the people. The style of enactmentgenerally was, either" The King wills and commands," orsome other form significant of the sole legislative authorityof the king. The king could pass laws at any time when itpleased him. The presence of a parliament was wholly un-necessary. Hume says, "It is asserted by Sir Harry Spelman,as an undoubted fact, that, during the reigns of the Normanprinces, every order of the king, issued with the consent of hisprivy council, had the full force of law.":\1=And other author-ities abundantly corroborate this assertion.]The king was, therefore, constitutionally the government;and the only legal limitation upon his power seems to havebeen simply the CMTIImOnLaw, usually called" the law of theland," which he was bound by oath to maintain j (which oathhad about the same practical value as similar oaths havealways had.) This" law of jhe land" seems not to havebeen regarded at all by many of the kings, except so far asthey found it convenient to do so, or were constrained toobserve it by the fear of arousing resistance. But as all peopleare slow in making resistance, oppression and usurpation oftenreached a great height; and, in the case of John, they hadbecome so intolerable as to enlist the nation almost universallyagainst him; and he was reduced to the necessity of com-plying with any terms the barons saw fit to dictate to him.It was under these circumstances, that the Great Charter ofcheer all evaDIng, in lIOD1ebig royal hall o C Weatmln.lter, W!nchellter, or wherever U --might be, willi log fireII, huge rounds o C rout and boned, not laoklng malmIey andother generolll liquor, the,. took co1lJll81concerning the IIZ'CIU01ll maUen o C thekingdom."

.. H llJIle , A ppeudix 2.tThlI point will be more full,. eetablilhed hereafter.



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HISTORY OF l\lAGNA CARTA. 23English Liberties was granted. The barons of England, sus-tained b y the common people, having their king in theirpower, compelled him, as the price of his throne, to pledgehimself that he would punish 110 freeman for a violation ofany of his laws, unless with the consent of the peers- thatis, the equals - of the accused.The question here arises, Whether the barons and peopleintended that those peers (the jury) should he mere puppetsin the hands of the king, exercising no opinion of their ownas to the intrinsic merits of the accusations they should try, orthe justice of the laws they should be called on to enforce'!Whether those haughty and victorious barons, when they hadtheir tyrant king at their feet, gave back to him his throne,with full power to enact any tyrannical laws he might please,reserving only to a jnry (" the country ") the contemptibleand servile privilege of ascertaining, (under the dictation ofthe king, or his judges, as to the laws of evidence), thesimple fact whether those laws had been transgressed'! Wasthis the only restraint, which, when they had all power intheir hands, they placed upon the tyranny of a king, whoseoppressions they had risen in arms to resist'! Was it to obtainsuch a charter as that, that the whole nation had united, as itwere, like one man, against their king'! Was it on such acharter that they intended to rely, for all future time, for thesecurity of their liberties'! No. They were engaged in nosuch senseless work as that. On the contrary, when theyrequired him to renounce forever the power to punish anyfreeman, unless by the consent of his peers, they intendedthose peers should judge of, and try, the whole case on itsmerits, independently of all arbitrary legislation, or judicialauthority, 011 the part of the king. In this way they took theliberties of each individual- and thus the liberties of thewhole people-entirely out of the hands of the king, and outof the power of his laws, and placed them in the keeping ofthe people themselves. And this it was that made the trialby jury the palladium of their liberties.The trial by jury, be it observed, was the only real barrierinterposed by them against absolute despotism. Could thistrial, then, have been such an entire farce as it necessarily



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24 TRIAL BY JURY.must have been, if the jury had had no power to judge of thejustice of the laws the people were required to obey I Did itnot rather imply that the jury were to judge independentlyand fearlessly as to everything involved in the charge, andespecially as to its intrinsic justice, and thereon give theirdecision, (unbiased by any legislation of the king,) whetherthe accused might be punished 1 The reason of the thing, noless than the historical celebrity of the events, as securing theliberties of the people, and the veneration with which the trialby jury has continued to be regarded, notwithstanding itsessence and vitality have been almost entirely extracted fromit in practice, would settle the question, if other evidences hadleft the matter in doubt.Besides, if his laws were to be authoritative with the jury,why should John indignantly refuse, as at first he did, togrant the charter, (and finally grant it only when brought tothe last extremity,) on the ground that it deprived him of allpower, and left him only the name of a king l He evidentlyunderstood that the juries were to veto his laws, and paralyzehis powcr, at discretion, by forming their own opinions as tothe true character of the offences they were to try, and thelaws they were to be called on to enforce j and that IIthekillg wills and commands" was to have no weight with themcontrary to their own judgments of what was intrinsicallyright.*The barons and people having obtained by the charter allthe liberties they had demanded of the king, it was furtherts pill-in that theking and all his partisans looked upon the charter as utterly

