| Chap. 56. "All evil customs concerning
forests, warrens, and foresters, warreners, sheriffs, and their officers, rivers and their
keepers, shall forthwith be inquired into in each county,
by
twelve knights of the same shire,
chosen by the most creditable persons in the
same county,
and upon oath; and within forty days
after the said inquest, be utterly abolished, so as never to be restored." There is
substantially the same reason why a jury
ought to
judge of the justice of laws, and hold all unjust laws invalid, in civil suits, as in
criminal ones. That reason is the necessity of guarding against the tyranny of the
government. Nearly the same oppressions can be practised in civil suits as in criminal
ones. For example, individuals may be deprived, of their liberty, and robbed of their
property, by judgments rendered in civil suits, as well as in criminal ones. If the laws
of the king were imperative upon a jury in civil suits, the king might enact laws giving
one man's property to another, or confiscating it to the king himself, and authorizing
civil suits to obtain possession of it. Thus a man might be robbed of his property at the
arbitrary pleasure of the king. In fact, all the property of the kingdom would be placed,
at the arbitrary disposal of the king, through the judgments of juries in civil suits, if
the laws of the king were imperative upon a jury in such suits. [2] |
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[2] That the kings would have had no scruples to enact laws for the special purpose
of plundering the people, by means of the judgments of juries, if they could have got
juries to acknowledge the authority of their laws, is evident from the audacity with which
they plundered them, without any judgments of juries to authorize them. It is not
necessary to occupy space here to give details as to these robberies; but only some
evidence of the general fact.
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Hallam says, that "For the first three reigns (of the Norman kings) * * the
intolerable exactions of tribute, the rapine of purveyance, the iniquity of royal courts,
are continually in the mouths of the historians. ' God sees the wretched people,' says the
Saxon Chronicler, 'most unjustly oppressed; first they are despoiled of their possessions,
and then butchered.' This was a grievous year (1124). Whoever had any property, lost it by
heavy taxes and unjust decrees." – 2 Middle Ages, 435-6.
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"In the succeeding reign of John, all the
rapacious exactions usual to these Norman kings were not only redoubled, but mingled with
outrages of tyranny still more intolerable.
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"In 1207 John took a seventh of the movables of lay and spiritual persons, all
murmuring, but none daring to speak against it." –
Ditto,
446.
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In Hume's account of the extortions of those times, the following paragraph occurs:
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"But the most barefaced acts of tyranny and oppression were practised against
the Jews, who were entirely out of the protection of the law, and were abandoned to the
immeasurable rapacity of the king and his ministers. Besides many other indignities, to
which they were continually exposed, it appears that they were once all thrown into
prison, and the sum of 66,000 marks exacted for their liberty. At another time, Isaac, the
Jew, paid alone 5100 marks", Brun, 3000 marks; Jurnet, 2000; Bennet, 500. At another,
Licorica, widow of David, the Jew of Oxford, was required to pay 6000 marks." – Hume's Hist Eng., Appendix 2.
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Further accounts of the extortions and oppressions of the kings may be found in
Hume's History, Appendix 2, and in Hallam's Middle Ages, vol. 2, p. 435 to 446.
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By Magna Carta John bound himself to make restitution for some of the spoliations
he had committed upon individuals
"without the legal judgment
of their peers." – See Magna Carta of John, ch. 60, 61, 65 and 66.
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One of the great charges, on account of which the nation rose against John, was,
that he plundered individuals of their property,
"without legal
judgment of their peers."
Now it was evidently very weak and short sighted in
John to expose himself to such charges,
if his laws were really
obligatory upon the peers;
because, in that case, he could have enacted any laws
that were necessary for his purpose, and then, by civil suits, have brought the cases
before juries for their "judgment," and thus have accomplished all his robberies
in a perfectly legal manner.
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There would evidently have been no sense in these complaints, that he deprived men
of their property "without legal judgment of their peers,"
if his laws had been binding upon the peers; because he could then have made the same
spoliations as well with the judgment of the peers as without it. Taking the judgment of
the peers in the matter, would have been only a ridiculous and useless formality, if they
were to exercise no discretion or conscience of their own, independently of the laws of
the king.
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It may here be mentioned, in passing, that the same would be true in criminal
mature, if the king's Laws were obligatory upon juries.
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| As an illustration of what tyranny the kings would sometimes practise, Hume says: |
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" It appears from the Great Charter itself, that not only John, a tyrannical
prince, and Richard, a violent one, but their father Henry, under whose reign the
prevalence of gross abuses is the least to be suspected, were accustomed, from their sole
authority, without process of law, to imprison, banish, and attaint the freemen of their
kingdom." – Hume, Appendix 2.
