An Essay on the Trial by Jury Part 24

"Also, by the said act of 25 Edward I., (called _Confirmatio Chartarum_,) it is adjudged in parliament that the Great Charter and the Charter of the Forest shall be taken as the common law....

"They (Magna Carta and Carta de Foresta) were, for the most part, but declarations of the ancient common laws of England, to the observation and keeping whereof, the king was bound and sworn.

"After the making of Magna Charta, and Charta de Foresta, divers learned men in the laws, that I may use the words of the record, kept schools of the law in the city of London, and taught such as resorted to them the laws of the realm, taking their foundation of Magna Charta and Charta de Foresta.

"And the said two charters have been confirmed, established, and commanded to be put in execution by thirty-two several acts of parliament in all.

"This appeareth partly by that which hath been said, for that it hath so often been confirmed by the wise providence of so many acts of parliament.

"And albeit judgments in the king's courts are of high regard in law, and _judicia_ (judgments) are accounted as _jurisdicta_, (the speech of the law itself,) yet it is provided by act of parliament, that if any judgment be given contrary to any of the points of the Great Charter and Charta de Foresta, by the justices, or by any other of the king's ministers, &c., it shall be undone, and holden for naught.

"And that both the said charters shall be sent under the great seal to all cathedral churches throughout the realm, there to remain, and shall be read to the people twice every year.

"The highest and most binding laws are the statutes which are established by parliament; and by authority of that highest court it is enacted (only to show their tender care of Magna Carta and Carta de Foresta) that if any statute be made contrary to the Great Charter, or the Charter of the Forest, that shall be holden for none; by which words all former statutes made against either of those charters are now repealed; and the n.o.bles and great officers were to be sworn to the observation of Magna Charta and Charta de Foresta.

"_Magna fuit quondam magnae reverentia chartae._" (Great was formerly the reverence for Magna Carta.)--_c.o.ke's Proem to 2 Inst._, p. 1 to 7.

c.o.ke also says, "All pretence of prerogative against Magna Charta is taken away."--_2 Inst._, 36.

He also says, "That after this parliament (_52 Henry_ III., in 1267) neither Magna Carta nor Carta de Foresta was ever attempted to be impugned or questioned."--_2 Inst._, 102.[109]

To give all the evidence of the authority of Magna Carta, it would be necessary to give the const.i.tutional history of England since the year 1215. This history would show that Magna Carta, although continually violated and evaded, was still acknowledged as law by the government, and was held up by the people as the great standard and proof of their rights and liberties. It would show also that the judicial tribunals, _whenever it suited their purposes to do so_, were in the habit of referring to Magna Carta as authority, in the same manner, and with the same real or pretended veneration, with which American courts now refer to the const.i.tution of the United States, or the const.i.tutions of the states. And, what is equally to the point, it would show that these same tribunals, the mere tools of kings and parliaments, would resort to the same artifices of a.s.sumption, _precedent_, construction, and false interpretation, to evade the requirements of Magna Carta, and to emasculate it of all its power for the preservation of liberty, that are resorted to by American courts to accomplish the same work on our American const.i.tutions.

I take it for granted, therefore, that if the authority of Magna Carta had rested simply upon its character as a _compact_ between the king and the people, it would have been forever binding upon the king, (that is, upon the government, for the king was the government,) in his legislative, judicial, and executive character; and that there was no _const.i.tutional_ possibility of his escaping from its restraints, unless the people themselves should freely discharge him from them.

But the authority of Magna Carta does not rest, either wholly or mainly, upon its character as a compact. For centuries before the charter was granted, its main principles const.i.tuted "the Law of the Land,"--the fundamental and const.i.tutional law of the realm, which the kings were sworn to maintain. And the princ.i.p.al benefit of the charter was, that it contained a _written_ description and acknowledgment, by the king himself, of what the const.i.tutional law of the kingdom was, which his coronation oath bound him to observe. Previous to Magna Carta, this const.i.tutional law rested mainly in precedents, customs, and the memories of the people. And if the king could but make one innovation upon this law, without arousing resistance, and being compelled to retreat from his usurpation, he would cite that innovation as a precedent for another act of the same kind; next, a.s.sert a custom; and, finally, raise a controversy as to what the Law of the Land really was.