prost:ating the king's le~lative snpremacy before the discretion of juries. When thelIObeduleof liberties demanded by the barons was shown to him, (of which the trW byjury was the most important, because it was the only one that protected all the rest,).. the king, falling into a violent pasaion, asked, My tM harom d(d not UJith thue u-actitnu demand hU kingdom? and UJith a IOlemn oath protuted, that he "';'tdd n....../{rant tnU:h libtrliu /U tootdd ",aU him .. lf a 6lave." But afterwards, IIseeing him.sel! deserted, and fearing they wonld seize his castles, he 8ent the Earl of Pembrokeand other faithful messengers to them, to let them know liz tootdd /{rant thzm tMla",,"a s & d /ibmiu tMY desired." But after the charter had been granted, "the king"mercenary soldiers, desiring war more than peace, were by their leaders continuallywhlapering in hit ears, that M toaI now no longer king, bu t tM 6CDrn of other princes; and""" it toaI more cligihU to be hO king, than.uch /J on e M he." He applied" to the



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LANGUAGE OF MAGNA CARTA. 25provided by the charter itself that twenty-five barons shouldbe appointed by the barons, out of their number, to keep specialvigilance ill the kingdom to see that the charter was observed,with authority to make war upon the king in case of its vio-lation. The king also, by the charter, so far absolved allthe people of the kingdom from their allegiance to him, as. toauthorize and require them to swear to obey the twenty-fivebarons, in case they should make war upon the king for in-fringement of the charter. Itwas then thought by the baronsand people, that something substantial had been done for thesecurity of their liberties.This charter, in its most essential features, and without anyabatement as to the trial by jury, has since been confirmedmore than thirty times; and the people of England havealways had a traditionary idea that itwas of some value as aguaranty against oppression. Yet that idea has been an entiredelusion, unless the jury have had the right to judge of thejustice of the laws they were called on to enforce.

SECTI ON I I .

The Language of Magna Carta.The language of the Great Charter establishes the samepoint that is established by its history, viz., that it is the rightand duty of the jury to judge of the justice of the laws.

Pope, that he might by his apostolic authority make void what the barons bad done. At Rome he met with what success he could desire, where all the tl'&tl88Ctionswith the barons were fully represented to the Pope, and the Charter of Uberties shownto him, inwriting; which, when he bad carefully perused. he, with & furious look, criedout, What I Do the 6ar


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26 TRIAL BY JURY.The chapter guaranteeing the trial by jury is in these

words:"l\'ulllls liber homo capiatur, vel imprisonetur, aut disseise-tnr, aut utlagetnr, aut exulerur, aut aliquo modo destruatur Tnee snper eum ibimus, nee super eum mittemus, nisi per legalejudicium parium suorum, vel per legem terne."'"The corresponding chapter in the Great Charter, granted

by Henry III., (1225,) and confirmed by Edward I., (1297,)(which charter is now considered the basis of the Englishlaws and constitution,') is in nearly the same words, as follows:"NullllS liber homo capiatur, vel imprisonetur, aut disseise-fur de libero tenemento, vel Iibertatibus, vel liberis consuetu-diuibus suis, ant utlagetur, aut exuletur, aut aliquo modo de-struatur, uec super eum ibimus, nee super eum mitremus, nisiper legale judicium parium suorum, vel per legem terree."The most common translation of these words, at the presentday, is as follows:IINo freeman shall be arrested, or imprisoned, or deprived

