Essay on the Trial by Jury — Ch 2 – Part 1 – Trial by Jury Defined by Magna Carta

CHAPTER II. THE TRIAL BY JURY, AS DEFINED BY

MAGNA CARTA

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

SECTION I

The History of Magna Carta.

In order to judge of the object and meaning of that chapter of Magna Carta which secures the trial by jury, it is to be borne in mind that, at the time of Magna Carta, the king (with exceptions immaterial to this discussion, but which will appear hereafter) was, constitutionally, the entire government; the sole legislative, judicial, and executive power of the nation.

The executive and judicial officers were merely his servants, appointed by him, and removable at his pleasure.

In addition to this, "the king himself often sat in his court, which always attended his person.

He there heard causes, and pronounced judgment; and though he was assisted by the advice of other members, it is not to be imagined that a decision could be obtained contrary to his inclination or opinion."

[1] Judges were in those days, and afterwards, such abject servants of the king, that "we find that King Edward I. (1272 to 1307) fined and imprisoned his judges, in the same manner as Alfred the Great, among the Saxons, had done before him, by the sole exercise of his authority."

[2] Parliament, so far as there was a parliament, was a mere council of the king.

[3] It assembled only at the pleasure of the king; sat only during his pleasure; and when sitting had no power, so far as general legislation was concerned, beyond that of simply advising the king.

The only legislation to which their assent was constitutionally necessary, was demands for money and military services for extraordinary occasions.

Even Magna Carta itself makes no provisions whatever for any parliaments, except when the king should want means to carry on war, or to meet some other extraordinary necessity.

[4] He had no need of parliaments to raise taxes for the ordinary purposes of government; for his revenues from the rents of the crown lands and other sources, were ample for all except extraordinary occasions.

Parliaments, too, when assembled, consisted only of bishops, barons, and other great men of the kingdom, unless the king chose to invite others.

[5] There was no House of Commons at that time, and the people had no right to be heard, unless as petitioners.

[6] Even when laws were made at the time of a parliament, they were made in the name of the king alone.

Sometimes it was inserted in the laws, that they were made with the consent or advice of the bishops, barons, and others assembled; but often this was omitted.

Their consent or advice was evidently a matter of no legal importance to the enactment or validity of the laws, but only inserted, when inserted at all, with a view of obtaining a more willing submission to them on the part of the people.

The style of enactment generally was, either "The King wills and commands," or some other form significant of the sole legislative authority of the king.

The king could pass laws at any time when it pleased him.

The presence of a parliament was wholly unnecessary.

Hume says, "It is asserted by Sir Harry Spelman, as an undoubted fact, that, during the reigns of the Norman princes, every order of the king, issued with the consent of his privy council, had the full force of law."

[7] And other authorities abundantly corroborate this assertion.

[8]The king was, therefore, constitutionally the government; and the only legal limitation upon his power seems to have been simply the Common Law, usually called "the law of the land," which he was bound by oath to maintain; (which oath had about the same practical value as similar oaths have always had.

) This "law of the land" seems not to have been regarded at all by many of the kings, except so far as they found it convenient to do so, or were constrained to observe it by the fear of arousing resistance.

But as all people are slow in making resistance, oppression and usurpation often reached a great height; and, in the case of John, they had become so intolerable as to enlist the nation almost universally against him; and he was reduced to the necessity of complying with any terms the barons saw fit to dictate to him.

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

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

The question here arises, Whether the barons and people intended that those peers (the jury) should be mere puppets in the hands of the king, exercising no opinion of their own as to the intrinsic merits of the accusations they should try, or the justice of the laws they should be called on to enforce?

Whether those haughty and victorious barons, when they had their tyrant king at their feet, gave back to him his throne, with full power to enact any tyrannical laws he might please, reserving only to a jury (" the country") the contemptible and servile privilege of ascertaining, (under the dictation of the king, or his judges, as to the laws of evidence), the simple fact whether those laws had been transgressed?

Was this the only restraint, which, when they had all power in their hands, they placed upon the tyranny of a king, whose oppressions they had risen in arms to resist?

Was it to obtain such a charter as that, that the whole nation had united, as it were, like one man, against their king?

Was it on such a charter that they intended to rely, for all future time, for the security of their liberties?

No. They were engaged in no such senseless work as that.

On the contrary, when they required him to renounce forever the power to punish any freeman, unless by the consent of his peers, they intended those powers should judge of, and try, the whole case on its merits, independently of all arbitrary legislation, or judicial authority, on the part of the king.

In this way they took the liberties of each individual and thus the liberties of the whole people entirely out of the hands of the king, and out of the power of his laws, and placed them in the keeping of the people themselves.

And this itwas that made the trial b jury the palladium of their liberties.

The trial by jury, be it observed, was the only real barrier interposed by them against absolute despotism.