The great object of the barons and people, in demanding from the king a written description and acknowledgment of the Law of the Land, was to put an end to all disputes of this kind, and to put it out of the power of the king to plead any misunderstanding of the const.i.tutional law of the kingdom. And the charter, no doubt, accomplished very much in this way. After Magna Carta, it required much more audacity, cunning, or strength, on the part of the king, than it had before, to invade the people's liberties with impunity. Still, Magna Carta, like all other written const.i.tutions, proved inadequate to the full accomplishment of its purpose; for when did a parchment ever have power adequately to restrain a government, that had either cunning to evade its requirements, or strength to overcome those who attempted its defence?

The work of usurpation, therefore, though seriously checked, still went on, to a great extent, after Magna Carta. Innovations upon the Law of the Land are still made by the government. One innovation was cited as a precedent; precedents made customs; and customs became laws, so far as practice was concerned; until the government, composed of the king, the high functionaries of the church, the n.o.bility, a House of Commons representing the "forty s.h.i.+lling freeholders," and a dependent and servile judiciary, all acting in conspiracy against the ma.s.s of the people, became practically absolute, as it is at this day.

As proof that Magna Carta embraced little else than what was previously recognized as the common law, or Law of the Land, I repeat some authorities that have been already cited.

Crabbe says, "It is admitted on all hands that it (Magna Carta) contains nothing but what was confirmatory of the common law and the ancient usages of the realm; and is, properly speaking, only an enlargement of the charter of Henry I. and his successors."--_Crabbe's Hist. of the Eng. Law_, p. 127.

Blackstone says, "It is agreed by all our historians that the Great Charter of King John was, for the most part, compiled from the ancient customs of the realm, or the laws of Edward the Confessor; by which they mean the old common law which was established under our Saxon princes."--_Blackstone's Introd. to the Charters._ See _Blackstone's Law Tracts_, Oxford ed., p. 289.

c.o.ke says, "The common law is the most general and ancient law of the realm.... The common law appeareth in the statute of _Magna Carta_, and other ancient statutes, (which for the most part are affirmations of the common law,) in the original writs, in judicial records, and in our books of terms and years."--_1 Inst._, 115 b.

c.o.ke also says, "It (Magna Carta) was for the most part declaratory of the princ.i.p.al grounds of the fundamental laws of England, and for the residue it was additional to supply some defects of the common law.... They (Magna Carta and Carta de Foresta) were, for the most part, but declarations of the ancient common laws of England, _to the observation and keeping whereof the king was bound and sworn_."--_Preface to 2 Inst._, p. 3 and 5.

Hume says, "We may now, from the tenor of this charter, (Magna Carta,) conjecture what those laws were of King Edward, (the Confessor,) which the English nation during so many generations still desired, with such an obstinate perseverance, to have recalled and established. They were chiefly these latter articles of Magna Carta; and the barons who, at the beginning of these commotions, demanded the revival of the Saxon laws, undoubtedly thought that they had sufficiently satisfied the people, by procuring them this concession, which comprehended the princ.i.p.al objects to which they had so long aspired."--_Hume_, ch. 11.

Edward the First confessed that the Great Charter was substantially identical with the common law, as far as it went, when he commanded his justices to allow "the Great Charter as the Common Law," "in pleas before them, and in judgment," as has been already cited in this chapter.--_25 Edward_ I., ch. 1, (1297.)

In conclusion of this chapter, it may be safely a.s.serted that the veneration, attachment, and pride, which the English nation, for more than six centuries, have felt towards Magna Carta, are in their nature among the most irrefragable of all proofs that it was the fundamental law of the land, and const.i.tutionally binding upon the government; for, otherwise, it would have been, in their eyes, an unimportant and worthless thing. What those sentiments were I will use the words of others to describe,--the words, too, of men, who, like all modern authors who have written on the same topic, had utterly inadequate ideas of the true character of the instrument on which they lavished their eulogiums.

Hume, speaking of the Great Charter and the Charter of the Forest, as they were confirmed by Henry III., in 1217, says:

"Thus these famous charters were brought nearly to the shape in which they have ever since stood; and they were, during many generations, the peculiar favorites of the English nation, and esteemed the most sacred rampart to national liberty and independence. As they secured the rights of all orders of men, they were anxiously defended by all, and became the basis, in a manner, of the English monarchy, and a kind of original contract, which both limited the authority of the king and ensured the conditional allegiance of his subjects. Though often violated, they were still claimed by the n.o.bility and people; and, as no precedents were supposed valid that infringed them, they rather acquired than lost authority, from the frequent attempts made against them in several ages, by regal and arbitrary power."--_Hume_, ch. 12.