of his freehold, or his liberties, or free customs, or outlawed,or exiled, or in any manner destroyed, nor toill to e (the king)pass upon him, 'nor condemn him, unless by the judgment athis peers, or the law of the land."" Nec super eum ibimus, nee super l!1lm mittemus;"There has been.much confusion and doubt as to the truemeaning of the words, "nec slIper eum. ibimus, nee sllper eum

snit temus;" The more common rendering has been, "nor willwe pasl upon him, nor condemn him." But some have trans-lated them to mean, "nor will we pass upon him, nor commithi1."!.to prison." Coke gives still a different rendering, to the-effect that IINo man shall be condemned at the king's suit,either before the king in his bench, nor before any other com-missioner or judge whatsoever."tBut all these translations are clearly erroneous. In the first The 11.11'8ere, at that time,all written inLatin.t"Xoman8hall be condemned ali the king's Buit, either before the king inhis benCh..

wbere pleas are coramrtgt, (before the king,) (ami so are the words "ec 8uptr tum ibimtU,to be undentood,> nor before any other commissioner or judge what80ever,.and so arethe words ntc"'PC' tum mitttmtU, to be understoed, but by the judgment of his peen,.that ii,equals, or accoNing to the 11.11'f the land ....-2 C O " " 6 - but., 46.



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LANGUAGE OF IIfA GNA CARTA . 27place. "nor will we pass upon ltim," - meaning thereby todecide upon his guilt or innocence judicially - is not a correctrendering of the words, "nee super eum ibimus:" 'l'here isnothing whatever, in these latter words, that indicatesjudicialaction or opinion at all. The words, in their common signifi-cation, describe IJhysical action alone. And the true trausla-tion of them, as will hereafter be seen, is, "nor will we proceedagaillst hirn," executively.In the second place, the rendering," nor will w e condemnJt im," bears little or 110 analogy to any common, or evenuncommon, signification of the words IInec super eum mlue-mus:" There is nothing in these latter words that indicatesjudicial action or decision. Their common signification, likethat of the words nee super elt7n ibimus, describes physicalaction alone. " Nor will 10e send upon (or against) ltim,"would be the most obvious translation, and, as we shall here-after see, such is the true translation./ But although these words describe pltysical action, on thepart of the king, as distinguished from judicial, they never-theless do not mean, as one of the translations has it, IIuor~cill we commi; him to prison t " for that would be a mererepetition of what had been already declared by the words"nec imprlsonetur." Besides, there is nothing about prisonsin the words "uec super eum mlttemus i" nothing aboutsending hlm: anywhere ibut only about sending (somethingor somebudy) "pon him, or against him - that is, e:reclttively.Coke's rendering is, if possible, the most absurd and gratu-itous of all. 'Vhat is there in the words, "nee super eum.

mit/emits;" that can be made to mean" nor shall lie be COI/-demned before any other commissioner or judge whatsoever?"Clearly there is nothing. 'I'he whole rendering is a sheerfabrication. Aud the whole object of it is to give color for theexercise of a judicial power, by the king, or his judges, whichis nowhere given them.Neither the words, "IICC super enm. iblmu, nec .~I'II/''' eum.miuemus]" nor any other words in the whole chapter. author-ize, provide for, describe, or suggest, any}udh:icrl action what-ever, on the part either of the king, or of his judges, or ofanybody, except tIle peers, or jury. :l'here is nothiug about



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28 TRIAL BY JURY.the king's judges at all. And there is nothing whatever,in the whole chapter, so far as relates to the action of theking, that describes or suggests anything but executive action.wBut that all these translations are certainly erroneous, is

proved by a temporary charter, granted by John a short timeprevious to the Great Charter, for the purpose of giving anopportunity for conference, arbitration, and reconciliationbetween him and his barons. Itwas to have force until thematters in controversy between them could be submitted tothe Pope , and to other persons to be chosen, 1I0me by the king,and some by the barons. The words of the charter are afollows:"Sciatis nos concessisse baronibus nostris qui contra nossunt quod nee eos nee homines IIIlOS capiemus, nee disseisie-mils nee super eos per vim vel per arma ibimus nisi per legemregni nostri vel per judicium parium suorum in curia nostradonee consideratio facta fuerit," &c., &.c.That is, "I~now that we have granted ' 0 our barons who

are opposed to us, that we will' neither arrest them nor theirmen, nor disseize them, nor will'lJe proceed against th em iJ 1force or h!l arms, unless by the law of our kingdom, or by thejudgment of their peers in our court, until consideration shallbe had," &c . , & C .A copy of this charter is given in a note in Blackstone's

