Essay on the Trial By Jury Part 3

The answer is, that, at the time of Magna Carta, it is not probable, (for the reasons given in the note,) that legem terrae authorized, in criminal cases, any other trial than the trial by jury; but, if it did, it certainly authorized none but the trial by battle, the trial by ordeal, and the trial by compurgators. These were the only modes of trial, except by jury, that had been knownin England, in criminal cases, for some centuries previous to Magna Carta. All of them had become nearly extinct at the time of Magna Carta, and it is not probable that they were included in "legem terrae," as that term is used in that instrument. But if they were included in it, they have now been long obsolete, and were such as neither this nor any future age will ever return to. [23]

For all practical puposes of the present day, therefore, it may be a.s.serted that Magna Carta allows no trial whatever but trial by jury.

Whether Magna Carta allowed sentence to be fixed otherwise than by the jury.

Still another question arises on the words legem terrae, viz., whether, in cases where the question of guilt was determined by the jury, the amount of punishment may not have been fixed by legem terrae, the Common Law, instead of its being fixed by the jury.

I think we have no evidence whatever that, at the time of Magna Carta, or indeed at any other time, lex terrae, the common law, fixed the punishment in cases where the question of guilt was tried by a jury; or, indeed, that it did in any other case. Doubtless certain punishments were common and usual for certain offences; but I do not think it can be shown that the common law, the lex terrae, which the king was sworn to maintain, required any one specific punishment, or any precise amount of punishment, for any one specific offence. If such a thing be claimed, it must be shown, for it cannot be presumed. In fact, the contrary must be presumed, because, in the nature of things, the amount of punishment proper to be inflicted on any particular case, is a matter requiring the exercise of discretion at the time, in order to adapt it to the moral quality of the offence, which is different in each case, varying with the mental and moral const.i.tutions of the offenders, and the circ.u.mstances of temptation or provocation. And Magna Carta recognizes this principle distinctly, as has before been shown, in providing that freemen, merchants, and villeins, "shall not be amerced for a small crime, but according to the degree of the crime; and for a great crime in proportion to the magnitude of it,"

and that "none of the aforesaid amercements shall be imposed (or a.s.sessed) but by the oaths of honest men of the neighborhood;"

and that "earl and barons shall not be amerced but by their peers, and according to the quality of the offence."

All this implies that the moral quality of the offence was to be judged of at the rial, and that the punishment was to be fixed by the discretion of the peers, or jury, and not by any such unvarying rule as a common law rule would be.

I think, therefore, it must be conceded that, in all cases, tried by a jury, Magna Carta intended that the punishment should be fixed by the jury, and not by the common law, for these several reasons.

1. It is uncertain whether the common law fixed the punishment of any offence whatever.

2. The words "per judicium parium suorum," according to the sentence of his peers, imply that the jury fixed the sentence in some cases tried by them; and if they fixed the sentence in some cases, it must be presumed they did in all, unless the contrary be clearly shown.

3. The express provisions of Magna Carta, before adverted to, that no amercements, or fines, should be imposed upon. freemen, merchants, or villeins, "but by the oath of honest men of the neighborhood," and "according to the degree of the crime," and that "earls and barons shout not be amerced but by their peers, and according to the quality of the offence," proves that, at least, there was no common law fixing the amount of fines, or, if there were, that it was to be no longer in force. And if there was no common law fixing the amount of fines, or if it was to be no longer in force, it is reasonable to infer, (in the absence of all evidence to the contrary,) either that the common law did not fix the amount of any other punishment, or that it was to be no longer in force for that purpose. [25]

Under the Saxon laws, fines, payable to the injured party, seem to have been the common punishments for all offences. Even murder was punishable by a fine payable to the relatives of the deceased.

The murder of the king even was punishable by fine. When a criminal was unable to pay his One, his relatives often paid it for him. But if it were not paid, he was put out of the protection of the law, and the injured parties, (or,in the case of murder, the kindred of the deceased,)were allowed to inflict such punishment as they pleased. And if the relatives of the criminal protected him, it was lawful to take vengeance on them also. Afterwards the custom grew up of exacting fines also to the king as a punishment for offences. [26]

And this latter was, doubtless, the usual punishment at the time of Magna Carta, as is evidenced by the fact that for many years immediately following Magna Carta, nearly or quite all statutes that prescribed any punishment at all, prescribed that the offender should "be grievously amerced," or "pay a great fine to the king,"

or a "grievous ransom," with the alternative in some cases (perhaps understood in all) of imprisonment, banishment, or outlawry, in case of non-payment. [27]