Mackintosh says, "It was understood by the simplest of the unlettered age for whom it was intended. It was remembered by them.... For almost five centuries it was appealed to as the decisive authority on behalf of the people.... To have produced it, to have preserved it, to have matured it, const.i.tute the immortal claim of England on the esteem of mankind. Her Bacons and Shakspeares, her Miltons and Newtons, with all the truth which they have revealed, and all the generous virtues which they have inspired, are of inferior value when compared with the subjection of men and their rulers to the principles of justice; if, indeed, it be not more true that these mighty spirits could not have been formed except under equal laws, nor roused to full activity without the influence of that spirit which the Great Charter breathed over their forefathers."--_Mackintosh's Hist. of Eng._, ch. 3.[110]

Of the Great Charter, the trial by jury is the vital part, and the only part that places the liberties of the people in their own keeping. Of this Blackstone says:

"The trial by jury, or the country, _per patriam_, is also that trial by the peers of every Englishman, which, as the grand bulwark of his liberties, is secured to him by the Great Charter; _nullus liber h.o.m.o capiatur, vel imprisonetur, aut exuletur, aut aliquo modo destruatur, nisi per legale judicium parium suorum, vel per legem terrae...._

The liberties of England cannot but subsist so long as this palladium remains sacred and inviolate, not only from all open attacks, which none will be so hardy as to make, but also from all secret machinations which may sap and undermine it."[111]

"The trial by jury ever has been, and I trust ever will be, looked upon as the glory of the English law.... It is the most transcendent privilege which any subject can enjoy or wish for, that he cannot be affected in his property, his liberty, or his person, but by the unanimous consent of twelve of his neighbors and equals."[112]

Hume calls the trial by jury "An inst.i.tution admirable in itself, and the best calculated for the preservation of liberty and the administration of justice, that ever was devised by the wit of man."[113]

An old book, called "English Liberties," says:

"English Parliaments have all along been most zealous for preserving this great Jewel of Liberty, trials by juries having no less than fifty-eight several times, since the Norman Conquest, been established and confirmed by the legislative power, no one privilege besides having been ever so often remembered in parliament."[114]

[Footnote 106: _Mackintosh's Hist. of Eng._, ch. 3. _45 Lardner's Cab.

Cyc._, 354.]

[Footnote 107: "_Forty s.h.i.+lling freeholders_" were those "people dwelling and resident in the same counties, whereof every one of them shall have free land or tenement to the value of forty s.h.i.+llings by the year at the least above all charges." By statute _8 Henry_ 6, ch. 7, (1429,) these freeholders only were allowed to vote for members of Parliament from the _counties_.]

[Footnote 108: He probably speaks in its favor only to blind the eyes of the people to the frauds he has attempted upon its true meaning.]

[Footnote 109: It will be noticed that c.o.ke calls these confirmations of the charter "acts of parliament," instead of acts of the king alone.

This needs explanation.

It was one of c.o.ke's ridiculous pretences, that laws anciently enacted by the king, at the request, or with the consent, or by the advice, of his parliament, was "an act of parliament," instead of the act of the king. And in the extracts cited, he carries this idea so far as to pretend that the various confirmations of the Great Charter were "acts of parliament," instead of the acts of the kings. He might as well have pretended that the original grant of the Charter was an "act of parliament;" because it was not only granted at the request, and with the consent, and by the advice, but on the compulsion even, of those who commonly const.i.tuted his parliaments. Yet this did not make the grant of the charter "an act of parliament." It was simply an act of the king.

The object of c.o.ke, in this pretence, was to furnish some color for the palpable falsehood that the legislative authority, which parliament was trying to a.s.sume in his own day, and which it finally succeeded in obtaining, had a precedent in the ancient const.i.tution of the kingdom.

There would be as much reason in saying that, because the ancient kings were in the habit of pa.s.sing laws in special answer to the _pet.i.tions_ of their subjects, therefore those _pet.i.tioners_ were a part of the legislative power of the kingdom.

One great objection to this argument of c.o.ke, for the legislative authority of the ancient parliaments, is that a very large--probably much the larger--number of legislative acts were done _without_ the advice, consent, request, or even presence, of a parliament. Not only were many formal statutes pa.s.sed without any mention of the consent or advice of parliament, but a simple order of the king in council, or a simple proclamation, writ, or letter under seal, issued by his command, had the same force as what c.o.ke calls "an act of parliament." And this practice continued, to a considerable extent at least, down to c.o.ke's own time.