Introduction to the Charters.j-Mr. Christian speaks of this eharter as :settling thetrue

meaning of the corresponding clause of Magna Carta, on theprinciple that laws and charters on the same subject are to beconstrued with reference to each other. See 3 CIIl'isliall'$Blackstone, 41, no t e ... Perhaps the asserUon in the text 8holll


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L1


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30 TRIAL BY JURY.part of the king, to which the king had no right, but which,according to the true translation, belongs wholly to the jury.

"Per legale judicium parium suorum;"The foregoing interpretation is corroborated, (if it were notalready too plain to be susceptible of corroboration,) by thetrue interpretation of the phrasellper legale judicium parium

suorum:"In giving this interpretation, I leave out, for the present, theword legale, which will be defined afterwards.The true meaning of the phrase, per judicium parium8tlOrUm,is, according to the sentence of his peers. The woedjudicium,judgment, has a technical meaning in the law, sig-nifying the decree rendered in the decision of a cause. Incivil suits this decision is called a judgment j in chanceryproceedings it is called a decreej in criminal actions it is calleda sentence, or judgment, indifferently. Thus, in a criminalsuit, "a motion in arrest of judgment," means a motion inarrest of S81Uence.*In cases of sentence, therefore, in criminal suits, the wordssentence and judgm81lt are synonymous terms. They are, tothis day, commonly used in law books as synonymous terms.And the phrase per judicium parium suorum, therefore, im-plies that the jury are to fix the sentence.The word per means according to. Otherwise there is 110sense in the phrase per judicium parium suorum. There- o


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L ANGUAGE OF MAGNA CARTA. 31would be no sense in saying that a king might imprison, dis-seize, outlaw, exile, or otherwise punish a man, or proceedagainst him, or send anyone against him, by force or arm s, b ya judgment of his peers j but there is sense in saying that theking may imprison, disseize, and punish a man, or proceedagainst him, or send anyone against him, by"force or arms,accord ing to a judgment, or sentence, of his peers j because inthat case the king would be merely carrying the sentence orjudgment of the peers into execution.The word per, in the phrase "per judicium parium suo-rum," of course means precisely what it does in the nextphrase, "per legem terreej" where it obviously meansaccord ing to , and not i n J , as it is usually translated. Therewould be no sense in saying that the king might proceedagainst a man by force or arms, b y the law of the land j butthere is sense in saying that he may proceed against him, byforce or arms, according to the law of the land j because the

king would then be acting only as an executive officer, carry-ing the law of the land into execution. Indeed, the truemeaning of the word by, as used in similar cases now, alwaysis according to j as, for example, when we say a thing wasdone by the government, or by the executive, by law, wemean only that itwas done by them according to law j thatis, that they merely executed the law.Or, if we say that the word by signifies by authority oj, theresult will still be the same j for nothing can be done by au-thority o f law, except what the law itself authorizes or directsMagna Carla, it was aa.ldthat a baker, for default in the weight of his bread, "debeatamerciari Tol aublre jvdiei .." , pillorie i" that is, ought to be amerced, or aulfer the pun-iahment, or judgment, oBhe pillory. Alao that a brewer, for" selling ale contrary tothe &IIi.e," "debeat amerclari, Tel pat! jvdiei ..", tumbrelli"i that is, ought to beamerced, or .der tbe punisbment, or judgment, of the tumbrel.-51 Hmry3, St. 6.(1266.)Alao the "Statut of llnCertam datt," (but supposed to be prior to Edward m., or

1326,) provide, In ohaptera ,6,7, and 10, for "jvdgmmt of the pillory."- Su 1 Ruff-"-i'.Statutu, 187,188. 1 Statutu tifth. Rtalm, 203.Blaciutone, In his chapter" Of Jvdgmmt, and its Consequence.," laY.,"Jvdgmmt (un\888 any matter be olfered In arrest thereof) fo11omupon conviction;

being the pronouncing of that punlabment which is expr888ly ordained by1aw."-BloJulone' .Analy';' of 1M .La- of England, B o o 1 c 4, Cit. 29, S",. 1. BloJuItnU'.Low 7hatU, 126.Coke I&Y', "Jvdiei.", the j1Idgmen' 11U1eguide and direeUou of U1eexecuUoo."