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The provision, also, in the 64th chapter of Magna Carta, that " all unjust and
illegal fines, and all amercements,
imposed unjustly, and contrary
to the Law of the Land, shall be entirely forgiven,"
&c.; and the
provision, in chapter 61, that the king "will cause full justice to be
administered" in regard to "all those things, of which any person has, without
legal judgment of his peers, been dispossessed or deprived, either by King Henry, our
father., or our brother, King Richard," indicate the tyrannical practices that
prevailed
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We are told also that John himself "had dispossessed several great men without
any judgment of their peers, condemned others to cruel deaths, * * insomuch that his
tyrannical will stood instead of a law." –
Echard's
History of England, 106.
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Now all these things were very unnecessary and foolish, if his laws were binding
upon juries; because, in that ease, he could have procured the conviction of these men in
a legal manner, and thus have saved the necessity of such usurpation. In short, if the
laws of the king had been binding upon juries, there is no robbery, vengeance, or
oppression, which he could not have accomplished through the judgments of juries. This
consideration is sufficient, of itself, to prove that the laws of the king were of no
authority over a jury, in either civil or criminal cases, unless the juries regarded the
laws as just in themselves.
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| 113, 114 |
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Furthemore, it would be absurd and inconsistent to make a jury paramount to legislation
in criminal suits, and subordinate to it in civil
suits; because an individual, by resisting the execution of a civil
judgment, founded upon an unjust law, could give rise to a criminal
suit, in which the jury would be bound to hold the same law invalid. So that, if an unjust
law were binding upon a jury in civil suits, a
defendant, by resisting the execution of the judgment, could,
in
effect
, convert the civil action into a criminal one, in which the jury would
be paramount to the same legislation, to which, in the civil suit, they were subordinate.
In other words, in the criminal suit, the jury would
be obliged to justify the defendant in resisting a law, which, in the civil suit, they had said he was bound to submit to.
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To make this point plain to the most common mind – suppose a law be enacted that
the property of A shall be given to B. B brings a civil action to obtain possession of it.
If the jury, in this civil suit, are bound to hold the law obligatory, they render a
judgment in favor of B, that he be put in possession of the property;
thereby declaring that A is bound to submit to a law depriving him of
his property.
But when the execution of that judgment comes to be attempted
– that is, when the sheriff comes to take the property for the purpose of delivering
it to B – A acting, as he has a natural right to
do, in defence of his property, resists and kills the sheriff. He is thereupon indicted
for murder. On this trial his plea is, that in killing the sheriff, he was simply
exercising his natural right of defending his property
against an unjust law. The jury, not being bound, in a criminal
case, by the authority of an unjust law, judge the act on its merits, and acquit the
defendant – thus declaring that he was not bound
to submit to the same law which the jury, in the civil suit, had, by their judgment,
declared that he was bound to submit to. Here is a
contradiction between the two judgments. In the civil
suit, the law is declared to be obligatory upon A; in the criminal
suit, the same law is declared to be of no obligation.
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| 115 |
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It would be a solecism and absurdity in government to allow such consequences as
these. Besides, it would be practically impossible to maintain government on such
principles; for no government could enforce its civil
judgments, unless it could support them by criminal
ones, in case of resistance. A jury must therefore be paramount to legislation in both
civil and criminal cases, or in neither. If they are paramount in neither, they are no
protection to liberty. If they are paramount in both, then all legislation goes only for
what it may chance to be worth in the estimation of a jury.
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Another reason why Magna Carta makes the discretion and consciences of juries paramount
to all legislation in civil suits, is, that if
legislation were binding upon a jury, the jurors – (by reason of their being unable
to read, as jurors in those days were, and also by reason of many of the statutes being
unwritten, or at least not so many copies written as that juries could be supplied with
them) – would have been necessitated – at least in those courts in which the
king's justices sat – to take the word of those justices as to what the laws of the
king really were. In other words, they would have been necessitated
to
take the law from the court
, as jurors do now.
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Now there were two reasons why, as we may rationally suppose, the people did not wish
juries to take their law from the king's judges. One was, that, at that day, the people
probably had sense enough to see, (what we, at this day, have not sense enough to see,
although we have the evidence of it every day before our eyes,) that those judges, being
dependent upon the legislative power, (the king,) being appointed by it, paid by it, and
removable by it at pleasure, would be mere tools of that power, and would hold all its
legislation obligatory, whether it were just or unjust. This was one reason, doubtless,
why Magna Carta made juries, in civil suits, paramount to all instructions of the king's
judges. The reason was precisely the same as that for making them paramount to all
instructions of judges in criminal suits, viz., that the people did not choose to subject
their rights of property, and all other rights involved in civil suits, to the operation
of such laws as the king might please to enact. It was seen that to allow the king's
judges to dictate the law to the jury would be equivalent to making the legislation of the
king imperative upon the jury.