The kings were always in the habit of consulting their parliaments, more or less, in regard to matters of legislation,--not because their consent was const.i.tutionally necessary, but in order to make influence in favor of their laws, and thus induce the people to observe them, and the juries to enforce them.

The general duties of the ancient parliaments were not legislative, but judicial, as will be shown more fully hereafter. The _people_ were not represented in the parliaments at the time of Magna Carta, but only the archbishops, bishops, earls, barons, and knights; so that little or nothing would have been gained for liberty by c.o.ke's idea that parliament had a legislative power. He would only have subst.i.tuted an aristocracy for a king. Even after the Commons were represented in parliament, they for some centuries appeared only as _pet.i.tioners_, except in the matter of taxation, when their _consent_ was asked. And almost the only source of their influence on legislation was this: that they would sometimes refuse their consent to the taxation, unless the king would pa.s.s such laws as they pet.i.tioned for; or, as would seem to have been much more frequently the case, unless he would abolish such laws and practices as they remonstrated against.

The _influence_ or power of parliament, and especially of the Commons, in the general legislation of the country, was a thing of slow growth, having its origin in a device of the king to get money contrary to law, (as will be seen in the next volume,) and not at all a part of the const.i.tution of the kingdom, nor having its foundation in the consent of the people. The power, _as at present exercised_, was not fully established until 1688, (near five hundred years after Magna Carta,) when the House of Commons (falsely so called) had acquired such influence as the representative, _not of the people, but of the wealth, of the nation_, that they compelled the king to discard the oath fixed by the const.i.tution of the kingdom; (which oath has been already given in a former chapter,(page 101) and was, in substance, to preserve and execute the Common Law, the Law of the Land,--or, in the words of the oath, "_the just laws and customs which the common people had chosen_;") and to swear that he would "govern the people of this kingdom of England, and the dominions thereto belonging, _according to the statutes in parliament agreed on_, and the laws and customs of the same."[115]

The pa.s.sage and enforcement of this statute, and the a.s.sumption of this oath by the king, were plain violations of the English const.i.tution, inasmuch as they abolished, so far as such an oath could abolish, the legislative power of the king, and also "those just laws and customs which the common people (through their juries) had chosen," and subst.i.tuted the will of parliament in their stead.

c.o.ke was a great advocate for the legislative power of parliament, as a means of restraining the power of the king. As he denied all power to _juries_ to decide upon the obligation of laws, and as he held that the legislative power was "_so transcendent and absolute as (that) it cannot be confined, either for causes or persons, within any bounds_,"[116] he was perhaps honest in holding that it was safer to trust this terrific power in the hands of parliament, than in the hands of the king. His error consisted in holding that either the king or parliament had any such power, or that they had any power at all to pa.s.s laws that should be binding upon a jury.

These declarations of c.o.ke, that the charter was confirmed by thirty-two "acts of parliament," have a mischievous bearing in another respect.

They tend to weaken the authority of the charter, by conveying the impression that the charter itself might be _abolished_ by "act of parliament." c.o.ke himself admits that it could not be revoked or rescinded by the _king_; for he says, "All pretence of prerogative against Magna Carta is taken away." (_2 Inst._, 36.)

He knew perfectly well, and the whole English nation knew, that the _king_ could not lawfully infringe Magna Carta. Magna Carta, therefore, made it impossible that absolute power could ever be practically established in England, _in the hands of the king_. Hence, as c.o.ke was an advocate for absolute power,--that is, for a legislative power "so transcendent and absolute as (that) it cannot be confined, either for causes or persons, within any bounds,"--there was no alternative for him but to vest this absolute power in parliament. Had he not vested it in parliament, he would have been obliged to abjure it altogether, and to confess that the people, _through their juries_, had the right to judge of the obligation of all legislation whatsoever; in other words, that they had the right to confine the government within the limits of "those just laws and customs which the common people (acting as jurors) had chosen." True to his instincts, as a judge, and as a tyrant, he a.s.sumed that this absolute power was vested in the hands of parliament.

But the truth was that, as by the English const.i.tution parliament had no authority at all for _general_ legislation, it could no more confirm, than it could abolish, Magna Carta.