S lAn. 210.



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32 TRIAL BY JURY.to be done j that-is, nothing can be done by authority of law,except simply to carry the law itself into execution. So nothingcould be done by authority of the sentence of the peers, or byauthority of "the law of the land," except what the sentenceof the peers, or the law of the land, themselves authorized ordirected to be done j nothing, in short, but to carry the sen-tence of the peers, or the law of the land, themselves intoexecution,Doing a thing by law, or according to law, is only carrying

the law into execution. And punishing a man by, or accordingto, the sentence or judgment of his peers, is only carrying thatsentence or judgment into execution.If these reasons could leave any doubt that the word per is

to be translated according to, that doubt would be removedby the terms of an antecedent guaranty for the trial by jury,granted by the Emperor Conrad, of Germany,"" two hundredyears before Magna Carta. Blackstone cites it as follows:-(3 Blackstone, 350.)"Nemo beneficium suum perdat, nisi secundum consnetu-

dinem antecessorum nostrorurn, et judicium parium suorum,"That is, No one shall lose his estate, t unless according to(" seculldum") the custom (or law) of our ancestors, and(acrording to) the sentence (or judgment) of his peers.The evidence is therefore conclusive that the phrase per ju-

dicium parium suorum means according to the sentence of hispeers i thus implying that the jury, and not the government,are to fix the sentence.Ifany additional proof were wanted that juries were to fixthe sentence, it would be found in the following provisions ofMagna Carta, viz.:"A freeman shall not be amerced for a small crime, (delicto,)but according to the degree of the crime j and for a great crimein proportion to the magnitude of it, saving to him his contene-

TbiB precedent from Germany i.! good authority, because the trial by jury W&II Inuse, in the northern DatioDSof Europe generally, long before l\I&gnaCarta, and probeblj'(rom time immemorial; and the Saxona and Normans were fa.miliar with It beforethey settled iDEngland,tBmtjiavm W&II the legal D&IIleof an eata.te held bl a feudal tenure. S e e Spel-man 'a G1oa aa ry .



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LANGUAGE OF MAGNA . CARTA . 33ment jl/F and after the same' manner a merchant, saving tohim his merchandise. And a villein shall be amerced afterthe same manner, saving to him his waynage,f ifhe fall underour mercy; and none oj the aforesaid amercements shall be im-posed, (or assessed, ponatur,) _but by the oath oj honest men ojthe neighborhood. Earls and Barons shall not be amerced butby their peers, and according to the degree of their crime." tPecuniary punishments were the most common punish-

ments at that day, and the foregoing provisions of Magna'Carta show that the amount of those punishments was to befixed by the jury.Fines went to the king, and were a source of revenue j andif the amounts of the fines had been left to be fixed by theking, he would have had a pecuniary temptation to imposeunreasonable and oppressive ones. So, also, in regard to otherpunishments than fines. If it were left to the king to fix thepunishment, he might often have motives to inflict cruel andoppressive ones. As itwas the object of the trial by jury toprotect the people against all possible oppression from the king,itwas necessary that the jury, and not the king, should fixthe punishments. ~

" Legale."The word "legale," in the phrase "per legale judicium Cmlmemtnt of a freeman wa.sthe meana of living in the condition of a fre41mloD.tWaynag. wa.sa villein's plough-tackle and carts.:j: Tomlin says, .. The ancient practice W80S, when any Buchfine wa . s imposed, to inquire