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| 116 |
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Another reason why the people did not wish juries, in civil suits, to take their law
from the king's judges, doubtless was, that, knowing the dependence of the judges upon the
king, and knowing that the king would, of course, tolerate no judges who were not
subservient to his will, they necessarily inferred; that the king's judges would be as
corrupt, in the administration of justice, as was the king himself, or as he wished them
to be. And how corrupt that was, may be inferred from the following historical facts.
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Hume says:
"It appears that the ancient kings of England put themselves entirely upon the
footing of the barbarous Eastern princes, whom no man must approach without a present, who
sell all their good offices, and who intrude themselves into every business that they may
have a pretence for extorting money. Even justice was avowedly bought and sold; the king's
court itself, though the supreme judicature of the kingdom, was open to none that brought
not presents to the king; the bribes given for expedition, delay, suspension, and
doubtless for the perversion of justice, were entered in the public registers of the royal
revenue, and remain as monuments of the perpetual iniquity and tyranny of the times. The
barons of the exchequer, for instance, the first nobility of the kingdom, were not ashamed
to insert, as an article in their records, that the county of Norfolk paid a sum that they
might be fairly dealt with; the borough of Yarmouth, that the king's charters, which they
have for their liberties, might not be violated; Richard, son of Gilbert, for the king's
helping him to recover his debt from the Jews; * * Serio, son of Terlavaston, that he
might be permitted to make his defence, in case he were accused of a certain homicide;
Walter de Burton, for free law, if accused of wounding another; Robert de Essart, for
having an inquest to find whether Roger, the butcher, and Wace and Humphrey, accused him
of robbery and theft out of envy and ill-will, or not; William Buhurst, for having an
inquest to find whether he were accused of the death of one Godwin, out of ill-will, or
for just cause. I have selected these few instances from a great number of the like kind,
which Madox had selected from a still greater number, preserved in the ancient rolls of
the exchequer.
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| 117 |
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Sometimes a party litigant offered the king a certain portion, a half, a third, a
fourth, payable out of the debts which he, as the executor of justice, should assist in
recovering. Theophania de Westland agreed to pay the half of two hundred and twelve marks,
that she might recover that sum against James de Fughleston; Solomon, the Jew, engaged to
pay one mark out of every seven that he should recover against Hugh de la Hose; Nicholas
Morrel promised to pay sixty pounds, that the Earl of Flanders might be distrained to pay
him three hundred and forty-three pounds, which the earl had taken from him; and these
sixty pounds were to be paid out of the first money that Nicholas should recover from the
earl." – Hume, Appendix 2.
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"In the reign of Henry II,, the best and most just of these (the Norman) princes,
* *Peter, of Blois, a judicious and even elegant writer, of that age, gives a pathetic
description of the venality of justice, and the
oppressions of the poor, * * and he scruples not to complain to the king himself of these
abuses. We may judge what the case would be under the government of worse princes."
– Hume, Appendix 2.
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Carte says:
" The crown exercised in those days an exorbitant and inconvenient power, ordering
the justices of the king's court, in suits about lands, to turn out, put, and keep in
possession, which of the litigants they pleased; to send contradictory orders; and take
large sums of money from each; to respite proceedings; to direct sentences; and the
judges, acting by their commission, conceived themselves bound to observe such orders, to
the great delay, interruption, and preventing of justice; at least, this was John's
practice," –
Carte's History of England, vol. 1, p.
832.
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Hallam says:
"But of all the abuses that deformed the Anglo-Saxon government, none was so
flagitious as the sale of judicial redress, The king, we are often told, is the fountain
of justice; but in those ages it was one which gold alone could unseal. Men fined (paid
fines) to have right done them; to sue in a certain court; to implead a certain person; to
have restitution of land which they had recovered at law. From the sale of that justice
which every citizen has a right to demand, it was an easy transition to withhold or deny
it. Fines were received for the king's help against the adverse suitor; that is, for
perversion of justice, or for delay. Sometimes they were paid by opposite parties, and, of
course, for opposite ends." – 2 Middle Ages, 438.