Judging, therefore, from the special provisions in Magna Carta, requiring fines, or amercements, to be imposed only by juries, (without mentioning any other punishments;) judging, also, from the statutes which immediately followed Magna Carta, it is probable that, the Saxon custom of punis.h.i.+ng all, or nearly all, offences by fines, (with the alternative to the criminal of being imprisoned, banished, or outlawed, and exposed to private vengeance, in case of non-payment,) continued until the time of Magna Carta; and that in providing expressly that fines should be fixed by the juries, Magna Carta provided for nearly or quite all the punishments that were expected to be inflicted; that if there were to be any others, they were to be fixed by the juries; and consequently that nothing was left to be fixed by "legem terrae."

But whether the common law fixed the punishment of any offences, or not, is a matter of little or no practical importance at this day; because we have no idea of going back to any common law punishments of six hundred years ago, if, indeed, there were any such at that time. It is enough for us to know and this is what is material for us know that the jury fixed the punishments, in all cases, unless they were fixed by the common law; that Magna Carta allowed no punishments to be prescribed by statute that is, by the legislative power nor in any other manner by the king, or his judges, in any case whatever; and, consequently, that all statutes prescribing particular punishmnts for particular offences, or giving the king's judges any authority to fix punishments, were void.

If the power to fix punishments had been left in the hands of the king, it would have given him a power of oppression, which was liable to be greatly abused; which there was no occasion to leave with him; and which would have been incongruous with the whole object of this chapter of Magna Carta; which object was to take all discretionary or arbitrary power over individuals entirely out of the hands of the king, and his laws, and entrust it only to the common law, and the peers, or jury that is, the people. What lex terrae did authorize.

But here the question arises, What then did legem terrae" authorize the king, (that is, the government,) to do in the case of an accused person, if it neither authorized any other trial than that by jury, nor any other punishments than those fixed by juries?

The answer is, that, owing to the darkness of history on the point, it is probably wholly impossible, at this day, to state, with any certainty or precision, anything whatever that the legem terrae of Magna Carta did authorize the king, (that is, the government,) to do, (if, indeed, it authorized him to do anything,) in the case of criminals, other than to have them, tried and sentenced by their peers, for common law crimes; and to carry that sentence into execution.

The trial by jury was a part of legem terrae, and we have the means of knowing what the trial by jury was. The fact that the jury were to fix the sentence, implies that they were to try the accused; otherwise they could not know what sentence, or whether any sentence, ought to be inflicted upon him. Hence it follows that the jury were to judge of everything involved in the trial; that is, they were to judge of the nature of the offence, of the admissibility and weight of testimony, and of everything else whatsoever that was of the essence of the trial. If anything whatever could be dictated to them, either of law or evidence, the sentence would not be theirs, but would be dictated to them by the power that dictated to them the law or evidence. The trial nd sentence, then, were wholly in the hands of the jury.

We also have sufficient evidence of the nature of the oath administered to jurors in criminal cases. It was simply, that they would neither convict the innocent, nor acquit the guilty. This was the oath in the Saxon times, and probably continued to be until Magna Carta.

We also know that, in case of conviction, the sentence of the jury was not necessarily final; that the accused had the right of appeal to the king and his judges, and to demand either a new trial, or an acquittal, if the trial or conviction had been against law. So much, therefore, of the legem terrae of Magna Carta, we know with reasonable certainty.

We also know that Magna Carta provides that "No bailiff (balivus) shall hereafter put any man to his law, (put him on trial,) on his single testimony, without credible witnesses brought to support it."

c.o.ke thinks "that under this word balivus, in this act, is comprehended every justice, minister of the king, steward of the king, steward and bailiff." (2 Inst. 44.) And in support of this idea he quotes from a very ancient law book, called the Mirror of Justices, written in the time of Edward I., within a century after Magna Carta. But whether this were really a common law principle, or whether the provision grew out of that jealousy of the government which, at the time of Magna Carta, had reached its height, cannot perhaps now be determined.

We also know that, by Magna Carta, amercements, or fines, could not be imposed to the ruin of the criminal; that, in the case of a freeman, his contenement, or means of subsisting in the condition of a freeman, must be saved to him; that, in the case of a merchant, his merchandise must be spared; and in the case of a villein, his waynage, or plough-tackle and carts. This also is likely to have been a principle of the common law, inasmuch as, in that rude age, when the means of gettin employment as laborers were not what they are now, the man and his family would probably have been liable to starvation, if these means of subsistence had been taken from him.