by a jlll'Y quantum inck r e g ; dar. val.at pc- annum, .alva 6lUtentation IUI d uzori. tI l ihe-rorum nwnun, (how much Is he a.ble to give to the king per annum, Baving hi!ownma.intenance, and tha.t of his wife and children). And since the disuse of such inquest,it is never Usual to assess a larger fine than a ma.n Is able to pay, without touching theImplements of hi! livelihood; but to inflict corpora.l punishment, or a limited imprisoll-ment, instead of Bucha. fillo 80S might amount to imprisonment for life. And this Is therea.son why fines in the king's courts a.rc frequenUy denomina.ted raDBODlB,ecause thepena.ity must otherwise fnll upon a man's person, unless i~be redeemed or ranaomed bya pecuniary fine."- Tomlin ' . Law Dla., w ord Fin Because juries were to fix the sentence, It must not be supposed tha.t the king wa.s

obliged to carry the sentence into execution; bu t o nly that M c ou ld n ot g o beyo nd tM .en-tmu. He might pardon, or he might a.oquit on grounds of law, notwitbatanding theI8l1tenoe; but he could not punish beyond the extent of the sentence. Mngna. Cartadoe. not prescribo tha.t the king .hall p"nuh according to tho sentence of the peers Ibut only thr.t he eha.1Inot punish" u n/ .. . a cc ord in g /0 "that .ent.nce. He ma.ya.oqultor pa.rdon, notwithstanding their sentence or judgment I but he C&DIIotpunish, 8XCOP\aooording to their Judgmellt.



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34 TRIAL BY JURY.parium suorum," doubtless means two things. 1. That thesentence must be given in a legal manner; that is, by the legalnumber of jurors, legally empanelled and sworn to try thecause; and that they give their judgment or sentence after alegal trial, both in form and substance, has been had. 2. Thatthe sentence shall be for a legal cause or offence. If, there-fore, a jury should convict and sentence a man, either withoutgiving him a legal trial, or for an act that was not really andlegally criminal, the sentence itself would not be legal; andconsequently this clause forbids the king to carry such a sen-tence into execution; for the clause guarantees that he willexecute no judgment or sentence, except it be legalejudicium,a legal sentence. Whether a sentence be a legal one, wouldhave to be ascertained by the king or his judges, 011 appeal, ormight be judged of informally by the king himself.The word "legale" clear!y did not mean that the judiciumparium suorum (judgment of his peers) should be a sentencewhich any law (of the king) should require the peers to pro-nounce; for in that case the sentence would not be the sentenceof the peers, but only the sentence of the law, (that is, of theking) j and the peers would be only a mouthpiece of the law,(that is, of the king,) in uttering it.

" Per legem terral."One other 'phrase remains to be explained, viz., "per legem

terral," "by the law of the land."All writers agree that this means the common law. Thus,Sir Matthew Hale says:

I(The common law is sometimes called, by way of eminence,lex terra, as in the statute of Magna Carta, chap. 29, wherecertainly the common law is principally intended by thosewords, aut per legem terra j as appears by the expositionthereof in several subsequent statutes; and particularly in thestatute of 28 Edward Hl., chap. 3, which is but an expositionand explanation of that statnte. Sometimes it is called l e . ' I :Anglim, as ill the statute of Merton, cap. 9, "Nolllmlis legesAl1glim mutari," &C.t (We wiII that the laws of England benot changed). Sometimes it is called lex et consuetudo regni(the law and custom of the kingdom); as in all commissionsof oyer and terminer ; and ill the statutes of 18 Edward I.,cap. -, and de quo uiarranto, and divers others. But most



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L ANGUAOE OF MAGNA CARTA. 35commonly it is called the Common Law, or the Common Lawof England; as ill the statute Articuli super Chartae, cap. 15,in the statute 25 Edward III., cap. 5, (4,) and infinite morerecords and statutes." -1ale's Histor!! of the CommonLaw, 128 .This common law, or "law of the land," the king uias