Could this trial, then, have been such an entire farce as it necessarily must have been, if the jury had had no power to judge of the justice of the laws the people were required to obey?

Did it not rather imply that the jury were to judge independently and fearlessly as to everything involved in the charge, and especially as to its intrinsic justice, and thereon give their decision, (unbiased by any legislation of the king,) whether the accused might be punished?

The reason of the thing, no less than the historical celebrity of the events, as securing the liberties of the people, and the veneration with which the trial by jury has continued to be regarded, notwithstanding its essence and vitality have been almost entirely extracted from it in practice, would settle the question, if other evidences had left the matter in doubt.

Besides, if his laws were to be authoritative with the jury, why should John indignantly refuse, as at first he did, to grant the charter, (and finally grant it only when brought to the last extremity,) on the ground that it deprived him of all power, and left him only the name of a king?

He evidently understood that the juries were to veto his laws, and paralyze his power, at discretion, by forming their own opinions as to the true character of the offences they were to try, and the laws they were to be called on to enforce; and that "the king wills and commands" was to have no weight with them contrary to their own judgments of what was intrinsically right.

[9] The barons and people having obtained by the charter all the liberties they had demanded of the king, it was further provided by the charter itself that twenty-fie barons should be appointed by the barons, out of their number, to keep special vigilance in the kingdom to see that the charter was observed, with authority to make war upon the king in case of its violation.

The king also, by the charter, so far absolved all the people of the kingdom from their allegiance to him, as to authorize and require them to swear to obey the twenty-five barons, in case they should make war upon the king for infringement of the charter.

It was then thought by the barons and people, that something substantial had been done for the security of their liberties.

This charter, in its most essential features, and without any abatement as to the trial by jury, has since been confirmed more than thirty times; and the people of England have always had a traditionary idea that it was of some value as a guaranty against oppression.

Yet that idea has been an entire delusion, unless the jury have had the right to judge of the justice of the laws they were called on to enforce.

SECTION II.

The Language of Magna Carta The language of the Great Charter establishes the same point that is established by its history, viz.

, that it is the right and duty of the jury to judge of the justice of the laws.

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

[10] The corresponding chapter in the Great Charter, granted by Henry III, (1225) and confirmed by Edward I, (1297,) (which charter is now considered the basis of the English laws and constitution,) is in nearly the same words, as follows: "Nullus liber homo capiatur, vel imprisonetur, aut disseisetur de libero tenemento, vel libertatibus, vel liberis consuetudinibus suis, aut utlagetur, aut exuletur, aut aliquo modo destruatur, nec super eum ibimus, nec super eum mittemus, nisi per legale judicium parium suorum, vel per legem terrae."

The most common translation of these words, at the present day, is as follows: "No freeman shall be arrested, or imprisoned, or deprived of his freehold, or his liberties, or free customs, or outlawed, or exiled, or in any manner destroyed, nor will we (the king) pass upon him, nor condemn him, unless by the judgment of his peers, or the law of the land."

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

There has been much confusion and doubt as to the true meaning of the words, "nec super eum ibimus, neo super eum mittemus."

The more common rendering has been, "nor wilt we pass upon him, nor condemn him."

But some have translated them to mean, "nor will we pass upon him, nor commit him to prison."

Coke gives still a different rendering, to the effect that "No man shall be condemned at the king's suit, either before the king in his bench, nor before any other commissioner or judge whatsoever."

[11] But all these translations are clearly erroneous.

In the first place, "nor will we pass upon him," meaning thereby to decide upon his guilt or innocence judicially is not a correct rendering of the words, "nec super eum ibimus."

There is nothing whatever, in these latter words, that indicates judicial action or opinion at all.

The words, in their common signification, describe physical action alone.

And the true translation of them, as will hereafter be seen, is, "nor will we proceed against him," executively.

In the second place, the rendering, "nor will we condemn him," bears little or no analogy to any common, or even uncommon, signification of the words "nec super eum mittemus."

There is nothing in these latter words that indicates judicial action or decision.

Their common signification, like that of the words nec super eum ibimus, describes physical action alone.

"Nor will we send upon (or against) him," would be the most obvious translation, and, as we shall hereafter see, such is the true translation.

But although these words describe physical action, on the part of the king, as distinguished from judicial, they nevertheless do not mean, as one of the translations has it, "nor will we commit him to prison;" for that would be a mere repetition of what had been already declared by the words "nec imprisonetur."

Besides, there is nothing about prisons in the words "nec super eum mittemus;"

nothing about sending him anywhere; but only about sending (something or somebody) upon him, or against him that is, executively.

Coke's rendering is, if possible, the most absurd and gratuitous of all.

What is there in the words, "nec super eum mittemus," that can be made to mean "nor shall he be condemned before any other commissioner or judge whatsoever."

Clearly there is nothing.