We also know, generally, that, at the time of Magna Carta, all acts intrinsically criminal, all trespa.s.ses against persons and property, were crimes, according to lex terra, or the common law.

Beyond the points now given, we hardly know anything, probably nothing with certainty, as to what the "legem terran" of Magna Carta did authorize, in regard to crimes. There is hardly anything extant that can give us any real light on the subject.

It would seem, however, that there were, even at that day, some common law principles governing arrests; and some common law forms and rules as to holding a man for trial, (by bail or imprisonment;) putting him on trial, such as by indictment or complaint; summoning and empanelling jurors, &c;., &c;.

Whatever these common law principles were, Magna Carta requires them to be observed; for Magna Carta provides for the whole proceedings, commencing with the arrest, ("no freeman shall be arrested," &c;.,) and ending with the execution of the sentence. And it provides that nothing shall be done, by the government, from beginning to end, unless according to the sentence of the peers, or "legem terrae," the common law. The trial by peers was a part of legem terrae, and we have seen that the peers must necessarily have governed the whole proceedings at the tria1. But all the proceedings for arresting the man, and bringing him to trial, must have been had before the case could come under the cognizance of the peers, and they must, therefore, have been governed by other rules than the discretion of the peers. We may conjecture, although we cannot perhaps know with much certainty, that the lex terrae, or common law, governing these other proceedings, was somewhat similar to the common law principle, on the same points, at the present day. Such seem to be the opinions of c.o.ke, who says that the phrase nisi per legem terrae means unless by due process of law. Thus, he says: "Nisi per legem terrae. But by the law of the land.

For the true sense and exposition of these words, see the statute f 37 Edw. III., cap. 8, where the words, by the law of the land, are rendered without due process of law; for there it is said, though it be contained in the Great Charter, that no man be taken, imprisoned, or put out of his freehold, without process of the law; that is, by indictment or presentment of good and lawful men, where such deeds be done in due manner, or by writ original of the common law.

"Without being brought in to answer but by due process of the common law."

"No man be put to answer without presentment before justices, or thing of record, or by due process, or by writ original, according to the old law of the land." 2 Inst. 50.

The foregoing interpretations of the words nisi per legem terrae are corroborated by the following statutes, enacted in the next century after Magna Carta.

"That no man, from henceforth; shall be attached by any accusation, nor forejudged of life or limb, nor his land, tenements, goods, nor chattels, seized into the king's hands, against the form of the Great Charter, and the law of the land." St, 5 Edward III., Ch. 9. (1331.)

"Whereas it is contained in the Great Charter of the franchises of England, that none shall be imprisoned, nor put out of his freehold, nor of his franchises, nor free customs, unless it be by the law of the land; it is accorded, a.s.sented, and established, that from henceforth none shall be taken by pet.i.tion, or suggestion made to our lord the king, or to his council, unless it be by indictment or presentment of good and lawful people of the same neighborhood where such deeds be done in due manner, or by process made by writ original at the common law; nor that none be put out of his franchises, nor of his freehold, unless he be duly brought into answer, and forejudged of the same by the course of the Law; and if anything be done against the same, it shall be redressed, and holden for none." 8t. 95 Edward III., Ch. 4. (1350.)

"That no man, of what estate or condition that he be, shall be put out of land or tenement, nor taken, nor imprisond, nor disinherited, nor put to death, without being brought in answer by due process of law." 8t. 28 Aboard III., Ch. 3. (1354.)

"That no man be put to answer without presentment before justices, or matter of record, or by due process and writ original, according to the old law of the land. And if anything from henceforth be done to the contrary, it shall be void in law, and holden for error." 8t. 42 Edward IIL, Ch. 3. (1368.)

The foregoing interpretation of the words nisi per legem terrae that is, by due process of law including indictment, &c;., has been adopted. as the true one by modern writers and courts; as, for example, by Kent, (2 Comm. 13,) Story, (3 Comm. 661,) and the Supreme Court of New York, (19 Wendell, 6T6; 4 Hill, 146.) The fifth amendment to the const.i.tution of the United States seems to have been framed on the same idea, inasmuch as it provides that "no person shall be deprived of life, liberty, or property, without due process of law." [28]

Whether the word VEL should be rendered by OR, or by AND.