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| 118 |
In allusion to the provision of Magna Carta on this subject, Hallam says:
"A law which enacts that justice shall neither be sold, denied, nor delayed, stamps
with infamy that government under which it had become necessary." – 2 Middle Ages, 451.
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Lingard, speaking of the times of Henry II., (say 1184,) says:
" It was universally understood that money possessed greater influence than justice
in the royal courts, and instances are on record, in which one party has made the king a
present to accelerate, and the other by a more valuable offer has succeeded in retarding a
decision. * * But besides the fines paid to the sovereigns,
the
judges often exacted presents for themselves
, and loud complaints existed
against their venality and injustice." –
8 Lingard,
231.
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In the narrative of "The costs and charges which I, Richard de Anesty, bestowed in
recovering the land of William, my uncle," (some fifty years before Magna Carta,) are
the following items:
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"To Ralph, the king's physician, I gave thirty-six marks and one half; to the king
an hundred marks; and to the queen one mark of gold." The result is thus stated.
"At last, thanks to our lord the king, and by judgment of his court, my uncle's land
was adjudged to me." –
2 Palgrave's Rise and Progress
of the English Commonwealth, p. 9 and 24.
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Palgrave also says:
"The precious ore was cast into the scales of justice, even when held by the most
conscientious of our Anglo-Saxon kings. A single case will exemplify the practices which
prevailed. Alfric, the heir of 'Aylwin, the black,' seeks to set aside the death-bed
bequest, by which his kinsman bestowed four rich and fertile manors upon St. Benedict.
Alfric, the claimant, was supported by extensive and powerful connexions; and Abbot
Alfwine, the defendant, was well aware that there would be danger
in the discussion of the dispute in public, or before the Folkmoot, (people's meeting, or
county court); or, in other words, that the Thanes of the shire would do their best to
give a judgment in favor of their compeer. The plea being removed into the Royal Court,
the abbot acted with that prudence which so often calls forth the praises of the monastic
scribe. He gladly emptied twenty marks of gold into the sleeve of the Confessor, (Edward,)
and five marks of gold presented to Edith, the Fair, encouraged her to aid the bishop, and
to exercise her gentle influence in his favor. Alfric, with equal wisdom, withdrew from
prosecuting the hopeless cause, in which his opponent might possess an advocate in the
royal judge, and a friend in the king's consort. Both parties. therefore, found it
desirable to come to an agreement." –
1 Palgrave's Rise
and Progress, &c., p. 650.
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| 119 |
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But Magna Carta has another provision for the trial of civil suits, that obviously
had its origin in the corruption of the king's judges. The provision is, that four
knights, to be chosen in every county, by the people of the county, shall sit with the
king's judges, in the Common Pleas, in jury trials, (assizes,) on the trial of three
certain kinds of suits, that were among the most important that were tried at all. The
reason for this provision undoubtedly was, that the corruption and subserviency of the
king's judges were so well known, that the people would not even trust them to sit alone
in a jury trial of any considerable importance. The provision is this:
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Chap. 22, (of John's Charter.) "Common Pleas shall not follow our court, but shall
be holden in some certain place. Trials upon the writ of
novel
disseisin
, and of Mort d'Ancester, and of Darrein Presentment, shall be taken but in their proper
counties, and after this manner: We, or, if we should be out of our realm, our chief
justiciary, shall send two jnsticiaries through every county four times a year; [3]
who, with four knights chosen out of every shire, by the people, shall
hold the assizes
(juries)
in the county, on the day
and at the place appointed."
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It would be very unreasonable to suppose that the king's judges were allowed to dictate
the law to the juries, when the people would not even suffer them to sit alone in jury
trials, but themselves chose four men to sit with them, to keep them honest. [4]
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| [3] By the Magna Carta of Henry III., this is changed to once a year. |
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[4] From the provision of Magna Carta, cited in the text, it must be inferred that
there can be no legal trial by jury, in civil eases, if only the king's justices preside;
that, to make the trial legal, there must be other persons, chosen by the people, to sit
with them; the object being to prevent the jury's being deceived by the justices. I think
we must also infer that the king's justices could sit only in the three actions specially
mentioned. We cannot go beyond the letter of Magria Carta, in making innovations upon the
common law, which required all presiding officers in jury trials to be elected by the
people.
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| 120 |
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This practice of sending the king's judges into the counties to preside at jury
trials, was introduced by the Norman kings Under the Saxons it was not so.
No officer of the king was allowed to preside at a jury trial; but only
magistrates chosen by the people.