The whole rendering is a sheer fabricatin.

And the whole object of it is to give color for the exercise of a judicial power, by the king, or his judges, which is nowhere given them.

Neither the words, "Nec super eum ibimus, nec super eum mittemus," nor any other words in the whole chapter, authorize, provide for, describe, or suggest, any judicial action whatever, on the part either of the king, or of his judges, or of anybody, except the peers, or jury.

There is nothing about the king's judges at all.

And, there is nothing whatever, in the whole chapter, so far as relates to the action of the king, that describes or suggests anything but executive action.

[12] But that all these translations are certainly erroneous, is proved by a temporary charter, granted by John a short time previous to the Great Charter, for the purpose of giving an opportunity for conference, arbitration, and reconciliation.

between him and his barons.

It was to have force until the matters in controversy between them could be submitted to the Pope, and to other persons to be chosen, some by the king, and some by the barons.

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

, &c;.

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

, &c;.

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

[13] Mr. Christian speaks of this charter as settling the true meaning of the corresponding clause of Magna Carta, on the principle tat laws and charters on the same subject are to be construed with reference to each other.

See 3 Christin's Blackstone, 41, note.

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

[14] Here the words used are these: "Ne corpus liberi hominis capiatur nec imprisonetur nec disseisetur nec ut1agetur nec exuletur nec aliquo modo destruatur nec rex eat vel mittat super eun vi nisi per judicium pariurn suorum vel per legem terrae."

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

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

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

"Per legale judicium parium suorum."

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

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

The true meaning of the phrase, per judicium parium suorum, is, according to the sentence of his eers.

The word judicium, judgment, has a technical meaning in the law, signifying the decree rendered in the decision of a cause.

In civil suits this decision is called a judgment; in chancery proceedngs it is called a decree; in criminal actions it is called a sentence, or judgment, indifferently.

Thus, in a criminal suit, "a motion in arrest of judgment," means a motion in arrest of sentence.

[16] In cases of sentence, therefore, in criminal suits, the words sentence and judgment are synonymous terms.

They are, to this day, commonly used in law books as synonymous terms.

And the phrase per jndicium parium suorum, therefore, implies that the jury are to fix the sentence.

The word per means according to.

Otherwise there is no sense in the phrase per judicium paruim suorum.

There would be no sense in saying that a king might imprison, disseize, outlaw, exile, or otherwise punish a man, or proceed against him, or send any one against him, by force or arms, by a judgment of his peers; but there is sense in saying that the king may imprison, disseize, and punish a man, or proceed against him, or send any one against him, by force or arms, according to a judgment, or sentence, of his peers;

because in that case the king would be merely carrying the sentence or judgment of the peers into execution.

The word per, in the phrase "per judicium parium suorum," of course means precisely what it does in the next phrase, "per legem terrae;" where it obviously means according to, and not by, as it is usually translated.

There would be no sense in saying that the king might proceed against a man by force or arms, by the law of the land; but there is sense in saying that he may proceed against him, by force or arms, according to the law of the land; because the king would then be acting only as an executive officer, carrying the law of the land into execution.

Indeed, the true meaning of the word by, as used in similar cases now, always is according to; as, for example, when we say a thing was done by the government, or by the executive, by law, we mean only that it was done by them according to law; that is, that they merely executed the law.

Or, if we say that the word by signifies by authority of, the result will still be the same; for nothing can be done by authority of law, except what the law itself authorizes or directs to be done; that is, nothing can be done by authority of law, except simply to carry the law itself into execution.

So nothing could be done by authority of the sentence of the peers, or by authority of "the law of the land," except what the sentence of the peers, or the law of the land, themselves authorized or directed to be done; nothing, in short, but to carry the setence of the peers, or the law of the land, themselves into execution.

Doing a thing by law, or according to law, is only carrying the law into execution.

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

If these reasons could leave any doubt that the word per is to be translated according to, that doubt would be removed by the terms of an antecedent guaranty for the trial by jury, granted by the Emperor Conrad, of Germany, [17] two hundred years before Magna Carta.

Blackstone cites it as follows: (3 Blackstone, 350. ) "Nemo beneficium suum perdat, nisi secundum consuetu-dinem antecessorum nostrorum, et judicium parium suorum."

That is, No one shall lose his estate, [18] unless according to ("secundum") the custom (or law) of our ancestors, and (according to) the sentence (or judgment) of his peers.

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

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

: "A freeman shall not be amerced for a small crime, (delicto,) but according to the degree of the crime; and for a great crime in proportion to the magnitude of it, saving to him his contenement;

[19] and after the same manner a merchant, saving to him his merchandise.

And a villein shall be amerced after the same manner, aving to him his waynage, [20] if he fall under our mercy;

and none of the aforesaid amercements shall be imposed, (or assessed, ponatur,) but by the oath of honest men of the neighborhood.