Having thus given the meanings, or rather the applications, which the words vel per legem terrae will reasonably, and perhaps must necessarily, bear, it is proper to suggest, that it has been supposed by some that the word vel, instead of being rendered by or, as it usually is, ought to be rendered by and, inasmuch as the word vel is often used for et, and the whole phrase nisi per judicium parian suorun, vel per legem terrae, (which would then read, unless by the sentence of his peers, and the law of the land,) would convey a more intelligible and harmonious meaning than it otherwise does.

Blackstone suggests that this may be the true reading. (Charters, p.

41.) Also Mr. Hallam, who says:"Nisi per legale judicium parium suorum, vel per legem terra;. Several explanations have been offered of the alternative clause; which some have referred to judgment by default, or demurrer; others to the process of attachment for contempt. Certainly there are many legal procedures besides trial by jury, through which a party's goods or person may be taken. But one may doubt whether these were in contemplation of the framers of Magna Carta. In an entry of the Charter of 1217 by a contemporary hand, preserved in the Town-clerk's office in London, called Liber Custumarum et Regum antiquarum, a various reading, et per legem terrae, occurs.

Blackstone's Charters, p. 42 (41.) And the word vel is so frequently used for et, that I amnot wholly free from a suspicion that it was so intended in this place. The meaning will be, that no person shall be disseized, &c;., except upon a lawful cause of action, found by the verdict of a jury. This really seems as good as any of the disjunctive interpretatios; but I do not offer it with much confidence." 2 Hallam's Middle Ages, Ch. 8, Part 2, p. 449, note." [29]

The idea that the word vel, should be rendered by and, is corroborated, if not absolutely confirmed, by the following pa.s.sage in Blackstone, which has before been cited. Speaking of the trial by jury, as established by Magna Carta, he calls it, "A privilege which is couched in almost the same words with that of the Emperor Conrad two hundred years before: 'nemo beneficium suum perdat, nisi secundum consuetudinem antecessorum nostrorum, et, judicium parium suorum. ' (No one shall lose his estate unless according to the custom of our ancestors, and, the judgment of his peers.) 3 Blackstone, 350.,

If the word vel, be rendered by and,, (as I think it must be, at least in some cases,) this chapter of Magna Carta will then read that no freeman shall be arrested or punished, "unless according to the sentence of his peers, and, the law of the land."

The difference between this reading and the other is important. In the one case, there would be, at first view, some color of ground for saying that a man might be punished in either of two ways, viz., according to the sentence of his peers, or according to the law of the land. In the other case, it requires both the sentence of his peers and, the law of the laud (common law) to authorize his punishment.

If this latter reading be adopted, the provision would seem to exclude all trials except trial by jury, and all causes of action except those of the common law.,

But I apprehend the word vel, must be rendered both by and,, and by or;, that in cases of a judgment,, it should be rendered by and,, so as to require the concurrence both of "the judgment of the peers and, the law of the land," to authorize the king to make execution upon a party's goods or person; but that in cases of arrest and imprisonment, simply for the purpose of bringing a man to trial, vel, should be rendered by or, , because there can have been no judgment of a jury in such a case, and "the law of the land" must therefore necessarily be the only guide to, and restraint upn, the king. If this guide and restraint were taken away, the king would be invested with an arbitrary and most dangerous power in.

making arrests, and confining in prison, under pretence of an intention to bring to trial.

Having thus examined the language of this chapter of Magna Cart, so far as it relates to criminal cases, its legal import may be stated as follows, viz.:

No freeman shall be arrested, or imprisoned, or deprived of his freehold, or his liberties, or free customs, or be outlawed, or exiled, or in any manner destroyed, (harmed,) nor will we (the king) proceed. against him, nor send any one against him, by force or arms, unless according to (that is, in execution. of) the sentence of his peers, and (or or, as the case may require) the Common Law of England, (as it was at the time of Magna Carta, in 1215.)

[1] Hume, Appendix 2,

[2] Crabbe's History of the English Law, 236.

[3] c.o.ke says, "The king of England is armed with divers councils, one whereof is called commune concilium, (the common council,) and that is the court of parliament and so it is legally called in writs and judicial proceedings comanche concilium regni Anglicae, (the common council of the kingdom of England.) And another is called magnum concilium, (great council;) this is sometimes applied to the upper house of parliament, and sometimes, out of parliament time, to the peers of the realm, lords of parliament, who are called magnum concilium regis, (the great council of the king;) [4] Thirdly, (as every man knoweth,) the king hath a privy council for matters of state. * * The fourth council of the king are his judges for law matters." 1 c.o.ke's Inst.i.tutes, 110 a.