[5]
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But the following chapter of John's charter, which immediately succeeds the one just
quoted, and refers to the same suits, affords very strong, not to say conclusive, proof,
that juries judged of the law in civil suits – that is,
made
the law
, so far as their deciding according to their own notions of justice
could make the law.
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Chap. 23. " And if, on the county day, the aforesaid assizes cannot be taken,
so many knights and freeholders shall remain, of those who shall have
been present on said day, as that the judgments may be rendered by them
,
whether the business be more or less."
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[5] ["The earls, sheriffs, and head-boroughs were annually elected in the full
folcmote, (people's meeting)." –
Introduction to Gilbert's
History of the Common Pleas, p. 2, note.
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"It was the especial province of the earldomen or earl to attend the
shyre-meeting, (the county court,) twice a year, and there officiate as the county judge
in expounding the secular laws, as appears by the fifth of Edgar's laws." – Same, p. 2, note.
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"Every ward had its proper alderman, who was chosen,
and not imposed by the prince." – Same, p. 4, text.
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"As the aldermen, or earls, were always chosen"
(by the people) "from among the greatest thanes, who in those times were generally
more addicted to arms than to letters, they were but ill-qualified for the administration
of justice, and performing the civil duties of their office." – 3 Henry's History of Great Britain, 343.
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"But none of these thanes were annually elected in the full folcmote,
(people's meeting,) as the earls, sheriffs, and head-boroughs were;
nor did King Alfred (as this author suggests) deprive the people of the election of those
last mentioned magistrates and nobles, much less did he appoint them himself." –
Introd. to Gilbert's Hist. Com. Pleas, p. 2, note.
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"The sheriff was usually not appointed by the lord, but elected by the
freeholders of the district." – Political Dictionary,
word Sheriff.
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"Among the most remarkable of the Saxon laws we may reckon * * the election of
their magistrates by the people, originally even that of their kings, till dear-bought
experience evinced the convenience and necessity of establishing an hereditary succession
to the crown. But that (the election) of all subordinate magistrates, their military
officers or heretochs, their sheriffs, their conservators of the peace, their coroners,
their portreeves, (since changed into mayors and bailiffs,) and even their tithing-men and
borsholders at the last, continued, some, till the Norman conquest, others for two
centuries after, and some remain to this day." –
4
Blackstone, 418.
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"The election of sheriffs was left to the people,
according
to ancient usage." – St. West. 1, c. 27. – Crabbe's History of English Law,
181.
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| 121 |
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The meaning of this chapter is, that so many of the civil suits, as could not be
tried on the day when the king's justices were present, should be tried afterwards,
by the four knights before mentioned, and the freeholders, that is, the
jury
. It must be admitted, of course, that the juries, in these cases, judged
the matters of law, as well as fact, unless it be presumed that the knights
dictated the law to the jury – a thing of which there is no evidence at all.
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As a final proof on this point, there is a statute enacted seventy years after Magna
Carta, which, although it is contrary to the common law, and therefore void, is
nevertheless good evidence, inasmuch as it contains an acknowledgment, on the part of the
king himself, that juries had a right to judge of the whole matter, law and fact, in civil
suits. The provision is this:
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"It is ordained, that the justices assigned to take the assizes, shall not compel
the jurors to say precisely whether it be disseisin, or not, so that they do show the
truth of the deed, and seek aid of the justices. But if they will, of their own accord,
say that it is disseisin, or not, their verdict shall be admitted at their own
peril." – 13 Edward I., st. 1, ch. 3, sec. 2. (1285.)
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The question of "disseisin, or not," was a question of law, as well as fact.
This statute, therefore, admits that the law, as well as the fact, was in the hands of the
jury. The statute is nevertheless void, because the king had no authority to give jurors a
dispensation from the obligation imposed upon them by their oaths and the "law of the
land," that they should "make known the truth according their (own)
consciences." This they were bound to do, and there was no power in the king to
absolve them from the duty. And the attempt of the king thus to absolve them, and
authorize them to throw the case into the hands of the judges for decision, was simply an
illegal and unconstitutional attempt to overturn the "law of the land," which he
was sworn to maintain, and gather power into his own hands, through his judges. He had
just as much constitutional power to enact that the jurors should not be compelled to
declare the facts, but that they might leave them to
be determined by the king's judges, as he had to enact that they should not be compelled
to declare the law, but might leave it to be decided by the king's judges.
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| 122 |
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It was as much the legal duty of the jury to decide the law as to
decide the fact; and no law of the king could affect their obligation to do either. And
this statute is only one example of the numberless contrivances and usurpations which have
been resorted to, for the purpose of destroying the original and genuine trial by jury.
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