Earls and Barons shall not be amerced but by their peers, and according to the degree of their crime."

[21] Pecuniary punishments were the most common punishments at that day, and the foregoing provisions of Magna Carta show that the amount of those punishments was to be fixed by the jury.

Fines went to the king, and were a source of revenue; and if the amounts of the fines had been left to be fixed by the king, he would have had a pecuniary temptation to impose unreasonable and oppressive ones.

So, also, in regard to other punishments than fines.

If it were left to the king to fix the punishment, he might often have motives to inflict cruel and oppressive ones.

As it was the object of the trial by jury to protect the people against all possible oppression from the king, it was necessary that the jury, and not the king, should fix the punishments.

[22] "Legale."

The word "legale," in the phrase "per legale judicium parium suorum,"doubtless means two things.

1. That the sentence must be given in a legal manner; that is, by the legal number of jurors, legally empanelled and sworn to try the cause; and that they give their judgment or sentence after a legal trial, both in form and substance, has been had.

2. That the sentence shall be for a legal cause or offence.

If, therefore, a jury should convict and sentence a man, either without giving him a legal trial, or for an act that was not really and legally criminal, the sentence itself would not be legal; and consequently this clause forbids the king to carry such a sentence into execution; for the clause guarantees that he will execute no judgment or sentence, except it be legale judicium,a legal sentence.

Whether a sentence be a legal one, would have to be ascertained by the king or his judges, on appeal, or might be judged of informally by the king himself.

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

"Per legem terrae."

One other phrase remains to be explained, viz.

, "per legem terrae," "by the law of the land."

All writers agree that this means the common law.

Thus, Sir Matthew Hale says: "The common law is sometimes called, by way of eminence, lex terrae,as in the statute of Magna Carta,chap.

29, where certainly the common law is principally intended by those words, aut per legem terrae;as appears by the exposition thereof in several subsequent statutes; and particularly in the statute of 28 Edward III.

, chap.

3, which is but an exposition and explanation of that statute.

Sometimes it is called lex Angliae,as in the statute of Merton, cap.

9, "olurnus leqes Angliae mutari,"&c;.

, (We will that the laws of England be not changed).

Sometimes it is called lex et consuetudo regni(the law and custom of the kingdom); as in all commissions of oyer and terminer; and in the statutes of 18 Edward I. , cap.

, and de quo warranto,and divers others.

But most commonly it is called the Common Law, or the Common Law of England; as in the statute Articuli super Chartas,cap.

15, in the statute 25 Edward III.

, cap.

5, (4,) and infinite more records and statutes."

1 Hale's History of the Common Law, 128. This common law, or "law of the land," the king was sworn to maintain.

This fact is recognized by a statute made at Westminster, in 1346, by Edward III.

, which commences in this manner: "Edward, by the Grace of God, &c;.

, &c;.

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

St. 20 Edward III The foregoing authorities are cited to show to the unprofessional reader, what is well known to the profession, that legem terrae, the law of the land,mentioned in Magna Carta, was the common, ancient, fundamental law of the land, which the kings were bound by oath to observe; and that it did not include any statutes or laws enacted by the king himself, the legislative power of the nation.

If the term legem terraehad included laws enacted by the king himself, the whole chapter of Magna Carta, now under discussion, would have amounted to nothing as a protection to liberty; because it would have imposed no restraint whatever upon the power of the king.

The king could make laws at any time, and such ones as he pleased.

He could, therefore, have done anything he pleased, by the law of the land,as well as in any other way, if his own laws had been "the law of the land."

If his own laws had been "the law of the land," within the meaning of that term as used in Magna Carta, this chapter of Magna Carta woold have been sheer nonsense, inasmuch as the whole purpot of it would have been simply that "no man shall be arrested, imprisoned, or deprived of his freehold, or his liberties, or free customs, or outlawed, or exiled, or in any manner destroyed (by the king); nor shall the king proceed against him, nor send any one againist him with force and arms, unless by the judgment of his peers, or uness the king shall please to do so."

This chapter of Magna Carta would, therefore, have imposed not the slightest restraint upon the power of the king, or afforded the slightest protection to the liberties of the people, if the laws of the king had been embraced in theterm legem terrae.

But if legem terrae was the common law, which the king was sworn to maintain, then a real restriction was laid upon his power, and a real guaranty given to the people for their liberties.

Such, then, being the meaning of legem terrae, the fact is established that Magna Carta took an accused person entirely out of the hands of the legislative power, that is, of the king; and placed him in the power and under the protection of his peers, and the common law alone; that, in short, Magna Carta suffered no man to be punished for violating any enactment of the legislative power, unless the peers or equals of the accused.

freely consented to it, or the common law authorized it; that the legislative power, of itself, was wholly incompetent to require the conviction or punishment of a man for any offence whatever.