S1I'Orn to maintain. "This fact is recognized by a statute madeat Westminster, in 1346, by Edward IlL, which commencesill this manner:" Ed ward, by the Grace of God, &c., '&c. , to the Sheriff ofStafford, Greeting: Because that by divers complaints madeto us, we have perceived that the law of the land, which we byoath are bound to maintain," & C . - St. 20 Edward IlLThe foregoing authorities are cited to show to the unprofes-sional reader, what is well known to the profession, that legem

terrai, the law of the land, mentioned in Magna Carta, was thecommon, ancient, fundamental law of the land, which thekings were bound by oath to observe j and that it did not includeany statutes or laws enacted lt y the king himself, the legislativepower of the nation.If the term legem terra had included laws enacted by theking himself, the whole chapter of Magna Carta, now underdiscussion, would have amounted to nothing as a protection toliberty; because it would have imposed no restraint whateverupon the power of the king. 'I'he king could make laws atany time, and such ones as he pleased. He could, therefore,have done anything he pleased, lt y the law of the land, as wellas in any other way, if his own laws had been" the lau: of thelaud." If his own laws had been "the law of the land,"within the meaning of that term as used in Magna Carta, thischapter of Magna Carta would have been sheer nonsense, in-asmuch as the whole purport of it would have been simplythat" no man shall be arrested, imprisoned, or deprived of hisfreehold, or his liberties, or free customs, or outlawed, orexiled, or in any manner destroyed (by the king) j nor shallthe king proceed against him, nor send anyone against himwith force and arms, unless by the judgment of his peers, orunless the king shall please to do so."This chapter of Magna Carta would, therefore, have imposednot the slightest restraint upon the power of the king, or



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36 TRIAL BY JURY.afforded the slightest protection to the liberties of the people,if the laws of the king had been embraced in the term legemterra. But if legem terra was the common law, which theking was sworn to maintain, then a real restriction was laidupon his power, and a real guaranty given to the people fortheir liberties,Such, then, being the meaning of legem terra, the fact isestablished that Magna Carta took an accused person entirelyout of the hands of the legislative power, that is, of the king;and placed him -in the power and under the protection of hispeers, and the common law alone; that, in short, Magna Cartasuffered no man to be punished for violating any enactment ofthe legislative power, unless the peers or equals of the accusedfreely consented to it, or the common law authorized it; thatthe legislative power, of itself, was wholly incompetent torequire the conviction or punishment of a man for any offencewhatever.Whether Magna Carta allowed of any other trial than i1 Ijury.The question here arises, whether "legem terra" did notallow of some other mode of trial than that by jury.The answer is, that, at the time of Magna Carta, it is notprobable, (for the reasons given in the note,) that legem terraauthorized, in criminal cases, any other trial than the trial byjury; but, if it did, it certainly authorized none but the trialby battle, the trial by ordeal, and the trial by compurgators.

'I'hese were the only modes of trial, except by jury, that hadbeen known in England, in criminal cases, for some centuriesprevious to Magna Carta. All of them had become nearlyextinct at the time of Magna Carta, and it is not probable thatthey were included in "legem terree," as that term is used inthat instrument. But if they were included in it, they havenow been long obsolete, and were such as neither this nor anyfuture age will ever return to."" For all practical purposes of TA t trial by haUl . was one inwhich tho accused ch& l.lenged hla accuser to lingle

oomb&t , and s taked tho question or hIa guilt.. or innocence on the result or the duel.Thie \rialWIlo8 in t. .ro d uc ed iu to Engla nd by th e No l" llUU lB ,within one hundred and fift1J '&I1 b eC o re M ag na Cart&. n was not very oC ten resorted to even by tho NO rm aD II



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LA NGUAGE OF MAGNA CARTA . 37the present day, therefore, it may he asserted that MagnaCarta allows no trial whatever but trial by jury.Whether Magna Carta allowed sentence /0 befixed otherwisethan b y the jury.Still another question arises on the words legem terra, viz.,whether, in cases where the question of guilt was determinedby the jury, the amount of punishment may not have beenfixed by legem terra, the Common Law, instead of its being

fixed by the jury.I think we have no evidence whatever that, at the time ofMagna Carta, or indeed at any other time, lex terra, the com-themselves; probably never by the Anglo-SuoD!, unless in their oontroversies with theNormans. Itwas strongly discouraged by some of the Norman princes, particularlyby Henry II., by whom the trial by jury was especially favored. Its probable thatthe trial by battle, so far as it prevailed at all in England, was rather tolerated as amatter of chivalry, thlLn authorized a8 a matter of law. At any rate, it is not likelythat it was included in the "ltgrm tere " of JlIagna Carta, although such duels haveoccasionally occurred since that time, and have, by some, been supposed to be lawful.I apprehen

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